THE PEOPLE v. NICHOLLS

Filed 1/30/08

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Story continues from Part I .

However, we have examined the entire transcript of the call and conclude no material matter was omitted. Thus, the transcript of the tape-recorded telephone call shows as follows:

Defendant called his mother collect. She asked him to hold because she was on the other line, but she could not click back

to her other call, which she thought might be because the call from jail was being recorded, as a recording reminded them. She asked if he got a card she sent, he said no but he would probably get it that night. He said he would meet with his lawyer Friday and go to court on Monday. He asked what kind of card she sent. She said a Halloween card. He said he might not get it because mail has to be in a letter envelope. She said she put a $20 money order in the card. Someone named Tammy gave her $10 but defendants mother had already bought the money order and so sent only the $20. Defendant thanked her for her help. He said it was getting depressing. He tried to exercise and eat right. It helped to get in a routine. He was reading a lot and had read 10 or 12 books. His mother asked, They have computers you can get on? He said, No way. He said there was a law library and books. It was rare to be able to go into the library, but there was a dayroom with television, and they were watching basketball. Defendant said he sent Tammy a letter with a Halloween picture he drew that he hoped she would keep and put on the refrigerator or something. His mother said she did not know and had not seen them for awhile, except just for a second that morning.

Defendant then said, I put my computer up in the, uh, storage, in the garage. This is the portion quoted by the detective in his affidavit.

Defendant then said he left some clothes in the dryer. His mother said she did not know what happened to them. He asked if

she could find them. She said she would ask Tammy. He said he did not have any clothes for when he gets out of jail. She said okay. He asked her to write. She said all right. He said he loved her, she said she loved him and goodbye, and the call ended.

Clearly, the affiant did not mislead the magistrate. The omitted portions of the conversation were immaterial. We note the trial court indicated the only fact material to the motion to traverse was that defendant admitted owning a computer and revealed its location. We believe it was also material that defendant wanted to make sure no one mess[ed] with his computer. Nevertheless, the omitted portions of the conversation were immaterial.

We conclude defendant fails to show grounds for reversal regarding his motion to traverse.

III. Probable Cause

Defendant argues the probable cause affidavit failed to establish a fair probability that child pornography would be found in defendants laptop computer, laptop bag, or the Ford Bronco. We disagree.

Probable cause to justify a search warrant means a fair probability that . . . evidence of a crime will be found in a particular place. (Illinois v. Gates (1983) 462 U.S. 213, 238 [76 L.Ed.2d 527].) As defendant acknowledges, we apply deferential review to determine whether the magistrate had a substantial basis for concluding a fair probability existed that

the search would uncover wrongdoing. (Kraft, supra, 23 Cal.4th at pp. 1040-1041.)

Defendant argues the affidavit in this case was deficient because it (1) did not indicate defendant had used the laptop or any computer or computer-related media in the alleged molestation of his daughter, (2) did not indicate he used child pornography in the alleged molestation, and (3) did not indicate he expressed any general interest in receiving or transmitting child pornography, through the computer or otherwise.

However, it was not necessary for the affidavit to indicate any of those things. The affidavit sufficed by setting forth (1) the victims description of the molestations; (2) defendants storing away of his computer in the garage attic; (3) defendants phone call with his mother expressing his concern that no one mess with his computer; and (4) the affiants potent testimony, based on the officers training, knowledge, and experience, that people who molest children have generally been found to engage in activity such as (a) receiving and collecting sexually explicit materials for sexual gratification; (b) corresponding with other molesters to share information and support, including use of computerized bulletin boards; (c) preserving the correspondence; (d) using photographs to fantasize about encounters with children; (e) maintaining diaries of their sexual encounters with children; (f) collecting books, magazines and computer files on the subject of sex with

children; and (g) going to great lengths to conceal their collection of illicit materials.

Defendant argues we should disregard his phone call and the expert opinion about the habits of child molesters. We disagree.

Thus, law enforcement officers may draw upon their expertise to interpret the facts in a search warrant application, and such expertise may be considered by the magistrate as a factor supporting probable cause. (People v. Andrino (1989) 210 Cal.App.3d 1395, 1400-1402 [evidence of telephone traffic and its interpretation by experienced officer as consistent with bookmaking activity, coupled with the defendants criminal record, established probable cause for issuance of search warrant].) Here, the search warrant application did not depend solely on the experts opinion about activities of child molesters, but the expert opinion together with the victims statements, defendants storage of his computer in a garage attic, and his expressed concern that no one mess with the computer.

As to the telephone conversation in which defendant expressed concern that no one mess with the computer, we have explained defendants statement was properly considered. Defendant tries to minimize its impact, saying it showed only that his primary concern was to make sure that his property (laptop, clothing) was not harmed. However, together with the other information in the affidavit -- including the victims

description of multiple incidents of molestation by defendant, as well as the affiants experience and training -- defendants expressed concern that no one mess with his computer, which he stored out of the way in garage storage, adds to a reasonable persons conclusion that there was a fair probability the search would uncover wrongdoing. That defendant also asked his mother about his clothes is without consequence because, unlike the computer (which he stored in an out-of-the-way place), he left the clothes in a place -- the clothes dryer -- where they would be in other peoples way and would presumably be moved by people wanting to use the dryer, with a concomitant risk the clothes would get misplaced (as they apparently did). Defendant did not ask about any other belongings. Also without consequence is the lack of any indication that defendant used pornography in molesting his daughter. His concern about his computer, together with the described molestations, provided a sufficient link between defendant and the computer habits of child molesters described by the affiant. Contrary to defendants view, the record here shows more than a mere hunch.

We also reject defendants assertion that, because the phone call occurred several months after he was arrested, no reasonable magistrate could find probable cause. Defendant cites no evidence supporting the timing. To the contrary, the affidavit and probation report reflect defendant was taken into custody and transported from the Pacific Grove Police Department

to Sacramento County on September 2, 2005 -- about a month and a half before the October 18, 2005, telephone call.

We conclude the record supports the magistrates finding of sufficient probable cause for issuance of the search warrant, and we independently conclude the search was reasonable under the Fourth Amendment.

Defendant relies on three cases from other jurisdictions. He acknowledges they are not binding on us (Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1441), but he argues they are persuasive. We shall conclude they do not help him.

Thus, defendant cites United States v. Weber (9th Cir. 1990) 923 F.2d 1338, which held there was no probable cause to search the defendants home for child pornography based on information that the defendant (1) received advertising material described by a customs agent as apparent child pornography in 1985 and (2) placed an order for child pornography (in response to an advertisement sent by the government) in 1987. The police officers affidavit gave a general description of the proclivities of pedophiles but did not say that the defendants demonstrated interest in child pornography placed him in the category of those pedophiles about whom a fellow officer (whose generalizations about pedophiles appeared in the affidavit) had expertise. (Id. at p. 1341.) Weber said: It is well established that expert opinion may be presented in a search warrant affidavit. [Citation.] But if the government presents expert opinion about the behavior of a particular class of

persons, for the opinion to have any relevance, the affidavit must lay a foundation which shows that the person subject to the search is a member of the class. (Id. at p. 1345.) Weber concluded the expert testimony lacked foundation and consisted only of rambling boilerplate recitations designed to meet all law enforcement needs. (Ibid.) It was clear the expert portion of the affidavit was not drafted with the facts of the case in mind. (Ibid.)

However, Weber is distinguishable from this case because in Weber there was no evidence of any specific act of child molestation. (Id. at p. 1345 [there was not a whit of evidence in the affidavit indicating that Weber was a child molester].) Here, there was abundant evidence of child molestation, and the affidavit recited not only generalities about child molesters but also the statements of the child-victim describing incidents of molestation and defendants expressed concern that no one mess with his computer. Together with defendants expressed concern about his computer, there was sufficient foundation that defendant was a member of the class of persons who tended to keep child pornography on a computer.

Defendant cites dictum from United States v. Zimmerman (3d Cir. 2002) 277 F.3d 426 (Zimmerman), where the government conceded there was no probable cause to search for child pornography. (Id. at p. 432.) The warrant to search the defendants home and computer for adult and child pornography

was based on an affidavit which (1) recounted various incidents in which the defendant, a high school teacher and basketball coach, allegedly sexually accosted students, (2) said the defendant showed some of the alleged victims a video clip depicting a woman performing oral sex on a horse, and (3) gave a postal inspectors opinion that persons with a sexual interest in children may possess child pornography and keep it in their homes for extended periods of time. The inspector did not refer to the defendant or the facts of the case. (Id. at p. 430.) The government conceded lack of probable cause for child pornography, and the issues in Zimmerman were whether probable cause to search for adult pornography was lacking because the information was stale (Zimmerman said yes), and whether the child pornography evidence should come in under the good faith exception (Zimmerman said no). (Id. at pp. 433-438.)

The Zimmerman dictum cited by defendant said that, because it was undisputed that there was no probable cause to search for child pornography, the court did not need to determine what weight, if any, to give to the postal inspectors opinion, but the court noted there was nothing in his statement indicating he knew anything about the defendant, and if the court had to decide the matter it would probably decide the inspectors statement was insufficient. (Zimmerman, supra, 277 F.3d 426, 433, fn. 4.)

Since the government conceded lack of probable cause in Zimmerman, that case is not even arguably supportive of

defendants appeal. Defendant quotes Zimmermans reference to a prior case in which the same court held a similar statement by the same postal inspector was conclusory and insufficient to establish a sufficient nexus between the contraband and the defendants residence. (Zimmerman, supra, 277 F.3d 426, 433, fn. 4.) However, defendant does not discuss or rely on that earlier case, and we therefore need not discuss it.

Defendants final out-of-state case is from a Florida District Court of Appeal, Burnett v. State (Fla. 2003) 848 So.2d 1170 (Burnett), which held a law enforcement officers affidavit was insufficient to support a conclusion that child pornography would be found in the computer in the defendants bedroom. (Id. at pp. 1173-1174.) There, the police in a consensual search of the defendants bedroom found a lewd videotape made by the defendant of two naked young boys. (Id. at pp. 1171, 1174.) The affidavit described the videotape, set forth specifics about the officers expertise and training in child sex abuse cases, and gave her opinion that people involved in child pornography, including people such as the defendant, who videotaped a childs genitals and buttocks, commonly had child pornography on their computer. (Id. at p. 1172.) The officer also stated her belief, due to the defendants lying about the videotape, that other child pornography may be stored on the stacks of videotapes in the defendants room. (Ibid.)

In holding the affidavit failed to establish probable cause, the Burnett court said the affidavit did not state that

the titles of any of the stacked videotapes suggested child pornography. (Burnett, supra, 848 So.2d 1170, 1174.) The appellate court said the initial complaint was about a lewd videotape of young boys, and nothing suggested the defendant used his computer to transmit or store child pornography. (Ibid.) The affidavit failed to describe a factual link between the video camera and the functioning capability of the home computer so that images could be transferred. The affidavit also omitted any factual averment that the computer was linked to the internet or that the video camera was compatible with the computer so that images could be downloaded, transferred, or transmitted. (Ibid.) Additionally, said the Florida court, the affidavit set out only the officers expertise in child sex abuse cases, it did not set out any expertise in matters of child pornography. (Id. at pp. 1172, 1174.)

Burnett is arguably distinguishable because in that case there was a lack of foundational expertise. No such problem appears in this case. To the extent that the Florida court declined to give weight to the affidavit for reasons other than the lack of qualifications of the expert, we respectfully disagree with Burnett.

In sum, none of defendants cited cases helps him.

Here, we do not have to decide whether the detectives expert opinion, standing alone, was sufficient to show probable cause. The search warrant application was supported by more than the detectives opinion that child molesters collect and store child pornography. It was supported by statements of the child that defendant molested her as recently as two weeks earlier, and by his storing his computer in a hot garage and asking his mother not to let anyone mess with it.

We conclude issuance of the search warrant was proper, and the trial courts denial of the motion to traverse, quash, and suppress evidence was proper. We need not comment on the Peoples citation of research studies about child molesters, which are not part of the record. We need not address the parties arguments as to whether the good faith exception to invalid warrants should apply.

IV. Pretrial Custody Credits

Defendant argues his pretrial custody credits ( 4019) were miscalculated, and he is entitled to one additional day of credit. The People say the point is debatable, but they agree defendant should be awarded the additional day of credit. We accept the Peoples concession.

DISPOSITION

The abstract of judgment is modified to show actual credits of 443 days, and total credits of 509 days. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy of it to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.

SIMS , Acting P.J.

We concur:

DAVIS , J.

MORRISON , J.

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^* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts II and IV of the DISCUSSION.