Opinion
B215568 B216381
11-30-2011
THE PEOPLE, Plaintiff and Respondent, v. JOHN JOSEPH MALBURG, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. JOHN MALBURG, Defendant and Appellant.
Law Offices of Dennis A. Fischer, Dennis A. Fischer and John M. Bishop for Defendant and Appellant. Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA312431)
(Los Angeles County Super. Ct. No. BA327248)
APPEALS from judgments of the Superior Court of Los Angeles County, Anne H. Egerton and Michael M. Johnson, Judges. Affirmed.
Law Offices of Dennis A. Fischer, Dennis A. Fischer and John M. Bishop for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In Case No. B215568, defendant John Joseph Malburg appeals from a judgment of conviction entered after he pled no contest to continuous sexual abuse of a minor (Pen. Code, § 288.5, subd. (a)) and using a minor for commercial sex acts (id., § 311.4, subd. (b)). The plea followed the denial of his suppression motion under Penal Code section 1538.5. In exchange for his plea, 12 additional counts against him were dismissed, and he was sentenced to 8 years in state prison. On appeal, he challenges the denial of his suppression motion. We affirm.
Although defendant is identified in his briefs as John Leonis Malburg, the information and abstract of judgment identify him as John Joseph Malburg. In the companion case, he is identified simply as John Malburg.
In Case No. B216381, defendant appeals from a judgment of conviction entered after he pled no contest to conspiracy to commit voter registration fraud/fraudulent voting/false candidacy (Pen. Code, § 182, subd. (a)(1); Elec. Code, §§ 18100, subd. (a), 18560, subd. (a), 18203), voter registration fraud (Elec. Code, § 18100, subd. (a)), and perjury by declaration (Pen. Code, § 118, subd. (a)). The plea followed the denial of his suppression motion. In exchange for his plea, defendant was sentenced to three years and four months in state prison. On appeal, he challenges the denial of his suppression motion. Again, we affirm.
A single order denied the suppression motions in both cases.
FACTUAL AND PROCEDURAL BACKGROUND
A. The April 4, 2005 Search Warrant
On April 4, 2005, Judge Michael E. Pastor signed a search warrant authorizing a search of 10 different locations for evidence of misappropriation of funds belonging to the City of Vernon (Vernon) and election fraud.
The April 4, 2005 search warrant was supported by a statement of probable cause by Carlos Villamayor (Villamayor), Senior Investigator for the Los Angeles County District Attorney's Office, Bureau of Investigation, Public Integrity Division. Villamayor stated that on December 9, 2004, a deputy district attorney received information from a citizen informant that the informant had seen a report prepared by Eduardo Olivo (Olivo), formerly legal counsel to Vernon, on misappropriation of funds through the misuse of petty cash and credit cards by the City Administrator, Bruce Malkenhorst, Sr. (Malkenhorst Sr.). The amount of the misappropriated funds was over $300,000. A copy of the report was presented to the City Council, and copies of the report were mailed to the residences of the councilmembers. On December 15, the matter was assigned to Villamayor for investigation.
On December 30, 2004, Villamayor interviewed Greg Tsujiuchi (Tsujiuchi), the former Vernon Assistant Administrator. Tsujiuchi had resigned his position three days earlier after finding documents showing suspicious petty cash transactions and what appeared to be attempts at covering them up. Tsujiuchi related that earlier, City Attorney Erick Fresch (Fresch) had instructed him to burn magnetic tapes from the Accounting Department containing financial data. Tsujiuchi had conveyed his suspicions to Olivo, who said he would produce a report documenting his findings. Tsujiuchi did not know if Olivo had done so and suggested that Villamayor contact former Deputy City Clerk Gloria Molleda (Molleda). Tsujiuchi added that Olivo had since been fired by the City Council, and Molleda had resigned due to sexual harassment by Malkenhorst Sr. Tsujiuchi informed Villamayor that Malkenhorst Sr. held several positions with the city in addition to that of City Administrator. Tsujiuchi also told Villamayor where financial documents were stored.
Villamayor interviewed Molleda on January 3, 2005. Molleda said that in July 2004, Fresch, who had been hired by Malkenhorst Sr., instructed her to stop taking minutes of closed city council sessions and not to take minutes of open sessions unless instructed to do so; she was not instructed to do so, and the sessions were not recorded. In December 2004, Molleda heard conversations suggesting that Bruce Malkenhorst, Jr. (Malkenhorst Jr.) had improperly destroyed "closed session items."
In early September 2004, Molleda had spoken to city councilmember William Davis, who mentioned that Olivo's report had been delivered to the homes of all five councilmembers—Davis; Leonis Malburg, defendant's father, who also served as the mayor; Thomas Ybarra; Hilario Gonzales; and William McCormick. Councilmember Davis came into the office later that day holding the report, which was about 1500 pages long. Molleda later learned from a series of faxed messages from Olivo addressed to Malkenhorst Sr. or the City Attorney, that Malkenhorst Sr. was the subject of the report. Molleda suspected something was wrong when Olivo was fired abruptly during an open city council meeting on September 15. Mayor Leonis Malburg read a prepared statement describing Olivo as a disgruntled employee and briefly referring to the report Olivo had prepared.
Villamayor showed Molleda copies of petty cash receipts that Tsujiuchi had given him. Molleda identified Malkenhorst Sr.'s handwriting on the receipts. She stated that he did not follow standard procedure in handling the petty cash, in that the amounts taken from petty cash were substantial, well in excess of the limit for petty cash payments.
Based on the foregoing, Villamayor sought to search Vernon City Hall, its offsite storage facility and Malkenhorst Sr.'s residence for evidence of theft and fraud. He also sought to search the residences of the five city councilmembers for copies of the Olivo report.
The city councilmembers had no offices at city hall.
As part of his investigation, Villamayor had Senior Investigator Greg Icamen (Icamen) check public records to obtain the residence addresses of the city councilmembers. The records showed a number of addresses for Leonis Malburg, including two residential addresses: 2833 Leonis Boulevard, suite 111, in Vernon; and 647 South Hudson Avenue in Los Angeles. On March 14, 2005, Villamayor and Icamen "conducted a ruse" at the Leonis Boulevard address to determine if Leonis Malburg lived there. The address belonged to a three-story office building. The directory showed Leonis Malburg in suite 111. The door of the suite had on it "Leonis C. Malburg Enterprises." Villamayor looked through the mail slot in the door and saw an office. He checked with another tenant who said suite 111 was an office and no one lived there.
Villamayor returned to the building on March 25 and again "conducted a ruse" to determine if Leonis Malburg lived there. He spoke to a tenant who said no one lived in the building but the owner; the tenant pointed out a residential suite on the third floor. Villamayor spoke to another tenant on the third floor, who said she knew all of the tenants in the building and as far as she knew, no one lived there. Villamayor checked the parking lot, and none of the vehicles registered to Leonis Malburg was in the lot. Villamayor returned to the building that evening at about 7:55 p.m. The third-floor suite was dark, and no vehicles registered to Leonis Malburg were in the parking lot. He repeated his surveillance at about 9:37 p.m. on March 30, with the same results.
Research revealed that Leonis Malburg and D. Leonie Malburg (Dominica Malburg) recorded a grant deed on the Hudson Avenue property as husband and wife in 1959. A check with the post office revealed that Leonis Malburg did not receive mail at that address. Nonetheless, on March 22 investigators "conducted a ruse" at the Hudson Avenue property. A woman opened the door and said, "'This is the Malburg's [sic] residence and I'm Mrs. Malburg.'"
On March 24, investigators conducted surveillance at the Hudson Avenue property. Dominica Malburg left the house and drove away. Then Leonis Malburg left the house and drove away. The surveillance team followed him to the office building on Leonis Boulevard, where he stayed most of the day. About 6:00 p.m., the surveillance team followed him as he left the office building and returned to the Hudson Avenue property, where he entered the house.
Based on the foregoing, Villamayor sought to search the office and residential suites at the Leonis Boulevard address and the Hudson Avenue home for evidence that Leonis Malburg violated the Election Code by falsely representing that he resided in Vernon. B. The June 15, 2006 Search Warrant
On June 15, 2006, Judge Michael E. Pastor signed a search warrant authorizing a search of several different locations, including the Leonis Boulevard address, the Hudson Avenue home, and defendant's home at 423 South Mansfield Avenue in Los Angeles. The search was for evidence as to residency related to election fraud.
In his supporting statement of probable cause, Villamayor stated that when the April 4, 2005 search warrant was executed, and investigator interviewed Dominica Malburg, who stated that the Leonis Boulevard address was her and her husband's primary residence, and the Hudson Avenue home was one that her husband inherited. She provided the investigator with her son's—defendant's—address, the Mansfield Avenue home.
Another investigator interviewed Leonis Malburg at the Leonis Boulevard address. He stated that he stayed in his third floor suite three or four nights a week. He stayed in one of his four homes on weekends.
A search of the Hudson Avenue home revealed a significant amount of men's clothing and personal items in the master bedroom, closet and bathroom. In the dining area were nine different medications prescribed for Leonis Malburg in 2004 and 2005.
A search of the third floor residential suite at the Leonis Boulevard address revealed that the refrigerator was warm and contained two beers and half a bottle of wine. There was one dry glass in the dishwasher, and dishes and glasses in the cabinets were covered with dust. There were only 14 items hanging in the closet; the clothes were "old styled" and a shoe rack contained dusty, "old style" shoes. Prescription bottles on the nightstand were dated 1957. Nothing in the entire suite had a date later than 1959. Nothing in the suite suggested that someone actually lived there.
Voter registration records indicated that defendant had registered to vote at the Leonis Boulevard address and had voted with that address since 2000. Records showed he had owned the Mansfield Avenue home since 2001, when it was transferred to him from Leonis. School records showed that Leonis and Dominica Malburg had applied to enroll defendant's sister in school using the Hudson Avenue address in 1978.
Villamayor added that more than 80 surveillances had been conducted at the Leonis Boulevard address. Defendant's vehicle was never observed at that address, while both defendant and his vehicle were observed at the Mansfield Avenue home. C. The June 21, 2006 Search Warrant
On June 21, 2006, Judge Michael E. Pastor signed a search warrant authorizing a search of defendant's Mansfield Avenue home. The search was for evidence of child pornography.
In his supporting statement of probable cause, Villamayor stated that during the search pursuant to the June 15 search warrant, an investigator found two photographs of males who appeared to be under 18 years old. One was naked with an erect penis; the other was wearing only underwear.
Villamayor interviewed defendant, who said he was employed as a social studies teacher at Daniel Murphy Catholic High School. Villamayor showed the photographs to defendant, who acknowledged taking the photographs at his home. He said he had contacted the subjects through a magazine and had hired them to pose for him. He understood them to be 19 years old. At that point, defendant requested that Villamayor stop questioning him.
During the search, investigators found numerous videotapes, some labeled with male first names. They found additional photographs of males who appeared to be under 18 years old in positions drawing attention to the genitals. They also found printed transcripts of sexually explicit conversations that appeared to have taken place in internet chat rooms. Documentation suggested two of the names on the videotapes belonged to males who were under 18 when they first came in contact with defendant, and one was a student at Daniel Murphy Catholic High School. D. Information and Indictment
In Case No. B215568, following a preliminary hearing, a 14-count information was filed against defendant on October 25, 2007. All counts related to child molestation and pornography.
In Case No. B216381, following a grand jury hearing, an 11-count indictment was filed against Leonis and Dominica Malburg and defendant on October 25, 2007. All three were charged with conspiracy to commit voter registration fraud, fraudulent voting and false candidacy. Defendant also was charged with voter registration fraud and perjury by declaration. E. Suppression Motions
In the election fraud case, Leonis and Dominica Malburg made a number of challenges to the indictment. They also moved to traverse and quash the probable cause affidavit supporting the April 5, 2005 search warrant and to suppress evidence seized as a result of the search. Defendant filed a notice of joinder in the suppression motion, claiming he had a privacy interest allowing him to challenge the search of the 2833 Leonis Boulevard residential suite. In support of joinder, he filed a declaration stating that the Leonis Boulevard address was listed on his birth certificate, and it had been his primary residence until he moved from there in July 2005. He retained a key to the residence and had furniture, clothing and personal items there. He slept there shortly before and after the search. In early 2005, he was a victim of identity theft, he used the Leonis Boulevard address when he filed a report with the Vernon police and testified that was his address in the preliminary hearing in that case.
In the child molestation case, defendant filed a motion to traverse and quash the June 15 and 21, 2006 search warrants and to suppress all evidence seized as a result of those searches. In support of this motion, defendant stated that he owned the Mansfield Avenue home, which he received as a gift from his family in 2001. He was an owner and occupant of the home, but he had not "claimed a 'homeowner's property tax exemption' for the property because it is not my domicile. My domicile is, and always has been, in Vernon." In addition, his father paid the utilities for the property. However, since it was only four blocks from his work, he stayed there during the week so he did not have to commute from Vernon. Further, at the time of the initial search defendant was having remodeling and painting done at the Mansfield Avenue home, so he had to spend a substantial amount of time there.
Defendant stated that in 2005, he moved from 2833 Leonis Boulevard to an apartment at 3384 East 50th Street in Vernon. "This move entailed removing belongings from 2833 Leonis Blvd, starting in approximately January of 2005, and waiting until the apartment at 3384 E. 50th Street was available for me to move into. In the interim, I moved many belongings to 423 South Mansfield until they could be taken to 3384 E. 50th Street." In 2005 and 2006 defendant paid utilities for the East 50th Street apartment.
Defendant explained: "My family founded the City of Vernon. I have always considered Vernon to be my home and, although I may be absent from Vernon for periods of time, I always intend to return to Vernon. My family's association with Vernon plays a significant part in my intent to have Vernon be my domicile, as opposed to a residence, anywhere else. This is one reason why I maintained the apartment at 3384 E. 50th Street, in Vernon."
The suppression motion also was supported with a declaration by defendant's attorney regarding exculpatory evidence not presented to the grand jury.
Following argument on the suppression motions in both cases, Judge Pastor issued a lengthy opinion denying the motions in both cases. As to the challenge to the April 4, 2005 warrant to search the Leonis Boulevard address, the judge noted that "[t]here appears to be a significant issue as to whether defendant John Malburg actually has standing to bring such a challenge, but because the People do not challenge the joinder, the court will not address the issue." The court went on to uphold the search warrant as supported by probable cause, not containing material misstatements or omissions, and not overbroad.
With respect to the June 15, 2006 warrant, the judge found it was not based on an illegal search under the earlier warrant. The judge also found it was supported by probable cause, did not contain material misstatements or omissions and was not overbroad. The judge made similar findings as to the June 21, 2006 warrant.
Finally, Judge Pastor found that even if there were any lack of probable cause or other deficiency in the warrants, "the good faith exception still will apply because the executing officer reasonably relied on the warrants."
DISCUSSION
A. Standard of Review
In ruling on a suppression motion under Penal Code section 1538.5, 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."'" (People v. Ayala (2000) 23 Cal.4th 225, 255.) On appeal, we review the trial court's factual findings under the deferential substantial evidence standard. (Ibid.) We review de novo the trial court's selection of the applicable law and application of the law to the facts. (Ibid.) B. The April 4, 2005 Search Warrant
Defendant challenges the April 4, 2005 search warrant on three bases: He contends there was no probable cause to search for the Olivo report, no probable cause to search the Leonis Boulevard residence for evidence of election fraud, and the good faith exception does not apply. In response to the People's claim that he may not challenge the search warrant as he had no "standing," i.e., no reasonable expectation of privacy in the Leonis Boulevard residence, he claims the issue may not be raised for the first time on appeal.
We conclude probable cause existed to search the Leonis Boulevard residence for evidence of election fraud. Inasmuch as the search warrant was valid as to that search, we need not address defendant's other challenges to the warrant or the question of his "standing" to challenge the warrant.
In conjunction with Leonis and Dominica Malburg's appeals, we uphold the validity of the search warrant as to the Olivo report and election fraud. (People v. Malburg (Nov. 30, 2011, B223580) [nonpub. opn.].)
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Probable cause exists when, "given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." (Illinois v. Gates (1983) 462 U.S. 213, 238 [103 S.Ct. 2317, 76 L.Ed.2d 527].) On appeal, our determination is "whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing." (People v. Kraft (2000) 23 Cal.4th 978, 1040; accord, Gates, supra, at pp. 238-239.) In making this determination, we resolve all conflicts in the evidence and draw all reasonable inferences in favor of the magistrate's findings. (People v. Tuadles (1992) 7 Cal.App.4th 1777, 1784.) However, there must be a factual basis, not merely belief or suspicion, to support the warrant. (People v. Leonard (1996) 50 Cal.App.4th 878, 883.)
In upholding the April 4, 2005 warrant, the magistrate explained: "Knowing that . . . Leonis Malburg is the Mayor of Vernon, the evidence obtained through surveillances and witness interviews reasonably suggests that the Malburgs were domiciled in Los Angeles rather than in Vernon. The appropriate standard is a 'fair probability,' not a 'conclusive establishment' of the commission of a crime."
The magistrate had a substantial basis for this conclusion. Records showed two residential addresses for Leonis Malburg, 2833 Leonis Boulevard, suite 111, in Vernon, and 647 South Hudson Avenue in Los Angeles. Villamayor went to the Leonis Boulevard address. Suite 111 appeared to be an office, and a tenant in the building corroborated that suite 111 was an office and no one lived there. Villamayor returned to the building and spoke to one tenant who said no one lived in the building but the owner, who had a residential suite on the third floor, and another tenant who said as far as she knew, no one lived there. Villamayor returned to the building two separate evenings; the third-floor suite was dark, and no vehicles registered to Leonis Malburg were in the parking lot.
Investigators went to the Hudson Avenue property, where a woman identified herself as Mrs. Malburg and the home as the Malburgs' residence. Surveillance at that location revealed Dominica and Leonis Malburg leaving the house. Leonis Malburg drove to the office building on Leonis Boulevard, where he stayed most of the day. About 6:00 p.m., he returned to the Hudson Avenue home.
From the foregoing evidence, the magistrate reasonably concluded there was a fair probability that searches of the two locations would show that Leonis Malburg lived with his wife in the Hudson Avenue home in Los Angeles, rather than in the Leonis Boulevard suite in Vernon, which he used as his address for voting and as the basis for his election as mayor of Vernon.
Defendant complains of missing evidence, such as a candidate statement by Leonis Malburg and documents showing Leonis Malburg had identified his place of residence as Vernon. He also complains that Leonis Malburg had not voted in Vernon since November 2004 or run for office in Vernon since April 2002. He claims "there was no evidence that anyone had committed a crime." As the magistrate pointed out, however, the magistrate is looking only for "a fair probability . . . that a search would uncover wrongdoing" (People v. Kraft, supra, 23 Cal.4th at p. 1040; accord, Illinois v. Gates, supra, 462 U.S. at p. 238), "not a 'conclusive establishment' of the commission of a crime."
Defendant further contends that the scope of the search warrant was overbroad, amounting to a forbidden general search. The warrant authorized a search for "[a]ny articles of personal property tending to establish the identity of persons who have dominion and control over the premises including keys to the described location(s), rent receipts, mortgage statements, loan documents, savings accounts, bank records, utility bills, addressed mail, vehicle registrations, tax records, employment records, address books, gasoline receipts, movie rental receipts or grocery receipts."
We disagree with defendant's characterization of the scope of the search warrant. "The search authorized . . . was sufficiently particularized, permitting the officers to search for . . . papers and bills tending to show who occupied the [premises]. Similar dominion-and-control clauses in warrants have been upheld by the courts. [Citations.]" (People v. Nicolaus (1991) 54 Cal.3d 551, 574-575.) As the trial court pointed out, the types of documents listed in the search warrant are those which might be relied on to establish residency for purposes of proving election fraud. (See, e.g., Pierce v. Harrold (1982) 138 Cal.App.3d 415, 428-430.)
In sum, there was probable cause to search the Leonis Boulevard address for evidence of election fraud, and the warrant authorizing the search was not overbroad. The magistrate therefore did not err in denying defendant's suppression motion as to the April 4, 2005 search warrant. C. The June 15 and 21, 2006 Search Warrants
Defendant contends evidence seized pursuant to the June 15 and June 21, 2006 search warrants must be suppressed, because it is the product of the illegal search based on the April 4, 2005 warrant. Inasmuch as that search was legal, defendant's contention fails.
Defendant additionally contends the June 21, 2006 warrant was not supported by probable cause. In particular, he asserts that because Villamayor's affidavit contained "'no facts to dispute'" defendant's statement that the photographs uncovered in the first search of his Mansfield Avenue residence were of 19-year-old models, there was no probable cause for the second search warrant.
The magistrate responded to this assertion that "[s]urely a trained officer (whether or not his training involved child pornography) would have enough common sense to recognize a child versus an adult. The defendant argues that Villamayor had no training that would allow him to distinguish between a child and an adult who looks young for his age. However, the defendant himself said he thought the boys were nineteen. Clearly, then, the people depicted in the photographs were obviously younger rather than older looking. Whether the males were actually under age is another issue. Instead, the issue is whether there was a fair probability, or probable cause, for believing the people depicted in the photographs were under the age of eighteen."
In addition to the photographs which depicted males who appeared to be under 18 in sexual positions, there were videotapes labeled with male first names, transcripts of explicit chat room conversations and school yearbooks and other documentary evidence suggesting contact with underage males. The magistrate concluded Villamayor had shown a fair probability that a further search would reveal evidence of child pornography or other crimes.
In U.S. v. Battershell (9th Cir. 2006) 457 F.3d 1048, one of the cases cited by the magistrate, the court rejected a claim that it was necessary to include a photograph with the affidavit for a search warrant. It noted that while it may have "been preferable if the affiant . . . had included copies of the photographs in the warrant application . . . failing to include a photograph in a warrant application is not fatal to establishing probable cause. . . . Indeed, a judge may properly issue a warrant based on factual descriptions of an image. . . ." (Id. at p. 1053, citations omitted.) The court also rejected a claim that "the warrant application was insufficient to establish probable cause absent an attached copy of the photographs or 'some sort of meaningful confirmation' of the ages" of the subjects in the photographs. (Id. at p. 1054.) The court pointed out that it had "accepted, for purposes of an affidavit in support of a search warrant, the conclusory age estimates made by civilians and other untrained lay witnesses without demanding a detailed explanation of how the witnesses reached that conclusion." (Ibid.)
Defendant attempts to distinguish Battershell on the ground the photographs in that case were of a young, 8 to 10 year old, female, who was easily distinguishable from an adult. We see nothing in Battershell which limits it holding to cases in which the photograph is of a person who is obviously adult or underage. (Cf. In re James D. (1987) 43 Cal.3d 903, 916 [officer's estimation of age sufficient for investigation of truancy].)
U.S. v. Brunette (1st Cir. 2001) 256 F.3d 14, on which defendant relies, is inapposite. As noted in Battershell, the warrant application in Brunette was "supported by the affiant's statement that the photograph at issue depicted 'a prepubescent boy lasciviously displaying his genitals.'" (U.S. v. Battershell, supra, 457 F.3d at p. 1053.) It was the use of the "amorphous adjective[]," "'lascivious,'" which was insufficient to establish probable cause. (Ibid.) The affiant's estimation of the age of the person in the photograph was not at issue.
In U. S. v. Krupa (9th Cir., Sept. 30, 2011, No. 09-10396) ___ F.3d ___ , the court noted that in Battershell, it "held that a single photograph of a young girl between 8 and 10 standing nude in a bath tub [was] insufficient to establish probable cause." (Id. at p. ___.) The court "went on to hold that a second picture and the totality of the circumstances did establish probable cause." (Id. at p. ___.) In the case before it, the court found that one picture of a nude teenager with a link to a website featuring nude teenagers, plus the totality of the circumstances supported the finding of probable cause to support the issuance of a search warrant. (Id. at p. ___.) These circumstances included "the presence of 15 computers under the control of a civilian with no apparent ties to the military in a home on a military base in which children resided and for which the military police had received a report of child neglect." (Id. at p. ___.)
As in Krupa, the totality of the circumstances, together with the pornographic photographs of males who appeared to be under the age of 18, supported the magistrate's finding of probable cause. These circumstances included the presence of numerous videotapes, some labeled with male first names, and evidence suggesting at least two of the names on the videotapes belonged to males who were under 18 when they first came in contact with defendant, one of whom was a student at Daniel Murphy Catholic High School, where defendant was a teacher. There were also additional photographs of males who appeared to be under 18 years old in positions drawing attention to the genitals and printed transcripts of sexually explicit conversations that appeared to have taken place in internet chat rooms. In light of this evidence, "we cannot say that [the magistrate] could not reasonably conclude that there was 'a fair probability that contraband or evidence of a crime' would be found" in defendant's home. (U. S. v. Krupa, supra, ___ F.3d at p. ___.)
In sum, the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing. (People v. Kraft, supra, 23 Cal.4th at p. 1040.) The June 21, 2006 warrant was supported by probable cause, and the magistrate did not err in denying defendant's suppression motion.
DISPOSITION
The judgments are affirmed.
JACKSON, J.
We concur:
WOODS, Acting P. J.
ZELON, J.