Tuesday, October 13, 2009
C.A. Rejects Accused Stalker’s Exoneration Request
By STEVEN M. ELLIS, Staff Writer
The dismissal of terrorist threat and stalking charges against an El Cajon pharmacist due to the poor quality of a cassette-recording of a message left on her former co-worker’s cell phone did not warrant a finding of factual innocence, the Fourth District Court of Appeal ruled Friday.
Div. One rejected Ida Bleich’s request for the finding, concluding that other evidence did not completely exonerate her, but instead provided a strong basis from which a reasonable person would believe she committed the offenses.
Pharmaceutical technician Basil Abdulahad accused Bleich—his former supervisor at a CVS Pharmacy with whom he had a falling out before transferring to another branch—of leaving a profanity-laden message on his voicemail at 3:18 a.m. one night in June 2008.
The caller threatened to slit Abdulahad’s throat and put him in a body bag, and also indicated knowledge of where Abdulahad lived and his recent trip to a Denny’s restaurant.
Abdulahad suspected Bleich because she knew his cell phone number and residence from driving him to work, and claimed that Bleich, during the six months while she was his supervisor, began to harass him at work when he stopped accepting rides.
An officer with the El Cajon Police Department made a copy of the message on a cassette-recording device, and police confronted Bleich at the pharmacy where she worked when another CVS employee—listening to the message on the cell phone—identified her as the caller and corroborated Abdulahad’s accounts of harassment.
According to police, Bleich specifically denied having threatened Abdulahad by name before officers mentioned him, and then asked whether a recording of the threat had been made, telling an officer he would need proof.
Officers arrested Bleich, who told them that she did not have a cell phone with her, but police discovered later that her son came to the pharmacy after the arrest and retrieved a cell phone. When contacted, the son denied having the phone and avoided further calls.
Abdulahad obtained an emergency protective order, but police allowing Bleich to call her son discovered she was calling the pharmacy where Abdulahad worked and had to terminate the call. An officer noted in his report at the time that Bleich looked disoriented and “did not appear to be all there,” at one point claiming to be an employee of the sheriff’s department.
Bleich was charged with making a terrorist threat and stalking. The parties agreed that records for a cell phone in her name showed no calls to Abdulahad, but the prosecution would not stipulate that the phone retrieved by Bleich’s son utilized the same number.
When the recording was played during a preliminary hearing, the CVS employee who had previously identified Bleich described the voice as different from what she had heard, and a police officer said the recording was “not the way the voice sounded” on the cell phone.
San Diego Superior Court Judge William J. McGrath concluded that the recording did not sound like Bleich and—finding insufficient evidence to bind her over for trial—dismissed the charges.
Bleich then petitioned for a finding of factual innocence and for her records to be sealed and destroyed under Penal Code Sec. 851.8. The statute allows petitioners who show that the state should never have subjected them to the compulsion of the criminal law, because no objective factors justified official action, to purge the official records of any reference to such action.
However, the prosecution—relying on police reports and on records of disciplinary action taken against Bleich by the State Board of Pharmacy in 2004 for failing to account properly for Vicodin, Xanax and Viagra—opposed the request and McGrath denied it.
Noting that he was not convinced it was Bleich on the recording, the judge said that the circumstances—particularly Bleich’s statements to police and her initial denial related to the cell phone retrieved by her son—led him “to think that there might be reasonable suspicion that she had some involvement in the making of this telephone call as an accessory or otherwise.”
On Bleich’s appeal, Justice Patricia D. Benke agreed, rejecting Bleich’s argument that the facts showed that no reasonable cause existed to believe that she committed the offenses charged.
Benke wrote that McGrath’s factual determination that the voice on the cassette-recording was not Bleich was not alone sufficient to sustain Bleich’s burden of proof to show factual innocence, and that the prosecution’s failure to present an adequate recording was an evidentiary failure that contributed significantly to the dismissal.
Justices James A. McIntyre and Joan Irion joined Benke in her opinion.
Bleich’s attorney, Keith H. Rutman of San Diego, told the MetNews he was surprised by the justices’ unanimity, and he said his client would probably seek some type of review, although he said no decision had yet been made.
Rutman also confirmed that Bleich is maintaining a federal civil rights suit over the incident in the U.S. District Court for the Southern District of California against the police, Abdulahad and others for false arrest, malicious prosecution and constitutional violations. That case is currently in the discovery phase, he said.
The case is People v. Bleich, D053808.
Copyright 2009, Metropolitan News Company