Filed 9/8/20 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D074972 Plaintiff and Respondent, v. (Super. Ct. No. SCD274255) HASHMATULLAH ZAHEER, Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Diego County, Esteban Hernandez, Judge. Reversed and remanded for further proceedings. Charles M. Sevilla, 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. 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. 1 To protect personal privacy, we refer to the victim and some witnesses by their first names or initials, intending no disrespect. (Cal. Rules of Court, rule 8.90.) 2 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 ...
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