People v. Zaheer

54 Cal.App.5th 326

268 Cal.Rptr.3d 548

The PEOPLE, Plaintiff and Respondent,

v.Hashmatullah ZAHEER, Defendant and Appellant.

D074972

Court of Appeal, Fourth District, Division 1, California.

Filed September 8, 2020

Charles M. Sevilla, San Diego, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.

DATO, J.

Defendant Hashmatullah Zaheer was tried twice for sexual battery by restraint. He denied any wrongdoing, and the case—like many of its kind—hinged entirely on the credibility of the victim, Martha M.¹ In the first trial, Zaheer was nearly acquitted of the two felonies with which he was charged, with the jury voting 11–1 in his favor on both counts. In the second trial, however, he was convicted of both felonies.

A key aspect of the defense attack on Martha's credibility involved the operational condition of the electronic door lock system in Zaheer's car, an older Honda Civic. In both trials, Martha testified in some detail about how Zaheer locked her inside the car by pressing a button on the driver's side door. Responding to this testimony, the defense presented compelling evidence that the electronic locking mechanism in Zaheer's car had not worked in years. In the second trial, however, defense counsel simply failed to establish the necessary predicate fact that Martha was in Zaheer's Honda on the night in question. And despite having knowledge to the contrary, the prosecutor seized on this oversight to suggest for the first time during her closing argument that Zaheer might have been driving a company car. In a case that hinged entirely on whether the jury believed Martha—and with a jury in the first trial that largely did not—we are compelled to conclude that defense counsel's error, as compounded by the prosecutor's comment, was prejudicial. Accordingly, we reverse the judgment and remand the case for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

This case is factually simple but has a complex history. Martha accused Zaheer of sexually assaulting her as they sat in his car parked outside her apartment complex. A first jury hung, leaning heavily in favor of acquittal on the felonies and split on the misdemeanor lesser offenses. On retrial, the second jury convicted Zaheer as charged. Because our analysis necessitates familiarity with both trials, we describe Martha's account and briefly relate what happened in each.

1. Martha's Account

In October 2017, Zaheer and Martha were both students in an English language course at Miramar Community College. Most students in the class were immigrants, and they were encouraged to socialize together to practice their English. Zaheer initiated a conversation with Martha and asked her if they could be friends. He also inquired about her relationship status (she was divorced) and told her he was separated from his wife. She jokingly responded, "Welcome to the singles club," and they exchanged numbers. When they arranged to meet on a Wednesday evening at a Starbucks near Martha's apartment complex, Zaheer insisted on picking her up.

They arrived at the Starbucks around 7:00 p.m., ordered beverages and sat on the outside patio. Zaheer suggested to Martha that since he didn't have a girlfriend and she didn't have a boyfriend, they could get to know each other. He also said he was lonely and looking for someone with whom he could have sex. She responded that she was not looking for that kind of relationship, and she was not the person he was looking for. Seemingly undeterred, Zaheer asked if he could sit next to her. She acquiesced. They looked at pictures together on her phone, and she showed him photos of her family and home country. Then Zaheer asked if he could give her a "friendly hug." She agreed to this, but when his hand crept down her shoulder to touch her breast, she said no. He kissed her on the neck and lips even though she was telling him to stop. She pulled away, visibly upset, and stood up. Zaheer apologized. Martha asserted it was time to go home, and they left.

Zaheer drove her back to her apartment complex and parked nearby at Martha's instruction; she didn't want him to see exactly where she lived. As she prepared to get out of the car, she told him she wanted no further contact. They could not be friends, and she did not want him to talk to her in class. She reached for the door, which she said was unlocked, but Zaheer grabbed her hand and said, "Don't do it." Then he allegedly locked her door from his side of the car; she heard a click, and when she reached for the handle again she now found her door locked. For the next several minutes, she fought Zaheer as he tried to force her into sexual activity. He became increasingly aggressive and angry when she would not comply, and she feared for her life. Leaning over her from the driver's seat, Zaheer alternated between holding Martha's hands at the wrists and forearms, and trying to push her crossed legs apart. When Martha refused to kiss him, Zaheer bit her lip and then exposed one of her breasts, putting his mouth over it.² He also unzipped his pants, took out his penis, and forced her to touch it with her hand.

During the struggle, Martha focused on how she could escape. She was able to manually unlock the passenger-side door with her thumb. Then, hoping she could distract Zaheer long enough to get out, she pretended to give in to his advances. While Zaheer was leaning over her, touching and kissing her chest area, she reached for the door handle and kicked the door open. She grabbed her purse and ran out. Zaheer stared at her, and then quickly exited from the driver's side. He intercepted her and, nearly lifting her off the ground, grabbed her buttocks and pressed her body against his. He told her, "This belongs to me, nobody else can touch it but me," releasing her only after she met his demand for a kiss on the lips.

Shaken, Martha went immediately to her friend Sylvia's apartment. Sylvia was not home, but Martha knew she often visited Lupe, another neighbor, and looked for her there. In Lupe's apartment, Martha found Sylvia, Lupe, and Lupe's renter, Lourdes. Because Martha was only friends with Sylvia, she did not want to tell the other women what had just happened. But when she and Sylvia were alone later that night, she disclosed what Zaheer had done.

Martha took pictures of her lip. It was swollen from Zaheer biting it. Not wanting to see him at school the following day, she skipped class and reached out to her professor, Charles Glenn Hoyle, for help. She told him in an e-mail that Zaheer had abused her. Hoyle asked Martha to write a statement about what happened. She did so, initially writing it in Spanish, and it took a few days for her friend to provide an English translation. In the meantime, Martha attempted to make reports at the Poway Sheriff's department and a San Diego city police station in Rancho Peñasquitos but was unsuccessful.³ On Monday, Hoyle advised Martha to report the incident to campus police. She did so that same day. Zaheer was arrested on Tuesday and charged by the San Diego County District Attorney with two counts of felony sexual battery by restraint ( Pen. Code § 243.4, subds. (a) and (d) ), for touching Martha's breast (count 1) and for forcing her to touch his penis with her hand (count 2).⁴

2. The Two Trials

Zaheer's first trial before Judge Rogers ended in a mistrial as a result of a hung jury. On retrial before Judge Hernandez, he was convicted on both counts. The overarching theme in both trials was that the case turned on Martha's credibility. As the prosecutor remarked in each of her closing arguments, the jury's decision came down to one question: "Do you believe Martha?" Defense counsel agreed, explaining, "if you don't believe Martha, the case is over."

In both trials, the jury heard from Martha, Professor Hoyle, and campus police officer Groeger. In each, the defense presented testimony to establish the electronic door locks in Zaheer's Honda were broken. The trials also differed in several respects,⁵ most consequentially in Zaheer's election to testify in the first proceeding, but not in the second. This change precipitated another difference: Zaheer's attorney failed to offer evidence in the second trial that Zaheer picked Martha up in his own Honda, resulting in ambiguity regarding which car Zaheer drove the night of the incident. Because we rest our ultimate conclusion on the effect of this omission, we explore the testimony about the car in some detail.

At both trials, significant time was devoted to evidence about the door locks in Zaheer's car. Martha's account of how the locks worked in the car was consistent: when Zaheer drove her back to her apartment, the car door on her side was unlocked until she said she didn't want to see him anymore and tried to leave. At that point, Zaheer grabbed her hand and locked her door from his side of the car. She heard the click and when she later managed to escape, she had to manually unlock her door to get out.

The defense sought to undermine Martha's credibility by demonstrating that her account of the event was impossible. Automotive technician David Vidaca tested the Honda's lock system in January 2018, shortly after the incident. He found the electronic locking function was disabled—meaning that each door could be locked manually, but the passenger side door could not be locked electronically from the driver's side as Martha described in her testimony. Zaheer's cousin, Shakila A., previously owned the car and sold it to Zaheer in 2015. She testified that the electronic locks did not work even when she owned it. The defendant's wife also confirmed the electronic locks had been broken since they bought the car.

Consistent with these defense witnesses, Zaheer testified in the first trial that the electronic lock...