People v. Khan

Filed 10/28/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H045524

(Santa Clara County

Plaintiff and Respondent, Super. Ct. No. B1683806)

v.

MUHAMMAD KHAN,

Defendant and Appellant.

Following a trial, a jury found defendant Muhammad Kahn 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

(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

1

All further statutory references are to the Penal Code unless otherwise specified.

not retroactively apply to defendant, who had been found guilty following a jury trial and

is serving his sentence. Accordingly, we affirm the judgment.

I

Evidence

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.

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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.”

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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.

4

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.”

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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 Palo Alto home where they lived with their daughter, who was a

high school senior. The noise was coming from a fire alarm and smoke detector in their

garage. Y.S. realized that their garage was full of smoke and she screamed, “Fire. Call

9-1-1.” The concrete appeared to be on fire. She saw that the wooden corner of the

garage was on fire and that flames were shooting up. Multiple fires were burning. 911

was called.

Y.S. was terrified. She thought her cars, which had full tanks of gas and were

parked in the garage, were going to blow up. Their daughter was asleep in the house, and

teenagers are hard to wake up. Y.S. smelled burning wood and gasoline. Y.S. was

screaming to wake up their daughter.

S.S. came running out, and they began trying to put out the fires using garden

hoses. S.S. smelled gasoline and thought that a rag or piece of towel was soaked with

gasoline. Pieces of towel or rags, some in containers, had been placed under the garage

door, and they kept burning. Gasoline that was puddled along the length of the garage

door kept burning.

S.S. and Y.S. finally managed to put out the fires. The police and firefighters

responded. Y.S. realized that her hand was burned. She believed that had happened

when she unhooked the red hot, metal clasp that held the two sliding, single-car garage

doors in place.

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Shortly after the fire was out, S.S. realized that the fire had been intentional. S.S.

did not have enemies or neighbors with whom he did not get along. He could think of

only one person who would set fire to his house while his family and he were sleeping,

and that person was defendant. Approximately five to 10 minutes after the fire had been

put out, S.S. reached the conclusion that defendant was the perpetrator.

The Investigation

Shane Lopes, a fire investigator and a fire inspector for the City of Palo Alto Fire

Department, testified as an expert. On January 9, 2016, Fire Inspector Lopes was the on-

call arson investigator, and he was called out and asked to determine whether arson had

occurred at the residence.

On January 9, 2016, Dujan Green, a detective with the investigative services

division of the Palo Alto Police Department, collected pieces of blue singed cloth, singed

headwear with a “TOP headwear” label, and a rubber gasket. At the crime scene,

Detective Green smelled an odor “resembl[ing] gasoline.” He took swabs of possible

accelerant for testing.

William Whitaker, a City of Sunnyvale police officer, was certified as both a

police officer and a firefighter. He was a “K9 handler” of Kodiak, “a police service dog,”

which was certified in detecting accelerants, including gasoline. Officer Whitaker

responded to the scene and was asked to perform an accelerant search. There were four

burnt areas along the garage, and Kodiak alerted in three of the locations.

Fire Inspector Lopes determined that someone had intentionally set the fire. There

were multiple start points, and the burn patterns suggested sequential ignition. The arson

originated on the residence’s exterior, specifically the corner of the garage near a sliding

garage door. There were remnants of “shop rags or dish towels” on the driveway. He

smelled gasoline. “Gasoline is an extremely volatile, flammable liquid.”

A neighbor on S.S.’s street had a “Nest Cam,” which continuously sent time-and-

date-stamped video recordings to Google Cloud. Upon request, the neighbor provided

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recordings from the early morning hours of January 9, 2016 to the Palo Alto Police

Department. In one recording, a vehicle could be seen leaving at 6:18 a.m. and the Fire

Department could be seen arriving at 6:23 a.m.

Sergeant Anthony Becker, an officer with the Palo Alto Police Department, saw

the home security video showing a vehicle, believed to be a Cadillac ATS, driving to and

away from the crime scene. The sergeant learned that defendant had been identified as a

person of interest, and he began trying to determine whether defendant owned or had

rented a vehicle.

Christopher Moore, a City of Palo Alto police officer, was involved in the arson

investigation on January 9, 2016, and he was tasked with searching the area for a

dark-colored sedan. His vehicle’s mounted camera recorded as he drove. A photograph

of a vehicle that he passed at approximately 8:30 a.m. that morning was later extracted.

In reviewing Officer Moore’s video, Sergeant Becker saw a dark (either black or

dark gray) Cadillac ATS parked along the curb, adjacent to defendant’s address. The

sergeant could see the vehicle’s license plate, and he was able to track the vehicle to

Zipcar. Zipcar rental records obtained by search warrant showed defendant had rented a

Cadillac ATS with that license plate. It would have taken 10 to 15 minutes, depending

upon the route, to drive from defendant’s address to the victims’ address at about

6:00 a.m. on a Saturday morning.

Detective Eric Bulatao, an officer with the City of Palo Alto Police Department,

also investigated the January 9, 2016 arson. The police obtained defendant’s phone

number from S.S. and then contacted the carrier. The police obtained the past 24 hours

of defendant’s phone records and determined that the last phone call had been made to

Zipcar.

Agent Anajanette Holler, a police officer with the Palo Alto Police Department,

was part of a team that executed a search warrant of defendant’s home, a small studio

apartment, at approximately 10:00 a.m. on January 10, 2016. She was looking for

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evidence of arson. Officer Whitaker and Kodiak participated in the search of defendant’s

home. Kodiak alerted on the shoe and sock found together on the ground inside the front

doorway. Kodiak showed particular interest, but did not alert, in the bathroom by the

floor mat, in between the toilet and the bathtub or shower area.

The police collected items from the inside of defendant’s residence, including

defendant’s gray New Balance shoes and a single black sock to which the dog had

alerted, a Zipcard with a member number on it, packaging for “a heat-resistant mitt,” and

a Whole Foods receipt dated January 6, 2016. The receipt showed that defendant had

purchased an organic Kombucha drink. A “white plastic mask” was found inside “the

built-in shelf cabinets” near the bed. A red and white article of clothing was found in

defendant’s closet. A black backpack, which was next to the shower in defendant’s

bathroom, was collected.

During the search of defendant’s outside storage shed, the police found an open

cardboard box containing a gas can, a heat-resistant glove, and the package for the glove.

The box also contained Amazon packaging. The gas can smelled like gasoline. During

the two-hour-and-15-minute search of defendant’s apartment, Agent Holler did not see

anything that required gasoline. Kodiak alerted on the box containing the gas can with

liquid inside. After a heat-protective glove stored in the box was separated from the gas

can, Kodiak separately alerted on the glove.

Defendant’s storage shed also contained a plastic seal from a bottle cap, which

stated something along the lines of, “Contains alcohol. Must be 21 years or older.” The

plastic seal was “consistent [with], if not identical [to], . . . a bottle of Kombucha that was

in the middle of the defendant’s [home].”

Detective Bulatao prepared a search warrant for Amazon records of defendant’s

purchases for a specified period, and Amazon provided a purchase history. Defendant

had purchased the heat-resistant glove or barbecue mitt from Amazon and a beige,

Top Headwear ski mask at 4:22 a.m. Pacific Standard Time on January 6, 2016. Both

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items had been delivered to defendant on January 8, 2016. The heat-resistant glove that

defendant had purchased matched the glove found in the box in his storage shed. The ski

mask that defendant had purchased matched the one found on the driveway of the

victims’ home.

On January 10, 2016, the police took the Cadillac ATS into evidence after finding

it parked outside in a parking lot that had parking spots for Zipcar vehicles. The vehicle

was locked but its windows were rolled down about two inches. Gasoline dissipates or

“volatize[s] out” when exposed to air. The head of Zipcar security confirmed that no one

had rented the vehicle after defendant had turned it in.

The Zipcar security manager at the time of trial testified regarding Zipcar’s rental

records for a 2015 Cadillac ATS with license plate 7GNV470. He explained that a

Zipcar member may rent a vehicle online and then use his or her Zipcard to get into the

vehicle. Each Zipcar vehicle had a Zipcar decal, and its keys were inside. Each vehicle

was equipped with a GPS device, and the GPS tracking system was always on. But

Zipcar did not keep a history of GPS location information.

The rental records for the Cadillac showed that at 9:14 p.m. on January 7, 2016,

the Zipcar member who was renting the Cadillac asked whether Zipcar was able to “GPS

the vehicle.” A Zipcar representative responded that Zipcar was not able to provide GPS

information for privacy reasons. Defendant had rented the Cadillac, beginning at

9:00 a.m. on January 8, 2016 and ending at 2:00 p.m. on January 9, 2016. The records

further disclosed that at 5:05:13 a.m. on January 9, 2016, the vehicle’s door was open. At

6:03:10 a.m. on January 9, 2016, the Cadillac’s doors were unlocked and its ignition was

on, and at 6:32:52 a.m. on January 9, 2016, the engine was off. The engine was on again

at 11:09:30 a.m. on January 9, 2016, and its door was open at 11:25:26 a.m. on January 9,

2016.

On January 12, 2016, Officer Whitaker took his dog Kodiak to search a Cadillac

ATS in Palo Alto Police Department’s secured facility. Although Kodiak did not alert,

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Kodiak displayed interest and engaged in intense sniffing at the base of the back seat at

its crease. A property analyst technician with the Palo Alto Police Department processed

the Cadillac. She took photographs of the vehicle’s exterior and interior, swabbed it for

“contact DNA,” and collected a portion of the back seat to which Kodiak had responded.

Defendant’s driver’s license was found underneath the front passenger seat.

A crime analyst with the Santa Clara County Crime Laboratory testified as an

expert in the analysis of ignitable liquids, which include gasoline. She confirmed that the

liquid inside of the gas can was gasoline. She tested the People’s exhibits 23, 24, and 25

(pieces of cloth collected from the crime scene) and confirmed that gasoline was present

in each of them. She tested the heat-resistant glove and found gasoline.

B. Defense Case

Detective Bulatao was also called as a witness by the defense. He testified that the

warrant to search defendant’s residence was executed at 9:45 a.m. on January 10, 2016.

Defendant was asked to exit his home, and he used crutches to walk out and to get around

that day. He was wearing a medical boot on one of his legs.

Detective Bulatao had reason to believe, however, that defendant was being

untruthful about his physical abilities. The police had found a Best Buy store receipt with

a time and date stamp of 8:45 p.m. on January 8, 2016 in defendant’s home. Detective

Bulatao obtained and reviewed surveillance video from that Best Buy store location. He

saw defendant, who had “a walking cast boot” on one foot, walking by himself into the

store carrying a large box. He knew that Detective Joel Hornung had conducted

surveillance of defendant’s home and observed defendant “walking on his own . . . after

being dropped off by an Uber.”

Detective Bulatao confirmed that the ski cap was initially analyzed by the crime

lab for only the presence of accelerants, not DNA. When the crime lab was later asked to

perform DNA and hair sample analyses on the cap, the lab found nothing tying defendant

to it.

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Detective Bulatao acknowledged that the video clips obtained from the neighbor’s

Nest Cam showed that a dark SUV drove past in the direction of the victims’ house at

5:23 a.m. on the morning of the fire. The detective confirmed that the street was not a

dead end and that a vehicle did not need to drive past the neighbor’s house to leave the

street.

Detective Bulatao acknowledged that no burn marks were found on defendant.

C. The Prosecution’s Rebuttal

As part of the initial arson investigation, Detective Hornung, an officer with the

Palo Alto Police Department, conducted surveillance of the residence believed to have

been involved in the arson. Officer Hornung arrived at 11:45 a.m. and was there until

approximately 4:00 p.m. He watched from the back seat of an unmarked vehicle. The

detective saw defendant arrive at the residence at approximately 1:45 or 2:00 p.m. in

what appeared to be an Uber vehicle. The officer captured on video defendant walking

unassisted into his residence, including his navigation of a staircase and his grabbing of

some bags from somebody walking with him. Although defendant had a “device” on one

foot, he was not using crutches or a wheelchair. The video was played for the jury.

II

Discussion

A. Motion to Suppress

1. Background

Defendant moved to traverse the search warrant and suppress evidence pursuant to

section 1538.5 on the ground that the underlying affidavit did not establish the probable

cause required for a search warrant.

In his search warrant affidavit, Detective Bulatao stated the following. At

6:19 a.m. on January 9, 2016, the Palo Alto Fire Department responded to a fire at a Palo

Alto address. Police also responded to the scene. There was “a strong odor similar to

gasoline” coming from the driveway area. The Fire Department suspected that the fire

12

was intentional and informed responding police officers that it appeared that an

accelerant had been used to set the garage door on fire. S.S. had said that “several small

blue bath towels and a brown watch cap located on the driveway . . . did not belong to

him.” The police “established a secured crime scene.”

At approximately 11:00 a.m. on January 9, 2016, Officer Whitaker of the

Sunnyvale Department of Public Safety and his “nationally certified accelerant detection

dog,” Kodiak, arrived at the scene. Officer Whitaker informed Detective Bulatao that

“Kodiak [had] indicated the presence of accelerant on three different locations at the

garage door.” Based on this information, Detective Bulatao believed that the residence

had been “specifically targeted” and that “an unknown suspect [had] intentionally set fire

to” it.

S.S. told Detective Bulatao that he was a vice president of SAP and managed a

Palo Alto coffee shop catering to the technology industry. S.S. had supervised defendant

for the past year. In March 2015, defendant was “having performance problems.”

Defendant had taken “an extended leave of absence.” Defendant was “displeased” with

his supervisor, S.S.

In November of 2015, defendant “showed up at work when he was not supposed

to be there because he was still on leave,” and S.S. escorted defendant out. In late

November of 2015, an alarm at the coffee shop was triggered, and the video showed that

a “masked subject [had] used a key to enter the business but [had] not enter[ed] the

proper key code . . . .” The subject had “released several cockroaches into the building.”

The health department received “an anonymous call” “describing the cockroaches.” S.S.

identified the person in the video recording as defendant. Defendant was terminated.

“A few weeks later an unknown person posted a Craigslist advertisement for an

apartment in San Francisco at a rate that [was] well below market rent,” and it listed

S.S.’s personal cell phone number as the contact for the rental, which “resulted in a

barrage of phone calls” and caused S.S. to change his phone number. S.S. believed

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defendant was responsible for the advertisement because of its timing after defendant’s

termination and defendant’s knowledge of his personal cell phone number.

“A week later, an unknown subject appeared to have driven a vehicle through the

glass entrance” of the coffee shop, causing damage costing approximately $125,000. S.S.

“suspected [defendant was] responsible given the timing of the incident in relation to the

prior incidents and [defendant’s] termination.”

The affiant obtained pertinent correspondence from SAP’s human resources

department. Defendant had made complaints against S.S. and expressed “his displeasure

over his termination.” S.S. had sent an email to the company’s management, stating “his

concern for his personal safety and the safety of his employees” due to defendant’s prior

acts.

On December 16, 2015, Palo Alto police were dispatched to conduct a welfare

check of defendant after a Kaiser Hospital employee called police and reported that

defendant had written “an email that consisted of veiled suicidal threats.” The employee

reported that defendant’s email statements “indicated [that] he was hostile with violent

tendencies.” Upon contacting defendant, the police determined that defendant was “not a

danger to himself at that time.”

On December 22, 2015 and on December 25, 2015, defendant called police and

stated that “he believed someone was outside of his house.” In both instances, the police

responded and determined that no one was there. “[R]esponding officers suspected that

[defendant] was out of touch with reality and might be suffering from mental health

issues.”

S.S. had told Detective Bulatao that defendant previously had been to S.S.’s home

and was “well aware [of] where [S.S.] lived.” Defendant was also aware that S.S.’s

residence had no alarm or security cameras “because they had discussed this previously.”

S.S. told Detective Bulatao that he had spoken with several other SAP employees

who had worked with defendant, including another former supervisor, and they had

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“disclosed [their] concern over [defendant’s] erratic and unpredictable behavior.” S.S.

had also seen defendant display erratic behavior. He reported that defendant had

“purposely altered their company’s social networking pages (Facebook, Instagram,

Twitter) and posted information that was not true.” Defendant had “changed the location

of the downtown business with Google maps.” Defendant had also “listed the downtown

location as an office space which was not true and violated an agreement with the

Architect Review Board.”

Defendant had been arrested for assault with a deadly weapon in Los Gatos,

California, in 2013.

Detective Bulatao indicated that based on his training and/or experience it was

probable that defendant committed the crime of arson, a violation of section 451,

subdivision (b). He based his conclusion on (1) “the specificity of the location of the

arson” in a residential area “where few people would have any reason to go” without “a

specific connection to [the] houses on that street;” (2) defendant’s recent termination

from SAP and his stated displeasure with S.S.; (3) the cockroach incident (as to which

S.S. had identified defendant as the culprit); (4) the incident of the Craigslist ad (in which

the below-market ad listed S.S.’s private cell phone number); and (5) defendant’s erratic

behavior reported by Kaiser and observed by police.

Based on his experience that people often keep receipts from recent purchases,

Detective Bulatao stated his belief that receipts from purchases of “items pertaining to

[the] investigation (i.e. gas purchases, towels, canisters)” would be found in defendant’s

residence. He also stated, based on his training and experience, that he knew that fire

accelerant is “contained in canisters or other containers,” that “persons who use

accelerants to soak rags, such as the blue towels in this case, may do so in the safety of

their homes to avoid detection,” that “those canisters or other containers of accelerant

may be found if a search is conducted,” and that “when a specific item is used in a

crime—in this case, blue towels cut into rags”—“often more of the same type of items

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will be found in a person’s home.” The detective believed that “a certified canine” would

provide “great assistance in locating the presence of accelerant.” The detective also

knew, based on his training and/or experience, that “liquids [such] as a fire accelerant can

often spill onto a person’s clothes,” that “dogs trained in accelerant detection can alert to

the presence or non-presence of an accelerant,” and that “personal items of clothing will

be found in a person’s residence.”

Detective Bulatao also believed, based on his training and experience, that it was

“probable that the evidence associated with the crime scene may be able to be analyzed

forensically for fingerprints and/or DNA and that a comparison with [defendant’s]

fingerprints and/or DNA would help identify the perpetrator of the crime.” To preserve

any evidence of Internet searches related to the arson, phone calls received or made, and

information as to the phone’s location, the detective requested that “any devices that

appear capable of an [I]nternet connection and specifically any cellular telephone or

computer be seized so that a search warrant that complies with the requirements of the

Electronic Communications Privacy Act can be obtained.”

The court denied defendant’s motion to traverse the search warrants and suppress

evidence.

2. Validity of the Search Warrant

a. Governing Law

“The Fourth Amendment to the United States Constitution prohibits ‘unreasonable

searches and seizures’ and requires search warrants to be issued only upon a showing of

‘probable cause’ describing with particularity ‘the place to be searched, and the . . . things

to be seized.’ (U.S. Const., 4th Amend.)” (People v. Westerfield (2019) 6 Cal.5th 632,

659 (Westerfield).) “[P]robable cause does not demand the certainty we associate with

formal trials.” (Illinois v. Gates (1983) 462 U.S. 213, 246 (Gates).)

“The showing required in order to establish probable cause is less than a

preponderance of the evidence or even a prima facie case. (Illinois v. Gates, supra, 462

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U.S. at p. 235.)” (People v. Carrington (2009) 47 Cal.4th 145, 163.) “The pertinent rules

governing a Fourth Amendment challenge to the validity of a search warrant, and the

search conducted pursuant to it, are well-settled. ‘The question facing a reviewing court

asked to determine whether probable cause supported the issuance of the warrant is

whether the magistrate had a substantial basis for concluding a fair probability existed

that a search would uncover wrongdoing.’ (People v. Kraft (2000) 23 Cal.4th 978, 1040

(Kraft), citing Illinois v. Gates (1983) 462 U.S. 213, 238-239.)” (Westerfield, supra, 6

Cal.5th at p. 659.) “[P]robable cause [to believe an offense has been committed] requires

only a probability or substantial chance of criminal activity, not an actual showing of

such activity. By hypothesis, therefore, innocent behavior frequently will provide the

basis for a showing of probable cause . . . .” (Gates, supra, at p. 244, fn. 13.)

“The test for probable cause is not reducible to ‘precise definition or

quantification.’ [Citation.] ‘Finely tuned standards such as proof beyond a reasonable

doubt or by a preponderance of the evidence . . . have no place in the [probable-cause]

decision.’ [Citation.] All [the United States Supreme Court has] required is the kind of

‘fair probability’ on which ‘reasonable and prudent [people,] not legal technicians, act.’

[Citation.]” (Florida v. Harris (2013) 568 U.S. 237, 243-244 (Harris).)

“In evaluating whether the State has met this practical and common-sensical standard [of

probable cause], [the United States Supreme Court has] consistently looked to the totality

of the circumstances. [Citations.] [The court has] rejected rigid rules, bright-line tests,

and mechanistic inquiries in favor of a more flexible, all-things-considered approach. . . .

Probable cause . . . is ‘a fluid concept—turning on the assessment of probabilities in

particular factual contexts—not readily, or even usefully, reduced to a neat set of legal

rules.’ [Citation.]” (Harris, supra, 568 U.S. at p. 244.)

“The task of the issuing magistrate is simply to make a practical, common-sense

decision whether, given all the circumstances set forth in the affidavit before him,

including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay

17

information, there is a fair probability that contraband or evidence of a crime will be

found in a particular place.” (Gates, supra, 462 U.S. at p. 238.) But “[s]ufficient

information must be presented to the magistrate to allow that official to determine

probable cause; his action cannot be a mere ratification of the bare conclusions of

others.” (Id. at p. 239.) “An affidavit must provide the magistrate with a substantial

basis for determining the existence of probable cause . . . .” (Ibid.) Wholly conclusory

statements do not suffice to meet that requirement. (Ibid.)

A reviewing court does not conduct a de novo review of the sufficiency of a

search warrant affidavit but rather determines whether there is substantial evidence

supporting the magistrate’s decision to issue the warrant. (See Gates, supra, 462 U.S. at

pp. 236-237.) “Reasonable minds frequently may differ on the question whether a

particular affidavit establishes probable cause, and [the United States Supreme Court has]

thus concluded that the preference for warrants is most appropriately effectuated by

according ‘great deference’ to a magistrate’s determination. [Citations.]” (Unites States

v. Leon (1984) 468 U.S. 897, 914 (Leon).) “[T]he warrant ‘can be upset only if the

affidavit fails as a matter of law to set forth sufficient competent evidence’ supporting the

finding of probable cause.” (Westerfield, supra, 6 Cal.5th at p. 660.)

b. Analysis

Defendant argues that the search warrant “affidavit included no facts discovered at

the scene of the crime that logically pointed to [him] as the perpetrator, i.e. none of the

evidence found at the scene connected [him] to the arson.” He contends that evidence of

suspicious acts or other crimes unrelated to the arson under investigation cannot establish

probable cause to search for evidence of the arson. Defendant asserts that “the affiant’s

core conclusion supporting the warrant—i.e.[,] that [he] probably committed the arson—

was not supported by a factual foundation.”

Defendant argues that “[n]early every fact [proven at trial] that connected [him] to

the arson itself was discovered through the [execution of the search] warrant, or

18

discovered based on evidence found through the warrant.” He maintains that such

evidence should have been suppressed, that the trial court’s error in failing to grant his

motion to suppress was not harmless beyond a reasonable doubt, and that this court must

reverse the judgment.

The affidavit set forth ample facts establishing probable cause to believe that the

residence where S.S. and his family lived had been the object of arson using an

accelerant. There were circumstances that implicated defendant. Defendant was

disgruntled with S.S., his former supervisor. He had been having workplace performance

problems that had led to an extended leave from work. S.S. had escorted him from the

premises when defendant showed up at the coffee shop while he was on leave. In late

November of 2015, defendant had surreptitiously entered the workplace after hours,

setting off a security alarm, and he had released cockroaches into the building. The

health department received an anonymous call describing the cockroaches. Shortly after

the incident, defendant was terminated.

The affidavit clearly showed that after the cockroach incident and prior to the

arson, both the coffee shop (defendant’s former workplace) and S.S. (his former

supervisor) had been injured. The Craigslist incident resulting in a barrage of phone calls

on the supervisor’s personal phone number, which was known to defendant, and the

costly damage to the coffee shop occurred within weeks of defendant’s termination. The

arson of S.S.’s home occurred in early January 2016. It is true that at the time he wrote

the affidavit, Detective Bulatao did not have specific information that directly tied

defendant to the Craigslist incident, the damage to the coffee shop, or the arson.

Nevertheless, those multiple incidents, which occurred not long after defendant’s

termination, together suggested that the coffee shop and S.S. were being specifically

targeted for harm.

Viewing the totality of circumstances through the lens of common sense, “the

magistrate had a ‘substantial basis for . . . conclud[ing]’ that probable cause existed”

19

(Gates, supra, 462 U.S. at pp. 238-239) to believe arson that arson had been committed

against S.S.’s home using an accelerant, defendant was implicated, and evidence of the

arson would be found in defendant’s home. Consequently, the trial court properly denied

the defendant’s motion to suppress.

Citing two federal Court of Appeals cases, defendant nevertheless argues that

evidence of crimes and suspicious acts not related to the arson cannot establish probable

cause to search for evidence of arson. In one case, United States v. Weber (9th Cir. 1990)

923 F.2d 1338 (Weber), the affidavit in support of a warrant to search the defendant’s

house provided a general description of “the proclivities of pedophiles” (id. at p. 1341)

and “information about different types of perverts who commit sex crimes against

children” (id. at p. 1345), but the affidavit contained no information that placed the

defendant in the category of pedophiles, child molesters, or child pornography collectors.

(Id. at pp. 1345-1346.) The affiant did not even opine that the defendant “probably [was]

a ‘child molester,’ ‘pedophile,’ or ‘collector of [child] pornography’ based on what he

[knew] of [the defendant].” (Id. at p. 1341.)

In Weber, the United States Court of Appeals, Ninth Circuit, held that the affidavit

did not establish probable cause to search for child pornography (in addition to the

specific materials that had arrived at his house through a controlled delivery) because

there was no evidence that the defendant had other child pornography in his home or that

he was a child molester or a collector of child pornography. (Weber, supra, 923 F.2d at

pp. 1345-1346.) The court stated that “if the government presents expert opinion about

the behavior of a particular class of persons, for the opinion to have any relevance, the

affidavit must lay a foundation which shows that the person subject to the search is a

member of the class.” (Id. at p. 1345.) The court also concluded that it could not be

inferred that the defendant kept child pornography in his home from the circumstance

that two years earlier a customs inspector had intercepted advertising material

(“‘apparently’ child pornography”) that had been sent to the defendant because there was

20

no proof that the defendant had requested the material and the defendant had not claimed

the material after he was advised that United States Customs had it. (Id. at p. 1344.) In

the present case, defendant argues that “[j]ust as in Weber, the affidavit[’]s account of

suspicious events and allegations [of] prior bad conduct were insufficient to support the

magistrate[’]s finding of probable cause.”

In United States v. Underwood (9th Cir. 2013) 725 F.3d 1076, another case cited

by defendant, defendant Underwood challenged a warrant to search for evidence of drug

trafficking in his home. The United States Court of Appeals, Ninth Circuit, determined

that the affidavit “fail[ed] to provide a sufficient basis for probable cause” because “[l]ike

the affidavit in Weber, [it] include[d] only two facts, foundationless expert opinion [about

the general behavior of drug traffickers], and conclusory allegations.” (Id. at p. 1082.)

The court concluded that a detective’s observation of a baggie of marijuana of an amount

consistent with personal use at Underwood’s home “lack[ed] a nexus with ecstasy

trafficking and therefore [did] not support the conclusion that Underwood [was an]

ecstasy trafficker.” (Ibid.) The court also concluded that agents’ observation of

defendant Underwood’s delivery of two unmarked wooden crates could not support a

conclusion that he was a drug courier. (Id. at pp. 1083-1084.) In this case, defendant

contends that “Underwood teaches that even if an affidavit points to suspicious behavior

or prior potentially-criminal [sic] acts, this sort of evidence cannot support a finding of

probable cause.”

In this case, unlike Weber or Underwood, the search warrant affiant did not rely on

expert opinion concerning the general behavior of arsonists as a group and offer an

unfounded conclusion that defendant was an arsonist. Rather, the affidavit set forth

evidence of defendant’s extended leave from work due to workplace performance

problems; his termination of employment after he surreptitiously released cockroaches

into his workplace; defendant’s disgruntled attitude toward his termination and his former

supervisor, which provided a possible motive of retaliation against his workplace and his

21

former supervisor; the multiple harmful actions targeting defendant’s former workplace

and his former supervisor shortly after defendant was terminated; and defendant’s

apparent mental health problems. A totality-of-the-circumstances analysis supported the

issuance of the warrant.

Even if a close question, we conclude that the issuing magistrate had a substantial

basis for concluding that probable cause existed for issuance of the search warrant, i.e.,

there was a fair probability that evidence of the crime would be found in defendant’s

home. (See Gates, supra, 462 U.S. at pp. 238-239; see also Unites States v. Jackson

(9th Cir. 1985) 756 F.2d 703, 705 [direct evidence linking evidence to search site not

required]; cf. United States v. Aljabari (7th Cir. 2010) 626 F.3d 940, 945 [Where

affidavit provided reason to believe that the defendant had participated in the crime of

arson, “[s]imple common sense supports the inference that one likely place to find

evidence of a crime is the suspect’s home, at least absent any information indicating to

the contrary. [Citations.]”].)

3. Good Faith Exception to the Exclusionary Rule

Even if we concluded that the search warrant was not valid, the good faith

exception to the exclusionary rule would apply, as the prosecution argued below.

“Whether the exclusionary sanction is appropriately imposed in a particular case . . . is

‘an issue separate from the question whether the Fourth Amendment rights of the party

seeking to invoke the rule were violated by police conduct.’ [Citation.]” (Leon, supra,

468 U.S. at p. 906.)

Defendant argued below, as he does on appeal, that the good-faith exception was

inapplicable because the affidavit was “bare bones” because it recited S.S.’s suspicions,

beliefs, or conclusions about defendant without independent, supporting information. He

contends that S.S. “gave no facts identifying [him] as the person who placed the false

Craigslist ad” or linking him to the other post-termination incidents and that S.S.’s

suspicion that he was the perpetrator of the arson was “unverified.” He asserts that “[a]

22

reasonable, well-trained officer would have concluded that there were no specific facts

linking [him] to [the] arson or any of the incidents detailed in the affidavit.”

In Leon, the United States Supreme Court recognized a good faith exception to the

exclusionary rule where police conduct a search in “objectively reasonable reliance” on a

warrant later held invalid. (Leon, supra, 468 U.S. at p. 922; see id. at p. 924 [the

good-faith exception turns on objective reasonableness].) The court explained: “It is the

magistrate’s responsibility to determine whether the officer’s allegations establish

probable cause and, if so, to issue a warrant comporting in form with the requirements of

the Fourth Amendment. In the ordinary case, an officer cannot be expected to question

the magistrate’s probable-cause determination or his judgment that the form of the

warrant is technically sufficient.” (Id. at p. 921.)

Nevertheless, the Supreme Court identified certain situations where the good faith

exception would not apply. For example, an officer would not “manifest objective good

faith in relying on a warrant based on an affidavit ‘so lacking in indicia of probable cause

as to render official belief in its existence entirely unreasonable.’ [Citations.]” (Leon,

supra, 468 U.S. at p. 923.) The court also stated that “a warrant may be so facially

deficient—i.e., in failing to particularize the place to be searched or the things to be

seized—that the executing officers cannot reasonably presume it to be valid. [Citation.]”

(Ibid.)

Contrary to defendant’s assertion, Detective Bulatao’s affidavit was not “bare

bones.” It provided information that had been gathered through investigation of the fire

and had led the detective to believe that arson, using an accelerant, of S.S.’s residence

had occurred. It contained information obtained from S.S., who was defendant’s former

supervisor, concerning defendant’s deficient work performance, defendant’s termination

after the cockroach incident, and the circumstances and the timing of other post-

termination incidents against defendant’s former workplace and S.S. in addition to the

arson. (See Humphrey v. Appellate Division (2002) 29 Cal.4th 569, 574 [“Personal

23

knowledge of facts asserted in the affidavit is not an indispensable element of probable

cause.”], 575-576 [a crime victim is presumptively reliable].) His affidavit also included

information that the detective had obtained from the company’s human resources

department, namely that defendant had made complaints against S.S. and was displeased

by his termination. The affidavit was not so deficient that a well-trained officer could not

have reasonably believed that probable cause existed and could not have reasonably

relied on the issued warrant. (See Leon, supra, 468 U.S. at p. 923.) It reflected a serious

investigation and presented at least a close question as to probable cause, about which

reasonable minds might differ. “Under these circumstances, the officers’ reliance on the

magistrate’s determination of probable cause was objectively reasonable, and application

of the extreme sanction of exclusion is inappropriate.” (Id. at p. 926.)

B. Pretrial Diversion Under Section 1001.36

Defendant asserts that under Estrada’s presumptive inference of retroactivity, as

applied in People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara), this case must be

remanded so that the trial court can exercise its discretion under section 1001.36. This

fairly recent law permits courts to order pretrial diversion for mental health treatment for

certain defendants with mental disorders. Section 1001.36 was not in effect when

defendant committed arson of an inhabited structure in 2016, when the jury found him

guilty in 2017, or when he was sentenced and filed his notice of appeal in February 2018.

Section 1001.36 was added by statute, effective June 27, 2018. (Stats. 2018,

ch. 34, §§ 24, 37, pp. 1316-1319, 1339.) The section was amended by statute later in

2018, effective January 1, 2019. (Stats.2018, ch. 1005, § 1, pp. 6632-6634.) It now

provides in part that “the court may, after considering the positions of the defense and

prosecution, grant pretrial diversion to a defendant pursuant to this section if the

defendant meets all of the requirements specified.” (§ 1001.36, subd. (a).)

To grant pretrial diversion for mental health treatment, the court must be “satisfied

that the defendant suffers from a mental disorder as identified in the most recent edition

24

of the Diagnostic and Statistical Manual of Mental Disorders” 2 (§ 1001.36,

subd. (b)(1)(A)), that “the defendant’s mental disorder was a significant factor in the

commission of the charged offense” (§ 1001.36, subd. (b)(1)(B)), and that “the defendant

will not pose an unreasonable risk of danger to public safety, as defined in Section

1170.18, if treated in the community.” 3 (§ 1001.36, subd. (b)(1)(F).) It must be shown

that “[i]n the opinion of a qualified mental health expert, the defendant’s symptoms of the

mental disorder motivating the criminal behavior would respond to mental health

treatment.” (§ 1001.36, subd. (b)(1)(C).) The defendant must consent to diversion

(§ 1001.36, subd. (b)(1)(D)); waive the “right to a speedy trial, unless a defendant has

been found to be an appropriate candidate for diversion in lieu of commitment [as a

mentally incompetent defendant] and, as a result of his or her mental incompetence,

cannot consent to diversion or give a knowing and intelligent waiver of his or her right to

2

An exception applies to those persons suffering from “antisocial personality

disorder, borderline personality disorder, and pedophilia,” and they are not eligible for

pretrial diversion for mental health treatment. (§ 1001.36, subd. (b)(1)(A).)

3

Section 1170.18, subdivision (c), defines the phrase “unreasonable risk of danger

to public safety” to mean “an unreasonable risk that the petitioner will commit a new

violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of

subdivision (e) of [s]ection 667.” Section 667, subdivision (e)(2)(iv), states: “The

defendant suffered a prior serious or violent felony conviction . . . for any of the

following felonies: [¶] (I) A ‘sexually violent offense’ as defined in subdivision (b) of

[s]ection 6600 of the Welfare and Institutions Code. [¶] (II) Oral copulation with a child

who is under 14 years of age, and who is more than 10 years younger than he or she as

defined by [s]ection 288a, sodomy with another person who is under 14 years of age and

more than 10 years younger than he or she as defined by [s]ection 286, or sexual

penetration with another person who is under 14 years of age, and who is more than 10

years younger than he or she, as defined by [s]ection 289. [¶] (III) A lewd or lascivious

act involving a child under 14 years of age, in violation of [s]ection 288. [¶] (IV) Any

homicide offense, including any attempted homicide offense, defined in [s]ections 187 to

191.5, inclusive. [¶] (V) Solicitation to commit murder as defined in [s]ection 653f.

[¶] (VI) Assault with a machine gun on a peace officer or firefighter, as defined in

paragraph (3) of subdivision (d) of [s]ection 245. [¶] (VII) Possession of a weapon of

mass destruction, as defined in paragraph (1) of subdivision (a) of [s]ection 11418.

[¶] (VIII) Any serious or violent felony offense punishable in California by life

imprisonment or death.”

25

a speedy trial” (ibid.); and agree “to comply with treatment as a condition of diversion.”

(§ 1001.36, subd. (b)(1)(E).) Certain crimes, not including arson, are excluded from the

benefit of section 1001.36. (§ 1001.36, subd. (b)(2).)

A defendant who performs satisfactorily in diversion and completes diversion is

entitled to have the trial court “dismiss the defendant’s criminal charges that were the

subject of the criminal proceedings at the time of the initial diversion.” 4 (§ 1001.36,

subd. (e).) “A court may conclude that the defendant has performed satisfactorily if the

defendant has substantially complied with the requirements of diversion, has avoided

significant new violations of law unrelated to the defendant’s mental health condition,

and has a plan in place for long-term mental health care.” (Ibid.) Except as specified,

“[u]pon successful completion of diversion, if the court dismisses the charges, the arrest

upon which the diversion was based shall be deemed never to have occurred, and the

court shall order access to the record of the arrest restricted in accordance with

[s]ection 1001.9 . . . .” (Ibid.) Except as specified, “[t]he defendant who successfully

completes diversion may indicate in response to any question concerning his or her prior

criminal record that he or she was not arrested or diverted for the offense . . . .” (Ibid.)

After the jury’s verdict in this case, the trial court ordered defendant to submit to a

psychiatric or psychological examination for the purpose of sentencing (§ 457). Pointing

mainly to the evaluating psychologist’s report prepared in December of 2017, defendant

maintains that he qualifies for diversion under section 1001.36.

The psychological evaluator’s report indicated that over the three to six months

prior to his commission of arson, defendant “clearly developed a significant psychiatric

4

In a number of specified circumstances, the trial court must “hold a hearing to

determine whether the criminal proceedings should be reinstated, whether the treatment

should be modified, or whether the defendant should be conserved and referred to the

conservatorship investigator of the county of commitment to initiate conservatorship

proceedings.” (§ 1001.36, subd. (d); see Welf. & Inst. Code, § 5350 et seq.

[conservatorship for gravely disabled persons].)

26

illness (major depressive disorder)” and he “clearly experienced suicidal ideation on one

or more occasions prior to the offense.” Defendant reported having severe stress related

to work and a very stressful relationship with his former supervisor. He had not worked

since approximately June of 2015. Defendant had a history of depression and received

extensive psychiatric treatment from June of 2015 until January 9, 2016, the date of the

offense.

The evaluation indicated that on one or more occasions in late 2015, defendant

received emergency room treatment for panic attacks. Defendant had a psychiatric

hospitalization from January 1, 2016 to January 6, 2016. On January 8, 2016, defendant

had an unsuccessful job interview and then received medical advice that his foot pain was

likely to be chronic. The evaluator characterized those events as stressors immediately

preceding the offense. Defendant had described experiencing significant despondency

and anger on the evening of January 8, 2016 and drinking alcohol and consuming

cannabis over the course of that evening. At that point in time, defendant had

prescriptions for multiple medications.

In People v. Frahs (2018) 27 Cal.App.5th 784 (Frahs) (review granted on

December 27, 2018, S252220), the defendant argued that section 1001.36 should

retroactively apply to him. (Frahs, supra, at p. 787.) The section had been enacted while

the defendant’s appeal was pending. (Ibid.) The Court of Appeal, Fourth District,

Division 3, conditionally reversed the judgment and remanded the matter to the trial court

to determine defendant’s eligibility for diversion under former section 1001.36. (Frahs,

supra, at pp. 792, 796.)

The Frahs court cited Lara in concluding that former section 1001.36 operated

retroactively as to the case pending before it, a nonfinal judgment. (See Frahs, supra, 27

Cal.App.5th at pp. 790-792.) Lara held that “Proposition 57’s juvenile law provisions

[regarding juvenile transfer hearings] apply retroactively to cases filed in adult court

before it took effect.” (Lara, supra, 4 Cal.5th at p. 305, fn. omitted.) The Supreme Court

27

observed in Lara, “Proposition 57 prohibits prosecutors from charging juveniles with

crimes directly in adult court. Instead, they must commence the action in juvenile court.

If the prosecution wishes to try the juvenile as an adult, the juvenile court must

conduct . . . a ‘transfer hearing’ to determine whether the matter should remain in

juvenile court or be transferred to adult court. Only if the juvenile court transfers the

matter to adult court can the juvenile be tried and sentenced as an adult. (See Welf. &

Inst. Code, § 707, subd. (a).)” (Id. at p. 303, fn. omitted.)

In Lara, the Supreme Court reasoned: “The possibility of being treated as a

juvenile in juvenile court—where rehabilitation is the goal—rather than being tried and

sentenced as an adult can result in dramatically different and more lenient treatment.

Therefore, Proposition 57 reduces the possible punishment for a class of persons, namely

juveniles. For this reason, Estrada’s inference of retroactivity applies.” (Lara, supra, 4

Cal.5th at p. 303.) It found that “nothing in Proposition 57’s text or ballot materials

rebuts [Estrada’s presumptive inference of retroactivity].” (Id. at pp. 303-304.) In the

absence of contrary evidence, the court concluded that “Proposition 57 is an

‘ameliorative change[ ] to the criminal law’ that we infer the legislative body intended ‘to

extend as broadly as possible.’ [Citation.]” (Id. at p. 309.)

The appellate court in Frahs reasoned: “[S]imilar to Proposition 57, the mental

health diversion program under section 1001.36 does not lessen the punishment for a

particular crime. However, for a defendant with a diagnosed mental disorder, it is

unquestionably an ‘ameliorating benefit’ to have the opportunity for diversion—and

ultimately a possible dismissal—under section 1001.36. Further, it appears that the

Legislature intended the mental health diversion program to apply as broadly as possible:

‘The purpose of this chapter is to promote . . . [¶] (a) Increased diversion of individuals

with mental disorders to mitigate the individuals’ entry and reentry into the criminal

justice system while protecting public safety.’ (§ 1001.35, subd. (a), italics added.)”

(Frahs, supra, 27 Cal.App.5th at p. 791.) The court in Frahs inferred, relying upon the

28

Supreme Court’s reasoning in Lara, that “the Legislature ‘must have intended’ . . . the

potential ‘ameliorating benefits’ of mental health diversion to ‘apply to every case to

which it constitutionally could apply.’ (Estrada, supra, 63 Cal.2d at pp. 744-746.)”

(Ibid.)

Because Frahs’s case was “not yet final on appeal and the record affirmatively

disclose[d] that he appear[ed] to meet at least one of the threshold requirements (a

diagnosed mental disorder)” (Frahs, supra, 27 Cal.App.5th at p. 791), the appellate court

conditionally reversed Frahs’s convictions (id. at p. 792). The appellate court specifically

directed the trial court to do the following upon remand: “If the trial court determines

that Frahs qualifies for diversion under section 1001.36, then the court may grant

diversion. If Frahs successfully completes diversion, then the trial court shall dismiss the

charges. However, if the court determines that Frahs is ineligible for diversion, or Frahs

does not successfully complete diversion, then his convictions and sentence shall be

reinstated.” (Id. at p. 796.)

In Frahs, the appellate court explained that “[w]hen conducting the eligibility

hearing, the [trial] court shall, to the extent possible, treat the matter as though Frahs had

moved for pretrial diversion after the charges had been filed, but prior to their

adjudication. (§ 1001.36, subd. (c).)” (Frahs, supra, 27 Cal.App.5th at p. 792,

italics added.) The appellate court additionally instructed: “If the trial court finds that

Frahs suffers from a mental disorder, does not pose an unreasonable risk of danger to

public safety, and otherwise meets the six statutory criteria (as nearly as possible given

the postconviction procedural posture of this case), then the court may grant diversion.”

(Ibid.)

On its own motion, the California Supreme Court granted review in Frahs. The

Supreme Court “limited review to the following issues: (1) Does Penal Code section

1001.36 apply retroactively to all cases in which the judgment is not yet final? (2) Did the

Court of Appeal err by remanding for a determination of defendant’s eligibility under

29

Penal Code section 1001.36?”

(<https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_i

d=2268844&doc_no=S252220&request_token=NiIwLSIkTkg%2FW1BJSCJNUENJUE

Q0UDxTJiI%2BTzhTMCAgCg%3D%3D&bck> [as of October 21, 2019], archived at

<https://perma.cc/D5X7-SU3K>.)

On appeal in this case, defendant relies on Lara, as did Frahs, to argue that

section 1001.36 retroactively applies to his case. The People counter that unlike

Proposition 57, section 1001.36 contains “direct language” indicating that pretrial

diversion is available only prospectively. They point to subdivision (c) of

section 1001.36, which defines “pretrial diversion” to mean “the postponement of

prosecution, either temporarily or permanently, at any point in the judicial process from

the point at which the accused is charged until adjudication, to allow the defendant to

undergo mental health treatment,” subject to all of the specified requirements. They

assert that Frahs was wrongly decided. We agree and decline to follow Frahs.

“The Estrada rule rests on an inference that, in the absence of contrary indications,

a legislative body ordinarily intends for ameliorative changes to the criminal law to

extend as broadly as possible, distinguishing only as necessary between sentences that are

final and sentences that are not. (See Estrada, supra, 63 Cal.2d at p. 745.)” (People v.

Conley (2016) 63 Cal.4th 646, 657 (Conley).) “To ascertain whether a statute should be

applied retroactively, legislative intent is the ‘paramount’ consideration . . . .” (People v.

Nasalga (1996) 12 Cal.4th 784, 792 (Nasalga) (plur. opn. of Werdegar, J.).) The

determination whether ameliorative changes to the criminal laws are retroactively applied

is “ultimately governed by the intent of the legislative body.” (Conley, supra, at p. 661.)

“The rule in Estrada, of course, is not implicated where the Legislature clearly

signals its intent to make the amendment prospective, by the inclusion of either an

express saving clause or its equivalent.” (Nasalga, supra, 12 Cal.4th at p. 793,

fn. omitted.) While express statements of legislative intent “unquestionably suffice to

30

override the Estrada presumption, the ‘absence of an express saving clause . . . does not

end “[the] quest for legislative intent.” ’ [Citations.]” (Conley, supra, 63 Cal.4th at p.

656.) “[The California Supreme Court’s] cases do not ‘dictate to legislative drafters the

forms in which laws must be written’ to express an intent to modify or limit the

retroactive effect of an ameliorative change; rather, they require ‘that the Legislature

demonstrate its intention with sufficient clarity that a reviewing court can discern and

effectuate it.’ [Citations.]” (Id. at pp. 656-657.) A court may consider “the text,

structure, and purposes” (id. at p. 661) of a statute in determining legislative intent.

Unlike the amended sections in Estrada, the pretrial diversion law did not lessen

the punishment for a particular crime. (See Estrada, supra, 63 Cal.2d at pp. 743-744.)

Unlike the statute in People v. Francis (1969) 71 Cal.2d 66, the pretrial diversion law did

not make the crime of which defendant was convicted a wobbler, which created the

possibility of lesser punishment for a particular crime. (See id. at p. 75.) The pretrial

diversion law does, however, create the possibility of no punishment for a class of certain

defendants with mental disorders who may receive pretrial diversion.

As indicated, by the terms of the pretrial diversion law, “pretrial diversion” is “the

postponement of prosecution, either temporarily or permanently, at any point in the

judicial process from the point at which the accused is charged until adjudication, to

allow the defendant to undergo mental health treatment,” subject to certain conditions.

(§ 1001.36, subd. (c), italics added.) Nothing in sections 1001.35 (purposes of pretrial

diversion of individuals with mental disorders) and 1001.36 suggests that the Legislature

intended to retroactively reset to the pre-adjudication stage the cases of all defendants

who would have been eligible for pretrial diversion for mental health treatment had the

pretrial diversion law been in existence before their cases were adjudicated.

31

We recognize that the pretrial diversion law has salutary purposes. 5 But the

remedial purpose of the law is not controlling if the Legislature did not intend the law to

have full retroactive operation.

Here, the legislative history of the pretrial diversion law for mental health

treatment suggests that the law was intended to save money as well as provide benefits to

certain defendants with mental disorders. The passage of Assembly Bill No. 1810

(Reg. Sess. 2017-2018) in 2018 added the pretrial diversion law. The bill was an

“omnibus health trailer bill” concerning a multitude of statutory changes to implement

the 2018-2019 budget, including pretrial diversion for mental health treatment.

(See Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem.

Bill No. 1810 (2017-2018 Reg. Sess.) as amended June 12, 2018, pp. 1, 3; Assem. Floor

Analysis of Assem. Bill No. 1810 (2017-2018 Reg. Sess.) as amended June 12, 2018,

pp. 1, 7-10; Sen. Com. on Budget and Fiscal Review, Rep. on Assem. Bill No. 1810

(2017-2018 Reg. Sess.) as amended June 12, 2018, pp. 1-3.)

The passage of another bill later in 2018, Senate Bill No. 215 (Reg. Sess. 2017-

2018), amended section 1001.36 to place some limitations on pretrial diversion for

mental health treatment and provide for victim restitution. (See § 1001.36, subds. (b)(2),

(b)(3), (c)(4).) The legislative analyses of this bill set forth the basic purposes of such

pretrial diversion, which include (1) diverting eligible defendants into treatment at “an

early stage in the proceedings” and (2) potentially securing significant local savings from

avoiding trial and reducing incarceration. (See Sen. Rules Com., Office of Sen. Floor

Analyses, Rep. on Sen. Bill No. 215 (2017-2018 Reg. Sess.) as amended Aug. 23, 2018,

5

Section 1001.35 states that the purpose of mental health pretrial diversion is “to

promote all of the following: [¶] (a) Increased diversion of individuals with mental

disorders to mitigate the individuals’ entry and reentry into the criminal justice system

while protecting public safety. [¶] (b) Allowing local discretion and flexibility for

counties in the development and implementation of diversion for individuals with mental

disorders across a continuum of care settings. [¶] (c) Providing diversion that meets the

unique mental health treatment and support needs of individuals with mental disorders.”

32

pp. 2-3; see also Assem. Sen. Third Reading of Sen. Bill No. 215 (2017-2018 Reg. Sess.)

as amended Aug. 23, 2018, p. 3; Assem. Com. on Appropriations, Rep. on Sen. Bill No.

215 (2017-2018 Reg. Session) as amended June 14, 2018, p. 1.) Prior to the enactment of

the pretrial diversion law, trial courts could not “order mental health treatment, relevant

counselling, or adherence to a medication regime unless the person was first convicted,

and then placed on probation or sent to jail at county expense.” (Sen. Rules Com., Office

of Sen. Floor Analyses, Rep. on Sen. Bill No. 215 (2017-2018 Reg. Sess.) as amended

Aug. 23, 2018, p. 2.) According to the author, “[W]hile community based treatment for a

mentally ill defendant costs roughly $20,000 per year (and greatly reduces recidivism),

jailing that same defendant (with a greater risk of recidivism) costs the community more

than $75,000 a year.” (Ibid.) In contrast to the forced payment of the “higher costs for

taxpayers of “continuous warehousing of the mentally ill,” “early, court-assisted

interventions are far more likely to lead to longer, cheaper, more stable solutions for the

community, and for the person suffering from mental illness.” (Id. at pp. 2-3.) The

pretrial diversion law “seeks to . . . avoid [the] unnecessary and unproductive costs of

trial and incarceration.” (Id. at p. 3.)

Obviously, this court cannot unconditionally reverse a defendant’s conviction to

undo an “adjudication” where there was no trial error requiring reversal merely to allow a

trial court to consider the defendant for “pretrial diversion” because that disposition

would implicate the prohibition against double jeopardy. 6 (See People v. Torres (2019)

39 Cal.App.5th 849, 855 (Torres).) The double jeopardy clause of the Fifth Amendment

to the United States Constitution, made applicable to the states through the Fourteenth

Amendment (Benton v. Maryland (1969) 395 U.S. 784, 794; see People v. Fields (1996)

6

“As a general rule, it is well established that if the defendant secures on appeal a

reversal of his conviction based on trial errors other than insufficiency of evidence, he is

subject to retrial. [Citations.]” (People v. Hernandez (2003) 30 Cal.4th 1, 6-7, italics

added; see Price v. Georgia (1970) 398 U.S. 323, 326 [“concept of continuing jeopardy”

applies “where criminal proceedings against an accused have not run their full course”].)

33

13 Cal.4th 289, 297), states: “Nor shall any person be subject for the same offence to be

twice put in jeopardy of life or limb.” The California Constitution similarly states:

“Persons may not twice be put in jeopardy for the same offense.” (Cal. Const., art. I,

§ 15.) In a jury trial, “jeopardy attaches when the jury is empaneled and sworn.” (Crist

v. Bretz (1978) 437 U.S. 28, 38; see People v. Riggs (2008) 44 Cal.4th 248, 278-279, fn.

12.) Unconditional reversal of a defendant’s valid conviction merely to facilitate pretrial

diversion may raise a double jeopardy bar that precludes the government from reinstating

criminal proceedings where such a defendant either was ultimately found not to qualify

for diversion or did not perform satisfactorily in diversion (see § 1001.36, subd. (d)).

Such a result would “eviscerate[] the statute’s enforcement mechanism.” (Torres, supra,

39 Cal.App. 5th at p. 855.)

Even if that potential double jeopardy problems can be avoided through a

conditional reversal of a defendant’s judgment of conviction as has been done in

Proposition 57 cases involving adult convictions, we are not convinced that the reasoning

in Lara applies or that the statutory language of section 1001.36 structurally supports

defendant’s position. As indicated, Lara resolved that Proposition 57’s juvenile transfer

hearing law applies retroactively to all juveniles charged directly in adult court whose

judgment was not final at the time it was enacted because nothing in the proposition’s

text or ballot materials rebutted Estrada’s inference of retroactivity. (Lara, supra, 4

Cal.5th at pp. 303-304.) It is noteworthy that in Lara there had been no trial and no

conviction in adult court. (Id. at p. 304.) Although an information charging Lara with

multiple crimes had been filed in adult court, the trial court suspended proceedings in the

adult court and ordered defendant released from custody unless the People commenced a

juvenile court proceeding within 48 hours. (Ibid.) After the People filed a petition in

juvenile court alleging the same crimes and requested a hearing to transfer the matter

back to adult court and the hearing was held, the juvenile court denied the People’s

request. (Ibid.)

34

In Lara, however, the Supreme Court endorsed the remedy crafted by Court of

Appeal, Fourth District, Division 3 in People v. Vela (2017) 11 Cal.App.5th 68, 82,

review granted July 12, 2017, S242298 (Vela I), which had conditionally reversed a

nonfinal judgment and directed that a juvenile court hold a juvenile transfer hearing.

(See Lara, supra, 4 Cal.5th at pp. 310, 313 [“we believe remedies like those provided in

Vela [I] and [People v.] Cervantes [(2017) 9 Cal.App.5th 569] are readily understandable,

and the courts involved can implement them without undue difficulty”].) The Supreme

Court in Lara recited the appellate court’s disposition in Vela I: “ ‘If, after conducting

the juvenile transfer hearing, the court determines that it would have transferred Vela to a

court of criminal jurisdiction because he is “not a fit and proper subject to be dealt with

under the juvenile court law,” then Vela’s convictions and sentence are to be reinstated.

(§ 707.1, subd. (a).) On the other hand, if the juvenile court finds that it would not have

transferred Vela to a court of criminal jurisdiction, then it shall treat Vela’s convictions as

juvenile adjudications and impose an appropriate “disposition” within its discretion.’

[Citation.]” (Id. at p. 310.) After the Supreme Court transferred Vela I to the appellate

court for reconsideration, the appellate court reached the same disposition. (People v.

Vela (2018) 21 Cal.App.5th 1099, 1113-1115 (Vela II).)

We think it significant that the retroactive application of the juvenile transfer

hearing law to persons who had already been convicted in adult court, as sanctioned by

the Supreme Court in Lara, does not require courts to maintain a fiction that an alleged

crime had never been adjudicated. Rather, if after retroactively conducting a transfer

hearing the juvenile court finds that it would not have transferred the person to criminal

adult court, the court must treat the adult convictions as juvenile adjudications.

(See Lara, supra, 4 Cal.5th at pp. 310, 313; Vela II, supra, 21 Cal.App.5th at pp. 1113-

1115.)

Retroactive application of the pretrial diversion law for mental health treatment is

plainly distinguishable from retroactive application of Proposition 57 because the

35

possibility of pretrial diversion under section 1001.36 exists only before “adjudication”

under the very terms of the pretrial diversion law. (See § 1001.36, subd. (c).) Also, we

are unable to say, as was said in Estrada, that “the enacting body lacked any discernible

reason to limit application of the law with respect to cases pending on direct review.”

(Conley, supra, 63 Cal.4th at pp. 658-659.) We further conclude that the pretense that

there had been no “adjudication,” which is implicit in a conditional reversal of a

defendant’s valid nonfinal judgment for the purpose of allowing the trial court to consider

the defendant for pretrial diversion, is untenable and flies in the face of legislative intent.

Such a disposition is inconsistent with the express language of the statute—which permits

pretrial diversion only “at any point in the judicial process from the point at which the

accused is charged until adjudication” (§ 1001.36, subd. (c), italics added)—and with the

twin legislative goals of granting early diversion and avoiding the costs of trial and

incarceration. In our view, retroactive application of the pretrial diversion law to a

defendant like defendant Khan, who was properly convicted by a jury before the pretrial

diversion law was enacted and is now serving his sentence, would produce a result that

“the Legislature could not have intended.” (Conley, supra, at p. 657.)

We agree with the Court of Appeal, Fifth District, which concluded in People v.

Craine (2019) 35 Cal.App.5th 744 (Craine), review granted, Sept. 11, 2019, S256671,

that “the text of section 1001.36 and its legislative history contraindicate a retroactive

intent with regard to defendants, like Craine, who have already been found guilty of the

crimes for which they were charged.” (Id. at p. 749.) That appellate court reasoned that

“[t]he primary legislative goal of diverting mentally ill defendants from the criminal

justice system through preadjudicative intervention programs cannot be achieved once

the defendant has been tried, adjudged guilty, and sentenced” (id. at pp. 749-750) and that

the “[s]econdary goals of judicial economy and fiscal savings would actually be thwarted

by attempting to apply the statute to defendants who have begun serving their sentences.”

(Id. at p. 750.) The Fifth District found that retroactive application of the pretrial

36

diversion law to such persons would be “antithetical to the Legislature’s goals.” (Id. at

p. 759.) It held that “section 1001.36 does not apply retroactively to defendants whose

cases have progressed beyond trial, adjudication of guilt, and sentencing.” (Id. at p. 760.)

We respectfully disagree with Justice Grover, who dissents in this case, and

another panel of this court and other courts that have followed Frahs. (See e.g., People v.

Hughes (2019) 39 Cal.App.5th 886, 896; People v. Burns (2019) 38 Cal.App.5th 776,

787; People v. Weaver (2019) 36 Cal.App.5th 1103, 1120-1122, review granted

October 9, 2019, S257049.) In light of the text, structure, and purposes of the pretrial

diversion law (§§ 1001.35, 1001.36), we conclude that the Legislature did not intend the

law to be applied post-adjudication to defendants who have already been properly tried

and found guilty, and are serving their sentences. 7

DISPOSITION

The judgment is affirmed.

7

Our conclusion does not settle whether the pretrial diversion law was meant to

apply to defendants whose alleged offenses were committed before the law’s effective

date but whose cases are still at the pre-adjudication stage. Neither does it resolve

whether the pretrial diversion law was meant to apply to defendants whose alleged

offenses were committed before the law’s effective date, whose convictions are

overturned on appeal, and who may be subjected to a full retrial.

37

_________________________________

ELIA, J.

I CONCUR:

_______________________________

PREMO, ACTING P. J.

People v. Khan

H045524

Grover, J., Dissenting

The enactment of Penal Code section 1001.36 provided an ameliorative

benefit (potential mental health diversion) to an identifiable class (criminal

defendants with recognized mental disorders). Under the rule of In re Estrada

(1965) 63 Cal.2d 740 (Estrada), we must infer that a new ameliorative benefit

applies to all nonfinal judgments “unless the enacting body ‘clearly signals its

intent to make the amendment prospective, by the inclusion of either an express

saving clause or its equivalent.’ ” (People v. DeHoyos (2018) 4 Cal.5th 594, 600.)

I respectfully disagree with the majority’s conclusion that such an intent appears in

the text or legislative history of Penal Code section 1001.36. I would conditionally

reverse defendant’s convictions consistent with People v. Frahs (2018) 27

Cal.App.5th 784 (review granted December 27, 2018, S252220) (Frahs) and

People v. Weaver (2019) 36 Cal.App.5th 1103.

For qualifying criminal defendants, Penal Code section 1001.36 provides for

“the postponement of prosecution, either temporarily or permanently, at any point in

the judicial process from the point at which the accused is charged until adjudication,

to allow the defendant to undergo mental health treatment.” (Pen. Code, § 1001.36,

subd. (c), defining “pretrial diversion”.) The Legislature enacted Penal Code section

1001.36 along with Penal Code section 1001.35, which codified the Legislature’s

purposes in creating the mental health diversion scheme. The stated purposes include

promoting “[i]ncreased diversion of individuals with mental disorders to mitigate the

individuals’ entry and reentry into the criminal justice system while protecting public

safety.” (Pen. Code, § 1001.35, subd. (a).) Limiting the reach of Penal Code section

1001.36’s benefits to prospective application would be inconsistent with the

1

legislative purpose to increase diversion of mentally disordered individuals like

defendant.

The majority quotes with approval People v. Craine (2019)

35 Cal.App.5th 744, in which the court reasoned that Estrada does not apply to

Penal Code section 1001.36 because the “[s]econdary goals of judicial economy and

fiscal savings would actually be thwarted by attempting to apply the statute to

defendants who have begun serving their sentences.” (Craine, at p. 750.) The

“secondary goals” of judicial economy and fiscal savings derive from statements in

legislative committee reports for both the original enactment and later amendment of

Penal Code section 1001.36. (E.g., Sen. Rules Com., Office of Sen. Floor Analyses,

Rep. on Sen. Bill No. 215 (2017-2018 Reg. Sess.) as amended Aug. 23, 2018.) But

the same goals and the same legislative history materials support application of the

Estrada rule. A Senate Rules Committee report states that “while community based

treatment for a mentally ill defendant costs roughly $20,000 per year (and greatly

reduces recidivism), jailing that same defendant (with a greater risk of recidivism)

costs the community more than $75,000 a year.” (Sen. Rules Com., Office of Sen.

Floor Analyses, Rep. on Sen. Bill No. 215 (2017-2018 Reg. Sess.) as amended

Aug. 23, 2018, p. 2.) Assuming the figures’ accuracy for purposes of discussion,

diverting all qualified individuals with nonfinal judgments would save tens of

thousands of dollars per person per year. Those savings would more than offset the

costs of conducting Penal Code section 1001.36 eligibility hearings for a presumably

modest number of defendants having both a qualifying mental health diagnosis and a

nonfinal judgment.

The majority also finds an intent for prospective application in the structure of

the new law, noting that diversion hearings are designed to occur before trial. But the

Supreme Court has rejected the same structural argument in the context of The Public

Safety and Rehabilitation Act of 2016 (Proposition 57), the voter initiative which

2

eliminated the direct filing of criminal charges against juveniles in adult court in

favor of transfer hearings in juvenile court. (People v. Superior Court (Lara) (2018)

4 Cal.5th 299.) The Lara court applied Estrada’s presumption of retroactivity to

Proposition 57, even though that will return all qualifying nonfinal convictions to

juvenile courts for transfer hearings that are similarly designed to occur before trial.

If the pretrial nature of that ameliorative change did not foreclose retroactivity, I do

not see how an analogous structure could do so here. I agree with the reasoning of

Frahs and People v. Burns (2019) 38 Cal.App.5th 776, 787, that the pretrial timing

inherent in both Proposition 57 and Penal Code section 1001.36 simply reflects how

those provisions will ordinarily operate and should not be interpreted as a bar to

retroactivity.

I see no clear signal of legislative intent to limit the ameliorative change in

Penal Code section 1001.36 to prospective application. I would conditionally reverse

the judgment and direct the trial court to hold a hearing to determine whether

defendant is entitled to receive the benefit of mental health diversion.

___________________________________

GROVER, J.

H045524 - The People v. Khan

3

Trial Court: Santa Clara County Superior Court

Superior Court No. B1683806

Trial Judge: Hon. Vincent J. Chiarello

Counsel for Plaintiff and Respondent: Xavier Becerra

THE PEOPLE 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 Defendant and Appellant: Jared G. Coleman

MUHAMMAD KHAN Sixth District Appellate Program

People v. Khan

H045524