People v. Khan

• Decision Date: 28 October 2019
• Docket Number: H045524
• Citation: 254 Cal.Rptr.3d 392,41 Cal.App.5th 460
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Muhammad KHAN, Defendant and Appellant.

41 Cal.App.5th 460

254 Cal.Rptr.3d 392

The PEOPLE, Plaintiff and Respondent,

v.Muhammad KHAN, Defendant and Appellant.

H045524

Court of Appeal, Sixth District, California.

Filed October 28, 2019

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, René A. Chacón, Supervising Deputy Attorney General, Bruce Ortega, Deputy Attorney General, Counsel for Plaintiff and Respondent: THE PEOPLE.

Jared G. Coleman, Sixth District Appellate Program, Counsel for Defendant and Appellant: MUHAMMAD KHAN.

ELIA, J.

Following a trial, a jury found defendant Muhammad Khan guilty of arson of an inhabited structure ( Pen. Code, § 451, subd. (b) ).¹ The jury found true an enhancement allegation that he committed the arson by use of a device designed to accelerate the fire (§ 451.1, subd. (a)(5)). Defendant was sentenced to a total term of nine years, which consisted of a five-year term on the arson and a four-year enhancement.

On appeal, defendant challenges the trial court's denial of his motion to suppress evidence obtained through a warrant to search his home. He contends that the trial court erred because (1) the warrant affidavit did not present a substantial basis for a finding of probable cause and (2) the good-faith exception to the exclusionary rule did not apply. Defendant also asserts that under the reasoning of In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ), this court must remand this case so that the trial court may order pretrial diversion for treatment of his mental health condition pursuant to section 1001.36, which went into effect while his appeal was pending.

We find his contentions without merit. Based on legislative history, we conclude that section 1001.36, which authorizes pretrial diversion for mental health treatment, does not retroactively apply to defendant, who had been found guilty following a jury trial and is serving his sentence. Accordingly, we affirm the judgment.

IEvidence

A. The Prosecution's Case-in-Chief

The Relationship of Defendant and S.S.

S.S. met defendant in approximately late 2013 when S.S. was working for SAP as part of its start-up-focus program and defendant was an SAP intern. Later, when S.S. was vice president of innovations, S.S. was responsible for getting HanaHaus, which was a work space that was "anchored by a coffee shop in downtown Palo Alto," up and running. HanaHaus was a vision of an SAP founder. It was meant to serve "the broader entrepreneurial community of Palo Alto" and be a place "to hang out and work and be productive."

In approximately March of 2014, S.S. advertised the position of HanaHaus manager, and defendant expressed an interest in the job. Because defendant had done "a pretty good job" as an intern on the projects he had done for S.S. in 2013, S.S. had "no problem" bringing defendant into the HanaHaus project.

On April 1, 2014, defendant began working as the manager of HanaHaus; he reported to S.S. During the planning and construction phases, defendant performed his duties extremely well. Defendant helped S.S. interact with contractors, architects, and people in the Palo Alto community.

Defendant went to S.S.'s house on at least one occasion. In that instance, S.S. had brought defendant over to his house because he was lending bicycles to defendant's sisters, who were visiting from the East Coast. S.S. and defendant loaded the bicycles in S.S.'s car and took them over to defendant's apartment. S.S. believed that defendant had come over to his house one other time, but S.S. could not recall the circumstances.

S.S. gave defendant a performance review for 2014. He rated defendant "outstanding" in five of 14 categories and "successful" in the remaining categories. In the category of "teamwork," which refers to "getting along with ... fellow team members," defendant received an excellent rating for 2014.

In 2014 or as late as January 2015, S.S. wrote a recommendation for defendant in support of his graduate school application.

Defendant's job performance began to "drop quite a bit" as they got close to the launch of HanaHaus. HanaHaus opened in March 2015. After HanaHaus was up and running, S.S. took on the additional responsibility of strategic product development at SAP.

HanaHaus operated with the support of four or five outside contractors. Blue Bottle Coffee ran the coffee shop. Defendant's managerial duties required him to be physically present to run HanaHaus's "day-to-day operations." His duties included ensuring that the contractors "performed their jobs well" and managing reservations for the workspace.

As the manager, defendant was also responsible for handling social media for HanaHaus, including posts on Twitter, Facebook, and Instagram. Defendant was supposed to create "a marketing and communications buzz" and broadly communicate information about HanaHaus. He had exclusive control of HanaHaus's social media accounts.

After HanaHaus opened, his performance "really started to go down," according to S.S. Defendant had "many, many absences," and when asked about his absences, defendant often gave medical reasons for them. Defendant also disappeared from work during the day without telling S.S. or anyone else at HanaHaus that he was leaving. S.S.'s relationship with defendant became frayed because S.S. had his "broader responsibilities" in addition to his responsibility "to run HanaHaus efficiently."

S.S. had received complaints about defendant's behavior from his other HanaHaus staff. One complaint was that defendant allowed people that he knew to use HanaHaus without a reservation and without paying.

Nevertheless, in April of 2015, S.S. signed off on defendant's raise and promotion based on defendant's 2014 performance. At trial, S.S. explained that it took about four months for SAP management to approve recommendations based on the prior year's evaluation.

S.S. informed "HR" that defendant was taking long sick leaves and not showing up for work. In 2015, S.S. gave defendant a memo, dated May 19, 2015, that documented defendant's deficient performance, and S.S. then discussed the memo in person with defendant while an HR manager was on the phone. The memo also addressed improper charges that defendant had incurred on an SAP credit card, including "a very high Uber receipt." S.S. went over a three-month performance plan for defendant. It specified tasks to be done by certain dates and provided for weekly follow-ups. The HR manager asked defendant to read the memo and sign it, but defendant never signed it.

Defendant's job performance did not improve. Defendant continued to take unapproved leaves and vacation time. While supposedly on leave, defendant showed up for at least one event hosted at HanaHaus. In September or October of 2015, S.S. personally informed defendant that he could not be at HanaHaus while on sick leave. Defendant told S.S., "This is a public place" and "I can come and go as I please." S.S. thought defendant's attitude was "[v]ery aggressive" and "[v]ery arrogant." The staff reported to S.S. that defendant was at HanaHaus three or four times. S.S. met defendant there and asked him to leave a couple of times. Defendant did not appear to be sick on those occasions. Defendant did not work most of the time between the end of October 2015 and Thanksgiving.

On November 26, 2015, at approximately 2:00 a.m. California time, S.S., who was traveling abroad, received a phone call from the security company responsible for HanaHaus's alarm system. S.S. learned that there had been a possible break-in and that a sensor had indicated "door open," but not "glass breaking." S.S. inferred that someone with a key who did not know the alarm code had gone into HanaHaus. Only S.S. and those who had to enter HanaHaus after closing, such as delivery personnel for Blue Bottle, had the security code for the alarm system. Defendant, as the manager of HanaHaus, had "full clearance to come and go" as he pleased during open hours, but he did not have the security code.

On Monday, November 30, 2015, after S.S. had returned home, he reviewed the security camera recording for November 26, 2015. It showed someone entering HanaHaus from the back parking lot. Although S.S. could not see the intruder's face because he was wearing "some kind of mask," S.S. identified him as defendant based on his body type, his walk, his trousers, and his shoes. Toward the beginning of the recording, S.S. saw defendant, who was wearing a red and white-striped shirt, hunch down at an angle. This movement was consistent with someone unlocking the bolt at the bottom of the doors.

Toward the end of the recording, S.S. saw defendant hop or skip. S.S. subsequently found out that cockroaches had been "thrown" into HanaHaus, which had never before had cockroaches.

On December 1, 2015, the day after S.S. had identified defendant in the security recording, defendant was terminated from SAP. Although S.S. was not the one who actually terminated defendant, S.S. provided the information to HR. S.S. indicated that he feared for his safety at this point because of defendant's level of aggression and his lack of respect for the law or rules. On cross-examination, S.S. agreed that defendant had "never threatened, taunted or intimidated [S.S.] in any way" during "the entire time that [S.S.] worked with him at SAP."

After defendant's termination, it was discovered that "a whole bunch of nonsense" and misinformation had been posted on HanaHaus's Google Places account. Defendant had also posted that HanaHaus was going to be converted into an SAP office, which was inconsistent with the city's approval of HanaHaus. Defendant had changed the passwords to the social media accounts and not given them to anyone else. It proved very difficult to recover control of those accounts.

The Residential Fire on January 9, 2016

On the morning of Saturday, January 9, 2016, S.S. and his wife, Y.S., awoke to a beeping sound in their...