People v. Hamed, F051324 (Cal. App. 4/21/2008)
| Decision Date | 21 April 2008 |
| Docket Number | F051324 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. NAAZIM ABDUL HAMED, Defendant and Appellant. |
Appeal from a judgment of the Superior Court of Fresno County, No. 4908315-5, R. L. Putnam, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Party Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
Naazim Abdul Hamed stands convicted, following a jury trial, of grand theft (Pen. Code,1 § 487; count 11). Special allegations that he intentionally took more than $50,000 and $150,000 (§ 12022.6, subds. (a)(1) & (a)(2); special allegation Nos. 3 & 4, respectively), and that the amount of the theft exceeded $100,000 (§ 1203.045; special allegation No. 5), were found not true. Imposition of sentence was suspended, and Hamed was placed on probation subject to various terms and conditions, in addition to which he was ordered to pay victim restitution in the amount of $630,000.2 He now appeals, raising various claims of error. For the reasons that follow, we will modify his sentence by striking the probation revocation fine, but otherwise affirm.
During the mid-1990's, Khadijah Ghafur spearheaded the creation of a nonprofit organization called Heritage Development Corporation (HDC), which was developed as a social service organization for the education of Muslim women and children. In 1996 or 1997, HDC purchased approximately 440 acres in the foothills of Tulare County, near Miramonte. This property, which was called Baladullah, came to be home to 30 to 50 families. Concerns about the educational needs of the school-aged children living at Baladullah led to the development of an independent-study program conducted through Sierra Summit charter school and, ultimately, to creation of Gateway Academy Charter School (Gateway). Gateway's charter petition was approved by the governing board of the Fresno Unified School District (FUSD) in October 1998.
Gateway first began to have students during the 2000-2001 school year. It started with 200 students at two sites in Fresno. Hamed had students of his own prior to becoming affiliated with Gateway, and he brought a number of them with him to Gateway. Ultimately, he became Gateway's chief administrative officer. Ghafur, Gateway's superintendent and president of its board of trustees, was his boss.
Hamed recruited other educators to participate in Gateway. One such person was Alfonso Uribe, who became involved with Gateway in spring of 2000, when Hamed asked him to serve as a consultant. Ghafur subsequently offered Uribe the position of chief academic officer/principal, effective at such time as there were enough students to warrant, and a sufficient guarantee of average daily attendance (ADA) funds to support, that position. Uribe became Gateway's principal in March or April 2001.
Uribe termed the number of students the "life's blood" of a charter school, because the California Department of Education pays ADA money based on the number of students and their attendance. A school receives a set amount of money per student per year to operate the school, but the money is not all received up-front. The amount is predicated on the number of days a student is in attendance. If a school were not part of Gateway, Gateway would not be able to collect ADA funding for that school's students. According to Uribe, although it would not be improper for a school to have a list of potential students in order to plan for future operation, it would be improper to have those students included in the enrolled students for whom the school received money.
Charter schools were required to submit a report to FUSD for each 20-day attendance period. Judi Sommarstrom worked for Larry Powell, FUSD's associate superintendent, and received student enrollment and attendance reports from all of FUSD's charter schools. If Sommarstrom did not receive one in a timely manner from Gateway, which happened on occasion, she contacted Ghafur or Hamed. She did not know, however, who actually compiled the reports.
Habibah Amatussalam was Gateway's registrar. Hamed was her direct boss. As registrar, Amatussalam collected applications from parents who wanted their children to attend Gateway, and she made sure the necessary paperwork was in order. This information was kept in Gateway's files. In addition, each school site submitted attendance sheets to her once a month. From these, she prepared the student body count and attendance reports, which she gave to Hamed and, if Ghafur asked, to Ghafur.
In spring of 2000, Karl Yoder was asked by people in the financial industry whether he could help structure financing for Gateway.3 Yoder first contacted either Ghafur or Hamed by telephone, then met with them in Fresno, whereupon he became involved in business transactions with them. During his dealings with Gateway, it was Yoder's perception that Ghafur and Hamed were operating Gateway jointly, as a team. This was his perception from general contact with both of them.
In April 2001, Yoder was involved in obtaining a loan for Gateway. This was done by means of a note for $945,000. Wedbush Morgan Securities (Wedbush) underwrote the bond for the funding. At the time, Gateway reported an enrollment of between 500 and 700 students.4
California uses County Offices of Education to distribute monies to school districts and charter schools. Charter schools can choose to either be direct funded, meaning they receive their monies from the County Office of Education, or to receive their funds through their sponsoring school district. The first year, Gateway chose to have money come through the school district. The second year, Gateway chose to be direct funded. Between November 30, 2000 and September 6, 2001, FUSD paid Gateway a total of more than $1.6 million in public funds, which consisted of a combination of monies received from the State of California and Gateway's share of local property taxes, each of which was based on the ADA that was generated. The first two checks, issued November 30, 2000, and January 2, 2001, were based on the ADA that was projected to be generated by Gateway. In 2001, the disbursements were based on the ADA that was generated from actual attendance in the prior school year.
In May or June 2001, Hamed met with Jacquie Canfield, FUSD's fiscal services administrator, regarding ADA funding. Hamed was trying to understand why Gateway was not receiving as much money as he thought it should, since enrollment had grown considerably since the beginning of the 2000-2001 school year. Canfield explained that an ADA payment is for a certain time frame, and Gateway's growth had occurred after that period. In addition, once the ADA is established for a charter school, the school will see the same amount of money the following school year until it completes a state report that will be certified the following February. Thus, Gateway would not be receiving any more money for the additional students until approximately February 2002. This news surprised Hamed, and Canfield got the impression he was a little nervous.
Near the time Gateway's headquarters moved from its facility on F Street to a site on Shields (which occurred sometime after July 4, 2001), Hamed requested access to the student records and attendance records. Amatussalam saw this as a problem, because she generated the body count reports from the attendance records, and was strict concerning what happened to the documents and who had access to them. The documents detailed which students were prospective students and which students were fully enrolled. Amatussalam did not submit prospective students to FUSD for the purpose of generating ADA funds. The actual student count was submitted by her to Hamed, and it was his responsibility to send that information to FUSD. It was also his responsibility to prepare the ADA reports.
During this time, Amatussalam's working roster, which contained information on all students who applied and not just those who were actually enrolled, was sent to FUSD. When FUSD complained, Hamed and Ghafur asked Amatussalam whether she had sent the list. Ultimately, Hamed's wife admitted sending it. Hamed told his wife not to send anything and not to touch anything she found on anyone's desk. For Amatussalam, this did not explain how Hamed's wife came to have the working roster, as it had not been printed or distributed, but instead was kept on Amatussalam's computer. In Hamed's presence, his wife said that Hamed told her to send the document to FUSD.
Amatussalam reported this incident to Ghafur, who said she would look into it. At some point, Amatussalam paid to have locks put on the file cabinets, and she then kept the student files locked. She also paid for a computer person to come in and network the computers, so that everything that could be accessed without a problem was placed in a shared file, while passwords were assigned to sensitive information. This caused problems, because Hamed wanted access to the files, and staff would not comply. Both Hamed and the facilitator at one of the outside sites asked Amatussalam to unlock her files, but she refused, as documents had been changed, attendance sheets had been altered, and there were files with missing records. Although Amatussalam had no information that Hamed had anything to do with that, it caused her concern when Ghafur announced to the staff of the registration office that Hamed was their immediate supervisor, had the power to hire or fire, and was to receive access to the records as he requested. After the move to the Shields facility, there was no lock on the door to Amatussalam's office, and the...
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