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People v. Shah

Court of Appeal of California
Apr 22, 2009
No. A118019 (Cal. Ct. App. Apr. 22, 2009)

Opinion

A118019

4-22-2009

THE PEOPLE, Plaintiff and Respondent, v. ZUBAIR AHMAD SHAH, Defendant and Appellant.

Not to be Published in Official Reports


Defendant Zubair Ahmad Shah appeals from his conviction and 16-month sentence for stalking. He argues that the conviction is not supported by substantial evidence and attacks various evidentiary rulings. We find no merit to these arguments and therefore shall affirm.

Background

Because defendants principal contention questions the sufficiency of the evidence, we set forth the evidence presented at trial in detail.

The victim, A.P., testified that she and defendant began law school at Hastings College of the Law in the fall of 2000. In their second year, she attended a dinner with defendant and others who had worked on a project together. Weeks after the dinner, defendant approached A.P. and told her that he had a birthday present for her. She thought "this is a little weird, but Im just going to accept this gift because he says its small, inexpensive." She followed defendant to his locker in the basement of the school where he gave her "a set of . . . goblets of some sort from Pakistan. They were amazing." She thanked defendant and left. After that she would see defendant "at social events . . . and he would approach me and try to talk to me. And I would generally talk for a little while and then extricate myself somehow politely." She believed that defendant had a romantic interest in her because he asked her out to dinner on at least two occasions. On one of these occasions she deflected the invitation by saying, "Sure, Ill get a group of people together and well all go to dinner." Defendant replied, "No, I dont want to go to dinner with a bunch of people. I just want to go to dinner with you."

At the beginning of the following semester, in January 2002, defendant returned from Pakistan where he had spent the winter break. In late February or early March, defendant told A.P. that "he might need notes or books," since he had missed "a significant amount of school." She saw him a few days later and said, "Hey, if you need books or notes . . . remind me." He said, "`Yeah, Im going to need something from you, but Ill tell you what it is when the time is right." This struck A.P. "as a little strange. But he was a little strange, so I just let it go."

On March 26, 2002, A.P. attended class with defendant. When class ended, defendant asked A.P. if he could talk to her. According to A.P., he seemed "a little frenzied. He was very . . . insistent." He told her, "I cant talk to you here. We have to go back in the classroom. I need to speak to you alone." She returned to the empty classroom with defendant who asked her to sit down. She did so, "[a]nd then he launched into this monologue, pacing back and forth. . . . He talked about his childhood in Pakistan, and that it was difficult for him as an adolescent. He talked about how he knew that I was very interested in human rights, he knew Id want to help him." He then "asked me for my underwear." A.P. "was totally shocked." She "tried to make a joke first. [¶] . . . [¶] It was part of a bet that he had with two other students that he needed my underwear, so that he would get $500 from each of them. And so initially I said, `Well, hey, Ill go home, get a pair of my old underwear if youll give me $750 of the thousand. [¶] . . . [¶] He said, no, the terms of the bet prohibited him giving me any of the money, but he could take me out to dinner." He also told A.P., "You cant go home and get me a pair of your old underwear because I need you to take them off right now, sign them, give them to me." A.P. "was pretty freaked out." She thought, "Wow, I got to get out of here." She "told him, no, thats not an option. And then . . . said, `I have to leave. [¶] . . . [¶] [H]e insisted that I couldnt leave without giving him a way . . . for him to contact me. And so I wrote down my cell phone number on a sticky note and I shoved it at him and I said, `Dont call me, and I ran. [¶] . . . [¶] I know it doesnt make any sense. I think I just didnt know what else to do."

A.P. then met a friend to study and told him what had happened. When they finished studying around 8:30 that night, A.P. asked her friend to "walk me wherever I had to go . . . [b]ecause I was just so shaken. . . . I didnt know what a rational response was to this kind of thing. It was . . . so off-the-charts bizarre." That night after she returned home, A.P.s "phone rang a lot." All of the calls were from defendant, who left several voice-mail messages that included the terms of the bet.

The following day, a Wednesday, defendant called and left voice-mail messages stating that he wanted to meet her. He sent her an e-mail message that night that discussed the bet and tried to persuade A.P. "to comply with the terms of the bet before his 5:00 deadline with his other bet participants on Thursday." A.P. replied "immediately. . . . I told him never to contact me again, in no equivocal terms. I said, `Dont e-mail me. Dont call me. Dont approach me if you see me at school. What youve done is demeaning, your attempt to manipulate me in your e-mail is demeaning. I dont want anything to do with you ever again." She sent this e-mail on Thursday morning, March 28, 2002. That same morning she received two voice-mail messages from defendant indicating "that the five oclock deadline is approaching and `we really need to talk." A.P. did not respond. She later received an e-mail from defendant stating, "`Im so sorry, I hadnt read your e-mail yet when I left those voice-mails. Youve got it, I wont contact you again."

After this, defendant contacted two of A.P.s friends, Rhys Cheung and Alex Villamar, who were also students at Hastings. They forwarded defendants e-mails to A.P. One of these e-mails asked Villamar "to intervene on his behalf . . . `before things spiral out of control." Attached to the e-mail was a "demand letter," which informed A.P. that "[h]es retained counsel, and . . . unless I agree to meet with him and discuss his grievances, hes going to sue me for intentional infliction of emotional distress, bad faith," and other causes of action.

On April 4, A.P. received an e-mail from defendant with the subject line "Day before yesterday was April Fools Day!" The e-mail was three pages long and said "that his e-mail threatening litigation was a joke, and that we should all have a good laugh about it and that he was just trying to inform me that I had foolishly exposed myself to some potential claims."

After receiving this e-mail, A.P. "took everything I had to the dean of students." In response to the deans request, A.P. wrote a letter explaining what had happened. A.P. had no further interaction with defendant until July 2002 when he filed an administrative grievance against her for supposedly interfering with his ability to study abroad. A.P. was one of five students accepted into a program to study at Leiden University in Holland in the fall. The school had denied defendants request to participate in the program, for which defendant held A.P. responsible. On July 12, 2002, a grievance hearing was held on defendants complaint. A.P. testified and the grievance was dismissed.

A.P. left for Leiden in late August. She was aware that defendant "was trying to study in Leiden that semester . . . [b]ecause the basis of his grievance against me was that I was controlling the deans so that they wouldnt let him study there." The dean of students had informed her that defendant might be in Leiden that semester. When A.P. arrived and moved into student housing she "made sure that he wouldnt be living in the same student housing. . . . I talked to the caretaker as he was processing my paperwork. I told him about the harassment that had been happening, and he said, `Im not going to deal with that. Im just going to put this person in other student housing. " A.P. believed that defendant was trying to study in Leiden "because of me, because he had gone to tremendous lengths to withdraw from Hastings to be there. He wasnt enrolled in the program because he didnt apply when the rest of us applied. So it was doubtful that he would receive any credit." A.P. had been told of defendants efforts by the dean of students and by Villamar, to whom defendant had spoken of his plans.

A.P. explained later that defendants "only option to get [to Leiden] would be to administratively withdraw from Hastings and try to enroll independently in the University at Leiden."

Several weeks after the start of classes in Leiden, defendant began attending A.P.s classes. She also saw defendant in the public square and at the international phone and computer center. On one occasion defendant approached A.P. because "[h]e wanted me to make the administration in Leiden give him the room that he was supposed to originally have in that student housing building. And he approached me and another student at a break between classes and tried to talk to me." In an effort to obtain housing in the same dormitory as A.P., defendant additionally "tried to sublet a room from another international student who rightfully had a room in the dorm." A.P. testified that this action "made me feel terrified. It made me feel very afraid that he would stop at nothing . . . [t]o continue to have contact with me."

While she was in Leiden, A.P. received "[a] tremendous number of e-mails" from defendant. On September 19, 2002, defendant sent a "mass e-mail . . . to the class of 2003 apologizing for asking me for my underwear." A.P. did not receive this e-mail directly, but "many people received it. Many of my friends received it, and . . . a friend of mine forwarded it to me."

She had no further contact with defendant until mid-October, although during this period defendant sent "other lengthy e-mails that he circulated throughout the Hastings community that were just increasingly bizarre." Defendant did not send these e-mails to A.P., but friends forwarded them to her. A.P. "still assumed that he was romantically interested in me, although I just thought about it in terms of it . . . being a threat; . . . I was focused on the fact that I felt threatened by him."

On October 20, 2002, defendant sent an e-mail "to a number of people." It appeared to be an e-mail "to one of the deans who had been involved. And he was explaining to the dean that, during the grievance hearing, his allegation was that his student records were improperly shared with me. So now the implication that he was making was that I had given him a [sexually transmitted disease]. . . . And that the dean should share with him my medical records so that he could ascertain which STD he had."

A.P. did not initiate contact with defendant in any way after sending the March 28 e-mail asking him not to contact her again. She had been in contact with Susan Thomas, general counsel for Hastings, since just before the grievance hearing. They spoke "two or three times" before A.P. left for Leiden, and when she was there "at least once a week." A.P. testified that near the end of October Thomas "called me and e-mailed me simultaneously and said, `Leave Leiden immediately." Defendant "had threatened to kill himself and . . . had picked a very specific time. He gave her the date and the time and the location . . . . And the threat was, `If I dont get a room in the same dorm as [A.P.], this is what Im going to do. And so she called and said, `Get out of Leiden. All the students should get out of Leiden because this could be a veiled threat. And we want to make sure everyone is safe. " A.P. talked to the other students in the program and they decided to stay. They distributed a flyer with a photograph of defendant at the dormitory "so that people knew not to let him in." The other students were not afraid of defendant, but A.P. "thought that he was dangerous. I thought that he might try to hurt me. . . . [A]t the same time, I felt like I did not want him to force me out of this place that was mine." "[P]retty much for the rest of the semester I stayed in my room. . . . I still am constantly trying to navigate a very fine line between protecting myself and being paranoid, and I was doing that all the time."

A.P. continued to receive e-mails from defendant. One indicated that "he thought that I had control over where he lived in Leiden. And he was asking me to tell the Leiden administration to give him a room in the dorm where I was living." On October 21, defendant sent A.P. an e-mail with the subject line, "You ruined my date after symphony, so now help get a date with this cute French girl." This e-mail differed from previous messages in that it contained "detailed information" about A.P.s family. "He references the fact that I have an uncle who is only eight years older than I am and a sister, a younger sister who was a tomboy when she was little." A.P. did not know how defendant got this information. When A.P. received this e-mail, "I was terrified at that point. I felt like he was including that information specifically to make me aware that he remembered details about people that I care about." Defendant also wrote to A.P. "`Dont worry. I knew where my former victims parents lived, and I never hurt them. And I never hurt her." A.P. "definitely thought that it was a possibility" that defendant would physically harm her.

On October 30, 2002, A.P. received an e-mail from defendant, the first line of which read, "Hi, you all. Especially you, [A.P.]" A.P. described the message, stating that defendant had seen A.P. "walking away from class with another student. And he said that he saw that I looked afraid; that he took a longer route than usual; and that he was calling off his dogs, in a sense. That was it. He was now going to throw in the towel, not bother me anymore." A.P. nonetheless soon received another e-mail from defendant and then went to the police station with one of the administrators from the school. A police officer told them "that he would contact [defendant] and tell him to stop contacting" A.P.

On November 1, according to A.P. defendant sent her an e-mail message from a different e-mail address, stating that his Hastings e-mail was no longer accessible. A number of e-mails came to A.P. from the new address after November 1. In one, defendant "talks about how, when he was sitting with some buddies in the law café early on—my impression is that it was before we even met—that he told them, in his words, that he would `nuke Pakistan, for me. And he also says that one of the students who was involved in the bet with him had threatened to do something to me. Its not clear . . . from the e-mail what that action would have been, but he communicated that there was a threat by one of those students against me."

On December 14, defendant sent A.P. an e-mail with the subject line "Hey, I desperately need notes, Chancellor. Please tell her to help me." Defendant "said in the e-mail that it was my fault that he was unable to study for his classes in Leiden. It was my fault that he had to withdraw from Hastings, didnt have financial aid, couldnt purchase books, didnt have friends. And so it was on me to get him materials that he needed to study for his exams. And then he listed his exams, the dates and times. And then he said . . . `By the way dont take this to the Leiden police." The e-mail "basically dare[d] me to report him to the police. And I did. [¶] . . . [¶] I went to the police. Because when I had spoken with them, initially they said, `If he contacts you again, tell us. Come to us and well arrest him for stalking. [¶] . . . [¶] This was one of several situations where he baited me into doing something when he had preempted my actions. I got to the police department and he had filed a complaint against me the day before, . . . claiming that he was the victim, that I was just a racist jerk, and turning people against him. And the police told me that because it was his word against mine, that they werent going to do anything."

On December 17, A.P. received an e-mail from defendant in which "he apologizes for ruining my semester in Leiden." A.P. testified that in several e-mails sent that semester, defendant "was painting himself as the victim. . . . [T]he gist of it would be `Im Pakistani, Im the underdog, Im dark. And these people are focusing on me because they hate me for those reasons. And particularly, that I was focusing on him; that he was my target and not the other way around." A.P. took the December 17 e-mail to the Dutch police. Although A.P. found the classes in her overseas program to be "vastly easier" than those at Hastings, she failed the exam that she took two days after receiving this e-mail "[b]ecause I spent three or four hours in the police station on Tuesday, trying to convince them just to write a report and then crying through that process of making the report. And then I was so infuriated and so scared at that point, that the following day, the day between the day I made the report and the day I had to take the exam, . . . it was just useless."

A.P. left Leiden the day after the exam and traveled to Italy. She returned to the United States in early January 2003. During this period, defendant continued to send her e-mails. She received between 10 and 20 e-mails in January and again in February.

On cross-examination, defendant asked A.P. about other "stalking activity." A.P. replied that defendant had sent her "an e-mail about how your parents were going to come visit me in what you called my beachfront residence. And you sent me an e-mail in which you let me know that you knew where my mother lived in Fresno, and that your parents were going to go visit her. . . . And you sent a package to my dads office which was then evaluated so that the bomb squad could come x-ray it." Sometime in 2004, Hastings informed A.P. that defendant "was involved in a mailbox bombing in Los Angeles." A.P. "was told that [defendant] had been fired from [his] job for harassing a female employee; that [he] then sued the company for firing [him]; and that the bomb was in retaliation against the attorney who represented the company against you in that lawsuit. It was his mailbox."

Defendant represented himself at trial.

A.P. lived in an apartment near Ocean Beach in San Francisco.

Shauna Marshall testified that she was the Associate Academic Dean of Students at Hastings in 2002.She met with defendant around April 2, 2002, and with A.P. around April 4, 2002, regarding the incident involving the bet. After speaking with both students, Marshalls "impression was that Mr. Shah had engaged in a prank, egged on by other law school students, that could constitute a violation of our sexual harassment code." They reached a resolution that required defendant to "stay away from [A.P.], and that he would not have any further contact with her." Marshall agreed not to "pursue a formal investigation and seek any other student discipline." A.P. agreed to this resolution.

Marshall was in charge of reviewing applications for the Leiden program. The deadline to apply was early in the spring semester. She did not receive an application from defendant. After the meeting with A.P. and defendant in April, defendant approached Marshall because he "wanted to pursue another option for going to Leiden; and that is, under the American Bar Association rules which regulate law schools, theres something known as an independent study-abroad program. And students are allowed to go to other countries to study law under the independent study-abroad program. However, they cant use that program if you have a formal exchange program with a particular law school. So since we have a formal exchange program with Leiden, I explained to Mr. Shah that he could not pursue the independent study route to go to Leiden." Defendant "was focused on getting into the Leiden program. And I was trying to investigate other programs for him in Europe or convince him to think about applying for the following . . . semester in Leiden . . . ." Defendant "was not receptive to those discussions. He wanted to go to Leiden in the fall of 2002." Defendant "never took `no for an answer" but "continued to try and get into that program."

Susan Thomas was general counsel for Hastings in 2001 and 2002. She testified that in June 2002 she met defendant as a result of the grievance he filed against A.P. and the administration. In the grievance proceeding defendant sought to have A.P. "punished in some way. He wanted some kind of a warning letter against her. Actually, I think at one point he recommended physical punishment. And he wanted to be sent to Leiden on the Hastings program." After the grievance hearing, defendants interactions with Thomas "became less and less cordial when he was asking for the record to prepare for his appeal." In early September defendant "was e-mailing me almost daily just prior to the time when he left for Leiden. And then he was—once he got there he began e-mailing me and other members of the college virtually on a daily basis. Sometimes many times a day." Thomas estimated that in September 2002 she received 100 e-mails from defendant. "It would be more than that if I counted the number of e-mails that I received from other members of the faculty and staff who forwarded e-mails to me. . . . [¶] . . . Quite early on it became problematic for two reasons. One was that there were people who were afraid of him and who expressed that fear as a consequence of the e-mails that they received from him. But it was also, he was continuously demanding responses to questions that people do things for him. He wanted people to contact [A.P.] and make representations on his behalf . . . ."

In the third week of October, Thomas and the college "established a formal protocol which I communicated to Mr. Shah, saying, `Dont contact anyone any more at Hastings except me. Make me your communication person. I will review your e-mails once a week, consult with the people who need to be consulted and give you a response to all your questions. But youre putting us under a barrage, a siege, of e-mails and they are upsetting a lot of people." According to Thomas, the e-mails nearly all concerned defendants desire to be housed in the same dormitory as A.P. in Leiden.

On October 22, 2002, Thomas received a voice-mail message from defendant that was forwarded to her from the chancellors office. "[I]t was of concern to me because it was in that voice-mail [that] Mr. Shah referenced the Columbine circumstance and appeared to be saying that nobody was listening to him and `isnt it a shame that nobody listened to the warnings at Columbine. That had just been preceded by a barrage of increasingly hysterical and threatening e-mails from him. [¶] . . . [¶] . . . He said at one point, `If Im not in my room by such and such a time I will commit suicide. And . . . there was also an e-mail from him at one point where he said, `Im going to commit suicide, but dont worry I wont hurt anyone else, or there was some reference to the effect that would have on other people." Thomas contacted all of the students in Leiden and "told them that we wanted them to leave Leiden for a few days; that we werent sure how safe they were."

No explanation of the "Columbine" reference was made to the jury, nor on appeal has any party asked us to take judicial notice of the events that word evokes, perhaps because the word has become synonymous with school rampages. "The Columbine High School massacre occurred on Tuesday, April 20, 1999, at Columbine High School in Columbine in unincorporated Jefferson County, Colorado, United States, near Denver and Littleton. Two students, Eric Harris and Dylan Klebold, embarked on a massacre, killing 12 students and a teacher, as well as wounding 23 others, before committing suicide. It is the fourth-deadliest school shooting in United States history . . . ." (<http://en.wikipedia.org/wiki/Columbine_High_School_massacre> [as of April 22, 2009].)

The prosecution also presented evidence of defendants earlier conduct directed toward another woman. K.R. testified that she was an employee at General Motors Acceptance Corporation (GMAC) from September 1990 until October 1999. In 1996 she worked with defendant and "came into contact with him just in the course of everyday business." In 1998 he became her immediate supervisor. Defendant was fired on October 15, 1998. About a week before defendant was terminated, K.R. received a phone call from a friend of defendant who "explained that [defendant] was in love with me." After defendant left GMAC, the company obtained a restraining order that prohibited him from contacting K.R. However, on November 9, 1998, defendant called K.R. at work. "He wanted to apologize and explain things to me, and I didnt want to hear the explanation." Defendant called K.R. again on November 12 and asked to "explain things to me again." Approximately a year later, on October 4, 1999, K.R.s birthday, defendant sent her a letter, flowers, and a copy of defendants settlement with GMAC. The letter explained "that a settlement has been reached between he and GMAC, and that he wants to apologize for yelling in the office. And is asking me to allow him to contact me by e-mail." The letter also said, "Hi, happy birthday," though K.R. did not recall discussing the date of her birthday with defendant.

On October 8, 1999, defendant called K.R. "He wanted to again have a chance to talk to me and explain things. He said if he couldnt explain these things, he would die." K.R. "was extremely upset by" the phone call. After hanging up, she "went into the bathroom and cried." K.R. had worked at GMAC for nine years, but resigned on October 14, 1999, because of defendants contacts with her. Defendant contacted her on October 25, after she had submitted her resignation but while she was still employed there. "Again, he wanted to explain things to me. And I said I didnt want to hear the explanations. And he said he wanted to ask me out, and I said no."

K.R. never told defendant her home phone number, address or any other personal information. GMAC sued defendant contending that he had breached a settlement agreement he had entered with the company and K.R. testified as a witness in those proceedings. Defendant then filed an action against K.R. based on "the stress that the restraining order caused him, and the fact that he did not receive[] or had to pay back his settlement with GMAC."

On October 14, 2004, defendant was charged by information with one count of stalking. The information alleged that "defendant, between March 26, 2002, and February 12, 2003, . . . did willfully, maliciously and repeatedly follow and harass [A.P.] and make a credible threat against [her] and/or [her] family with the intent to place [her] in reasonable fear of [her] safety and/or the safety of [her] family."

DISCUSSION

Substantial evidence

Defendant first argues that there was insufficient evidence to support his conviction for stalking. "[O]ur role on appeal is a limited one. `The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder." (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "The question, of course, is not whether there is evidence from which the jury could have reached some other conclusion, but whether, viewing the evidence in the light most favorable to respondent, and presuming in support of the judgment the existence of every fact the trier reasonably could deduce from the evidence, there is substantial evidence of appellants guilt—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt." (People v. Falck (1997) 52 Cal.App.4th 287, 297.)

Penal Code section 646.9, subdivision (a) provides that a person "who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking . . . ." Subdivision (e) of that section provides that "`harasses means engages in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose," and subdivision (f) provides that "[f]or the purposes of this section, `course of conduct means two or more acts occurring over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of `course of conduct." Finally, as relevant here, subdivision (g) provides that a credible threat "means a verbal or written threat . . . or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family . . . . It is not necessary to prove that the defendant had the intent to actually carry out the threat."

In 2002, subdivision (e) also included the following language: "This course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person." In People v. Ewing (1999) 76 Cal.App.4th 199, the court held that there was insufficient evidence that the victim suffered substantial emotional distress where she suffered sleepless nights and had joined a support group for battered women. In response to that decision, in 2002, The Legislature amended section 646.9, subdivision (e), effective January 1, 2003, to "eliminate the requirement that the conduct be such as would cause a reasonable person substantial emotional distress to be considered harassment, and [to] eliminate the requirement that the conduct in fact cause substantial emotional distress to be deemed harassment under these provisions." (Stats. 2002, ch. 832,§ 1; see Sen. Com. on Public Safety, Analysis of Sen. Bill No. 1320 (2001-2002 Reg. Sess.) pp. B-C, E-F; Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1320 (2001-2002 Reg. Sess.) as amended May 8, 2002, pp. 1-4.) The words "willfully and maliciously" were also added to subdivision (a), and the phrase in subdivision (f) "two or more acts occurring," replaced the phrase "a pattern of conduct comprised of a series of acts." (Stats. 2002, ch. 832, § 1.)

The jury was instructed in accordance with the pre-amendment version of the statute that "`Harassing means engaging in a knowing and willful course of conduct directed at a specific person that seriously annoys, alarms, torments or terrorizes that person and that serves no legitimate purpose. This course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress and must actually cause substantial emotional distress to the person." The jury was also instructed that "A credible threat is one that causes the target of the threat to reasonably fear for his or her safety, or for the safety of his or her immediate family, and one that the maker of the threat appears to be able to carry out. A credible threat may be made orally, in writing or electronically, or may be implied by a pattern of conduct or a combination of statements and conduct."

Defendant focuses on the complaints that he made to the administration of Hastings, arguing that those cannot constitute harassment because they are protected constitutional activity. If the complaints were made for the purpose of harassing A.P., they are not protected activity. "`Sham suits enjoy no constitutional immunity." (Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, 55.)

Defendant also discounts the information communicated to A.P. that he was involved in the mailbox bombing in Los Angeles and that he had harassed K.R. because the information was conveyed to A.P. outside of the charging period. However, these incidents were relevant to prove that defendants intent in his interactions with A.P. was not innocent, regardless of when A.P. learned of those events.

More importantly, without regard to any of the acts that defendant questions, the evidence is overwhelming that defendant stalked A.P. within the meaning of the statute. The March 26, 2002 "underwear" incident, followed by defendants repeated phone calls and e-mails alone might well be sufficient to satisfy the elements of the statute. A.P. testified that on March 26, she was "freaked out," and thought, "I got to get out of here." She had a male friend walk with her that night because she was "so shaken" by defendants behavior. During the relevant time period, defendant also sent A.P. the e-mail with details about her family that she had not shared with him, which "terrified" her, and an e-mail indicating that he knew where A.P.s mother lived and that his parents intended to "visit" her. Defendant threatened to kill himself if he was not housed in the same dormitory as A.P. in Leiden. And, while A.P. may not have learned the details of the K.R. incident until after the charging period, defendant himself referred to his earlier behavior in an e-mail to A.P. sent while she was in Leiden. That e-mail urged her not to worry because he "knew where my former victims parents lived, and I never hurt them. And I never hurt her." Defendant ignores these crucial acts in arguing that "[t]here was no evidence produced to demonstrate that appellants direct actions caused [A.P.] to suffer substantial emotional distress."

Defendant also points out that A.P. "admitted [that] appellant never directly threatened her." However, under the courts instructions, which accurately reflect the statute, defendants unrelenting e-mails and phone calls, including his statements that he knew where she and her parents lived and his reference to his "former victim," provided substantial evidence that defendant made credible threats within the meaning of section 646.9. The jury was fully justified in concluding that defendant implied threats " by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, [that were] made with the intent to place the person that is the target of the threat in reasonable fear for . . . her safety or the safety of . . . her family."

If one draws the reasonable inference that defendant intended his reference to the tragic events at Columbine to be communicated to A.P., those remarks too may be regarded as implicit threats within the meaning of the statute.

Ex post facto

Defendant next contends that his conviction violated the constitutional prohibition against ex post facto laws. He relies on the amendment to section 646.9 that redefined "course of conduct" as "two or more acts occurring over a period of time," rather than "a series of acts occurring over a period of time." The court instructed the jury that "A course of conduct means two or more acts occurring over a period of time, however, short, demonstrating a continuous purpose." This, he argues, allowed him to be convicted of stalking on less evidence than would have been required under the statute at the time the charged acts occurred.

"`The imposition of punishment which, after commission of a crime, has been increased or made more burdensome is barred by the ex post facto clause of the Constitutions of both the United States (art. I, § 10, cl. 1) and [the] State of California (art. I, § 9). . . . [Citation.] `There is no significant difference between the federal and state constitutional provisions . . . . [Citation.] `Through this prohibition, the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed. . . . [Citation.] `The critical question is whether the law changes the legal consequences of acts completed before its effective date. [Citation.] . . .[¶] . . . A continuous course of conduct offense cannot logically be `completed until the last requisite act is performed. Where an offense is of a continuing nature, and the conduct continues after the enactment of a statute, that statute may be applied without violating the ex post facto prohibition." (People v. Palacios (1997) 56 Cal.App.4th 252, 256-257.)

A.P. did not testify to the content of the "10 to 20 e-mails" she received from defendant in January and February of 2003, after the law had been changed. However, viewed in the context of the course of conduct that preceded those e-mail messages, which included repeated direct and indirect threats to A.P. and demands that defendant not contact A.P., those e-mails can only be regarded as part of defendants ongoing campaign to harass and intimidate A.P., regardless of their content. The sending of those e-mails in January and February 2003, after the statute had been amended, therefore sufficiently supports defendants conviction without any question of retroactive application of the statute. Moreover, as the Attorney General observes, two acts may constitute a series. One dictionary defines a series as "an arrangement of one thing after another." (Funk & Wagnalls Standard Dictionary (2d ed. 1980) at p. 729.) Therefore, even under the improbable assumption, given the overwhelming number of incidents to which A.P. testified, that the jury found that defendant committed only two acts that comprised the stalking, his guilt was established under both the amended and prior formulation of the offense.

K.R.s testimony

Defendant next argues that the trial court erred in admitting the testimony of K.R. concerning prior uncharged acts. The prosecutor introduced evidence of the K.R. incident to prove defendants intent.

Evidence Code section 1101 provides, "(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. [¶] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness."

"Subdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence of a persons character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the persons character or disposition." (People v. Ewoldt (1994) 7 Cal.4th 380, 393.)

A high degree of similarity between the charged and uncharged crimes is necessary if the evidence of the uncharged acts is being admitted to establish identity, but "[a] lesser degree of similarity is required to establish the existence of a common plan or scheme and still less similarity is required to establish intent. [Citations.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to the charged offense to support the inference that the defendant probably acted with the same intent in each instance. [Citations.] The decision whether to admit other crimes evidence rests within the discretion of the trial court." (People v. Lindberg (2008) 45 Cal.4th 1, 23.) By pleading not guilty, defendant put all of the elements of the crime at issue. (People v. Roldan (2005) 35 Cal.4th 646, 705-706, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn.22.)

The prosecutor argued in closing that defendants "actions must be done with the intent to place her in . . . fear . . . . In assessing that, you are allowed to consider the testimony of [K.R.] . . . [K.R.] was a subordinate of Mr. Shahs. She had been at GMAC for nine years. . . . And you heard [K.R.] testify that, regardless of the fact that she was scared of Mr. Shah, he continued to call even after he had signed the settlement agreement. To be specific, he sent a copy of the settlement agreement to her with flowers on her birthday. And then asked her out on a date, which she refused. He continued to contact her. And after that, she felt she had no choice how to get away from Zubair Shah but to quit. . . . Its the incident with K.R. that lets you know what Mr. Shahs intent was, at least partially. Its an insight into Mr. Shahs intent. . . . He knew what he was doing. This was no mistake. He had been told to stay away from people before [A.P.], and that wasnt going to stop him. He had a settlement agreement with a company subject to being sued, and tha[t] didnt stop him. Was it any wonder that Dean Marshall and Dean Martinez and Dean Bhagwat, or anyone else at Hastings, could not stop him from following [A.P.]?"

The jury was instructed: "The People presented evidence of other alleged stalking conduct by the defendant that was not charged in this case; specifically, defendants contact with [K.R.] on October 4th, 8th and 25th, 1999. This contact was made after the defendant enter[ed] into a written settlement agreement dated September 17, 1999, whereby Mr. Shah agreed not to visit the site of his former employer GMAC nor contact any of the employees at their work site. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant committed the above stalking conduct in violation of the settlement agreement . . . . If you decide that the defendant committed the uncharged acts, you may but are not required to consider that evidence for the limited purpose of deciding whether or not, (a) the defendant acted with a specific intent to place [A.P.] in reasonable fear for her safety or for the safety of her immediate family; or (b) the defendant had a motive to commit the offense alleged in this case; or (c) the defendants alleged actions were or were not the result of a mistake or accident; [or] (d) the defendant had a plan or scheme to commit the offense alleged in this case."

Defendant argues that the evidence established that his intent regarding K.R. "was not to place her in reasonable fear for her safety. Rather, and quite obviously, the contacts by appellant were designed to advance a romantic interest appellant had in [K.R.]" Whether or not romantically motivated, defendants conduct towards K.R. bore numerous similarities to his behavior with A.P., including repeated attempts to contact K.R. over her objections and despite an express order not to do so, thinly-veiled threats to kill himself if he could not have contact with her, and revelations that he knew personal information about her that she had not disclosed to him. This behavior was sufficiently threatening to warrant obtaining a restraining order against him. Defendants insistence that the only similarity is that both victims were "twenty-something white women" is myopic. The jury could reasonably infer that defendants behavior was intended to instill fear in K.R., supporting the inference that his conduct towards A.P. was similarly intentioned.

The admissibility of K.R.s testimony is also supported by the temporal separation of the two series of events. "The probative value of evidence of uncharged misconduct also is affected by the extent to which its source is independent of the evidence of the charged offense. For example, if a witness to the uncharged offense provided a detailed report of that incident without being aware of the circumstances of the charged offense, the risk that the witnesss account may have been influenced by knowledge of the charged offense would be eliminated and the probative value of the evidence would be enhanced." (People v. Ewoldt, supra, 7 Cal.4th at p. 404.) A.P. and K.R. did not know each other and encountered defendant entirely independently of each other. The incidents were separated by two to three years and there is no reason to believe that K.R. knew what had transpired with A.P. or vice versa. In short, the similarities are sufficient and the danger of undue prejudice small enough that the trial court did not abuse its discretion in allowing K.R. to testify.

"Columbine" voice-mail message

Defendant next argues that the trial court erred in allowing the jury to hear, over his objection, his voice-mail message that it was "a shame that nobody listened to the warnings at Columbine." Defendant argues that this message was not relevant because it did not demonstrate that he "made a credible threat" to A.P. that "placed her in reasonable fear for her safety."

Under Evidence Code section 350, "No evidence is admissible except relevant evidence." "Only relevant evidence is admissible (Evid. Code, §§ 210, 350), `and all relevant evidence is admissible unless excluded under the federal or state Constitutions or by statute. (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).) [Citation.] `The test of relevance is whether the evidence tends "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive." (People v. Harris (2005) 37 Cal.4th 310, 337.) "The trial court has broad discretion in determining the relevance of evidence. [Citation.] We review for abuse of discretion a trial courts rulings on the admissibility of evidence." (Ibid.)

It is true that A.P. did not learn the contents of this message, which prompted Thomas to call A.P. in Leiden and advise her to leave, until well after the charging period. While the content of the call therefore is not relevant to A.P.s state of mind, it is relevant to prove that defendant did not act innocently in following A.P. to Leiden and that he acted with the specific intent to stalk A.P. "Intent . . . can be inferred from circumstantial evidence. ([Evid. Code,] § 21, subd. (a).) Indeed, it is recognized that `[t]he element of intent is rarely susceptible of direct proof and must usually be inferred from all the facts and circumstances disclosed by the evidence." (People v. Falck, supra, 52 Cal.App.4th at p. 299.) "Section 646.9 does not require that the defendant actually intend to carry out the threat. It is enough that the threat causes the victim reasonably to fear for her safety or the safety of her family, and that the accused makes the threat with the intent to cause the victim to feel that fear. [Citation.] In addition, in determining whether a threat occurred, the entire factual context, including the surrounding events and the reaction of the listeners, must be considered." (Id. at pp. 297-298.) Since defendant was aware that the contents of earlier communications he had made to others concerning A.P. had been communicated to her, it was reasonable to infer that he made the reference to the horrible events that occurred at Columbine High School in the expectation that it too would be relayed to A.P. and further frighten her.

Conspiracy

Defendant argues that the trial court erred in allowing the prosecutor to ask him whether he believed that there is a "secret, clandestine Jewish society" at Hastings. He argues that his views in this regard were irrelevant, and that the questions evoked "racial prejudice and stereotypical conduct or beliefs" which violated his right to due process and equal protection.

The relevant cross-examination began with the prosecutor asking defendant why he believed A.P. had a "mutually reciprocal interest in you." Defendant denied that he had said A.P. was interested in him and referred to an e-mail he had written. "This e-mail, Im sending on November 1st, 2002. And I am outlining as to how my arrival in Leiden and then insistence about having a room in Hooigracht was misrepresented . . . . [I]t starts off `I wish anybody at Hastings or Leiden had told me this thing earlier. Because I inadvertently ended up proving this conspiracy theory, Im referring to the conspiracy theory by Hastings or Leiden that I came because of [A.P.]. And then it goes on to say, `Nevertheless, it is not true, as I insisted on coming to Leiden because Marshall, . . . `Martinez and ABA lied and brushed me the wrong way. And then it goes on to say, `Likewise, I insisted on room the first day after my arrival. And then it has parentheses to it, `I suspected foul play. And then it goes on to say, `As it was central to my experience. But it was days later that I had found out that Hastings students are in Hooigracht. So basically its saying, I wasnt even aware that [A.P.] and other students are living in Hooigracht. Then it goes on to say: `Anyway, [A.P.], you could have avoided the whole thing by moving out from Hooigracht. And only if you knew the extent I have gone to protest the unfair treatment, you would have abandoned this self-centered conspiracy theory that, you know, I came because of her when Im trying to move in because of her."

The prosecutor then asked, "Mr. Shah, you mentioned `conspiracy. Did you believe that Hastings College of the Law was in a conspiracy against you?" Defendant replied, "Im glad that you asked me this question. And your Honor, may I? [¶] . . . [¶]. . . Theres one meaning of `conspiracy as we all layman use, and theres another meaning of `conspiracy as lawyers, or brilliant lawyers like you, do use. And so in layman language, when people use `conspiracy or the word `conspiracy, like this guy is out there losing his mind, so, no. I never thought that Hastings has some big conspiracy against me. What I believe is, Hastings dropped the ball, mismanaged the whole situation. And because of this mismanagement, they incurred or exposed themselves to liability. And knowing that Im extremely litigious, they ended up making a private prosecution by putting me in jail for 18 months, getting all my lawsuits dismissed. Thats what I believe. But I dont believe that Hastings has some sort of huge conspiracy against me. But in legal terms . . . this is the easiest charge or burden of proof . . . ."

The prosecutor then asked again, "Lets use the common word. Did you believe Hastings was conspiring against you?" Defendant answered, "No. In layman term? No. Conspiracy? No. And what I believed was, Hastings did not manage the situation well. And because of institutional liability and my ethnic origin and post-9/11 paranoia, Hastings did things; that because of those things I suffered a lot. And in order to avoid liability, Hastings attempted to deport me; Hastings attempted to link me to a firecracker incident on the day when I was taking my final. . . ."

The prosecutor then asked, "Mr. Shah, is it not true that you have filed documents stating that theres a Jewish group, clandestine society, at Hastings that is in a secret conspiracy against you?" Defendant answered, "Your Honor, if he wants to go into that part then, 352 issues; but Im more than happy to talk about it if he wants to inquire. But it could take hours." The prosecutor repeated the question and requested a "yes or no" answer. Defendant answered, "No, I believe I never believed along such lines." The trial court stated, "Well, just right now youve denied that. So thats the end of it unless Mr. Sullivan is going to do something else." Defendant replied, "Based on the ruling of the court, I wasnt allowed to question any of the witnesses." The trial court replied, "I dont want to argue now in front of the jury. There is a statement made about whether you thought there was a conspiracy; you answered it. Now he asked you about this, you denied. I dont know whats coming next." Defendant replied, "Sure," and the prosecutor asked, "Mr. Shah, isnt it true you alleged that Shauna Marshall, . . . was a part of that secret clandestine Jewish society and it was part of that society that was out to get you?" Defendant objected, "Your Honor, hes talking about the legal pleading beyond the charging period, which Your Honor explicitly excluded. And I want to make this court aware that hes going beyond the charging period. And I was stopped all along to question all of the witnesses beyond the charging period." The prosecutor reframed the question to ask whether defendant believed there was a conspiracy during the charging period, and defendant said that he did not. He then volunteered a narrative answer about a member of the Israeli Supreme Court who visited Hastings while defendant was a student. At the end of this narrative the prosecutor asked again, "But you did believe that Dean Marshall was a part—" The court interrupted and asked, "Counsel, is this really relevant?" The prosecutor then moved on to ask if Dean Marshall had assisted defendant in various ways while he was a student, and defendant said that she had.

The objection defendant interposed at trial was made under Evidence Code section 352, which provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." "We review for abuse of discretion rulings by the trial court on the admissibility of evidence, including rulings that turn on the relative probativeness and prejudice of the evidence in question. [Citation.] ` "Evidence is substantially more prejudicial than probative (see Evid. Code, § 352) if, broadly stated, it poses an intolerable `risk to the fairness of the proceedings or the reliability of the outcome [citations]." . . . "The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendants trial fundamentally unfair."" (People v. Hamilton (2009) 45 Cal.4th 863, 930.) Although the prosecutor did not go on to produce a document in which defendant referred to a "clandestine Jewish society" at Hastings, defendant does not suggest that the questions were asked in bad faith. (See, e.g., People v. Swayze (1963) 220 Cal.App.2d 476, 497 ["it is improper to ask questions which clearly suggest the existence of facts which would be harmful to the defendant, in the absence of a good faith belief by the prosecutor that the questions would be answered in the affirmative, or with a belief on his part that the facts could be proved, and a purpose to prove them, if their existence should be denied"].) Moreover, defendant denied that he held such a belief and the trial court accordingly limited the prosecutors questions. Very few of the questions were subject to timely specific objections, and defendant made no motion to strike any of the questions or answers. Finally, even if the questions were improper, given the overwhelming evidence supporting the conviction, it is not "reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.) The questions regarding defendants alleged belief in a clandestine Jewish society represented a brief exchange in the midst of a lengthy trial in which ample proper evidence of defendants guilt was introduced.

On appeal the only legal authority defendant cites in support of this argument is a footnote in McCleskey v. Kemp (1987) 481 U.S. 279, 309, fn. 30, which states that "The Constitution prohibits racially biased prosecutorial arguments." In fairness, it should also be noted that the Attorney General cites no authority in arguing that the questions were permissible.

Limiting instruction

Finally, defendant argues that a limiting instruction regarding K.R.s testimony lowered the prosecutions burden of proof and violated his right to due process. The trial court instructed the jury that it could consider K.R.s testimony "only if the people have proved by a preponderance of the evidence that the defendant committed the above stalking conduct in violation of the settlement agreement on October 4th, 8th, and 25th, 1999, in violation of the settlement agreement. . . . If you decide that the defendant committed the uncharged acts, you may but are not required to consider that evidence for the limited purpose of deciding whether or not, (a) the defendant acted with the specific intent to place [A.P.] in reasonable fear for her safety or for the safety of her immediate family; or (b) the defendant had a motive to commit the offense alleged in this case; or (c) the defendants alleged actions were or were not the result of mistake or accident; [or] (d) the defendant had a plan or scheme to commit the offense alleged in this case."

Defendant contends that permitting the jury to condition its consideration of the facts regarding K.R. upon finding them to be true by the preponderance of the evidence violated the constitutional requirement that every fact necessary to constitute a crime be proved beyond a reasonable doubt. However, not only did defendant fail to object to this instruction on this ground, but the objection lacks merit since the facts concerning K.R. are not elements of the crime for which defendant was convicted. Subsidiary facts presented as evidence of the commission of a crime need be established only by a preponderance of the evidence in order to be considered. (See, e.g., People v. Medina (1995) 11 Cal.4th 694, 763.) As the courts instructions in this case explained, finding that the defendant committed the uncharged acts "is only one factor to consider along with all the other evidence. It is not sufficient, by itself, to prove that the defendant is guilty of stalking. The People must still prove each element of the charge beyond a reasonable doubt."

Defendant also contends the instruction allowed the jury to consider that his behavior towards K.R. constituted stalking when, as he argues, "no properly instructed jury could conclude that appellants interaction with [K.R.] amounted to stalking or stalking conduct." Having rejected defendants argument that his behavior towards K.R. could not be interpreted as stalking, this argument must likewise fail.

Cumulative error

Defendant argues that even if the rulings he challenges did not prejudice him individually, cumulatively they denied him a fair trial. Because we have found that the trial court did not err in the ways alleged by defendant, no cumulative error occurred either.

DISPOSITION

The judgment is affirmed.

We concur:

McGuiness, P. J.

Siggins, J.


Summaries of

People v. Shah

Court of Appeal of California
Apr 22, 2009
No. A118019 (Cal. Ct. App. Apr. 22, 2009)
Case details for

People v. Shah

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ZUBAIR AHMAD SHAH, Defendant and…

Court:Court of Appeal of California

Date published: Apr 22, 2009

Citations

No. A118019 (Cal. Ct. App. Apr. 22, 2009)