Tuesday, July 17, 2007
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Appeals Court Affirms Disbarred Attorney’s Stalking Conviction
By KENNETH OFGANG, Staff Writer
A defendant who stalks a victim under circumstances that violate several subdivisions of the applicable statute may only be convicted of a single count of stalking, the First District Court of Appeal ruled yesterday.
Div. Five affirmed the conviction of Malik Ali Muhammad, a disbarred Oakland attorney, on one felony count of recidivist stalking and one misdemeanor count of contempt of court. The panel vacated Muhammed’s convictions on three other stalking charges and sent the case back to Marin Superior Court for resentencing.
Muhammad is a former police officer and prosecutor who was disbarred in 2001 for multiple acts of misconduct. The State Bar Court found that he had committed multiple acts of misconduct in six client matters, including incompetent representation, refusal to refund unearned fees, and engaging in unauthorized practice.
He had previously drawn a 30-day suspension after he was convicted of contempt for twice refusing to appear in court, as a protest against the police beating of Rodney King, according to State Bar records. He originally was reproved, but was suspended after failing to comply with conditions attached to the reproval.
He also was suspended six times for failing to pay bar dues.
In the case ruled on yesterday, Ivory Hart, a Citibank executive who dated Muhammad for six or seven months beginning in September 2001, accused him of making dozens of hang-up phone calls to her number, of falsely reporting to her employer on multiple occasions that she was using drugs, and of repeatedly threatening to disseminate those reports to customers after the bank informed him that it had found the allegations untrue.
Trial Testimony
Muhammad had previously been convicted of stalking Hart and making terrorist threats against her. He was placed on probation and barred from contacting Hart or her employer for 10 years, but allegedly violated that order within four months.
He admitted most of the allegations at trial, but said he was drinking when he made the calls and that he did not intend to make Hart fearful. He claimed that Hart really was a habitual user of drugs and that he was concerned about it.
Jurors found him guilty of all simple stalking, stalking in violation of a court order, stalking with a prior conviction for making terrorist threats, stalking with a prior conviction for stalking, and contempt. The various stalking offenses, all of which were found to involve a single course of conduct between December 2003 and December 2004, are proscribed by separate provisions of Penal Code Sec. 646.9.
Judge John S. Graham sentenced Muhammad to the upper five-year term for stalking with a prior stalking conviction, doubled it under the Three Strikes Law, and stayed imposition of sentence on the other stalking counts.
Upper Term
Sec. 646.9(a) provides for an upper term of three years for simple stalking, Sec. 646.9(b) provides for an upper term of four years for stalking in violation of a restraining order, Sec. 646.9(c)(1) provides for an upper term of five years for stalking when the defendant has previously been convicted of certain other felonies, and Sec. 646.9(c)(2) provides for an upper term of five years when the defendant has previously been convicted of stalking.
Justice Mark Simons, writing for the Court of Appeal, said the trial judge should have stricken, not merely stayed, the lesser convictions. The various subdivisions of Sec. 646.9, he explained, define a single offense having different possible punishments under different circumstances, rather than a single offense.
In an unpublished portion of the opinion, Simons rejected the defendant’s claim that he was improperly prevented from testifying as to his understanding of the terms of the restraining order and his alleged confusion resulting from contradictions between those terms and the instructions given him by his probation officer.
The justice noted that Muhammad acknowledged that the restraining order, by its terms, took precedence over any court order. It was therefore appropriate for the trial judge to limit the testimony in order to “keep the questions from straying to collateral matters.”
The case is People v. Muhammad, A110774.
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