Modification: People v. Wadleigh

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL BENJAMIN WADLEIGH,

Defendant and Appellant.

No. A165017

(San Mateo County Super. Ct. No. 20-SF-002550-A)

California Court of Appeal

First Appellate District

Division Four

Filed July 27, 2023

ORDER MODIFYING OPINION AND DENYING REHEARING; NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on July 12, 2023, be modified as follows.

1. On page 1, in the second paragraph, modify the sentence that starts with "Wadleigh further contends that the officer . . ." to delete ", Detective Donald DeRespini,". The modified sentence should read:

Wadleigh further contends that the officer who prepared the warrant affidavits recklessly and inaccurately described the first image.

2. On page 2, the first full paragraph, modify the last sentence that begins with "But while we find no error in this case . . ." to add the following after the word "cause": ", at least in cases where a determination that the images constitute prohibited material requires subjective judgment." The modified sentence should read:

But while we find no error in this case, the fact that the officer misdescribed one of the images (as the Attorney General acknowledges), and testified that he was taught not to include images of suspected child pornography in warrant applications, prompts us to explain why we agree with other courts that the preferable course is to include the actual images purporting to establish probable cause, at least in cases where a determination that the images constitute prohibited material requires subjective judgment.

3. On page 13, the first full paragraph, modify the sentence that begins with "We also agree that . . ." to add ", under the circumstances," after "that." The modified sentence should read:

We also agree that, under the circumstances, DeRespini should have included the actual images in the warrant applications.

4. On pages 17 to 18, the last paragraph on page 17 that continues onto page 18, modify the sentence that begins with "We reiterate that officers should . . ." to replace "particularly" with "at least." The modified sentence should read:

We reiterate that officers should, whenever possible, include images of suspected child pornography in warrant applications, at least where, as here, a subjective evaluation is necessary to determine whether the images' content is prohibited.

There is no change in the judgment.

The petition for rehearing, filed July 25, 2023, is denied.

STREETER, Acting P. J.