Stephanie Lazarus Criminal Appeal - Appellant's Opening Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION FOUR

!"# %#&%'# &( !"# )!*!# &( |
+*',(&-.,* |
| B241172
PlaintiII and Respondent, |
| (Los Angeles County
Vs. | Superior Court
| Case No. BA357423)
)!#%"*.,# '*/*-0)1 |
|
DeIendant and Appellant. |
|

ON APPEAL FROM THE SUPERIOR COURT,
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES,
THE HONORABLE ROBERT PERRY, PRESIDING

*%%#''*.!2) &%#.,.3 4-,#(

DONALD R. TICKLE
State Bar No. 142951
P.O. Box 400
Volcano, CA 95689-0400
(209) 296-4536 (voice & Iacsimile)
E-mail: drtvolcano.net

Attorney Ior DeIendant-Appellant
STEPHANIE LAZARUS
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
ii

!"#$% '( )'*!%*!+

STATEMENT OF APPEALABILITY 1

STATEMENT OF THE CASE 1

STATEMENT OF FACTS 2

I. Introduction. 2

II. The Prosecution Case. 4

A. The 1986 Homicide and Initial Investigation. 4

B. The Re-Opened Investigation in 2004-2009. 8

C. Additional Forensic Evidence. 14

1. Fingerprint Evidence. 14

2. DNA Evidence. 15

3. Forensic Computer Searches. 18

D. Firearms Evidence. 18

E. Crime Scene Analysis. 22

II. The DeIense Case. 24

A. Homicide, Background, and Firearm Evidence. 24

B. Character Witnesses. 27

ARGUMENT 28

I. The Trial Court Erred By Denying Appellant`s Motion To Dismiss The
Case Because 23 Years OI Pre-Accusation Delay Violated Her Right
To Due Process OI Law. 28
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
iii

!"#$% '( )'*!%*!+

A. Introduction. 28

B. Factual And Procedural Background. 29

1. The BrieIing Below. 29

2. Hearing and Ruling by the Trial Court. 33

C. Standard oI Review. 36

D. The Trial Court Erred In Finding That The Truth-In-Evidence
Provision OI The CaliIornia Constitution Imposed Federal
Standards For Dismissal. 37

1. !"#$%&'" and Related Cases. 37

2. Under Article I, Section 24, The Due Process Clause oI
the CaliIornia Constitution Must Be Given Independent
Force And EIIect. 40

E. The Trial Court Erred In Finding JustiIiable Delay In This Case
Based On ($#)*%. 44

F. The Delay Was Prejudicial To The deIense. 48

G. Conclusion. 51

II. The Trial Court Erred By Denying Appellant`s Motion To Quash The
Search Warrants And To Suppress Evidence. 52

A. Introduction. 52


1. The Search Warrants And Property Seized. 53

2. Issues Raised Below. 56
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
iv

!"#$% '( )'*!%*!+

3. The Trial Court`s Rulings. 57


D. Fourth Amendment Standards. 59

E. The InIormation In The AIIidavit Was Too Stale To Provide
Probable Cause To Search Appellant`s Residence And Property
23 Years AIter The Crime. 61

F. Detective Stearns Opinion Could Not Substitute For the
Absence OI Facts Connecting Appellant`s Current Residence
And Electronic Devices To The 1986 Crime. 66

G. The Search Warrant Was Also Overbroad In Seeking To Search
All OI Appellant`s Computers Without Evidence That They
Existed At Times Relevant To The Crime. 68

H. The Trial Court Erred In Finding That Good Faith Saved A
Search Without Probable Cause And Overbroad. 70

I. Admission OI The Evidence From The UnlawIul Searches Was
Prejudicial To Appellant`s DeIense. 73

1. Other Evidence Shows That The Prosecution`s Motive
Theory Was Flawed. 75

2. As To The DNA Evidence, The Prosecution Erroneously
Equated Random Match Probability With Source
Attribution. 76

3. There Was Substantial Evidence That The Crime Was
Committed When Rasmussen Surprised Person(s)
Burglarizing Her Home. 80

III. The Trial Court Erred By Denying Appellant`s Motion To Traverse
The Search Warrants And To Hold A Franks Hearing. 82
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
v

!"#$% '( )'*!%*!+

A. Introduction. 82


1. Evidence ProIIered and Arguments Made By Appellant
and The Prosecution. 83

2. The trial court`s ruling. 84

C. Appellant Made A SuIIicient Showing For A !"#$%& Hearing
And Without The Flaws In The AIIidavit The Police Lacked
Probable Cause To Search In June 2009. 85

D. The Trial Court Erred In Finding That The Good Faith
Exception To The Exclusionary Rule Applied. 88

IV. The Trial Court Erred By Admitting Evidence OI Appellant`s
Interrogation Because Her Statements Were Legally Compelled. 89

A. Introduction. 89

B. Procedural Background. 90

1. BrieIing Below. 90

2. Hearing and Ruling by the Trial Court. 92

C. The Standard oI Review. 93

D. Because Appellant As A Police OIIicer Was Compelled To
Answer Questions At Pain OI Punitive Action She Was Entitled
To Automatic Use Immunity For Her Statements. 94

1. Case Law Shows That A Police OIIicer Has A Duty To
Answer Questions Even Though The Answers May
Show Involvement In Criminal Activity. 96
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
vi

!"#$% '( )'*!%*!+

2. A Police OIIicer Also Has A Statutory Duty To Answer
Questions Or Risk Punitive Action. 98

E. Appellant Was Compelled To Answer Questions Regardless OI
Whether LAPD Took Administrative Action. 101

F. Because OI The Legal Compulsion To Answer Questions,
Appellant`s BelieI That She Was Required To Do So Was
Objectively Reasonable And She Was Entitled To Use
Immunity For Her Answers. 104

G. The Error In Admitting The Evidence OI Appellant`s
Interrogation Was Prejudicial To her DeIense. 107

V. The Trial Court Erred By Denying The DeIense Request To Hold A
Kelly-Frye Hearing And Admitting Evidence OI Low Copy DNA
Testing Using MiniFiler. 108

A. Introduction. 110

B. The Technical Issues Raised Below. 110

C. Hearing and Ruling by the Trial Court. 114

D. The MiniFiler Evidence Presented At Trial. 115

E. Standard oI Review. 116

F. Appellant Made A SuIIicient OIIer OI ProoI To Hold A Prong
One Kelly Hearing And The Trial Court Erred In Relying On
Selective Publications To Deny A Hearing. 117

G. The Trial Court Erred By Relying On !"## To Deny A Prong
One Hearing On MiniFiler Testing OI Low Copy DNA. 122

H. The Trial Court Also Erred By Denying Appellant A Prong
Three Kelly Hearing. 126
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
vii

!"#$% '( )'*!%*!+

I. Admission oI the MiniFiler Test Results Violated Appellant`s
Due Process Rights. 127

1. Cognizability. 128

2. The Merits. 129

J. Admission OI The MiniIiler Evidence Was Prejudicial To
Appellant`s DeIense. 130

VI. The Trial Court Erred By Excluding Evidence OI Third-Party
Culpability. 133

A. Introduction. 133

B. Factual and Procedural Background. 133

1. Litigation at Trial. 133

2. OIIer oI ProoI. 136

3. The Trial Court`s Ruling. 137


D. The Trial Court Erred In Ruling That Evidence Code Section
1101(b) Standards Did Not Apply To Admission OI Third-Party
Culpability Evidence. 140

E. Applied Here, Evidence Code Section 1101 Required
Admission OI The Evidence OI The Other Burglary And
Assault With A .38 Caliber Revolver. 142

F. The Hall Line OI Cases Did Not Preclude Admission OI
Evidence Meeting Evidence Code Section 1101(b) Standards
For ProoI OI Identity. 147
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
viii

!"#$% '( )'*!%*!+

G. The Exclusion OI The Evidence Violated Appellant`s Due
Fundamental Right To Present A DeIense. 148

H. Reversal Is Required. 149

VII. The Trial Court Violated State And Federal Law By Denying Appellant
An Opportunity To Cross-Examine The Prosecution`s Crime Scene
Analyst About Other Burglary Evidence. 150

A. Background. 150

B. The Standard oI Review. 152

C. Evidence Code Section 352 Did Not Bar Cross-Examination
About Other Burglaries. 152

D. The Restriction On Cross-Examination Violated Appellant`s
State And Federal ConIrontation Rights. 155

E. Prejudice Is Present Because The Prosecution Called SaIarik To
Bless Its Theory OI The Case. 156

VIII. Due Process Requires Reversal OI The Judgment Because OI The
Cumulative EIIect OI The Trial Errors. 158

CONCLUSION 159

WORD COUNT CERTIFICATE 160

PROOF OF SERVICE 161

T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
!"

!"#$% '( ")!*'+,!,%-

(./.012 314.45

Ake v. Oklahoma $%&'() *+, -./. 0'......................................................................... %0%

Ari:ona v. Fulminate $%&&%) *&& -./. 1+& ................................................................ %%,

Baltimore Citv Dept. Social Services v. Bouknight $%&&,) *&2 -./. (*& .................... &'

Barker v. Wingo $%&+1) *,+ -./. (%* .......................................................................... (,

Bruton v. United States $%&0') 2&% -./. %12 ............................................................. %22

Bumper v. North Carolina $%&0') 2&% -./. (*2 .......................................................... 01

California v. Trombetta $%&'*) *0+ -./. *+& .............................................................. *,

Chambers v. Maronev $%&+,) 2&& -./. *1 .................................................................. +(

Chambers v. Mississippi $%&+2) *%, -./. 1'* ................................... %(13 %(23 %013 %02

Chapman v. California $%&0+) 2'0 -./. %' .......................................................... passim

Conde v. Henrv $&45 6!7. 1,,,) %&' 8.29 +2* .......................................................... %(2

Cov v. Iowa $%&'') *'+ -./. %,%1 ............................................................................. %(&

Crane v. Kentuckv $%&'0) *+0 -./. 0'2 .................................................................... %(1

Davis v. Alaska $%&+*) *%( -./. 2,' ......................................................... %(&3 %0,3 %0%

Delaware v. Jan Arsdall $%&'0) *+( -./. 0+2 .................................................. %0,3 %0%

Doggett v. United States $%&&1) (,( -./. 0*+ ....................................................... 2+3 (%

Erwin v. Price $%%45 6!7.%&'() ++' 8.19 00' ............................................................ %,&

Estelle v. Smith $%&'%) *(% -./. *(* ......................................................................... %21
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
x

!"#$% '( ")!*'+,!,%-

Franks v Delaware (1978) 438 U.S. 1 ....................................................... 85, 86, 88, 91

Frve v. United States (D.C. Cir. 1923) 293 F. 1013 .................................................. 111

Gardner v. Broderick, Police Commissioner (1968) 392 U.S. 273 ............................. 97

Garritv v. New Jersev (1967) 385 U.S. 493 .......................................................... passim

Go-Bart Importing Co. v. U.S. (1931) 282 U.S. 344 ................................................... 61

In re Grand Jurv Subpoenas Dated Dec. 10, 1987 (9th Cir. 1991) 926 F.2d 847 ....... 71

Gulden v. McCorkle (5th Cir. 1982) 680 F.2d 1070 .................................................. 109

Hester v. Citv of Milledgeville (11th Cir.1985) 777 F.2d 1492 ................................. 109

Huppert v. Citv of Pittsburg (9th Cir. 2009) 574 F.3d 696 ................................ 101, 108

Illinois v. Gates (1983) 462 U.S. 213............................................................... 62, 68, 72

Kvllo v. United States (2001) 533 U.S. 27 ................................................................... 62

Lefkowit: v. Turlev, et al. (1973) 414 U.S. 70 ............................. 98, 102, 102, 103, 105

Mapp v. Ohio (1961) 367 U.S. 643 ........................................................................ 63, 75

Marvland v. Garrison (1987) 480 U.S. 79 ................................................................... 71

McDaniel v. Brown (2010) 558 U.S. 120..................................................................... 82

McKinnev v. Rees (9
th
Cir. 1993) 993 F.2d 1378 ....................................................... 133

Miranda v. Ari:ona (1965) 384 U.S. 436..................................................................... 92

Molina ex rel. Molina v. Cooper (7th Cir. 2003) 325 F.3d 963 ................................... 62

Nathanson v. United States (1933) 290 U.S. 41 .......................................................... 69
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
xi

!"#$% '( ")!*'+,!,%-

Olden v. Kentuckv (1988) 488 U.S. 227..................................................................... 161

Pavton v. New York (1980) 445 U.S. 573 .................................................................... 62

Pavton v. Woodward (9th Cir. 2003) 346 F.3d 1204 ........................................... 77, 154

SGRO v. United States (1932) 287 U.S. 206.......................................................... 63, 73

Sher v. U.S. Department of Jeterans Affairs (1st Cir. 2007) 488 F.3d 489 ............... 108

Sims v. Georgia (1967) 385 U.S. 538 .......................................................................... 42

Strickland v. Washington (1984) 466 U.S. 668 .................................. 132, 133, 134, 152

Sullivan v. Louisiana (1993) 508 U.S. 275 ................................................................ 153

Tavlor v. Kentuckv (1978) 436 U.S. 478 .................................................................... 162

Texas v. Brown (1983) 460 U.S. 730 ........................................................................... 68

Thomas v. Hubbard (9th Cir. 2001) 273 F.3d 1164 ............................................. 77, 154

Uniformed Sanitation Men v. Commissioner of Sanitation (1968) 392 U.S. 280 ........ 98

United States v. Baglev (1985) 473 U.S. 667 ............................................................ 160

United States v. Chischillv (9th Cir. 1994) 30 F.3d 1144 ............................................ 81

United States v. Colklev (4th Cir. 1990) 899 F.2d 297 ................................................ 89

United States v. Davis (D. Md. 2009) 602 F.Supp.2d 658 ......................................... 116

United States v. Grant (9th Cir. 2012) 682 F.3d 827 ............................................. 63, 67

United States v. Harris (1971) 403 U.S. 573 ......................................................... 64, 69

United States v. Kow (9th Cir. 1995) 58 F.3d 423 ....................................................... 71
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
xii

!"#$% '( ")!*'+,!,%-

United States v. Leon (1984) 468 U.S. 897 ........................................................... passim

United States v. Marion (1971) 404 U.S. 307 .............................................................. 50

United States v. Miguel (9th Cir. 2003) 38 F.3d 995 ................................................. 154

United States v. Pavton (2009) 573 F.3d 859 .............................................................. 71

United States v. Schult: (6th Cir. 1994) 14 F.3d 1093 ................................................. 69

United States v. Smith (5th Cir. 1979) 602 F.2d 694 ................................................. 132

United States v. Smith-Baltither (9th Cir. 2005) 424 F.3d 913 .................................. 153

United States v. Thomas (9th Cir. 2000) 211 F.3d 1186 .............................................. 69

United States v. Jalen:uela-Bernal (1981) 458 U.S. 858 ...................................... 39, 40

United States v. Washington (9th Cir. 1986) 797 F.2d 1461 ....................................... 75

United States v. Zavas-Dia: (1st Cir.1996) 95 F.3d 105 ............................................. 73

United States v. Zimmerman (3rd Cir. 2002) 277 F.3d 426 ......................................... 69

Washington v. Texas (1967) 388 U.S. 14 ................................................................... 153

White v. Illinois (1992) 502 U.S. 346......................................................................... 133

Wong Sun v. United States (1963) 371 U.S. 471 ......................................................... 75

-./.0 1/2023

Alexander v. Superior Court (1973) 9 Cal.3d 387 ....................................................... 63

Automobile Equitv Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 ...................... 42

Belli::i v. Superior Court (1974) 12 Cal.3d 33 ............................................................ 40
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
xiii

!"#$% '( ")!*'+,!,%-

Bowens v. Superior Court (Alameda Countv) (1991) 1 Cal.4th 36 ............................. 44

Christal v. Police Commission of Citv and Countv of San Francisco et al.
(1939) 33 Cal.App.2d 564 ................................................................ 93, 99, 100, 108

Citv of Los Angeles v. Superior Court (1997) 57 Cal.App.4th 1506 ......................... 106

Commonwealth v. Lewis (2012) 81 Mass.App.Ct. 119 .............................................. 150

Delaware v. Pennell (1989) 584 A.2d 513 .................................................................. 49

Fichera v. State Personnel Board (1963) 217 Cal.App.2d 613 ................................. 100

Fowler v. Superior Court (1984) 162 Cal.App.3d 215 .................................... 34, 51, 52

Hemler v. Superior Court (1975) 44 Cal.App.3d 430.................................................. 63

Jones v. Superior Court (1970) 3 Cal.3d 734 .............................................................. 52

Kavanaugh v. West Sonoma Countv Union High School District (2003) 29
Cal.4th 911............................................................................................................ 143

In re Lance W. (1985) 37 Cal.3d 873 ........................................................................... 43

In re Scott (2003) 29 Cal.4th 783 .................................................................. 38, 131,143

Lvbarger v. Citv of Los Angeles (1985) 40 Cal.3d 822 .............................. 101, 102, 105

Pasadena Police Officers v. Citv of Pasadena (1990) 51 Cal.3d 564 ......... 49, 103, 105

Pennev v. Superior Court (1972) 28 Cal.App.3d 941 .................................................. 53

People v. Abile: (2007) 41 Cal.4th 472...................................................................... 145

People v. Alcala (1992) 4 Cal.4th 742 ....................................................................... 138

People v. Alexander (2010) 49 Cal.4th 846 ................................................................. 38
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
xiv

!"#$% '( ")!*'+,!,%-

People v. Archerd (1970) 3 Cal.3d 615.................................................................. 36, 53

People v. Asburv (1985) 173 Cal.App.3d 362 ........................................................... 132

People v. Axell (1991) 235 Cal.App.3d 836........................................................... 35, 50

People v. Barnev (1992) 8 Cal.App.4th 798 .............................................. 120, 130, 131

People v. Barrick (1982) 33 Cal.3d 115 .................................................................... 153

People v. Beamon (1978) 8 Cal.3d 625.............................................................. 144, 145

People v. Benfamin (1999) 77 Cal.App.4th 264 .......................................................... 88

People v. Bovsen (2007) 165 Cal.App.4th 761 ...................................................... 44, 53

People v. Bradford (1997) 15 Cal.4th 1229 ................................................................. 88

People v. Cahill (1993) 5 Cal.4th 478........................................................................ 110

People v. Camarella (1991) 54 Cal.3d 592.................................................................. 73

People v. Carrington (2009) 47 Cal.4th 145.............................................. 62, 65, 66, 90

People v. Catlin (2001) 26 Cal.4th 81.............................................................. 45, 46, 50

People v. Chance (2008) 44 Cal.4th 1164 ................................................................. 150

People v. Chatman (2006) 38 Cal.4th 344 ................................................................. 157

People v. Chave: (1980) 26 Cal.3d 334 ...................................................................... 43

People v. Coleman (1985) 38 Cal.3d 69 .................................................................... 157

People v. Collins (1986) 42 Cal.3d 378 ..................................................................... 153

People v. Cook (1978) 22 Cal.3d 67 ............................................................................ 65
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
xv

!"#$% '( ")!*'+,!,%-

People v. Cooper (1991) 53 Cal.3d 771 ............................................................. 127, 156

People v Cowan (2010) 50 C4th 401, 470 ......................................................... 134, 136

People v. Cromer (2001) 24 Cal.4th 889 ........................................................... 131, 143

People v. Davis (1995) 10 Cal.4th 463 ...................................................................... 144

People v. Doolin (2009) 45 Cal.4th 390 .................................................................... 158

People v. Dunn-Gon:ale: (1996) 47 Cal.App.4th 899................................................. 38

People v. Edelbacher (1989) 47 Cal.3d 983 .............................................................. 138

People v. Elliott (2012) 53 Cal.4th 535...................................................................... 157

People v. Epps (1986) 182 Cal.App.3d 1102 ............................................................... 40

People v. Farmer (1989) 47 Cal.3d 888 ............................................................ 145, 151

People v. Glaser (1995) 11 Cal.4th 354 ....................................................................... 61

People v. Gon:ales (2011) 51 Cal.4th 894 ................................................................. 158

People v. Gon:ale: (1990) 51 Cal.3d 1179 ............................................................ 64, 65

People v. Guerra (2006) 37 Cal.4th 1064 .................................................................. 121

People v. Hall (1986) 41 Cal.3d 826..................................................................... passim

People v. Hannon (1977) 19 Cal.3d 588 ...................................................................... 44

People v. Haston (1968) 69 Cal.2d 233 ..................................................... 144, 145, 146

People v. Henderson (2003) 107 Cal.App.4th 769 ............................................ 128, 129

People v. Hernande: (1994) 30 Cal.App.4th 919 ........................................................ 73
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
xvi

!"#$% '( ")!*'+,!,%-

People v. Hill (2001) 89 Cal.App.4th 48 .............................................................. passim

People v. Hill (1984) 37 Cal.3d 491 ...................................................................... 38, 50

People v. Hill (1998) 17 Cal.4th 800 ................................................................... 52, 162

People v. Hirata (2009) 175 Cal.App.4th 1499 ......................................... 63, 64, 74, 90

People v. Hitch (1974) 12 Cal.3d 641 .......................................................................... 40

People v. Houslev (1992) 6 Cal.App.4th 947............................................................. 134

People v. Hulland (2003) 110 Cal.App.4th 1646................................................... 63, 74

People v. Jackson (2008) 163 Cal.App.4th 313 ......................................................... 113

People v. Kellv (1976) 17 Cal.3d 24 ..................................................................... passim

People v. Kiihoa (1960) 53 Cal.2d 748 ........................................................................ 40

People v. Kirkpatrick (1972) 7 Cal.3d 480 .................................................................. 40

People v. Kraft (2000) 23 Cal.4th 978 ......................................................................... 61

People v. Leahv (1994) 8 Cal.4th 587 ........................................................................ 129

People v. Ledesma (2006) 39 Cal.4th 641 ................................................................. 158

People v. Ledesma (1987) 43 Cal.3d 171 .................................................................. 132

People v. Lope: (1988) 198 Cal.App.3d 135 ......................................................... 41, 42

People v. Lucas (1995) 12 Cal.4th 415 ........................................................................ 52

People v. Luttenberger (1990) 50 Cal.3d 1 .................................................................. 88

People v. Lvnch (2010) 50 Cal.4th 693 .............................................. 146, 147, 148, 152
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
xvii

!"#$% '( ")!*'+,!,%-

People v. Maestas (1988) 204 Cal.App.3d 1208 ......................................................... 73

People v. Martine: (2000) 22 Cal.4th 750 ............................................................. 37, 38

People v. McDermott (2002) 28 Cal.4th 946 ............................................................ 131

People v. McWhorter (2009) 47 Cal.4th 318 ............................................................. 145

People v. Mesa (1975) 14 Cal.3d 466 .......................................................................... 64

People v. Miller (1990) 50 Cal.3d 954 ....................................................................... 146

People v. Minifie (1996) 13 Cal.4th 1055 .......................................................... 111, 136

People v. Minfares (1979) 24 Cal.3d 410 .................................................................... 75

People v. Mirenda (2009) 174 Cal.App.4th 1313 .................................................. 50, 53

People v. Morganti (1996) 43 Cal.App.4th 643................................. 113, 121, 122, 131

People v. Nelson (2008) 43 Cal.4th 1242 ............................................................. passim

People v. Pearson (2013) 56 Cal.4th 393 .................................................................. 158

People v. Pellegrin (1977) 78 Cal.App.3d 913 ............................................................ 69

People v. Pinedo (2005) 128 Cal.App.4th 968 ............................................................ 53

People v. Pi:arro 2013 Cal. App. LEXIS 402 ........................................................... 112

People v. Pressev (2002) 102 Cal.App.4th 1178 ......................................................... 69

People v. Ramire: (2006) 39 Cal.4th 398 .................................................. 148, 149, 152

People v. Ramos (1984) 37 Cal.3d 136 ................................................................ 43, 133

People v. Reeves (2001) 91 Cal.App.4th 14............................................................... 129
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
xviii

!"#$% '( ")!*'+,!,%-

People v. Robles (2000) 23 Cal.4th 789 ....................................................................... 61

People v. Rovbal (1998) 19 Cal.4th 481 .................................................................... 111

People v. Rundle (2008) 43 Cal.4th 76 ...................................................................... 121

People v. Sam (1969) 71 Cal.2d 194 .......................................................................... 157

People v. Schader (1969) 71 Cal.2d 761.................................................................... 152

People v. Scheid (1997) 16 Cal.4th 1 ........................................................................... 42

People v. Scott (2011) 52 Cal.4th 452................................................ 142, 143, 146, 152

People v. Smith (2007) 40 Cal.4th 483 ........................................................................ 96

People v. Soto (1999) 21 Cal.4th 512 ................................................................ 122, 123

People v. Stanlev (1995) 10 Cal.4th 764 .................................................................... 157

People v. Strit:inger (1983) 34 Cal.3d 505 ........................................................ 134, 159

People v. Tafova (2007) 42 Cal.4th 147 .................................................................... 132

People v. Ulloa (2002) 101 Cal.App.4th 1000............................................................. 71

People v. Jalencia (1990) 218 Cal.App.3d 808.................................................... passim

People v. Jenegas (1998) 18 Cal.4th 47 ............................................ 119, 127, 130, 133

People v. Waidla (2000) 22 Cal.4th 690 .................................................................... 145

People v. Walker (2006) 139 Cal.App.4th 782 .......................................................... 143

People v. Walker (1988) 47 Cal.3d 605 ..................................................................... 146

People v. Watson (1956) 46 Cal.2d 818 ..................................................................... 133
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
xix

!"#$% '( ")!*'+,!,%-

People v. Williams (1967) 252 Cal.App.2d 147......................................................... 150

People v. Willis (2002) 28 Cal.4th 22 .......................................................................... 91

People v. Woods (2006) 146 Cal.App.4th 106 ........................................................... 162

Raven v. Deukmefian (1990) 52 Cal.3d 336 .................................................... 43, 44, 45

Richardson v. Superior Court (2008) 43 Cal.4th 1040 ...................................... 134, 160

Riverside Countv Sheriffs Dept. v. Zigman (2008) 169 Cal.App.4th 763 ......... 101, 108

Scherling v. Superior Court (1978) 22 Cal.3d 493 ............................................... 44, 45

Spielbauer v. Countv of Santa Clara (2009) 45 Cal.4th 704 ..................................... 103

State v. Bodner (2011) 261 P.3d 979 ......................................................................... 150

State v. Perrv (2009) 146 N.M. 208 ........................................................................... 150

State v. Woodall (1989) 182 W.Va. 15 .................................................................. 35, 49

S:maciar: v. State Personal Board (1978) 79 Cal.App.3d 904 ................................. 100

Titus v. Civil Serv. Commission (1980) 130 Cal.App.3d 357 .................................... 100

Williams v. Citv of Los Angeles (1988) 47 Cal.3d 195 ...................................... 103, 105

./01232423/015

Cal. Const., Art. I, 7(a) ....................................................................................... passim

Cal. Const., Art. I, 15 ......................................................................................... passim

Cal. Const., Art. I, 24 ................................................................................................ 42

Cal. Const., Art. I, 28(I)(2)................................................................ 29, 34, 35, 39, 94
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
xx

TABLE OF AUTHORITIES

U.S. Const., 5
th
Amend.......................................................................................... !"##$%

U.S. Const., 6
th
Amend.......................................................................................... !"##$%

U.S. Const., 14
th
Amend........................................................................................ !"##$%

Federal Statutes & Regulations:

38 C.F.R. 0.735-12 .................................................................................................. 108

18 U.S.C. 922(g)(1) ................................................................................................... 67

State Statutes:

Evid. Code, 352 .................................................................................................. !"##$%

Evid. Code, 354 ............................................................................................... 120, 121

Evidence Code, 402 ................................................................................ 112, 118, 130

Evid. Code, 1101. ............................................................................................ 137, 139

Gov. Code, 3300 ................................................................................................ !"##$%

Gov. Code, 3304 ..................................................................................................... 102

Gov. Code, 3307 ..................................................................................................... 100

Health & SaIety Code, 11351 ................................................................................... 39

Penal Code, 187(a) ...................................................................................................... 1

Penal Code, 189 .......................................................................................................... 1

Penal Code, 12022.5. .................................................................................................. 1

Penal Code, 296 .......................................................................................................... 2
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
xxi

!"#$% '( ")!*'+,!,%-

'./01 "2./314.4056

CaliIornia Rules oI Court, Rule 8.360 (b) .................................................................. 164

Bright, et al., Determination of the Jariables Affecting Mixed MiniFiler DNA
Profiles (November 2011) 5 ................................................................................. 124

Budowle et al., Low Copv Number -- Consideration and Caution, Proc. 12th
International Symposium on Human IdentiIication (2001) .................................. 123

Butler, Forensic DNA Tvping, Second Edition. Biologv, Technologv and
Genetics of STR Markers (Academic Press 2005) ................................................ 123

Koehler, Error and Exaggeration in the Presentation of DNA Evidence at Trial
(1993) 34 Jurimetrics 21 ......................................................................................... 81

Richard Lempert, Some Caveats Concerning DNA as Criminal Identification
Evidence, 13 Cardozo L.Rev. 303, 305-06 ............................................................. 81

Thompson, Mueller, and Krane, Forensic DNA Statistics. Still Controversial In
Some Cases (2012) 36 .......................................................................................... 124

T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
1

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT, DIVISION FOUR

!"# %#&%'# &( !"# )!*!# &( |
+*',(&-.,* |
| B241172
PlaintiII and Respondent, |
| (Los Angeles County
Vs. | Superior Court
| Case No. BA357423)
)!#%"*.,# '*/*-0)1 |
| *%%#''*.!2) &%#.,.3
DeIendant and Appellant. | 4-,#(
|

)!*!#5#.! &( *%%#*'*4,',!6
Appellant Stephanie Lazarus ('appellant) appeals Irom the judgment oI
the Los Angeles County Superior Court, the Honorable Robert Perry presiding.
A jury convicted appellant oI Iirst degree murder with personal use oI a handgun.
(Penal Code, 187, subd. (a), 189, 12022.5, subd. (a) |subsequent reIerences to
statutes are to the Penal Code unless noted otherwise|.) The court imposed a
sentence oI 27 years-to-liIe.
This appeal is Irom a Iinal judgment that Iinally disposes oI all oI the
issues between the parties. ( 1235, 1237.)
)!*!#5#.! &( !"# +*)#
On December 18, 2009, the Los Angeles County District Attorney
charged appellant with one count, the willIul, deliberate and premeditated
murder oI Sherri Rasmussen on or about February 24, 1986. ( 187, subd. (a)
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
2

4 CT 638.) The inIormation Iurther alleged that appellant personally used a
Iirearm in the commission oI the oIIense. (12022.5, subd. (a); 4 CT 638.)
Appellant pled not guilty. (4 CT 640; 1 RT A-2.)
The trial court denied appellant`s motion to dismiss the case on due
process grounds because oI prejudicial pretrial delay oI 23 years. (1 CT 27-30,
178.)
On February 2, 2012, the jury was sworn and it Iound appellant guilty
as charged on March 8, 2012. (7 CT 1358, 1549, 1552-53.)
On May 11, 2012, the court sentence appellant to 25 years-to-liIe Ior
Iirst degree murder, plus an additional 2 years Ior the Iirearm enhancement. (7
CT 1612.) The court impose a restitution Iine oI $100 ( 1202.4, subd. (b)),
and ordered appellant to provide samples Ior identiIication (Penal Code,
296). (7 CT 1611.) The court did not impose a parole revocation Iine because
the relevant statute ( 1202.45) was not in eIIect at the time oI the crime in
1986. (7 CT 1612.)
On May 11, 2012, appellant Iiled a notice oI appeal. (7 CT 1610.)
!"#"$%$&" () )#*"!
+, +-./0123.40-,
In 1982, appellant Stephanie Lazarus graduated Irom UCLA with a
bachelor`s degree in political science and sociology. (7 CT 1588.) In
September 1983, she entered the Los Angeles Police Department (LAPD)
Academy and graduated in March 1984. (10 RT 1689.) ThereaIter, appellant
rose through the ranks and, by 1997, reached the level oI Detective II, a
position that included supervision oI other detectives within LAPD. (7 CT
1589.) From January 2006 until her arrest on June 5, 2009, appellant was
assigned to the Commercial Crimes Division, Art TheIt Detail, and became an
expert in the recovery oI stolen Iine art. (7 CT 1589.)
During her 26 years with the LAPD, appellant received multiple
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
3

commendations Ior her work, such as making an 'enormous contribution to
an anti-drug program Ior school children, being 'a tremendous asset to her
team, and someone with strong moral values and 'honest both in her
character and work. (7 CT 1589.) In 1998, appellant was named the
'Outstanding Detective oI the Year Ior the Van Nuys Division oI the LAPD.
(7 CT 1590.) In 2003, she received the same award Ior the Devonshire
Division. (!"#$.)
Her LAPD Personnel Record contained no allegations oI excessive
Iorce or improper conduct as an oIIicer. (!"#$.) At trial, witnesses who had
known appellant Ior decades, including Iellow oIIicers, testiIied that she was a
non-violent person. (16 RT 2658, 2672, 17 RT 2790, 2801-02.)
Veteran detectives investigated the Iatal shooting oI Sheri Rasmussen
on February 24, 1986. (4 RT 456-57.) They concluded that she was shot and
killed in her residence in a condominium complex aIter surprising and
struggling with one or more burglars who entered an unlocked Iront door aIter
her husband leIt Ior work by a diIIerent exit. (4 RT 567-68, 571; 9 RT 1471.)
This conclusion was based on evidence that stereo equipment had been stacked
ready to be taken away where the encounter with Rasmussen occurred. (4 RT
504-06, 576, 578, 584; 9 RT 1481-82.) It was also based on evidence,
excluded at trial, that two men committed a burglary with the same %&$'(
&*+,-.$# and same caliber handgun at a nearby residential complex that was
'almost an exact replica oI Rasmussen`s residence. (11/6/12 Suppl. CT 93.)
The investigation went cold until January 2005, when the LAPD crime
lab examined a post-mortem swab oI an apparent bite mark to Rasmussen`s
inner leIt arm, Iound evidence oI Iemale deoxyribonucleic acid (DNA) that did
not belong to Rasmussen, and reopened the investigation. (6 RT 1006; 7 RT
1035-36, 1039-40.)
On May 28, 2009, LAPD concluded that appellant contributed the
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
4

Ioreign Iemale DNA to the bite mark swab. (7 RT 1060-66.) On June 5, 2009,
the police arrested and commenced the prosecution oI appellant Ior the murder
oI Rasmussen. (11 RT 1882; 12 RT 1907-08.)
II. The Prosecution Case.
A. The 1986 Homicide and Initial Investigation.
In February 1986, Sheri Rasmussen and John Ruetten had been married
three months. (4 RT 379.) Rasmussen was 5`10 and about 150 pounds and
very Iit and strong because she worked out regularly. (4 RT 401-02.) The
couple lived in a town house (Unit No. 205) in a condominium complex at
7100 Balboa Boulevard in Van Nuys. (4 RT 366-67, 417-18, 461.) Their unit
had an attached garage under the living area accessible by a set oI stairs Irom
within the Iront entryway oI the residence. (4 RT 371, 462-63.)
At about 7:20 a.m. on the morning oI Monday, February 24, 1986,
Ruetten went to work as usual, leaving by the door to the garage. (9 RT 1461-
62, 1471.) Rasmussen was the head nurse oI the coronary care unit at
Glendale Hospital. (4 RT 374.) However, she did not get out oI bed Ior work
that morning and decided to stay home because she wasn`t Ieeling well. (4 RT
392; 9 RT 1464-65.) Ruetten and Rasmussen`s sister tried to call her several
times through the day but the calls were picked up by an answering machine.
(4 RT 391-92; 9 RT 1472-74.)
Ruetten returned home at around 6:00 p.m. (10 RT 1554.) When he
drove up, their garage door was open, Rasmussen`s BMW was gone, and there
was broken glass near the garage entrance. (4 RT 376; 9 RT 1476-77, 1484.)
Ruetten went up the stairs and Iound the door Irom the garage ajar that he had
locked when he leIt. (9 RT 1477-78.) Inside, stereo equipment was stacked by
the door to the garage that had been kept in an entertainment center in the
living room. (9 RT 1481-82.)
Rasmussen lay on the living room Iloor in her bathrobe and night shirt,
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
5

dead Irom apparent gunshot wounds to her chest. (9 RT 1478-79, 1481-81; 4
RT 467.) Ruetten called the police. (9 RT 1480.) Multiple oIIicers,
paramedics, and investigators Irom the LAPD and county coroner responded to
investigate and to collect evidence. (4 RT 406-07, 409, 417-20, 427-28, 465.)
An autopsy two days later determined that Rasmussen had been shot
three times in the chest, each shot a Iatal wound. (5 RT 619, 760, 762.) The
coroner recovered three bullets Irom Rasmussen, one Irom under the skin oI
her back and two Irom the clothing under her back. (4 RT 486-87; 5 RT 762-
763, 771, 797.) One oI the gunshots was a contact wound to the chest. (5 RT
765-66.)
On the inner, leIt Iorearm, there was an injury with two semi-circular
patterns consistent with a bite mark. (5 RT 775, 778, 808; 8 RT 1280-81,
1290, 1294.) A coroner`s investigator had swabbed the apparent bite mark at
the crime scene. (5 RT 649-50, 665-67, 670, 681-83, 706.) Cathy Law, M.D.,
the chieI Iorensic dentist with the Los Angeles County Coroner, examined the
photographs oI the marks on the arm. (8 RT 1277, 1280.) There were no teeth
marks and Dr. Law could not say Ior sure it was a bite mark. (8 RT 1294.) The
coroner had made a cast oI the marks on the arm. (8 RT 1283-84.) However,
Dr. Law 'was had pressed to tell what this was an impression oI when I Iirst
saw it. (8 RT 1283.)
Rasmussen also had abrasion injuries around both wrists consistent with
the pattern Irom a rope or a cord. (5 RT 780-81.) A white cord/rope with
apparent blood was Iound near the stereo equipment by the door to the garage.
(4 RT 497-99.)
There were contusions to the right side oI the Iace around the right eye,
right ear and adjacent scalp, a laceration on the inside oI the upper lip, and
abrasions to the chin. (5 RT 792-94, 788-90.) One oI the marks around the
right side oI the Iace may have been made by a blow Irom the muzzle oI a .38
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
6

caliber Smith & Wesson Model 49 revolver. (15 RT 2584, 2586, 2590.)
However, a deIinite conclusion could not be drawn because the area by the eye
is curved and a blow is a dynamic process oI movement. (15 RT 2590-91.)
The coroner could not determine the time oI Rasmussen`s death
because there were too many variables. (5 RT 813.) The parties stipulated
that a criminalist examined a sexual assault kit with evidence samples Irom
Rasmussen and Iound no evidence oI a sexual assault. (5 RT 796.)
LAPD Detectives Lyle Mayer and Steven Hooks handled the 1986
homicide investigation. (4 RT 456-57.) The Rasmussen-Ruetten town home
had an upper Iloor with a master bedroom, a guest bedroom, a study, and two
bathrooms. (4 RT 527.) There was no sign oI a struggle upstairs or that
property, including a jewelry box and additional stereo equipment, had been
disturbed. (4 RT 527-30.)
Physical evidence Irom the lower level included two bullet holes
through the middle oI a closed curtain and out a sliding glass door in the
kitchen/dinning area oII the living room. (4 RT 521-23.) Near Rasmussen`s
body in living room, police Iound a 'snuggie type blanket on a chair with
apparent gun shot residue (GSR). (4 RT 506-07, 508, 509, 537, 538.)
Some shelves in an entertainment center were collapsed and a stereo
speaker Irom there lay on the Iloor in Iront oI Rasmussen`s head. (4 RT 511-
12, 515-16.) The drawer oI a living room table had been pulled out and the
contents dumped onto the Iloor. (4 RT 508, 509-10.) A broken porcelain vase
and a white towel lay to the leIt oI Rasmussen`s body. (4 RT 513.)
From the entryway by the Iront door, investigators collected samples
Irom blood spatter on the Iloor, the wall by an electrical outlet about a Ioot oI
the Iloor, and midway up a closet door. (4 RT 491, 493-94, 500-504, 580-81,
582.) They also Iound two broken Iingernails on the Iloor, and multiple latent
Iingerprints. (4 RT 491, 493-94, 584-86, 588.) They photographed a bloody
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
7

Iingerprint and palm print on a CD player stacked with a VCR by the door to
the garage. (4 RT 504-06, 576, 578, 584.) They recovered a Iingerprint on the
banister oI the stairs to the garage and a sample oI apparent blood on the wall
in the stair well. (4 RT 588; 11 RT 1732; 16 RT 2631.)
At around 9:30 a.m. on the morning oI the incident, a neighbor went by
Rasmussen`s garage and saw the door open and no cars inside. (4 RT 442,
444, 448.) At around 4:40 p.m. that aIternoon, two gardeners brought the
same neighbor a purse they Iound on the grounds oI the condominium
complex. (4 RT 445-46, 451-52.) Rasmussen`s wallet and driver`s license
were inside. (4 RT 446.)
Eleven days later on March 7, 1986, the police Iound Rasmussen`s
BMW abandoned on a street in Van Nuys about 2 miles away Irom her
residence. (6 RT 834; 11 RT 1879-80.) The keys were in the ignition and no
parts were stripped Irom the car. (6 RT 819-21, 834, 838-39.) LAPD
evidence technicians collected samples oI apparent blood Irom around the
ignition and interior driver`s door handle and Iive Iingerprints Irom the seat
belt connector and the driver`s and passenger`s windows. (6 RT 826-27; 11
RT 1736-37; 14 RT 2282.)
The Rasmussen-Ruetten unit had an alarm system. (4 RT 499.)
However, they only activated it a night when they went to bed. (9 RT 1466.)
The Iront door had three locks: an interior deadbolt, a key lock deadbolt, and a
standard door handle lock. (4 RT 487-88.) There was no damage to the Iront
door locks or door indicating a Iorced entry or tampering with the locks apart
Irom some scratches on the door jamb. (4 RT 556-57, 488-91.) When Ruetten
went to work via the door to the garage on the day oI the homicide, he did not
check and did not know whether the Iront door was locked when he leIt. (9
RT 1471.)
In 1986, Detectives Mayer and Hooks concluded that the homicide was
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
8

part oI a burglary gone awry. (4 RT 562.) The evidence indicated that
probably two suspects entered through an unlocked Iront door. (4 RT 567.)
Rasmussen surprised them while they were burglarizing the condo and a
violent struggle over a gun ensued. (!"#$.; 4 RT 571; 9 RT 1486.) Three to
Iour weeks later, Detective Mayer told Ruetten that appellant was not
involved. (9 RT 1492-93.)
!" $%& '&()*&+&, -+.&/0123014+ 1+ 5667(5668"
No work was done on the case aIter 1986 until 2004 when LAPD 'cold
case personnel reopened the investigation. (6 RT 892-93, 915, 1010; 8 RT
1268-69; 17 RT 2839-40.)
On December 20, 2004, LAPD contacted the coroner`s oIIice to locate
the bite mark swab Irom February 1986. (6 RT 683, 1011-12.) AIter two days
oI searching multiple Ireezers in the evidence room, coroner`s personnel Iound
a torn envelope with a swab tube protruding through a hole in an envelope
with notations by a coroner`s investigator Irom February 25, 1986. (5 RT 655,
683-84, 689, 699-700; 6 RT 845-46, 849, 856-57, 870-71, 887-88, 894.) On
December 30, 2004, the coroner`s oIIice released the bite mark swab evidence
to the LAPD. (6 RT 880-82, 895-96.)
In January 2005, JenniIer Francis, a criminalist with the LAPD DNA
Serology lab, examined the bite mark swab (Evidence Item No. 30) under a
microscope. (6 RT 992, 1009-1010.) She saw some nucleated epithelial cells
which are Iound in large numbers in mucous membranes, including those oI
the mouth. (7 RT 1034-35.) Francis took a cutting Irom the bite mark swab
Ior DNA analysis. (6 RT 1011-12; 7 RT 1023-24; 7 RT 1031-33, 1092.) She
used ProIiler Plus and CoIiler test kits that tested alleles at 13 loci on
chromosomes, plus gender. (6 RT 1006.)
The DNA detected was a mixture containing a major and a partial,
minor proIile. (7 RT 1035-36.) The minor proIile 'was at a very low level
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
9

and Iemale DNA. (7 RT 1038.) The Iour alleles detected were consistent with
the same alleles in Iull proIile developed Irom a sample oI Rasmussen`s blood.
(7 RT 1039-41; 8 RT 1199-1200.) The major proIile was complete and also
Iemale but inconsistent with Rasmussen. (7 RT 1039-40.) There was no
evidence oI a Y-chromosome reIlecting male DNA. (8 RT 1205.)
Francis uploaded the major DNA proIile into the Combined DNA Index
System (CODIS) data base where DNA proIiles are kept Ior arrestees and
convicted oIIenders. (7 RT 1089.) However, Irom 2005-2008, LAPD did not
receive notiIication oI a 'hit to any suspect. (7 RT 1089-90, 1093-94.)
Based on evidence oI Iemale DNA, the police re-interviewed Ruetten
who testiIied at trial. Ruetten met appellant at UCLA in the late 1970`s when
they both lived in the same dorm. (9 RT 1418-22.) During college, they were
romantically involved but not exclusively and not intimate. (9 RT 1427,
1439.) AIter Ruetten graduated in 1981, he remained Iriends with appellant.
In 1981-1984, they saw one another 2-3 times a month and started having sex
together. (9 RT 1431-33.) Ruetten also dated other women. (9 RT 1433-34.)
He made it clear to appellant that their relationship was not going towards
marriage. (9 RT 1511.)
In June 1984, Ruetten met Rasmussen at a party and soon started dating
her exclusively. (9 RT 1439-40.) In May 1985, they became engaged. (9 RT
1444-45.) Ruetten told some Iriends who were also Iriends oI appellant that he
and Rasmussen were engaged. (9 RT 1446.)
In June 1985, Ruetten received a call Irom appellant. (9 RT 1447.) She
was very upset and crying like Ruetten hadn`t heard beIore. (9 RT 1448.) He
had not spoken to her since he started seeing Rasmussen. (9 RT 1442.)
Appellant asked Ruetten to come over to talk. (9 RT 1448.) He went to
appellant`s condo and Iound her upset and crying. (Ibid.)
For the Iirst time, appellant told Ruetten that she was in love with him.
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
10

(9 RT 1449.) She was upset that Ruetten was getting married and moving on.
(9 RT 1450.) Appellant asked Ruetten to have sex with her and Ruetten did so
because he Ielt bad that she was so upset and he didn`t know how to calm her
down. (9 RT 1451.) However, he made it clear that he was going to marry
Rasmussen. (9 RT 1451-52.)
A week or so aIter being with appellant, Ruetten moved in with
Rasmussen in her condo at 7100 Balboa. (9 RT 1447, 1452; 10 RT 1563-64.)
One evening, Rasmussen came home Irom work upset. (9 RT 1452-53.) Mike
Hargreaves, a Iellow police oIIicer and appellant`s roommate at the time, said
that appellant told him she went to the hospital to see the women Ruetten was
going to marry and they had a conIrontation. (9 RT 1364-65, 1930-31.)
Ruetten then told Rasmussen about his last meeting with appellant
when she was upset and they had sex. (9 RT 1453.) Rasmussen already knew
about that. (!"#$.) Nevertheless, aIter talking they resolved to proceed with
getting married. (9 RT 1453-54.) AIter their June 1985 meeting, Ruetten had
no Iurther contact with appellant. (9 RT 1454-55.)
On June 4, 1985, appellant wrote in her journal, 'I really didn`t Ieel like
working. I Iound out that John is getting married. I was very depressed. This
is very bad. My concentration was negative 10. (10 RT 1628-29.)
1
On June
16, 1985 appellant stated: 'I really didn`t Ieel like working. Too stressed out
about John. I`ve had a real hard time concentrating these days and so I called
up and said I didn`t Ieel well and could I have a T.O. |Time OII| They gave it
to me. (10 RT 1629-30, 1632.)
In August 1985, appellant wrote Ruetten`s mother that she was 'truly in

1
As discussed below in Argument Section II., the evidence Irom appellant`s
journals and daily planners was admitted over her objections that it was the
product oI an unlawIul search.

T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
11

love with John and this past year has really torn me up. I wish it hadn`t
end|ed| the way it did and I don`t think I`ll ever understand John`s decision.
(9 RT 1407-08.) On December 12, 1985, appellant received a letter Irom
Ruetten`s mother. Appellant wrote in her journal that '|t|his made me very,
very, very sad. (10 RT 1633-34.) Appellant`s journal continued to the end oI
August 1986. (10 RT 1635.) However, there were no Iurther mentions oI
Ruetten aIter December 1985. (!"#$.)
Police work sheets showed that appellant was oII duty on Monday,
February 24, 1986, the day oI the homicide, and on the Mondays the week
beIore (February 17, 1986) and the week aIter (March 3, 1986). (10 RT 1637-
38, 1687.) On the day oI the homicide (February 24, 1986) appellant wrote
'day oII in her daily planner, mentioned 'Jean Pierre, and made a note to
call 'Mike. (10 RT 1681.) The police were was unable to determine who
these people were. (10 RT 1681-82.)
Jayme Weaver worked the day watch with appellant the day aIter the
homicide (February 27, 1986) and they used the same to locker room to
change into their uniIorms. (10 RT 1699-1701, 1702, 1705.) Although
Weaver did not remember that speciIic day when she testiIied 26 years later,
Weaver did not recall seeing any injuries to appellant or hearing her complain
oI being injured or hurt. (10 RT 1703, 1704.) The only thing Weaver
remembered appellant saying about 'John was that he had been a college
boyIriend and their relationship didn`t work out. (10 RT 1703-04.)
Appellant did not contact Ruetten aIter Rasmussen was killed on
February 24, 1986. (10 RT 1572.) About three years later in 1989, Ruetten
called appellant when he learned that she and a male Iriend were going to be in
Hawaii at the same time Ruetten planned to visit Iriends in Hawaii. (9 RT
1497-98.) Ruetten and appellant got together. He told her that in 1986 he
gave her name to the police because she had been upset over his relationship
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
12

with Rasmussen and visited Rasmussen at work. (9 RT 1498.) Appellant did
not deny this or indicate that she was bothered by Ruetten giving the
inIormation to the police. (!"#$.; 10 RT 1573-74)
Ruetten did not believe that appellant was involved in killing
Rasmussen. (9 RT 1498.) AIter Hawaii, he saw appellant a Iew times over the
next three years and twice had sex with her. (9 RT 1499.) However, they both
moved on. (!"#$.) In February oI 2009, LAPD Jim Detective Nuttal called
Ruetten and told him they had reactivated the homicide investigation. (9 RT
1500.) Detective Nuttal asked Ruetten whether he knew oI women who would
want to harm Rasmussen. (9 RT 1500.) He gave appellant`s name to the
detective. (9 RT 1500-01.)
On May 28, 2009, an LAPD surveillance team surreptitiously Iollowed
appellant and her child to a Costco store. They recovered two drink cups with
straws discarded by appellant in a trash bin and took them to the LAPD crime
lab Ior DNA analysis. (9 RT 968-69, 672-76, 988-89.) A DNA analysis oI
one cup yielded a partial proIile that matched the major proIile Irom the bite
mark swab at 11 oI 13 loci. (7 RT 1063-64, 1066.)
The police interrogated and arrested appellant on June 5, 2009. (11 RT
1882; 12 RT 1908.) Over appellant`s objection, the court admitted in evidence
a video and transcript oI the interrogation. (2 RT E1-2, 16-17; 5 CT 832; 11
RT 1884-86; 12 RT 1895-96.) As discussed Iurther below in Argument
Section IV., appellant admitted knowing Ruetten and having met Rasmussen
but reIused to answer additional questions when she realized that the
detectives were accusing her oI killing Rasmussen. (7 CT 1499-1501.)
On June 5, 2009, aIter appellant`s arrest, a criminalist obtained two
buccal swabs Irom appellant Ior additional DNA testing. (7 RT 1045-48,
1049-50, 1050-52.)
On June 6, 2009, JenniIer Francis oI the LAPD crime lab developed a
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
13

DNA proIile Irom a cutting Irom one oI appellant`s buccal swabs (Item No.
51). (7 RT 1098, 1100.) All 13 loci on the bite mark swab matched the same
13 loci Iound on appellant`s buccal sample. (7 RT 1101-03.) The random
match probability was 1 in 402 quadrillion. (!"#$.) That number was about
100 million times the earth`s population, assuming a population oI 7 billion.
(7 RT 1103-04.) ThereIore, another person on earth would not be expected to
have the same proIile. (7 RT 1104.)
Cathy Law, M.D., the chieI Iorensic dentist with the Los Angeles
County Coroner, compared a cast oI appellant`s teeth to autopsy photographs
oI the apparent bite mark on Rasmussen`s arm. (8 RT 1288-90.) Dr. Law also
had copies oI appellant`s dental records Ior more than Iive years. (8 RT 1289.)
However, she Iound no correlation. (8 RT 1289-90.)
Tom Fedor, a Iorensic serologist with the Serological Research Institute
in Richmond, CaliIornia ('SERI), conducted tests on a previously untested
bite mark swab. (12 RT 1922.) He cut the bud oII the swab, put it in and
aqueous solution, and spun it in a centriIuge to extract the 'supernatant and a
pellet oI biological matter. (12 RT 1922.) Fedor tested the supernatant and
Iound a Iorm oI the protein amylase present in saliva. (12 RT 1922, 1924,
1925.)
Using the IdentiIiler test kit Ior 15 loci, plus gender, Fedor Iound a
mixture oI DNA Irom at least two people in the pellet extracted Irom the bite
mark swab. (12 RT 1922, 1926.) The minor proIile was weak and ambiguous
in places with only 9 oI 15 alleles detected. (12 RT 1922; 13 RT 2070-71.)
However, none oI alleles detected were Ioreign to Rasmussen`s reIerence
proIile. (12 RT 1922, 1934-35.)
In 'every respect the major proIile Irom the bite mark swab has the
same test result as Stephanie Lazarus` reIerence sample. (12 RT 1935.)
Based on population survey data published by Applied Biosystems, the
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
14

manuIacturer oI IdentiIiler, Fedor calculated 'that the chance a woman
unrelated to Stephanie Lazarus would have the same DNA proIile as the major
portion oI the bite mark swab is approximately 1 in 1.7 sextillion. (12 RT
1938, 2005-06.) That number was about 240 times the population oI the earth,
which was 7 billion. (12 RT 1939.) There was no evidence oI male DNA
present in the bite mark swab or reason to believe that more than two people
contributed to the DNA on the swab. (13 RT 2068-69.)
Over appellant`s objection (!"" Argument Section V., below), Fedor
used the MiniFiler test kit Ior 8 loci plus gender to examine one oI the
broken Iingernails (Item No. 10) recovered Irom the entryway to Rasmussen`s
residence. (12 RT 1943-1944; 4 RT 491-93.) MiniFiler was Ior used Ior
small or degraded samples oI DNA where other test kits gave weak or no
results. (12 RT 1941.)
From the broken Iingernail, Fedor obtained only 'weak and incomplete
results indicating a mixture Irom at least three people. (12 RT 1944.)
Rasmussen was 'a possible contributor to the mixture, and approximately 1
woman in 670 would be similarly considered. (12 RT 1944.) Appellant was
'a possible contributor to the mixture, and approximately 1 woman in 26,000
would be similarly considered. ($%&'.) No statistics could be done on the
proIile Ior the third contributor to the Iingernail because there was no one to
compare it to as a possible source. (12 RT 1948.)
C. Additional Forensic Evidence.
1. Fingerprint Evidence.
The police Iound no Iingerprints Irom appellant in Rasmussen`s
residence or her recovered BMW. (11 RT 1716-1737; 13 RT 2224, 14 RT
2269-97, 2368-69.) Appellant, Ruetten and Rasmussen were excluded as the
source oI Iingerprints on the kitchen telephone, on the banister oI the stairs to
the garage, and two on the CD stacked by the door to the garage. (11 RT
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
15

1732-33, 1749-52, 1754.) Fingerprints in blood on the CD player and blood
on the wall in the entryway were not identiIied. (11 RT 1752-53.)
!" $%& '()*+,-+"
The LAPD (JenniIer Francis) and SERI (Tom Fedor) developed DNA
proIiles Irom several additional pieces oI evidence collected Irom the crime
scene and Rasmussen`s recovered BMW.
Francis Iound that apparent blood Irom the ignition key oI the BMW
(Item No. 20) yielded a partial proIile (9 oI 13 loci), none oI which was Ioreign
to Rasmussen`s proIile. (6 RT 1002, 1009, 1021;7 RT 1091.) Appellant was
excluded as a contributor. (7 RT 1091.) A red stain Irom the door handle oI
the BMW (8 RT 1344) was a mixture Irom at least three people, including one
male. (12 RT 1951, 1989.) The major proIile was Irom Rasmussen. (11 RT
1951.) Appellant and Ruetten were excluded Irom the mixture. (!"#$.) The
two other contributors were not identiIied. (12 RT 1989.)
Fedor analyzed samples Irom apparent blood stains on the inside oI the
Iront door (Item No. 1; 4 RT 500-501)), the door leading to the garage (Item
No. 4; 4 RT 502), on the tile Iloor in the entry (Item No. 5; 4 RT 503)), and a
second swatch Irom the ignition key oI BMW (Item No. 22; 8 RT 1344). (12
RT 1950-51.) All were consistent with Rasmussen and excluded appellant and
Ruetten as contributors. (12 RT 1950-51.)
DNA consistent with Rasmussen was Iound in the apparent blood on
the wall near the electrical socket in the entry (Item No. 3), on the tile Iloor in
the entry Iloor (Item No. 5), and the dish towel Iound near her body (Item No.
7). (6 RT 1001, 1006 1007-08; 4 RT 503, 513, 514.) There was no evidence
oI Ioreign DNA in any oI those evidence items. (6 RT 1008.)
Three oI Iour hairs Iound on the same dish towel had DNA consistent
with Rasmussen and one gave uninterpretable results. (12 RT 2039-40.)
However, there was also evidence oI low level, unidentiIied male DNA.
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
16

(!"#$.) Appellant was excluded as a contributor oI the hair. (!"#$.) Analysis
oI an additional hair also excluded appellant. (12 RT 2041.)
Fedor examined two cuttings Irom the blanket Iound near Rasmussen`s
body. (12 RT 1979; 4 RT 506-07.) Both cuttings contained a DNA mixture
Irom three people. (12 RT 1981, 1983, 2056.) Appellant was excluded as a
contributor to either cutting. (12 RT 1982; 13 RT 2075.) The major proIile
Irom both cuttings was consistent with Rasmussen`s proIile. (12 RT 1981.)
Ruetten was a contributor to one oI the cuttings. (12 RT 1986, 2053, 2059.)
However, there was also evidence oI male DNA Irom which Ruetten was
excluded. (13 RT 1076-77, 2077-78, 2081.)
The proIiles Irom blood samples on the rope Iound by the stereo
equipment were consistent with Rasmussen and excluded appellant as a
contributor. (4 RT 575-76; 7 RT 1104-06; 8 RT 1252-53.)
The DNA Irom the root oI a hair Iound on the speaker wire near the
rope tested positive Ior male DNA that did not appear to come Irom Ruetten,
although he was a possible contributor with a random match probability oI 1 in
2,000. (12 RT 2011-14.) There was no Iemale DNA in the hair sample. (12
RT 2014.)
Appellant and Rasmussen were both excluded as contributors to the
DNA in the blood sample taken Irom the wall in the stairwell to the garage. (8
RT 1254-56.)
An extract Irom one oI the broken Iingernails Iound in the entryway
(Item No. 9) contained a DNA mixture with Rasmussen and appellant as
possible contributors. (12 RT 2049.) The random match probability Ior
Rasmussen was 1 in 100 and Ior appellant 1 in 9,000. (12 RT 2049; 13 RT
2083.) Because the proIiles detected were incomplete and at low levels, Tom
Fedor oI SERI would not characterize them as reIlecting a match. (13 RT
2093.)
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
17

Fedor examined Iive Iingernails Irom the right hand and three Irom her
leIt hand that the coroner clipped Irom Rasmussen`s hands. (13 RT 2061; 3
RT P17.) Three Iingernails had evidence oI male DNA. (13 RT 2062.)
Two damaged Iingernails Irom Rasmussen`s right hand tested positive
Ior the presumptive presence oI blood. (13 RT 2066, 2067-68.) One damaged
Iingernail (SERI Item No. 8-B-1) contained a mixture oI DNA Irom at least
two persons. (13 RT 2066-67.) Rasmussen was a possible contributor with a
random match probability oI 1 in 9 billion women. (13 RT 2067.) Appellant
was 'possibly a minor contributor with 1 in 10 women similarly considered.
(13 RT 2067.)
The second damaged Iingernail (SERI Item No. 8-B-2) gave weak and
incomplete results indicating a mixture oI at least three persons. (13 RT 2067.)
Rasmussen was a possible contributor with a random match probability oI 1 in
4,800 women similarly included. (13 RT 2067.) Appellant was a possible
contributor with 1 in 9 women similarly considered. (13 RT 2067, 2096.)
One right hand Iingernail showed DNA Irom at least two persons. (12
RT 2002.) Rasmussen was possible the major contributor with a random
match probability oI 1 in 21 trillion amongst women. (12 RT 2002.) The
minor proIile was too weak to interpret but, in Fedor`s opinion, could not have
come Irom appellant, Ruetten or Rasmussen. (12 RT 2002-03.)
Another right hand Iingernail showed a mixture Irom at least two
persons. (12 RT 2004.) Rasmussen was possibly the major contributor with a
random match probability amongst women oI 1 in 58,000. (12 RT 2004.) The
minor proIile was too weak to interpret. (12 RT 2004.) However, in Fedor`s
opinion, it could not have come Irom appellant, Ruetten or Rasmussen. (Ibid.)
Another right hand Iingernail showed a mixture Irom at least two
persons, at least one oI whom was male. (12 RT 2007.) The major proIile was
the same as Rasmussen with a random match probability oI 1 in 490 trillion.
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
18

(12 RT 2007.) The male DNA was never identiIied. (Ibid.)
One oI the leIt hand Iingernails showed a mixture oI DNA Irom at least
two persons, including at least one male but excluding Ruetten. (12 RT 1997-
98.) Rasmussen was the major contributor to the mixture with a random match
probability oI 1 in 130 trillion. (12 RT 1998.) Appellant was excluded.
(!"#$.)
Another leIt hand Iingernail gave weak and incomplete results
indicating a mixture Irom at least three persons, including a male. (12 RT
1999.) Rasmussen, appellant and Ruetten were all excluded. (Ibid.)
!" $%&'()*+ ,%-./0'& 1'2&+3')"
Wonkeun Choi, a computer examiner with the OIIice oI the District
Attorney, used Iorensic soItware to conduct searches oI laptop computers
seized Irom appellant`s residence and workplace Ior the period Irom 1990
through 2007.
2
(11 RT 1816-18, 1844-45.) Choi`s investigation showed that
between April 1998 and December 1999 appellant made several on-line
searches Ior inIormation about Ruetten. (11 RT 1818-26.) E-mail started in
the mid-1980`s. (11 RT 1840.) Choi Iound no e-mails to Ruetten, although he
was using Iorensic soItware that would have Iound them. (11 RT 1840-41.)
Choi also did a key word search Ior Rasmussen. (11 RT 1839.) However, he
got no hits. (!"#$.)
4" $*&'2&-) 56*7'(+'"
The prosecution presented voluminous Iirearms evidence which is
summarized (relatively) brieIly here.
The coroner recovered three bullets Irom Rasmussen, one Irom under
the skin oI her back and two Irom the clothing under her back. (4 RT 486-87;

2
As discussed below in Argument Section II., the evidence Irom the computer
searches was admitted over appellant`s Fourth Amendment objections.

T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
19

5 RT 762-763, 771, 797.) The three bullets recovered by the coroner were
consistent with either.38 or .357 caliber ammunition. (13 RT 2182, 2184,
2201; 14 RT 2416-17.) Ammunition oI .38 and .357 caliber has the same
diameter and can be loaded in either caliber handgun. (13 RT 2183.)
LAPD regulations governed the types oI ammunition that an oIIicer
could carry Ior her service and backup Iirearms. (11 RT 1858.) In 1986,
oIIicers were only allowed to carry Federal .38J Plus-P ammunition Ior a .38
caliber handgun. (11 RT 1858-59, 1861-62, 1872.) That make oI ammunition
had a copper jacketed with a soIt lead tip weighing 125 grains. (13 RT 2115.)
OI the three evidence bullets Irom the coroner, one was deIormed but the other
two weighed, respectively, 119. 2 grains and 124.7 grains. (13 RT 2214-15.)
Steven Rodgers, a product service representative Ior Federal
Ammunition, testiIied about .38 caliber ammunition made by Federal. (11 RT
1786, 1788.) As a representative oI Federal, Rodgers also compared bullets
submitted to him to determine whether or not they were Federal bullets. (11
RT 1788-89.) Based on review oI records and photographs oI tool marks,
Rodgers concluded that all three bullets recovered Irom Rasmussen were
Federal .38 caliber J Plus-P bullet. (11 RT 1801-02, 1808.)
Federal manuIactured that type oI ammunition Irom 1978 to 1991 and
sold it to the general public as well as police departments. (11 RT 1802, 1811-
12.) There was a time when the public could not buy that ammunition. (11 RT
1802.) However, Rodgers did not know when that was. (!"#$.)
On February 29, 1984, appellant purchased Irom the Los Angeles
Police Revolver and Athletic Club a .38 caliber Smith & Wesson Model 49
revolver with a Iive shot capacity and a 1 7/8 inch barrel. (10 RT 1646-47; 11
RT 1756, 1761-63.) This was an authorized backup Iirearm Ior LAPD
oIIicers. (11 RT 1855.)
On March 9, 1986, appellant went to the Santa Monica Police to report
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
20

that her Smith & Wesson Model 49 revolver had been stolen Irom the glove
box oI her car while parked in Santa Monica. (11 RT 1768, 1771, 1774-75,
1177-79, 1785.) Someone had tampered with the driver`s door lock. (11 RT
1772.) Appellant`s gym bag was also taken with miscellaneous clothing,
cassettes, and money. (11 RT 1771.)
The practice oI the woman who took the auto-theIt report (Elaine Sena-
Brown) would have been would have been to go out the vehicle to veriIy the
reported damage to the door lock. (11 RT 1779-80, 1781.) She did not
remember whether she did so. (11 RT 1772.) However, Brown would have
noted on her report iI she had not done so. (11 RT 1780.)
Mike Hargreaves, a Iellow oIIicer and Iormer roommate oI appellant,
recalled appellant telling him that she had lost her revolver in Santa Monica.
(9 RT 1367-68.) She said that it had been inside a bag or a Ianny pack. (9 RT
1368.) They discussed making a police report a couple oI days aIter the gun
was lost. (!"#$.) Appellant did not say that she lost the handgun when her car
was burglarized or that her car had been damaged. (9 RT 1369.) Hargreaves
later rode in the car and did not see any damage to it. (!"#$.)
The Santa Monica Police Department reported to the CaliIornia
Department oI Justice Bureaus oI Firearms, automated Iirearm reporting
system, that appellant`s Model 49 revolver was reported stolen on March 9,
1986. (14 RT 2301-02, 2304-05.) As an oIIicer, appellant was required to
report to the LAPD armorer iI a Iirearm registered to her had been stolen. (11
RT 1857-58.) However, the card kept by the armorer Ior appellant`s Iirearms
did not show that she reported her revolver stolen. (11 RT 1858; 13 RT 2105-
06.)
On March 19, 1986, appellant purchased as an apparent replacement a
.38 caliber Smith & Wesson Model 649 revolver with a 1 7/8 inch barrel. (10
RT 1650; 11 RT 1763-64, 1765; 13 RT 2107.)
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
21

The lands and grooves oI the barrel leave impressions on a bullet when
the gun is Iired. (13 RT 2184-85.) A .38 caliber Smith & Wesson Model 49
has Iive lands and grooves with a right hand twist that was consistent with the
pattern on the three evidence bullets. (13 RT 2186.) However, those riIling
impressions were also consistent with handguns made by Llam, Ruger, Taurus,
I.N.A, Iris Orbea, and Gabilando. (13 RT 2186-88, 2219.) All oI those types
oI guns could have Iired the evidence bullets. (13 RT 2187-88.)
The marks on all three bullets were similar indicating that they had all
been Iired Irom the same gun. (14 RT 2384-87.) However, the gun used could
not be identiIied without having an exemplar Iired Irom the same gun. (14 RT
2387-88.) The evidence bullets could have been Iired Irom 10-12 Iirearms
manuIactured in the 1980`s including multiple models oI Smith & Wesson
handguns. (14 RT 2420-2; 15 RT 2446-47, 2449-52, 2464.)
None oI the bullets recovered Irom searches oI appellant`s property in
2009 were consistent with the evidence bullets. (15 RT 2465.)
In February 1986, LAPD OIIicer George Luczy, a Iirearms specialist,
and his partner went to the crime scene at 7100 Balboa. (13 RT 2119.) They
Iound a bullet impact in the living room carpet by the Iireplace near where
Rasmussen was Iound. (13 RT 2127.) However, they Iound no bullet when
they pulled up the carpet. (!"#$.) They also made a trajectory analysis Ior the
two bullets that passed through the curtain over the sliding glass door oI the
kitchen on the north side oI the condo. (13 RT 2119, 2121.) In Luczy`s
opinion, both bullets had been Iried Irom the direction oI the living room
where Rasmussen was Iound. (13 RT 2122-24, 2126.) A second trajectory
analysis by other investigators in 2010 reached similar conclusions. (14 RT
2409-10; 15 RT 2456-58.)
Luczy also examined GSR on the multi-colored blanket with Iound near
Rasmussen. (13 RT 2128-29.) When Iired, a short barrel revolver like a Smith
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
22

& Wesson Model 49 discharges relatively large amount oI GSR Irom the gap
where the barrel meets the rotating cylinder holding the cartridges (reIerred to
as 'barrel gap discharge). (13 RT 2132-34.) On the blanket, there were two
lines oI GSR, corresponding to the two sides oI the revolver and Iour bullet
holes in diIIerent places. (13 RT 2138-42, 2151, 2163.) The distance oI the
line oI GSR to the nearest bullet hole was two inches. (13 RT 2146.)
Luczy concluded that that a revolver with a two inch barrel like the
Smith & Wesson Model 49 made the bullet hole in the blanket. (13 RT 2147-
48, 2150-51.) In his opinion, the blanket had been wrapped around the
revolver in order to dampen the sound oI Iiring. (13 RT 2149-50.) Based on
the two bullet holes in the curtain in the kitchen and three gunshot wounds to
Rasmussen, Luczy concluded that a total oI Iive shots were Iired, consistent
with the Iive shot capacity Smith & Wesson Model 49. (13 RT 2174-75,
2178-79.)
E. Crime Scene Analysis.
AIter 23 years as an F.B.I. agent, including work as a proIiler, Mark
SaIarik became Executive Director oI Forensic Behavioral Services. (15 RT
2469-70, 2471-72.) His Iirm specialized in behavioral analysis oI violent
crimes to explain how they happened and why. (14 RT 2470.) SaIarik
reviewed the police reports, photographs and analysis oI evidence Irom the
1986 investigation oI the Rasmussen crime scene. (15 RT 2475.) He also
visited the location in 2010. (14 RT 2476-77.)
In SaIarik`s opinion, the homicide did not occur during a burglary or an
interrupted burglary based on a series oI Iactors. (15 RT 2481.) The
Rasmussen condo was part oI a complex that posed a high risk Ior a burglar
because it had a wall and a Ience around it and a locked Iront gate. (15 RT
2482.) Other apartment complexes in the area did not have similar barriers.
(!"#$.) In addition, Rasmussen`s unit had a central location within the
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
23

complex, increasing the risk oI being seen when entering and leaving. (15 RT
2482-83.)
There was no sign oI Iorced entry and a sign showed that the unit had
an alarm system. (15 RT 2486-87.) The evidence indicated that someone leIt
the scene in the victim`s BMW. (15 RT 2487-88.) In his opinion, a burglar
would use his own vehicle to remove property. (!"#$.) In addition, the BMW
was abandoned with the keys and without any property being taken Irom it.
(15 RT 2488.) The only property taken Irom the residence was Rasmussen`s
purse. (15 RT 2488.)
The upstairs area oI the residence was undisturbed. (15 RT 2489.) II
someone was committed to stealing property, there would be evidence oI other
areas searched. (15 RT 2489-90, 2491, 2492.) A jewelry box in the master
bedroom was untouched. (15 RT 2490.) The drawer had been pulled out oI
the coIIee table in the living room and leIt leaning against it. (15 RT 2490.) In
SaIarik`s opinion, a burglar would not look Ior valuable in the drawer oI a
coIIee table. (!"#$.)
Staging was a behavioral maniIestation observed at crime scenes. (15
RT 2495.) It reIlected an intentional attempt by the oIIender to change the
physical evidence to create a new motive Ior the crime and redirect the police
investigation. (15 RT 2496-97.) 'What I saw was an attempt to create the
illusion that the motive in this crime was an interrupted burglary|.| (15 RT
2497.)
In SaIarik`s opinion, there was an initial attack on in the breakIast nook.
(15 RT 2508.) Rasmussen broke away. (!"#$.) The perpetrator pursued and
reengaged the attack by the entryway where there was evidence oI broken
Iingernails and blood. (!"#$.) They moved to the living room where the
perpetrator used the vase to smash Rasmussen`s Iace. (!"#$.) The perpetrator
broke contact, retrieved the quilt, wrapped it around the gun to muIIle the
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
24

sound, and Iired three shots. (15 RT 2509-10.) The stereo equipment Iound
by the entry was moved aIter the shooting because it would have been
disturbed in the struggle iI it had been there beIore. (15 RT 2510-11.)
SaIarik could not reconstruct the exact sequence oI the events because
there were too many possible interactions between the victim and the
perpetrator. (15 RT 2547-48.)
!!" $%& '&(&)*& +,*&"
-" ./01213&4 5,2678/9)34 ,)3 :18&,80 ;<13&)2&"
On Monday, February 24, 1986, Evangelina Flores worked as a
housekeeper in the unit next door to Rasmussen`s unit in the condominium
complex. (16 RT 2634-35.) At around 12:30 p.m., Flores heard a sound
coming through the wall Irom Rasmussen`s residence. (16 RT 2635-36, 2641-
42, 2644.) It sounded like two people Iighting Iollowed by a scream, two loud
thuds or booms, and a door slamming. (16 RT 2637, 2645-46.) AIter that,
everything was silent until Flores heard a car drive oII. (16 RT 2638, 2646.)
Andrea Dillon, a latent Iingerprint examiner with the LAPD, had
testiIied as an expert on Iingerprints and Iingerprint comparisons about 30
times. (17 RT 2904-06, 2906.) Dillon analyzed the latent Iingerprints
collected Irom Rasmussen`s residence aIter the homicide. (17 RT 2909-10.)
She Iound multiple, identiIiable Iingerprints that could not be attributed to
appellant, Ruetten or Rasmussen. (17 RT 2911-19, 2921-27.) They included
Iingerprints on the stereo equipment stacked by the door to the garage. (17 RT
2992-93; 14 RT 2889-90.)
Michael Alexander was a retired LAPD oIIicer. (16 RT 2666.) He and
appellant worked patrol together out oI Devonshire Division beginning in 1985
and oII and on over a number oI years. (16 RT 2666.) Alexander and
appellant were assigned to a car together on Tuesday, February 25, 1986, and
Thursday, February 27, 1986. (16 RT 2667-68, 2670.) Alexander did not
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
25

recall seeing any signs oI injury to appellant such as a black eye or scratches
and appellant did not complain oI any injury. (16 RT 2669, 2671.)
Robert Kirk was a retired LAPD oIIicer. (16 RT 2660-61.) In the
1980`s, he and appellant were both assigned to Devonshire Station and at times
worked a patrol unit together. (16 RT 2661.) Kirk visited appellant at her
residence during that time period and had dinner there. (16 RT 2661-62.) He
did not recall seeing any photographs oI Ruetten. (16 RT 2662-63.)
Carl Olson worked Ior the Santa Monica Police Department as their
records manager. (17 RT 2774.) He reviewed records and determined that on
March 9, 1986, there were two additional auto burglaries Irom parking
structures in the same where appellant on the same day reported the theIt oI the
revolver Irom her car aIter tampering with the door lock. (17 RT 2776-79; 11
RT 1770-71.)
In appellant`s daily planner there was a note on March 17, 1986 to
'|t|ake in car. (17 RT 2899.)
On June 5, 2009, LAPD homicide detective Dan Myers searched
appellant`s locker at the Parker Center. (17 RT 2857.) He Iound a Smith &
Wesson Model 67-1 .38 caliber revolver and multiple rounds oI .38 caliber
Special P ammunition Irom a variety oI manuIacturers, including Remington
Peters, Winchester, W Brand, in addition to Federal . (17 RT 2858-64.)
Patricia Fant was a Iorensic Iirearm examiner on the list oI Los Angeles
County Superior Court Iirearm experts. (16 RT 2704.) Fant had previously
been a Los Angeles County Deputy SheriII Ior 28 years, including the last six
years Irom 1993-1999 as a Iirearms examiner Ior the SheriII`s crime lab. (16
RT 2704.) She had testiIied as a Iirearms expert in over 140 diIIerent cases.
(16 RT 2706.)
Over 37 years, Smith & Wesson had manuIactured about 623,000
Model 49 revolvers. (16 RT 2709-10.) Taurus, a Brazilian Iirearm maker,
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
26

made a copy oI the Model 49. (16 RT 2710.)
Fant examined the multi-colored blanket Iound with GSR near
Rasmussen`s body. (16 RT 2710-11.) The distance Irom a bullet hole to a line
oI barrel gap discharged would vary depending on how a Iabric was Iolded
when a revolver was Iired. (16 RT 2748.) Without knowing that variable, the
barrel length oI the gun used could not be measured with certainty. (!"#$.)
Multiple other Iirearms had the same two inch barrel and barrel cylinder gap.
(!"#$.) There were Iour distinct although Iaint shoe prints on the blanket Ior
which there was no account. (16 RT 2716-17.)
The two bullets Irom Rasmussen`s autopsy were either .38 special or
.357 magnum caliber bullets. (16 RT 2738.) Multiple models oI Iirearms in
addition to a Smith & Wesson Model 49 could have Iired those bullets. (16
RT 2751-52.) A microscopic examination oI the two bullets showed they were
Iired by the same gun. (16 RT 2753.)
Fant could not say that the bullets were made by Federal because in the
1980`s ammunition manuIacturers bought components Irom other
manuIacturers. (16 RT 2717.) Moreover, bullets made by others had similar
tool marks Ior crimping the bullet jacket to the bullet. (16 RT 2717.) There
was no way to tell Irom the bullet alone who manuIactured it. (16 RT 2720.)
Federal sold the same Federal .38 Special Plus-P ammunition to civilians and
law enIorcement. (16 RT 2721-22.)
Fant had regularly perIormed bullet trajectory analyses at crime scenes.
(16 RT 2724.) Based on the available evidence, Fant could not determine the
position oI the person who Iired the gun making the holes in the kitchen
curtain. (16 RT 2727.)
As to appellant`s lock picking ability, an entry Ior July 29, 1986 stated
that appellant went home but couldn`t get in because she didn`t have her keys.
(17 RT 2898.)
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
27

!" $%&'&()*' +,)-*..*."
The deIense presented several character witnesses. Suzanne Mendoza
was appellant`s cousin and Iriend who had known appellant virtually her entire
liIe. (16 RT 2649, 2652.) They were particularly close as children and again
in their 20`s aIter they graduated Irom college and both lived in Los Angeles.
(16 RT 2652.) They continued a close relationship aIter they both married.
(16 RT 2652-53.) Mendoza had never seen appellant be violent towards
anybody. (16 RT 2658.)
While working at Devonshire Division with appellant in 1985-1986,
Michael Alexander observed her arrest people. (16 RT 2671-72.) Based on
his experience working with appellant, he did not consider her to be a violent
person. (16 RT 2672.)
Kim Dittbern went through a LAPD program with appellant to prepare
women to become police oIIicers as well as the police academy. (17 RT 2783-
85.) At the academy, they were in the same class together every day Ior six
months. (17 RT 2785-86.) Dittbern observed appellant interact with both men
and women. (17 RT 2786.) Dittbern did not work with appellant aIter they
graduated, but they stayed in regular contact, even aIter Dittbern leIt LAPD in
1989. (17 RT 2787-89.) Dittbern had observed appellant in many diIIerent
situations and never saw any violence with her. (17 RT 2790.)
Sheri HuII had known appellant Ior over 30 years since meeting her at
Dykstra Hall at UCLA in 1978. (17 RT 2796.) They hung out with the same
people at UCLA. (17 RT 2796-97.) HuII knew Ruetten and appellant as
Iriends in college, but not more than that. (!"#$.) Ruetten had dated one oI
HuII`s roommates. (17 RT 2797.) HuII did not see jealousy or anger Irom
appellant when Ruetten dated HuII`s roommate. (!"#$.) AIter appellant and
HuII graduated, they stayed in regular contact through the years. (17 RT
2797-2800.)
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
28

Over a 30 year relationship, HuII had never seen appellant act violently.
(17 RT 2801-02.) Violence was not part oI her personality. (!"#$.)
!"#$%&'(

*+

(,& ("*!- ./$"( &""&0 12 0&'2*'# !33&--!'(45
%/(*/' (/ 0*5%*55 (,& .!5& 1&.!$5& 67 2&!"5 /8
3"&9!..$5!(*/' 0&-!2 :*/-!(&0 ,&" "*#,( (/ 0$&
3"/.&55 /8 -!;+

!+ *<=>?@AB=C?<+
The Rasmussen homicide occurred on February 24, 1986. (11/6/12 CT
3-4) However, appellant was not arrested until June 5, 2009 or charged with
the murder until a criminal complaint was Iiled on June 8, 2009. (!"#$.;
11/6/12 CT 30.) Because oI the 23 year delay in bringing charges, appellant at
the preliminary hearing moved to dismiss the case Ior prejudicial pre-
accusation delay in violation oI her state and Iederal due process rights.
(11/6/12 CT 1; citing Cal. Const., Art. I, 15; U.S. Const., 5th & 14th
Amends.)
The trial court denied the motion to dismiss. It concluded that the
Truth-in-Evidence provision oI the CaliIornia Constitution (Cal. Const., Art. I,
28, subd. (I)(2)) required application oI the Iederal due process standard to
dismiss Ior pre-accusation delay. (1 CT 27-28.) In the court`s view, the
Iederal standard required appellant to show that the government intentionally
or recklessly delayed prosecution to obtain a tactical advantage over the
deIense and appellant Iailed to do so. (!"#$.) Moreover, even assuming that
state due process standards applied, the concluded that appellant Iailed to show
suIIicient prejudice Irom the delay to require dismissal. (1 CT 28-30.)
As explained below, the trial court erred in Iinding that the Truth-in-
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
29

Evidence provision oI the CaliIornia Constitution required application oI
Iederal due process standards because the relevant provision oI the CaliIornia
Constitution (Art. I., 24) gives independent Iorce and eIIect to the Due
Process Clause oI the CaliIornia Constitution (Art., I, 15).
Moreover, the CaliIornia Supreme Court has held that even negligent
delay requires dismissal when it prejudiced the deIense. (!"#$%" '( )"%*#+
(2008) 43 Cal.4th 1242, 1251-52, 1255.) The 23 year delay in bringing
charges in this case impaired appellant`s ability to obtain deIense evidence and
to cross-examine the prosecution`s witnesses. Accordingly, due process
required dismissal oI the murder charge.
B. Factual And Procedural Background.
1. The Briefing Below.
By a written motion, deIense counsel provided a declaration reviewing
the case history based on discovery provided by the prosecution at the time oI
the preliminary hearing. (11/6/12 CT 3-10.)
There were no eyewitnesses to the February 1986 homicide. (11/6/12
CT 3.) To implicate appellant, the prosecution relied on physical evidence,
including a swab taken oI an apparent bite mark on Rasmussen`s arm.
(11/16/12 CT 3-4.) However, the police did not begin to analyze the physical
evidence until August 2003 or complete a DNA analysis oI the bite mark swab
until February 2005. (,-./.) The DNA analysis showed that the major proIile
Irom the bite mark swab was Iemale DNA and not Irom Rasmussen. (,-./.) In
June 2009, investigators arrested appellant aIter concluded that she was the
source oI the major DNA proIile. (11/6/12 CT 4, 15.)
Discovery showed that the police had reason to investigate appellant
beginning February 25, 1986, the day aIter the homicide. (11/6/12 CT 5.) On
that day, Nels Rasmussen (the Iather oI the victim Sheri Rasmussen) discussed
the case with LAPD Detective Mayer (the lead investigator) in the presence oI
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
30

Sheri`s husband John Ruetten. Nels asked Detective Mayer iI he had checked
out appellant as a suspect because she was Ruetten`s Iormer girlIriend and an
LAPD oIIicer. (11/6/12 CT 5.) About three weeks later, Ruetten again
mentioned appellant when detectives told him about the bite mark. (11/6/12
CT 4.) On November 19, 1986, Ruetten contacted the investigators and again
conIirmed that appellant was an LAPD oIIicer and his Iormer girlIriend.
(!"#$.)
On or beIore December 9, 1986, Nels Rasmussen told Detective Mayer
that Sheri had been threatened by Ruetten`s Iormer girlIriend who was a
LAPD oIIicer. (11/6/12 CT 5.) Sheri`s mother also told detectives that they
should investigate Ruetten`s Iormer girlIriend. (!"#$.) However, the police did
not investigate appellant until 2009. (11/6/12 CT 3-4.)
The police also Iailed until May 7, 2009 to interview Rasmussen`s
roommate beIore she lived with Ruetten. (11/6/12 CT 5.) The roommate
conIirmed prior inIormation that Rasmussen said that in June 1985 appellant
came to see her at work, made known her Ieelings Ior Ruetten and questioned
whether Rasmussen could make him happy. (!"#$.)
By the declaration, deIense counsel also explained how the delay
prejudiced her deIense by loss oI evidence and Iaded memories. (11/6/12 CT
6-7, 9.) For example, records had been lost to ensure proper documentation
and chain oI custody Ior physical evidence Irom February 1986 until analysis
in 2005 and 2009. (!"#$.)
Sylvia Nielson, Rasmussen`s secretary at the hospital witnessed the
apparent encounter between Rasmussen and a woman at the hospital. (11/6/12
CT 7.) However, Nielsen had died in September 2000. (!"#$.)
The evidence Irom the crime scene showed that there had been a
prolonged and violent struggle between Rasmussen and her assailant. (11/6/12
CT 8.) The police never interviewed several women who worked with
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
31

appellant and shared a common locker room in February 1986 and they could
no longer recall whether appellant had any injuries in the days aIter the
homicide. (11/6/12 CT 8.)
Rasmussen suIIered three gunshot wounds. (11/6/12 CT 8.) A
trajectory analysis showed that two additional gunshots went through the
sliding glass door in the dining-kitchen area. (11/6/12 CT 8.) At the time oI
the homicide, Rasmussen was the registered owner oI a .22 caliber and a .45
caliber Iirearm. (11/6/12 CT 9.) In 1986, the police collected gun shot residue
(GSR) kits Irom Ms. Rasmussen`s hands and Iace. (!"#$.) However, the
coroner destroyed those kits on January 12, 2007. (11/6/12 CT 8-9.) The loss
oI that inIormation deprived appellant oI an opportunity to show that the crime
occurred under diIIerent circumstances than claimed by the prosecution.
(!"#$.)
Appellant also submitted a declaration Irom deIense investigator
Adalberto J. Luper, a Iormer LAPD robbery-homicide detective. (11/6/12 CT
11-12.) Luper had qualiIied as expert in state court in homicide investigations
and police practices and procedures related to oIIicer involved shootings.
(11/6/12 CT 12.)
Based on his review oI the investigation, Luper concluded that the
police investigators in 1986 were 'at least negligent in Iailing to conduct any
Iollow-up investigation or interviews aIter multiple persons identiIied
appellant as a possible suspect. (11/6/12 CT 12-13.) The detectives should
have shown appellant`s photograph to Rasmussen`s secretary, who witnessed
the incident at the hospital. (11/6/12 CT 13.)
The detectives also should have interviewed appellant`s co-workers to
determine whether appellant had been injured based on the evidence oI a
violent struggle during the homicide. (!"#$.) AIter Ruetten Iailed his initial lie
detector test in 1986, investigators Iailed to conduct a second test to obtain
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
32

more inIormation about Ruetten`s relationship with appellant. (11/6/12 CT
14.) Moreover, upon learning oI possible oIIicer involvement, the detectives
should have contacted their supervisor or internal aIIairs to inIorm them oI
possible oIIicer involvement. (11/6/12 CT 13.)
By a written opposition, the prosecution argued that the delay was
justiIied because Iorensic DNA technology had not received 'scientiIic
veriIication at the time. (11/6/12 CT 40.) In September 2003, the cold case
unit oI LAPD robbery-homicide requested DNA testing in this case. (11/6/12
CT 29.) In the prosecution`s view, the subsequent investigation leading to the
arrest and complaint in June 2009 was timely. (11/6/12 CT 29-30.)
As to the legal standard Ior dismissal, the prosecution argued that the
Truth-in-Evidence provision oI the CaliIornia Constitution (Art. I, 28, subd.
(I)(2)) limited remedies Ior pre-accusation delay to those required by Iederal
law. (11/6/12 CT 35-36, citing People v. Jalencia (1990) 218 Cal.App.3d
808.) Federal law required appellant to show that the pre-accusation delay was
an intentional device to gain a tactical advantage over deIense and appellant
had Iailed to do so. (11/6/12 CT 34-35.)
Alternatively, the prosecution argued that iI state law applied, dismissal
was not required because appellant had Iailed to show any prejudice Irom
delay. (11/6/12 CT 38-39.) The statute oI limitations was the primary
guarantee against bringing overly stale charges. (11/6/12 CT 32-33.) Any
delay in arresting and prosecuting appellant was justiIiable investigatory delay.
(11/6/12 CT 40-41.) Even assuming negligent delay, any Iaded memories or
loss oI evidence applied to both the prosecution and deIense. (11/6/12 CT 44-
46.)
In her reply brieI, appellant argued that the Truth-in-Evidence provision
oI the CaliIornia Constitution governing admission oI evidence (Cal. Const,
Art. I, 28, subd. (I)(2)) was irrelevant to the question oI dismissal Ior pretrial
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
33

delay. (11/6/12 CT 54-55.) As to prejudice, it was suIIicient to show
plausible impairment oI the ability to deIend against the charges. (11/6/12 CT
56-57, citing Fowler v. Superior Court (1984) 162 Cal. App. 3d 215, 220.)
Appellant had done so by showing the loss oI evidence, witnesses and
memories, the ability to investigate and present evidence oI third-party
culpability, and to impeach the chain oI custody oI physical evidence.
(11/6/12 CT 56-59.)
2. Hearing and Ruling by the Trial Court.
BeIore beginning the preliminary hearing, the court addressed
appellant`s motion to dismiss Ior pretrial delay. (1 CT 5, 6.)
DeIense counsel conceded that the prosecution had not intentionally
delayed prosecution to gain a tactical advantage. (1 CT 7, 8.) However, he
argued that the police had been reckless or 'at least negligent in the way they
had investigated the case to the detriment oI appellant`s ability to present a
deIense. (Ibid.)
DeIense counsel also addressed additional discovery recently provided
by the prosecution supporting appellant`s claim oI prejudice. A police record
(marked as Court Exhibit C) showed that records were no longer available to
show when LAPD changed to using the type oI .38 caliber ammunition the
prosecution claimed was used to shoot Rasmussen. (1 CT 8, 9-10; 11/6/12 CT
66 |Court Exhibit C.|.) II the police had timely investigated appellant, they
could have test Iired her .38 caliber revolver Ior comparison to the bullets
recovered Irom Rasmussen`s autopsy. However, that gun was stolen about
two weeks aIter the homicide. (1 CT 10-11.)
In addition, all records oI 911 calls and communications between
oIIicers responding to the homicide had been destroyed. (1 CT 15-16.) That
evidence could have provided additional leads to support a deIense oI third-
party culpability. (Ibid.) Mr. Luper, the deIense investigator and Iormer
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
34

LAPD robberyhomicide detective, was present in court and prepared to
testiIy that the investigation conducted 23 years later could have been done in
1986. (1 CT 10.)
The prosecution claimed that the unavailability oI DNA technology
justiIied the 23 year delay. However, Iorensic DNA analysis had been
available and received general scientiIic acceptance since at least 1987. (1 CT
18-19, citing, inter alia, State v. Woodall (1989) 182 W.Va. 15 |taking judicial
notice oI the general scientiIic acceptance oI DNA analysis in a case involving
a crime committed on January 22, 1987|; People v. Axell (1991) 235
Cal.App.3d 836 |Iinding general acceptance oI Iorensic DNA typing Ior
murder committed on February 24, 1988|.)
The court was 'particularly concerned with the chain oI custody Ior
the 1986 physical evidence, including the bite mark swab. (1 CT 14.)
However, the prosecution asserted that existing records showed that the bite
mark swab had been booked in evidence with the coroner in 1986 and
remained there until the DNA analysis by LAPD in 2005. (1 CT 15.)
The court denied the motion to dismiss. (1 CT 16.) Based on People v.
Jalencia, supra, 218 Cal.App.3d 808, the court concluded that the Truth-in-
Evidence provision oI the CaliIornia Constitution (Cal. Const., Art. I, 28,
subd. (I)(2)) required application oI Iederal due process to a motion to dismiss
Ior pretrial delay. (1 CT 27-28.) 'And according to that standard, I Iind that
the motion should be dismissed because I do not think that the deIense has
persuaded the court that the delay was intentional to gain advantage or
constituted reckless disregard as the Iederal cases have Iurther deIined reckless
disregard oI the deIendant`s rights. (1 CT 27-28.)
Nevertheless, the addressed the CaliIornia standard because People v.
Nelson (2008) 43 Cal.4th 1242 ('Nelson) held that under CaliIornia law
negligent as well as purposeIul delay when accompanied by prejudice violates
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
35

due process. (1 CT 28.) Nelson rejected a claim oI prejudice Irom a 26 year
delay in a 'cold hit DNA case. The court Iound it 'extremely persuasive and
relied 'heavily on it in my ruling today. (1 CT 20.)
There was no 'general right to a prosecution speedier than laid down
by the statute oI limitations. (1 CT 20, citing People v. Archerd (1970) 3
Cal.3d 615, 639.) Here, the delay was 23 years. (1 CT 21.) Nelson stated that
delay does not create a presumption oI prejudice to the deIense. (Ibid.) The
deIendant must demonstrate speciIic prejudice. (Ibid.) II so, the prejudice is
balanced against the prosecution`s justiIication Ior the delay. (Ibid.)
The court Iound that 'possible prejudice Irom the loss oI evidence and
Iaded memories. This included: the death oI Rasmussen`s secretary who
witnessed the apparent encounter between appellant and Rasmussen in June
1985; loss oI memories oI people who worked with appellant aIter the
homicide who could no longer recall whether she showed signs oI injury at the
time; evidence that others may have been involved; lost GSR evidence that
could show a diIIerent scenario Ior the crime; loss oI records oI the type oI
ammunition used by the police prior to February 1986, and the Iailure to test
appellant`s gun beIore it was stolen in March 1986. (1 CT 21-23, 25.) Any
prejudice Irom the loss oI 911 and police communication tapes seemed 'very
speculative. (1 CT 23-24.) As to gaps in the chain oI custody records, the
court viewed that as more prejudicial to the prosecution than to the deIense. (1
CT 23.)
Nevertheless, the court concluded that, although 'Iairly minimal,
appellant made a suIIicient showing oI prejudice to shiIt the burden to the
prosecution to justiIy the delay. (1 CT 25.) The court accepted appellant`s
argument that DNA identiIication technology had been around a long time,
'but that really isn`t the issue. (1 CT 29.) Nelson stated that courts should
not second guess when the police get around to testing DNA and Iound
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
36

justiIiable a 26 year delay in DNA testing. (1 CT 29-30.)
This case was 'very close to Nelson. (Ibid.) 'I Iind that it is
abundantly clear that the delay in bringing the charges against this deIendant
has caused some possible prejudice to her ability to deIend|.| However, 'the
strong justiIication Ior the delay compels the conclusion that there was
absolutely no violation oI her right to due process. (Ibid.) 'I think this is an
investigative delay case and the match was not made until May oI 2009. So
I`m going to deny the motion to dismiss Ior violation oI due process. (1 CT
30.)
!" $%&'(&)( *+ ,-./-0"
Both the state and Iederal rights to due process oI law bar prejudicial
delay in bringing the deIendant to trial. (Cal. Const., Art. I, 7, subd. (a), 15;
U.S. Const., 5th & 14th Amends.; People v. Martine: (2000) 22 Cal.4th 750,
767 |'DeIendant is correct that the right oI due process protects a criminal
deIendant's interest in Iair adjudication by preventing unjustiIied delays|.||;
Doggett v. United States (1992) 505 U.S. 647, 655 In. 2 |112 S. Ct. 2686; 120
L. Ed. 2d 520| |'a deIendant may invoke due process to challenge delay both
beIore and aIter oIIicial accusation|.)
'II the alleged delay occurs prior to the Iiling oI an indictment or
inIormation, there is no presumption and a three-step analysis is employed to
determine whether the deIendant's rights have been violated. First, the
deIendant must show he has been prejudiced by the delay. Second, the burden
then shiIts to the prosecution to justiIy the delay. Third, the court balances the
harm against the justiIication. (People v. Dunn-Gon:ale: (1996) 47
Cal.App.4th 899, 911; accord People v. Martine:, supra, 22 Cal.4th at p. 767-
68.).)
Prejudice is a 'Iactual question Ior the trial court that 'is reviewed Ior
substantial evidence. (People v. Alexander (2010) 49 Cal.4th 846, 874, citing
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
37

People v. Hill (1984) 37 Cal.3d 491, 499.) However, the application oI the
law to the Iacts to determine whether the deIendant`s due process rights were
violated is reviewed independently. (In re Scott (2003) 29 Cal.4th 783, 812
|"'Any conclusions oI law, or oI mixed questions oI law and Iact, are subject to
independent review.' |Citation.|"|.)
D. The Trial Court Erred In Finding That The Truth-In-
Evidence Provision Of The California Constitution Imposed
Federal Standards For Dismissal.

Citing People v. Jalencia, supra, 218 Cal.App.3d 808, the trial court
concluded that the Truth-in-Evidence provision oI the CaliIornia Constitution
(Art. I, 28, subd. (I)(2); aka 'Proposition 8) required application oI Iederal
due process standard to appellant`s motion to dismiss. (1 CT 27-28.) It
construed the Iederal standard as requiring appellant to show the prosecution
intentionally or recklessly delayed prosecution to gain an advantage over the
deIense and appellant had Iailed to do so. (Ibid.)
However, the relevant provision oI the CaliIornia Constitution (Art. I.,
24) gives independent Iorce and eIIect to the Due Process Clause oI the
CaliIornia Constitution (Art., I, 15). Under that standard, 'negligent, as well
as purposeIul, delay in bringing charges may, when accompanied by a showing
oI prejudice, violate due process. (People v. Nelson, supra, 43 Cal.4th at p.
1255.)
1. !"#$%&'" and Related Cases.
The 'Right to Truth-in-Evidence provision oI the CaliIornia
Constitution in pertinent part states: 'Except as provided by statute hereaIter
enacted by a two-thirds vote oI the membership in each house oI the
Legislature, relevant evidence shall not be excluded in any criminal
proceeding, including pretrial and post conviction motions and hearings, or in
any trial or hearing oI a juvenile Ior a criminal oIIense, whether heard in
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
38

juvenile or adult court. Nothing in this section shall aIIect any existing
statutory rule oI evidence relating to privilege or hearsay, or Evidence Code
Sections 352, 782 or 1103. (Cal. Const., Art. I, 28, subd. (I)(2).)
People v. Jalencia, supra, 218 Cal.App.3d 808 ('Jalencia) did not
review a motion to dismiss Ior pre-accusation delay under the Due Process
Clause oI the CaliIornia Constitution. (Cal. Const., Art. I, subd. 15.)
Jalencia addressed 'whether state or Iederal standards oI materiality apply to
the loss oI testimonial evidence through an alien witness's deportation.
(Jalencia, 218 Cal.App.3d at pp. 810-11.) Jalencia 'conclude|d| that the state
standard set Iorth in People v. Mefia (1976) 57 Cal.App.3d 574 |('Mefia)|
was abrogated by Proposition 8, and the Iederal standard contained in United
States v. Jalen:uela-Bernal (1981) 458 U.S. 858 |73 L.Ed.2d 1193, 102 S.Ct.
3440| controls. (Id. at p. 811.)
AIter conducting a search and Iinding Jose Valencia and Benjamin
Alcala, a Mexican national, with cocaine and a gun, they charged Valencia
with several crimes, including possession oI cocaine Ior sale (Health & SaIety
Code, 11351) with a Iirearm enhancement ( 12022, subd. (a)). (Id. at p.
811.) However, Alcala 'was deported to Mexico on January 4, 1989, without
prior notice to respondent |Valencia| or his counsel. (Id. at p. 812.)
Valencia moved to dismiss the charges. (Id. at p. 812.) He argued that
Mefia required dismissal because Alcala was a material witness to the drug
charge and could provide exculpatory evidence on the Iirearm allegation. (Id.
at pp. 812-13.) The trial court agreed but the Court oI Appeal reversed in part,
holding that the 'Iederal standard to determine the constitutional materiality oI
deported witnesses applied. (Id. at p. 813.) (Ibid.)
Mefia relied on a series oI CaliIornia Supreme Court cases Irom the
1970`s addressing due process standards Ior dismissal when state action made
a material witness unavailable. (Mefia, 57 Cal.App.3d at pp. 579-80, citing
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
39

People v. Kirkpatrick (1972) 7 Cal.3d 480, 486, Belli::i v. Superior Court
(1974) 12 Cal.3d 33, 36, and People v. Kiihoa (1960) 53 Cal.2d 748.)
However, since the decision in Mefia, the high court in United States v.
Jalen:uela-Bernal, supra, 458 U.S. 858, set new standards Ior when
deportation oI alien witnesses violates the compulsory process clause oI the
Sixth Amendment or the due process clause oI the FiIth Amendment.
(Jalencia, 218 Cal.App.3d at p. 815.)
In addition, aIter Mefia, the Court oI Appeal in People v. Epps (1986)
182 Cal.App.3d 1102 ('Epps) addressed application oI Proposition 8 to the
remedy Ior Iailure to preserve evidence. (Jalencia, 218 Cal.App.3d at p. 817.)
The deIendant in Epps relied on the state standard in People v. Hitch (1974)
12 Cal.3d 641 to request dismissal oI murder and other charges because oI the
destruction oI blood and alcohol evidence that could have showed an impaired
mental state at the time oI the crimes. (Epps, 182 Cal.App.3d at p. 1110.)
The trial court granted the motion. However, Epps reversed because the
subsequent high court decision in California v. Trombetta (1984) 467 U.S. 479
|81 L.Ed.2d 413; 104 S.Ct. 2528| ('Trombetta) controlled due process
standards Ior destruction oI evidence rather than the state standard articulated
by People v. Hitch, supra. (Epps, 182 Cal.App.3d at pp. 1113-15.)
'Whenever the remedv Ior the violation oI a Iederal constitutional right,
regardless oI whether it is search and seizure, due process, right to
conIrontation, etc., is not covered by a CaliIornia statutory scheme such as
privilege, and involves the exclusion oI evidence, Proposition 8 requires the
court to apply Iederal judicial standards. (Id. at p. 1113, original italics.)
'|I|t can be argued that Proposition 8 does not address this area oI
constitutionally guaranteed access to evidence except in those cases where the
court, in Iashioning a remedy, considers exclusion oI evidence. Here the court
was never Iaced with a request to exclude evidence but was asked to dismiss
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
40

the case or, in the alternative, to dismiss all speciIic intent crimes. As
previously discussed, the 'trigger' to Proposition 8 occurs when exclusion oI
evidence is considered as a remedy. We Iind that, . . . where the evidence
allegedly lost or destroyed is potentially exculpatory, and the usual remedy is
exclusion oI evidence potentially inculpatory, the Iunctional remedial
equivalent oI exclusion oI evidence is dismissal or dismissal oI speciIic intent
crimes. (Id. at p. 1115.)
Jalencia construed this language in Epps to mean that 'the reach oI
Proposition 8 includes not only suppression oI evidence cases, but instances
where the judicially created remedy is dismissal oI charges. (People v.
Jalencia, supra, 218 Cal.App.3d at p. 818.)
Jalencia noted (ibid.) that the People v. Lope: (1988) 198 Cal.App.3d
135 had relied on Epps to reach the same conclusion in aIIirming the denial oI
a motion to dismiss a robbery charge Ior deportation oI material witnesses.
(Id. at p. 146 |'|S|ince dismissals on Mefia grounds are equivalent to the
exclusion oI evidence, and since the undisputed import oI |Cal. Const., Art. I,
28,| subdivision (d) |current subdivision (I)(2)| is to prevent the exclusion oI
evidence on independent state grounds, it Iollows that independent state
grounds no longer justiIy the rejection oI the Iederal standard oI materiality in
Mefia cases. (Id. at p. 146.)
2. Under Article I, Section 24, The Due Process Clause
of the California Constitution Must Be Given
Independent Force And Effect.

For multiple reasons, the Epps-Lope:-Jalencia line oI authority does
not mandate application oI Proposition 8 to a motion to dismiss Ior pre-
accusation delay based on the Due Process Clause oI the CaliIornia
Constitution. (Cal. Const., Art. I., 15.)
First, none oI those cases addressed that issue. ThereIore, they have no
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
41

application here. (People v. Scheid (1997) 16 Cal.4th 1, 17 |'Language used
in any opinion is oI course to be understood in the light oI the Iacts and the
issue then beIore the court, and an opinion is not authority Ior a proposition
not therein considered. |Citation.|.`|.)
Second, Iederal law controlled the decisions in Epps, Lope:, and
Jalencia because those cases addressed Iederal constitutional standards Ior
dismissal as articulated by the high court Ior deportation oI a material witness
or destruction oI evidence. (Sims v. Georgia (1967) 385 U.S. 538, 544 |17 L.
Ed. 2d 593, 598, 87 S. Ct. 639| |A ruling by the United States Supreme Court
on a question oI Iederal constitutional law is 'a constitutional rule binding
upon the States, and under the Supremacy Clause oI Article VI oI the
Constitution, it must be obeyed.|.) However, the CaliIornia Supreme Court
controls questions related to the state Constitution. (Auto Equitv Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)
Third, the relevant provision oI the CaliIornia Constitution provides:
'Rights guaranteed by this Constitution are not dependent on those guaranteed
by the United States Constitution. (Cal. Const., Art. I, 24, hereaIter
'section 24.)
In the lead case interpreting Proposition 8, the CaliIornia Supreme
Court held that 'Proposition 8 did not repeal either section 13 |state
prohibition against unreasonable searches and seizures| or section 24 |rights
guaranteed by the state Constitution are not dependent on those guaranteed by
the Iederal Constitution| oI article I. The substantive scope oI both provisions
remains unaIIected by Proposition 8. (In re Lance W. (1985) 37 Cal.3d 873,
886.)
By Proposition 115, the 'Crime Victims Justice ReIorm Act, the
CaliIornia electorate subsequently attempted to restrict section 24 by amending
the CaliIornia Constitution to state that '|t|his Constitution shall not be
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
42

construed by the courts to aIIord greater rights to criminal deIendants than
those aIIorded by the Constitution oI the United States|.|` (Raven v.
Deukmefian (1990) 52 Cal.3d 336, 350 ('Raven).) Raven held that was
'invalid revision oI the CaliIornia Constitution beyond the scope oI the
initiative process (id. at p. 355) because it 'would substantially alter the
substance and integrity oI the state Constitution as a document oI independent
Iorce and eIIect. (Id. at p. 352.)
Raven noted that, since the adoption oI section 24 in 1974, it had
'served as the basis Ior numerous decisions interpreting the state Constitution
as extending protection to our citizens beyond the limits imposed by the high
court under the Iederal Constitution. |Citations.| (Id. at pp. 353-54.) In
support oI this statement oI the law, Raven cited cases giving independent
Iorce and eIIect to the due process and speedy trial provisions oI Article I,
section 15, oI the CaliIornia Constitution. (Id. at p. 354, citing People v.
Ramos (1984) 37 Cal.3d 136, 152 |'As the Attorney General acknowledges,
deIendant's state constitutional . . . |due process| claim cannot be resolved by
a mechanical invocation oI current Iederal precedent.`|, quoting People v.
Chave: (1980) 26 Cal.3d 334, 352; People v. Hannon (1977) 19 Cal.3d 588,
606-608 |'At the same time, the |United States| Supreme Court's decision
in Marion did not, and indeed could not, determine the constitutional
requirements oI the right to a speedy trial guaranteed by the analogous portion
oI the CaliIornia Constitution.|.)
Subsequent to Raven, the CaliIornia Supreme Court 'reiterate|d| . that
the CaliIornia Constitution continues to aIIord criminal deIendants an
independent source oI protection Irom inIringement oI certain rights, including
the rights oI equal protection and due process oI the law. (Bowens v.
Superior Court (Alameda Countv) (1991) 1 Cal.4th 36, 45, In. 4, citing Raven,
supra, 52 Cal.3d 336.) In particular and as discussed Iurther below, the
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
43

CaliIornia Supreme Court has given independent Iorce and eIIect to the Due
Process Clause oI the CaliIornia Constitution when reviewing a motion to
dismiss a prosecution Ior pre-accusation delay. (!"#$%" '( )"%*#+, *-$./, 43
Cal.4th at p. 1251 |'we can and will apply CaliIornia law|.)
Finally, the trial court overlooked the relevant precedent, cited by
appellant below. (11/6/12 CT 55.) In !"#$%" '( 0#1*"+ (2007) 165
Cal.App.4th 761, as in this case, the district attorney argued that Proposition 8
Ioreclosed dismissal Ior preaccusation delay because 'under 2#34 the Iederal
and state Constitutions there is no denial oI due process unless the delay was
deliberately undertaken by the prosecution to gain tactical advantage over a
deIendant. (56. at p. 772, original emphasis.) The Court oI Appeal rejected
this argument.
'It is Iirmly established CaliIornia law that a Iinding oI a denial oI due
process based on preaccusation delay is not dependent on a Iinding that the
delay was undertaken by the prosecution to disadvantage the deIendant. (Id.
at pp. 772-73, citing, 7+3". /%7/, 894".%7+: '( 8-$".7#. ;#-.3 (1978) 22 Cal.3d
493, 507 |'We do not intend to imply that only a deliberate delay by the
prosecution Ior the purpose oI prejudicing the deIense may justiIy a conclusion
that a deIendant has been deprived oI due process.|.)
As to Proposition8, the 'literal language oI CaliIornia Constitution,
article, I, section 28 assumes its application to evidence introduced at a
criminal proceeding. Evidence Code section 140 deIines evidence` as
testimony, writings, material objects, or other things presented to the senses
that are oIIered to prove the existence or nonexistence oI a Iact.` Nothing in
this deIinition suggests evidence` includes dismissals.` Nothing in section
28(d) suggests Proposition 8 was intended to require that Iederal dismissal
rules apply in CaliIornia. (56. at p. 775, In. 2.)
'Moreover, we note the section was enacted by Proposition 8, an
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
44

initiative. Initiatives may amend but not revise the Constitution. (Cal. Const.,
art. XVIII.) II CaliIornia Constitution, article, I, section 28(d) is as broad as the
district attorney suggests, then an argument can be made that, given its breadth
and its eIIect on the judicial interpretation oI our state Constitution, it is a
revision and unconstitutional. (Id. at p. 775, In. 2, citing Raven, 52 Cal.3d at
pp. 349-355.)
For all these reasons, the trial court erred in Iailing to give independent
Iorce and eIIect to the Due Process Clause oI the CaliIornia Constitution.
E. The Trial Court Erred In Finding 1ustifiable Delay In This
Case Based On !"#$%&.

In Nelson, the CaliIornia Supreme Court noted that it had previously
'stated that |a| claim based upon the Iederal Constitution also requires a
showing that the delay was undertaken to gain a tactical advantage over the
deIendant.` (Nelson, 43 Cal.4th at p. 1251, quoting People v. Catlin (2001)
26 Cal.4th 81, 107.) However, upon Iurther review oI high court precedent
Nelson concluded that 'the exact standard under that Constitution is not
entirely settled. It is clear, however, that the law under the CaliIornia
Constitution is at least as Iavorable Ior deIendant in this regard as the law
under the United States Constitution. Accordingly, we can and will apply
CaliIornia law. (Id. at p. 1251.)
'|U|nder CaliIornia law, negligent, as well as purposeIul, delay in
bringing charges may, when accompanied by a showing oI prejudice, violate
due process. This does not mean, however, that whether the delay was
purposeIul or negligent is irrelevant. (Id. at p. 1255.) '|W|hether the delay
was negligent or purposeIul is relevant to the balancing process. PurposeIul
delay to gain an advantage is totally unjustiIied, and a relatively weak showing
oI prejudice would suIIice to tip the scales towards Iinding a due process
violation. II the delay was merely negligent, a greater showing oI prejudice
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
45

would be required to establish a due process violation. (!". at p. 1256.)
Here, the trial court Iound neither intentional nor reckless delay by the
prosecution to disadvantage the deIense. (1 CT 7, 26, 29.) However, 'it is
clear that there was negligence (1 CT 28) and 'abundantly clear that the delay
in bringing the charges against this deIendant has caused some possible
prejudice to her ability to deIend|.| (1 CT 30.)
However, on balance, the court viewed the prejudice to the deIense as
'Iairly minimal (1 CT 25) and 'strong justiIication Ior investigative delay (1
CT 30) because 'this case was not solved until May oI 2009 when the
deIendant`s DNA was matched to the biological matter recovered Irom the
crime scene. (1 CT 29.) In the court`s view, this made appellant`s case 'very
close to the circumstances oI #$%&'(, where the crime occurred in 1976 and
DNA match was not Iound until 2002. (1 CT 29-30.)
However, appellant`s case diIIers in several signiIicant ways Irom
#$%&'(. There, a rape-murder occurred on February 23, 1976. (#$%&'() 43
Cal.4th at pp. 1247-48.) 'Within a couple oI weeks, a witness reported the
license plate number oI the deIendant`s car to the police because the car
appeared similar to the car in the area oI the victim`s abduction. (!". at p.
1248.) 'In early March 1976, sheriII deputies interviewed the deIendant, but
did not pursue him as a suspect because he provided an alibi supported by his
mother-in-law. (!+,".) 'Detectives interviewed over 180 potential witnesses
and Iollowed other leads. However, they were unable to develop suIIicient
evidence to Iocus the investigation on a speciIic person. Eventually, the matter
became a cold case, that is, unsolved but inactive. (!". at p. 1248.)
'In October 2000, the state allocated Iunds to enable local law
enIorcement agencies to utilize DNA to solve sexual assault cases that lacked
suspects. (!". at p. 1248.) 'In July 2001, . |t|he case was put in line Ior
DNA analysis. (!". at pp. 1248-49.) The state Department oI Justice then
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
46

matched a DNA proIile Irom a semen stain to the deIendant`s proIile in the
state convicted oIIender databank. (!". at p. 1249.) In 2002, detectives with a
warrant obtained oral swabs Irom deIendant. (!#$".) The DNA analysis oI a
swab matched the evidence samples and a prosecution ensued. (!#$".)
Under these circumstances, %&'()* Iound that 'the justiIication Ior the
delay was strong. The delay was investigative delay, nothing else. The police
may have had some basis to suspect deIendant oI the crime shortly aIter it was
committed in 1976. But law enIorcement agencies did not Iully solve this case
until 2002, when a comparison oI deIendant's DNA with the crime scene
evidence resulted in a match, i.e., until the cold hit showed that the evidence
came Irom deIendant. Only at that point did the prosecution believe it had
suIIicient evidence to charge deIendant. A court should not second-guess the
prosecution's decision regarding whether suIIicient evidence exists to warrant
bringing charges. (!". at p. 1256.)
The deIendant 'argue|d| that the DNA technology used here existed
years beIore law enIorcement agencies made the comparison in this case and
that, thereIore, the comparison could have, and should have, been made sooner
than it actually was. Thus, he argues, the state's Iailure to make the comparison
until 2002 was negligent. We disagree. A court may not Iind negligence by
second-guessing how the state allocates its resources or how law enIorcement
agencies could have investigated a given case. . It is not enough Ior a
deIendant to argue that iI the prosecutorial agencies had made his or her case a
higher priority or had done things a bit diIIerently they would have solved the
case sooner. (!". at p. 1256.)
In this case, the prosecution in this case had more than 'some basis to
suspect appellant shortly aIter the crime. (!#$".) On the day aIter the crime,
Nels Rasmussen (the Iather oI the victim Sheri Rasmussen) identiIied
appellant as a suspect and police oIIicer and asked Detective Mayer iI he had
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
47

checked her out. (11/6/12 CT 5.) About three weeks later and again on
November 19, 1986, Ruetten mentioned appellant to police investigators as his
Iormer girlIriend and police oIIicer when they told him about the bite mark on
Rasmussen. (11/6/12 CT 4.) In December 1986, Rasmussen`s mother also
told Detectives Mayer and Fisk that they should investigate Ruetten`s Iormer
girlIriend. (11/6/12 CT 5.)
In sum, the three people closest to Sheri Rasmussen had identiIied
appellant as a suspect in 1986. However, unlike the investigators in Nelson,
the police did not question appellant until 2009 even though she was readily
available to them as a Iellow police oIIicer. As Mr. Luper, the deIense
investigator and Iormer LAPD homicide detective, explained, the police in
1986 could readily have obtained Iingerprints or biological samples to include
or exclude appellant as a suspect, interviewed witnesses to determine whether
she had been injured, tested her .38 caliber handgun, and shown her
photograph to the witness at the hospital. (11/6/12 CT 11-13.)
Appellant`s status as a police oIIicer is an important distinction between
this case and Nelson. The CaliIornia Supreme Court has recognized a
heightened standard oI diligence where there is evidence oI oIIicer
involvement in a crime. 'To maintain the public's conIidence in its police
Iorce, a law enIorcement agency must promptly, thoroughly, and Iairly
investigate allegations oI oIIicer misconduct; iI warranted, it must institute
disciplinary proceedings. (Pasadena Police Officers Assn. v. Citv of
Pasadena (1990) 51 Cal. 3d 564, 572.) As Mr. Luper explained, because
appellant was a police oIIicer, the detectives in 1986 should have contacted
their supervisor or internal aIIairs to inIorm them oI possible oIIicer
involvement in a crime. (11/6/12 CT 13.)
This case also diIIers Irom Nelson in the prosecution`s Iailure Ior 23
years to use DNA technology. The prosecution did not claim that they lacked
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
48

Iunds to test appellant`s DNA. (C.f. Nelson, 43 Cal.4th 1248-49.) Nor did the
prosecution have to wait in line Ior a state-wide backlog oI cases Ior DNA
testing. (Ibid.) The police had their own crime lab. The evidence samples and
appellant were immediately available.
Accordingly, DNA technology available since the 1980`s could readily
have been used to evaluate appellant as a suspect. (1 CT 18-19, see, e.g.,
Jeffrevs, A.J., et al., 'Individual-SpeciIic Fingerprints` oI Human DNA
(1985) Nature 316: 76-79; State v. Woodall, supra, 182 W.Va. at p. 22 |taking
judicial notice oI the general scientiIic acceptance oI DNA analysis Ior a crime
committed on January 22, 1987|; Delaware v. Pennell (1989) 584 A.2d 513,
514 |Finding general acceptance oI DNA testing oI evidence related to 'a
series oI murders oI young Iemales during 1987-88.|; People v. Axell, supra,
235 Cal.App.3d 836 |Iinding general acceptance oI Iorensic DNA typing Ior
murder committed on February 24, 1988|.)
For all these reasons, the court erred in Iinding that the prosecution
justiIiably delayed 23 years to interview appellant or test the evidence while
memories Iaded, a key witness died, and evidence oI third-party culpability
was lost.
F. The Delay Was Prejudicial To The Defense.
'Even a minimal showing oI prejudice may require dismissal iI the
proIIered justiIication Ior delay is insubstantial.` (People v. Mirenda (2009)
174 Cal.App.4th 1313, 1327-28, citations and internal quotations omitted.)
'Among other things, |p|rejudice |Ior due process or speedy trial violation
claims| may be shown by loss oI material witnesses due to lapse oI time or loss
oI evidence because oI Iading memory attributable to the delay.` (Id. at p.
1328, quoting People v. Catlin, supra, 26 Cal.4th at p. 107; see also United
States v. Marion (1971) 404 U.S. 307, 321-22 |92 S. Ct. 455; 30 L. Ed. 2d
468| |'Passage oI time, whether beIore or aIter arrest, may impair memories,
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
49

cause evidence to be lost, deprive the deIendant oI witnesses, and otherwise
interIere with his ability to deIend himselI.|.)
Prejudice is also present where loss oI evidence impairs the deIendant`s
ability to cross-examine the prosecution`s witnesses. (People v. Hill, supra, 37
Cal.3d at p. 498.) OI all Iactors, the 'most serious is 'the possibility that the
deIense will be impaired. (Barker v. Wingo (1972) 407 U.S. 514, 532 |33
L.Ed.2d 101, 108, 92 S.Ct. 2182|, Iootnote omitted.) This is the most serious
'because the inability oI a deIendant adequately to prepare his case skews the
Iairness oI the entire system. II witnesses die or disappear during a delay, the
prejudice is obvious. There is also prejudice iI deIense witnesses are unable to
recall accurately events oI the distant past. Loss oI memory, however, is not
always reIlected in the record because what has been Iorgotten can rarely be
shown. (Ibid.; accord Doggett, supra, 505 U.S. at p. 654.)
Measured against these standards, the trial court erred in Iinding only
'minimal prejudice to appellant`s ability to prepare her deIense. (1 CT 25.)
There were no witnesses to the February 24, 1986 homicide. The case against
appellant depended entirely on circumstantial Iorensic and motive evidence.
Even by the time oI the preliminary hearing, there was substantial
evidence oI third-party culpability. On February 24-25, 1986, investigators
liIted 23 Iingerprints Irom the crime scene. (11/6/12 CT 4.) Several came
Irom Rasmussen, Ruetten and one Irom a Iamily Iriend. (Ibid.) However,
seven identiIiable Iingerprints could not be attributed to them, including
Iingerprints near blood in the entryway where Rasmussen Iought with her
assailant. (Ibid.) DNA testing in 2009 showed Ioreign DNA mixed with
Rasmussen`s DNA but no suspects available with which to compare it. (See
Statement oI Facts, Section II.C.2.)
The loss oI all 911 and police communication Iurther impaired
appellant`s ability to show that there were other suspects at the time oI the
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
50

homicide. (11/6/12 CT 8, 23.) The trial court Iound any prejudice Irom this
loss oI evidence was 'very speculative and did not put much weight on it. (1
CT 23-24.) However, Fowler v. Superior Court (1984) 162 Cal. App. 3d 215
('Fowler) shows that the trial court erred.
In Fowler, the deIendant similarly argued that the loss oI a police
dispatcher`s tape was prejudicial because it deprived him oI the ability to show
that he had been set up by the police to arrest him Ior burglary. (Id. at p. 218.)
The trial court rejected this claim, 'apparently oI the view that he Iailed to
establish the tape would reveal a stiIIed-in` phone call Irom a Los Angeles
policeman, but that cannot be the test. . The court's reasoning is circular:
The motion was denied because the deIendant could only speculate` that
evidence lost during an unexplained delay in the proceedings would have
assisted him, when, oI course, that was the very basis Ior the motion in the Iirst
place. (Id. at p. 220.)
This admonition is particularly pertinent here because oI Iorensic
Iingerprint and DNA evidence oI third-party culpability. (See Statement oI
Facts, Section II.C.) This loss was compounded by the Iading oI memories oI
witness to show that she appellant had no sign oI injury on the day aIter the
homicide, contrary to the evidence that the perpetrator engaged in a violent
struggle with Rasmussen. (11/6/12 CT 20-21.) The theIt oI appellant`s
handgun two weeks aIter the homicide also deprived her oI the ability to
impeach the prosecution`s claim that it Iired the Iatal shots. (1 CT 10-11.)
Finally, appellant lost evidence to impeach the chain oI custody Ior the
biological evidence used to implicate her, including the bite mark swab. The
trial court viewed this as probably more prejudicial to the prosecution. (1 CT
23.) However, that was true only upon the presumption that appellant was
guilty. However, 'at this stage oI the proceedings the case has not been tried
and |s|he must be presumed to be innocent|.| (Jones v. Superior Court
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
51

(1970) 3 Cal.3d 734, 741.)
Without the ability to show alteration in the evidence over the course oI
23 years, questions about the chain oI custody went to the weight rather than to
the admissibility oI the evidence. (People v. Lucas (1995) 12 Cal.4th 415,
444.) Once the evidence was admitted, it would inevitably become a bell oI
prejudice that could not be un-rung. (See People v. Hill (1998) 17 Cal.4th 800,
845-46 |'You can`t unring a bell.` |Citation.||.)
G. Conclusion.
Prosecutors 'cannot simply place gathered evidence ... on the 'back
burner hoping that it will some day simmer into something more prosecutable
....` |(People v. Pellegrino (1978) 86 Cal.App.3d 776, 781.)| Nor may |t|he
requirement oI a legitimate reason Ior the prosecutorial delay ... be met simply
by showing an absence oI deliberate, purposeIul or oppressive police conduct.
A legitimate reason logically requires something more than the absence oI
governmental bad Iaith. Negligence on the part oI police oIIicers in gathering
evidence or in putting the case together Ior presentation to the district attorney,
or incompetency on the part oI the district attorney in evaluating a case Ior
possible prosecution can hardly be considered a valid police purpose justiIying
a lengthy delay which results in the deprivation oI a right to a Iair trial.`
(People v. Mirenda, supra, 174 Cal.App.4th at pp. 1329-30, quoting Pennev v.
Superior Court (1972) 28 Cal.App.3d 941, 953.)
The trial court noted no 'general right to a prosecution speedier than
laid down by the statute oI limitations. (1 CT 20, citing People v. Archerd
(1970) 3 Cal.3d 615, 639.) 'It is certainly the case that there is no statute oI
limitations on murder. (Pen. Code, 799.) This alone, however, has no eIIect
on the issue oI a denial oI due process arising Irom prejudicial delay in
bringing accusations. The murders in this case occurred almost a quarter oI a
century beIore . |the deIendant| was charged with them. The passage oI time
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
52

Iades memories, sees the death oI important witnesses and oIten results in the
loss oI physical evidence. All oI those occurred here. (!"#$%" '( )#*+",
(2007) 165 Cal.App.4th 761, 778.)
For all these reasons, the 23 years oI pre-accusation delay was
insuIIicient to outweigh the prejudice to appellant`s deIense. Accordingly, the
prosecution violated appellant`s right to due process and the judgment should
be reversed. (!"#$%" '( !-,".# (2005) 128 Cal.App.4th 968, 974 |A 'dismissal
on due process grounds Ior preaccusation delay, where prejudice to the
deIendant is demonstrated, bars Iurther criminal proceedings.|.)
!!"

$%& $'!() *+,'$ &''&- ./ -&0/!01 (22&))(0$34
5+$!+0 $+ 6,(4% $%& 4&('*% 7(''(0$4 (0- $+
4,22'&44 &8!-&0*&"

(" !9:;<=>?:@<9"
BeIore trial, appellant moved to quash three search warrants issued in
June 2009 and to suppress all evidence obtained thereby on the ground that the
searches and seizures oI evidence violated the Fourth and Fourteenth
Amendments to the United States Constitution. (4 CT 705, 735.) As
discussed below in Section III, Appellant also moved to traverse the June 4,
2009 search warrant because its aIIidavit provided the alleged probable cause
Ior all oI the search warrants. (4 CT 735-36; 2 RT C7-8.)
In her motion to quash, appellant argued that the inIormation oIIered to
demonstrate probable cause to search was stale and insuIIicient to justiIy
searches oI her residence and property 23 years aIter the February 1986
homicide. (4 CT 710-713.) The aIIiant detective`s opinion to the contrary
were Iactually unsupported and insuIIicient to establish probable cause. (4 CT
709-10.) The search warrants were also overbroad in seeking to search
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
53

computers and electronic storage devices that didn`t exist at times relevant to
the crime. (4 CT 713-15.) The good Iaith exception to the exclusionary rule
could not cover these Ilaws apparent on the Iace oI the warrants themselves.
(4 CT 715-16.)
The trial court denied appellant`s motion to quash. It Iound that the
good Iaith exception established by United States v. Leon (1984) 468 U.S. 897
|82 L. Ed. 2d 677, 104 S. Ct. 3405| ('Leon) trumped any Ilaws in the search
warrants. (2 RT C-3-4, 9-10, 11-12.) The trial court also relied on the good
Iaith exception to deny appellant`s motion to quash. (2 RT C14; see Section
III., below.)
The trial court misread the good Iaith exception to validate the search
and seizure oI the evidence based on stale inIormation and overbroad in scope.
Accordingly, the violation oI appellant`s due process and Fourth Amendment
rights required suppression oI the evidence seized and admitted at trial.
1. The Search Warrants And Property Seized.
The Los Angeles County Superior Court issued three search warrants.
On June 4, 2009, Judge William Pounders issued a search warrant Ior
appellant`s person, her residence in Simi Valley, and property accessible to her
at the LAPD, including computers and other electronic storage devices.
3
(4
CT 706-07.) The warrant authorized search oI any inIormation relating to
Rasmussen, her husband John Ruetten, and the February 24, 1986 homicide,
identiIying persons who knew oI Rasmussen, Ruetten or appellant, or oI
medical or dental treatment oI appellant Ior injuries aIter February 24, 1986,
and Iirearms accessible to appellant beIore that date. (4 CT 708; 6/4/09 Search
Warrant at p. 9.)

3
The search warrants and aIIidavits at issue are attached as exhibits to
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
54

On June 15, 2009, Judge Pounders issued another search warrant Ior the
contents oI appellant`s cellular phone. (4 CT 709.) However, no evidence
Irom appellant`s cell phone was presented at trial. Accordingly, the June 15
th

search warrant is not at issue here.
On June 29, 2009, Judge Charlaine F. Olmedo issued a search warrant
Ior electronically stored inIormation Irom 'computers, storage media,
computer hardware and digital evidence seized Irom appellant`s residence on
June 5, 2009 based on the June 4, 2009 search warrant. (4 CT 709; 6/29/09
Search Warrant at p. 3.) The aIIidavit in support oI probable cause stated that
these devices 'may have inIormation relevant to the homicide investigation.
(4 CT 709; 6/29/09 Search Warrant at p. 6.)
Appellant did not dispute that the police had probable cause to arrest
her. (4 CT 709.) However, that was a separate question Irom whether the
aIIidavits established a nexus between the February 24, 1986 homicide and the
locations to be searched in June 2009. (!"#$.) The trial court agreed that the
aIIidavit Ior each search warrant incorporated the Iactual allegations made by
Detective Stearns oI the LAPD in support oI the Iirst, June 4, 2009, search
warrant. (2 RT C7-8; 4 CT 708-09.)
By a 'Statement oI Expertise, Detective Stearns stated that he had
been an LAPD oIIicer Ior 15 years. (6/4/09 Search Warrant at p. 10.) His
training and experience in homicide investigations included the LAPD
detective school and several criminal investigation and homicide courses.
(!"#$.) He had been involved in approximately 150 homicide investigation, 40
as lead investigator. (!"#$.)
The statement oI probable cause recited background inIormation Irom
the 1986 investigation oI the homicide, including evidence oI a violent

appellant`s May 28, 2013 Motion to Augment the Record on Appeal.
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
55

struggle with Rasmussen and collection oI the bite mark swab. (!". at p. 13.)
The February 26, 1986, autopsy determined that Rasmussen died Irom three
gun shots and recovered two bullets Irom her body. (!". at p. 16.) On March
4, 1986, a ballistics analysis concluded that the bullets were .38 or .357 caliber
and 'possibly Iired Irom a Smith & Wesson handgun but also Irom other
handguns. (!#$".) Although the police examined numerous suspects in 1986,
they made no arrests and the case remained open. (!". at p. 17.)
In December 2004, a cold case investigation determined that the minor
DNA proIile Irom the bite mark swab came Irom Rasmussen and the major
proIile was also Iemale. (!#$".) AIter eliminating another Iemale suspect, the
police Iocused on appellant. (!". at pp. 18-19, 21.) They interviewed Ruetten,
Rasmussen`s roommate beIore Ruetten, and Rasmussen Iather and developed
evidence that appellant had verbal arguments with Rasmussen about Ruetten.
(!#$".)
The police also Iound evidence that in 1984 appellant had registered a
.38 caliber Smith & Wesson Model 49 revolver and reported it stolen on
March 10, 1986. (Id. at pp. 19-20.) On May 28, 2009, the police
surreptitiously recovered a drinking cup discarded by appellant in a trash can
and ran a DNA test. (!". at p. 24.) Appellant`s proIile matched the major
proIile Irom the bite mark swab. (!#$".)
Based on all the Ioregoing inIormation, Detective Stearns stated that in
his opinion appellant murdered Rasmussen. (!". at p. 25.) The detective
oIIered the Iollowing averments oI probable cause to search appellant
residence:
The aIIiant 'believes the weapon |used to commit the 1986
homicide| may still be in the possession oI Lazarus. (Id. at
p. 25; 4 CT 708.)

The aIIiant 'believes that the locations to be searched may
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
56

contain photographs, names, addresses and/or inIormation that
will identiIy current and Iormer co-workers, Iriends or
associates who may have knowledge oI Detective Lazarus`s
activities and appearance Irom the period when the murder
occurred or other material inIormation relevant to this
investigation. (!"#$.)

It is the aIIiant`s 'opinion that Lazarus`s relationship with John
Ruetten was signiIicant to her and the she was extremely upset
and devastated when Ruetten became engaged to and ultimately
married Rasmussen. ThereIore, in the aIIiant`s 'opinion, Ms.
Lazarus 'may be in possession oI diaries, daily journals or other
writing expressing her Ieelings towards Ruetten and Rasmussen
at the time leading up to and aIter the murder. (!$. at pp. 25-
26; 4 CT 708.)

Appellant attached the police property reports identiIying over 200
items seized Irom appellant`s residence and LAPD oIIice desk, locker, and
back pack. (4 CT 719-734.) This included multiple computers, electronic
storage devices, diaries and calendars diary with appellant`s name, and a diary
related to her child`s Iirst Iive years. (!"#$.)
2. Issues Raised Below.
By her written motion, appellant argued that inIormation oIIered to
establish because was stale and the opinion oI the aIIiant (Detective Stearns)
did not provide probable that evidence would be Iound at the locations 23
years aIter the crime. (4 CT 709-13.) The June 15, 2009 and June 29, 2009
search warrants were also overbroad in seeking to search computers and
electronic storage devices that didn`t exist at times relevant to the crime. (4
CT 713-15.) The good Iaith exception search warrants Ilawed on their Iace.
(4 CT 715-16.)
By a written opposition, the prosecution argued that the search warrant
aIIidavit provided probable cause oI a nexus between the locations to be
searched and the crime. (4 CT 761-62.) The prosecution noted evidence oI
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
57

appellant`s jealousy and verbal conIrontations with Rasmussen beIore her
death. (4 CT 765-66.) The DNA analysis identiIied appellant as a suspect. (4
CT 769.) That evidence in combination provided probable cause to search
locations 'closely connected to the deIendant. (4 CT 770-71.)
As to the staleness oI the inIormation, the magistrate could rely on the
aIIiant oIIicer`s experience and training to Iind probable cause. (4 CT 770.)
Mere lapse oI time did not control the question oI staleness. (4 CT 772.) The
magistrate could also consider the nature oI the suspected criminal activity and
places to be searched. (!"#$.) Appellant had no reason to discard mementos or
records because she did not become a suspect until 2009. (5 CT 774-75.) The
search warrants were not overbroad because they Iocused on a particular crime
and described the evidence sought with particularity. (4 CT 775-76, 781.)
Finally, the good Iaith exception applied because an oIIicer would have no
reason to question the validity oI the search warrants. (4 CT 782-83.)
By a written reply, appellant argued that probable cause did not exist
because appellant had no connection to the residence to be searched until eight
years aIter the crime. (5 CT 796-97.) The DNA evidence did not establish a
nexus between the 1986 crime and the locations to be searched in 2009. (5 CT
797-98.)
3. The Trial Court`s Rulings.
On July 8, 2012, aIter reviewing the search warrants, the court beIore
trial denied the motion to quash. (2 RT C1-2.) II read in a 'technical way,
the June 4, 2009 search warrant 'may have been overbroad because there was
not probable cause to seize any records Irom 1986. (!"#$.) However, there
was a 'very strong preIerence in the law Ior search warrants, that they should
not be read in a hypertechnical way. (2 RT C3, 9.)
In addition, the court Iound 'ample evidence oI good Iaith and 'on that
alone these warrants should be upheld. (2 RT C3.) The detective went 'in
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
58

good Iaith and 'obtained a warrant Irom an experienced judge. I don`t know
why he can`t rely on that iI the judge said it was okay. (2 RT C3-4.) The
court had 'some concern about the computers ., but I think that even those
were covered by the original warrant and 'good Iaith is clearly demonstrated,
and I think under the law that`s all that has to be shown. (!"#$.)
The court recognized an issue oI whether the aIIidavit was based on
stale inIormation. (2 RT 6.) It agreed that there was no evidence oI a
continuing crime. (!"#$.) There was also no evidence that the computers
existed at the time oI the crime. (2 RT C8.) The prosecution did not dispute
that appellant did not live at the residence to be searched until eight years aIter
the crime. (!"#$.)
Nevertheless, the court 'put a lot oI weight on the good Iaith
exception. (2 RT C8.) The aIIidavit laid out the motive Ior the killing based
on appellant`s interest in continuing her relationship with Ruetten and lasting
aIIection Ior him. (2 RT C9.) 'It doesn`t really matter the passage oI time.
It`s more in the nature oI what you`re looking Ior. (2 RT C10.) Evidence oI
murder may still be present years aIter the Iact. (2 RT C11.) ThereIore, it was
reasonable Ior to conclude that evidence oI the crime would be Iound at the
locations to be searched. (2 RT C9, 11.)
'We trust our courts to properly issue search warrants and to properly
deny warrants that are improperly sought|.| (2 RT C9.) The good Iaith
exception 'tips the scale Ior me on this. (!"#$.) 'So I`m going to deny the
motion to quash. My Ieeling is that the good Iaith exception governs all these
warrants. (2 RT C11-12.) The court was 'Irankly uncomIortable with the
request Ior to search appellant`s cell phone and computers 23 years later
because there was no reason to believe they existed at or around the time oI the
crime. (2 RT C12.) 'But iI I`m going to accept the good Iaith exception, then
I think I`ve got to stand with that. (!"#$.)
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
59

DeIense counsel asked Ior clariIication oI whether the court Iound
probable cause. (2 RT C-12.) The court responded, 'I don`t think I have to
get probable cause or not. I think that it`s all Irankly, good Iaith exception
governs. I do not Iind that |Detective| Stearns tried to pull the wool over the
judge`s eyes with this warrant, and so I think that having Iound the good Iaith
exception requires me to deny your motion. I don`t think I even have to go to
the other issue. (2 RT C12-13.)
!" $%&'(&)( *+ ,-./-0"
'The standard oI appellate review oI a trial court's ruling on a motion to
suppress is well established. We deIer to the trial court's Iactual Iindings,
express or implied, where supported by substantial evidence. In determining
whether, on the Iacts so Iound, the search or seizure was reasonable under the
Fourth Amendment, we exercise our independent judgment. (People v.
Glaser (1995) 11 Cal.4th 354, 362.) Whether a search warrant was overbroad
is also 'a question oI law subject to independent review by the appellate
court. (People v. Kraft (2000) 23 Cal.4th 978, 1041.)
1" 2*3)%4 56-'(6-'% $%&'(&)(7"
'Under CaliIornia law, issues relating to the suppression oI evidence
derived Irom police searches and seizures must be reviewed under Iederal
constitutional standards. (People v. Robles (2000) 23 Cal. 4th 789, 794.)
'The Iirst clause oI the Fourth Amendment declares: The right oI the
people to be secure in their persons, houses, papers, and eIIects, against
unreasonable searches and seizures shall not be violated.` It is general and
Iorbids every search that is unreasonable; it protects all, those suspected or
known to be oIIenders as well as the innocent, and unquestionably extends to
the premises where the search was made and the papers taken. (Go-Bart
Importing Co. v. U.S. (1931) 282 U.S. 344, 356-357 |51 S. Ct. 153; 75 L. Ed.
374|.)
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
60

'The second clause declares: and no Warrants shall issue, but upon
probable cause, supported by Oath or aIIirmation, and particularly describing
the place to be searched, and the persons or things to be seized.` This prevents
the issue oI warrants on loose, vague or doubtIul bases oI Iact. It emphasizes
the purpose to protect against all general searches. Since beIore the creation oI
our government, such searches have been deemed obnoxious to Iundamental
principles oI liberty. (Ibid.)
'The physical entry oI the home is the chieI evil against which the
wording oI the Fourth Amendment is directed.` |Citation.| (Pavton v. New
York (1980) 445 U.S. 573, 585-586 |63 L. Ed. 2d 639, 100 S. Ct. 1371|;
accord Kvllo v. United States (2001) 533 U.S. 27, 46 |121 S.Ct. 2038; 150
L.Ed.2d 94|.)
'Probable cause suIIicient Ior issuance oI a warrant requires a showing
that makes it 'substantially probable that there is speciIic property lawIully
subject to seizure presently located in the particular place Ior which the
warrant is sought.' That showing must appear in the aIIidavit oIIered in support
oI the warrant. (People v. Carrington (2009) 47 Cal.4th 145, 161, citations
and internal quotations omitted.) This is reIerred to as the 'nexus element.
(Illinois v. Gates (1983) 462 U.S. 213, 238 |76 L. Ed. 2d 527; 103 S. Ct. 2317|
|'A warrant application must demonstrate probable cause to believe that .
enumerated evidence oI the oIIense will be Iound at the place to be searched --
the so-called 'nexus' element.`|.)
'Probable cause depends on inIormation known to the police at the
time, not on how things turn out.` |Citation.| (Molina ex rel. Molina v.
Cooper (7
th
Cir. 2003) 325 F.3d 963, 971.) 'Any idea that a search can be
justiIied by what it turns up was long ago rejected in our constitutional
jurisprudence. 'A search prosecuted in violation oI the Constitution is not made
lawIul by what it brings to light.` (Bumper v. North Carolina (1968) 391
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
61

U.S. 543, 548, In. 10 |88 S. Ct. 1788; 20 L. Ed. 2d 797|, citations omitted.)
As a matter oI due process (U.S. Const. 14
th
Amend.), all evidence
obtained in violation oI the Fourth Amendment must be excluded Irom a
subsequent criminal prosecution. (Mapp v. Ohio (1961) 367 U.S. 643, 655 |81
S.Ct. 1684; 6 L.Ed.2d 1081|.)
E. The Information In The Affidavit Was Too Stale To Provide
Probable Cause To Search Appellant`s Residence And
Property 23 Years After The Crime.

'Stale inIormation in a search warrant aIIidavit does not establish
present probable cause Ior a search. (People v. Hirata (2009) 175
Cal.App.4th 1499, 1504.) 'As a general rule, inIormation is stale, and hence
unworthy oI weight in the magistrate's consideration oI an aIIidavit, unless the
inIormation consists oI Iacts so closely related to the time oI the issue oI the
warrant as to justiIy a Iinding oI probable cause at that time.` (Alexander v.
Superior Court (1973) 9 Cal.3d 387, 393, quoting SGRO v. United States
(1932) 287 U.S. 206, 210 |77 L. Ed. 260, 263, 53 S. Ct. 138|; accord United
States v. Grant (9
th
Cir. 2012) 682 F.3rd 827, 835, citations and internal
quotations omitted.) .)
'Although there is no bright line rule indicating when inIormation
becomes stale ..., delays oI more than Iour weeks are generally considered
insuIIicient to demonstrate present probable cause.` (People v. Hirata, supra,
175 Cal.App.4th at p. 1504, quoting People v. Hulland (2003) 110 Cal.App.4th
1646, 1652; accord Hemler v. Superior Court (1975) 44 Cal.App.3d 430, 434
|'In the absence oI other indications, delays exceeding Iour weeks are
uniIormly considered insuIIicient to show present probable cause |Citation|.)
Thus, 'a delay oI 34 days between a controlled sale oI heroin and the
oIIicer's aIIidavit Ior the search warrant has been held insuIIicient to establish
present probable cause. (People v. Hulland, supra, 110 Cal.App.4th at p.
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
62

1652.) Similarly, People v. Hirata, supra, held that 'the aIIidavit inIormation
was stale when the police did not seek a warrant until 82 days aIter the
deIendant completed a drug transaction. 'Consequently, there was no current
inIormation to establish present probable cause. (People v. Hirata, 175
Cal.App.4th at p. 1504.)
InIormation may be timely when the police later receive reliable
inIormation that evidence continues to be located at the premises. (People v.
Mesa (1975) 14 Cal.3d 466, 470.) A gap oI two weeks in the evidence
connecting a residence to a crime may also be acceptable. (United States v.
Harris (1971) 403 U.S. 573, 579 |29 L.Ed.2d 723, 731, 91 S.Ct. 2075| |The
magistrate reasonably concluded that an inIormant`s statement that he
purchased illicit whiskey "'within the past two weeks'" supported an inIerence
that contraband would still be present.|.)
The trial court noted evidence that appellant in 1985-1986 was jealous
oI Rasmussen and had an interest in continuing her relationship with Ruetten.
4

(2 RT C9, 11.) However, that evidence did not alter the Iact that appellant did
not reside at the residence to be searched until eight years aIter the crime, or
that the computers and other electronic devices did not exist around the time oI
the crime. (5 CT 796-98; 2 RT C8.)
Appellant did not that the DNA evidence provided probable cause to
arrest her Ior the homicide. (4 CT 709.) However, '|m|ere evidence oI a
suspect's guilt provides no cause to search his residence. (People v. Gon:ale:
(1990) 51 Cal.3d 1179, 1206.) The 'Iocus on the commission oI a crime or the
guilt oI the accused, while appropriate as a standard Ior probable cause to issue
an arrest warrant, deIlects the magistrate's attention Irom the precise question
he must decide in ruling on an application Ior a search warrant. For that

4
Appellant disputed the latter in the motion to traverse. (See Section III.,
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
63

purpose the more appropriate standard oI probable cause is whether the
aIIidavit states Iacts that make it substantially probable that there is speciIic
property lawIully subject to seizure presently located in the particular place Ior
which the warrant is sought. |Citations.| (People v. Cook (1978) 22 Cal.3d
67, 64, In. 6.)
'A number oI CaliIornia cases have recognized that Irom the nature oI
the crimes and the items sought, a magistrate can reasonably conclude that a
suspect's residence is a logical place to look Ior speciIic incriminating items.
|Citations.|` (People v. Gon:ale:, supra, 51 Cal.3d at p. 1206.) However,
that principle applies where there is evidence that the suspect continued to use
his residence Ior a criminal purpose. (Ibid. |The police corroborated an
inIormant`s statement that the deIendant contended to sell heroin 'from his
residence in La Puente.` (Italics added.)|.) Here, the trial court properly
recognized that there was no evidence oI continuing criminal activity in
appellant`s case. (2 RT C6.)
Alternatively, a lapse oI time between a crime and a search is not
dispositive 'when there is reason to believe . that evidence oI criminality
remains on the premises. (People v. Carrington, supra, 47 Cal.4th at p. 164
('Carrington.) However, Carrington shows why probable cause was lacking
in this case.
In Carrington, the aIIidavit provided evidence that in January 1992, the
deIendant had stolen checks Irom where she Iormerly provided janitorial
services, including 'Blackard Designs and 'NDN Enterprises. (Id. at pp.
161-62.) On March 16, 1992 the police arrested an accomplice who then made
a pretext call to the deIendant 'during which deIendant admitted she had stolen
the Blackard Designs check. On March 19, 1992, an oIIicer spoke with

below.)
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
64

deIendant's Iormer employer who reported that, as part oI her employment,
deIendant had a master key to . |Blackard Designs|, and it was possible she
had duplicated that key. As oI March 20, 1992, the checks stolen Irom NDN
Enterprises still were outstanding and no attempt had been made to cash
them. (!". at p. 162, Iootnote omitted.)
Under these circumstances, 'Iacts stated in the aIIidavit established a
Iair probability that the police would Iind evidence Irom the burglaries in
deIendant's residence. . When property has been stolen by a deIendant and
has not yet been recovered, a Iair probability exists that the property will be
Iound at the deIendant's home. |Citations.| (!". at p. 163.)
Here, appellant did not live in the residence to be searched until eight
years aIter the crime. (5 CT 796-97; 2 RT C8.) Appellant made no admissions
showing that she would still have evidence oI the crime at her residence. No
inIormant or other witness connected her current residence or electronic
devices to the crime.
As to the items stolen, the police recovered Rasmussen`s wallet on
February 25, 1986. (6/4/09 Search Warrant at p. 15.) On March 7, 1986, they
recovered her BMW intact with the key in its ignition. (!". at p. 16.)
Accordingly, there was no Iactual basis to inIer that property taken Irom the
scene would be at appellant`s residence.
The aIIidavit also presented Iirearm evidence. In March 1986, a
ballistics analysis oI two bullets recovered Irom Rasmussen concluded that
they were either .38 or .357 caliber and 'possibly Iired Irom a Smith &
Wesson handgun but also could have been Iired Irom multiple other handguns.
(6/4/09 Search Warrant at p. 16.) On March 10, 1986, about two weeks aIter
the homicide, appellant reported that her.38 caliber Smith & Wesson revolver
had been stolen Irom her vehicle. (!". at pp. 19-20.) That handgun was never
recovered. (!". at p. 19.) Detective Stearns opined that revolver 'may still be
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
65

in the possession oI Lazarus. (!". at p. 25.)
However, appellant purchased a replacement .38 caliber Smith &
Wesson revolver on March 19, 1986. (!". at p. 20.) Moreover, the detective
identiIied no Iactual connection between the handgun report stolen in March
1986 and appellant`s residence in June 2009. (!#$".) The Ninth Circuit
recently addressed a belated search Ior a handgun and Iound it unlawIul.
In %&$'(" *'+'(, -. /0+&' (9
th
Cir. 2012) 682 F.3rd 827, detectives late
in August 2009 obtained a warrant to search deIendant Grant's home 'to
recover, among other evidence, a Iirearm used in a homicide that had occurred
nearly nine months earlier |on January 2, 2009|. (!". at p. 828.) The
'searching oIIicers turned up nothing pertinent to the homicide. But, they did
Iind two Iirearms and ammunition belonging to Grant. (!#$".) The
government then charged Grant with being a Ielon in possession oI Iirearms
and ammunition in violation oI 18 U.S.C. 922(g)(1). (!#$".)
Grant moved to suppress the Iirearms evidence as the Iruit oI an illegal
search, maintaining that there was no probable cause to search his residence
Ior the murder weapon. (!#$".) The district court denied the motion but the
Ninth Circuit reversed. The aIIidavit provided evidence connecting Grant`s
two sons (Davonte and James) to the murder and tracking them to where Grant
resided in Adelanto, CaliIornia. (!". at p. 831.) However, 'Davonte was
incarcerated Irom late April |2009| through the time oI the search in August
|2009|. (!". at p. 833.) James last visited Grant in June 2009. (Ibid.)
'The six-month gap between the homicide and James's visit to Grant's
house undermines any inIerence that iI James had been involved in the
homicide, he maintained possession oI the gun during the entire period
aIterward and ultimately brought it to Grant's residence. Similarly, . |t|he
time lapse between Davonte's incarceration and James's visit to Adelanto also
undermines an inIerence that James kept the gun until his trip to Grant's home.
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
66

The additional two-and-a-halI-month gap between James's visit and the search
Iurther diminishes the likelihood that the gun was still in the house when the
search occurred, even iI it had been there earlier. (Id. at p. at 835.)
Moreover, the aIIidavit provided 'no evidence oI a continuing pattern`
or other good reasons,` |United States v. Lacv (9th Cir. 1997) 119 F.3d 742,
746|, to support an inIerence that a murder weapon brought into Grant's home
in early June would remain there until the end oI August. Such an inIerence is
especially unlikely given the ease oI getting rid oI a gun sought by the police
in a homicide investigation, and the strong incentive to do so--whether by
tossing it into a river, throwing it into a trash can, or disposing oI it in one oI a
million other places. (Id. at p. 835.) 'In sum, the aIIidavit does not establish
a Iair probability` that the gun or ammunition Irom the homicide would be in
Grant's home nearly nine months aIter the murder. (Id. at p. 835, citation
omitted.)
There is even less reason to believe that a handgun appellant reported
stolen in March 1986 would be Iound in appellant`s residence in June 2009.
For all these reasons, the Iactual averments in the aIIidavit Iailed to establish
the 'nexus element necessary to uphold the search. (Illinois v. Gates, supra,
462 U.S. at p. 238.)
F. Detective Stearns Opinion Could Not Substitute For the
Absence Of Facts Connecting Appellant`s Current
Residence And Electronic Devices To The 1986 Crime.

Based on his experience and training, Detective Stearns oIIered his
opinion that in June 2009 appellant`s residence and property 'may contain
evidence oI the crime. (6/4/09 Search Warrant at pp. 25-26; 4 CT 708.) An
oIIicer's training and experience may be considered in determining probable
cause. (Texas v. Brown (1983) 460 U.S. 730, 742-43 |75 L. Ed. 2d 502; 103 S.
Ct. 1535|.)
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
67

However, 'it cannot substitute Ior the lack oI evidentiary nexus in this
case, prior to the search, between the place to be searched 'and any criminal
activity. . To Iind otherwise would be to invite general warrants authorizing
searches oI anv property owned, rented, or otherwise used by a criminal
suspect -- just the type oI broad warrant the Fourth Amendment was designed
to Ioreclose. (United States v. Schult: (6th Cir. 1994) 14 F.3d 1093, 1097-98.)
'The magistrate must be presented Iacts and not conclusory statements iI he is
to perIorm his detached Iunction and not become a rubber stamp Ior the
police. (People v. Pellegrin (1977) 78 Cal.App.3d 913, 916.)
Accordingly, a 'conclusory statement that evidence will be Iound at a
location 'is insuIIicient to establish the suIIicient nexus between the . |the
evidence sought| and the deIendant`s residence. (United States v.
Zimmerman (3rd Cir. 2002) 277 F.3d 426, 432.) 'Mere aIIirmance oI belieI or
suspicion is not enough. (Nathanson v. United States (1933) 290 U.S. 41, 47
|78 L.Ed. 159; 54 S.Ct. 11|; accord United States v. Harris, supra, 403 U.S. at
p. 578; United States v. Thomas (9
th
Cir. 2000) 211 F.3d 1186, 1192 |'A hunch
. is not a substitute Ior the necessary speciIic, articulable Iacts required to
justiIy a Fourth Amendment intrusion.|.)
CaliIornia courts have reached the same conclusion. For example, in
People v. Pressev (2002) 102 Cal.App.4th 1178, oIIicers pulled the deIendant
over when they saw him driving erratically. They Iound methamphetamine on
his person and a marijuana cigarette in the car's ashtray. (Id. at p. 1181.)
Two hours later, they obtained 'a warrant to search appellant's
residence Ior methamphetamine, marijuana, and property associated with their
use. |OIIicer| Campagna indicated in his aIIidavit that he had been a police
oIIicer Ior Iive years, and had worked the last two and one-halI years as an
undercover narcotics agent. He described his drug enIorcement training and
experience, and stated: . It has been my training and experience that users oI
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
68

controlled substances and narcotics will keep additional quantities oI
controlled substances and narcotics at their residence in addition to what they
carry on their person's |sic| while away Irom their residence.` (Id. at pp.
1181-82.) A search conducted the same day yielded 'methamphetamine and
marijuana and various items oI drug paraphernalia. (Id. at p. 1182.)
The Superior Court rejected the deIendant`s argument that 'that the
warrant aIIidavit did not establish probable cause (id. at p. 1182) but the
Court oI Appeal reversed: 'we conclude that probable cause to search the
residence oI someone suspected oI using illegal drugs requires more than an
opinion or inIerence, available in every case, that drugs are likely to be
present. (Id. at p. 1190.)
For the same reasons, Detective Stearns` opinion based on his training
and experience that evidence oI murder would be Iound at appellant`s
residence because she was a suspect could not substitute Ior the absence oI
speciIic and articulable Iacts connecting her residence, computers, etc., to the
crime committed 23 years beIore.
G. The Search Warrant Was Also Overbroad In Seeking To
Search All Of Appellant`s Computers Without Evidence
That They Existed At Times Relevant To The Crime.

'The Warrant Clause oI the Fourth Amendment categorically prohibits
the issuance oI any warrant except one particularly describing the place to be
searched and the persons or things to be seized.` The maniIest purpose oI this
particularity requirement was to prevent general searches. By limiting the
authorization to search to the speciIic areas and things Ior which there is
probable cause to search, the requirement ensures that the search will be
careIully tailored to its justiIications, and will not take on the character oI the
wide-ranging exploratory searches the Framers intended to prohibit.
(Marvland v. Garrison (1987) 480 U.S. 79, 84 |107 S.Ct. 1013; 94 L.Ed.2d
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
69

72|.)
The trial judge was 'uncomIortable with the request to search
appellant`s computers and other electronic storage devices without evidence
that they existed at or around the time oI the crime. (2 RT C12.) However, it
concluded that 'iI I`m going to accept the good Iaith exception, then I think
I`ve got to stand with that. (Ibid.) As explained below, a search based on a
Iacially overbroad search warrant is not saved by the good Iaith exception to
the exclusionary rule.
Here, appellant emphasizes that to satisIy the particularity requirement
Ior a computer, there must be probable cause to conclude that it contains
evidence oI a crime. (People v. Ulloa (2002) 101 Cal.App.4th 1000, 1004-
1005 |'Breadth deals with the requirement that the scope oI the warrant be
limited by the probable cause on which the warrant is based.`|, quoting In re
Grand Jurv Subpoenas Dated Dec. 10, 1987 (9th Cir. 1991) 926 F.2d 847,
856-57.)
ThereIore, a computer search violates the Fourth Amendment where
there is 'no . evidence pointing to the computer as a repository Ior the
evidence sought in the search. (United States v. Pavton (2009) 573 F.3d 859,
864; see also United States v. Kow (9
th
Cir. 1995) 58 F.3d 423, 427 |Search
warrant Ior business records overbroad where the government neither
'limit|ed| the scope oI the seizure to a time Irame within which the suspected
criminal activity took place nor 'suggested how they related to speciIic
criminal activity.|.)
Here, the aIIidavit provided no substantial evidence that the electronic
storage devices existed at any time relevant to the crime or that appellant kept
evidence oI the crime on them. Accordingly, the seizure and search oI
appellant`s computers and other electronic storage devices was unlawIul Ior
this additional reason.
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
70

H. The Trial Court Erred In Finding That Good Faith Saved A
Search Without Probable Cause And Overbroad.

The trial court concluded that the good Iaith exception to the
exclusionary rule covered any Ilaws in probable cause, staleness, or
overbreadth. (2 RT C-3 |'on that alone these warrants should be upheld|; !""
$%!& 2 RT C-4, 7-8, 9, 12.) The detective went 'in good Iaith and 'obtained a
warrant Irom an experienced judge. I don`t know why he can`t rely on that iI
the judge said it was okay. (2 RT C3-4.)
In '()*"+ ,*$*"! -. /"&(0 !123$0 468 U.S. 897 ('/"&(), the high court
modiIied the exclusionary rule "'to permit the introduction oI evidence
obtained in the reasonable good-Iaith belieI that a search or seizure was in
accord with the Fourth Amendment.'" (/"&(0 468 U.S. at p. 909, quoting
4%%)(&)! -. 5$*"!0 !123$0 462 U.S. at p. 255, White, J., concurring in judgment.)

On review, the 'good-Iaith inquiry is conIined to the objectively
ascertainable question whether a reasonably well trained oIIicer would have
known that the search was illegal despite the magistrate's authorization. In
making this determination, all oI the circumstances . may be considered.
(4+. at p. 922, In. 23.) The government has the burden oI prooI to establish
objectively reasonable reliance. (4+. at p. 924.)
To carry its burden, the government may not rely on the Iact that the
magistrate issued the warrant: 'objective reasonableness must be judged as oI
the time the warrant is sought and without consideration oI the Iact that the
magistrate accepted the aIIidavit. (6"&2%" -. 7$"!*$! (1988) 204 Cal.App.3d
1208, 1214.) 'By deIinition, in "-"38 case in which the prosecution seeks the
beneIit oI /"&(, a magistrate has issued a warrant; issuance oI the warrant
deIines the class oI cases eligible Ior nonexclusion under the /"&( rule.
Because issuance oI a warrant is a constant Iactor in these cases, it cannot
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
71

logically serve to distinguish among them. (People v. Camarella (1991) 54
Cal.3d 592, 605.)
Accordingly, the trial court erred in Iinding that the issuance oI the
warrant itselI justiIied application oI the good Iaith exception. (See 2 RT C-3-
4, 7-8, 9, 12.)
The trial court also erred in concluding that the good Iaith exception
trumped insuIIicient probable cause and overbreadth. The "name 'Leon' is not
a mere talisman in whose presence the exclusionary rule inexorably Iades
away and disappears." (People v. Hernande: (1994) 30 Cal.App.4th 919,
921.)
The Leon 'good Iaith` analysis Iundamentally depends upon the
probable cause` concept itselI. . The commission` and nexus` elements in
the probable cause` analysis each include a temporal component. The issuing
magistrate must not only consider the accuracy and reliability oI the historical
Iacts related in the aIIidavits, but must determine, inter alia, whether the
totality oI the circumstances reasonably inIerable Irom the aIIidavits
demonstrates a Iair probability` that evidence material to the commission` oI
the probable crime will be disclosed at the search premises at about the time
the search warrant would issue, rather than at some remote time. (United
States v. Zavas-Diaz (1
st
Cir.1996) 95 F.3d 105, 111, citing, inter alia, Sgro v.
United States, supra, 287 U.S. at p. 210 |'it is maniIest that the prooI must be
oI Iacts so closely related to the time oI the issuance oI the warrant as to justiIy
a Iinding oI probable cause at that time|.)
As explained above, the inIormation presented in the aIIidavit Iailed to
establish a nexus between the February 1986 homicide and the locations to be
searched in June 2009.
Correspondingly, CaliIornia courts have held that the good Iaith
exception does not apply to a search warrant that on its Iace is based on stale
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
72

inIormation. For example People v. Hirata, supra, 175 Cal.App.4th 1499,
held 'it is not objectively reasonable Ior oIIicers to believe that a search is
legal where a search warrant issued based on inIormation more than two
months old. (Id. at p. 1508; accord People v. Hulland, supra, 110 Cal.App.4th
at p. 1655 |good Iaith did not save a search based on inIormation 34 days old|.)
As Hirata explained: 'A reasonably well-trained oIIicer would have
recognized that probable cause in this case had grown stale by the time the
warrant was sought and executed. To prevent the exception Irom swallowing
the rule, application oI the good Iaith exception must be limited in this context
to those cases in which the staleness determination is a close one. This is not
such a case. (People v. Hirata, supra, 175 Cal.App.4th at p. 1508.)
Here, the crime and proIIered motive evidence related to events
occurring more than 23 years beIore the search. Accordingly, the police had
even less justiIication to believe that probable cause still existed at the time oI
the search.
Finally, the trial court erred in Iinding that the good Iaith exception
saved an overbroad search oI computers and other electronic storage devices
that did not exist in 1986 and without evidence that appellant store evidence oI
the crime on them.
Leon itselI held that suppression 'remains an appropriate remedy
where a search warrant on its Iace violates the particularity clause oI the
Fourth Amendment. (Leon, 468 U.S. at p. 923 |Suppression appropriate where
a warrant is "Iacially deIicient-i.e., in Iailing to particularize the place to be
searched or the things to be seized-that the executing oIIicers cannot
reasonably presume it to be valid."|.) Accordingly, the police could not
reasonably rely on the Iacially overbroad search warrants in this case. (Ibid.;
see also United States v. Washington (9th Cir. 1986) 797 F.2d 1461, 1473
|'executing oIIicers could not reasonably presume Iacially overbroad warrant
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
73

to be valid.|.)
I. Admission Of The Evidence From The Unlawful Searches
Was Prejudicial To Appellant`s Defense.

Because the searches violated the Fourth Amendment, all evidence
derived Irom them was inadmissible against appellant at trial. (Mapp v. Ohio,
supra, 367 U.S. at p. 655; Wong Sun v. United States (1963) 371 U.S. 471, 485
|83 S.Ct. 407; 9 L.Ed.2d 441| |The exclusionary rule bars Irom trial physical
and observation evidence 'obtained either during or as a direct result oI an
unlawIul invasion.|.)
Reversal is required unless respondent demonstrates that admission oI
the evidence was 'harmless beyond a reasonable doubt. (Chambers v.
Maronev (1970) 399 U.S. 42, 53 |90 S.Ct. 1975; 26 L.Ed.2d 419|, citing
Chapman v. California (1967) 386 U.S. 18, 23-24 |87 S.Ct. 824; 17 L.Ed.2d
705|; accord People v. Minfares (1979) 24 Cal.3d 410, 424.) The record
shows that the prosecution relied on the evidence to establish its motive theory
oI a jealous obsession with Ruetten.
Detective Stearns testiIied at length about the evidence collected during
the search oI appellant`s residence. (10 RT 1616, Ioll.) This included personal
journals and photographs oI appellant with Ruetten. (10 RT 1617; 16 RT
2362.) The trial court admitted these materials as exhibits Ior jury
consideration. (17 RT 2962.)
Detective Stearns also read out loud a series oI journal entries Irom
November 1984 through December 1985 reIerring to Ruetten. For example,
an entry dated November 14, 1984 discussed an aIter-work event where
appellant wrote that 'some oI the guys would give me a dollar to kiss them. It
was all in Iun. It kept my mind oII John Ior a while. (10 RT 1625.)
An entry dated April 18, 2005, showed that appellant waited outside a
restaurant at lunchtime when she saw Ruetten`s car and then leIt a note on his
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
74

car when he did not appear. (10 RT 1625-26 |'AIter lunch I was leaving the
lot and I saw John`s car. Just my luck. I put a note on it and watched the car
Ior one halI hour and checked up on it a Iew times.|.) On May 10, 1985,
appellant went to 'visit John Ruetten, but his girlIriend was over. (10 RT
1626-28.)
An entry Ior June 4, 1985 stated, 'I really didn`t Ieel like working. I
Iound out that John is getting married. I was very depressed. This is very bad.
My concentration was negative 10. (10 RT 1628-29.) Another on June 16,
1985 stated, 'I really didn`t Ieel like working. Too stressed out about John.
I`ve had a real hard time concentrating these days and so I called up and said I
didn`t Ieel well and could I have a T.O. |time oII| They gave it to me. (10 RT
1629-30, 1632.) When appellant was reminded oI Ruetten aIter receiving a
letter Irom his mother on December 12, 1985, appellant wrote that it 'made me
very, very, very sad. (10 RT 1633-34.) An entry on December 20, 1985
showed that appellant submitted a personal add looking Ior a man similar to
Ruetten`s description. (10 RT 1634-35.)
Wonkeun Choi, a computer examiner with the OIIice oI the District
Attorney, used Iorensic soItware to conduct searches oI laptop computers
seized Irom appellant`s residence and workplace. (11 RT 1816-18.) Choi`s
investigation showed that between April 1998 and December 1999 appellant
made several on-line searches Ior inIormation about Ruetten. (11 RT 1818-
26.)
Based on the Ioregoing, the prosecutor argued that the jurors knew that
appellant`s love Ior John was deep and enduring because she kept so many
mementos oI John in her home in pictures and journal entries. (18 RT 2998-
99.) Appellant`s journal showed that as Ruetten became closer to Rasmussen,
she started to stalk him. (19 RT 3170.) She had waited by his car outside a
restaurant and put a note on it. (!"#$.) She went by John`s apartment but
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
75

Rasmussen was there. (Ibid.) AIter Ruetten became engaged to Rasmussen,
appellant was so stressed out that she couldn`t work. (Ibid.) The entries
mentioning other men were not the same. (19 RT 3170-71.)
The prosecution`s argument shows that the unlawIully seized evidence
was critical to the prosecution`s motive theory. "Evidence oI motive, iI
believed, completes the prosecution's theory oI the case by explaining the
purpose oI and reason Ior the deIendant's actions. Because motive provides
the jury with a Iramework within which to analyze the deIendant's purported
actions, it is extremely diIIicult to ignore or disregard evidence oI motive once
it is presented." (Thomas v. Hubbard (9
th
Cir. 2001) 273 F.3d 1164, 1173,
overruled on another point by Pavton v. Woodward (9
th
Cir. 2003) (en banc)
346 F.3d 1204, 1218, In. 18.)
As next explained, the other evidence showed that the prosecution`s
motive theory was Ilawed and provided reason to doubt that appellant
committed the murder.
1. Other Evidence Shows That The Prosecution`s
Motive Theory Was Flawed.

No witness claimed to have seen appellant at or around the
condominium complex where Rasmussen and Ruetten lived. Ruetten testiIied
that Rasmussen had planned to go to work on the morning on February 24,
1986, because she had to give a lecture. (9 RT 1463.) However, she
unexpectedly stayed home sick. (4 RT 392, 400-01; 9 RT 1464-65.) The
prosecution presented no evidence to show how appellant would have known
that Rasmussen would be home that day.
Moreover, the prosecution presented no evidence that appellant had any
contact with Ruetten or Rasmussen aIter June 1985. The other evidence
showed that, despite being upset about the end oI her relationship, appellant
moved on with her liIe. Appellant`s roommate and Iellow oIIicer Mike
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
76

Hargreaves said that appellant cried and was upset aIter John broke oII their
relationship because he was marrying Rasmussen. (9 RT 1363-64.) However,
her emotional response wasn`t anything inappropriate. (9 RT 1380-81.)
Appellant`s co-worker in 1985-1987, Jayme Weaver said that appellant
mentioned Ruetten but not beyond saying that he had been a college boyIriend
and their relationship didn`t work out. (10 RT 1703-04.) Moreover, Weaver
changed clothes with appellant in the women`s locker room the day aIter the
homicide and had no recollection oI any injuries to appellant. (Ibid.) OIIicer
Alexander was appellant`s partner that day (February 25, 1986) and also
recalled no injuries to her. The absence oI injuries is inconsistent with the
evidence that Rasmussen and her assailant engaged in a bloody Iight. (See
Statement oI Facts, Section II.A.)
Ruetten testiIied that he rather than appellant renewed their relationship.
In 1989, Ruetten contacted appellant and arranged to see her in Hawaii when
he learned that they would both be visiting Hawaii at the same time. (9 RT
1497.) ThereaIter, they periodically got together Ior about three years until
appellant began her relationship with her current husband. (9 RT 1499, 1369.)
These developments were unlikely iI Ruetten had any reason to believe that
appellant killed Rasmussen or appellant was obsessed with Ruetten.
2. As To The DNA Evidence, The Prosecution
Erroneously Equated Random Match Probability
With Source Attribution.

The prosecution proIIered ballistics and GSR evidence that the Iatal
gunshots may have been Iired Irom a .38 caliber revolver with a two inch
barrel using Federal brand ammunition. (13 RT 2138-42, 2146, 2151, 2163.)
Appellant had such a revolver beIore the homicide. (10 RT 1646-47; 11 RT
1756, 1761-63.) However, that type oI handgun was common and multiple
manuIactures made similar Iirearms with two inch barrels that could Iire the
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
77

same ammunition. (13 RT 2186-88, 2219; (14 RT 2420-2; 15 RT 2446-47,
2449-52, 2464.)
The prosecution claimed that the evidence bullets Irom a speciIic type
oI .38 caliber (J Plus-P ammunition made by Federal. (11 RT 1801-02, 1808.)
However, other evidence showed that the bullets were either .38 or .357
caliber. (13 RT 2182, 2184, 2201; 14 RT 2416-17.) Moreover, Federal sold
millions oI rounds oI the same type oI .38 caliber ammunition to civilians as
well as police departments. (11 RT 1802, 1811-12.) Thus the ballistic
evidence was insuIIicient to connect appellant to the crime.
The prosecution`s case reduced to the DNA evidence Irom the swab oI
the apparent bite mark on Rasmussen`s leIt inner Iorearm (Item No. 30) and
one broken Iingernail Iound on the Iloor oI the entryway oI the residence (Item
No. 10). However, the prosecution`s reliance on this evidence conIused
random match probability with source attribution in claiming that this was
dispositive evidence.
Using ProIiler/CoIiler test kits, LAPD analyst JenniIer Francis testiIied
that the 13 loci and gender oI the major proIile on a cutting Irom the bite mark
swab 'matched the corresponding genetic markers in a reIerence sample Irom
appellant. (7 RT 1103.) Using an F.B.I. population data base, Francis
calculated that 'combination oI genetic markers Irom that the major proIile
Irom Item 30 |the bite mark swab| is expected to be Iound in 1 in every 402
quadrillion unrelated individuals. (!"#$.) That was equivalent to 100 million
oI the earth`s population, assuming a population oI 7 billion. (7 RT 1103-04.)
ThereIore, Francis stated that on earth alone she would not expect to Iind a
person other than appellant with the same proIile as on the bite mark swab. (7
RT 1104.)
Tom Fedor oI SERI also tested another bite mark swab cutting using the
IdentiIiler test kit Ior 15 loci, plus gender. (12 RT 1926.) He Iound in 'every
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
78

respect the major proIile Irom the bite mark swab has the same test result as
Stephanie Lazarus` reIerence sample. (12 RT 1935.) Based on population
survey data published by the manuIacturer IdentiIiler (Applied Biosystems),
Fedor calculated 'that the chance a woman unrelated to Stephanie Lazarus
would have the same DNA proIile as the major portion oI the bite mark swab
is approximately 1 in 1.7 sextillion. (12 RT 1938, 2005-06.) That number
was about 240 times the population oI the earth, which was 7 billion. (12 RT
1939.)
Fedor used the MiniFiler test kit Ior 8 loci plus gender to examine a
broken Iingernail Iound in the entryway oI Rasmussen`s residence. (12 RT
1943-1944.) That evidence was inadmissible Ior the reasons explained in
Section V.. However, even assuming the contrary, Fedor obtained only 'weak
and incomplete results indicating a mixture Irom at least three people. (12
RT 1944.) Rasmussen was 'a possible contributor to the mixture, and
approximately 1 woman in 670 would be similarly considered. (12 RT 1944.)
Appellant was 'a possible contributor to the mixture, and approximately 1
woman in 26,000 would be similarly considered. (Ibid.)
'With regard to DNA evidence, there are two general tendencies that
should be guarded against: (1) that the jury will accept the DNA evidence as a
statement oI source probability (i.e., the likelihood that the deIendant is the
source oI the evidentiary sample); and (2) that once the jury settles on a source
probability, even iI correctly, it will equate source with guilt, ignoring the
possibility oI non-criminal reasons Ior the evidentiary link between the
deIendant and the victim. (United States v. Chischillv (9th Cir. 1994) 30 F.3d
1144, 1156, Iootnote omitted.)
As to the Iirst concern, the statistics presented by the prosecution`s
experts do 'not represent source probability. Rather, the test results reIlect the
statistical probability that a match would occur between a randomly selected
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
79

member oI the database group |used to calculate the statistic| and either the
evidentiary sample or the deIendant. To illustrate, suppose the . evidence
establishes that there is a one in 10,000 chance oI a random match. The jury
might equate this likelihood with source probability by believing that there is a
one in 10,000 chance that the evidentiary sample did not come Irom the
deIendant. This equation oI random match probability with source probability
is known as the prosecutor's Iallacy. (Id. at p. 1157, Iootnote omitted.)
5

Stated simply, 'the two inaccuracies consist in 'equating random
match probability with source probability, and an underestimate oI the
likelihood that . |someone else| would also match the DNA leIt at the scene.
(McDaniel v. Brown (2010) 558 U.S. 120, 129-30 |130 S. Ct. 665; 175 L. Ed.
2d 582|.) Thus, it is not the case, as the prosecution claimed, that it was
impossible Ior another person on earth to be the source oI the DNA proIiles
detected by the Francis and Fedor,
As to the second concern identiIied by United States v. Chischillv,
supra, appellant is not claiming that the killing oI Rasmussen was a non-
criminal act. However, as next explained, there was substantial evidence that
someone else committed the criminal act.

5
See also Richard Lempert, Some Caveats Concerning DNA as Criminal
Identification Evidence, 13 Cardozo L. Rev. 303, 305-06 (1991)
|"unIortunately, the careless presentation oI evidence ... may make it look as iI
the question oI the rareness oI the evidence DNA proIile and the probability
that the deIendant's matching DNA is the source oI the evidence proIile are
identical"|; Koehler, Error and Exaggeration in the Presentation of DNA
Evidence at Trial, 34 Jurimetrics 21, 27 (1993) |documenting instances where
courts, commentators and expert witnesses have committed source probability
errors|.)

T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
80

3. There Was Substantial Evidence That The Crime
Was Committed When Rasmussen Surprised
Person(s) Burglarizing Her Home.

When Ruetten went to work on the morning oI February 24, 1986, he
leIt via the door to the garage and locked it. (9 RT 1477-78.) However, he did
not check or know whether their Iront door was locked. (9 RT 1471.) AIter
months oI investigation in 1986, Detectives Mayer and Hooks concluded that
one or two burglars entered through an unlocked door.
6
(4 RT (4 RT 567-68,
571; 9 RT 1471.) They started to burglarize the condo when Rasmussen
surprised them and a violent struggle ensued during which Rasmussen was
shot. (!"#$.)
This theory was supported by evidence oI the blood in the entryway,
overturned Iurniture and a broken vase in the living room, and two gunshots
through the sliding glass door in the kitchen area. (4 RT 504-06, 576, 578,
584; 9 RT 1481-82.) As noted, there was no evidence oI any injuries to
appellant showing that she had been involved in such a violent struggle. (6 RT
2669, 2671; 10 RT 1703-04.)
Based on the testimony oI SaIarik, the prosecution claimed that
appellant had 'staged the crime scene to mislead investigators into thinking
that the homicide occurred during a burglary. (15 RT 2495-97; %&& Statement
oI Facts Section II.E.) However, Evangelina Flores while next door heard
commotion and sounds consistent with Iighting and then gunshots Iollowed by
a door slamming and the sound oI a car driving oII. (16 RT 2635, 2637-38,

6
As discussed below in Section VI., the trial court excluded evidence that on
April 10, 1986, two burglars committed a burglary with the same '($)%
(+&,-.$# and a .38 caliber revolver at a nearby condominium complex that was
'almost an exact replica oI Rasmussen`s condominium. (11/6/12 Suppl. CT
93.)

T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
81

2645-46.) This time course was inconsistent with the time needed to Iake a
burglary as the prosecution claimed.
There was also Iorensic evidence that someone else committed the
crimes. The police Iound latent Iingerprints near Rasmussen`s blood stains on
the lower part oI the closet door and wall in the entryway, CD player, and
cassette deck stacked nearby. However, none oI them matched appellant,
Rasmussen or Ruetten. (11 RT 1732-33, 1749-52, 1752-54; 14 RT 2889-90;
17 RT 2992-93.)
There were blood stains on the rope Iound with the speaker wire
apparently used to bind Rasmussen`s wrists. Rasmussen`s DNA was present
but appellant was excluded. (7 RT 1104-05.) Male DNA was Iound on the
speaker wire near the rope that did not appear to come Irom Ruetten. (12 RT
2011-14.)
There was also unidentiIied male DNA on the blanket with GSR Iound
near Rasmussen`s body and apparently used to muIIle gunshots. (13 RT 1076-
77, 2077-78, 2081.) Appellant was excluded as a contributor. (12 RT 1982;
13 RT 2075.) There were Iour, unaccounted Ior Iootprints on the same
blanket. (16 RT 2716-17.) UnidentiIied male DNA was Iound on a hair on the
dish towel near Rasmussen`s body. (12 RT 2039-41.)
Rasmussen`s BMW was missing Irom the garage. (9 RT 1476-77,
1484.) The police recovered a Iinger and palm print on the banister oI the
inner stairs leading Irom the living area to the garage. (4 RT 588; 11 RT 1732-
33.) Appellant, Ruetten and Rasmussen were excluded as contributors. (11
RT 1732-33, 1749-52, 1754.) The police also Iound a blood stain on the wall
leading down into the garage. (4 RT 588; 11 RT 1732; 16 RT 2631.) The
DNA test oI the blood excluded appellant and Rasmussen. (8 RT 1254-56.)
These results indicate that the blood and Iingerprint in the stairway to
the garage came Irom someone who had struggled with Rasmussen and Iled in
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
82

her BMW. From the BMW itselI, the police later recovered Iingerprints and
samples oI blood stains. However, appellant was excluded as a contributor to
any oI the evidence Irom the BMW. (7 RT 1091; (11 RT 1716-1737; 13 RT
2224, 14 RT 2269-97, 2368-69.) Male DNA that did not come Irom Ruetten
was Iound in a blood sampled Irom the door handle. (12 RT 1951, 1989.)
The death oI Sheri Rasmussen was terrible loss to her Iamily and
husband. However, this should not obscure the multiple Ilaws in the seeking
appellant`s conviction 23 years later based on a Ilawed motive theory craIted
Irom unlawIully seized evidence. But Ior that evidence, a reasonable could
have Iound that a burglar or burglars attacked Rasmussen when surprised them
and she was shot as a witness. Accordingly, the prosecution use oI the
unlawIully seized evidence was not harmless beyond a reasonable doubt.
!!!"

$%& $'!() *+,'$ &''&- ./ -&0/!01 (22&))(0$34
5+$!+0 $+ $'(6&'4& $%& 4&('*% 7(''(0$4 (0- $+
%+)- ( 8'(094 %&('!01"

(" !:;<=>?@;A=:"
With her motion to quash, appellant also moved to traverse the June 4,
2009 search warrant, because the aIIidavit Ior that warrant provided the
statement oI probable cause Ior all oI the search warrants. (4 CT 735-36; 2 RT
C7-8.)
Pursuant to !"#$%& ( )*+#,#"* (1978) 438 U.S. 1 54 |57 L.Ed.2d 667,
98 S.Ct. 2674| ('!"#$%&), appellant asked the court to hold a hearing so she
could cross-examine Detective Stearns, the author oI the aIIidavit. (4 CT 735-
36.) Appellant also requested an opportunity to present evidence to controvert
the Iactual allegations in the aIIidavit and to show that Iacts had been
intentionally or recklessly omitted. (-./0.) Appellant argued that because oI
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
83

the misrepresentations and omissions, the seizure oI evidence based on the
statement oI probable cause in the June 4, 2009 aIIidavit violated her Fourth
and Fourteenth Amendment rights and should be suppressed. (4 CT 736.)
The trial court denied the motion to traverse. It Iound any
misrepresentations or omissions insigniIicant because the oIIicers acted in
good Iaith reliance on search warrants authorized by a magistrate. (2 RT C13-
14.)
1. Evidence Proffered and Arguments Made By
Appellant and The Prosecution.

As explained above in Section II.B., the June 4, 2009 search warrant in
pertinent part requested authorization to search oI appellant`s current
residence, computers and electronic storage devices Ior any evidence related to
the February 1986 homicide. (4 CT 737; !"" $%!& 4 CT 707-09.) Detective
Stearns stated that evidence oI the 1986 crime would be at the locations in
2009 because 'Lazarus`s relationship with John Ruetten (Ms. Rasmussen`s
then husband) was signiIicant to her and the she was extremely upset and
devastated when Ruetten became engaged to and ultimately married
Rasmussen. (6/4/09 Search Warrant AIIidavit at pp. 25-26.)
To traverse the aIIidavit, deIense counsel submitted a declaration
identiIying the Iactual errors and omissions based on his review oI discovery
provided by the prosecution. (4 CT 741.) These documents showed that, Irom
the time Ruetten met Rasmussen in June 1984 until the February 24, 1986
homicide, he had only one contact with appellant. (4 CT 741-42.) That one
contact occurred no later than August 1985 when Ruetten went to see appellant
at her townhouse aIter she called him. (4 CT 742.) At that time, appellant told
Ruetten that their meeting was her last opportunity to tell him how she Ielt
about him. ('()*.) ThereaIter, appellant did not initiate contact with or pursue
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
84

Ruetten in any way. (!"#$.)
BeIore seeking the June 4, 2009 search warrant, the police obtained
Ventura County real estate records. (4 CT 742.) The records showed that
appellant did not become associated with the residence to be searched until
September 1995. (!"#$.) Prior to seeking the warrant, the police knew that
appellant had dated her current husband since 1992, that married about 13
years prior to June 2009, and that they had a young child together. (!"#$.)
Pursuant to %&'()*+ 438 U.S. 154, this proIIer supported an opportunity to
cross-examine Detective Stearns and to present evidence to traverse the search
warrant. (4 CT 739-40.)
By a written opposition, the prosecution argued that the detective
omitted no material Iacts Irom the aIIidavit and made no misrepresentations,
either deliberately or in reckless disregard Ior the truth. (4 CT 787, 790-91.)
In particular, the detective did not misstate what occurred at the last meeting
between appellant and Ruetten beIore he married Rasmussen. (4 RT 791.)
The prosecution did not dispute that appellant`s made no eIIort to
pursue Ruetten aIter their last meeting, that her relationship with her husband
beginning in 1992, or that she moved to the residence to be searched 'in
1994. (4 CT 792.) However, the prosecutor argued that those Iacts were 'not
material and thereIore, could not aIIect the determination oI probable cause.
(4 CT 792-94.)
In a written reply, deIense counsel argued that the discovery supported
his view oI the Iacts and justiIied a %&'()* hearing. (5 CT 810-11.)
2. The trial court`s ruling.
The trial court denied the motion to traverse immediately aIter denying
the motion to quash the search warrants. (2 RT C13.) The court concluded
that omission oI the Iact that appellant lived in a new residence was immaterial
because Detective Stearns did not state that it was the same residence as at the
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
85

time oI the crime. (Ibid.) 'I didn`t think that the misrepresentations, as you
call them, even iI I accept them as deliberate misrepresentations, were
signiIicant in light oI my ruling on good Iaith, Irankly, iI Ior no other reason.
(Ibid.)
The court recognized that deIense counsel had identiIied evidence that
'the deIendant had married, she had moved on with her liIe, and that may not
have been clear in the warrant, but it was not represented to the contrary. He
|Detective Stearns| didn`t say that, you know, she`s not married and is pinning
. Ior Ruetten. And the Iact that there was no contact with Ruetten aIter the
killing is something oI interest, and I`m sure may be oI interest to the jury, but
I don`t Iind that to be something to traverse the warrant over or go down that
road. (2 RT C13.)
The court concluded: 'I think the law has said that we want warrants to
be used, we want oIIicers to get the warrants, and that we trust our court
system to properly supervise warrants .. And so, that`s where I come out.
(2 RT C14.) The court did not see that Detective Stearns 'did anything
improper here or made signiIicant misrepresentations. He may not have put
everything he knew at the time in the aIIidavit, but I don`t think that .
anything that was withheld . would persuade me that the magistrate would
not have issue the warrant. So the motion to traverse is also denied. (Ibid.)
C. Appellant Made A Sufficient Showing For A !"#$%& Hearing
And Without The Flaws In The Affidavit The Police Lacked
Probable Cause To Search In 1une 2009.

'The trial court`s denial oI a Franks hearing is reviewed de novo on
appeal.` |Citation.| (People v. Benfamin (1999) 77 Cal.App.4th 264, 271.)
Franks, 438 U.S. 154, held that a deIendant may challenge the veracity oI
statements contained in an aIIidavit oI probable cause in support oI the
issuance oI a search warrant.
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
86

'When presented with such a challenge, the lower courts must conduct
an evidentiary hearing iI a deIendant makes a substantial showing that: (1) the
aIIidavit contains statements that are deliberately Ialse or were made in
reckless disregard oI the truth and (2) the aIIidavit's remaining contents, aIter
the Ialse statements are excised, are insuIIicient to justiIy a Iinding oI probable
cause. At the evidentiary hearing, iI the statements are proved by a
preponderance oI the evidence to be Ialse or reckless, they must be considered
excised. II the remaining contents oI the aIIidavit are insuIIicient to establish
probable cause, the warrant must be voided and any evidence seized pursuant
to that warrant must be suppressed. (People v. Bradford (1997) 15 Cal. 4th
1229, 1297, citing Franks, 438 U.S. at pp. 155-56.)
The same standards apply to omissions oI material inIormation Irom an
aIIidavit. (Ibid.; People v. Luttenberger (1990) 50 Cal. 3d 1, 14-15 & In. 4.)
Thus, a Franks hearing is appropriate when an aIIiant 'omits material Iacts
with the intent to make, or in reckless disregard oI whether they thereby made,
the aIIidavit misleading. (United States v. Colklev (4
th
Cir. 1990) 899 F.2d
297, 300.) Materiality is reviewed under the test established by the United
States Supreme Court in Illinois v. Gates, supra. (People v. Bradford, supra,
15 Cal.4th at p. 1297.) The court looks to the totality oI circumstances to
determine iI the aIIidavit, without the omitted material, establishes probable
cause. (Ibid.)
In this case, appellant made a substantial preliminary showing oI
misrepresentations and omission that were material to the determination oI
probable cause to search in June 2009. As recognized by the trial court in
ruling on the motion to quash, the theory oI probable cause presented in the
aIIidavit was a crime motivated by jealousy. (2 RT C9.) The prosecution
conceded this in its opposition to the motion to quash, stating that the killing oI
Rasmussen was a crime motivated by 'intensely particularized antipathy and
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
87

romantic jealousy. Given the nature oI this crime it was reasonable Ior the
magistrate to inIer that evidence oI the crime including evidence showing the
relationships between DeIendant, Ruetten and Rasmussen would be in the
possession oI the DeIendant at the time oI the search. (4 CT 771; !"" $%!& 4
CT 774, 778.)
However, Detective Stearns mischaracterized the evidence oI the last
meeting between appellant and Ruetten and omitted multiple Iacts showing
that the putative jealousy theory did not provide probable cause to search in
June 2009. The aIIidavit stated that in June 1985, aIter learning oI the
Ruetten`s engagement to Rasmussen, appellant arranged a magistrate with
Ruetten 'and expressed to John that she wished to pursue a committed
relationship with him. . Stephanie was upset and wanted to take their
relationship to the next level. (6/4/09 Search Warrant AIIidavit at p. 19:9-
11.)
However, the police interview oI Ruetten beIore the aIIidavit was
prepared showed that appellant told Ruetten at their last meeting that their
meeting was her last opportunity to tell him how she Ielt about him. (4 CT
742.) This showed Iinality to the meeting absent Irom the portrayal in the
aIIidavit. Even iI not a misrepresentation, it was an omission obscuring the
true nature oI their last meeting and misleading the magistrate.
Any doubt oI this is eliminated by omission oI multiple additional Iacts,
the accuracy oI which the prosecution conceded. (4 CT 792-93.) The
detective omitted to tell the magistrate that that appellant never initiated
contact with. Ruetten aIter the February 24 homicide, that she had been dating
her present husband since 1992, that as oI June 2009 they had been happily
married Ior about 13 years, and that appellant and her present husband did not
move into the residence to be searched until May1994. (5 CT 811; 4 CT 792-
93.)
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
88

As explained above in Section II.D., probable cause 'requires a
showing that makes it substantially probable that there is speciIic property
lawIully subject to seizure presently located in the particular place Ior which
the warrant is sought.` (People v. Carrington, supra, 47 Cal.4th at p. 161,
citations and internal quotations omitted.) 'Stale inIormation in a search
warrant aIIidavit does not establish present probable cause Ior a search.
(People v. Hirata, supra, 175 Cal.App.4th at p. 1504.)
All oI the evidence omitted by Detective Stearns shows that the police
lacked probable cause in 2009 to search appellant`s residence, computers, and
electronic storage devices. Because the 'remaining contents oI the aIIidavit
are insuIIicient to establish probable cause, the warrant must be voided and
any evidence seized pursuant to that warrant must be suppressed. (People v.
Bradford, supra, 15 Cal. 4th at p. 1297, Franks, 438 U.S. at pp. 155-56.)
D. The Trial Court Erred In Finding That The Good Faith
Exception To The Exclusionary Rule Applied.

The right to traverse a search warrant is based on the principle that
under the Fourth Amendment 'it is the magistrate who must determine
independently whether there is probable cause, it would be an unthinkable
imposition upon his authority iI a warrant aIIidavit, revealed aIter the Iact to
contain a deliberately or recklessly Ialse statement|.| (Franks, 438 U.S. at p.
165.) The trial court believed that these concerns were overcome by the good
Iaith exception to the exclusionary rule. (2 RT C13-14 |Any errors were not
'signiIicant in light oI my ruling on good Iaith, Irankly, iI Ior no other
reason.|.)
However, 'the good Iaith exception does not apply where law
enIorcement is collectively at Iault Ior an inaccurate record that results in an
unconstitutional search. (People v. Willis (2002) 28 Cal.4th 22, 49.)
'Suppression thereIore remains an appropriate remedy iI the magistrate or
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
89

judge in issuing a warrant was misled by inIormation in an aIIidavit that the
aIIiant knew was Ialse or would have known was Ialse except Ior his reckless
disregard oI the truth. (!"#$, 468 U.S. at p. 923.)
Accordingly, the denial oI the motion to traverse provides an additional
ground to conclude that the admission oI the evidence Irom the residence and
computer searches violated appellant`s due process (U.S. Const., 5th & 14th
Amends.) and Fourth Amendment rights. The error was prejudicial Ior the
reasons explained above in Section II.I.
!"#

%&' %(!)* +,-(% '(('. /0 ).1!%%!23 '"!.'2+' ,4
)55'**)2%67 !2%'((,3)%!,2 /'+)-7' &'(
7%)%'1'2%7 8'(' *'3)**0 +,15'**'.#

)# !9:;<=>?:@<9#
BeIore trial, the court over appellant`s objections granted the
prosecution motion to admit evidence oI statements made by her on June 5,
2009 during a videotaped interrogation about the Rasmussen homicide. (5 CT
818, 884; 2 RT E1-2, 16-17.) The prosecution at trial then presented the video
and transcript oI the interrogation during its case-in-chieI and argued that
appellant made Ialse and misleading statements. (11 RT 1184-86; 7 CT 1417
|transcript oI interrogation|; see Section G., below.)
The trial court erred. By statute and case law, appellant was legally
compelled appellant to answer questions at risk oI adverse employment action
by the LAPD. Accordingly, appellant`s due process protection against
admission oI involuntary statements and privilege against selI-incrimination
barred admission oI her June 5, 2009 statements in criminal proceedings
against her. (U.S. Const., 5
th
& 14
th
Amends.)
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
90

B. Procedural Background.
1. Briefing Below.
By a written motion, the prosecution requested admission oI appellant`s
statements in its case-in-chieI. (5 CT 816.) The prosecution argued that
appellant was not in custody at the time oI interrogation so that the FiIth
Amendment protections established by Miranda v. Ari:ona (1965) 384 U.S.
436 ('Miranda) did not apply. (5 CT 820-25.) The protections against use oI
statements by police oIIicers established by the Public SaIety OIIicers
Procedural Bill oI Rights ('POBR) did not apply because the interrogation
was directed 'solely at criminal activities. (Gov. Code, 3303, subd. (i); 5
CT 825.)
By a written opposition, appellant objected that the issue was not
whether there was a Miranda violation. (5 CT 832-33.) CaliIornia law had
long required imposed a duty on police oIIicers to answer questions about any
crime and held that they may be discipline Ior Iailing to answer. (5 CT 833,
citing, inter alia, Christal v. Police Commission of Citv and Countv of San
Francisco et al. (1939) 33 Cal.App.2d 564, 567-568.)
POBR also required appellant to answer questions at pain oI an adverse
employment action. (Ibid.; Gov. Code, 3303.) The detective`s questioning
was not solely concerned with a criminal investigation. (5 CT 836.) Appellant
by declaration stated that when detectives interviewed her on June 5, 2009, she
'was aware at that time that iI I did not answer questions, I could be subject to
discipline by the Los Angeles Police Department. (5 CT 841.) 'This
discipline would consist oI a wide range oI penalties including suspension or
termination oI employment. (Ibid.) Appellant also provided copies oI
documents Irom LAPD showing that aIter her interrogation LAPD began
administrative proceedings leading to her termination as a police oIIicer. (5
CT 843-847.)
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
91

Given these circumstances, the line oI cases beginning with Garritv v.
New Jersev (1967) 385 U.S. 493 |87 S. Ct. 616; 17 L. Ed. 2d 562| ('Garritv)
showed that appellant had automatic use immunity Ior her June 5, 2009
statements as a matter oI due process and her FiIth Amendment privilege
against selI-incrimination. (5 CT 833-36.)
By a written reply, the prosecution argued that Garritv did not apply
because the detectives did not explicitly order appellant to answer on pain oI
termination oI employment. (5 CT 868-69.) ThereIore, appellant`s belieI that
she was compelled to answer questions was not objectively reasonable. (Ibid.)
As to the POBR, the prosecution argued that it did not apply because
the police did not initiate administrative proceedings against appellant until six
weeks aIter interrogation. (5 CT 869.) ThereIore, the interrogation was
directed solely at a criminal investigation and the POBR did not apply. (Gov.
Code, 3303, subd. (i).)
In support oI its position, the prosecution submitted a declaration Irom
Mark R. Perez, the Deputy ChieI, Commanding OIIicer, ProIessional
Standards Bureau, oI the LAPD. (5 CT 878.) Deputy ChieI Perez stated that
an administrative investigation is initiated by a Iormal complaint whereby an
investigator sets up a time and place Ior interrogation. (Ibid.)
LAPD did not conduct an administrative interrogation without telling
the oIIicer that she was being investigated Ior alleged misconduct. (5 CT 878.)
II an oIIicer declined to answer questions voluntarily, the oIIicer would be
ordered to answer on pain oI administrative discipline, including termination,
Ior reIusing to do so. (5 CT 878-79.) The police did not prepare an
administrative complaint against appellant until July 22, 2009. (5 CT 879.)
ThereIore, in OIIicer Perez`s opinion, the detectives did not administratively
interrogate appellant on June 5, 2009. (Ibid.)
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
92

2. Hearing and Ruling by the Trial Court.
On November 19, 2010, the court held a hearing on the admissibility oI
appellant`s statements. (5 CT 884; 2 RT E1-2, 16-17.)
DeIense counsel conceded that under the Truth-In-Evidence provision
oI the CaliIornia Constitution (Cal. Const., Art. I, 28, subd. (I)(2)) POBRA
did not provide a statutory basis to exclude appellant`s statements Irom
evidence. (2 RT E5-6.) However, it showed that appellant was compelled to
answer or Iace punitive action. (!"#$.) Under %&''#() that was suIIicient Ior
automatic use immunity in criminal proceedings. (2 RT E7-9.)
The prosecution responded that neither the detectives questioning nor
appellant`s actions and statements during interrogation showed that she
actually or reasonably believed she was compelled to answer questions. (2 RT
E10-12.)
The court concluded that the deIense position was 'overbroad in the
extreme in asserting an 'implied immunity existed Ior statements by a police
oIIicer that would not apply, Ior example, to a bus driver. (2 RT E13.) The
record showed that detectives Irom robbery/homicide 'approached Ms.
Lazarus at work. Using a ruse, they isolated her in an interview room and
asked her questions about her knowledge oI the killing that is the subject oI
this case. She was not advised oI her rights, nor was she told that she had to
talk to the detectives. (2 RT E-15.)
'It`s clear to the court that the detectives were conducting a criminal
investigation. I mean, I`ve read the interview. I`ve listened to portions oI the
tape. In my view this was clearly exempted Irom P.O.B.R. It is asserted by
Ms. Lazarus that she was aware that iI she did not answer their questions, she
could be terminated. She never during the interview asked iI she had to
answer the questions, nor did she raise the issue oI whether their investigation
was an administrative investigation. Her assertion that she Ielt compelled to
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
93

answer on pain oI losing her job is not, in the court`s view, objectively
reasonable based on the transcript that I have read. (2 RT E15-16.)
The deIense had argued that the questioning was not solely directed at
alleged criminal activities because LAPD thereaIter commenced administrative
proceedings leading to her termination on February 2, 2010. (2 RT E16.)
'The court rejects this argument. That action occurred eight months aIter the
interview based on the Iact that she had not reported Ior duty since her arrest
on June 5
th
2009|.| (2 RT E16.)
The court 'place|d| little weight on the Iact that the Los Angeles Police
Department has dealt with her in an administrative Iashion aIter her arrest. .
I Iind that it is clear that this was a criminal investigation and is exempt Irom
P.O.B.R. and I also conclude, although it`s not apparently, contested that Ms.
Lazarus` statements were voluntarily up until she was advised oI her !"#$%&$
rights and invoked them on page 93 |oI the interrogation transcript|, and that
these statements are thereIore admissible in the People`s case in chieI should
they intend to oIIer them. (2 RT E16-17.) As discussed Iurther below in
Section G., the prosecution at trial presented the video and transcript oI the
interrogation as summarized above. (11 RT 1184-86; 7 CT 1417 |transcript oI
interrogation|.)
!" $%& '()*+),+ -. /&01&2"
In addressing claims oI constitutional error in admitting a deIendant`s
statements, a reviewing court accepts the trial court's resolution oI disputed
Iacts and inIerences as well as its evaluations oI credibility iI substantially
supported by the evidence. ('()*+( -. /0"12 (2007) 40 Cal.4th 483, 502.)
However, it 'independently determine|s| Irom undisputed Iacts and Iacts Iound
by the trial court whether the challenged statement was legally obtained.
(34"&.)
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
94

D. Because Appellant As A Police Officer Was Compelled To
Answer Questions At Pain Of Punitive Action She Was
Entitled To Automatic Use Immunity For Her Statements.

In a series oI cases beginning with Garritv v. New Jersev, supra, 385
U.S. 493 ('Garritv), the high court has held that legal compulsion to answer
questions at risk oI employment sanctions is coercive and renders a statement
made involuntary and inadmissible as a matter oI due process and the privilege
against selI-incrimination. (U.S. Const., 5th & 14th Amends.)
In Garritv, the New Jersey Attorney General investigating allegations
oI ticket Iixing summoned several police oIIicers beIore a grand jury. (385
U.S. at p. 494.) The oIIicers answered questions aIter warnings that iI they did
not answer they would be removed Irom oIIice and that anything they said
might be used against them in any criminal proceeding. (Ibid.) No immunity
oI any kind was oIIered or available under state law. (Ibid.) Over their FiIth
Amendment objections, their answers were used to convict them Ior
conspiracy related to the ticket Iixing. (Id. at p. 495.)
Garritv held that 'the protection oI the individual under the Fourteenth
Amendment against coerced statements prohibits use in subsequent criminal
proceedings oI statements obtained under threat oI removal Irom oIIice, and
that it extends to all, whether they are policemen or other members oI our body
politic. (Id. at p. 500.) Garritv also held that, in the context oI threats oI
removal Irom oIIice, the act oI responding to interrogation was involuntary
and not a waiver oI the privilege against selI-incrimination. (Id. at p. 499.)
In Gardner v. Broderick, Police Commissioner (1968) 392 U.S. 273 |88
S. Ct. 1913; 20 L. Ed. 2d 1082 | ('Gardner), the high court reached the same
conclusion on the basis oI the FiIth Amendment privilege against selI-
incrimination. The District Attorney oI New York City summoned OIIicer
Gardner to a grand jury Ior questioning about alleged bribery and corruption oI
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
95

police oIIicers in connection with unlawIul gambling operations. (Id. at pp.
274-75.) A provision oI the New York City Charter authorized dismissal oI a
police oIIicer who reIused to answer questions when summoned Ior
questioning. (Ibid.)
The 'testimony was demanded beIore the grand jury in part so that it
might be used to prosecute him, and not solely Ior the purpose oI securing an
accounting oI his perIormance oI his public trust. (Id. at p. 279.) Gardner
held that 'the mandate oI the great privilege against selI-incrimination does not
tolerate the attempt, regardless oI its ultimate eIIectiveness, to coerce a waiver
oI the immunity it conIers on penalty oI the loss oI employment. (Id. at p.
279.)
In the companion case oI Uniformed Sanitation Men v. Commissioner
of Sanitation (1968) 392 U.S. 280 |88 S. Ct. 1917; 20 L. Ed. 2d 1089|, the
court addressed the analogous issue as it related to New York City sanitation
workers summoned to answer questions about allegations oI illegally diverting
Iees to themselves. (Id. at pp, 281-82.) The high court again held that men`s
statements were involuntary when the law 'present|ed| them with a choice
between surrendering their constitutional rights or their jobs. (Id. at p. 284.)
The high court has adhered to this view. (See, e.g., Baltimore Citv
Dept. of Social Services v. Bouknight (1990) 493 U.S. 549, 561-62 |110 S. Ct.
900; 107 L. Ed. 2d 992| |the 'State's regulatory requirement in the usual case
may neither compel incriminating testimony nor aid a criminal prosecution|;
Lefkowit: v. Turlev, et al. (1973) 414 U.S. 70, 79 |94 S. Ct. 316; 38 L. Ed. 2d
274| |'employees oI the State do not IorIeit their constitutional privilege and
that they may be compelled to respond to questions about the perIormance oI
their duties but only iI their answers cannot be used against them in subsequent
criminal prosecutions|.)
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
96

1. Case Law Shows That A Police Officer Has A Duty
To Answer Questions Even Though The Answers
May Show Involvement In Criminal Activity.

The trial court rejected appellant`s claim that her status as a police
oIIicer aIIected whether she was entitled to immunity against use oI her
statements in criminal proceedings under the Garritv line oI authority. (2 RT
E13.) However, case law and statute support appellant`s position.
In Christal v. Police Commission of Citv and Countv of San Francisco
et al, supra, 33 Cal.App.2d 564 ('Christal), several San Francisco police
oIIicers were subpoenaed to testiIy beIore a grand jury about Ielony
allegations oI accepting bribes Irom persons engaged in gambling, prostitution
and other unlawIul activities. (Id. at p. 565-66.) When the oIIicers asserted
their privilege against selI-incrimination and reIused to answer questions, the
Police Commission dismissed them and the oIIicers petitioned Ior
reinstatement.
Christal held that the oIIicers could not avoid dismissal by reIusing to
answer questions:
When police oIIicers acquire knowledge oI Iacts which will tend
to incriminate any person, it is their duty to disclose such Iacts
to their superiors and to testiIy Ireely concerning such Iacts
when called upon to do so beIore any duly constituted court or
grand jury. It is Ior the perIormance oI these duties that police
oIIicers are commissioned and paid by the community, and it is
a violation oI said duties Ior any police oIIicer to reIuse to
disclose pertinent Iacts within his knowledge even though such
disclosure may show, or tend to show, that he himselI has
engaged in criminal activities. (Id. at pp. 567-68.)

The Court oI Appeal recognized that the privilege against selI-
incrimination 'may be exercised by all persons, including police oIIicers, in
any proceeding, civil or criminal. (Id. at p. 568.) Nevertheless, '|d|uty
required them to answer. (Ibid.) The oIIicers 'had a constitutional right to
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
97

reIuse to answer under the circumstances, but it is certain that they had no
constitutional right to remain police oIIicers in the Iace oI their clear violation
oI the duty imposed upon them. (Ibid.)
'We are oI the opinion that such a violation oI duty would constitute
cause Ior dismissal even in the absence oI any speciIic rule requiring such
oIIicers to give testimony beIore the grand jury, or oI any speciIic rule relating
to conduct unbecoming an oIIicer`. That such conduct constituted conduct
unbecoming an oIIicer`, there can be no doubt. (Ibid., emphasis added.)
Christal concluded: 'There is nothing startling in the conception that a public
servant's right to retain his oIIice or employment should depend upon his
willingness to Iorego his constitutional rights and privileges to the extent that
the exercise oI such rights and privileges may be inconsistent with the
perIormance oI the duties oI his oIIice or employment. (Id. at p. 569.)
The prosecution contended that Christal was no longer good law. (2
RT E10.) However, state and Iederal courts have continued to recognize
Christal as a correct statement oI the law governing law enIorcement oIIicers
in CaliIornia.
For example, Titus v. Civil Serv. Commn (1980) 130 Cal. App. 3d 357,
recognized that Christal 'enunciated the role oI a law enIorcement oIIicer
and, thereIore, a deputy sheriII could be suspended Ior reIusing to disclose
'inIormation necessary to a criminal investigation. (Id. at p. 364; accord
S:maciar: v. State Pers. Bd. (1978) 79 Cal. App. 3d 904, 915 |Pursuant to
Christal, a correctional oIIicer may be suspended Ior Iive months without pay
Ior reIusing to answer questions about allegations that he brought marijuana
into prison.|; Fichera v. State Personnel Board (1963) 217 Cal.App.2d 613,
620-21 |'the distinction between the constitutional right oI a private person to
reIuse to incriminate himselI and the special privilege oI holding a law
enIorcement oIIice, laid down in Christal meant that a police oIIicer could be
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
98

dismissed Ior reIusing to take a polygraph test|.)
7

More recently, the courts have recognized that under Christal any doubt
about 'a law enIorcement oIIicer's duty to report criminal activity to his or her
employer . must be resolved in Iavor oI the oIIicer's duties and loyalties to
the law enIorcement agency. (Riverside Countv Sheriffs Dept v. Zigman
(2008) 169 Cal. App. 4th 763, 768, citing Christal, supra, 33 Cal.App.2d at p.
569; see also Huppert v. Citv of Pittsburg (9
th
Cir. 2009) 574 F.3rd 696, 707
|Christal 'articulated the duties oI a police oIIicer within the state to disclose
Iacts within oIIicer`s knowledge about a crime.|.)
Accordingly, the line oI cases beginning with Christal shows that
appellant as a police was required to answer questions or Iace adverse
employment action.
2. A Police Officer Also Has A Statutory Duty To
Answer Questions Or Risk Punitive Action.

Since 1976, CaliIornia has also imposed a statutory duty upon a police
oIIicer to answer questions or risk 'punitive action. (Gov. Code, 3303,
added by Stats 1976, Ch. 465, 1.) A 'public saIety oIIicer under
interrogation . reIusing to respond to questions or submit to interrogations
shall be inIormed that Iailure to answer questions directly related to the
investigation or interrogation may result in punitive action. (Gov. Code,
3303, subd. (e).) 'For the purpose oI this chapter, punitive action means any
action that may lead to dismissal, demotion, suspension, reduction in salary,
written reprimand, or transIer Ior purposes oI punishment. (Gov. Code,
3303.)
In Lvbarger v. Citv of Los Angeles (1985) 40 Cal.3d 822 ('Lvbarger),
the CaliIornia Supreme Court addressed these provisions and recognized that

7
In 1976, the legislature created an express exemption Irom disciplinary
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
99

they create legal compulsion to answer questions. ThereIore, the FiIth
Amendment bars use oI statements obtained in subsequent criminal
proceedings.
In Lvbarger, the LAPD initiated an internal aIIairs investigation oI
possible criminal misconduct by several oIIicers, 'including charges oI Ialse
arrest, Ialse imprisonment, IalsiIication oI records, acceptance oI a bribe and
conspiracy to commit these oIIenses. (Id. at p. 825.) When summoned Ior
questioning, OIIicer Lybarger appeared with an attorney and reIused to answer
questions upon advice oI counsel, even though he was inIormed that 'his
reIusal would result in a charge oI insubordination. (Id. at p. 825.) A police
board later removed Lybarger Irom his position Ior insubordination. (Id. at p.
826.)
The CaliIornia Supreme Court reversed his removal 'because appellant
was never advised that any statements he made could not be used against him
in a subsequent criminal proceeding. (Id. at p. 825.) However, the court
rejected the oIIicer`s argument that another provision oI the POBRA (Gov.
Code, 3304, subd. (a)), 'insulated him Irom administrative discipline
imposed solely by reason oI his exercise oI the right to remain silent. (Id. at
p. 827.) That provision 'provides in pertinent part that No public saIety
oIIicer shall be subjected to punitive action ... because oI the lawIul exercise oI
the rights granted under this chapter |which includes section 3303|, or the
exercise oI any existing administrative grievance procedure.` (Ibid., quoting
Gov. Code, 3304, subd. (a).)
The CaliIornia Supreme Court rejected this argument because the
oIIicer 'had neither a constitutional nor a statutory right to remain silent free of
administrative sanction. As a matter oI constitutional law, it is well

action Ior reIusing to take a polygraph test. (Gov. Code, 3307.)
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
100

established that a public employee has no absolute right to reIuse to answer
potentially incriminating questions posed by his employer. Instead, his selI-
incrimination rights are deemed adequately protected by precluding any use oI
his statements at a subsequent criminal proceeding. (Id. at p. 827, original
italics, citing Garritv, 385 U.S. at p. 500, and Lefkowit: v. Turlev, supra, 414
U.S. at pp. 77-79.)
'Similarly, appellant had no statutory right to remain silent. Section
3303, subdivision (e), expressly provides that an oIIicer who reIuses to
respond to questions or submit to interrogation is subject to punitive action by
his employer. Moreover, contrary to appellant's analysis, subdivision (a) oI
section 3304 does not protect the oIIicer Irom punitive action based on his
reIusal to cooperate in an investigation, since such reIusal is not one oI the
rights granted under` the act. (Id. at p. 827.)
The CaliIornia Supreme Court has continued to recognize that
Government Code section 3300 requires an oIIicer to answer questions but her
responses may not be used 'in aid oI a criminal prosecution. (Spielbauer v.
Countv of Santa Clara (2009) 45 Cal.4th 704, 724; accord Pasadena Police
Officers Assn. v. Citv of Pasadena (1990) 51 Cal.3d 564, 578 |'As we
observed in Lvbarger, supra, at page 827, a peace oIIicer has no absolute right
under the Constitution to reIuse to answer potentially incriminating questions
asked by his or her employer; instead, the oIIicer employee's right against selI-
incrimination is deemed adequately protected by precluding any use oI his or
her statements at a subsequent criminal proceeding should such charges be
Iiled.|; Williams v. Citv of Los Angeles (1988) 47 Cal.3d 195, 199-200
|same|.)
Accordingly, Government Code section 3300 also created legal
compulsion to answer questions. As explained below, the compulsion to
answer created automatic use immunity Ior her June 5
th
statements in criminal
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
101

proceedings.
E. Appellant Was Compelled To Answer Questions Regardless
Of Whether LAPD Took Administrative Action.

The trial court concluded that Government Code section 3300 did not
compel appellant to answer questions because 'it is clear that this was a
criminal investigation and is exempt Irom P.O.B.R. (2 RT E16.) However,
the law and Iacts support appellant.
Government Code section 3303 states: 'This section shall not apply to
any interrogation oI a public saIety oIIicer in the normal course oI duty,
counseling, instruction, or inIormal verbal admonishment by, or other routine
or unplanned contact with, a supervisor or any other public saIety oIIicer, nor
shall this section apply to an investigation concerned solely and directly with
alleged criminal activities. (Gov. Code, 3303, subd. (i).)
However, the concluding clause ('nor shall this section apply to an
investigation concerned solely and directly with alleged criminal activities)
did not eliminate the legal compulsion to answer when a police oIIicer is
'under investigation and subjected to interrogation by . any other member oI
the employing public saIety department, that could lead to punitive action|.|
(Gov. Code, 3303, Para. 1.)
Subdivision (i) means that the procedural protections Ior an
administrative investigation created by subdivisions (a)-(e), !"#", advisement oI
the nature oI the investigation, permission to attend to personal physical
necessities, advisement that Iailure to answer may result in punitive action,
interrogation at a reasonable hour, do not apply 'to an investigation concerned
solely and directly with alleged criminal activities. (Gov. Code, 3303, subd.
(i).)
8

8
Government Code section 3303 provides: 'When any public saIety oIIicer is
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
102

However, appellant did not claim that her statements should be
suppressed because the detectives Iailed to oIIer her the procedural protections
oI the POBR. (2 RT E5-6.) Her position is that Government Code section
3303 created a legal compulsion to answer questions. ThereIore, appellant`s
privilege against selI-incrimination 'preclude|ed| any use oI |her| statements
at a subsequent criminal proceeding. (Lvbarger, supra, 40 Cal.3d at p. 827;
citing Lefkowit: v. Turlev, supra, 414 U.S. at pp. 77-79, and Garritv, supra,
385 U.S. at p. 500; accord Pasadena Police Officers Assn. v. Citv of

under investigation and subjected to interrogation . that could lead to
punitive action, the interrogation shall be conducted under the Iollowing
conditions. . (a) The interrogation shall be conducted at a reasonable hour,
preIerably at a time when the public saIety oIIicer is on duty, or during the
normal waking hours Ior the public saIety oIIicer, unless the seriousness oI the
investigation requires otherwise. II the interrogation does occur during oII-
duty time oI the public saIety oIIicer being interrogated, the public saIety
oIIicer shall be compensated Ior any oII-duty time in accordance with regular
department procedures, and the public saIety oIIicer shall not be released Irom
employment Ior any work missed. (b) The public saIety oIIicer under
investigation shall be inIormed prior to the interrogation oI the rank, name, and
command oI the oIIicer in charge oI the interrogation, the interrogating
oIIicers, and all other persons to be present during the interrogation. All
questions directed to the public saIety oIIicer under interrogation shall be
asked by and through no more than two interrogators at one time. (c) The
public saIety oIIicer under investigation shall be inIormed oI the nature oI the
investigation prior to any interrogation. (d) The interrogating session shall be
Ior a reasonable period taking into consideration gravity and complexity oI the
issue being investigated. The person under interrogation shall be allowed to
attend to his or her own personal physical necessities. (e) The public saIety
oIIicer under interrogation shall not be subjected to oIIensive language or
threatened with punitive action, except that an oIIicer reIusing to respond to
questions or submit to interrogations shall be inIormed that Iailure to answer
questions directly related to the investigation or interrogation may result in
punitive action. No promise oI reward shall be made as an inducement to
answering any question. The employer shall not cause the public saIety oIIicer
under interrogation to be subjected to visits by the press or news media without
his or her express consent nor shall his or her home address or photograph be
given to the press or news media without his or her express consent.
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
103

Pasadena, supra, 51 Cal.3d at p. 578; Williams v. Citv of Los Angeles, supra,
47 Cal.3d at pp. 199-200.)
To avoid this conclusion, the prosecution submitted the declaration oI
Deputy ChieI Perez, the Commanding OIIicer oI the ProIessional Standards
Bureau oI the LAPD. (5 CT 878.) In his view, the POBR was irrelevant
because it applies only to administrative proceedings and the police did not
prepare an administrative complaint against appellant until July 22, 2009. (5
CT 879.)
However, the courts have recognized that the POBR imposes an
obligation to answer questions even beIore LAPD commences administrative
proceedings. For example, in Citv of Los Angeles v. Superior Court (1997) 57
Cal.App.4th 1506, a witness inIormed the police that an LAPD oIIicer had
driven past a Iatal accident without stopping to render aid. (Id. at pp. 1509-
10.) Lieutenant Martinez responded and based on descriptions determined that
OIIicer Merinio Labio was the oIIicer involved. (Id. at p. 1510.)
The lieutenant summoned OIIicer Labio to his oIIice and questioned
him about his whereabouts but did 'not inIorm|| OIIicer Labio that he was
under investigation . and did not give him Miranda warnings or inIorm him
oI his rights under the |POBR| Act. (Id. at p. 1510.) 'Following the
interview, Lieutenant Martinez Iiled a personnel complaint with Internal
AIIairs Division and the LAPD 'terminated OIIicer Labio Ior, inter alia,
Iailing to stop at the scene oI an accident and making Ialse and misleading
statements about his whereabouts at the time. (Id. at p. 1511.)
In a subsequent petition Ior relieI, the Superior Court agreed that
statements made prior to the Iiling oI the complaint should have been excluded
Irom evidence because 'Lieutenant Martinez had not advised him that he was
under investigation, as required by section 3303, subdivision (c). (Id. at p.
1511.) This Court aIIirmed the Superior Court`s ruling because 'an
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
104

investigation was underway in this case when the lieutenant questioned the
oIIicer beIore the complaint was Iiled. (!". at p. 1514.)
For analogous reasons, the Iact that an administrative complaint had not
yet been Iiled against appellant did not mean that appellant was not under
investigation when the detectives interrogated her on June 5, 2009. Nor, as
next explained, did it mean that in the absence oI a complaint appellant would
not have reasonably believed, as she stated in her declaration, that she was
compelled to answer questions or 'be subject to discipline by the Los Angeles
Police Department. (5 CT 841.)
F. Because Of The Legal Compulsion To Answer Questions,
Appellant`s Belief That She Was Required To Do So Was
Objectively Reasonable And She Was Entitled To Use
Immunity For Her Answers.

The trial court noted that appellant in her declaration stated 'that she
was aware that iI she did not answer their questions, she could be terminated.
(2 RT E15; see 5 CT 841 |appellant`s declaration|.) However, the court
dismissed this because appellant 'never during the interview asked iI she had
to answer the questions, nor did she raise the issue oI whether their
investigation was an administrative investigation. Her assertion that she Ielt
compelled to answer on pain oI losing her job is not, in the court`s view,
objectively reasonable based on the transcript that I have read. (2 RT E15-
16.)
However, additional Iacts and the law support appellant declaration. In
connection with the administrative proceedings that led to appellant`s
dismissal, her commanding oIIicer noted that 'Detective Lazarus has been
employed with the Los Angeles Police Department since September 19, 1983.
During her career she has held a variety oI assignments in which she was well
aware oI her duties and responsibilities as a Los Angeles Police OIIicer. (5
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
105

CT 845.) This is consistent with appellant`s statement that when interrogated
on June 5, 2009, she 'was aware at that time that iI I did not answer questions,
I could be subject to discipline by the Los Angeles Police Department. (5 CT
841.)
The above discussion also shows that appellant`s belieI was objectively
reasonable because oI the long-standing legal requirement Ior a police oIIicer
to answer questions or risk dismissal. (See, e.g., Christal, supra, 33
Cal.App.2d at pp. 567-68; Riverside Countv Sheriffs Dept v. Zigman, supra,
169 Cal. App. 4th at 768; Huppert v. Citv of Pittsburg, supra, 574 F.3rd at p.
707.) The POBR imposed the same duty to answer or Iace punitive action.
(Gov. Code, 3300.)
The prosecution argued that appellant`s belieI was unreasonable
because the detectives never told her she had to answer questions (5 CT 868-
69; 2 RT E10-11.) The trial court observed that appellant 'never during the
interview asked iI she had to answer the questions|.| (2 RT E14.) However,
Garritv provides automatic use immunity in criminal cases Ior legally
compelled answers.
In Sher v. U.S. Dept. of Jeterans Affairs (1st Cir. 2007) 488 F.3d 489,
the Department oI Veteran aIIairs suspended Sher, the chieI pharmacist oI a
VA hospital, Ior 45 days and demoted him aIter he reIused to answer questions
in an investigation oI obtaining Iree drug samples Ior personal use. (Id. at p.
493.) Federal regulations required Sher as a Iederal employee to 'Iurnish
inIormation and testiIy Ireely and honestly in cases respecting employment
and disciplinary matters. ReIusal to testiIy, concealment oI material Iacts, or
willIully inaccurate testimony in connection with an investigation or hearing
may be ground Ior disciplinary action. (38 C.F.R. 0.735-12(b).)
In pertinent part, the First Circuit addressed 'the legal question oI
whether Sher had adequate notice oI his immunity under Garritv|.| (Id. at p.
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
106

500.) It concluded that the 'subjective mental states oI Sher and his attorneys
are irrelevant to that legal question. (Ibid.) 'Garritv immunity . Ilowed
Irom the threat oI removal itselI|.| (Id. at p. 506 In. 17.) 'Although Garritv
itselI dealt with a situation in which employees were threatened with removal,
any situation in which the employee is subject to an adverse employment
action is suIIicient to trigger Garritv immunity. (Id. at p. 502, In. 11.)
Similarly, in Hester v. Citv of Milledgeville (11th Cir.1985) 777 F.2d
1492, the Eleventh Circuit explained that even iI an employer has no duty to
advise a public oIIicer oI the availability oI Garritv immunity, it automatically
applies. The question presented was whether the city could without oIIering
use immunity compel IireIighters to submit to polygraph testing about
allegations oI involvement in illegal drug activity. (Id. at pp. 1493-94.)
The Eleventh Circuit 'Iail|ed| . to see how the city's Iailure to oIIer
the plaintiIIs use immunity could make any constitutional diIIerence. . Such
a guarantee would serve no useIul purpose . because under Garritv the
results oI a mandatory polygraph examination cannot be used in a criminal
proceeding against the subject even absent an explicit grant oI use immunity.
(Id. at p. 1496.)
'In essence, the privilege against selI-incrimination aIIords a Iorm oI
use immunity which, absent waiver, automatically attaches to compelled
incriminating statements as a matter oI law. (Ibid., emphasis added, citing
Gulden v. McCorkle (5
th
Cir. 1982) 680 F. 2d 1070, 1075 |'An employee who
is compelled to answer questions (but who is not compelled to waive
immunity) is protected by Garritv Irom subsequent use oI those answers in a
criminal prosecution. It is the very Iact that the testimony was compelled
which prevents its use in subsequent proceedings, not any aIIirmative tender oI
immunity.|; accord Erwin v. Price (11th Cir.1985) 778 F.2d 668, 670.)
Accordingly, Garritv provided automatic use immunity Ior appellant`s
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
107

statements, regardless oI whether she asked or the detectives told her that she
was required to answer questions.
G. The Error In Admitting The Evidence Of Appellant`s
Interrogation Was Prejudicial To her Defense.

Reversal is required unless admission oI an involuntary statement was
'harmless beyond a reasonable doubt.` (Ari:ona v. Fulminate (1991) 499
U.S. 279, 295-96 |111 S. Ct. 1246; 113 L.Ed.2d 302| quoting Chapman, 386
U.S. at p. 24; accord People v. Cahill (1993) 5 Cal.4th 478, 510.) An 'error in
admitting plainly relevant evidence which possibly inIluenced the jury
adversely to a litigant cannot ... be conceived oI as harmless. (Chapman,
supra, 386 U.S. at p. 24.)
Prejudice is present here because the prosecution repeatedly relied on
the evidence oI appellant`s June 5
th
statements to urge the jury to reject her
deIense oI reasonable doubt oI the circumstantial evidence oIIered to prove
that she killed Rasmussen out oI jealousy.
In closing, the prosecution argued that 'as a police oIIicer, she knows
that motive is a powerIul piece oI evidence. (18 RT 2999.) So, she didn`t tell
the detectives 'how much she loved John because 'that would be revealing a
motive to kill Sherri, and she did not want to do that. (Ibid.) Instead, she said
they just dated but also dated other people. (Ibid.)
The prosecutor also argued that the appellant was evasive about her
contacts with Rasmussen and Ruetten in order to deIlect, minimize and
mislead the detectives. (18 RT 2999-3001.) To make this point, prosecutor
played several excerpts oI the videotaped interrogation during closing
argument. (Ibid.) The prosecutor also argued that appellant`s demeanor
during interrogation showed she was dishonest about her relationship with
Ruetten and Rasmussen and her contacts with them. (18 RT 3000-3002.)
As explained above in Section II.I., and Ior brevity incorporated by
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
108

reIerence here, the evidence Irom appellant`s putative jealous obsession with
Ruetten was inadmissible as the product oI an unlawIul search. The DNA
evidence was Ilawed because it conIused random match probability with
source attribution. Other DNA as well as Iingerprint and Iirearm evidence
supported a reasonable doubt that appellant rather than a burglary committed
the crime. Accordingly, the prosecution`s use oI the videotape oI appellant`s
interrogation in closing argument 'tips the scale in Iavor oI Iinding prejudice.
(People v. Minifie (1996) 13 Cal.4th 1055, 1071.)
V.

THE TRIAL COURT ERRED BY DENYING THE DEFENSE
REQUEST TO HOLD A KELLY-FRYE HEARING AND
ADMITTING EVIDENCE OF LOW COPY DNA TESTING
USING MiniFiler.

A. Introduction.
BeIore trial, appellant requested a Kellv/Frve hearing on the
admissibility oI the DNA test results using the 'AmpFISTR MiniFiler
(hereaIter 'MiniFiler) DNA testing methodology. (6 CT 1095-96, citing
People v. Kellv (1976) 17 Cal.3d 24 ('Kellv) and Frve v. United States (D.C.
Cir. 1923) 293 F. 1013 ('Frve).) SERI had used MiniFiler Ior some oI the
evidence Irom the crime scene. (Ibid.)
"|U|nder the Kellv-Frve rule the proponent oI evidence derived Irom a
new scientiIic methodology must satisIy three prongs, by showing, Iirst, that
the reliability oI the new technique has gained general acceptance in the
relevant scientiIic community, second, that the expert testiIying to that eIIect is
qualiIied to do so, and, third, that correct scientiIic procedures were used in the
particular case. (People v. Rovbal (1998) 19 Cal. 4th 481, 505, citations and
internal quotations omitted.)
Appellant argued that she was entitled to a hearing to determine
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
109

whether MiniFiler satisIied prong one because it was a new commercial kit
Ior DNA analysis and no court had yet upheld its use over a Kellv challenge.
(6 CT 1098, 1104.) Appellant also requested a prong three hearing to
determine whether the procedures actually used in her case were in compliance
with the MiniFiler methodology. (6 CT 1105.)
The trial court denied both requests. Citing People v. Hill (2001) 89
Cal.App.4th 48, it concluded that MiniFiler DNA testing was just a variant
oI the generally accepted polymerase chain reaction/short tandem repeat
(PCR/STR) method oI DNA testing.
9
(3 RT L4.) ThereIore, it denied
appellant`s request Ior a prong one Kellv hearing. (3 RT L4.) As to the prong
three, it concluded that any issues could be resolved by an Evidence Code
section 402 hearing beIore the SERI expert (Tom Fedor) testiIied. (3 RT L4.)
The trial court erred because the oIIer oI prooI made by appellant
showed that People v. Hill, supra, did not resolve the issues presented by using
MiniFiler to test low copy DNA as conducted by SERI or show that such
testing was generally accepted as reliable within the relevant scientiIic
community. Moreover, '|s|ince the third prong oI the Kelly test requires case
speciIic prooI that correct procedures were employed, it cannot be satisIied by

9
PCR reIers to the 'three-step ampliIication cycle that 'occurs in a very
small tube containing a sample oI the double-stranded DNA with the target
segment (e.g., the evidence DNA), short single-stranded pieces oI DNA
(primers) designed to bind to the two speciIic regions Ilanking the target
segment oI DNA (primer binding sites), a heat-resistant DNA-building enzyme
(a DNA polymerase), the building blocks oI DNA (nucleotides), and other
required elements. (People v. Pi:arro (2013) Cal.App.4th |2013 Cal.
App. LEXIS 402 at p. *87|, Iootnote omitted.) 'STR's are stretches oI DNA
composed oI repeated blocks oI short sequences, oIten Iour nucleotides long.
The number of repeats varies among people, usually within the range oI 10 to
20 repeats. The Iunction oI these repetitive regions is unknown, but their
variability provides an opportunity to identiIy diIIerences between two people,
such as perpetrator and suspect in a criminal case, or Iather and child in a
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
110

relying on a published appellate decision. (People v. Morganti (1996) 43 Cal.
App. 4th 643, 661.)
B. The Technical Issues Raised Below.
SERI and the LAPD crime lab had used the IdentiIiler DNA test kit
on some evidence samples and the LAPD lab had also ProIiler Plus on some
evidence. (6 CT 1002, 1009.) Appellant did not dispute that those were
generally accepted methods oI PCR/STR DNA testing. (6 CT 1102, citing
People v. Hill (2001) 89 Cal. App. 4
th
48, 57 |addressing ProIiler Plus|; People
v. Jackson (2008) 163 Cal. App. 4
th
313, 324 |addressing IdentiIiler|.)
However, SERI also conducted additional tests using the new
MiniFiler methodology to examine low level or degraded DNA samples. (6
CT 1102.) The samples examined by MiniFiler were consumed during the
analysis so that no additional testing could be perIormed. (Ibid.) No appellate
precedent had Iound general scientiIic acceptance oI MiniFiler testing oI
low copy DNA. (6 CT 1103.) Despite superIicial similarity to prior tests kits
such as IdentiIiler and ProIiler, there were signiIicant analytical diIIerences
with use oI MiniFiler.
1. Orchid-Cellmark, the manuIacturer oI MiniFiler diIIerentiated it
Irom prior PCR/STR test kits because MiniFiler was the 'world`s Iirst
DNA test kit to test Ior 'miniSTR at eight loci. (6 CT 1102, 1105.)
2. MiniFiler used a new polymerase or new reaction base, not
previously used in existing kits. (6 CT 1105.)
3. MiniFiler used primers that were diIIerent Irom prior commercial
kits used in DNA analysis. The use oI those primers produced unpredictable
results with respect to major vs. minor donors when analyzing mixtures, such
as SERI did in this case. Additionally, the use oI diIIerent primers resulted in

paternity case. (Id. at p. *85.)
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
111

'primer binding site mutation, sometimes resulting in the dropout oI one oI
the alleles, thereby aIIecting the analysis. (6 CT 1105.)
4. MiniFiler increased the number oI cycles in the PCR ampliIication
process Irom 28 to between 30 and 36, resulting in contamination, allelic
dropout and, peak height imbalance, all oI which aIIected the resulting
analysis. (6 CT 1105.)
5. According to Orchid-Cellmark, MiniFiler could 'obtain DNA
results Irom compromised samples that previously would have yielded limited
or no genetic data.` (6 CT 1102, quoting marketing inIormation Irom the
Orchid-Cellmark web site, 6 CT 1105.)
6. In this case, SERI used the MiniFiler kit to conduct analyses oI
low copy number (LCN) samples oI mixtures, i.e., samples containing more
than one donor that contained less than 200 picograms oI template DNA. (6
CT 1105
Because oI these test-speciIic issues, appellant also requested a prong
three Kellv hearing on the MiniFiler procedures used in the case beIore the
results were presented at trial. (6 CT 1105.)
By a written opposition, the prosecution argued that MiniFiler was
not a new scientiIic technique. (6 CT 1122.) In its view, it was a variation oI
the pre-existing PCR/STR methodology which, as shown by People v. Hill,
supra, and other cases, was a generally accepted scientiIic technique. (6 CT
1122-24, 1125.) Because MiniFiler relied on the 'core technology oI
PCR/STR testing, the prosecution contended that MiniFiler should also be
considered generally accepted by the scientiIic community. (6 CT 1125.)
In support oI its position, the prosecution presented as exhibits two
technical notes Irom the 'Journal oI Forensic Sciences. (6 CT 1141, 1145.)
One note reported a 'concordance between MiniFiler and conventional
STR typing kits. (6 CT 1141.) The second note oIIered a 'validation study
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
112

Ior use oI MiniFiler in Iorensic casework. (6 CT 1145.) The notes reported
'Iull concordance between MiniFiler and IdentiIiler except in one
instance oI a 'null allele at locus D21S11. (6 CT 1145, 1152-53.) That was
the result oI 'the ampliIication oI a sample with a rare microvariant allele. (6
CT 1152.)
As to the request Ior a prong three hearing, the prosecution argued that
any issues could be addressed by an Evidence Code section 402 hearing. (6
CT 1126.)
By a written reply, appellant argued that a hearing would establish the
MiniFiler 'employs a materially distinct scientiIic technique speciIically
designed to test highly degraded DNA samples using primers that are totally
diIIerent Irom those used in previous DNA analysis kits. (6 CT 1155.)
Additionally, MiniFiler 'analyzes miniscule DNA samples, which,
depending on the quantity oI DNA analyzed, can result in artiIacts obscuring
part oI the DNA genetic proIile. (6 CT 1155-56.)
Finally, MiniFiler 'uses a new polymerase and a diIIerent reaction
base, which is a chemistry that diIIers Irom existing DNA test kits. Expert
testimony at a hearing will establish that these signiIicant diIIerences establish
the MiniFiler kit employs a new scientiIic technique. Additionally,
MiniFiler has not gained general acceptance in the relevant scientiIic
community, at least not Ior low copy number (LCN`) testing at a level
perIormed by SERI in this case. (6 CT 1155-56.)
In support oI her position, appellant made an oIIer oI prooI. As to
prong one, a deIense expert was prepared to testiIy that the two studies
submitted by the prosecution (reIerred to collectively as 'the Study) Iailed to
resolve Iive issues, and also why a prong three hearing was necessary:
First, the PCR ampliIication in the Study was done at 28 cycles (4 CT
1142, not a greater number oI cycles as SERI may have employed. (6 CT
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
113

1156.)
Second, the Study did not involve LCN testing as done by SERI. (6 CT
1156.) LCN testing analyzed minuscule amounts oI DNA that Iall below the
stochastic threshold oI 100 picograms or less.
10
(See United States v. Davis
(D. Md. 2009) 602 F.Supp.2d 658, 667-669.) There are approximately 6
picograms oI DNA per cell. There are 1,000 picograms in one nanogram,
which is one billionth oI a gram. (Ibid.) The deIense expert would explain the
signiIicance oI LCN testing to the applicability oI the Study oIIered by the
prosecution. (6 CT 1156.)
Third, in the Study stutter eIIects were analyzed Ior template amounts
oI 0.2-0.6 ng. (200 to 600 picograms).
11
(6 CT 1146, 1157.) At a hearing, an
expert would determine whether SERI analyzed template picograms amounts
Ialling below the stochastic threshold. (6 CT 1157.) This was important
because results within the area oI stochastic eIIect present diIIiculties in
determining the correct genotype due to allelic dropout or an incorrect
assessment that an allele was homozygous. (Ibid.) The Study addressed
allelic dropout on 17 reIerence samples at a template DNA range oI 0.2-0.6
nanograms. (6 CT 1146.) The deIense expert would explain why this was not
relevant to the SERI analysis oI low copy DNA samples and the signiIicance
oI the stochastic threshold to the Kellv standard. (6 CT 1157.)
Fourth, the Study ampliIied DNA Irom buccal (inner cheek) swabs oI
17 individuals. (6 CT 1146.) The Study also limited itselI to DNA mixtures

10
The 'stochastic threshold reIers to the 'minimum amount oI DNA that's
necessary so as to avoid having random processes dominate or maniIest
themselves in DNA testing results.` |Citation.| (United States v. Davis (D.
Md. 2009) 602 F.Supp.2d 658, 668.)

11
'Stutter reIers to slippage oI DNA polymerase during ampliIication
generating a peak in an electropherogram that is one unit less than that
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
114

Irom only 2 contributors, analyzing 0.3 ng. Irom each contributor. (6 CT
1147.) SERI used MiniFiler to examine mixtures Irom more than two
contributors. The deIense expert would explain the signiIicance oI these
diIIerences to the !"##$ standard. (6 CT 1157.)
FiIth, the 'sensitivity part oI the Study concluded that, 'oIIscale peaks
and baseline artiIacts were observed to occur at template levels oI 1 ng. and
higher. (6 CT 1148.) As a result 'it was established that 0.2-0.6 ng. oI DNA,
with an optimum target oI 0.3 ng. should be employed Ior the optimal typing
oI DNA samples. (%&'(.) The deIense expert would explain the signiIicance
oI this Iinding to SERI`s analyses and its relevance to the !"##$ standard. (6
CT 1157.)
As to prong three, appellant argued that a hearing was necessary to
determine whether SERI had adopted and used scientiIically accepted
procedures Ior MiniFiler testing oI low copy DNA samples. (6 CT 1158)
C. Hearing and Ruling by the Trial Court.
On September 1, 2011, aIter review oI all the brieIing, the court
addressed the deIense request Ior a !"##$)*+$" hearing. (3 RT L1.)
The prosecutor conIirmed that he intended to oIIer DNA results based
on the use oI MiniIiler, but limited to the analysis oI one oI the broken
Iingernails Iound in the entryway oI Rasmussen`s residence. (3 RT L1-2; see
4 RT 491-93, 495-96.) The prosecutor also stated that the deIense had an
observer present when SERI conducted the MiniFiler testing. (3 RT L2-3.)
The trial court denied the request Ior a prong one hearing, Iinding that
,"-.#" 01 2'##, 34.+5, 89 Cal.App.4th 48 ('2'##), answered the issues in Iavor
oI the prosecution. (3 RT L3.) DeIense counsel objected that, based on the
proIIered testimony by a deIense expert, 2'## did not apply and requested an

believed to reIlect the true allele oI the sample DNA. (6 CT 1146.)
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
115

opportunity to present that testimony. (3 RT L3-5.)
However, the trial court Iound Hill dispositive. (3 RT L3.) Hill Iound
no error in the denial oI a prong one or prong three hearing on use oI the
ProIiler Plus test kit. (Ibid.) In the trial court`s view, 'the uniqueness oI the
ProIiler Plus test kit compared to other test kits was actually more extreme
than the MiniIiler test kit`s uniqueness compared to the IdentiIiler and
ProIiler Plus test kits that you acknowledge are now accepted. (Ibid.)
Hill rejected the argument that each new PCR/STR test kit must be
subject to a Kellv prong one analysis to determine scientiIic reliability. (3 RT
L3.) The deIendant in Hill challenged the ProIiler Plus test kit because it used
diIIerent primers. (3 RT L5.) Appellant also argued 'that the MiniFiler test
kit uses diIIerent primers. (Ibid.) The trial court also accepted the two
publication submitted by the prosecution as peer reviewed publications
showing the reliability oI MiniFiler testing. (Ibid.)
In Hill, the deIendant supported his request Ior a Kellv hearing with a
declaration Irom an expert. (3 RT L5-6; see People v. Hill, supra, 89
Cal.App.4th at p. 56.) However, the deIense had not done so here. (Ibid.) In
sum, the issues raised by the deIense were 'well covered by Hill and the trial
court thereIore, denied the deIense request Ior a prong one hearing on the
general acceptance oI MiniFiler testing. (3 RT L5-6.)
As to the request Ior a prong three hearing, Hill aIIirmed holding an
Evidence Code section 402 hearing beIore the expert testiIied rather than a
Kellv hearing and the court agreed to do so. (3 RT L4, 6.) DeIense counsel
did not later request an Evidence Code section 402 hearing.
D. The MiniFiler Evidence Presented At Trial.
At trial, Tom Fedor oI SERI testiIied that he conducted DNA tests on a
piece oI broken Iingernail Iound in the entry way oI Rasmussen`s residence
(LAPD Evidence Item No. 10) using MiniFiler. (12 RT 1940-41; see 4 RT
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
116

491-93, 495-96.) In his opinion, MiniFiler was particularly suitable Ior
small or degraded samples oI DNA. (12 RT 1941.) It Iilled in some areas
where the IdentiIiler reagent kit 'may give weak or no results. (Ibid.)
From the broken Iingernail, MiniFiler 'gave weak and incomplete
results indicating a mixture Irom at least three people. (12 RT 1944.) 'Sheri
Rasmussen is a possible contributor to the mixture, and approximately 1
woman in 670 would be similarly considered. Stephanie Lazarus is a possible
contributor to the mixture, and approximately 1 in 26,000 women would be
similarly considered. (Ibid.) 'That is, approximately 1 woman in 26,000 is
capable oI showing the same results that in this case looked like they came
Irom Stephanie Lazarus. (12 RT 1947.)
As to the evidence oI a third person in the same Iingernail sample (Item
No. 10), no statistics could be done because there was no person to compare it
to as a possible source. (12 RT 1948.)
!" $%&'(&)( *+ ,-./-0"
Under prong one oI Kellv, the reliability oI a DNA testing procedure
must be suIIiciently established to have gained general acceptance within the
relevant scientiIic community. (People v. Jenegas (1998) 18 Cal. 4th 47, 78,
citing People v. Kellv, supra, 17 Cal.3d at p. 30.)
'On appeal, the general acceptance` Iinding under prong one oI Kellv
is 'a mixed question oI law and Iact subject to limited de novo review.' |W|e
review the trial court's determination with deIerence to any and all supportable
Iindings oI 'historical' Iact or credibility, and then decide as a matter oI law,
based on those assumptions, whether there has been general acceptance.'
(People v. Morganti (1996) 43 Cal. App. 4th 643, 663.) Where a trial court has
admitted a new scientiIic test and the decision is aIIirmed in a published
opinion, the precedent so established may control subsequent trials, at least
until new evidence is presented reIlecting a change in the attitude oI the
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
117

scientiIic community.` (People v. Kellv, supra, 17 Cal. 3d at p. 32.) Trial
courts may also rely on out-oI-state cases to ascertain whether a new scientiIic
test has been accepted. (People v. Allen |(1999) 72 Cal. App. 4th 1093|,
1099.) (People v. Hill, supra, 89 Cal.App.4th at p. 57, internal citations and
quotations omitted.)
The denial oI a prong three hearing is reviewed Ior an abuse oI
discretion provided that the proponent oI the evidence made a 'Ioundational
showing that correct scientiIic procedures were used.` (Id. at p. 58, quoting
People v. Barnev (1992) 8 Cal. App. 4th 798, 825.)
F. Appellant Made A Sufficient Offer Of Proof To Hold A
Prong One !"##$ Hearing And The Trial Court Erred In
Relying On Selective Publications To Deny A Hearing.

The trial court accepted the two journal articles submitted by the
prosecution as peer review publications reIlecting general scientiIic acceptance
oI MiniFiler DNA testing. (3 RT L5.) In contrast, the court Iaulted
appellant`s Ior not supporting her request Ior a prong one Kellv hearing with a
declaration Irom an expert as the deIendant had done in Hill. (3 RT L5-6; see
People v. Hill, supra, 89 Cal.App.4th at p. 56.)
Appellant`s oIIer oI prooI in her brieIing was suIIicient to support a
Kellv hearing. (6 CT 1101-02; 1156-58.) An oIIer oI prooI is suIIicient iI the
'substance, purpose, and relevance oI the evidence was made known to the
court|.| (Evid. Code, 354, subd. (a).) To meet this standard, it is suIIicient
iI 'deIense counsel's written motion made clear the evidence he sought to
admit. (People v. Guerra (2006) 37 Cal.4th 1064, 1144, overruled on another
point bv People v. Rundle (2008) 43 Cal.4th 76, 151.)
As set Iorth above, deIense counsel`s initial brieI identiIied the
diIIerences between MiniFiler and other test kits based on the
manuIacturer`s representations about MiniFiler. (6 CT 1101-02.) His reply
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
118

brieI identiIied Iive areas where the deIense expert was prepared to testiIy to
explain why the two journal articles submitted by the prosecution Iailed to
demonstrate general scientiIic acceptance oI MiniFiler testing oI low copy
DNA. (6 CT 1156-57.) Accordingly, appellant made a suIIicient oIIer oI
prooI. (Evid. Code, 354, subd. (a); People v. Guerra, supra, 37 Cal.4th at p.
1144.)
The trial court also erred in relying solely on two publications selected
by the prosecution, particularly aIter they had questioned in detail by the
deIense expert and no appellate court had Iound general scientiIic acceptance
oI using MiniFiler Ior low copy DNA testing. (6 CT 1103, 1157-58.)
Under these circumstances, People v. Morganti, supra, 43 Cal.App.4th
643 ('Morganti) shows that the trial court erred. Morganti addressed whether
a Kellv prong one hearing was required Ior two methods oI blood stain analysis
(agglutination inhibition and PCR analysis oI the DQ alpha gene). Morganti
aIIirmed that no prong one hearing was required on the use oI agglutination
inhibition because it had already been approved aIter appellate review. (Id. at
p. 658 |'the Kellv test is not required once the scientiIic technique in question
has been endorsed in a published appellate opinion|.)
However, 'PCR has not been approved in published appellate precedent
in CaliIornia. (Id. at p. 663.) Accordingly, the 'trial court in this case held a
lengthy and extensive Kellv hearing and concluded that the PCR evidence was
admissible. (Ibid.) The Court oI Appeal aIIirmed this ruling. (Ibid.) In so
doing, it rejected the deIendant`s selective presentation oI publications to
question scientiIic acceptance. (Id. at pp. 664-65.) The trial court similarly
erred by selectively relying on two articles presented by the prosecution,
particularly aIter they had been called into question by the deIense expert.
'In reviewing the literature contained in the record, we will not pick
and choose` among writings but will consider a Iair overview oI the literature`
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
119

to determine whether scientiIic consensus exists.` (People v. Shirlev (1982) 31
Cal. 3d 18, 56 |superseded by statute on another point as stated in People v.
Alexander (2010) 49 Cal.4th 846, 881.)|.) Further, we are mindIul that
selected publications is a poor substitute Ior the testimony oI several experts
subject to cross-examination and judicial questioning as to the degree oI
general acceptance.` (People v. Tavlor (1995) 33 Cal. App. 4th 262, 269.) It is
also appropriate to examine relevant decisions Irom other jurisdictions on the
question oI consensus |citation|, bearing in mind that the needed consensus is
that oI scientists, not courts.` (People v. Reillv |(1987) 196 Cal. App. 3d 1127,|
1135.) (People v. Morganti, supra, 43 Cal.App.4
th
at p. 663, emphasis
added.)
Thus, it 'remains true that |o|Iten ... the technical complexity oI the
subject matter will prevent lay judges Irom determining the existence, degree,
or nature oI a scientiIic consensus or dispute without the interpretive assistance
oI qualiIied live witnesses subject to a Iocused examination in the courtroom.`
|Citation.| (People v. Soto (1999) 21 Cal.4th 512, 540-41 n. 31.) A
reviewing court may 'reIer to scientiIic literature to determine whether or not
there is general acceptance oI a scientiIic technique. (Ibid.) However, in 'a
context oI rapidly changing technology, every eIIort should be made to base
that controlling eIIect |oI Iinding general acceptance| on the very latest
scientiIic opinions, including those published during the appellate phase oI the
case. (Ibid.)
Fedor used MiniFiler to test low copy DNA on the broken Iingernail.
(6 CT 1105; 12 RT 1941.) Consistent with the proIIered deIense expert
testimony, scientiIic literature shows disagreements and interpretive problems
with low copy DNA testing, including testing with MiniFiler.
In 2001, Bruce Budowle, then a senior scientist at the FBI Crime
Laboratory, and some oI his colleagues, issued a warning to the DNA testing
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
120

community about the way they were beginning to use the new STR
technology: 'Because oI the successes encountered with STR typing, it was
inevitable that some individuals would endeavor to type samples containing
very minute amounts oI DNA. ... When Iew copies oI DNA template are
present, stochastic ampliIication may occur, resulting in either a substantial
imbalance oI two alleles at a given heterozygous locus or allelic drop out.
(Budowle et al., Low Copv Number -- Consideration and Caution, Proc. 12th
International Symposium on Human IdentiIication (2001), available at
http://www.promega.com.
A leading investigator subsequently concurred, commenting that
'application oI LCN |low copy number| results should be approached with
caution due to the possibilities oI allele dropout, allele drop-in, and increased
risks oI collection-based and laboratory-based contamination. (Butler,
Forensic DNA Tvping, Second Edition. Biologv, Technologv and Genetics of
STR Markers (Academic Press 2005) (hereaIter 'Butler) at p. 168.) Allele
'drop-out occurs when there is a Iailure to ampliIy an allele which is actually
present, but does not appear on the electropherogram; alternatively,
contamination may cause preIerential ampliIication oI rogue alleles, which
appear to become part oI the DNA proIile (allelic 'drop-in). (Id. at p. 169.)
Because oI these issues, '|i|t is now well accepted in the scientiIic
community that STR tests become unreliable when used to type samples
containing too little DNA. (Thompson, Mueller, and Krane, Forensic DNA
Statistics. Still Controversial In Some Cases (2012) 36 Champion 12, 14,
emphasis added, citing Budowle et al., supra.) A recent survey oI the scientiIic
literature explained that the 'interpretation oI trace DNA analyses is currently
the most controversial aspect oI its use within the medico-legal systems. . In
most laboratories the analytical methods and statistical calculations employed
Ior standard DNA typing are used Ior trace DNA a process which is
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
121

statistically and scientiIically incorrect and which can bias calculations heavily
against the deIendant. (Oorschott, et al., Forensic Trace DNA. a review,
Investigative Genetics 2010, 1:14.)
Moreover, mixed samples, as Fedor Iound on the broken Iingernail (12
RT 1944), pose additional problems. 'As Budowle et al. explained in 2001,
|m|ixture analyses and conIirmation oI a mixture are not reliable with LCN
typing, because ... imbalance oI heterozygote alleles, increased production oI
stutter products, and allele drop in can occur.` (Thompson, et al., supra, 36
Champion at p. 14, quoting Budowle et al., supra.)
A recent study conIirmed these problems when using MiniFiler to
test low copy, mixed DNA samples. The proIiles Irom mixed samples 'tend to
show much greater variability when the amount oI DNA template is low. This
has become a matter oI much recent debate. (Bright, et al., Determination of
the Jariables Affecting Mixed MiniFiler DNA Profiles (November 2011) 5
Forensic Sciences International: Genetics 381.) When using MiniFiler,
researchers observed 'stochastic eIIects which aIIect peak height and
heterozygote peak imbalance including 'extraneous peaks oI activity which
can 'conIuse the devolution oI mixed DNA samples. (Id. at p. 385.) Thus
the use oI MiniFiler posed 'inherent diIIiculties . at proIile interpretation
not seen with IdentiIiler. (Ibid.)
The deIense expert noted that to get proIiles Irom low copy DNA
samples, the number oI ampliIication cycles is increased Irom 28 as used with
IdentiIiler to 30 with MiniFiler. (6 CT 1105.) The MiniFiler study
Iound that the variability oI DNA proIiles in mixed samples 'appears larger in
the MiniFiler system at 30 cycles than in the IdentiIiler system at 28
cycles. (Bright, supra, at p. 381.)
Accordingly, the trial court should have held a prong one hearing to
permit the deIense expert to testiIy and to explain why the two publications
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
122

selected by the prosecution were insuIIicient to establish general scientiIic
acceptance oI the low copy DNA testing with MiniFiler in this case.
The absence oI appellate approval Ior low copy MiniFiler testing
conIirms this conclusion. As oI the Iiling oI this opening brieI, appellant has
Iound one case Irom New York court addressing use oI MiniFiler. The
entire discussion comprised a single paragraph:
Finally, we reject deIendant's contention that the court erred in
Iailing to conduct a Frve hearing concerning the admissibility oI
the DNA results obtained through the AmpFISTR MiniFiler
PCR AmpliIication Kit Ior DNA Analysis` (hereaIter, MiniFiler
test). Prior to trial, the court held a hearing at which a DNA
expert called by the People testiIied without contradiction that
the MiniFiler test is simply a more advanced Iorm oI traditional
polymerase chain reaction/short tandem repeat testing, which
this Court and others have long recognized as having gained
general acceptance in the scientiIic community |Citations|.
(New York v. Borden (2011) 90 A.D.3d 1652, 1653 |935
N.Y.S.2d 810; 2011 N.Y. App. Div. LEXIS 9509|.)

On this basis, the New York court concluded that the deIendant`s
objections went to the weight rather than to the admissibility oI the
MiniFiler evidence. (Ibid.)
The cursory discussion in New York v. Borden, supra, did not address
the Iive issues raised by appellant relating to use oI MiniFiler on low copy
DNA samples. (6 CT 1156-57.) Moreover, appellant contested the
prosecution`s claims by the proIIered testimony oI the deIense expert. As next
explained, the trial court erred in Iinding that the appellate decision in Hill
resolved the issues raised by appellant.
G. The Trial Court Erred By Relying On !"## To Deny A Prong
One Hearing On MiniFiler Testing Of Low Copy DNA.

The trial court concluded that Hill answered the issues raised by the
deIense in Iavor oI the prosecution. (3 RT L3-4.) However, Hill addressed
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
123

diIIerent issues related to a diIIerent test kit (ProIiler Plus), not low copy DNA
testing using MiniFiler.
In pertinent part, the deIendant in Hill argued 'that the trial court erred
in denying his request Ior a Iull Kellv/Frve` hearing to determine, under the
Iirst prong oI Kellv, whether the ProIiler Plus test kit is a new technique which
is generally accepted by the relevant scientiIic community. (People v. Hill,
supra, 89 Cal.App.4th at p. 55.) The trial court denied the request and the
Court oI Appeal aIIirmed.
Hill noted that the PCR method oI DNA testing had 'acquired general
acceptance in the scientiIic community. (Ibid., citing People v. Wright (1998)
62 Cal. App. 4th 31, 34 |addressing PCR/Polymarker testing|; People v.
Morganti, supra, 43 Cal. App. 4th at p. 666 |addressing PCR/DQ-Alpha
testing|; People v. Allen, supra, 72 Cal. App. 4th at p. 1100 |addressing
PCR/STR testing|.)
'We reject the argument that each new PCR/STR test kit must, as a
matter oI law, be subjected to a Kellv prong one analysis to determine
scientiIic reliability. (Id. at p. 58, citing, inter alia, People v. Cooper (1991)
53 Cal. 3d 771, 812-813 |once electrophoresis testing is admitted by a court,
criticism oI speciIic methodology goes to the weight rather than the
admissibility oI the evidence|; People v. Jenegas, supra, 18 Cal. 4th at pp. 78-
79 |prong one hearing unnecessary Ior diIIerent restriction Iragment length
polymorphism (RFLP) DNA tests kits|.)
'The Kellv prong one analysis applies to new scientiIic techniques.`
(Id. at p. 58, quoting People v. Kellv, supra, 17 Cal. 3d at pp. 30-31.) 'The
ProIiler Plus test kit does not embrace new scientiIic techniques. To the
contrary, it uses the PCR and STR testing methods, which are generally
accepted by the scientiIic community. It is just more sophisticated because it
examines a greater number oI genetic markers. (Id. at p. 60.)
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
124

Appellant has no dispute with the resolution oI the issue presented in
!"##$ However, MiniFiler does not 'just examine a greater number oI genetic
markers using a settled methodology. As Orchid-Cellmark, the manuIacturer
oI the MiniFiler test kit stated, it is the 'world's Iirst commercially available
miniSTR kit purporting to 'to obtain DNA results Irom compromised samples
that previously would have yielded limited or no genetic data.` (6 CT 1102,
quoting Orchid-Cellmark marketing material.) Thus, by the manuIacturer`s
own representation, it is an unprecedented method oI DNA testing generating
results not seen with existing methodologies.
Moreover, appellant`s oIIer oI prooI explained the multiple ways why
MiniFiler was not simply a variant oI existing and generally accepted
PCR/STR test kits. The primers used Ior mini STRs could cause 'primer
binding site mutation. (6 CT 1105.) In some instances, this had caused
dropouts oI alleles aIIecting identiIication analysis. (%&"'.) Moreover, to
achieve its results on low copy DNA, MiniFiler increased the ampliIication
cycle Irom 28, as used in existing PCR/STR testing, to between 30 and 36
cycles. (%&"'.) In addition, SERI used MiniFiler on low copy number,
mixed samples containing less than 200 picograms oI DNA. (%&"'.) As
explained above, published reviews and research conIirm the deIense position
that these procedures aIIect the reliability oI low copy DNA testing, including
MiniFiler testing.
()*+#) -$ !).')/0*. (2003) 107 Cal.App.4th 769 ('!).')/0*.) shows
why the diIIerences identiIied by the deIense expert warranted a prong one
1)##234/2) hearing in this case. In !).')/0*., Cellmark Diagnostics
(Cellmark) used ProIiler Plus and CoIiler test kits to analyze evidence samples
with DNA Irom three contributors. (%'. at p. 776.) Cellmark used capillary
electrophoresis to segregate STR Iragments rather than the previously
established gel electrophoresis. (%'. at pp. 776-77.) In pertinent part, the
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
125

deIendant argued 'that the trial court erred in Iinding that the use oI capillary
electrophoresis on a multiple source DNA sample was generally accepted
within the relevant scientiIic community. (Id. at p. 775.) The Court oI
Appeal agreed.
'Both RFLP and PCR, speciIically, PCR/STR, methodologies use
electrophoresis. (Id. at p. 778.) Several cases, including Hill, had recognized
that PCR/STR is generally accepted procedure Ior DNA testing and every new
test kit Ior perIorming this procedure does not require a separate determination
oI general acceptance. (Id. at p. 779.) 'The threshold question, however, is
whether capillary electrophoresis, is similar to a newly developed test kit, or
whether it is a new technique or procedure. (Ibid.) Henderson concluded
that it was a new technique and, thereIore, the trial court erred in denying a
prong one Kellv hearing.
'SigniIicantly, Kellv Iirst prong analysis is not made gratuitous simply
because the new technique or procedure is part oI an overall process. Kellv
may apply not only to the whole, but also the part oI the process that is now
perIormed with a new technique. (Id. at p. 780, citing, inter alia, People v.
Leahv (1994) 8 Cal.4th 587, 605 |'Kellv/Frve only applies to that limited class
oI expert testimony which is based, in whole or part, on a technique, process,
or theory which is new to science and, even more so, the law.|; People v.
Reeves (2001) 91 Cal.App.4th 14, 31 |Prong one hearing held on general
acceptance oI product rule, the Iinal step oI PCR analysis|.)
'Unlike in the Hill case, this case does not involve merely a diIIerent
test kit Ior perIorming the same essential procedure. PCR ampliIication and
electrophoresis are two distinct parts oI the overall DNA testing process. (Id.
at p. 780.) 'Electrophoresis or, more accurately, gel electrophoresis, has
gained general acceptance within the scientiIic community. (Id. at p. 780.)
However, 'capillary electrophoresis is a new technique that has never been
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
126

Iound to be generally accepted within the scientiIic community. (Id. at p.
781.)
Accordingly, '|w|e hold that capillary electrophoresis is a new
scientiIic technique Ior analyzing ampliIied DNA Iragments that requires a
determination oI general acceptance under the Iirst prong oI Kellv. (Id. at p.
782.) The Court oI Appeal then conducted an 'independent review oI the
prevailing law and the evidence presented in this case and Iound that capillary
electrophoresis has gained general acceptance as a Iast and accurate method oI
Iorensic DNA testing. (Id. at pp. 788-89.)
As explained above, the oIIer oI prooI made by appellant similarly
showed that low copy DNA testing using MiniFiler, did 'not involve merely
a diIIerent test kit Ior perIorming the same essential procedure as in Hill. (Id.
at p. 780.) However, unlike Henderson the scientiIic literature and the absence
oI appellate support shows that MiniFiler oI low copy DNA has not received
general scientiIic acceptance.
H. The Trial Court Also Erred By Denying Appellant A Prong
Three !"##$ Hearing.

Under the third prong oI the Kellv, the proponent oI scientiIic evidence
must demonstrate that 'correct scientiIic procedures were used in the particular
case. (People v. Rovbal, supra, 19 Cal. 4th ay p. 505.) The trial court denied
a prong three hearing because Hill aIIirmed holding an Evidence Code section
402 hearing beIore the expert testiIied rather than a Kellv hearing. (3 RT L4,
6.)
However, Hill approved an Evidence Code section 402 hearing in lieu
oI a prong three hearing where the proponent oI the evidence made a
'Ioundational showing that correct scientiIic procedures were used.` (People
v. Hill, supra, 89 Cal.App.4th at p. 58, quoting People v. Barnev, supra, 8 Cal.
App. 4th at p. 825.) In People v. Jenegas, supra, 18 Cal.4th 47, the CaliIornia
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
127

Supreme Court explained why this is the case.
'The Kellv test is intended to Iorestall the jury's uncritical acceptance oI
scientiIic evidence or technology that is so Ioreign to everyday experience as
to be unusually diIIicult Ior laypersons to evaluate. (Id. at p. 80, citing Kellv,
supra, 17 Cal. 3d at pp. 31-32.) 'In most other instances, the jurors are
permitted to rely on their own common sense and good judgment in evaluating
the weight oI the evidence presented to them. (Ibid.) However, 'DNA
evidence is diIIerent. Unlike Iingerprint, shoe track, bite mark, or ballistic
comparisons, which jurors essentially can see Ior themselves, questions
concerning whether a laboratory has adopted correct, scientiIically accepted
procedures Ior generating autorads or determining a match depend almost
entirely on the technical interpretations oI experts. |Citation.| Consideration
and aIIirmative resolution oI those questions constitutes a prerequisite to
admissibility under the third prong oI Kellv. (Id. at p. 81, emphasis added.)
Moreover, '|s|ince the third prong oI the Kelly test requires case
speciIic prooI that correct procedures were employed, it cannot be satisIied by
relying on a published appellate decision. (People v. Morganti, supra, 43
Cal.App.4th at p. 661, citing People v. Barnev, supra, 8 Cal. App. 4th at p. 824
|rejecting claim that general acceptance established by a published appellate
decision 'should extend to and subsume the third prong oI Kellv-Frve|.)
Accordingly, the trial court also erred by admitting the MiniFiler
evidence without holding a prong three hearing to resolve the technical and
interpretive issues raised by the deIense.
I. Admission of the MiniFiler Test Results Violated
Appellant`s Due Process Rights.

Absent general scientiIic acceptance oI MiniFiler testing oI low copy
DNA samples, admission oI the evidence oI such testing violated appellant`s
state and Iederal constitutional rights to due process oI law and to a Iair trial.
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
128

(Cal. Const., Art. I, 7, subd. (a), 15; U.S. Const., 5th & 14th Amends.) The
question oI whether a constitutional violation occurred is a mixed question oI
law and Iact requiring independent review. (People v. Cromer (2001) 24
Cal.4th 889, 901; see also In re Scott (2003) 29 Cal.4th 783, 812 |"'Any
conclusions oI law, or oI mixed questions oI law and Iact, are subject to
independent review.' |Citation.|"|..)
1. Cognizability.
Trial counsel Ior appellant did not object to admission oI the
MiniFiler evidence oI due process grounds. Nevertheless, these claims are
cognizable because the trial court`s rulings showed that any additional
objection 'would have been Iutile. (People v. McDermott (2002) 28 Cal.4th
946, 1001.) On the same rationale, the high court has addressed constitutional
claims not raised at trial. (Estelle v. Smith (1981) 451 U.S. 454, 468, In. 12 |68
L.Ed.2d 359; 101 S.Ct. 1866|, citing United States v. Smith (5
th
Cir. 1979) 602
F.2d 694, 708, In. 19 |'the apparent Iutility oI objecting to an alleged
constitutional violation excuses a Iailure to object|.)
In addition, the constitutional issues are questions oI law based on the
same Iacts at issue in the state law claims oI error. Under these circumstances,
a reviewing court may address claims that the trial court`s error 'had the
additional legal consequence oI violating the Constitution.` |Citation.|
(People v. Tafova (2007) 42 Cal.4th 147, 165, In. 5.)
II this Court Iinds that an additional objection was required, appellant
was deprived oI his state and Iederal rights to the eIIective assistance oI
counsel. (Cal. Const., Art. I., 15; U.S. Const., 6
th
Amend., People v.
Ledesma (1987) 43 Cal. 3d 171, 215; Strickland v. Washington (1984) 466
U.S. 668, 684-685 |104 S.Ct. 2052; 80 L.Ed.2d 674.) To prevail on a claim oI
ineIIective assistance oI counsel, the deIendant must show that counsel's
perIormance was both deIicient and prejudicial, i.e., that it is reasonably
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
129

probable that counsel's unproIessional errors aIIected the outcome. (People v.
Ledesma, supra, 43 Cal.3d at pp. 215-16; Strickland, supra, 466 U.S. at p.
694.)
This claim oI ineIIective assistance oI counsel is cognizable on direct
appeal because the 'Iact that counsel objected ... at all . reIutes any inIerence
that he was pursuing some tactical advantage by withholding" constitutional
objections. (People v. Asburv (1985) 173 Cal.App.3d 362, 365-66.) Prejudice
is present Ior the reasons explained below in Section J.
!" $%& '&()*+"
Turning to the merits, the 'Constitution guarantees a Iair trial through
the Due Process Clauses oI the FiIth and Fourteenth Amendments.
(Strickland, supra, 466 U.S. at pp. 684-85.) The state constitutional right to
due process provides the same guarantee to ensure 'a Iundamentally Iair
decision-making process. (People v. Ramos (1984) 37 Cal.3d 136, 153; Cal.
Const. Art. I., 7, subd. (a), 15.)
The due process right to a Iair trial is violated by the admission oI
incompetent and/or unreliable evidence. (See, e.g., Bruton v. United States
(1968) 391 U.S. 123, 131 In 6 |88 S.Ct. 1620; 20 L.Ed.2d 406| |"An important
element oI a Iair trial is that a jury consider only relevant and competent
evidence bearing on the issue oI guilt or innocence."|; McKinnev v. Rees (9
th

Cir. 1993) 993 F.2d 1378, 1384; White v. Illinois (1992) 502 U.S. 346, 363-
364 |112 S. Ct. 736; 116 L. Ed. 2d 848|, Thomas, J., & Scalia, J., concurring
|'Reliability is more properly a due process concern.|.)
The above discussion shows insuIIicient assurance that MiniFiler
TM

testing oI low copy DNA samples produced scientiIically accepted and reliable
evidence. Accordingly, admission oI the results oI that testing violated
appellant`s state and Iederal rights to due process oI law and to a Iair trial.
(Cal. Const., Art. I, 7, subd. (a), 15; U.S. Const., 5th & 14th Amends.)
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
130

1. Admission Of The Minifiler Evidence Was Prejudicial To
Appellant`s Defense.

In Kellv, the CaliIornia Supreme Court applied the state law Watson
standard to the review oI prejudice Irom the error in admitting scientiIic
evidence that had not achieved general acceptance. (People v. Kellv, supra, 17
Cal.3d at p. 40, citing People v. Watson (1956) 46 Cal.2d 818, 836; accord
People v. Jenegas, supra, 18 Cal.4th at p. 93.) However, Kellv did not address
a Iederal due process claim oI error in admitting such evidence.
Because the error in this case was 'oI Iederal as well as state
constitutional dimension, . we must apply the reversible error test set out in
Chapman v. California (1967) 386 U.S. 18 |17 L.Ed.2d 705, 87 S.Ct. 824, 24
A.L.R.3d 1065|. (People v. Strit:inger (1983) 34 Cal.3d 505, 520.) 'Where a
Iundamental constitutional right is at issue, erroneous evidentiary rulings are
seldom harmless under this standard: An error in admitting plainly relevant
evidence which possibly inIluenced the jury adversely to a litigant cannot ... be
conceived oI as harmless.` (Ibid., quoting Chapman, supra, 386 U.S. at pp.
23-24.)
II prejudice is assessed under state law, or in connection with a claim
Ior the denial oI the eIIective assistance oI counsel, reversal is required iI
'there is a reasonable chance, more than an abstract possibilitv` that the
erroneous admission oI the evidence adversely aIIected appellant.
(Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050, citation omitted;
Strickland, supra, 466 U.S. at p. 694.)
Measured against either standard, reversal is required.
The Kellv/Frve 'rule is intended to prevent lay jurors Irom being
unduly inIluenced by procedures which seem scientiIic and inIallible, but
which actually are not.` |Citation.| (People v Cowan (2010) 50 C4th 401,
470.) The prejudice Irom the erroneous admission oI such evidence is
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
131

increased by the Iact that 'juries may accord undue weight to an expert`s
opinion . and too readily accept expert or scientiIic evidence that is beyond
their expertise. (!"#$%" '( )#*+%", (1992) 6 Cal.App.4
th
947, 957.)
The LAPD crime lab did not perIorm DNA testing on the broken
Iingernail (Item No. 10) tested by SERI with MiniFiler. (8 RT 1263, 1264.)
JenniIer Francis examined it under a stereoscope. However, she decided not
to do any DNA testing because there were no red stains indicating the presence
oI blood. (8 RT 1266.) ThereIore, the inadmissible test results Irom
Fedor/SERI using MiniFiler was the only evidence purporting to connect the
broken appellant to the Iingernail.
In his closing argument, deIense counsel outlined the multiple Ilaws in
the prosecution circumstantial evidence case against appellant, including the
DNA evidence Irom the bite mark swab. (18 RT 3037-98.) The prosecution
had relied on the coroner`s evidence log to argue that the bite mark swab could
not have been removed Irom the coroner`s had never been removed or altered.
(18 RT 3097-3106; 19 RT 3117-20.) The evidence log also showed that the
GSR evidence Irom Rasmussen was still with the coroner. (19 RT 3120-23.)
However, other evidence showed that it had not only been removed but
destroyed. (-./0.) Accordingly, there was also reason to doubt the integrity
and chain oI custody oI the bite mark evidence. (-./0.)
ThereaIter, the prosecutor in rebuttal argued that the MiniFiler
evidence eliminated any doubt that appellant committed the crime. (19 RT
3206.) Fedor had calculated a statistic that 'approximately 1 woman in 26,000
is capable oI showing the same results |Ior the Iingernail| that in this case
looked like they came Irom Stephanie Lazarus. (12 RT 1947.) The
prosecutor asserted that this meant that 'iI you went you went to the Staples
center and you were sitting in the Staples Center and the Staples Center was .
Iilled with women . |o|nly one oI those women could have contributed the
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
132

DNA Iound under that Iingernail. The deIendant is a contributor and one other
woman in all oI the Staples Center. (19 RT 3206-07.)
Moreover, the prosecutor argued, the evidence Irom Iingernail was
reliable because it did not have the chain oI custody problems oI the bite mark
swab: 'that Iingernail was never at the coroner`s oIIice. That Iingernail was
always in the custody oI the LAPD. (19 RT 3208.)
The jury would have believed the same because the trial court Iailed to
perIorm its gate-keeping Iunction 'to prevent lay jurors Irom being unduly
inIluenced by procedures which seem scientiIic and inIallible, but which
actually are not.` (!"#$%" ' (#)*+, -.$/*, 50 C4th at p. 470, citation
omitted.)
As discussed above in Section II.I., and Ior brevity incorporated by
reIerence here, the Iingerprint and evidence oI unidentiIied DNA provided
reason to doubt the prosecution theory oI guilt against appellant. The Iirearm
evidence was consistent with multiple Iirearms and ammunition available to
the public. (13 RT 2186-88, 2219; (14 RT 2420-2; 15 RT 2446-47, 2449-52,
2464.) The prosecution`s motive theory was undermined by Ruetten`s
testimony that appellant did not contact him aIter June 1985. (9 RT 1455.)
He, rather than appellant, resumed contact in 1989. (9 RT 1497.)
Accordingly, the prosecutor`s reliance on the MiniFiler evidence to
rebut appellant`s deIense 'tips the scale in Iavor oI Iinding prejudice ..
(!"#$%" '0 12+232", -.$/*, 13 Cal.4th at p. 1071.)
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
133

VI.

THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE OF
THIRD-PARTY CULPABILITY.

A. Introduction.
Beginning with opening statements, a question arose several times
during trial about whether the deIense could cross-examine witnesses and
present evidence to show that on April 10, 1986 an armed residential burglary
with the same !"#$% "'()*+#, occurred at a nearby condominium that was
'almost an exact replica oI Rasmussen`s condominium. (11/6/12 Suppl. CT
93.)
The trial court denied all on the deIense requests to present this
evidence on the ground that it was an improper attempt to present evidence oI
third-party culpability. The trial court`s rulings violated state law (Evid. Code,
1101, subd. (b)) and appellant`s due process and Sixth Amendment rights to
present a deIense and to submit the prosecution`s case to adversarial testing.
(U.S. Const., 5
th
, 6
th
& 14th Amends.)
B. Factual and Procedural Background.
1. Litigation at Trial.
In opening statement, the prosecutor noted evidence at the crime scene
that stereo equipment had been stacked by the door leading to the garage and a
drawer in the living room had been pulled out and its contents spilled on the
Iloor. (4 RT 310.) However, the prosecutor asserted that the evidence would
show that the deIendant did this 'to stage a burglary to mislead investigators.
(4 RT 310.) The prosecutor acknowledged that Detective Lyle Mayer, the
lead investigator in 1986, concluded that the Rasmussen was killed when she
'surprised some burglars. (4 RT 311.) However, when the police reopened
the investigation in 2009, they set aside the 'assumptions made by the prior
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
134

detectives and began to investigate appellant. (4 RT 313-14.)
In his opening statement, deIense counsel also noted evidence that in
1986 Detectives Mayer and Hooks concluded that burglars committed the
crime. (4 RT 329.) The detectives relied not just on evidence oI drawers
opened and stereo equipment stacked ready to be taken away. (4 RT 329-30.)
They also 'looked at similar crimes in the neighborhood Ior modus operandi
evidence. (4 RT 331-32.)
On April 11, 1986, Detective Mayer went to a similar condominium
complex nearby to investigate another daytime burglary. (4 RT 332.) The
victim (Lisa Rivalli) would testiIy that she surprised two burglars who had
stacked stereo equipment by the door to the garage and one threatened her with
a .38 caliber revolver, but Rivalli was able to run away. (4 RT 332-34.) The
prosecution did not object to this statement oI evidence in the deIense opening
statement. (!"#$.)
However, the court aIter opening statement asked deIense counsel Ior a
'proIIer about the investigation oI other burglaries. (4 RT 591.) DeIense
counsel noted that the prosecutor`s opening statement asserted that evidence
would show that the original investigation erroneously concluded that the
homicide was burglary-related. (!"#$.) However, Detective Mayer`s
investigation oI the other burglary supported that conclusion. (4 RT 591.) The
deIense intended to call the detective and the victim to testiIy about this. (4
RT 591-92.)
The trial judge agreed that opening statements raised the issue oI
whether the initial investigation erroneously Iound a burglary-related
homicide. (4 RT 591.) However, he was 'surprised by the lack oI a motion
to exclude third-party culpability evidence and asked whether the prosecution
conceding the admissibility oI this evidence. (!"#$.) The prosecutor responded
he was not conceding admissibility and argued that the evidence oI the other
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
135

burglary was irrelevant. (4 RT 591-92.) Such evidence would be 'wildly
distracting to the jury and barred by Evidence Code section 352. (Ibid.)
The court noted that the prosecution intended to call an expert (Mark
SaIarik) to say that the incident was not a burglary but staged to look like one.
(4 RT 592.) The deIense wanted to show that it was a burglary and the wrong
person was on trial. (4 RT 593-94.) Nevertheless, there would have to be
'some remarkable similarities beIore I`m going to allow other burglary
evidence into a case such as this. (4 RT 594.) The court instructed counsel to
prepare to discuss People v. Edelbacher (1989) 47 Cal.3d 983 and People v.
Alcala (1992) 4 Cal.4th 742 on admissibility oI third-party culpability
evidence. (4 RT 595-600.)
ThereaIter, the prosecutor Iiled a motion to exclude evidence oI third-
party culpability arguing that it the evidence oI the other burglary did not meet
the standards oI admissibility oI the line oI cases beginning with People v.
Hall (1986) 41 Cal.3d 826, and Iollowed by People v. Edelbacher, supra, and
People v. Alcala, supra. (5 RT 597; see 7/10/12 Suppl CT 38 |prosecution
motion|.) The deIense responded with a memorandum arguing that the
evidence oI the other burglary evidence was admissible under the standards Ior
other crime evidence to inIer identity (Evid. Code, 1101, subd. (b)) and
appellant`s due process and Sixth Amendment rights to present a deIense.
(12/7/12 Suppl. CT 21-22 |'Memorandum oI Law Re: Third-Party
Culpability|.)
BeIore cross-examination oI Detective Hooks, who investigated the
Rasmussen homicide and other burglary in 1986, the court ruled that it would
not permit the deIense 'to examine Hooks about other burglaries at this time.
It`s beyond the scope. (5 RT 599.) DeIense counsel made an oIIer oI prooI,
discussed Iurther below, oI the evidence he wanted to elicit based oI the report
oI the investigation by Detectives Hooks and Mayer. (5 RT 600.) The court
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
136

agreed to mark those pages oI the report as Court Exhibit No. 6. (!"#$.; 7 CT
1383; 11/6/12 CT 92-95 |Court Exhibit No. 6|.) However, deIense counsel
could not cross-examine Detective Hooks about the other burglary. (!"#$.)
The court made the same ruling when the issue arose beIore cross-
examination oI John Ruetten, who had discussed the other burglary evidence
with Detective Mayer. (9 RT 1502-03 |I`m not going to let you go into
that.|.)
!" $%%&' (% )'((%"
The court later granted the prosecution`s motion to exclude evidence oI
third-party culpability. (11 RT 1887.) DeIense counsel agreed that, in
addition to Court Exhibit No. 6, the court could consider the three exhibits
submitted by the prosecution in support oI its motion to excluded third-party
culpability evidence. (7 RT 1177-78; 7 10/12 Suppl. CT 45-51.)
This evidence showed that on April 11, 1986, Detectives Mayer and
Hooks received inIormation oI a daytime residential burglary at 6840 Balboa
Blvd., Unit No. 502, on April 10, 1986 (the 'April 10
th
burglary). They went
to the scene and interviewed the victim (Lisa Rivalli). (11/6/12 Suppl. CT 93.)
Rivalli`s residence was a 'condo and 'almost an exact replica oI the 7100
Balboa location. Both are condo`s with security gates, both have security lock
type entrances. Both have subterranean garages that have stairs leading up to
the condo Irom the inside oI the garage. In this burglary the suspects, once
inside the location immediately stacked stereo equipment by the garage stairs
door. (11/6/12 Suppl. CT 93.)
'One oI the suspects had a possible .38 caliber revolver during the
burglary. The suspect actually pointed the gun at victim Rivalli and very
possibly would have shot her had she not turned and ran away Irom the
location. (!"#$.)
On the morning oI the incident, Rivalli was home asleep at around 9:00
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
137

a.m. when the door bell rang. (11/6/12 Suppl. CT 93.) She went to the Iront
door and through the peep hole saw a Latino male outside who she didn`t
recognize. (!"#$.) Around noon, Rivalli leIt her condo to get something to eat.
(!"#$.) She saw a Latino male sitting in a Ford station wagon. (!"#$.) She
returned at around 1:00 p.m. and noticed the same Ford, now empty, parked
nearby, and someone had put paper in the lock oI the security gate Ior the
complex. (11/6/12 Suppl. CT 93, 94, 95.)
When Rivalli put her keys in the Iront door, it opened and she realized
that it had been Iorced open. (11/6/12 Suppl. CT 94.) As she stood at the
threshold, she saw the man Irom the Ford stacking stereo equipment on the
Iloor next to the inner door to the garage stairs. (11/6/12 Suppl. CT 94-95.)
She yelled at him and he Iled past her. (11/6/12 Suppl. CT 95.) A second man
then came down Irom upstairs. (!"#$.)
'He had a gun in his right hand. It looked like a .38 caliber revolver.
He pointed it directly at me. I was scared he was going to shoot me. I ducked
down, turned around, and ran away Irom the complex. (!"#$.) The man then
ran away and out the security gate Ior the complex. (!"#$.) Miscellaneous
jewelry valued at about $300 was Irom Rivalli`s residence. (7/10/12 Suppl.
CT 46.)
The detectives concluded that the suspects could be the same persons
who 'committed the burglary/murder at 7100 Balboa. (11/6/12 Suppl. CT
95.)
3. The Trial Court`s Ruling.
The trial court concluded that the evidence oI the April 10
th
burglary
was inadmissible evidence oI third-party culpability. (11 RT 1888.) The court
recognized 'some general similarities. (!"#$.) Both occurred during the
daytime and involved stereo equipment. (!"#$.) The second suspect coming
down the stairs pulled a 'small gun that he pointed at the victim who ran
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
138

away. (Ibid.)
However, there were also 'several dissimilarities. (11 RT 1888.)
Jewelry was taken at the April burglary. (11 RT 1888-89.) It 'likely involved
suspects going to the master bedroom in the upstairs. (11 RT 1889.) A
jewelry box was pried open, dresser drawers rummaged, and a hope chest
opened. (Ibid.) In the Rasmussen incident, no jewelry was taken and the
master bedroom was undisturbed. (Ibid.) A principal dissimilarity was that
the April 10
th
burglar leIt in a car. However, someone took Rasmussen`s car.
(Ibid.) The Iront door was Iorced open on April 10
th
but not at Rasmussen`s
residence. (Ibid.)
The viciousness oI the attack on Rasmussen with a contact gunshot to
the chest reIlected a clear intent to kill. (11 RT 1889.) That was missing Irom
the April burglary. (Ibid.) There was also a discrepancy in the barrel length oI
the handgun. (11 RT 1888.) Based on powder burns to the quilt, the expert at
the preliminary hearing believed the suspect used a gun with a 2-inch barrel to
shoot Rasmussen. (11 RT 1888-89.) The witness on April 11
th
reported a 4
inch barrel. (11 RT 1889.) However, the court did not put 'a lot oI stock in
that. I think an eyewitness could easily have mistaken the size oI the barrel.
(11 RT 1890.)
The court Iound 'the critical Ieature is that there is nothing that links
the suspects in the April 1|0|
th
, 1986 burglary to the incident involving Ms.
Rasmussen. (11 RT 1890.)
12
Appellant`s memorandum had cited People v.
Scott (2011) 52 Cal.4th 452 which addressed Evidence Code section 1101(b)
standards Ior admitting other crime evidence to inIer identity. (11 RT 1890;

12
The court several time reIerred to the date oI the April burglary as April 11,
1986. However, that was the date the detectives interviewed the victim.
(11/6/12 Suppl. CT 93.) The burglary occurred the day beIore on April 10,
1986. (Id. at p. 94.)
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
139

see 12/7/12 Suppl. CT 22.) However, the court concluded that Evidence Code
section 1101(b) was irrelevant to admissibility oI evidence oI third-party
culpability. (11 RT 1890-91.)
Under People v. Edelbacher, supra, and People v. Hall, supra, mere
evidence oI motive or opportunity was insuIIicient to raise a reasonable doubt
oI the deIendant`s guilt. . (11 RT 1191.) There must be direct or
circumstantial evidence linking the third person to the perpetration oI the
crime. (Ibid.) The court Iound 'no evidence linking the suspects Irom the
April 10
th
burglary to the Rasmussen incident. (Ibid.) ThereIore, the deIense
could not present evidence oI the April 10
th
burglary either through the alleged
victim or the investigating detectives. (Ibid.)
As discussed below in Section VII., the court later denied the deIense
request to cross-examine Mark SaIarik, the prosecution`s expert on crime
scene analysis, about the April 10
th
burglary, to impeach his opinion that the
Rasmussen homicide was not burglary-related. (15 RT 2472, 2479-81.)
!" $%&'(&)( *+ ,-./-0"
'A trial court's determination oI the admissibility oI evidence oI
uncharged oIIenses is generally reviewed Ior an abuse oI discretion. (People
v. Walker (2006) 139 Cal.App.4th 782, 794-95.) 'To the extent the trial court's
ruling depends on the proper interpretation oI the Evidence Code, however, it
presents a question oI law; and our review is de novo. (People v. Walker,
supra, 139 Cal.App.4th at p. 795, citing Kavanaugh v. West Sonoma Countv
Union High School Dist. (2003) 29 Cal.4th 911, 916.)
The question oI whether exclusion oI the evidence violated appellant`s
due process (U.S. Const., 5th & 14th Amends.) and Sixth Amendment rights to
conIront the evidence against him and to present a deIense is a mixed question
oI law and Iact subject to independent review. (People v. Cromer, supra, 24
Cal.4th at pp. 893-96; In re Scott, supra, 29 Cal.4th at p. 812.)
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
140

D. The Trial Court Erred In Ruling That Evidence Code
Section 1101(b) Standards Did Not Apply To Admission Of
Third-Party Culpability Evidence.

In support oI her requests to present evidence oI the April 10
th
burglary,
appellant cited People v. Scott (2011) 52 Cal.4th 452 ('Scott). (12/7/12
Suppl. CT 22.) Scott stated that under Evidence Code section 1101(b), an
'inIerence oI identity need not depend on one or more unique or nearly unique
common Ieatures; Ieatures oI substantial but lesser distinctiveness may yield a
distinctive combination when considered together. (Id. at p. 472-73.) The
trial court concluded that Scott was irrelevant because it did not address third-
party culpability evidence. (11 RT 1890-91.)
However, the CaliIornia Supreme Court has repeatedly held that
Evidence Code section 1101(b) is relevant to admission oI third-party
culpability evidence.
13
For example, in addressing 'the applicability oI the
rules enunciated in Evidence Code section 1101 the Court recognized that
'when . . . a primary issue oI Iact is whether or not deIendant rather than some
other person was the perpetrator oI a crime charged, evidence oI other crimes
is ordinarily admissible iI it discloses a distinctive modus operandi common to
the other crimes and the charged crime.` (People v. Beamon (1978) 8 Cal.3d
625, 632-33, quoting People v. Haston (1968) 69 Cal.2d 233, 245.)
Beamon addressed other crime evidence oIIered by the prosecution to
show that the deIendant rather than another person committed the charged
crime. (Ibid.) However, the Court subsequently stated that, '|n|othing on the

13
Evidence Code section 1101(b) provides: 'Nothing in this section prohibits
the admission oI evidence that a person committed a crime, civil wrong, or
other act when relevant to prove some Iact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence oI mistake or accident, or
whether a deIendant in a prosecution Ior an unlawIul sexual act or attempted
unlawIul sexual act did not reasonably and in good Iaith believe that the victim
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
141

Iace oI the statute limits its application to evidence concerning a deIendant. A
person` under the provision is any person, whether or not a deIendant. II the
Legislature intended the statute to apply only to evidence oI 'other crimes' by a
deIendant, it could have so provided. (People v. Davis (1995) 10 Cal.4th 463,
501.)
Moreover, Davis speciIically stated that 'Hall did not abrogate
Evidence Code section 1101 as applied to such evidence. (Ibid.; accord
People v. McWhorter (2009) 47 Cal.4th 318, 372-373.) Accordingly, the
CaliIornia Supreme Court has applied Evidence Code section 1101(b)
standards to admissibility oI third-party culpability evidence.
For example, in People v. Abile: (2007) 41 Cal.4th 472, 'deIendant
oIIered codeIendant Vieyra's adjudication oI a prior sex crime as evidence oI
identity, i.e., to show that it was Vieyra who sodomized and killed the victim
rather than the deIendant. (Id. at p. 500.) Based on Evidence Code section
1101, Abile: held that this evidence was properly excluded: 'As the trial court
Iound when ruling on the Evidence Code section 1101 question, the lack oI
similarity between Vieyra's 1973 adjudication and the present crimes justiIied
exclusion oI the evidence. (Id. at p. 502; see also People v. Farmer (1989) 47
Cal. 3d 888, 921 |Applying Evid. Code, 1101(b) to question oI whether
third-party culpability evidence met the standard oI People v. Hall, supra.|,
overruled on another point bv People v. Waidla (2000) 22 Cal.4th 690, 724 n.
6.)
Conversely, '|w|hen, as in the instant case, a primary issue oI Iact is
whether or not deIendant rather than some other person was the perpetrator oI
the crime charged, evidence oI other crimes is ordinarily admissible iI it
discloses a distinctive modus operandi common to both the other crimes and

consented) other than his or her disposition to commit such an act.
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
142

the charged crime. |Citations.| (People v. Haston, supra, 69 Cal.2d at p. 245;
accord People v. Beamon, supra, 8 Cal.3d at pp. 632-33.)
E. Applied Here, Evidence Code Section 1101 Required
Admission Of The Evidence Of The Other Burglary And
Assault With A .38 Caliber Revolver.

To show common modus operandi or to draw an 'inIerence oI identity
other crime evidence 'need not depend on one or more unique or nearly unique
common Ieatures; Ieatures oI substantial but lesser distinctiveness may yield a
distinctive combination when considered together. (People v. Scott, supra, 52
Cal.4th at pp. 472-473, accord People v. Lvnch (2010) 50 Cal.4th 693, 736.)
Stated diIIerently, 'it may be said that the inIerence oI identity arises
when the marks common to the charged and uncharged oIIenses, considered
singly or in combination, logically operate to set the charged and uncharged
oIIenses apart Irom other crimes oI the same general variety and, in so doing,
tend to suggest that the perpetrator oI the uncharged oIIenses was the
perpetrator oI the charged oIIenses. (People v. Haston, supra, 69 Cal.2d at p.
246; accord People v. Walker (1988) 47 Cal. 3d 605, 622.) 'Moreover, the
likelihood oI a particular group oI geographically proximate crimes being
unrelated diminishes as those crimes are Iound to share more and more
common characteristics.` (People v. Lvnch, supra, 50 Cal.4th at p. 736
('Lvnch), quoting People v. Miller (1990) 50 Cal.3d 954, 989.)
Several cases show that the similarities between the charged homicide
and the April 10
th
burglary supported admitting the evidence and the putative
dissimilarities noted by the trial court were immaterial and insuIIicient to
exclude the evidence.
In Lvnch, the deIendant argued that the trial court erred in admitting
evidence oI a subsequent uncharged trespass at the residence oI Lavinia
Harvey as evidence oI his identity Ior charged burglary-murders and
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
143

residential burglaries. 'He asserted that the evidence was dissimilar to the
charged crimes because deIendant merely trespassed on Harvey's property, and
did not enter Harvey's home or injure her. (People v. Lvnch, supra, 50
Cal.4th at pp. 756-57.) The CaliIornia Supreme Court disagreed. The
'evidence oI the Harvey incident was relevant to prove a material Iact other
than deIendant's criminal disposition, i.e., identity, because the common
Ieatures oI that incident and the charged crimes were suIIiciently distinctive
so as to support the inIerence that the same person committed both acts.` (Id.
at p. 757.)
'Thus, Harvey and the victims in the charged crimes were Caucasian
elderly women. The Harvey incident and |the charged| Figuerido, Constantin,
Herrick, and Durham attacks occurred during the day, and the jury could
reasonably inIer Larson's death also occurred during the day. In addition, the
Harvey incident and the charged crimes occurred within the same two-month
period in the neighboring communities oI San Leandro and Hayward. The
victims were attacked in their homes, and the jury could reasonably inIer that
absent Harvey's conIrontation with deIendant, she too would have been
attacked inside her home. (Id. at p. 757.) Moreover, all oI the women also
resided in similarly situated homes, either on a corner or with an adjacent
separate lot, permitting similar access. (Ibid.)
'Nor did the evidence contravene Evidence Code section 352.
|Citations.| The tendency oI the evidence to show identity, as set Iorth above,
was strong. (See |People v. Ewoldt (1994) 7 Cal.4th 380, 404|.) Moreover,
Harvey's account was independent oI the evidence oI the charged crimes. (Id.
at pp. 404-405.) She initially investigated deIendant's presence on her property
because she thought he was a child about to steal tools Irom the open garage.
Nothing in her testimony indicated that when she spoke with police the same
day she encountered deIendant she was aware that elderly Caucasian women in
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
144

her area were being attacked in their corner homes. . Harvey's testimony
describing deIendant's conduct was Iar less inIlammatory than the testimony
concerning the charged oIIenses, which involved brutal assaults. (Id. at pp.
757-58.) 'In sum, the trial court did not abuse its discretion in admitting
Harvey's testimony. (Id. at p. 758.)
In this case, both victims were also women. The incidents occurred
during the day, in geographic proximity, less than two months apart, with the
stereo equipment stacked by the door to be taken away, and assault with a .38
caliber revolver. Moreover, the site oI the April 10
th
burglary was not just
similarly situated as in Lvnch but 'almost an exact replica oI the 7100 Balboa
location. Both are condo`s with security gates, both have security lock type
entrances. Both have subterranean garages that have stairs leading up to the
condo Irom the inside oI the garage. In this burglary the suspects, once inside
the location immediately stacked stereo equipment by the garage stairs door.
(11/6/12 Suppl. CT 93.)
The trial court noted that the burglars on April 10
th
took jewelry Irom
an upstairs bedroom but not Irom Rasmussen`s residence. However,
Rasmussen had been upstairs sick in bed when Ruetten leIt that morning. (9
RT 1464.) She would put on a robe when she got out oI bed. (9 RT 1465.)
She was still in her bathrobe and night shirt when later Iound dead on living
room Iloor. (4 RT 467.) This indicates that she came down stairs and
interrupted the burglar(s) beIore they could continue searching upstairs.
People v. Ramire: (2006) 39 Cal.4th 398 ('Ramire:) shows that
evidence oI an interrupted burglary Ior larceny does not make the evidence
inadmissible to establish identity or similar modus operandi Ior burglary. In
Ramire:, the deIendant shot and wounded one woman (Hernandez) in the
garage and then entered the condominium and shot and killed her roommate
(Okazaki). (Id. at p. 462.) The deIendant Iled without taking any property
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
145

upon hearing the wounded woman open the garage door and run away. (!"#$.)
The deIendant argued that the evidence was insuIIicient to show that he
entered the residence to commit larceny and thereIore insuIIicient evidence oI
Ielony murder burglary Ior shooting Okazaki. (!$. at pp. 462-63.) The
CaliIornia Supreme Court disagreed.
'The circumstance that there was no evidence oI theIt during the
commission oI the attempted murder oI Hernandez and the murder oI Okazaki
does not establish that deIendant did not harbor the intent to steal when he
entered the residence. The jury reasonably could have concluded that
deIendant intended to steal, but was interrupted when Hernandez unexpectedly
opened the garage door and Iled. The jury reasonably could have concluded
that deIendant abandoned his plan to steal in order to Ilee and avoid
apprehension. (!$. at p. 464.)
Here, the jury could similarly inIer that, although no property was taken
Irom Rasmussen`s upstairs bedroom at residence as in the April 10
th
burglary,
there was nevertheless substantial evidence oI intent to take property Irom the
stacking oI the stereo equipment and riIIling oI the drawer in the living room.
However, the burglar(s) abandoned any Iurther takings and Iled to avoid
apprehension aIter the violent encounter with Rasmussen.
The other dissimilarities Iound by the trial court were also insuIIicient
to prevent jury consideration oI the evidence. The court noted that the door
had been Iorced at Rivalli`s residence but not at Rasmussen`s residence. (11
RT 1889.) However, Ruetten did not check and did not know whether the
Iront door was locked when he leIt via the door to the garage that morning. (9
RT 1471.) The court also noted that the perpetrators on April 10
th
apparently
leIt in their own vehicle but Rasmussen`s car was taken. (11 RT 1889.)
However, the perpetrator Iired three gunshots at Rasmussen. (5 RT 762.)
ThereIore, he had reason to take a readily available vehicle to avoid
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
146

apprehension.
Finally, the court Iound clear evidence oI an intent to kill Irom contact
gunshot wound to Rasmussen`s chest. (11 RT 1889.) However, it Iound 'no
evidence oI any clear intent to kill on the part oI the burglars on April 10
th

and no shots were Iired. (11 RT 1888, 1889.)
However, the victim on April 10
th
came to her residence Irom outside.
(11/6/12 Suppl. CT 94.) When the man came down stairs and pointed a gun at
her, she was able to duck and run back out the open door. (11/6/12 Suppl. CT
95.) As noted, the evidence shows Rasmussen surprised the burglar(s) Irom
inside the residence where a violent encounter ensued and escalated into a
shooting. (4 RT 311; 7/10/12 Suppl. CT 47.)
The trial court also erred because pointing a gun at someone supports an
inIerence oI intent to kill. Evidence a deIendant pointed a gun in the direction
he believed someone would appear is alone suIIicient to Iind assault with a
Iirearm. (People v. Chance (2008) 44 Cal.4th 1164, 1176 |The 'deIendant's
mistake as to the oIIicer's location was immaterial. He attained the present
ability to inIlict injury by positioning himselI to strike on the present occasion
with a loaded weapon.|.)
Knowingly pointing a gun at a present person supports an inIerence oI
intent to kill, even when a gun is not Iired. (See, e.g., People v. Williams
(1967) 252 Cal.App.2d 147, 154 |jury properly instructed that it could inIer an
intent to kill Irom evidence that 'deIendant pointed a gun at the victim on
many occasions|; Commonwealth v. Lewis (2012) 81 Mass. App. Ct. 119, 122
|960 N.E.2d 324| |'Evidence oI the deIendant's speciIic intent to kill Iound
where 'the deIendant turned and pointed a gun at the oIIicer.|; State v. Perrv
(2009) 146 N.M. 208, 221 |207 P.3d 1185| |The jury could draw 'an inIerence
oI intent to kill based on the Iact that DeIendant pointed a gun at Nellos.|;
State v. Bodner (2011) 261 P.3d 979; 2011 |AIIirming conviction Ior
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
147

attempted, second degree murder because 'even in the absence oI an express
intent to kill, pointing a gun in the direction oI a human being is intentional
and makes a claim oI recklessness inapplicable.|.)
F. The !"## Line Of Cases Did Not Preclude Admission Of
Evidence Meeting Evidence Code Section 1101(b) Standards
For Proof Of Identity.

The trial court concluded (11 RT 1191) that the evidence oI the other
burglary was inadmissible under the standards set by !"#$%" '( )*%%+ ,-$.*+ 41
Cal.3d 826 (')*%%). ')*%% requires that such third party evidence be capable
oI raising a reasonable doubt oI the deIendant's guilt and that there be direct or
circumstantial evidence linking the third person to the actual perpetration oI
the crime. This evidence should not, as Iormerly, be judged according to an
elevated standard oI admissibility, but should rather be treated like any other
evidence. (/0( at pp. 831-834.) (!"#$%" '( 1*.2".+ ,-$.*+ 47 Cal.3d at p.
921.)
'|W|e reaIIirm the admissibility oI any relevant evidence that raises a
reasonable doubt as to a deIendant's guilt, including evidence tending to show
that a party other than the deIendant committed the oIIense charged. Such
evidence may be excluded only when the court properly exercises its discretion
under Evidence Code section 352 to reject evidence that creates a substantial
danger oI undue consumption oI time or oI prejudicing, conIusing, or
misleading the jury. ()*%%+ 41 Cal.3d at p. 829, Iootnote omitted.)
'Furthermore, courts must Iocus on the actual degree oI risk that the
admission oI relevant evidence may result in undue delay, prejudice, or
conIusion. As Wigmore observed, iI the evidence is really oI no appreciable
value no harm is done in admitting it; but iI the evidence is in truth calculated
to cause the jury to doubt, the court should not attempt to decide Ior the jury
that this doubt is purely speculative and Iantastic but should aIIord the accused
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
148

every opportunity to create that doubt.` (1A Wigmore, Evidence (Tillers rev.
ed. 1980) 139, p. 1724.) (Id. at p. 834.)
As explained above, the evidence oI the April 10
th
burglary went
beyond mere motive and opportunity by others to commit the crime. From the
same modus operandi, it provided a basis to inIer that that burglar(s) rather
than committed the homicide when Rasmussen surprised them within the
residence. (See, e.g., People v. Lvnch, supra, 50 Cal.4th at p. 736; People v.
Ramire:, supra, 39 Cal.4th at pp. 462-64; People v. Scott, supra, 52 Cal.4th at
pp. 472-473; see also People v. Schader (1969) 71 Cal.2d 761, 773-74
|recognizing evidence oI other crime committed with the same modus
operandi as 'circumstantial prooI oI the crime charged|.)
G. The Exclusion Of The Evidence Violated Appellant`s Due
Process And Sixth Amendment Rights To Present A
Defense.

Criminal deIendants are guaranteed a Iair trial by the due process clause
oI the FiIth and Fourteenth Amendments oI the United States Constitution.
(Crane v. Kentuckv (1986) 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90
L.Ed.2d 636; Strickland, supra, 466 U.S. at pp. 684-685.) 'The right oI an
accused in a criminal trial to due process is, in essence, the right to a Iair
opportunity to deIend against the State's accusations. (Chambers v.
Mississippi (1973) 410 U.S. 284, 294 |35 L. Ed. 2d 297, 93 S. Ct. 1038|.)
Accordingly, the right to due process 'guarantees criminal deIendants 'a
meaningIul opportunity to present a complete deIense.' |Citations.| (Crane,
supra, 476 U.S. at p. 690.)
Correspondingly, the Sixth Amendment right to compulsory process
guarantees deIendants in criminal cases the right to present 'witnesses so that
their own evidence, as well as the prosecution's, might be evaluated by the
jury. (Washington v. Texas (1967) 388 U.S. 14, 19-20 |18 L. Ed. 2d 1019, 87
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
149

S. Ct. 1920|; accord Chambers, 410 U.S. at 302 |"Few rights are more
Iundamental than that oI an accused to present witnesses in his own
deIense."|.)
'In the absence oI any valid state justiIication, exclusion oI .
exculpatory evidence deprives a deIendant oI the basic right to have the
prosecutor's case encounter and survive the crucible oI meaningIul adversarial
testing. (Crane, supra, 476 U.S. at pp. 690-91, quoting United States v.
Cronic (1984) 466 U.S. 648, 656.) Accordingly, the denial oI an opportunity
to present evidence oI the April 10
th
burglary violated appellant`s due process
and Sixth Amendment rights.
H. Reversal Is Required.
'|Errors| at trial that deprive a litigant oI the opportunity to present his
version oI the case . are . ordinarily reversible, since there is no way oI
evaluating whether or not they aIIected the judgment.` (R. Traynor, 'The
Riddle oI Harmless Error (1970) at p. 68.) A conviction under such
circumstances is a 'miscarriage oI justice' within the meaning oI article VI,
section 13 oI the CaliIornia Constitution." (People v. Barrick (1982) 33 Cal.3d
115, 130, superseded by statute on another point as explained by People v.
Collins (1986) 42 Cal.3d 378, 393, internal citations and quotation omitted.)
Correspondingly, the high court has recognized that reversal is required
when the consequences oI an error are "unquantiIiable." (Sullivan v. Louisiana
(1993) 508 U.S. 275, 282 |124 L. Ed. 2d 182; 113 S. Ct. 2078|.) On this basis,
Iederal courts have held that depriving a deIendant oI an opportunity to present
his deIense is 'without more, suIIicient to warrant reversal. (United States v.
Smith-Baltither (9
th
Cir. 2005) 424 F.3d 913, 922; accord Conde v. Henrv (9
th

Cir. 2000) 198 F.3d 734, 741.)
Accordingly, the denial oI an opportunity Ior appellant to show that
others committed the crime was reversible error. Even iI harmless error
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
150

analysis applies, reversal is required because '|r|easonable inIerences Irom the
evidence supported the deIense theory. (United States v. Miguel (9
th
Cir.
2003) 38 F.3rd 995, 1003.)
In response to deIense counsel`s closing argument, the prosecution in
rebuttal posed the question to the jury 'does the totality oI the evidence point
to anybody else? (15 RT 8449.) However, the 'reason that there is no other
evidence in the record pointing to anybody else is that appellant`s repeated
attempt to present it 'was improperly curtailed|.| (Thomas v. Hubbard (9
th

Cir. 2001) 273 F.3d 1164, 1179, overruled on another point by Pavton v.
Woodward (9
th
Cir. 2003) (en banc) 346 F.3d 1204, 1218, In. 18.) As
explained above, Iorensic evidence supported third-party culpability and the
prosecution`s motive theory against appellant was Ilawed. (See Section II.I.,
above.) However, without person(s) to point to, they jury would inevitably
answer the question posed by the prosecution against appellant. Accordingly,
reversal is required Ior the denial oI an opportunity to present evidence oI
third-party culpability.
!""#

%&' %(")* +,-(% !",*)%'. /%)%' )0. 1'.'()* *)2
34 .'04"05 )66'**)0% )0 ,66,(%-0"%4 %, +(,//7
'8)9"0' %&' 6(,/'+-%",0:/ +("9' /+'0' )0)*4/%
)3,-% ,%&'( 3-(5*)(4 '!".'0+'#

)# 3;<=>?@ABC#
As its last witness, the prosecution called Mark SaIarik 'to render
opinion on diIIerent components oI the crime, and . whether in my opinion
the scene had been staged to look like a burglary. (15 RT 2474-75.) When
the prosecutor asked 'whether oI not it appeared to you to be an interrupted
burglary|?|, deIense counsel requested a sidebar. (15 RT 2478.)
At the sidebar, deIense counsel objected to opinion testimony by
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
151

SaIarik that the crime was not burglary-related because the court had
previously ruled it would not permit cross-examination oI Detective Hooks
and Ruetten about similar burglaries in the same area. (15 RT 2479.) DeIense
counsel argued that evidence oI other burglaries should be considered on the
question oI 'whether or not this was a random burglary at Rasmussen`s
residence. (!"#$.) The 'court`s ruling precludes me Irom eIIective cross-
examination on that part oI his opinion and thereIore violated appellant`s
conIrontation rights under the state and Iederal constitutions. (!"#$.)
The court asked the prosecutor whether he would limit his questions to
SaIarik`s opinion about whether evidence at the Rasmussen residence
'suggested to him that this was not a burglary. (15 RT 2479-80.) The
prosecutor said that he would. (!"#$.) ThereIore, the court concluded that
Evidence Code section 352 barred cross-examination about other burglaries.
(!"#$.) DeIense counsel could only cross-examine SaIarik about his opinion
based on what he observed at the crime scene because 'that`s the only
inIormation he considered. (15 RT 2480.)
DeIense counsel objected that SaIarik`s report showed that he
considered other inIormation. (15 RT 2480.) Regardless, evidence oI similar
burglaries was relevant to impeach his opinion about this case. (!"#$.) The
court responded, 'I don`t think there were burglaries that were similar. (15
RT 2480.) The deIense proIIer oI the April 10
th
burglary 'was an eIIort to get
into extraneous inIormation about a burglary that . appeared 'to the court to
be unrelated to the burglary here|.| (15 RT 2480-81.) 'I`m overruling the
deIense objection. I`m allowing his testimony. (15 RT 2481.)
SaIarik proceeded to testiIy that staging was the intentional attempt by
the oIIender to add or remove evidence Irom the crime scene to create a new
motive Ior the crime and redirect the police investigation away Irom the
oIIender. . (15 RT 2496-97.) SaIarik 'didn`t see anything that indicated a
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
152

burglary or an interrupted burglary. (15 RT 2496.) 'What I saw was an
attempt to create the illusion that the motive in this crime was an interrupted
burglary or burglary by the placement oI the stereo equipment by the door
and dumping the contents oI a drawer in the living room. (15 RT 2497.)
In particular, SaIarik opined that crime was not burglary related because
Rasmussen`s condominium complex had a wall and a Ience around it and a
locked Iront gate posing a high risk Ior a burglar. (15 RT 2482.) Other
apartment complexes in the area did not have similar barriers. (!"#$.) The
location oI Rasmussen`s unit within a complex increased the risk oI being seen
when entering and leaving. (15 RT 2482-83.)
B. The Standard of Review.
A limitation on cross-examination is reviewed Ior an abuse oI
discretion. 'This discretion is not, however, unlimited, especially when its
exercise hampers the ability oI the deIense to present evidence. While the trial
judge has broad discretion to control the ultimate scope oI cross-examination,
wide latitude should be given to cross-examination designed to test the
credibility oI a prosecution witness in a criminal case. (%&'()& +, -''(&.
(1991) 53 Cal.3d 771, 816.)
C. Evidence Code Section 352 Did Not Bar Cross-Examination
About Other Burglaries.

Multiple lines oI authority show that appellant`s proposed cross-
examination was not barred by Evidence Code section 352 and necessary to
vindicate appellant`s constitutional conIrontation rights.
'Recognizing that courts have traditionally given parties wide latitude
in the cross-examination oI experts to test their credibility, including use oI
evidence inadmissible on direct examination, the CaliIornia Supreme Court
has 'stated: Nevertheless, the trial court must exercise its discretion pursuant
to Evidence Code section 352 in order to limit the evidence to its proper
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
153

uses.` (People v. Stanlev (1995) 10 Cal.4th 764, 833-34, quoting People v.
Coleman (1985) 38 Cal. 3d 69, 92.)
14

Under this rule, 'the trial court retains wide latitude in restricting
cross-examination that is repetitive, prejudicial, conIusing oI the issues, or oI
marginal relevance.` (People v. Elliott (2012) 53 Cal.4th 535, 579, quoting
People v. Chatman (2006) 38 Cal.4th 344, 372, internal quotations omitted.)
However, '|p|rejudice` as contemplated by section 352 is not so sweeping as
to include any evidence the opponent Iinds inconvenient. Evidence is not
prejudicial, as that term is used in a section 352 context, merely because it
undermines the opponent`s position or shores up that oI the proponent. The
ability to do so is what makes evidence relevant.` (People v. Scott, supra, 52
Cal.4th at p. 490, internal quotations and citations omitted.)
'An attempt to attack the merits oI damaging testimony to which a party
has unsuccessIully objected has long been recognized as a necessary and
proper trial tactic oI cross-examination. (People v. Sam (1969) 71 Cal.2d
194, 207.) In particular, '|c|ross-examination . may be directed to the
eliciting oI any matter which may tend to overcome or qualiIy the eIIect oI the
testimony given ... on direct examination.` (People v. Gon:ales (2011) 51
Cal.4th 894, 945, citations and internal quotations omitted.)
Moreover, 'courts have traditionally given both parties wide latitude in
the cross-examination oI experts in order to test their credibility. Thus, a
broader range oI evidence may be properly used on cross-examination to test
and diminish the weight to be given the expert opinion than is admissible on
direct examination to IortiIy the opinion.` (People v. Montiel (1993) 5 Cal.4th

14
Evidence Code section 352 provides: "The court in its discretion may
exclude evidence iI its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption oI time or
(b) create substantial danger oI undue prejudice, oI conIusing the issues, or oI
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
154

877, 923-924.) It is common practice to challenge an expert by inquiring in
good Iaith about relevant inIormation, including hearsay, which he may have
overlooked or ignored.` (!". at p. 924; #$$ &$'()$ *+ ,'-./)$#|(2011) 51
Cal.4th 894,| 923-924.) (&$'()$ *+ &$/0#'- (2013) 56 Cal.4th 393, 459-60.)
'Thus, an adverse party may bring to the attention oI the jury that an
expert did not know or consider inIormation relevant to the issue on which the
expert has oIIered an opinion. (&$'()$ *+ 1'')2- (2009) 45 Cal.4th 390, 434.)
This 'includes examination aimed at determining whether the expert
suIIiciently took into account matters arguably inconsistent with the expert's
conclusion. (&$'()$ *+ 3$"$#4/ (2006) 39 Cal.4th 641, 695.)
Given these controlling standards, the trial court erred. The court
barred all cross-examination about other burglaries to test the validity oI
SaIarik`s opinion that the homicide was not part oI a burglary. ThereIore, the
proposed cross-examination would not have repetitive. Nor would it have
been conIusing or oI marginal relevance. The proposed cross-examination
directly related to reason why the prosecution called SaIarik as a witness. (15
RT 2478.)
SaIarik`s report showed that he considered but apparently discounted
evidence oI other burglaries. (15 RT 2480.) The Iactual circumstances oI the
April 10
th
burglary directly impeached SaIarik`s opinion that the Rasmussen
homicide could not have been part oI a burglary and, thereIore, was not
'extraneous inIormation as the trial court concluded. (15 RT 2480-81.)
The cross-examination would have been prejudicial, but in the proper
sense oI undermining the prosecution`s theory oI the case. II 'evidence is in
truth calculated to cause the jury to doubt, the court should not attempt to
decide Ior the jury that this doubt is purely speculative and Iantastic but should

misleading the jury."
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
155

aIIord the accused every opportunity to create that doubt.` |Citation.| (!"##$
&'()"$ 41 Cal.3d at p. 834.) However, the trial court`s ruling eliminated that
doubt.
For all these reasons, the deIense should have been allowed to 'bring to
the attention oI the jury that an expert did not know or consider inIormation
relevant to the issue on which . |SaIarik| oIIered an opinion. (*+,(#+ -.
/,,#01$ &'()", 45 Cal.4th at p. 434.)
D. The Restriction On Cross-Examination Violated Appellant`s
State And Federal Confrontation Rights.

The ConIrontation Clause oI the Sixth Amendment, applicable in state
criminal proceedings by the Fourteenth Amendment, guarantees 'a criminal
deIendant . the right to conduct cross-examination.` |Citation.| (2,3 -.
4,5" (1988) 487 U.S. 1012, 1017, 1018 |108 S. Ct. 2798; 101 L. Ed. 2d 857|.)
'Cross-examination is the principal means by which the believability oI a
witness and the truth oI his testimony are tested. (/"-0& -. 6#"&7" (1974) 415
U.S. 308, 318 |94 S. Ct. 1105; 39 L. Ed. 2d 347|.)
The CaliIornia Constitution also 'provides a speciIic guarantee oI the
right to conIrontation: 'The deIendant in a criminal cause has the right ... to be
conIronted with the witnesses against the deIendant.' (Cal. Const., art. I,
15.) (*+,(#+ -. 89)09:01;+) (1983) 34 Cal.3d 505$ 515.)
'|A| criminal deIendant states a violation oI the ConIrontation Clause
by showing that he was prohibited Irom engaging in otherwise appropriate
cross-examination designed to show a prototypical Iorm oI bias on the part oI
the witness, and thereby to expose to the jury the Iacts Irom which jurors ...
could appropriately draw inIerences relating to the reliability oI the witness.`
(/+#"5")+ -. <"1 6)&="## (1986) 475 U.S. 673, 680 |106 S. Ct. 1431; 89 L.
Ed. 2d 674|, quoting /"-0&$ &'()"$ 415 U.S. at p. 318.)
As explained above, the proposed cross-examination oI SaIarik was
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
156

proper to impeach the credibility oI his direct-examination, to expose bias by
showing he overlooked or ignored relevant inIormation, and to determining
whether he suIIiciently took into account matters inconsistent with his opinion.
Accordingly, the denial oI cross-examination violated appellant`s state and
Iederal conIrontation rights.
E. Prejudice Is Present Because The Prosecution Called Safarik
To Bless Its Theory Of The Case.

Impeachment evidence, iI 'used eIIectively . may make the diIIerence
between conviction and acquittal. CI. Napue v. Illinois, 360 U.S. 264, 269
(1959) (The jury's estimate oI the truthIulness and reliability oI a given
witness may well be determinative oI guilt or innocence, and it is upon such
subtle Iactors as the possible interest oI the witness in testiIying Ialsely that a
deIendant's liIe or liberty may depend`). (United States v. Baglev (1985) 473
U.S. 667, 676 |105 S.Ct. 3375; 87 L.Ed.2d 481|.)
Accordingly, reversal is required unless respondent demonstrates that
the limitation on cross-examination was 'harmless beyond a reasonable
doubt. (Jan Arsdall, supra, 475 U.S. at p. 684.) II prejudice is assessed
under state law, reversal is required iI "'there is a reasonable chance, more
than an abstract possibilitv'" that the error adversely aIIected the deIense.
(Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050, citation omitted.)
Relevant Iactors in assessing prejudice 'include the importance oI the
witness' testimony in the prosecution's case, whether the testimony was
cumulative, the presence or absence oI evidence corroborating or contradicting
the testimony oI the witness on material points, the extent oI cross-
examination otherwise permitted, and, oI course, the overall strength oI the
prosecution's case. (Jan Arsdall, supra, 475 U.S. at p. 684.)
Here, the testimony would not have been cumulative or beyond
permissible extent because the trial court barred all evidence oI other
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
157

burglaries in the area. The police reports corroborated the occurrence oI a
geographically proximate daytime burglary committed by an assault with a .38
caliber revolver in a similar condominium complex. The prosecution
presented DNA evidence to implicate appellant. However, other Iingerprint,
DNA, and Iirearm evidence supported appellant`s attempt to show that in Iact
others were committing armed burglaries in the same locale.
As to the importance oI SaIarik`s testimony to the prosecution case, the
summary above and in the Statement oI Facts shows that the prosecution
called SaIarik as its Iinal witness to bless the prosecution`s theory oI the case
and to disparage the deIense theory. Accordingly, it was critical to the deIense
oI the case to impeach his claim that the evidence oI a burglary-related
homicide was 'staged.
The high court has recognized that precluding cross-examination oI a
'central, indeed crucial witness to the prosecution's case is not harmless error.
(Olden v. Kentuckv (1988) 488 U.S. 227, 232-33 |109 S. Ct. 480; 102 L. Ed. 2d
513|; see also Davis, 415 U.S. at p. 318.) This is especially true Ior an expert
witness because 'testimony emanating Irom the depth and scope oI specialized
knowledge is very impressive to a jury. The same testimony Irom another
source can have less eIIect. (Ake v. Oklahoma (1985) 470 U.S. 68, 81, In. 7
|105 S.Ct. 1087; 84 L.Ed.2d 53|, citations omitted.) Accordingly, the violation
oI appellant`s state and Iederal rights to cross-examine and to impeach
SaIarik`s testimony was prejudicial to appellant`s deIense.
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
158

!"""#

%&' ()*+',, )'-&")', )'!'),./ *0 12' 3&%45'61
7'+.&,' *0 12' +&5&/.1"!' '00'+1 *0 12' 1)"./
'))*),#

The sections above explain the prejudicial eIIect oI each error. Their
cumulative eIIect provides a separate ground Ior reversal. (See, e.g., People v.
Hill (1998) 17 Cal.4th 800, 844 |"a series oI trial errors, though independently
harmless, may in some circumstances rise by accretion to the level oI
reversible and prejudicial error"|.) Where the cumulative eIIect oI individually
harmless errors renders a criminal deIense "Iar less persuasive than it might
have been," the resulting conviction violates due process and the deIendant`s
right to a Iair trial. (Chambers, 410 U.S. at p. 294; see also Tavlor v. Kentuckv
(1978) 436 U.S. 478, 487, In. 15 |98 S.Ct. 1930; 56 L.Ed.2d 468| |"the
cumulative eIIect oI the potentially damaging circumstances oI this case
violated the due process guarantee oI Iundamental Iairness"|.)
When Iederal constitutional errors combine with errors oI state law,
reversal is required unless respondent demonstrates that their cumulative eIIect
was harmless beyond a reasonable doubt. (People v. Woods (2006) 146
Cal.App.4th 106, 117, citing Chapman, supra, 386 U.S. at p. 24.) Appellant
attempted to present oI reasonable doubt based on Ilaws in the circumstantial
evidence oIIered to implicate her and DNA, Iingerprint, Iirearm and other
crime evidence supporting an inIerence oI another perpetrator(s).
The course oI trial conIirms that 23 years oI pre-accusation delay
substantially aIIected appellant`s ability to identiIy other suspects to support
the Iorensic evidence oI their presence. The trial court thwarted the deIense
attempt to present evidence oI the one incident showing that others in Iact
committed an armed daytime burglary at a similar location. The trial court
compounded this error by denying cross-examination oI the prosecution`s
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
159

about the other burglary, even though it contradicted the Ioundation Ior his
opinion that the Rasmussen homicide was not burglary-related. In contrast, the
court permitted the prosecution to present illegally seized evidence, coerced
statements, and unreliable DNA evidence not generally accepted by scientists
or appellate courts.
Because these errors cumulatively made appellant`s deIense "Iar less
persuasive than it might have been," due process requires reversal oI the
judgment and a new trial. (!"#$%&'() 410 U.S. at p. 294.)
!"#!$%&'"#
For the Ioregoing reasons, the judgment should be reversed.
Dated: May 28, 2013

RespectIully submitted,

By:
Donald R. Tickle
Counsel Ior DeIendant-Appellant
STEPHANIE LAZARUS
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
160

!"#$ &"'() &*#)+,+&-)*

I have been appointed by this Court as the attorney Ior appellant
Stephanie Lazarus. Pursuant to CaliIornia Rules oI Court, Rule 8.360,
subdivision (b)(1), I hereby certiIy, based upon the word-count Ieature oI the
"Word" word processing program, that the length oI this opening brieI,
including Iootnotes but not including the tables and this certiIicate, is 48,897
words. I have submitted an application to Iile an oversize brieI.
Executed this 28
th
day oI May 2013 at Volcano, CaliIornia.

Donald R. Tickle

T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s
161

!"##$ #$ &'"()*'
+!"#$%" '( )*"$+,-." /,0,1234 ,-.//0-1

I declare that I am over the age oI 18, not a party to this action and my
business address is P.O. Box 400, Volcano, CaliIornia, 95689-0400. On the
date shown below, I served the within APPELLANT'S OPENING BRIEF to
the Iollowing parties hereinaIter named by:

X Placing a true copy thereoI, enclosed in a sealed envelope with postage
thereon Iully prepaid, in the United States mail at Volcano, CaliIornia,
addressed as Iollows:

Stephanie Lazarus, WE4479

Clerk, Criminal Division CaliIornia Appellate Project
Los Angeles Superior Court 520 South Grand Ave., 4th Floor
210 West Temple St. Los Angeles, CA 90071
Los Angeles, CA 90012

Shannon Presby OIIice oI the Attorney General
Deputy District Attorney 300 South Spring Street
OIIice oI the District Attorney FiIth Floor, North Tower
210 West Temple St., 18
th
Floor Los Angeles, CA 90013
Los Angeles, CA 90012 (Counsel Ior Respondent)

Mark E. Overland
Law OIIices oI Mark E. Overland
100 Wilshire Blvd., Ste. 950
Santa Monica, CA 90401

I declare under penalty oI perjury the Ioregoing is true and correct. Executed
this 28
th
day oI May 2013 at Volcano, CaliIornia.

Donald R. Tickle
T
r
i
a
l
s

&

T
r
i
b
u
l
a
t
i
o
n
s

Stephanie Lazarus Criminal Appeal - Appellant's Opening Brief

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Stephanie Lazarus Criminal Appeal - Appellant's Opening Brief

Uploaded by

Copyright:

Available Formats

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT, DIVISION FOUR

You might also like

Stephanie Lazarus Criminal Appeal - Appellant&#39;s Opening Brief

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Stephanie Lazarus Criminal Appeal - Appellant&#39;s Opening Brief

Uploaded by

Copyright:

Available Formats

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT, DIVISION FOUR

You might also like

Stephanie Lazarus Criminal Appeal - Appellant's Opening Brief

Stephanie Lazarus Criminal Appeal - Appellant's Opening Brief