People v. Raby CA6

Opinion

Filed 8/27/26 P. v. Raby CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H053719 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C2109474)

v.

KEITH CHARLES RABY,

Defendant and Appellant.

Defendant Keith Charles Raby appeals from a judgment entered after conviction following a no contest plea. Appointed counsel for Raby filed a brief asking this court to review the record to determine whether there are any arguable issues. (See People v. Wende (1979) 25 Cal.3d 436 (Wende).) Raby was advised of the right to file a supplemental brief but has not responded. Finding no arguable error that would result in a disposition more favorable to Raby, we affirm the judgment. I. FACTS AND PROCEDURAL BACKGROUND1 On or about March 5, 2021, San Jose Police Department Detective Christopher McTiernan was connected to a peer-to-peer network on the internet. McTiernan located a host computer on the network that was sharing suspected child pornography files. McTiernan viewed two video files that he determined constitute child pornography that had been shared by the host computer to the network. Further investigation revealed that the IP address associated with the computer sharing child pornography was used by a Comcast subscriber named Thomas Gregory Raby, and the address of the account was a house on Clydelle Avenue in San Jose. McTiernan received a judicial search warrant to search the Clydelle Avenue house, a car, and Thomas Gregory Raby. On May 27, 2021, officers from the San Jose Police Department executed the search warrant. Four individuals, Thomas Raby, his sons Matt Raby and defendant Keith Raby, and his daughter were present at the house. Inside the bedroom occupied by Keith Raby, officers found a “ ‘thumb drive’ ” containing child pornography. Keith Raby (hereafter Raby) was found with over 200 images and 90 videos of child pornography. Raby admitted downloading and possessing child pornography. The district attorney charged Raby by information with offering to distribute, distributing or exchanging matter depicting a person under age 18 personally engaging in or simulating sexual conduct (Pen. Code,2 § 311.1, subd. (a); count 1); and possessing matter depicting a person under age 18 engaging in or simulating sexual conduct (§ 311.11, subd. (a); count 2).

1 Because Raby waived his right to preliminary hearing, these facts are taken from the probation report prepared for his sentencing and the search warrant affidavit. 2 All further unspecified statutory references are to the Penal Code.

2 Raby filed a motion to traverse the search warrant and to suppress evidence pursuant to section 1538.5, subdivision (i). Raby argued that the search warrant affidavit lacked a nexus between the “ ‘host computer’ ” eventually linked to Raby’s address and the files of child pornography viewed by Detective McTiernan. He contended the search warrant affidavit did not establish probable cause to search Raby’s residence. Raby also asserted that McTiernan’s investigation was faulty because it did not consider whether individuals not residing in the Raby residence could access the wireless network whose IP address was revealed through the investigation. Raby requested that the trial court quash the warrant as lacking in probable cause, suppress any evidence obtained in reliance on the search warrant, or, in the alternative, hold an evidentiary hearing on representations made in the affidavit pursuant to Franks v. Delaware (1978) 438 U.S. 154. The district attorney opposed Raby’s motion, arguing the search warrant affidavit was supported by probable cause. On December 16, 2024, the trial court held an evidentiary hearing on Raby’s motion to quash and traverse the search warrant. The court heard testimony offered by Raby from Vishal Sharma, a “networking technologist.” Sharma testified as an expert “in the area of networking technology, peer-to- peer networks, BitTorrent, and netstat.” Sharma testified that Detective McTiernan’s affidavit does not explicitly state that McTiernan downloaded two suspected child pornography files from the IP address associated with Raby’s house. Sharma testified that the IP address is associated with the wireless network router in Raby’s house, not any particular computer located in the house. In addition, the wifi network from Raby’s house could have reached other homes in the neighborhood. Based on the information in McTiernan’s affidavit, McTiernan could not have known how many electronic 3 devices were using the modem attached to the IP address associated with Raby’s house. Before this case, Sharma had never before reviewed a search warrant. Sharma had no training or experience in how the police conduct investigations using peer-to-peer networks. Following Sharma’s testimony, both sides presented argument. Raby contended the affidavit contained false information. For example, the affidavit stated Detective McTiernan was connected to the host computer, whereas he was actually connected to a router. Further, the affidavit contained a material omission by failing to state that multiple electronic devices could have been connected to the router. The district attorney argued that the information in McTiernan’s affidavit met the probable cause standard. After hearing argument, the trial court found that there were no false or misleading statements in Detective McTiernan’s affidavit. The court additionally found that the information provided to the court in the affidavit was supported by probable cause, and the affidavit was sufficient to establish probable cause. The court agreed that the “request to search was not perfect in delineating every detail and every step” in the investigation. Nevertheless, the court found that the affidavit provided “probable cause to believe that illegal images were being downloaded from the house from a computer or device using an identified IP address connected to a Comcast account in the name of Thomas Raby, who lived in the home.” While the information might not be sufficient to “establish a conviction,” it did “establish probable cause.” The court denied Raby’s motion to quash, traverse, and suppress evidence.

4 On June 10, 2025, Raby pleaded no contest to both charges. The trial court indicated a maximum sentence of 12 months in the county jail, with no state prison. The district attorney objected to the court’s indicated sentence. The trial court sentenced Raby on September 23, 2025. The court suspended imposition of sentence and placed Raby on two years of formal probation with conditions, including eight months in custody, which the court permitted him to serve “on any program that probation deems appropriate, including electronic monitoring.” The court also imposed electronic search conditions, ordered Raby to complete a sex offender management program, ordered other restrictions regarding contact with children, and ordered Raby to register as a sex offender under section 290. The court awarded 1 day of actual custody credit. The trial court stayed the restitution fund fine and the $300 “fine plus penalty assessment.” The court struck all other fees. Raby timely appealed. Raby’s notice of appeal states that his appeal is based on the denial of a motion to suppress evidence under section 1538.5. II. DISCUSSION We have reviewed the record under Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to Raby. We therefore affirm the judgment. III. DISPOSITION The judgment is affirmed.

5 ______________________________________ Danner, J.

WE CONCUR:

____________________________________ Greenwood, P. J.

____________________________________ Grover, J.

H053719 People v. Raby