People v. Phillips CA2/6

Filed 5/3/16 P. v. Phillips CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.,