Filed 5/3/16 P. v. Phillips CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B265047
(Super. Ct. No. F497904001)
Plaintiff and Respondent, (San Luis Obispo County)
v.
AUGUST RAUGHT PHILLIPS,
Defendant and Appellant.
August Raught Phillips appeals an order denying his motions to disclose a
sealed search warrant affidavit, and traverse and quash a search warrant. (People v.
Hobbs (1994) 7 Cal.4th 948, 956.) We affirm.
FACTUAL AND PROCEDURAL HISTORY
On March 28, 2014, the San Luis Obispo County District Attorney filed an
information charging Phillips with two counts of possession of child pornography, and
one count of exhibiting a child in pornography. (Pen. Code, §§ 311.11, subd. (a), 311.2,
subd. (b).)1 The charges rested upon the recovery, pursuant to a search warrant, of
images of child pornography contained in a computer found in Phillips's Morro Bay
residence.
Phillips filed a motion to quash and traverse the search warrant pursuant to
the Fourth and Fourteenth Amendments to the United States Constitution. Phillips also
1
All further statutory references are to the Penal Code unless stated otherwise.
filed a motion requesting the trial court to review the sealed search warrant affidavit in
camera. (People v. Hobbs, supra, 7 Cal.4th 948, 972.)
On December 29, 2014, the trial court held an in camera hearing outside
Phillips's presence, during which it received testimony and reviewed the sealed search
warrant affidavit. The court then denied Phillips's constitutional challenges to the search
warrant.
Pursuant to a negotiated plea, Phillips withdrew his not guilty plea and
pleaded nolo contendere to one count of possession of child pornography. On April 30,
2015, the trial court suspended imposition of sentence and granted Phillips three years
formal probation, with terms and conditions including 120 days confinement in county
jail. The court also imposed a $300 restitution fine, a $300 probation revocation
restitution fine (suspended), a $40 court security assessment, and a $30 criminal
conviction assessment. (§§ 1202.4, subd. (b), 1202.44, 1465.8, subd. (a); Gov. Code,
§ 70373.) The court dismissed the remaining charges. (§ 1385, subd. (a).)
Phillips appeals and contends that the trial court erred by denying his
motions to 1) disclose the sealed search warrant affidavit and 2) traverse and quash the
search warrant.
DISCUSSION
The trial court may seal all or part of a search warrant affidavit if necessary
to protect confidential information. (People v. Hobbs, supra, 7 Cal.4th 948, 971.) In
such cases, where the defendant moves to traverse or quash the search warrant, the court
is required to conduct an in camera hearing. (Id. at p. 972.) The court must then
determine whether there are sufficient grounds for maintaining the confidential
information and the extent of the sealing necessary to preserve the confidentiality. (Ibid.)
We independently review the court's decision regarding sealing of the affidavit and apply
an abuse-of-discretion standard to the court's decision. (Id. at p. 976; People v. Martinez
(2005) 132 Cal.App.4th 233, 241-242.)
If the trial court determines that all or part of the search warrant affidavit
was properly sealed, it must decide if defendant's motion to traverse has merit, i.e.,
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whether there is a reasonable probability the affidavit includes a false statement made
knowingly and intentionally or with reckless disregard of the truth, and whether the false
statement is necessary to the finding of probable cause. (People v. Hobbs, supra, 7
Cal.4th 948, 974.) If not, the court must so inform the defendant and deny the motion.
(Ibid.) If the court determines there is a reasonable probability that the defendant will
prevail on the motion, the prosecutor must be given the option of disclosing the sealed
materials, or suffering the entry of an adverse order on the motion to traverse. (Id. at pp.
974-975.)
If the defendant has also moved to quash the search warrant, the trial court
must determine whether, under the totality of the circumstances, there is a fair probability
that contraband or evidence of a crime would be found in the place searched pursuant to
the warrant. (People v. Hobbs, supra, 7 Cal.4th 948, 975.) If the court determines there
was such probable cause, it should so inform the defendant and deny the motion. (Ibid.)
If it determines there is a reasonable probability the defendant will prevail on his motion,
the prosecutor must either disclose the sealed materials to the defense or suffer the entry
of an adverse order on the motion to quash. (Ibid.)
At Phillips's request, we have reviewed the sealed search warrant affidavit
as well as the sealed transcript of the in camera hearing conducted pursuant to People v.
Hobbs, supra, 7 Cal.4th 948, 972.2 We conclude that sufficient grounds exist to maintain
the confidentiality of the information contained therein, and sealing was necessary for
that purpose. Thus, the trial court did not err by denying Phillips's request to disclose the
search warrant affidavit.
The trial court also did not err by denying the motions to traverse and quash
the search warrant. The sealed affidavit did not contain any material misrepresentations
or omissions and provided probable cause to search Phillips's residence and computer.
(People v. Sandoval (2015) 62 Cal.4th 394, 409 [statement of rule that a defendant can
challenge a search warrant by showing that the affiant deliberately or recklessly omitted
2
We have augmented the appellate record to include the search warrant and the affidavit
in support of the search warrant. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
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material facts that negate probable cause when added to the affidavit]; People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 369-370 [statement of rule that probable cause
for issuance of a warrant requires a showing that it is substantially probable there is
specific property lawfully subject to seizure presently located in the particular place for
which the warrant is sought].)
The judgment (order) is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
TANGEMAN, J.
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Rita B. Federman, Judge
Superior Court County of San Luis Obispo
______________________________
Richard Lennon, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B.
Wilson, Supervising Deputy Attorney General, Jessica C. Owen, Deputy Attorney
General, for Plaintiff and Respondent.
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