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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APPEAL from a judgment of the Superior Court of Sacramento County, Michael T. Garcia, J. Affirmed as modified.

Law Office of Gene Vorobyov and Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Michael P. Farrell, Assistant Attorneys General, Carlos A. Martinez, Kelly E. Lebel, Deputy Attorneys General, for Plaintiff and Respondent.

After being convicted, on a no contest plea, of three counts of lewd and lascivious conduct upon a child under the age of 14 (Pen. Code, 288, subd. (a)^[1]), three misdemeanor counts of annoying/molesting a child ( 647.6, subd. (a)), and five misdemeanor counts of possession of child pornography ( 311.11, subd. (a)), defendant John Dale Nicholls, II, appeals from the trial courts denial of his motion to traverse and quash a search warrant and suppress child pornography evidence. ( 1538.5, subd. (m) [authorizing review of suppression issues despite guilty plea].) Defendant argues probable cause was lacking, and material information was omitted from the application for the warrant. We shall affirm the judgment but shall modify it to reflect an additional day of custody credit, a point conceded by the People.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with three counts of lewd and lascivious conduct upon a 10-year-old child ( 288, subd. (a)), three misdemeanor counts of annoying or molesting the same child ( 647.6, subd. (a)), and five misdemeanor counts of possession of child pornography ( 311.11, subd. (a)).

The victim was defendants 10-year-old daughter, who lived with her mother. The facts, as reflected in the probation report, are that between October 14, 2004, and May 24, 2005, defendant, with lewd intent, touched the victims chest with his finger (Count One), had her place her hand on his penis (Count Two), and had her sit on his lap with his penis touching her buttocks (Count Three). The conduct underlying the misdemeanor annoying/molesting a child (Counts Four, Five, and Six) were that defendant had his daughter spread her legs and expose her vagina to him and, on two occasions, exposed his penis and asked her to touch it, which she refused. As to the five counts of possession of child pornography, police found 10,000 still images and 47 movie files of child pornography on the hard drives of defendants computer which they took from the garage attic of his parents home (where defendant was residing before his arrest) pursuant to a search warrant.

The police detectives affidavit, which was submitted with the application for the warrant to search defendants computer and laptop bag, described the detectives 17 years of law enforcement experience, which included formal training and extensive experience in various matters, including child abuse and sexual assaults. The affidavit did not specify the percentage of such cases but did identify specific training, such as a 40-hour P.O.S.T. Child Abuse and Sexual Assault certification at the Sacramento Public Safety Center, 56 hours of Computer Child Pornography Investigation and Internet Crimes through the California Department of Justice Training Center and Sacramento Valley Hi-Tech Crimes Task Force, and advanced training in interviews and interrogation and computer forensics.

The affidavit set forth in detail the victims description of multiple incidents of molestation by defendant, which the victim described in a MDIC (Multi-Disciplinary Interview Center) interview witnessed by the affiant.

The affidavit described a portion of a tape-recorded telephone conversation from defendant in jail to his mother at her home in Pacific Grove, where defendant had been staying before turning himself in to the police. The affidavit stated:

A summarized portion of the recorded conversation on 10/18/05, 5 minutes 17 seconds from the beginning, was as follows:

[Defendant]: I PUT MY COMPUTER UP IN THE, UH, STORAGE, IN THE GARAGE, UH, MY LAPTOP BAG, SO IS IT GOOD - IS IT OK UP THERE?

[]Mom: IT[]S AWFUL HOT UP THERE.

[Defendant]: I DONT CARE, ITS NOT HOT AS--IVE HAD THAT THING [PAUSE] MOM.

[]Mom: ALL RIGHT.

[DEFENDANT]: I JUST DONT WANT ANYBODY MESSING WITH, UM, WITH THE PAPERWORK AND STUFF I HAVE IN THERE.

[]Mom: ALL RIGHT, NO PROBLEM.^[[2]]

During this same jail telephone call on 10/18/05, the Suspect continued the conversation by telling his mother that he had some clothes that he left in her dryer at her home. The Suspects mother replied that she did not know where the clothes went. The Suspect requested that she look for his clothes because he has no other clothing for when he gets out of jail.

The affiant said that, from his training, knowledge, and experience, as well as the experience of other skilled investigators and criminalists with whom I had spoken, he had learned that the following characteristics are generally found to exist in varying combinations and to be true in cases involving people who molest children: (1) they receive sexual gratification from fantasy involving pictures or writings about sexual activity with children; (2) they collect sexually explicit materials for sexual gratification and fantasy; (3) they use sexually explicit materials to lower childrens inhibitions;^[3](4) they rarely dispose of their sexually explicit materials, especially when used in seduction of their victims; (5) they often correspond with other molesters to share information and support; (6) they rarely destroy the correspondence; (7) they use photographs to relive fantasies or actual encounters with the depicted children, etc.; (8) they go to great lengths to conceal and protect from discovery their collection of illicit materials; (9) they often correspond with others who share their interests through computerized bulletin boards; (10) they maintain diaries of their sexual encounters with children; (11) they collect books, magazines, computer files and other writings on the subject of sex with children; (12) they collect and maintain books, magazines, and other writings on the subject of sexual activity, which they use to seduce children; (13) they often keep mementos such as victims underwear; (14) they obtain, collect, and maintain digital images and photographs of their victims; if they take a picture of a child in the nude, there is a high probability the child was molested before, during, or after the photo-taking session because the act of the posing is a strong sexual stimulus for the individual.

The affidavit also related information that defendant drove a black Ford Bronco which was in his parents garage, and the request was for a warrant to search the premises, specifically in or around the computer and laptop bag [defendant] indicated was stored in the garage . . . .

The search warrant was issued, and the police found 10,000 still images and 47 movie files of child pornography on the hard drives of defendants computer.

Defendant filed a motion to traverse and quash the search warrant and suppress any evidence found on his computer hard drives, in his laptop bag, and in luggage found in his Ford Bronco.^[4] He argued the police lacked probable cause to search his computer and his vehicle based on his statement to his mother in a telephone call from jail, in which he said he put the computer in the storage in her garage for safekeeping. Defendant argued the detective who prepared the affidavit for the search warrant, by presenting an isolated part of the telephone conversation, deprived the magistrate of a chance to review the statement in context, which would have shown that the topic of computers came up when defendants mother asked if he had access to computers in jail, and defendant also expressed a concern about his clothing in the same conversation, and therefore the common sense conclusion was that defendant was merely concerned about his belongings. Defendant argued there was nothing indicating a fair probability that child pornography would be found on the computer, because there was no indication that defendant ever showed the victim any pornography, and to the contrary the child said she was not shown any images. Defendant argued that, to say that there must be child pornography on a persons computer just because he is charged with lewd and lascivious conduct is a bare conclusion which does not constitute probable cause. The defense questioned the Peoples reliance on the affiants expertise.

The court denied the motion to traverse, concluding defendant failed to meet his burden to make a preliminary showing of an intentionally or recklessly false material statement or omission by the affiant, and the affidavit was sufficient on its face. It was immaterial that the issue of computers was raised by defendants mother, asking about computers in jail. [T]he reason I find it is not material is based upon whats in the facts of the affidavit. [] The officer made statements about his training and education and experience in dealing with child molest and that its his experience that if an individual will -- that based on that experience that an individual who participates in child molest will intend to record that in different ways, and this is based upon not only training but interviews of the victims, witnesses, and suspects, and that the information which is kept by the defendants, not unusual to be kept by defendants, can be anything from handwritten journals to photographs, traditional type, as well as those handed through electronic media. [] So what the Court finds in the material on the motion to traverse is the fact that the defendant owned a computer. In other words, he had possession of a computer. And in this case, that is, in fact, what the Court finds was material for the purpose of the magistrate, is to acknowledge that the defendant had a computer in his possession and where he had placed that computer. [] So I dont find that the lack of the other information goes to the materiality, and I think thats really what were talking about for the purpose of traverse.

As to the motion to quash and suppress, the court denied the motion, stating the affiant showed sufficient knowledge, experience, and training, and the affidavit was sufficiently factual and not conclusionary, and it showed sufficient probable cause to search defendants vehicle in the garage as well as the computer.

After denial of the motion, defendant changed his plea to no contest to all charges.

The trial court found defendant guilty on all charges and sentenced him to six years (midterm) on Count One (lewd and lascivious conduct), concurrent six-year terms on Counts Two and Three (lewd and lascivious conduct), and concurrent 10-day sentences for each of the eight misdemeanor counts (three counts of annoying/molesting a child and five counts of possession of child pornography).

DISCUSSION

I. Standard of Review

In reviewing denial of motions under section 1538.5, [w]e apply the Fourth Amendment standard in deciding what remedy may be available following a claim of unlawful search or seizure. [Citations.] [] An appellate courts review of a trial courts ruling on a motion to suppress is governed by well-settled principles. [Citations.] [] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] The [trial] courts resolution of each of these inquiries is, of course, subject to appellate review. [Citations.] [] The courts resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, . . . is also subject to independent review. [Citation.] (People v. Ayala (2000) 24 Cal.4th 243, 279.)

The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing. [Citations.] The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. [Citation.] . . . The magistrates determination of probable

cause is entitled to deferential review. [Citation.] (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041.)

However, we independently determine whether, on the facts as found by the magistrate, the search was reasonable under the Fourth Amendment. (People v. Hunter (2005) 133 Cal.App.4th 371, 377.)

II. Motion to Traverse

Defendant argues the trial court improperly denied his motion to traverse the detectives affidavit without conducting an evidentiary hearing under Franks v. Delaware (1978) 438 U.S. 154 [57 L.Ed.2d 667] (Franks), because the affidavit omitted key portions of defendants conversation with his mother, and a redacted affidavit would not establish probable cause for the search. We disagree.

Franks, supra, 438 U.S. 154 [57 L.Ed.2d 667], held that, where a defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by an affiant in his affidavit for a search warrant, and if the allegedly false statement was necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendants request so that he might challenge the truthfulness of factual statements made in the affidavit. If at such a hearing the defendant establishes perjury or reckless disregard by a preponderance of the evidence, and if the affidavit (redacted to delete the false matter) is insufficient to

establish probable cause, the search warrant must be voided and the fruits of the search excluded. (Ibid.) Where the defendant claims matter was omitted from the affidavit, the defendant bears the burden of showing that the omissions were material to the determination of probable cause. (People v. Bradford (1997) 15 Cal.4th 1229, 1297.) We review de novo the trial courts denial of a Franks hearing. (People v. Benjamin (1999) 77 Cal.App.4th 264, 271.)

Here, defendant complains not of a false statement but of an omission, in that the affiant quoted only a portion of the tape-recorded telephone call. Defendant argues when the entire conversation is examined, it is clear that the portion quoted by the detective was taken out of context, and the conversation was actually a rather ordinary dialogue between a mother and son, in which the subject of the laptop came up once and only briefly, as part and parcel of defendants ongoing concern about what happened to his belongings. Defendant acknowledges the detective told the magistrate (in paraphrased form) the part of the conversation where defendant asked about his clothes, but defendant argues that reference hardly did justice to the entire conversation.

Story continues as Part II .

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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.

^[1]Undesignated statutory references are to the Penal Code.

^[2]This quote differs slightly from the transcript, which shows (1) defendants mother interjected, Yeah or Uh-huh between the phrases of defendants first statement, and (2) in the last sentence she said, No one will touch it, not No problem. Defendant does not claim these minor, immaterial differences are a basis for his appeal.

^[3]It is undisputed there is no evidence that defendant showed any sexually explicit images to his victim.

^[4]It is not clear what evidence, if any, was found in defendants vehicle. Defendants motion said the laptop and a laptop bag were seized from the garage attic, and a suitcase was seized from his Ford Bronco (which was in the garage). Defendants motion said the computer hard drives had been removed from the computer and were found in a small box, but defendant did not say where the box was found. On appeal, defendant lumps everything together and provides no separate argument regarding the vehicle. Since defendants vehicle and computer were both in the garage of his parents home, and defendants telephone conversation was not entirely clear as to exactly where in the garage he placed the computer, the application for and issuance of a warrant to search the vehicle in the garage was reasonable, and defendant fails to show otherwise.