Stephanie Lazarus Criminal Appeal: Appellant's Reply Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
Vs.
B241172
(Los Angeles County

Superior Court
Case No. BA357423)
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Defendant and Appellant.
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STEPHANIE LAZARUS,
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Plaintiff and Respondent,
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THE PEOPLE OF THE STATE OF

CALIFORNIA
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SECOND APPELLATE DISTRICT, DIVISION FOUR
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ON APPEAL FROM THE SUPERIOR COURT,

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES,
THE HONORABLE ROBERT PERRY, PRESIDING
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APPELLANT'S REPLY BRIEF
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DONALD R. TICKLE
State Bar No. 142951
P.O. Box400
Volcano, CA 95689-0400
(209) 296-4536 (voice & facsimile)
E-mail: drt@volcano.net
Attorney for Defendant-Appellant
STEPHANIE LAZARUS
TABLE OF CONTENTS
1
INTRODUCTION
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Respondent's Ens By Claiming That Federal Law Governs Appellant's

Claim That The 23-Year Pre-Accusation Delay Violated Her Right To
Due Process Under The California Constitution.
2
2
Introduction.
B.
The Truth In Evidence Provision Of The California Constitution

Eliminates State Judicial Remedies For Exclusion OfEvidence,
Not Due Process Standards.
3
C.
None Of The Cases Relied On By Respondent's Addressed A

State Due Process Claim For Pre-Accusation Delay.
.4
D.
The Language In Boysen Rejecting Respondent's Position Was

Not "Dicta".
6
E.
Even If Applied, Federal Law Does Not Require Intentional

Delay To Gain A Tactical Advantage.
9
F.
Even If Federal Law Applies, The 23-Year Delay Was

Unreasonable And Prejudicial To Appellant's Defense.
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G.
The 23-year Delay Also Violated Appellant's State Due Process

Rights.
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II.
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1.
The Standard Of Review.
2.
This Case Is Not Analogous To The Investigative Delay

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In Nelson, As Respondent Suggests.
3.
The Delay Was Prejudicial.
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ARGUMENT
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The Trial Court Ened By Denying Appellant's Motion To Quash The

Bearel1=Wan'ants=Arn:l='Fe=Suppres-s=B-v-iElenee:- - 21---=--
c_.c_-_---'------------=---'-'---'-'-'----
Probable Cause To Arrest Appellant Did Not Establish Probable

Cause To Search Her Residence .Alid Computers 23 Years After
21
The Crime.
B.
The Detective's Opinion Was Insufficient To Establish Probable

22
Cause To Search Appellant's Residence.
C.
The Information In The Affidavit Was Too Stale To Provide

Probable Cause To Search 23 Years After The Crime.
24
D.
The Affidavit Also Failed To Provide Probable Cause To

Search Appellant's Residence For The Murder Weapon.
59
E.
The Good Faith Exception To The Exclusionary Rule Does Not

Apply To Evidence Obtained By An Overbroad Search Warrant
61
Lacking Probable Cause.
F.
Admission OfTheEvidenceFrom The Unlawful Searches Was

29
Prejudicial To Appellant's Defense.
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A.
Appellant Was Not Required To Prove Her I1111ocence.29
2.
The Record Shows The Prosecutor's Fallacy As To The

DNA Evidence.
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3.
Other Evidence Shows That The Prosecution's Motive

Theory Was Flawed.
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1.
The Evidence From Appellant's Interview Did Not Cure

The Prejudice From The Illegally Seized Evidence. 34
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4.
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5.
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III.
Forensic Evidence Supported The Original Detective's

Conclusion Burglars Killed Rasmussen When She
Surprised Them.35
The Trial Court EITed By Denying Appellant's Motion To Traverse

37
The Search WaiTants And To Hold A Franks Hearing.
A.
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TABLE OF CONTENTS
Introduction.
37
TABLE OF CONTENTS
C.
By Failing To Address The Issue, Respondent Concedes That

The Trial Court Erred In Finding That The Leon The Good
Faith Exception Overcomes Material Flaws in the Search
Warrant Affidavit.
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The Omitted Facts Undercut The Alleged Motive Offered To

Justify A Search 23 Years After The Crime.
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As A Police Officer, Appellant Was Legally Compelled To Answer

Questions When Interviewed And, Therefore, Automatic Use
Immunity Barred Admission Of Her Statements In Criminal
40
Proceedings.
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Introduction.
B.
Respondent Forfeited Any Hearsay Objection To Appellant's

41
Declaration.
C.
Use Immunity Applied Whether Or Not The Detectives Told

Appellant She Must Answer Their Questions.
42
D.
Apart From The POBR, California Law Has Long Required

Imposed A Duty On Police Officers To Answer Questions At
Pain Of Discipline For Failing To Answer.
45
E.
Use Immunity Applied Regardless Of Whether The Detectives

Told Appellant She Must Waive Her Privilege Against SelfIncrimination And Be Disciplined For Failing To Answer
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IV.
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G.
Administrative Removal Proceedings Need Not Have

Commenced For There To Be Lega1 Compulsion To Answer
51
Questions.
The Transcript Of The Interview Does Not Show That

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Appellant Waived Use Immunity.
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InteiTogation Was Prejudicial To Her Defense.
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.TABLE OF CONTENTS
Introduction.
54
B.
SERI Conducted Low Copy DNA Testing.
55
C.
The Conflict In The Scientific Literature Shows That A Prong 1

Hearing Was Required To Determine Whether The MiniFiler
Testing At Issue Has Gained General Scientific Acceptance. 55
D.
The Fact That MiniFiler Testing Uses Polymerase Chain

Reaction (PCR) OfShmiTandemRepeats (STRs) OfDNADid
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Not Eliminate The Need For A Prong 1 Hearing.
60
E.
TheNew York State Case Relied On By Respondent Does Not

Show That LCN Testing Of Mixed DNA Samples With
Minifiler Has Received General Scientific Acceptance. 61
F.
Although Not Controlling, McCluskey Supports Appellant's

Position That The LCN Testing In This Case Has Not Achieved
General Scientific Acceptance.
63
G.
Appellant Did Not Forfeit Her Claim That The Trial Comi
Erred By Failing To Hold A Prong 3 Hearing.
66
H.
Admission of the MiniFiler Test Results Violated Appellant's

Due Process Rights.
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VI.
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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.
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V.
Admissimi Of The Minifiler Evidence Was Prejudicial To

Appellant's Defense.
70
Respondent Fails To Show That Evidence Code Section 1101 BatTed

Admission Of The Evidence Of The Aprill Ot11 Burglary As Third-Party
Culpability Evidence.
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TAB:LE OF CONTENTS
C.
Respondent Fails To Distinguish The California Supreme Comt

Cases Showing That The Evidence Was Admissible
74
D.
Respondent's Cases Differ From This One.
E.
The Exclusion Of The Evidence Violated Appellant's Due

Process And Sixth Amendment Rights To Present A Defense. 78
F.
Reversal Is Required.
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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.
79
Respondent Errs By Conflating The Standard For CrossExamination With The Standard For Admission OfThird-Party
Culpability Evidence.
79
B.
Evidence Code section 352 Did Not Bar The Proposed Cross80
Examination.
C.
Prejudice Is Present Because The Prosecution Called Safarik To

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Validate Its Theory Of The Case.
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VIII. Due Process

Reversal Of The Judgment Because Of The
Cumulative Effect Of The Trial E1Tors.
84
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WORD COUNT CERTIFICATE
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PROOF OF SERVICE
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CONCLUSION
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A Common Modus Operandi Shows A Link Between

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Rasmussen Burglary And The April lOth Burglary.
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VII.
B.
TABLE OF AUTHORJTIES
Federal Cases:
Ake v. Oklahoma (1985) 470 U.S. 68 ................. :................................................... 91
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Arizona v. Fulminate (1991) 499 U.S. 279 ............................................................ 59
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Bruton v. United States (1968) 391 U.S.123 .......................................................... 73
Bumper v. North Carolina (1968) 391 U.S. 543 .................................................. ,.27
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California v. Trombetta (1984) 467 U.S. 479 .......................................................... 5

Chambers v. Maroney (1970) 399 U.S. 42 ..... : .. .. ........... 36
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Chambers v. Mississippi (1973) 410 U.S. 284 ................................................ :...... 92
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Chapman v. California (1967) 386 U.S. 18 ........... :......... :.................................... 35

Conde v. Henry (9th Cir. 2000) 198 F.3d 734 ........................................................ 86
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Crane v. Kentucky (1986) 476 U.S. 683 ................................................................. 85

Daubert v. Merrell Dow Pharms., Inc. (1993) 509 U.S. 579 ................................. 69
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Delaware v. VanArsdall (1986) 475 U.S. 673 ............................................ ,........... 90

Devenpeck v. Alford (2004) 543 U.S. 146 .............................................................. 25
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Erwin v. Price (11th Cir.1985) 778 F.2d 668 .......................................................... 53

Franks v Delaware (1978) 438 U.S. 1 .................................................................. .41
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Frye v. United States (D.C. Cir. 1923) 293 F. 1013 ............................................... 59
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Gardner v. Broderick, Police Commissioner (1968) 392 U.S. 273 .... .45, 50, 52, 57
Garrity v. New Jersey (1967) 385 U.S. 493 .............................................. .44, 48, 50
Gulden v. McCorkle (5th Cir. 1982) 680 F.2d 1070 ....... ...................................... 52
TABLE OF AUTHORITIES
Hester v. City ofMilledgeville (11th Cir.l985) 777 F.2d 1492 ....................... .45, 52
Horton v. California (1990) 496 U.S. 128 ............................................................. 25
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Huppert v. City ofPittsburg (9th Cir. 2009) 57 4 F .3d 696 .................................... 51
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Illinois v. Gates (1983) 462 U.S. 213 ............................................................... 26, 41
Jackson v. Virginia (1979) 443 U.S. 307 ............................................................... 35
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Lefkowitzv. Cunningham (1977) 431 U.S. 801.. .................................................... 54

Lefkowitz v. Turley (1973) 414 U.S. 70 ................................................................. .48
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UnitedStatesv.Lovasco(l977)43l U.S. 783 ..................................... 10, 11, 12,13
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Mapp v. Ohio (1961) 367 U.S. 643 ........................................................................ 31

Marks v. United States (1977) 430 U.S. 188 .......................................................... .10
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McDaniel v. Brown (201 0) 558 U.S. 120 ......................................................... 34, 35

Nathanson v. United States (1933) 290 U.S. 41 ..................................................... 24
Olden v. Kentucky (1988) 488 U.S. 227 ................................................................. 91
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Payton v. New York (1980) 445 U.S. 573 ............................................................... 29
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Peny v. New Hampshire (2012) 132 S.Ct. 716 ...................................................... 74

SGRO v. United States (1932) 287 U.S. 206 .......................................................... 26
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Sher v. US. Departlnent of Veterans Affairs (1st Cir. 2007) 488 F.3d 489 ........... 52
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Texas v. Cobb (2001) 532 U.S. 162 ........................................................................ 10

Uniformed Sanitation Men v. Commissioner (1968) 392 U.S. 280 1917 ............... 52
United States McCluskey (D.N.M. 2013) 2013 U.S.Dist. LEXIS 88728 .......... 68-72
United States v. $ 8,850 (1983) 461 U.S. 555 .................................................... 9, 10

United States v. Cervantes (2012) 698 F.3d 798 .................................................... 25
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United States v. Colkley (4th Cir. 1990) 899 F.2d 297 .......................................... .43
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United States v. Davis, supra, 602 F.Supp.2d at pp. 668 ....................................... 64

United States v. Frederick(D.C. Cir. 1988) 842 F.2d 382 ..................................... 54
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United States v. Gouveia (1984) 467 U.S. 180 ........................................... 10, 11, 12
United States v. Grant (9th Cir. 2012) 682 F.3d 827 ..................... :........... 26, 29, 30
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United States v. Hardin (6th Cir. 2008) 539 F.3d 404 ..................................... ;....... 7
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United States v. Indorato (1st Cir. 1980) 628 F.2d 711 ......................................... 54
United States v. Leon (1984) 468 U.S. 897 ................................................ 30, 31,44
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United States v. Moore (7th Cir. 1997) 115 F .3d 1348 .......................................... 80
United States v. Palmquist (1st Cir. 2013) 712 F.3d 640 ........................... 51, 53, 54
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United States v. Reyes (9th Cir. 2009) 577 F.3d 1069 .. :........................................ 32
United States v. Sandoval-Gonzalez (9th Cir. 2011) 642 F.3d 717 ........................ 32
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United States v. Schultz (6th Cir. 1994) 14 F.3d 1093 ..................................... 24, 28
United States v. Smith-Baltither (9th Cir. 2005) 424 F.3d 913 .............................. 86
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United States v. Underwood (9th Cir. 2013) 725 F.3d 1026 .................................. 31
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United States v. Valenzuela-Bernal (1981) 458 U.S. 858 ........................................ 5

United States v. Vangates (11th Cir. 2002) 287 F.3d 1315 .......... ......................... 54
United States v. Ventresca (1965) 380 U.S. 102 .................................................... 24
United States v. Washington (9th Cir. 1986) 797 F .2d 1461 .................................. 30
United States v. Zimmerm.an (3rd Cir. 2002) 277 F.3d 426 ................................... 29
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United States Williams, 2009 U.S.Dist. LEXIS 130524 ........................................ 64
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Weeks v. United States (1914) 232 U.S. 383 .......................................................... 31
In re Winshzrp (1970) 397 U.S. 358

......................................................................... 32
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State Cases:
Alexander v. Superior Court (1973) 9 Cal.3d 387 ................................................. 26
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Christal v. Police Commission of City and County ofSan Francisco et al.

(1939) 33 Cal.App.2d 564 .................................................................... 49, 50, 52
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City ofLos Angeles v. Superior Court (1997) 57 Cal.App.4th 1506 ...................... 56
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Fichera v. State Personnel Board (1963) 217 Cal.App.2d 613 ............................ 50

Fowler v. Superior Court (1984) 162 Cal.App.3d 215 .................................... 19, 20
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Hemler v. Superior Court (1975) 44 Cal.App.3d 430 ........................................... 28
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Jones v. Superior Court (1970) 3 Cal.3d 734 ......................................................... 15

In re Lance W: (1985) 37 Cal.3d 873 ............................................................... 3, 4, 5
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Lybarger v. City ofLos Angeles (1985) 40 Cal.3d 822 ........................ 45,48, 50, 51
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McKirdy v. Superior Court(1982) 138 Cal.App3d 12 .............................. 26, 27,29

Miller v. Superior Court (2002) 101 Cal.App.4th 728 .......................................... .46
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Pasadena Police Officers Assn. v. City ofPasadena (1990) 51 Cal.3d 564 .... 18, 47
People v. Alcala (1992) 4 Cal.4th 742 ....................................................... 83, 84, 86
People v. Alexander (2010) 49 Cal.4th 846 ........................................................... 16
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People v. Angeles (1985) 172 Cal.App.3d 1203 .... ......................................... 5, 6, 9
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People v. Archerd (1970) 3 Cal.3d 615 .................................................................. 14

People v. Ayala (2000) 23 Cal.4th 225 ............................................................. 88, 89
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People v. Barney (1992) 8 Cal. App. 4th 798 .............................. ;......................... 73
People v. Beamon (1978) 8 Cal.3d 625 .................................................................. 80
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People v. Booker (2011) 51 Cal.4th 141 .......................................................... 18, 19
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People v. Boysen (2007) 165 Cal.App.4th 761 ............................................ 3, 4, 7, 8

People v. Bradford (1997) 15 Cal.4th 1229 .................................................... .41, 43
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People v. Camarella (1991) 54 Cal.3d 592 ...................................................... 30, 31

People v. Ca1penter (1999) 21 Ca1.4th 1016 ......................................................... 29
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People v. Carrington (2009) 47 Cal.4th 145 .................................................... 26, 29

People v. Chun (2009) 45 Cal.4th 1172 ................................................................. 10
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People v. Cook (1978) 22 Cal.3d 67 ................................................................. 23, 43

People v. Corners (1985) 176 Cal.App. 3d 139 ..................................................... 67
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People v. Cowan (2010) 50 Ca1.4th 401.. .... 7 16, 75
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People v. Cromer (2001) 24 Ca1.4th 889 ..................... :......................................... 16
People v. Cruz (1961) 61 Ca1.2d 861 ., ................................................................... 59

People v. DePriest (2007) 42 Ca1.4th ! .................................................................... 9
TABLE OF AUTHOR1TIES
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People v. Doolin (2009) 45 Ca1.4th 390 ................................................................. 87

People v. Draper (1945) 69 Cal.App.2d 781 ......................................................... 32
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People v. Edwards (2013) 57 Cal.4th 658 .............................................................. 84
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People v. Engstrom (2011) 210 Cal.App.4th 174 ................................................. .46
People v. Epps (1986) 182 Cal.App.3d 1102 ........................................................... 5
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People v. Eubanks (2011) 53 Ca1.4th 110 ............................................................ .41

People v. Fuiava (2012) 53 Ca1.4th
......................................................... 74, 75
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People v. Garcia (2013) 963 N.Y.S.2d 517 ........................................................... 67
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People v. Gonzales (20 11) 51 Cal. 4th 894 ............................................................. 89

People v. Gonzalez (1990) 51 Cal.3d 1179 ...................................................... 23, 43
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People v. Hall (1980) 28 Cal.3d 143 ................................................................ 18, 19

People v. Hannon (1977) 19 Cal.3d 588
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P_eople v. Hartsch (2010) 49 Cal.4th472 ..... ............................................. 88, 89,90

People v. Haston (1968) 69 Cal.2d 233 ........................................ :........................ 80
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People v. Heitzman (1994) 9 Cal.4th 189 ........................................................... 6, 74

People v. Henderson (2003) 107 Cal.App.4th 769 ................................................ 66
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People v. Hepner (1994) 21 Cal.App.4th 761 ........................................................ 29
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People v. Hill (2001) 89 Cal.App.4th 48 ................................................................ 73

People v. Hirata (2009) 175 Cal.App.4th 1499 ............................................... 26, 28
People v. Hogue (1991) 228 Cal.App.3d 1500 ................................................ 18, 38
People v. Holley (1993) 596 N.Y.S.2d 1016 .......................................................... 67

People v. Hulland (2003) 110 Cal.App.4th 1646 ................................................... 28
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People v. Johnson (1989) 47 Cal.3d 1194 ............................................................ 5, 6
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People v. Kelly (1976) 17 Cal.3d 24 ................... ,............................... ............passim

People v. Leahy (1994) 8 Cal.4th 587 .................................................................... 66
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People v. Ledesma (2006) 39 Cal. 4th 641 .............................................................. 87

People v. Lim (2000) 85 Cal.App.4th 1289 ............................................................ 31
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People v. Lopez (1988) 198 Cal.App.3d 135 ............................................................. 5
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People v. Lynch (2010) 50 Ca1.4th 693 ............................................................ 81, 85

People v. Martinez (2000) 22 Ca1.4th 750 .......................................................... .4, 9
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People v. Massie (2006) 142 Cal.App.4th 365 ....................................................... 81

People v. May (1988) 44 Cal.3d 309 ........................................................................ 5
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People v. McKinnon (2011) 52 Cal.4th 610, 636 ................................................... 81

People v Megnath (2010) 898 N.Y.S.2d 408 ......................................................... 67
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People v. Miller (1990) 50 Cal.3d 954 ............................................................. 81, 85

People v. Mirenda (2009) 174 Cal.App.4th 1313 ............................................. .4, 15
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People v. Moore (2011) 51 Cal.4th 386 ................................................................. 25
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People v. Morganti (1996) 43 Cal. App. 4th 643 ................................................... 73

People v. Nelson (2008) 43 Cal.4th 1242 ................................................. 4, 9, 16, 17
People v. Nicholls (2008) 159 Cal.4th 703 ............................................................. 29
People v. Pearson (2013) 56 Ca1.4th 393 ............................................................... 87

People v. Pellegrin (1977) 78 Cal.App.3d 913 ...................................................... 25
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People v. Perez (1992) 2 Cal.4th 1117 ................................................................... 25
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People v. Ramirez (2006) 39 Ca1.4th 398 ......................................................... 81, 82
People v. Ramos (1984) 37 Cal.3d 136 .................................................................... 8
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People v. Reed (1982) 121 Cal.App.3d Supp. 26 ................................................... 29

People v. Reeves (2001) 91 Cal.App.4th 14 ........................................................... 66
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People v. Rist (1976) 16 Cal.3d 211 ....................................................................... 61
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People v. Roybal (1998) 19 Ca1.4th481.. ............................................................... 73

People v. Sam (1969) 71 Ca1.2d 194 ...................................................................... 88
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People v. Scott, supra, 52 Cal.4th at p. 490 ............................................................ 88

People v. Taylor (1993) 19 Cal.App.4th 836 ........................................................ .46
People v. Tierce (1985) 165 Cal.App.3d 256 ............................................... ,........... 5
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People v. Valencia (1990) 218 Cal.App.3d 808 ....................................................... 4
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People v. Venegas (1998) 18 Cal. 4th 47 ............................................................... 74

People v. Watson (1956) 46 Cal.2d 818 ................................................................. 74
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People v. Williams (2000) 79 Cal.App.4th 1157 .............................................. 37, 38
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People v. Willis (2002) 28 Ca1.4th 22 .................................................................... .44
In re Randy G. (2001) 26 Cal.4th 556 ...................................................................... 3
Raven v. Deukmejian (1990) 52 Cal.3d 336 ............................................................. 8
Riverside County Sheriff's Depart. v. Zigman (2008) 169 Cal.App.4th 763 .......... 51
In re Scott (2003) 29 Cal. 4th 783 ........................................................................... 16
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Spielbauer v. County ofSanta Clara (2009) 45 Cal. 4th 704 ................................. .48
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Szmaciarz v. State Personal Board (1978) 79 Cal.App.3d 904 ............................. 50

Titus v. Civil Serv. Commission (1980) 130 Cal.App.3d 357 ................................. 50
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Trope v. Katz (1995) 11 Cal.4th 274 ........................................................................ 7

Van Winkle v. County of Ventura (2007) 158 Cal.App.4th 492 ............................ .47
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Westside Center Associates v. Safeway Stores, 23lnc. (1996) 42

Cal.App.4th 507 ................................................................................................ 44
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Constitutions:
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Cal. Const., Art. I, 7(a) .............................................................................................. 73

Cal. Const., Art. I, 15 .........................................................................................passim
Cal. Const., Art. I, 24 .......................................................... ........................................ 4
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Cal. Const.; Art. I, 28(f)(2) ............................................................................. ....... 2, 3

U.S. Const., 5th Amend . ........................................................................................passin1
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U.S. Const., 6th Amend . ........................................................................................passiln
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U.S. Const., 14th Amend . ......................................................................................passiln
State Statutes:
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Evid. Code, 352 ................................................................................................ 3, 80, 81
Evidence
.. :.. ....: .. ;.... ;.. :; ........................................................................... 6 9 - - - - - -
Evid. Code, 782 ........................................................ :3
Evid. Code, 1101.. ...................................................... :............................ 70, 72, 73,78
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Evid. Code, 1103 ....................................................................................................... 74
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Gov.- Code, 3300 ................................................................................................passin1

Other Authorities:
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California Rules of Court, Rule 8.360 (b) .................................................................... 85
California Rules of Court, Rule 8.204(a)(l) ............................................................... .46
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Bright, et al., Determination of the Variables Affecting Mixed MiniFiler DNA

Profiles (November 2011) 5 ................................................................................... 62
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Budowle et al., Low Copy Number-- Consideration and Caution, Proc. 12th
International Symposium on Human Identification (2001) .............................. 57, 59
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Butler, Forensic DNA T)ping, Second Edition: Biology, Technology and

Genetics ofSTR Markers (Academic' Press 2005) ..................................... 62, 64, 72
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Mulero, et al., Development and Validation of the AmpFister MiniFiler

PCR Amplification Kit: A MiniSTR Multiplex for the Analysis ofDegraded
and/or PCR Inhibited DNA (2008) J. Forensic Science 838 ................ 56, 57, 58, 59
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Thompson, Mueller, and Krane, Forensic DNA Statistics: Still Controversial In

Son1e Cases (2012) 36 ............................................................................................ 62
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1 Witkin, Cal. Evidence (4th ed. 2000) Introduction, 9 ............................................ 62
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
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Plaintiff and Respondent,
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Vs.
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STEPHANIE LAZARUS,
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Defendant and Appellant. ]
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SECOND APPELLATE DISTRICT, DIVISION FOUR
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THE PEOPLE OF THE STATE OF

CALIFORNIA
B241172
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(Los Angeles County

Superior Court
Case No. BA357423)
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APPELLANT'S REPLY
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BRIEF
INTRODUCTION
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Appellant Stephanie Lazarus (hereafter "appellant") hereby reasserts and

incorporates by reference all arguments presented in her opening brief
("AOB"). Portions of respondent's brief ("RB") are completely addressed in
comment.
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the AOB. In this reply brief, appellant discusses issues requiring additional
Ill
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Ill
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Ill
ARGUMENT
A.
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RESPONDENT'S
ERRS BY
CLAIMING
THAT
FEDERAL LAW GOVERNS APPELLANT'S CLAIM
THAT THE 23-YEAR PRE-ACCUSATION DELAY
VIOLATED HER RIGHT To DUE PROCESS UNDER
THE CALIFORNIA CONSTITUTION.
Introduction.
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Appellant's first claim is that the 23 years of pre-accusation delay from
the date of the homicide (February 26, 1986) to the time she was charged by
complaint with murder (February 9, 2009) violated her state and federal due
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process rights. 1 (AOB 28; 11/6/12 CT 1; citing Cal. Const.,A1i. I, 15; U.S.
Const., 5th & 14th Amends.)
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Respondent contends that appellant's state due process claim is

govemed by the federal constitutional standard pursuant to the "Truth in
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Evidence" provision of the Califomia Constitution (aka Proposition 8). (Cal.

Const., Art. I, 28, subd. (f)(2)). (RB 52.) Therefore, respondent argues that
appellant must show that the prosecution intentionally delayed filing the
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charges to gain a tactical advantage over appellant. Moreover, respondent

argues that, even if state law standards apply, appellant failed to show
sufficient prejudice form the 23-year pre-accusation delay. Respondent is
ls
mistaken on both points.

None of the cases relied on by respondent addressed due process
ia
standards under the Califomia Constitution (A1i. I, 15) for pre-accusation

delay. The case addressing this issue rejected respondent's claim that federal
Tr
ns
I.
1. Respondent asserts that appellant's claim is that her due process rights were
claim is for pre-accusation delay. There would be no issue if appellant had

been aiTested and released without being charged. 2009.
standards govern state due process claims for pre-accusation delay. (People v.
Boysen (2007) 165 Cal.App.4th 76l;AOB 43-44.) Properly applied, state law
shows that the 23 year delay in charging her with murder violated her right to
defend against the charge. Even if federal law applies, she was prejudiced by
the delay.
B.
at
io
The Truth In Evidence

Of The California
Constitution Eliminates State Judicial Remedies For
Exclusion Of Evidence, Not Due Process Standards.
In relevant part, the Truth in Evidence provision of the California

Constitution states, with exceptions inapplicable here, that "relevant evidence
ul
shall not be excluded in any criminal proceeding." (Cal. Const., Art. I, 28,
subd. (f)(2).
ib
The courts have consistently construed Proposition 8 as eliminating

judicially created rules for the exclusion of relevant evidence except as
Tr
required by the United States Constitution. (AOB 37-38; 43-44; In re Lance

W (1985) 37 Cal.3d 873, 886-87 ["What Proposition 8 does is to eliminate a
judicially created remedy for ... exclusion of evidence ... except to the extent
&
that exclusion remains federally compelled."]; accord In re Randy G. (2001)

26 Ca1.4th 556, 561-62 ["To decide whether relevant evidence obtained by
assertedly unlawful means must be excluded, we look exclusively to whether
ls
its suppression is required by the United States Constitution."].)
ia
2. It states in full: Right to Truth-in-Evidence. Except as provided by

statute hereafter enacted by a two-thirds vote of the membership in each
house of the Legislature, relevant evidence shall not be excluded in any
and
criminal proceeding, including pretrial and post conviction
hearings, or in any trial or hearing of a juvenile for a criminal offense,
---,--------,------,,.,---------=---c----=-----,----,---w-c'!.
11TJ uvenile m-aaTilt com''t Nofning in- fl1is secfi on sh:altaffec
any exist:llig statutory rule of evidence relating to privilege or hearsay, or
Evidence Code Sections, 352, 782 or 1103. Nothing n1 this section shall
Tr
ns
due process of law and in multiple ways prejudiced appellant's ability to
Proposition 8 has also been applied to the admission of character

evidence, of evidence of prior offenses for impeachment or as an element of
the cunent offense, of evidence to impeach a confession, and similar issues
related to the admission of evidence. (See generally 1 Witkin,. Cal. Evidence
As to other provisions of the state
ns
(4th ed. 2000) Introduction, 9.)
constitution, "Proposition 8 did not repeal ... section 24 ["Rights guaranteed
io
by this Constitution me not dependent on those gumanteed by the United
States Constitution."] of article I. The substantive scope of' that provision
at
"remains unaffected by Proposition 8." (In re Lance W., supra, 37 Cal.3d at p.

886; AOB 40-41.)
ul
Accordingly, since the adoption of Proposition 8 the courts have

continued to apply state standards to claims for denial of a timely trial under
both speedy trial and due clauses ofthe California Constitution. (Cal. Const.,
ib
Art. I, 15; see, e.g. People v. Martinez (2000) 22 Cal.4th 750, 754-755
[speedy trial]; People v. Nelson (2008) 43 Cal.4th 1242 [due process]); People
Tr
v. Boysen, supra, 165 Cal.App.4th 761 [due process]; People v. Mirenda

(2009) 174 Cal.App. 4th 1313, 1329 [speedy trial and due process]; AOB 4044.)
None Of The Cases Relied On By Respondent's Addressed

.A State Due Process Claim For Pre-Accusation Delay.
&
C.
ls
Respondent contends the trial court properly relied on People v.
Valencia (1990) 218 Cal.App.3d 808 ("Valencia") because that case shows
that "state law is irrelevant" to a claim that pre-accusation delay violated
ia
appellant's state right to due process oflaw. (RB 52.)

However, neither Valencia nor the cases it relied on addressed a state
Tr
due process claim for pre-accusation delay. (AOB 37-40.) They addressed
affect any existing statutory or constitutional right of the press."
-_
subject of Proposition 8. (See People v. May (1988) 44 Cal.3d 309, 318

[Proposition 8 abrogated state law exclusionary rule for evidence obtained in
violation of a witness's Fifth Amendment privilege against self-incrimination
the United States Supreme Court under the federal Constitution."]; In re Lance
of marijuana allegedly obtained from an unlawful search of a car].)
io
W, supra, 3 7 Cal.3 d 873 [applying federal standards for exclusion of evidence
ns
because it was a "a judicially created exclusionary rule expressly rejected by
Altematively, the cases applied United States Supreme Court precedent
at
goveming the remedy for failing to preserve evidence or to retain a witness

with which prior California case law was in conflict. (People v. Johnson
ul
(1989) 47 Cal.3d 1194, 1234 [addressing standards of remedy for failing to

preserve evidence pursuant to California v. Trombetta (1984) 467 U.S. 479
ib
[8112 413; 104 S.Ct. 2528] (Trombetta);People v. Tierce (1985) 165 Cal.App.
3d 256, 263 [applying Trombetta]; People v. Epps (1986) 182 Cal.App.3d
1102, 1113-15 [applying Trombetta]; People v. Angeles (1985) 172 Cal.App.
Tr
3d 1203, 1216 [applying Trombetta];People v. Lopez(l988) 198 Cal.App. 3d

135, 146 [addressing remedy for failing to retain a material witness pursuant to
102 S.Ct. 3440].)
&
United States v. Valenzuela-Bernal (1981) 458 U.S. 858 [73 L.Ed.2d 1193,
Citing People v. Angeles (1985) 172 Cal.App. 3d 1203, 1217 (Angeles),
ls
respondent cHtm1s that an aue process cla1ms are fungioie wlwther or not they
arise under the state or federal constitution. (RB 57.) However, Angeles
ia
addressed a claim for "suppression of a defendant's confession" because of

"the negligent loss of handwritteJ.?. notes taken at the original interview,
making them unavailable for defendant's inspection."
(Id. at p. 1206.)
Tr
Angeles properly concluded that under Proposition 8 it was required to apply

fecl:eralstanclards-to that-claim
high court's decision in Trombetta. (!d. at p. 1213 [The effect of the "passage
ofProposition 8" was "'to require the courts of this state to look to federal law
in deciding issues concerning the exclusion of evidence.' [Citation]"].)
Respondent notes (RB 57) that Angeles concluded that "there is no
unlawful search and seizure violations and one utilized for loss of evidence
cases. In each instance relevant evidence on the issue of guilt or itmocence is
io
being excluded, and the reasoning of In re Lance W. should be applicable to
ns
functional difference between a judicially created exclusionary rule for
both situations." (Id. at p. 1217.) Respondent observes that People v.
at
Johnson, stpra, 47 Cal.3d at p. 1234, cited Angeles with approval. (RB 57.)
Therefore, on respondent's view, Proposition 8 "control[s] ... a defendant's
ul
due process claim based on pretrial delay." (Ibid.)
There is no "therefore." People v. Johnson, supra, 47 Cal.3d 1194,

similarly held that, post-Proposition 8, the federal standards articulated by
ib
Trombetta governed claims for exclusion of evidence based on the loss of

evidence by the police after the defendant's arrest. (Id. at p. 1234 [Application
Tr
of the "Trombetta rule" is controlling because, as stated in Angeles, it is

"compelled by the Truth-in-Evidence provision ofProposition 8, which added
article I, section28, subdivision (d) to the California Constitution."].)
&
In sum, none of those cases relied on by respondent address the state

(or federal) due process standards for dismissing charges because of pre-
(People v.
ls
accusation delay. Therefore, they have no application here.
Heitzman (1994) 9 Cal.4th 189, 209 ["It is well settled that a decision is not
authority for an issue not considered in the court's opinion."].)
Tr
ia
D.
The Language In Boysen Rejecting Respondent's Position

Was Not "Dicta".
In People v. Boysen, supra, 165 Cal.App.4th 761 (Boysen), addressed
governed by federal law. (AOB 43-44.) Respondent claims that Boysen the
6;-----------------------
language rejecting its position was "dicta." (RB 57-58.)

The term "dicta" refers to statements in a court's opinion that are not
part of the reasons given for the resolution of the issue presented by the case.
Cir. 2008) 539 F.3d 404, 439-40 ["Black's Law Dictionary [(8th ed. 2004)]
defines dicta, or 'obiter dictum,' as: 'A judicial comment made while
io
delivering a judicial opinion, but one that is mmecessary to the decision in the
ns
(Trope v. Katz (1995) 11 Cal.4th 274, 286-287; United States v. Hardin (6th
case and therefore not precedential (although it may be considered
at
persuasive).'"].)
However, Boyseil addressed the Issue presented here: whether
ul
Proposition 8 foreclosed dismissal for pre-accusation delay because "under

both the federal and state Constitutions there is no denial of due process unless
the delay was deliberately undertaken by the prosecution to gain tactical
ib
advantage over a defendant." (Boysen, 165 Cal.App. 4th at p. 772.)

Boysen held that the state due process standard applied so "that
Tr
negligent delay can violate due process." (!d. at p. 773.) The "literal language
of California Constitution, article, I, section 28 assumes its application to
evidence introduced at a criminal proceeding. Evidence Code section 140
&
defmes 'evidence' as 'testimony, writings, material objects, or other things

presented to the senses that are offered to prove the existence or nonexistence
ls
of a fact.' Nothing in this definition suggests 'evidence' includes "dismissals."

Nothing in: section28(d) [now (f)(2)] suggests Proposition 8 was intended to
ia
require that federal dismissal rules apply inCalifornia." (!d. at p. 775, fn. 2.)
Boysen also stated, if Proposition 8 was construed to alter the scope of
the defendant's state due process right against pre-accusation, "as the district
Tr
attorney suggests, then an argument can be made that, given its breadth and its
and unconstitutional." (Ibid., citing Raven v. Deukmejian (1990) 52 Cal.3d
--------
336, 349-355 (Raven).)

Respondent argues that Raven does not support Boysen. (RB 58-59.)
However, Raven rejected as unconstitutional another proposition (Proposition
courts to afford greater rights to criminal defendants than those afforded by the
Constitution of the United States[.]'" (Raven, 52 Cal. 3d at p. 350.) Raven held
io
that that this was an "invalid revision of the Califomia Constitution" beyond
ns
115) providing that the California "Constitution shall not be construed by the
the scope of the initiative process (id. at p. 355) because it "would
at
substantially alter the substance and integrity of the state Constitution as a

document of independent force and effect." (ld. at p. 352.)
ul
In support of this statement of the law, Raven cited cases giving

independent force and effect to the due process and speedy trial provisions of
Article I, section 15, of the California Constitution. (!d. at p. 354, citing
ib
People v. Ramos (1984) 37 Cal.3d 136, 152 ["As the Attorney General
acknowledges, 'defendant's state constitutional ... [due process] claim cannot
Tr
be resolved by a mechanical invocation of cunent federal precedent.'

[Citation]"]; People v. Hannon (1977) 19 Cal.3d 588, 606-608 [The United
States "Supreme Comi's decision in Marion [United States v. Marion (1971)
&
404 U.S. 307 [30 L.Ed.2d 468, 92 S.Ct. 455] did not, and indeed could not,
determine the constitutional requirements of the right to a speedy trial
ls
guaranteed by the analogous portion of the Califomia Constitution."].)

In response, respondent argues that application ofProposition 8 would
not alter the "substantive scope" of the state right to due process. The putative
ia
authority for this argument is People v. Angeles, supra, 172 Cal.App. 3d 1203.
However, as explained above, Angeles did not address the state due process
Tr
right against pre-accusation delay. It addressed and applied federal standards

/
negligent loss of handwritten notes taken at the original interview, making
------------------------------------------!8---------------------------------------------
them unavailable for defendant's inspection." (Id. at p. 1206.)

If respondent were correct, than federal standards would also govern
speedy trial claims based on the California Constitution. However, since the
independent force and effect to the speedy trial provision of the California
Constitution. (Cal. Const., Art. I, 15; People v. Martinez (2000) 22 Cal.4th
io
750,754-755 [Recognizing "impmiant differences in the operation of the state

and federal constitutional rights as construed by our comis."]; People v.
at
DePriest (2007) 42 Ca1.4th 1, 26.)
Even If Applied, Federal Law Does Not Require Intentional

Delay To Gain A Tactical Advantage.
ul
E.
ns
adoption ofProposition 8, the California Supreme Court has continued to give
Respondent next argues that to meet the federal due process a appellant
ib
must show that "the prosecution team intentionally delayed anesting [and
charging] appellant to gain a tactical advantage." (RB 61; see footnote 1,
above.) However, the "the exact standard under the [federal] constitution is not
Tr
settled." (People v. Nelson, supra, 43 Cal.4th atp. 1250 (Nelson).) "[S]ome

of the high comi' s earlier cases suggest the test might be somewhat less
onerous" than requiring the defendant to show deliberate pre-accusation delay
&
to gain a tactical advantage. (Id. at p. 1254.)

Respondent argues that the more onerous standard applies because the
ls
two most recent high court cases discussed by Nelson addressed that standard.
(Id. at p. 1253, discussing United States v. $ 8,850 (1983) 461 U.S. 555, 563
ia
[76 L.Ed.2d 143, 103 S.Ct. 2005] and United States v. Gouveia (1984) 467
U.S. 180, 192 [81 L.Ed,2d 146, 104 S.Ct. 2292].) In support ofthis argument,
respondent cites a rule of precedent applied by the California Supreme Court
Tr
in a case addressing state standards for second-degree felony murder. (RB 61,
c1tmg People v.
stating-tnar=-th:e-test=for
second-degree felony murder applied in two earlier California Supreme Comi

9
cases "catmot coexist" with the test in two later cases which thereby
"implicitly overruled" the earlier test.].)
However, under high court rules, only a holding commanding five
votes on the relevant issue has precedential effect. (Marks v. United States
ns
(1977) 430 U.S. 188, 193-194 [97 S.Ct. 990; 51 L.Ed.2d 260].) "Constitutional
rights are not defined by inferences from opinions which did not address the
io
question at issue." (Texas v. Cobb (2001) 532 U.S. 162, 169 [121 S.Ct. 1335,
149 L.Ed.2d 321].)
at
Neither of the high court cases relied on by respondent and discussed in

Nelson addressed a due process claim for pre-accusation delay.
ul
In United States v. $8,850 (1983) 461 U.S. 555 [76 L.Ed.2d 143, 103
S.Ct. 2005], the question presented was "whether the Government's 18-month
delay in filing a civil proceeding for forfeiture of the currency violates the
ib
claimant's right to due process oflaw." (Id. at p. 556.) The court emphasized
_that the "due process issue presented here is a narrow one." (Jd. at p. 562.)
Tr
The court "conclude[d] conclude that the four-factor balancing test of Barker
v. Wingo, 407 U.S. 514 (1972), provides the relevant framework for
determining whether the delay in filing a forfeiture action was reasonable."
&
(Id. at p. 556.)
The "Government" had urged the comi to adopt "the standard for
ls
assessing the timeliness of the suit be the same as that employed for due
process challenges to delay in instituting crin1inal prosecutions. As a1iiculated
\
in United States v. Lovasco, 431 U.S. 783 (1977), such claims can prevail only
ia
upon a showing that the Government delayed seeking an indictment in a

deliberate attempt to gain an unfair tactical advantage over the defendant or in
Tr
reckless disregard of its probable prejudicial impact upon the defendant's
- - - ' - - - - - ' - ' - ' - - ' - --- - - - ------ __:__c-
(jd;-- at.:cp-:=39@:;::)=--=---==--=---=--_:_:::-
=-=--=--=--:_:::-=---=----=-
-=
However, that was not the holding of Lovasco. It explained that "proof
of actual prejudice makes a due process claim [for pre-accusation delay]

concrete and ripe for adjudication, not that it makes the claim automatically
valid." (Lovasco, 431 U.S. at p. 789.) The government conceded that "a
disregard of
circumstances, known to the prosecution" might constitute a due process

violation. (Lovasco, 431 U.S. atp. 796 n.l7.)
io
However, Lovasco held that reasonable investigative delay did not
ns
showing of prosecutorial delay incuiTed in reckless
violate due process. (ld. at p. 796 ["We therefore hold that to prosecute a
at
defendant following investigative delay does not deprive him of due process,
even if his defense might have been somewhat prejudiced by the lapse of
ul
time."].) It declined to set a bright-line rule and charged the lower courts with
"the task of applying the settled principles of due process ... to the particular
circumstances of individual cases." (Id. at p. 797 .)
ib
United States v. Gouveia (1984) 467 U.S. 180, 192 [81 L.Ed.2d 146,
104 S.Ct. 2292] addressed whether prison inmates "had a Sixth Amendment
Tr
right to an attomey during the period in which they were held in administrative
detention before the retum of indictmeD;ts against them" for the murder of a
fellow inmate. (ld. at p. 182.) It emphasized that this was a "nalTOW issue."
&
(!d. atp. 185, fn.l.)
Gouveia concluded that the Sixth Amendment right to counsel did not
ls
apply "before any adversary judicial proceedings had been initiated against
them." (ld. at p. 192.) In dicta, Gouveia stated that "the Fifth Amendment
ia
requires the dismissal of an indictment, even if it is brought within the statute

of limitations, if the defendant can prove that the Govemment's delay in
bringing the indictment was a deliberate device to gain an advantage over him
Tr
and that it caused him actual prejudice in presenting his defense." (Id. at p.
-In
790, and Marion, 404 U.S. at 324. (Ibid.)
As explained above, that was not the holding of Lovasco. As to

Marion, the question presented was "whether dismissal of a federal indictment
was constitutionally required by reason of a period of three years between the
U.S. at 308.)
Marion first rejected the defendants' claim that Sixth Amendment
io
standards governed because "the Sixth Amendment speedy trial provision has
ns
occunence of the alleged criminal acts and the filing of the indictment." (404
no application until the putative defendant in some way becomes an 11 accused, 11
at
an event that occuned in this case only when the appellees were indicted on
April21, 1970." (Ibid.}
ul
As to due process standards, Marion stated "that the statute of

limitations does not fully define the appellees' rights with respect to the events
occuning prior to indictment. Thus, the Government concedes that the Due
ib
Process Clause of the Fifth Amendment would require dismissal of the

indictment if it were shown at trial that the pre-indictment delay in this case
Tr
caused substantial prejudice to appellees' rights to a fair trial and that the delay
was an intentional device to gain tactical advantage over the accused." (ld. at
p. 324.)
&
. However, Marion did not adopt the govemment' s concession as the due
process standard: "we need not, and could not now, determine when and in
ls
what circumstances actual prejudice resulting from pre-accusation delays

requires the dismissal of the prosecution. Actual prejudice to the defense of a
criminal case may result :fiom the shortest and most necessary delay; and no .
ia
one suggests that every delay-caused detriment to a defendant's case should
abmi a criminal prosecution. To accommodate the sound administration of
Tr
justice to the rights of the defendant to a fair trial will necessarily involve a
unwise at this juncture to attempt to forecast our decision in such cases." (I d.
=-
at pp. 324-25, footnote omitted.)
In sum, the high court cases state that reasonable investigative delay
does not violate federal due process and that intentional or reckless delay may
The devil is in the details of the prejudice to the
defendant's ability to defend against the charge. (Marion, 404 U.S. at 324-25;
Lovasco, 431 U.S. at 797.)
Even If Federal Law Applies, The 23-Year Delay Was

Unreasonable And Prejudicial To Appellant's Defense.
io
F.
at
Assuming the federal law applies, respondent argues that appellant

failed to show "that the prosecution team knew about any circumstances that
ul
would impair her ability to mount an effective defense, or that the prosecution
team delayed in reckless disregard of any of these circumstances. (RB 62.)
Respondent notes that the trial court found that the prosecution did not act
ib
with "reckless disregard" of appellant's due process rights by overlooking

leads as argued by the defense. (1 CT 26.)
Tr
However, the high court's focus is not on the reason for the delay but
the prejudice to the defendant from delay. (Marion, 404 U.S. at 324-25
[Actual prejudice to the defense of a criminal case may result from the shortest
&
and most necessary delay; and no one suggests that every delay-caused
detriment to a defendant's case should abmi a criminal prosecution."].)
ls
Appellant's opening brief detailed the prejudice of the delay to her

defense. (AOB 48-52) Here, appellant emphasizes that that three people close
to Rasmussen (her husband Ruetten and both ofher parents) within days ofthe
ia
homicide had identified appellant as a suspect. (11/6/12 CT 405; AOB 46-47.)

They also had all of the forensic evidence, including the bite mark swab and
Tr
firearm evidence.
ns
violate due process.
(11/6/12 CT 11-13.) Nevertheless, for 23 years the
testing, or attempted to test whether her handgun was the murder weapon
when it was available.

Moreover, the detectives in 1986 concluded that the evidence showed
that the homicide occurred as the result of a struggle when Rasmussen
Rasmussen. (4 RT 567-68, 571; 9 RT 1471, 1492.) However, when the case

came to trial in 2012, the trial court denied appellant the opportunity to present
io
evidence to support this defense of third-party culpability. (AOB 133-36.)
ns
interrupted a burglary and that appellant was not involved in killing
The trial court barred this defense because it concluded that appellant failed to
at
present sufficient evidence to support the original detectives conclusion that

the charged crime was connected to an armed burglary at a nearby residential
ul
complex. (AOB 137-139; 11 RT 1188-1191.) As discussed further below in

Sections VI. and VII., respondent continues to take this position.
Therefore, the record indeed shows that since 1986 "that the
ib
prosecution team knew about any circumstances that would impair her ability
to mount an effective defense[.]" (RB 62.) Delay must be for "a valid police
Tr
purpose." (People v. Archerd (1970) 3 Cal.3d 615, 639.) This includes "the
need of law enforcement officials for additional time to continue their
investigation, to search for the defendant, or to search for witnesses, et
omission.)
&
cetera[.]" (Jones v. Superior Court (1970) 3 Ca1.3d 734, 740, citations
ls
In this case the relevant witnesses, appellant and forensic evidence were
available in 1986. Thereafter, prosecutors "'ca1mot simply place gathered
evidence ... on the "back burner" hoping that it will some day simmer into
ia
something more prosecutable .... '" (People v. Mirenda (2009) 174 Cal.App.4th
1313, 1329-30, citation omitted.) Accordingly, the delay in this case served
Tr
no valid police purpose and violated appellant federal due process rights.
G.
The 23-year Delay Also Violated Appellant's State Due

Process Rights.
1.
The Standard Of Review.
respondent argues that the abuse of
standard applies to all issues
io
raised by a due process claim for pre-accusation delay. (RB 63.) Appellant
agrees that standard applies to the question of whether the relevant factual
(AOB 36-37; People v.
findings are supported by substantial evidence.
at
Alexander (2010) 49 Ca1.4th 846, 874.)
However, the application of the law to the facts to detem1ine whether
ul
the defendant's due process rights were violated is reviewed independently as

a mixed question of law and fact. (In re Scott (2003) 29 Ca1.4th 783, 812
ib
["'Any conclusions oflaw, or of mixed questions oflaw and fact, are subject to
independent review.' [Citation.]"]; People v. Cromer (2001) 24 Ca1.4th 889,
Tr
894 ["appellate courts should use independent, de novo review, for the mixed
question determinations that implicated these constitutional rights"].)
2.
This Case Is Not Analogous To The. Investigative

Delay In Nelson, As Respondent Suggests.
&
On the merits, respondent argues that the trial court properly fomid this
case was analogous to the investigative delay in People v. Nelson, supra, 43
ls
Ca1.4th 1242 (Nelson). (RB 63-65, citing People v. Nelson, supra, 43 Cal.4th
1242 ("Nelson").) Respondent concedes that "the prosecution team waited 23
(RB 65.)
ia
years (from 1986-2009) before it conducted a DNA analysis."
Although this was three years longer than the delay in Nelson, respondent
Tr
argues that the justification for the delay in this case was as strong as in
Nelson. (RB 65.)

-
--
- --
----
- -
- -
On respondent's view, the beginning and end of the story is the
statement in Nelson that a reviewing court should not "second guess[] how the
:l
ns
Citing People v. Cowan (201 0) 50 Ca1.4th 401, 431 ("Cowan"),
state allocates its resources or how law enforcement agencies could have
investigated a given case." (People v. Nelson, s-upra, 43 Ca1.4th at p. 1256.)
If this, without more, was the law, then a reviewing court would be
However, "negligent, as well as purposeful, delay in bringing charges may,

when accompanied by a showing of prejudice, violate due process." (Id. at p.
io
1255.)
Moreover, the statement cited by respondent must be read in light of the
at
factual circumstances giving rise to it. Nelson found reasonable investigatory

delay because the police after the 1976 rape-murder interviewed the rape
ul
suspect and found that "he pr<?vided an alibi supported by his mother-in-law."
(Nelson, 43 Cal.4th at p. 1248.) Detectives also "interviewed over 180
potential witnesses and followed other leads. However; they were unable to
ib
develop sufficient evidence to focus the investigation on a specific person."

(Ibid.) The police only had reason to charge the defendant after 2002 when,
Tr
after waiting in line to use a DNA database created in October 2000 "to solve
sexual assault cases that lacked suspects." (Ibid., emphasis added.)
In this case, three witnesses (Rw.etten and Rasmussen's parents)
&
identified appellant as a suspect. (AOB 46-48.) Moreover, the evidence

samples, appellant, and her handgun were in1mediately available for forensic
ls
testing, including DNA testing. Nevertheless the police did not interview
appellant or conduct any tests. (AOB 47-48.)
Respondent does not dispute that appellant or DNA testing technology
ia
was available at the time. Instead, respondent asserts only that a reviewing
court should not "second guess" the investigation. (RB 65 .) However, there is
no reasonable basis to construe Nelson as holding that it is reasonable to fail to
Tr
ns
required to defer to the government in every case of pre-accusation delay.
-=-J--
compare evidence in hand to a sample readily obtainable from appellant as a
police officer.
The Califmnia Supreme Court has recognized a heightened standard of
diligence where there is evidence of officer involvement in a crime. "To
must promptly, thoroughly, and fairly investigate allegations of officer

misconduct[.]" (Pasadena Police Officers Assn. v. City ofPasadena (1990)
io
51 Cal. 3d 564, 572; AOB 47.) Respondent asserts that this admonition should
ns
maintain the public's confidence in its police force, a law enforcement agency
be disregarded based on Nelson. (RB 65.) However, the circumstances of
3.
The Delay Was Prejudicial.
at
Nelson provide no reason to do so.
ul
Respondent argues that appellant suffered no prejudice from the delay

because she "has not proven" that the people who left their DNA and
fingerprints at the scene lacked an innocent explanation to be in Rasmussen's
ib
home. (RB 66.) Respondent's position is flawed both legally and factually.
As mater oflaw, a "defendant is presumed innocent until proven guilty,
Tr
and the government has the burden to prove guilt, beyond a reasonable doubt,
as to each element of each charged offense. [Citations]." (People v. Booker
(2011) 51 Ca1.4th 141, 185.) This includes the identity of the perpetrator.
&
(People v. Hogue (1991) 228 Cal.App.3d 1500, 1505 ["An essential element
of any crime is, of course, that the defendant is the person who committed the
ls
offense. Identity as the perpetrator must be proved beyond a reasonable

doubt."].}
ia
As to the question of third-party culpability, it is sufficient if the
evidence would raise a reasonable doubt of the defendant's guilt. (People v.
Hall (1980) 28 Cal.3d 143, 158-59.) However, the burden of proof remains
Tr
with the prosecution. (Ibid.; People v. Booker, supra, 51 Cal.4th at 185.)
----'-------
not suggest an innocent presence in Rasmussen's residence. On February 2411
25, 1986, investigators found multiple identifiable fingerprints near

Rasmussen's blood stains on the lower part of the closet door and wall in the
entryway, on the CD player stacked by the door to the garage, and in blood on
the CD player, and on the banister of the stairs to the garage fiom which
those could be attributed to appellant, Rasmussen, or Ruetten. .(Ibid.)
ns
Rasmussen's BMW was stolen. (11 RT 1732-33, 1749-53, 1754.) None of
io
DNA testing later showed unidentified male DNA in hair found on a

dish towel, in cuttings found on the blanket with gun shot residue near
at
Rasmussen's body, on speaker wire by the stereo equipment moved to near the
door to the garage, a blood sample in the stairwell to the garage, and in
ul
association with one of the right fingernails and two of the left fmgernails
from Rasmussen. (8 RT 1254-56; 12 RT 1981, 1997-99, 2002-04,,2007,
2011-14, 2039-40; 13 RT 1076-77, 2075, 2077-78, 2081.) Appellant was
ib
excluded as a contributor at all of these locations. (Ibid.)
In the stolen BMW taken fiom the garage, there was unidentified male
Tr
DNA in blood on the interior, driver's door handle, from which appellant and
Rasmussen's husband were excluded. (12 RT 1951, 1989.) Thus, forensic
evidence supports an inference of guilty association with the crime rather than
&
others itmocently presence as respondent suggests.

Appellant also lost access to police communication tapes which would
ls
have shown whether others had been seen and reported in prqximity to
Rasmussen's residence or vehicle around the times relevant to the crime.
Fowler v. Superior Court (1984) 162 Cal. App. 3d 215 shows that the loss of
ia
such evidence supports a fmding of prejudice. (AOB 49-50.)

Respondent argues that Fowler differs because the defendant in that
Tr
case asserted that the lost police dispatcher's tape would have shown a phony
. Respondent asserts that there is no comparable reason to believe that lost
communication tapes could have assisted appellant. (Ibid.)

However, the women next door to Rasmussen's residence at midday
heard sounds of fighting and a scream through a common wall, followed by
2645-46.) Thus, the crime was the kind of incident that would typically cause
a person to notify the police and provide identifying information.
ns
silence and then the sound of a car driving off. (16 RT 2634-35, 2637-38,
io
Accordingly, the loss of the communication tapes supports a finding of

prejudice.
at
Respondent also argues that no prejudice resulted from the loss of

memories by officers working with appellant as to whether she showed any
ul
injuries at the time relevant to the crime. (RB 67.) On respondent's view, it
was "not inevitable that the murderer had to suffer any injuries." (Ibid.)
ib
Respondent also believes that appellant could not have been injured because
she was a trained police officer and in above average physical shape. (RB 6768.)
Tr
However, Rasmussen was 5' 10 and about 15 0 pounds and, according to

her husband, very fit and strong because she worked out regularly. (4 RT 40102.) Moreover, respondent ignores crime scene evidence showing an extended
&
struggle from the entryway where blood and broken fingernails were found
and extending into the living room with overtumed furniture and a broken
ls
vase were found. (4 RT 504-06, 576, 578, 584; 9 RT 1481-82.) Therefore,

there was substantial reason to believe that the perpetrator would have been
ia
scratched during the encounter.

Because of such evidence, Detectives Mayer and Hooks concluded after
months of investigation in 1986 that one or two burglars started to burglarize
Tr
the condo when Rasmussen surprised them and a violent struggle ensued
- uring wnicn "'Rasmussen wasFor the same reasons, the detectives in 2009 searched appellant's residence
for records of medical treatment in 1986 as well as records "that will identify
cunent and former co-workers, friends or associates who may have knowledge
of Detective Lazarus's activities and appearance" after the homicide. (4 CT
9.i
Nevertheless, respondent argues that appellant cannot show that, had

she been charged earlier, additional witness would have remembered whether
io
or not she had any injuries. (RB 68.) However, that is precisely the point: the
ns
708; 6/4/09 Search Wanant Affidavit at p.
passage of23 years time caused the loss and/or dimming of memories.
at
Respondent claims that Michael Alexander remembered that appellant

did not have any injuries when he worked with her two days after the incident.
ul
(RB 68.) However, the record shows that Alexander did not recall seeing any
signs of injury or hearing appellant complain of1njury. (16 RT 2669, 2671.)
That differs from affinnativ.e testimony based on contemporaneous personal
ib
knowledge.
It is also undisputed that the prosecution failed to test appellant's back-
Tr
up handgun that the prosecution claimed to be the murder weapon. 1 CT 1011.) Respondent argues that this is unreasonable because appellant's firearm
was stolen two weeks after the crime and the prosecution
not required to
&
charge appellant with murder within two weeks of the crime. (RB 68-69.)
However, is not claiming that the police had to arrest her within two
ls
weeks of the crime. Within a day of the incident the police had collected the
firearm evidence fiom the crime scene and Ruetten and Rasmussen's had
identified appellant as a suspect. (1 CT 10-11; 11/6/12 CT 4-5, il-13.)
ia
Nevertheless, the police did nothing for two weeks. The failure to do so is
Tr
further evidence of delay prejudicial to the defense.

Finally, respondent argues that appellant made false exculpatory
The search warrants and affidavits are attached as exhibits to appellant's

May 28, 2013 Motion to Augment the Record on Appeal.
201---------------------------------------------
statements reflecting consciousness of guilt when interviewed by the

detectives on June 5, 2009. (RB 67.)
However, the circumstances show that the detectives used the mse of
cases. (7 CT 1421, 1424; 2 RT E-15.) Then they suddenly began questioning
ns
bringing appellant to the jail interview area to question a witness on one of her
her about her relationship with Rasmussen's husband and knowledge of
io
Rasmussen. (7 CT 14 22-14 24, foll.) Appellant credibly explained that it was
difficult to remember events that occurred many years ago, long before she
at
was married and a mother.
II.
Probable Cause To Arrest Appellant Did Not Establish

Probable Cause To Search Her Residence And Computers
23 Years After The Crime.
Tr
A.
ib
ul
THE
TRIAL
COURT
ERRED
BY
DENYING
APPELLANT'S MOTION To QUASH THE SEARCH
WARRANTS AND To SUPPRESS EVIDENCE.
Respondent does not dispute (1) that appellant did not live at the
residence authorized for search until eight years after the crime, or (2) that the
&
computers seized and searched did not exist at times relevant to the homicide.
Instead, respondent argues that the affidavitfi:om Detective Stearns "strongly
ls
tied appellant to the murder" based on the DNA and alleged motive evidence.
(RB 77.)
Appellant does not dispute that the DNA evidence provided probable
ia
cause to arrest her on June 5, 2009. (AOB 54; 4 CT 709.) However, "[m]ere
evidence of a suspect's guilt provides no cause to search his residence."
Tr
(People v. Gonzalez (1990) 51 Cal.3d 1179, 1206; People v. Cook (1978) 22
B.
The Detective's Opinion Was Insufficient To Establish

Probable Cause To Search Appellant's Residence.
Respondent did not address the forgoing authority. Instead, respondent

suggests that there was a fair probability that appellant still had mementos of
ns
Ruetten and kept a diary or j oumal recording her feelings about him. (RB 77.)
However, the search wanant affidavit provided no substantial evidence of
io
this. The only basis for this claim was Detective Stearns' "opinion" that
appellant "may be in possession of diaries, daily journals or other writing
at
expressing her feelings towards Ruetten and Rasmussen at the time leading up
to and after the murder." (6/4/09 Search WanantAffidavit atpp. 25-26; 4 CT
ul
708.)
That opinion was insufficient to establish probable cause 23 years after

a crin1e to search a residence without any evidence connecting the residence to
ib
the crime. (AOB 66-68; Nathanson v. United States (1933) 290 U.S. 41, 47
[78 L.Ed. 159; 54 S.Ct. 11] ["mere affirmance of suspicion or belief without
Tr
disclosure of supporting facts or circumstances" is insufficient to establish

probable cause]; accord United States v. Ventresca (1965) 380 U.S. 102, 108109 [85 S.Ct. 741; 13 L.Ed.2d 684].)_
&
An officer's opinion "cmmot substitute for the lack of evidentiary nexus

in this case, prior to the search, between the" place to be searched "and any
ls
criminal activity. . .. To find otherwise would be to invite general wan:ants

authorizing searches of any property owned, rented, or otherwise used by a
criminal suspect-- just the type of broad watTant the Fomih Amendment was
ia
designed to foreclose." (United Statesv. Schultz (6th Cir. 1994) 14 F.3d 1093,
Tr
1097-98.)
As to the search for appellant's computers, respondent concedes no
- - -
homicide. (RB 77-78.) Nevertheless, respondent assetis "there was a fair
-=c..=
probability that appellant had a computer in 2009 when Detective. Steams

wrote the affidavit, and that appellant scanned important documents on her
computer so that she could easily access them." (RB 78.) This assertion is
in 2009 appellant had a homicide computer or a sca1mer or that in 2009 she
retained and scmmed documents related to Ruetten or Rasmussen from 1985-
io
1986.
"The magistrate must be presented facts and not conclusory statements
at
if he is to perform his detached function and not become a rubber stamp for
the police." (People v. Pellegrin (1977) 78 Cal.App.3d 913, 916.) "[A] mere
ul
possibility is nothing more than speculation. Speculation is not substantial

evidence." (People v. Perez (1992) 2 Cal.4th 1117, 1133.) "That an event
ib
could have happened ... does not by itself suppmi a deduction or inference it
did happen." (People v. Moore (2011) 51 Cal.4th 386, 406.)
"'One of the themes which runs through the decisions on the Fourth
Tr
Amendment probable cause requirement is that ... mere conclusions will not
suffice."' (United States v. Cervantes (2012) 698 F.3d 798, 803, citations
omitted.) The high comi has emphasized that the subjective belief of the.
&
officer "is irrelevant to the existence of probable cause." (Devenpeck v. Alford

(2004) 543 U.S. 146 [125 S. Ct. 588, 594; 160 L. Ed. 2d 537].) "[E]ven
ls
handed law enforcement is best achieved by the application of objective

standards of conduct, rather than standards that depend upon the subjective
ia
state ofmind ofthe officer." (Horton v. California (1990) 496 U.S. 128, 138
[110 S. Ct. 2301; 110 L. Ed. 2d 112].)
Accordingly, the detective's belief or opinion could not substitute for
specific and miiculable facts showing that it is "'substantially probable.that
Tr
ns
speculation compounded by speculation. The affidavit presents no facts that
-there is specific
particular place for which the warrant is sought." (People v. Carrington
(2009) 47 Cal.4th 145, 161, citations and internal quotations omitted.) Absent
this '"nexus' element", the search lacked probable cause and violated the
Fourth Amendment (Illinois v. Gates (1983) 462 U.S. 213, 238 [76 L. Ed. 2d
C.
The Information In The Affidavit Was Too Stale To Provide

Probable Cause To Search 23 Years After The Crime.
present probable cause for a search."
io
"Stale information in a search wanant affidavit does not establish
ns
527; 103 S. Ct. 2317].)
(People v. Hirata (2009) 175
at
Cal.App.4th 1499, 1504; AOB 61.) Respondent argues that there is "'no clear
cut rule'" for determining whether information in an affidavit is too stale to
ul
support present probable cause. (RB 78, quoting McKirdy v. Superior Court
(1982) 138 Cal.App. 3d 12, 25 (McKirdy).) However, the standard is not so
ill-defined as respondentsuggests.
ib
McKirdy itself (id. at pp. 25-26) applied the standard set by high court
and the California Supreme Court: "As a general rule, information is stale,
Tr
and hence unworthy of weight in the magistrate's consideration of an affidavit,

unless the information consists of 'facts so closely related to the time of the
issue of the warrant as to justify a fmding of 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];
ls
accord United States v. Grant (9th Cir. 2012) 682 F.3rd 827, 835.)
In McKirdy, the issue was whether an affidavit provided probable cause
to search a doctor's office for billing records in an investigation of fiaudu1ent
ia
billing of Medi-Cal. (McKirdy, 138 Cal.App. 3d at p. 25.) "Some of the
patient statements summarized in Beall's affidavit related to events three to
---=--
Tr
four years old at the time the statements were given." (Ibid.) Nevertheless,
-=--=-
-""'-.=.c.c-'-'
would not necessarily bear on the sufficiency of probable cause inasmuch as
=--=--=----=---==--'-'-"'=-'-'----'--'-
cc_-
what the Fraud Unit sought was not evanescent contraband but rather business
and professional records which presumably would be retained unaltered for
periods of several years." (Id. at pp. 25-26.)
personal residence were not business records but insists that because appellant
was so "obsessed" with Ruetten she would have kept documents relating to
io
Ruetten "throughout her lifetime." (RB 78.)
That indeed was the prosecution theory at trial based on fmding writing
at
relating to Ruettenin2009. (AOB 73-75.) However, "[a]ny idea that a search

can be justified by what it tums up was long ago rejected in our constitutional
ul
jurisprudence. 'A search prosecuted ii1 violation of the Constitution is not

made lawful by what it brings to light.'" (Bumper v. North Carolina (1968)
391 U.S. 543, 548, fn. 10 [88 S. Ct. 1788; 20 L. Ed. 2d 797], citations
ib
omitted.)
The affidavit itself offers only statements of opinion that 23 years after
Tr
the events at issue appellant kept materials related to Ruetten. (AOB 55-56;
6/4/09 Affidavit at pp. 25-26.) The statement of probable cause proffered
statements from interviewing Ruetten about his relationship with appellant
&
during college and periodically after graduation until June 1984. (6/4/09
Affidavit at pp. 18-19.)
ls
Thereafter, they did not meet until June 1985 when appellant called
Ruetten after leaming he was engaged. (Id. at p. 19.) Appellant was "upset"
and told him that she "wanted to take the relationship to the next level."
ia
(Ibid.) However, Ruetten did not say that he had any continuing contact with
appellant after June 1985. (Ibid.)
Tr
ns
Respondent recognizes that the materials sought from appellant's
The police also interviewed Rasmussen's former roommate who said
Rasmussen's workplace in the fall of 1985. However, Rasmussen simply
"described the incident to [the roommate] as, '[a]n odd thing with a women
dressed real provocatively."' (Id. at p. 19.)
In May 2009, the police interviewed Rasmussen's father. (Id. atp. 21.)
appellant in her apartment and didn't know how she had entered. (Ibid.)
ns
He said that Rasmussen told him in January 1986 that she came upon
Appellant said that "she needed to talk to John and. their was a verbal
io
confrontation. The girlfi.iend left the apartment after a few minutes, and there
was no violence, but Sheni was afraid." (Ibid.) In February 1986, Rasmussen
at
told her father that she had a serious problem in Los Angeles that she could
not tell Jolm about and needed to handle on her own. (Ibid.) However, she
ul
did not mention appellant. (Ibid.)
In sum, the affidavit identified no facts about any putative obsession

with Ruetten after 19 86 to justify searching her residence in 2009. Detective
ib
Stearns offered only his "opinion" that appellant "may be in possession of

diaries, daily journals or other writing expressing her feelings towards Ruetten
Tr
and Rasmussen at the time leading up to and after the murder." (Id. at pp. 2526.) As explained above, an officer's opinion "cmmot substitute for the lack
of evidentiary nexus in this case, prior to the search, between the" place to be
at pp. 1097-98.)
&
searched "m1d any criminal activity." (United States v. Schultz, supra, 14 F.3d
ls
Respondent concedes that, where there is no evidence of a continuing

crime, an affidavit based on stale infonnation is insufficient to suppmi
probable cause. (RB 79, citing People v. Hirata (2009) 175 Cal.App.4th 1499,
ia
1505; People v. Hulland (2003) 110 Cal.App.4th 1646, 1652; accord Henzler
v. Superior Court (1975) 44 Cal.App.3d 430, 434 ["In the absence of other
Tr
indications, delays exceeding four weeks are unifonnly considered insufficient

==-=
Nevertheless, respondent argues that this principal applies only to

26------------------------
searches for evidence of drug crimes. (RB 79.) However, the cases fmding the
absence of probable cause due to stale information are not limited to searches
for drugs or similar contraband. The staleness doctrine applies in contexts as
pp. 25-26; People v. Hepner (1994) 21 Cal.App. 4th 761, 770), stolen checks
(People v. Carrington, supra, 47 Cal.4th at pp. 162-63), a murder weapon
io
(Peoplev. Cmpenter(1999)21 Ca1.4th 1016, 1044; UnitedStatesv. Grant(9tl1
ns
diverse as searches for business records (McKirdy, supra, 138 Cal.App. 3d at
.Cir. 2012) 682 F.3rd 827, 835; pornography (People v. Nicholls (2008) 159
at
Ca1.4th 703, 714; United States v. Zinunerman (3rd Cir. 2002) 277 F.3d 426,
433-34), and even evidence of operating a ketmel without a license (People v.
ul
Reed (1982) 121 Cal.App. 3d Supp. 26, 33.)
Appellant emphasizes that the "'physical entry of the home is the chief
evil against which the wording of the Fourth Amendment is directed.'
ib
[Citation.]" (Payton v. New York(l980) 445 U.S. 573,585-586 [63 L. Ed. 2d

639, 100 S. Ct. 1371]; AOB 60.) An affidavit with a 20-year gap in
protection against that evil.
The Affidavit Also Failed To Provide Probable Cause To

Search Appellant's Residence For The Murder Weapon.
&
D.
Tr
information should not be permitted to trump the F omih Amendment
Detective Steams offered as an additional justification for the search his
ls
belief that the murder weapon (a gun) "may" be at appellant's residence.

(AOB 55; 6/4/09 Affidavit at 19-20.) Respondent notes that the police did not
ia
find the murder weapon during the search of the residence. (RB 79.) From
this absence of evidence, respondent argues that the search wanant was not
invalid even if it was "'overbroad in part[]."' (RB 79, quoting People v.
Tr
Camarella (1991) 54 Cal.3d 592, 607, fn. 7, emphasis omitted.)

- - Row ever,-
claiming that a search for a murder weapon, unlike appellant's computer, was
overbroad.
(AOB 68-69.) The point is that infonnation about appellant's
back-up handgun from the 1980's also failed to provide probable cause to
search her residence in 2009. (AOB 64-66; see, e.g., United States v. Grant
'fair probability' that the gun or ammunition from the homicide would be in
Grant's home nearly nine months after the murder.")
io
The Good Faith Exception To The Exclusionary Rule Does

Not Apply To Evidence Obtained By An Overbroad Search
Warrant Lacking Probable Cause.
at
E.
ns
(9th Cir. 2012) 682 F.3rd 827, 835 ["In sum, the affidavit does not establish a
Respondent argues that the trial court properly concluded that that the
good faith exception to the exclusionary rule (United States v. Leon (1984)
ul
468 U.S. 897, 900 [1 04 S.Ct. 3405; 82 L.Ed.2d 677] (Leon) cured any flaws in
the search WatTant even "assuming that the affidavit lacked probable cause[.]"
ib
(RB 79-80; see 2 RT C3-4, 7-8, 9, 12.)
However, Leon recognized that suppression "remains an appropriate
Tr
remedy" where a search warrant on its face violates the particularity clause of
the Fourth Amendment. (Leon, 468 U.S. at 923; accord United States v.
Washington (9th Cir. 1986) 797 F.2d 1461, 1473 ["executing officers could
&
not reasonably presume facially overbroad warrant to be valid."]; AOB 74.)
Leon also explained that if a search wanant on its face lacks probable
cause the police may not reasonably rely on it. (Leon, 468 U.S. at 922-23
ls
["the officer will have no reasonable grounds for believing that the wanant
was properly issued" where the affidavit is "so lacking in indicia of probable
ia
cause as to render official belief in its existence entirely unreasonable"].)
Therefore, "[i]f a wanant lacks probable cause, evidence obtained during its
Tr
execution should generally be suppressed under the exclusionary rule."
(UnitedStatesv. Underwood(9t11 Cir. 2013) 725 F.3d 1026, 1084, citingL...U-'-'a--'-p:.x.p_ _ _ _ _ _ __
v. Ohio (1961) 367 U.S. 643, 655 [81 S. Ct. 1684; 6 L. Ed. 2d 1081], Weeks v.
United States (1914) 232 U.S. 383, 393 [34 S. Ct. 341; 58 L. Ed. 652].)
Respondent attempts to bypass this authority by arguing that Detective
Stearns did not mislead the magistrate such as by providing info1mation he
reasonably rely on. (RB 80, citing People v. Lim (2000) 85 Cal.App. 4th
1289, 1296.)
io
However, the cases discussed above have not found the good faith
ns
knew or should have known was false and, therefore, the officers could
exception inapplicable only where the officer provided false information.
at
People v. Lim, supra, also recognized that there are "four situations in which
reliance would not be established and suppression would remain an
ul
appropriate remedy: ( 1) the issuing magistrate was misled by information that

the officer knew or should have known was false; (2) the magistrate wholly
ib
abandoned his or her judicial role; (3) the affidavit was so lacking in indicia of
probable cause that it would be entirely unreasonable for an officer to believe
such cause existed; and (4) the wanant was so facially deficient that the
Tr
executing officer could not reasonably presume it to be valid." (People v. Lim,

supra, 85 Cal.App. 4th at 1296, citing Leon, 468 U.S. at 923, and People v.
Camarella (1991) 54 Cal. 3d 592, 596.)
&
The third (absence of probable cause) and fourth (facial overbreadth)

limitations apply here.
Admission Of The Evidence From The Unlawful Searches

Was Prejudicial To Appellant's Defense.
ls
F.
ia
1.
Appellant Was Not Required To Prove Her

Innocence.
Assuming an unlawful search, respondent argues that appellant suffered
Tr
no prejudice fi:om admission of the evidence obtained thereby because she

offers no -"mnocent explanafion',__,_for tlle --presence of-=ner'IJN:K actne crime
scene. (RB 81.)

29
Under In re Winship (1970) 397 U.S. 358 [90S. Ct. 1068; 25 L. Ed. 2d
368], the prosecution must prove beyond a reasonable doubt every fact
necessary to constitute the crime. (ld. at p. 364.) Thus, "[i]t was not ... the
prove [s]he was guilty." (United States v. Reyes (9th Cir. 2009) 577 F.3d
1069, 1077; accord People v. Draper (1945) 69 Cal.App.2d 781, 785 [The
io
defendant "is not required to prove his innocence. The People must prove him
guilty."].)
at
"For example, a defendant who testifies 'I wasn't there!' need not
establish his absence from the crime scene or his presence elsewhere; at all
ul
times the burden remains with the government to prove beyond a reasonable
doubt that the defendant did, in fact, commit the alleged criminal act as
charged. [Citations]." (United Statesv. Sandoval-Gonzalez (9th Cir. 2011) 642
ib
F.3d 717, 723.)
Moreover, as respondent recognizes (RB 71 ), Rasmussen's roommate
Tr
told the police that Ruetten had a relationship with a LAPD officer that
"continued after Ruetten and Rasmussen were engaged." (6/4/09 Affidavit at
p. 19.) The prosecution's DNA expert (Thomas Fedor) conceded that DNA
&
may be transferred from casual contacts such as touching inanimate objects

like a bath towel, clothing, door handles, and door knobs. (12 RT 1945.)
ls
DNA may also be transferred from doing laundry. (Ibid.) Moreover, DNA
persists indefinitely once it has been deposited.
(12 RT 1946.) Given
Ruetten' s history of intimate relations with appellant and that his relationship
ia
continued after his engagement to Rasmussen, there was another explanation
for why appellant's DNA could have been found at the Ruetten-Rasmussen
Tr
residence.
ns
defense's burden to prove [she] was innocent. It was the prosecutor's burden to
2.
The Record Shows The Prosecutor's Fallacy As To

The DNA Evidence.
Another flaw in respondent's reliance on the DNA evidence is that the
i.e., "equating random match probability wifli source probability, and an
underestimate of the likelihood that ... [someone else] would also match the
io
DNA left at the scene." (McDaniel v. Brown (2010) 558 U.S. 120, 129-30
ns
prosecutor's use of the DNA evidence exemplifies the prosecutor's fallacy,
[130 S. Ct. 665; 175 L. Ed. 2d 582]; AOB 79-80.) Thus, it is not the case, as
at
the prosecution claimed at trial, that it was impossible for another person on
. earth to be the source of the DNA profiles as claimed by the prosecution.
ul
(AOB 76-79.)
Respondent asserts that the prosecution did not make this claim.
ib
However, DNA analyst Jennifer Francis stated that on earth alone she would
not expect to find a person other than appellant with the same profile as on the
bite mark swab. (7 RT 1104; AOB 78.) In closing, the prosecutor made the
Tr
same argument to the jury. (18 RT 3016-17.)
In rebuttal argument, the prosecutor noted DNA evidence from one of

Rasmussen's broken fingernails.
(19 RT 3206.)
The random match
&
probability of that profile consistent with appellant was 1 in 26,000. (Ibid.)

On the prosecutor's view, that was equivalent to saying that if the Staples
ls
center was filled with women, only one other woman could have contributed
that profile. (19 RT 3206-07.)
ia
Thus, the prosecutor adopted the fallacy of "equating random match
probability with source probability, and an underestimate ofthe likelihood that

... [someone else] would also match the DNA left at the scene." (McDaniel v.
Tr
Brown, supra, 558 U.S. at 129-130.)
-- espondent-attempmo-avoicl,-tnis -conclusionby
evidence discussed in McDaniel v. Brown, supra. (RB 81, quoting McDaniel
v. Brown, supra, 558 U.S. at 132 ["Even under [defense expert] Mueller's
odds, a rational jury could consider the DNA evidence to be powerful
evidence of guilt."].)
collateral attack on the judgment in habeas proceedings.
The question
presented was whether in assessing the sufficiency of the evidence for a rape
io
verdict under Jackson v. Virginia (1979) 443 U.S. 307 (Jackson), the lower
ns
Respondent failed to explain that McDaniel v. Brown, supra, involved a
court erred by "relying upon a report prepared by a DNA expert ["the Mueller
at
report"] over 11 years afterthetrial[.]" (McDanielv. Brown, supra, 558 U.S.
at 121.) The high court "granted ce1iiorari to consider two questions: the
ul
proper standard of review for a Jackson claim on federal habeas, and whether
such a claim may rely upon evidence outside the trial record that goes to the
reliability of trial evidence." (ld. at 127, citation omitted.)
ib
With regard to the latter question, the comi concluded that a federal
court reviewing a habeas petition could not rely on evidence such as the
Tr
Mueller Report because "it was not presented to any state court[.]" (ld. at p.
126.) The high court's comment about the post-verdict Mueller Rep01i must
be read in light of its exasperation with the Ninth Circuits failure to follow
&
settled standards for review of the sufficiency of the evidence by considering

evidence not presented at trial. (Id. at 132 ["Even if the Comi of Appeals
ls
could have considered it, the Mueller Repmi provided no warrant for entirely
excluding the DNA
evidence or Romero's testinwny from that court's
consideration."].)
ia
This case is on direct appeal. Therefore, the burden is on respondent to
demonstrate "beyond a reasonable doubt that the error complained of did not
Tr
contribute to the verdict obtained." (Chapman v. California (1967) 386 U.S.
------1-8-;-Z-4-[87--s--:-et-82-4-;-1--9-:C.Ed:.Z-d--9-05-j-;-eh-amb-ers-rr:-M-arorrey-(-I-9-9-0)--3-99-B-:-S,--.------------'42, 53 [90 S.Ct. 1975; 26 L.Ed.2d419].)As next explained, respondent errs by
arguing that other motive evidence cured any error :fi.om admission of the
evidence of the illegal searches.
Other Evidence Shows That The Prosecution's

Motive Theory Was Flawed.
Prejudice is present here because the evidence obtained from the illegal
searches provided the foundation for the motive theory the prosecution
io
repeatedly urged the jury to adopt as the explanation for why appellant would
have killed Rasmussen. (AOB 73-75.) The other evidence showed that the
at
motive theory was flawed. (AOB 75-76.)
Respondent contends that the testimony from appellant's former
ul
roommate (Michael Hargreaves) and Ruetten provides strong evidence of

appellant's motive. (RB 82.) Hargreaves testified that appellant cried and was
(9 RT 1363-64.)
ib
upset after Ruetten broke off their relationship because he was marrying
Rasmussen.
However, he also said that appellant's
emotional response wasn't anything hysterical or inappropriate. (9 RT 1380-
Tr
81, 1384, 1388.) Moreover, Hargreaves said appellant did not try to reestablish her relationship with Ruetten after their break-up. (9 RT 1388-89.)
As to Ruetten, he also testified that appellant was upset and cried in
&
June 1985 when he learned that he planned to marry Rasmussen. (9 RT 1448;

10 RT 1567 .) However, Ruetten further testified that it never crossed his mind
ls
that appellant was involved in the crime. (9 RT 1487.) Moreover, after

Rasmussen's death, appellant did not call pursue or call Ruetten. (10 RT
ia
1572.)
Years later in 1989, Ruetten reinitiated contact with appellant. He
called upon learning that she and a male friend were going to Hawaii when
Ruetten planned to visit some friends there. (9 RT 1497-98; 10 RT 1572,
Tr
ns
3.
appellant since before he got married. (Ibid.) Thereafter, they periodically got
together and had sex for about three years until appellant began her
relationship with her current husband. (9 RT 1499, 1369.) It is unreasonable
to believe that Ruetten would have reinitiated a relationship with appellant if
wife.
Jayme Weaver, a friend and fellow LAPD officer, worked with
io
appellant in 1985-1987, the alleged height of appellant's homicidal obsession.
ns
she had given him any reason to believe she had been motivated to kill his
(1 0 RT 1689-90.) She said that appellant mentioned Ruetten but not beyond
at
saying that he had been a college boyfriend and their relationship didn't work
out. (10 RT 1703-04.)
ul
Because of this evidence from Hargreaves, Ruetten, and Weaver, the

prosecutor emphasized the evidence illegally obtained from the search of
appellant's residence. (AOB 73-75.)
ib
The Evidence From Appellant's Interview Did Not

Cure The Prejudice From The Illegally Seized
Evidence.
Tr
4.
Respondent also claims that appellant made false statements reflecting

consciousness of guilt when interviewed on June 5, 2009 and that was
&
sufficient to show the Fourth Amendment violation harmless beyond a

reasonable doubt. (RB 83-84; citing People v. Williams (2000) 79 Cal.App.
4th 1157, 1167-68 (Williams).)
ls
However, the police caught defendant Williams in a van four minutes
after the armed robbery of a pizza restaurant along with the shirt, hooded
ia
sweatshirt, and gloves identified as worn by the perpetrators and the wallet of
one of the robbery victims. (Williams, supra, 79 Cal.App. 4th at 1162-63.)
Tr
When interrogated, the defendant later made the preposterous claim that he
had been carjacked by the real perpetrators of the crime. (Id. at 1163.)
In this case, the police interviewed appellant more than 23 years after
Ruetten broke off their college-based relationship and 13 years after appellant
married another man and had a family. (4 CT 741-42.) Anyone would have
difficulty in remembering when questioned out of the blue about a relationship
she was having difficulty remembering long ago. (See, e.g., 7 CT 1426
["that's a million years ago"]; 7 CT 1427-29 [They had longed stopped dating
io
Ruetten before she got married]; 7 CT 1431 ["it's been a million years ago"];
ns
and conversations long past. Thus, as appellant repeatedly told the detectives,
7 CT 1434 ["it's been so many years ago"].)
at
Respondent asserts that it was "completely implausible" that appellant

may have discouraged Ruetten from calling her after he started living with
ul
Rasmussen. (RB 83.) However, Ruetten testified that after breaking off their
relationship in June 1985, he had no contact of any kind with appellant until
Forensic Evidence Supported The Original

Detective's Conclusion Burglars Killed Rasmussen
When She Surprised Them.
Tr
5.
ib
1989 when he called her to arrange to meet in Hawaii. (9 RT 1455, 1497.)
The admission of the illegally obtained evidence also impaired the

jury's ability to find reasonable doubt of appellant's guilt based on substantial
&
evidence of third-party culpability. (AOB 80-82.)

Respondent criticizes appellant for failing to identify the "real killer."
(RB 84.) However, as explained above, the prosecution had the burden of
ls
proof on the element of identity. (People v. Hogue, S'upra, 228 Cal.App.3d at
p. 1505.)
ia
Respondent claims that the testimony of the "behavior analysis expert"
(Mark Safarik) showed that there is no reason to believe that a burglar killed
Tr
Rasmussen when she intenupted a burglary. (RB 84.) However, the detectives
- - _ -__- __ -_-_-_
fue.
in 1
____-----------'-
evidence at the crime scene and the armed burglary committed in a virtually
35
identical condominium unit nearby. (4 RT 567-68, 571; 9 RT 1471.)

The detectives' conclusion was supported by evidence that the front
door had been left unlocked, as well as substantial DNA and fingerprint
Therefore, there was a basis for a reasonable juror, unburdened with illegally
seized motive evidence, to infer third-party culpability.
io
Respondent argues that the forensic evidence does not support a
ns
evidence in the residence and Rasmussen's stolen BMW. (AOB 81-82.)
reasonable inference that others may have been involved in the crime because
at
it may have an innocent explanation. (RB 84.) However, as previously
explained, the police found multiple latent fmgerprints near and even in
ul
Rasmussen's blood in the entryway where a physical struggle occurred, in the

stolen BMW, as well as male DNA in association with Rasmussen's DNA in
the residence and in blood on door handle of the BMW. (AOB 49, 80-82;
ib
Section xxx, above.)
Alternatively, respondent suggests that appellant may not have left
Tr
fii1gerprints in the residence and BMW because she was a police officer with
knowledge of fingerprint evidence. (RB 84.) If, as respondent suggests,
appellant wiped down surfaces to eliminate her fmgerprints, the police would
&
not have found the other fmgerprints in association with Rasmussen's blood in
the residence and car. Nor is there any evidence of glove marks left in blood
ls
in the entryway or BMW.

Accordingly, a reasonable inference from the forensic evidence is that
Rasmussen was killed during an interrupted burglary as the detectives
Tr
ia
originally concluded. (4 RT 567-68, 571; 9 RT 1471.)
III.
THE TRIAL COURT ERRED BY DENYING APPELLANT'S
MOTION To TRAVERSE THE SEARCH WARRANTS AND To
A.
Introduction.
Pursuant to Franks v Delaware (1978) 438 U.S. 1 54 [57 L.Ed.2d 667,
io
98 S.Ct. 2674], appellant asked the comi to hold a hearing so she could cross-
ns
HOLD A FRANKS HEARING.
examine Detective Stearns, because his affidavit for the June 4, 2009 search
at
wa1rant provided probable cause for all of three search warrants. (4 CT 73536; 2 RT C7-8; AOB 82.)
ul
Appellant proffered evidence that Detective Stearns omitted to inform

the magistrate: that from the time Ruetten met Rasmussen in June 1984 until
ib
the February 24, 1986 homicide, he had only one contact with appellant; that
when they last met in the summer of 1985, appellant told Ruetten that their
Tr
meeting was her last opportunity to tell him how she felt about him; that
appellant thereafter did not initiate contact with or pmsue Ruetten in any way;
that appellant did not become associated with the residence to be searched
_until September 1995; that police knew that appellant had dated
current
&
husband since 1992; and that they had been married for about 13 years prior to
June 2009 and they had a young child together. (Ibid.). (4 CT 171-72.)
ls
The pa1iies agree that the issue is whether the under the totality of
circumstances to detennine affidavit, without the omitted material, establishes
ia
probable cause. (People v. Bradford (1997) 15 Cal. 4th 1229, 1297; People v.
Eubanks (2011) 53 Ca1.4th 110, 136; Illinois v. Gates (1983) 462 U.S. 213 [76
Tr
L. Ed. 2d 527; 103 S. Ct. 2317].)

Respondent contends that even "assuming" the truth of appellant's
. proffer,--the cnnl.tted infonnation was ill1l11ateflal aild could not have affected
the probable cause determination.
(RB 86-88.)
The record rebuts
respondent's position.
B.
The Omitted Facts Undercut The Alleged Motive Offered

To Justify A Search 23 Years After The Crime.
crime from 1986 to 2009. The only other justification for the belated search
offered by Detective Stearns was the motive theory, i.e., his opinion that
io
because appellant was extremely upset and devastated when Ruetten became
ns
Respondent does not dispute that there was no evidence of a continuing
engaged to and ultimately manied Rasmussen" she would have retained
at
evidence connecting her to the homicide. (6/4/09 Affidavit at 25-26.) As
explained above in Section xxx, the detective's opinion without suppmiing
ul
facts after 1986 could not provide probable cause to search.
Respondent offers a new rule of Fourth Amendment law: "As any

reasonable magistrate would have understood, when people pursue romantic
ib
relationships, they often try to cover up their vulnerabilities by falsely

projecting an attitude of strength" to show they have moved on in life after the
Tr
end of a relationship. (RB 87.) Respondent understandably cites no authority

for this proposition.
Respondent claims that the affidavit without the omitted information
&
provided probable cause to search in 2009 because of information about an

encounter between appellant and Rasmussen at the hospital in the fall of 1985
ls
and apparently at Rasmussen's residence in January 1986, although there was

no evidence of the latter presented at trial. (RB 87-88.)
Regardless, respondent fails to explain how these factual allegations
ia
established probable cause to search appellant's residence, computers, etc., in
June 2009.
To the contrary, the omitted facts show that it was not
Tr
"substantially probable that there is specific prope1iy lawfully subject to
sought. [Citations.]" (People v. Cook (1978) 22 Ca1.3d 67, 64, fn. 6.)
-8--------------------------'--
Alternatively, respondent argues that the omitted information was

immaterial because Detective Stearns did not misrepresent the facts such as
suggesting that appellant lived alone for the rest of her life, never had another
1986 to 2009. (RB 88-89.)

However, the rationale for the belated search was romantic obsession.
io
A Franks hearing is appropriate when an affiant "omits material facts with the
ns
romantic relationship, or state that appellant lived in the same residence fi.om
intent to make, or in reckless disregard of whether they thereby made, the
at
affidavit misleading." (United States v. Colkley (4th Cir. 1990) 899 F.2d 297,
300; accord People v. Bradford, supra, 15 Cal. 4th at 1297.) By omitting facts
ul
showing that no continuing obsession, the affidavit was materially misleading.

(AOB 86-87.)
ib
Respondent believes that the DNA evidence somehow rectifies the

omission of material facts. (RB 89.) Respondent again overlooks the fact
"[m]ere evidence of a suspect's guilt provides no cause to search his
Tr
residence." (People v. Gonzalez, supra, 51 Cal.3d at 1206.)

Because the contents of the affidavit without the omitted information
were insufficient to establish probable cause to search in 2009, the wanant
&
must be voided and any evidence seized pursuant to that wanant must be
suppressed." (People v. Bradford, supra, 15 Cal. 4th at 1297; Franks, 438
ls
U.S. at 155'-56.)
ia
C.
By Failing To Address The Issue, Respondent Concedes

That the Trial Court Erred In Finding That The Leon The
Good Faith Exception Overcomes Material Flaws in the
Search Warrant Affidavit.
Tr
The trial court believed that any misrepresentations or omissions in the
affidavit were overcome by the good faith exception to the exclusi.onary rule.
---
..
--
--
-----
(2 RT C13-14 [Any errors were not "significant in light of my ruling on good
faith, fi.ankly, if for no other reason."].)
However, "the good faith exception does not apply where law
enforcement is collectively at fault for an inaccurate record that results in an
unconstitutional search." (People v. Willis (2002) 28 Cal.4th 22, 49; AOB-
or judge in issuing a warrant was misled by information in an affidavit that the

affiant knew was false or would have known was false except for his reckless
io
disregard of the truth." (Leon, 468 U.S. at 923.)
Respondent did not address this claim of e1ror. (RB 85-89.) By failing
at
to do so, respondent conceded it. (Westside Center Associates v. Safeway
Stores, 23 Inc. (1996) 42 Cal.App.4th 507, 529 [failure to address an issue
IV.
ul
"effectively concedes that issue" on appeal].)
ib
As A POLICE OFFICER, APPELLANT WAS LEGALLY
Introduction.
Tr
COMPELLED To ANSWER QUESTIONS WHEN

INTERVIEWED AND, THEREFORE, AUTOMATIC USE
IMMUNITY
BARRED
ADMISSION
OF
HER
STATEMENTS IN CRIMINAL PROCEEDINGS.
A.
&
Admission at trial of appellant's videotaped interview on June 5, 2009,

violated her due process and Fifth Amendment privilege against selfincrimination because, as a police officer, she was compelled to answer the
ls
detective's questions or face employment discipline. Accordingly, she was

entitled to automatic use immunity from use of her statements at her criminal
ia
trial. (AOB 89-90; see, e.g. Garrity v. New Jersey (1967) 385 U.S. 493, 500
[87 S. Ct. 616; 17 L. Ed. 2d 562] (Garrity) [The "protection ofthe individual
under the Fourteenth Amendment against coerced statements prohibits use in
Tr
ns
89.) "Suppression therefore remains an appropriate remedy if the magistrate
_ _ _ _ _ _ _s=u=b'-"s=eguent criminal 12roceedings of statements obtained under threat Qf

removal from office, and that it extends to all, whether they are policemen or
other members of our body politic."]; Gardner v. Broderick, Police
Cmnmissioner (1968) 392 U.S. 273,279 [88 S. Ct. 1913; 20 L. Ed. 2d 1082]
["The mandate of the great privilege against self-incrimination does not
of the immunity it confers on penalty of the loss of employment."].) .

In support of this claim, appellant before trial submitted a declaration
io
stating that, when interviewed, she knew she could be disciplined for failing to
ns
tolerate the attempt, regardless of its ultimate effectiveness, to coerce a waiver
answer the detectives' questions. (5 CT 841.)
at
Respondent for the first time on appeal objects that appellant's
declaration was hearsay. (RB 103.) Respondent also argues that appellant
ul
was not legally compelled to answer questions because the detectives were
conducting a criminal investigation and they did not tell appellant that she had
ib
to answer their questions. (RB 94-95, 98.)
Respondent forfeited the hearsay objection. Moreover, several lines of

authority show that appellant was legally compelled to answer questions,
Tr
regardless of whether she was told to answer. Therefore, she had automatic
immunity for use ofher statements against her in criminal proceedings. (AOB
94, 104; see, e.g., Lybarger v. City ofLos Angeles (1985) 40 Cal.3d 822, 827
&
(Lybarger); Hester v. City of Milledgeville (11th Cir.1985) 777 F.2d 1492,

1496 ["In essence; the privilege against self-incrimination affords a form of
ls
use linmunity which, absent waiver, automatically attaches to compelled

incrimii1atii1g statements as a matter oflaw."].)
ia
B.
Respondent Forfeited Any

Appellant's Declaration.
Hearsay
Objection
To
Appellant's declaration stated that when detectives interviewed her on
Tr
June 5, 2009, she "was aware at that time that ifi did not answer questions, I
coulrrbe-subj ect to discip-Ime-byih-etos-Ai1Eeles-P51rce Bepartment : Tnis- -
discipline would consist of a wide range of penalties including suspension or
termination of employment." (5 CT 841; AOB 90.) Appellant also provided

copies of documents showing that, after her interview, LAPD began
administrative proceedings leading to her termination as a police officer. (5
On appeal, respondent objects to appellant's declaration as hearsay, but

adds that "respondent has not searched the record to determine whether the
io
prosecutor" made a hearsay objection. (RB 103.)
Respondent had a duty to cite the relevant record. (Miller v. Superior
at
Court (2002) 101 Cal.App.4th 728, 743 ['"If a party fails to suppoli an
argument with the necessary citations to the record, that portion of the brief
ul
may be stricken and the argument deemed to have been waived. [Citation.]"];
California Rules ofCouli, Rule 8.204(a)(1)(C) [Each brief must cite "to the
. volume and page number of the record where the matter appears."].)
ib
Moreover, respondent made no hearsay objection below, either in its briefing

or at the hearing. (2 RT E10-12; 5 CT 868-876.)
Tr
For both reasons, respondent forfeited any hearsay objection. (Miller v.

Superior Court, supra, 101 Cal.App.4th at 743; People v. Engstrom (2011)
210 Cal.App. 4th 174, 184 ["the People did not make a hearsay objection,
&
forfeiting the contention on appeal"].) "[W] aiver can be a two-edged sword and
in this case the second edge cuts against the People." (People v. Taylor (1993) 19
ls
Cal.App.4th 836, 851.)
C.
Use Immunity Applied Whether Or Not The Detectives Told
Appellant She Must Answer Their Questions.
ia
Respondent asselis that no authority shows that a public employee may
invoke use immunity under Garrity when the interview took place solely in
the context of a criminal investigation and the interviewer did not inform the
Tr
ns
CT 843-847.)
Respondent argues that that the "relevant statute" of the Public Safety
Officers Procedural Bill of Rights (POBR) (Gov. Code, 3303) and Van
Winkle v. County of Ventura (2007) 158 Cal.App. 4th 492) "undermine
appellant's claim." (RB 92-93.)
As to the statute, respondent relies on the language that "[t]his section
alleged criminal activities." (Gov. Code, 3303, subd. (i).)
io
shall not apply to . . . an investigation concerned solely and directly with
However, subdivision (i) means that the procedural protections for an
at
administrative investigation established by subdivisions (a)-(e), e.g.,

advisement of the nature of the investigation, permission to attend to personal
ul
physical necessities, advisement that failure to answer may result in punitive

action, interrogation at a reasonable hour, do not apply "to an investigation
ib
concerned solely and directly with alleged criminal activities." (Gov. Code,
3303, subd. (i); AOB 102-03.) _
Thus, as explained by Pasadena Police Officers Assn. v. City of
Tr
Pasadena (1990) 51 Cal. 3d 564, "Section 3303 prescribes protections that

apply when a peace officer is inteiTogated in the course of an administrative
investigation that might subject the officer to punitive action, such as
&
'dismissal, demotion, suspension, reduction in salary, written reprimand, or

transfer for purposes of punishment.' (Ibid.)" (!d. at 574.)
appellant's
privilege
against
self-incrimination
ls
Thereafter,
"preclude[ed] any use of [her] statements at a subsequent criminal
ia
proceeding." (Lybarger, supra, 40 Ca1.3 d at 82 7; citing Lefkowitz v. Turley, et

al. (1973) 414 U.S. 70, 77-79 [94 S. Ct. 316; 38 L. Ed. 2d 274], and Garrity,
supra, 385 U.S. at 500; accord Spielbauer v. County ofSanta Clara (2009) 45
Tr
Cal.4th 704,724 [Govenunent Code section3300 requires an officer to answer
-questions -but her responses may not be used:--rrm- aiQ of a crnninal

prosecution."]; AOB 98-100.)
ns
Respondent misreads the statute and the case law.
As to the case law, respondent's reliance on Van Winkle is misplaced.

That case confirms that subdivision3303(i) addresses the scope of procedural
protections for administrative proceedings, not the scope of use immunity in
subsequent criminal proceedings. Van Winkle stated that the POBR "provides
administrative investigations.
[tJ Here we hold these protections do not apply
io
to officers subject to criminal investigations conducted by their employers."

(Id. at 494.)
at
In Van Winkle, the Major Crimes Bureau (MCB) of the Ventura

County Sheriffs Department investigated whether deputy Van Winlde
ul
"committed a crin1inal offense, embezzlement of firearms." (Id..at 495.) "The

MCB conducts criminal investigations. It has no 'authority to conduct
administrative investigations or to make recommendations regarding discipline
ib
against a Sheriffs Department employee.' [Citation.]" (Ibid.)
The detective who questioned the deputy commenced the interview by
Tr
"advis[ing] him, 'This is a criminal matter, it's not [an] administrative matter
so I can't order you to speak.' After waiving his Miranda rights (Miranda v.
Arizona (1966) 384 U.S. 436-[16 L. Ed. 2d 694, 86 S. Ct. 1602] (Miranda)),
&
Van Winlde admitted he took home one of the guns which had been brought to
the station for destruction." (Id. at 496.) The district attomey's office declined
ls
to prosecute Van Winlde but the sheriffs department "fired Van Winkle."
(Ibid.)
"
Van Winkle then sought injunctive relief claiming that "that the County
ia
had violated POBRA by: (1) obtaining statements from him during the
criminal investigation without first giving him the advisements required by
that Act( 3303); and (2) by attempting to use statements he made during the
Tr
ns
certain protections for law enforcement officers who are the subjects of
the County from taking any disciplinary action against him or from using
statements he made during the criminal investigation in his civil service

hearing." (Id. at p. 496.)
The Court of Appeal disagreed because the procedural protections of
with alleged criminal activities."' (Id. at p. 497, quoting Gov. Code, 3303,
subd. (i).)
io
Thus, Van Winkle supports appellant's position that section 3303(i)
Apart From The POBR, California Law Has Long Required

Imposed A Duty On Police Officers To Answer Questions At
Pain Of Discipline For Failing To Answer.
ul
D.
at
addresses the scope of procedural for an officer in administrative questioning

but does not affect use immunity in criminal proceedings.
Long before the POBR, line of cases beginning with Christal v. Police
ib
Commission ofCity and County ofSan Francisco et al. (1939) 33 Cal.App.2d
564 (Christal) shows that appellant could be fired for failing to answer
Tr
questions even if the answers tended to incriminate her.

Respondent objects that Christal is 74 years-old. (RB 99.) However,
as discussed further below, Christal has not been overruled and state and
&
federal courts continue to cite it as a correct statement of the law. (AOB 9798.)
ls
Respondent oddly argues that Christal conflicts with the Garrity line of
cases because they held that the police could not coerce a public employee to
waive her Fifth Amendment privilege against self-incrimination. (RB 100.)
ia
Respondent misconstrues both Christf?.l and the high court cases.

Christal held that when an officer is questioned about facts within their
Tr
knowledge about a criminal matter, the officer must answer even if doing so
------_
failure to do so. (Christal, 33 Cal.App.2d at pp. 567-68; AOB 96-98.) The

45
ns
the POBRA do not apply to "'an investigation concerned solely and directly
Garrity line of cases held that the compulsion to answer at pam of
employment sanction renders a statement involuntary and inadmissible in

criminal proceedings as a matter of due process and the Fifth Amendment
392 U.S. at 279.)

Thus, the cases are in harmony rather than in conflict.
io
The California Supreme Court explained this in Lybarger, 40 Cal.3d
ns
privilege against self-incrin1ination. (Garrity, 385 U.S. at 500; Gardner, supra,
822, stating that an officer "had neither a constitutional nor a statutory right to
at
remain silent fl-ee of administrative sanction. As a matter of constitutional

law, it is well established that a public employee has no absolute right to
ul
refuse to answer potentially incriminating questions posed by his employer.

Instead, his self-incrimination rights are deemed adequately protected by
precluding any use of his statements at a subsequent criminal proceeding."
ib
(ld. at 827.)
The principal that a police officer is compelled to answer by law first
Tr
articulated by Christal continues to be the law. (AOB 97-98, discussing Titus

v. Civil Serv. Comm'n (1980) 130 Cal. App. 3d357, 364 [Christal"enunciated
the role of a law enforcement officer" and, therefore, a deputy sheriff could be
&
suspended for refusing to disclose "information necessary to a criminal

investigation." (Id. at p. 364; accord Szm.aciarz v. State Pers. Bd. (1978) 79
ls
Cal. App. 3d 904, 915; Fichera v. State Personnel Board (1963) 217
Cal.App.2d 613, 620-21; Riverside County Sheriff's Dep't v. Zigman (2008)
111
169 Cal. App. 4th 763, 768; Huppert v. City ofPittsburg (9 Cir. 2009) 574
ia
F .3rd 696, 707 [Christal "atiiculated the duties of a police officer within the
Tr
state" to disclose facts within the officer's knowledge about a crime.].)

Respondent claims that these cases are inelevant because they "had
peace officer is under legal compulsion to answer questions about criminal

4"0
matters within her knowledge at risk of employment sanction for failing to do

so, even if the answers could incriminate her. Accordingly, appellant was
entitled to use immunity for her statements in subsequent criminal
Use Immunity Applied Regardless Of Whether The

Detectives Told Appellant She Must Waive Her Privilege
Against Self-Incrimination And Be Disciplined For Failing
To Answer Questions.
io
E.
ns
proceedings. (Lybarger, 40 Cal.3d at 827.)
at
Alternatively, respondent argues that appellant was not entitled to use
immunity because the federal First Circuit has interpreted the scope of use
ul
immunity more narrowly than she does. (RB 94.)
On respondent's view, the subject of interrogation must be told (1) that

failure to waive the constitutional privilege against self-incrimination will
ib
result in discharge and (2) there must be a statute or municipal ordinance
712 F.3d 640, 645.)
Tr
mandating this. (RB 94-95, citing United States v. Palmquist (1st Cir. 2013)
As to the second point, there was two-fold legal compulsion in this

case. The definition of law "includes constitutional, statutory, and decisional
&
law." (Evid. Code, 160.) As explained above in Section D., the courts have
construed section 3303 to require answers or face administrative sanction,
ls
including job loss. (See also AOB 98-1 00.) Before the POBR, decisional law
since Christal imposed the same duty. (Christal, 33 Cal.App.2d at p. 568 [The
officers "had a constitutional right to refuse to answer under the
ia
circumstances, but it is certain that they had no constitutional right to remain
police officers in the face of their clear violation of the duty imposed upon
Tr
them."].)
- - - - - - - . _---.-----___
must tell
fisJ-p.f2int,
officer she has to waive her Fifth Amendment rights.

47
Appellant does not dispute that in some cases the public employee was
asked to waive his Fifth Amendment rights. (See, e.g., Gardner, supra, 392
U.S. 273; Unifonned Sanitation Men v. C01nmissioner of Sanitation (1968)
392 U.S. 280 [88 S. Ct. 1917; 20 L. Ed. 2d 1089].)
finding legal compulsion to answer.
ns
However, the high court has never imposed that as a requirement for
Multiple cases show that Garrity
io
provides automatic use immunity in criminal cases for legally compelled

answers, regardless of whether the interviewer told the public employee she
at
must answer questions. (AOB 106-107; Sher v. US. Dept. of Veterans Affairs
(1st Cir. 2007) 488 F.3d 489, 502, fu. 11 ["Although Garrity itself dealt with a
ul
situation in which employees were threatened with removal, any situation in

which the employee is subject to an adverse employment action is sufficient to
trigger Garrity immunity."]; Hester v. City of Milledgeville (11th Cir.1985)
ib
777 F.2d 1492, 1496 ["In essence, the privilege against self-incrimination
affords a form of use immunity which, absent waiver, automatically attaches
Tr
to compelled incriminating statements as a matter of law."]; Gulden v.
McCorkle (5th 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 Garrity fiom subsequent use of those answers in a criminal

prosecution. It is the very fact that the testimony was compelled which
ls
prevents its use in subsequent proceedings, not any affirmative tender of

immunity."]; accord Erwin v. Price (11th Cir.1985) 778 F.2d 668, 670.)
Against this weight of authority, respondent relies on United States v.
ia
Pabnquist, 712 F.3d 640. (RB 94-95.) There, the govermnent investigated
defendant Palmquist for multiple counts of criminal fiaud in obtaining benefits
Tr
:fi.om the Veterans Administration, his employer. (United States v. Palmquist,
infonned Palmquist that the investigation related to his obtaining of benefits
and read an "Advisement Of Rights (Federal Employees- Garrity)." (Id. at

644.) The advisement informed Palmquist that ofhis right to remain silent but
if he answered questions his answers could be used against him in criminal
Palmquist "without reluctance" signed an "Acknowledgment" stating

that "'I understand the warnings and assurances stated above and I am willing
io
to make a statement and answer questions voluntarily. No promises or threats
ns
proceedings and he could be fired for refusing to answer questions. 4
have been made to me and no pressure or coercion of any kind has been used
at
against me.'" (Id. at p. 644.) Palmquist also acknowledged that he understood

that the inquiry concerned his obtaining benefits from the V.A. (Ibid.) He
ul
then answered questions. (Ibid.) Given these circumstances, the First Circuit
found that Palmquist was not entitled to use immunity under Garrity. (Id. at p.
ib
645.)
Appellant has no problems with this outcome of Palmquist given the

advisements and signed waiver of rights.
Tr
Respondent seizes on the statements in Palmquist that '"In all of the

cases flowing from Garrity, there are two common features: (1) the person
being investigated is explicitly told that failure to waive his constitutional right
&
against self-incrimination will result in his discharge from public employment

(or a similarly severe sanction in:lposed in the case of private citizens); and (2)
ls
there is a statute or municipal ordinance mandating such procedure."' (I d. at
Tr
ia
4. The Advisement in pe1iinent pa1i stated that he had the right ''to remain
silep.t if your answers may tend to incriminate you" but that if he answered
questions, "' [a]nything you say may be used as evidence in both an
administrative proceeding or any future criminal proceeding involving you."'
(Id. at p. 644.) In addition, '"If you refuse to answer the questions posed to
you on the grounds that the answers may tend to incriminate you, you cmmot
your silence c-mrbeo-considered in an administrative proceeding for any evidentiary value that is
wananted by the facts surrounding your case."' (Ibid.)
p. 645, quoting United States v. Indorato (1st Cir. 1980) 628 F.2d 711, 716.)
However, not "all" cases in fact so hold. Respondent otherwise
recognizes (RB 95) that other cases hold that the defendant is entitled to use
loss of job and this belief ... [was] objectively reasonable." (United States v.
Frederick (D.C. Cir. 1988) 842 F.2d 382, 295; accord United States v.
io
Vangates (11th Cir. 2002) 287 F.3d 1315, 1322.)

The Sixth Circuit has similarly held that use
applies if a
at
police officer "reasonably believed that [the employer] would impose

substantial penalties on him- such as job loss or disciplinary sanctions -if he
ul
refused to answer the questions put to him in the . . . interview, he was

compelled to incriminate himself in violation of the Fifth Amendment."
(McKinley v. City of Mansfield (6th Cir. 2005) 404 F.3d 418, 436, citing
ib
Lejkowitzv. Cunningham (1977) 431 U.S. 801,805-806 [97 S. Ct. 2132; 53 L.

Ed. 2d 1].)
Tr
Here, appellant's declaration shows that she "was aware at that time
that if I did not answer questions, I could be subject to discipline by the Los
Angeles Police Department. ... This discipline would consist of a wide range
&
of penalties including suspension or termination of employment." (5 CT 841;

AOB 90.) This belief was objectively reasonable based on statute (Gov. Code,
ls
3300) and Christal line of case, as well as the fact that the LAPD thereafter
commenced termination proceedings against her. (5 CT 842-47.)
Accordingly, appellant was entitled to automatic use immunity for her
ia
statements in criminal proceedings, regardless of whether detectives told her
Tr
she must answer their questions.
ns
immunity if she "in fact believed [her] statements to be compelled on threat of
F.
Administrative Removal Proceedings Need Not Have

Commenced For There To Be Legal Compulsion To Answer
Questions.
of an administrative complaint against appellant meant that appellant

was not compelled to answer. (RB 103.)
io
Respondent failed to address the case pited by appellant showing that
ns
Respondent next argues that the trial court properly concluded that the
an LAPD officer must answer questions even before administrative
at
proceedings had commenced. (AOB 103-04; City ofLos Angeles v. Superior
Court (1997) 57 Cal.App.4th 1506, 1514 [affirming the Superior Court's

ruling that "an investigation was underway in this case" when the lieutenant
ul
questioned an LAPD officer before filing a personnel complaint with internal

affairs].)
The Transcript Of The Interview Does Not Show That

Appellant Waived Use Immunity.
ib
G.
Tr
Finally, respondent contends that the transcript of appellant's interview

shows that she did not actually or reasonably believe that she would suffer any
punitive action if she refused to answer questions.
(RB 95-97, 103.)
&
Respondent notes that the detectives said that they were investigating an old
crin1inal case, that appellant complained that she should not be a suspect but
ls
never tried to leave the room, and that appellant did not accuse the detectives
of violating the advisement rules for administrative proceedings.
(Ibid.)
Respondent emphasizes that "at the end of the interview" (RB 97) appellant
ia
said "I know how this stuff works .... " (7 CT 1503.)
However, the interview transcript does not show waiver of use
Tr
immunity provided by her right to due process and her Fifth Amendment
------.
the privilege against self-incrimination where a public officer answers
..
questions at pain of employment sanction for refusal to answer. (See Section

E., above; see, e.g. Gardner, supra, 392 U.S. at p. 279 ["The mandate of the
great privilege against self-incrimination does not tolerate the attempt,
confers on penalty of the loss of employment."].)
ns
regardless of its ultimate effectiveness, to coerce a waiver of the immunity it
Moreover, appellant made the statement ("I know how this stuff
io
works")atthe end ofthe interview (7 CT 1503) when it had become apparent

that she was the target of the investigation, and that the detectives were not, as
at
they told her, simply seeking "background" information.
The detectives began the interview by stating that they had "been
ul
assigned a case" and "there's some notes ... as far as your name being
mentioned." (7 CT 1422.) They said the case involved John Ruetten and
asked appellant whether she knew him. (7 CT 1422-23.) Then they said that
ib
the case related to Ruetten's wife and asked whether appellant lmew her. (7
CT 1423-24.) They had called her into an interview room at the jail because
Tr
they didn't want "the rumor mill or gossip" to start from things overheard in
the squad room. (7 CT 1425.)
The detectives latter emphasized that they were questioning appellant
&
because "we're trying to get some background. We're trying to figure this out.
I mean this is from a long time ago." (7 CT 1462.) They were "getting into
ls
some pretty personal stuff' so they "didn't want to take the risk" of
interviewing appellant in an interview room where someone "sees on a
ia
monitor or hears" what they were taking about. (7 CT 1462-63.)

When the questions became accusatory, appellant stated that she had
been answering questions with the understanding that she was assisting the
Tr
detectives by providing background information. (7 CT 1500 ["I'm trying to
bive-you-som-e-b-a-c-kgromrd-of--:---:---:--how-I-Imow-him-[Ru-ettenj:'-'j-:]-A-ppeHan-t-------------,--
stmied to hesitate when she became aware that they considered her a suspect.
5
(See, e.g. 7 CT 1499 [If"you're saying, hey, I'm a suspect, well, now, I got a
problem with you, you know, now, you're accusing me of this? Is that what.
you're saying?"]; 7 CT 1501 ["Well, now, you're staring to make me
Appellant then stated, "I know how this stuff works." (7 CT 15 01.)
When the detectives said "we may have some DNA at the location", appellant
io
responded, "I guess I'm going too have to contact somebody", repeated, "I
know how this stuff works," and then stopped answering questions and left the
at
room. (7 CT 1503-04.)
The sequence of events shows that appellant understood that she was
ul
required to provide background information. The fact that she also knew to
assert her right to remain silent and seek counsel when the detectives
ib
effectively accused her of committing the murder does not eliminate her right
to use immunity for the prior answers at pain of adverse employment action.
The Error In Admitting The Evidence Of Appellant's

Interrogation Was Prejudicial To Her Defense.
Tr
H.
Respondent contends that any e1ror in admitting evidence of appellant's

interview was harmless beyond a reasonable doubt based on the reasons given
&
in response to Argument II., in essence the DNA and motive evidence. (RB
104.)
ls
Appellant has addressed these issues. (See Section xxx, above; AOB
73-81.)
Here appellant emphasizes two points.
First, additional DNA
ia
evidence as well as fmgerprint and firearm evidence supported a reasonable

doubt that appellant rather than a burglar committed the crime. (AOB 80-81.)
Second, respondent ignores the prosecutor's emphasis on the evidence
of appellant's interview during closing jury argument. The prosecutor played
Tr
ns
uncomfortable."].)
-several-excerpts
2999-3002.) On this basis, the prosecutor asserted that appellant showed
consciousness of guilt and false evasions about her putative obsession with
Ruetten. (Ibid.)
"There is no reason why we should treat this evidence as any less
(People v. Cruz (1961) 61 Cal.2d 861, 868.) Accordingly, respondent has
failed to show that admission of the interview in evidence was "harmless
io
beyond a reasonable doubt." (Arizona v. Fubninate (1991) 499 U.S. 279,295-
ns
"crucial" than the prosecutor-- and so presumably the jury -- treated it."
96 [111 S. Ct. 1246; 113 L.Ed.2d 302]
at
v.
Introduction.
ib
A.
ul
THE TRIAL COURT ERRED BY DENYING APPELLANT'S

REQUEST To HOLD A KELLY-FRYE HEARING AND BY
ADMITTING EVIDENCE OF LOW COPY DNA TESTING
USING MiniFiler.
Before trial, appellant requested Prong 1 and Prong 3 Kelly/FJye
Tr
hearings on the admissibility of evidence of testing low copy number DNA

samples using the "AmpFISTR MiniFiler" (hereafter ''MiniFiler") testing
methodology. (AOB 108; 6 CT 1095-96, citing People v. Kelly (1976) 17
(Frye).)
&
Cal.3d 24 (Kelly) and Frye v. United States (D.C. Cir. 1923) 293 F. 1013
In pertinent part, SERI (the Serological Research Institute in
ls
Richmond, California) had used MiniFiler for typing DNA on pieces of

broken fingernails found in the entryway of Rasmussen's residence where
blood evidence showed that a physical struggle had occmTed. (AOB 115-116;
ia
12 RT 1940-41, 1944, 1947-48; 4 RT 491-93, 495-96.)

Respondent argues that the trial court,properly denied a Prong 1 hearing
Tr
because the MiniFiler testing at issue is just a variant of a standard DNA test
courts. (RB 104, 108, 114.) As to a Prong 3 hearing, respondent contends that
_ _ _ _ _ _ __
appellant forfeited this claim by failing to obtain a ruling on that issue. (RB
117.) Appellant addresses these issues in turn.
B.
SERI Conducted Low Copy DNA Testing.
Fedor of SERI) conducted LCN testing using MiniFiler. However, Fedor

testified that the defense expert observed the testing he conducted at SERI.
io
(12 RT 1922.) The offer of proof from the defense expert was that SERI
performed LCN testing using MiniFiler. (6 CT 1105.) The prosecution did
at
not dispute this below. (6 CT 1121-26.)
The Conflict In The Scientific Literature Shows That A

Prong 1 Hearing Was Required To Determine Whether The
MiniFiler Testing At Issue Has Gained General Scientific
Acceptance.
ul
C.
ib
In opposition to appellant's request for a Prong 1 hearing, the

prosecution submitted two articles by the same group of authors (collectively
Tr
"the Study") purporting to show general scientific acceptance ofMiniFiler

testing ofLCN DNA samples. (6 CT 1141-1153.) The trial court declined to
hear proffered testimony from the defense expert to show that this was not the
case.
(AOB 114-115; 3 RT 11-6.)
Instead, it accepted the Study as
&
conclusive proof of general scientific acceptance. (3 RT 15.)

In and of itself, the trial court's refusal to hear evidence from the
ls
defense expe1i was enor. 5 (AOB 117-122.) To exercise discretion, "all" of

the relevant facts "must be both known considered," not just those favorable to
ia
one pmiy. (People v. Rist (1976) 16 Cal. 3d 211, 219 ["To exercise the power
Tr
ofjudicial discretion all the material facts in evidence must be both known and
5. Respondent suggests that appellant's claim is that the trial comi erred by
not doin.g aclditionaJ resea.rch in the scie11tific-literatute:
Appellant's claim is that the court ened by refusing to receive evidence
offered by the defense expert.
55
ns
Respondent initially disputes whether the prosecution expert (Thomas
considered, together also with the legal principles essential to an informed,

intelligent and just decision."].)
The defense expert proposed to explain how MiniFiler testing
DNA samples at issue in this case, that the Study .failed to resolve five issues,
including the lack of general scientific acceptance for low copy DNA testing
io
as conducted by SERI in this case, and also why a prong three hearing was
ns
differed from other DNA testing, particularly when applied to LCN mixed
necessary. (AOB 110-114.)
at
Respondent offers no valid reason for the trial court's failure to hear
from the defense expert. Instead, respondent offers as an attachment to its
ul
brief a "technical note" from the Journal of Forensic Sciences. (RB 111,
discussing Mulero, et al., Development and Validation of the AmpFister
MiniFiler PCR Amplification Kit: A MiniSTR Multiplex for the Analysis of
ib
Degraded and/or PCR Inhibited DNA (2008) J. Forensic Science 838,

hereafter "Mulero, et al." or "the Mulero study".) Respondent argues that this
Tr
additional study is "con-oboration" that the trial court con-ectly concluded that
I
the "MiniFiler testing at issue was generally accepted in the relevant

scientific community." (RB 112.)
&
There are multiple reasons to reject respondent's claim thatthe Mulero

study is dispositive. The proffered testimony by the defense expert and the
ls
additional studies discussed in appellant's opening brief show that testing of

LCN mixed DNA samples with MiniFiler has not achieved general
scientific acceptance. (AOB 110-14, 119-121.)
ia
The Mulero study itself recognized that "low level DNA analysis. is
highly susceptible to stochastic effects and can result in allele drop-outs, allele
Tr
drop-ins, imbalance of heterozygote peak height and area, inconsistent peak
(Mulero, et al., at p. 838.)
---------
The articles cited by appellant reached the same conclusion, particularly

where, as here, MiniFiler was used to testmixedLCN samples. (AOB 119121; see, e.g. Budowle et al., Low Copy Number -- Consideration and
available athttp://wwvv.promega.com; Butler, Forensic DNA Typing, Second
Edition: Biology, Technology and Genetics ofSTR Markers (Academic Press
io
2005) (hereafter "Butler") at p. 168; Bright, et al., Determination of the
Variables Affecting Mixed MiniFiler DNA Profiles (November 2011) 5
at
Forensic Sciences International: Genetics 381.)
Appellant also cited a recent survey of the scientific literature stating
ul
that "[i]t is now well accepted in the scientific community that STR tests
become unreliable when used to type samples containing too little DNA."
ib
(Thompson, Mueller, and KTane, Forensic DNA Statistics: Still Controversial
In Some Cases (2012) 36 Champion 12, 14, emphasis added, citing Budowle,
et al., supra.) Respondent notes that Laurence Mueller was one of three co-
Tr
authors of that article and cites cases criticizing Dr. Mueller's "credibility and
qualifications." (RB 116.)
However, respondent fails to dispute or to distinguish the scientific
&
studies discussed in the survey ofthe literature or dispute the qualifications of

the other two co-authors of the survey of the relevant literature.
ls
More fundamentally, overlooks the relevant distinctions made in the

Mulero study supporting appellant's position that Prong 1 and Prong 3
ia
hearings should have been held in this case.

First, the Mulero study focused on genotyping of artificially degraded
DNA samples made "by sonicating" otherwise nonnal DNA samples provided
Tr
by other labortories. (Mulero, et al., at pp. 838, 842.) Respondent fails to
-slow-that-the-DNA -collectedZfffi:e cnme-scene and-=-resteclmore tb:an-2(}year later was comparable.
ns
Caution, Proc. 12th International Symposium on Human Identification (200 1),
Second, the Mulero study confirmed the proffered testimony by the

defense expert (6 CT 1105, 1156; AOB 111, 112) of the presence of"stutter
products" with MiniFiler when using 30 rather than 28 amplification cycles
ul
at
io
"Stutter products are the result of strand slippage during PCR

amplification. The most common stutter is one unit length
smaller than the true allele resulting in a product that could be,
for example, four bases smaller for the teranucleotide repeat
markers in the MiniFiler kit. . . . On average, the stutter
product formation for MiniFiler is slightly higher than for the
Identifiler kit. This coulq be due to the higher number of
amplification cycles for the MiniFiler kit (30 vs. 28 cycles).
Alternatively, the MiniFiler kit has a higher concentration of
MgCb in the amplification reaction potentially contributing to
more slippage events by the polymerase." (Id. at p. 844,.
citations omitted.)
ns
for extracted DNA as used with Identifiler. (MUlreo, et al., at p. 844.) -
ib
This shows that LCN testing with MiniFiler creates interpretive

problems not seen with accepted Identifiler testing.
Tr
Third, the concluding comment- about the effect of the "higher

concentration of MgCb" in the MiniFiler test kit confirms the defense
position that its chemistry differs from accepted DNA testing. (AOB 110-11;
&
6 CT 1105.
Fourth, when examining mixed samples, the Mulero study used 1 ng
(nanogram) of DNA. (I d. at p. 842 ["Mixtures of two DNA samples were
ls
exan1ined at various ratios (1:1, 1:3, 1;7, 1:10, and 1:15) while holding the
total amount of input DNA constant at lng. "].) LCN DNA testing addresses
ia
. samples where the amount of DNA is less than 200 picograms. (United States
Williams, 2009 U.S. Dist. LEXIS 130524 at p. *7 ["Low copy number is
Tr
usually associated with a low amount of DNA (less than200 pg). "'],citation
omitted.) "There are 1,000 12icograms in one nanog=ra=n=1'---"__,__(U=-n'-'-z'-'-te.::.. :d'-'-=S-'-'ta-'-'-t-'-'es'--v._ _ _ _ _ _
Davis, supra, 602 F.Supp.2d at pp. 668, fn. 12.)
Therefore, by using 1 ng of DNA for the mixed samples, the Mulero

study tested approximately five times the amount present in LCN testing,
which affects the reliability ofthe results. (AOB 119-121; Budowle et al.,
Symposium
on
Human
Identification
(200 1),
available
at
http://www.promega.com ["Mixture analyses and confirmation of a mixture
io
are not reliable with LCN typing, because .. . imbalance of heterozygote
ns
Low Copy Num.ber -- Consideration and Caution, Proc. 12th International
alleles, increased production of stutter products, and allele drop in can occur."
at
Butler, Forensic DNA T)ping, Second Edition: Biology, Technology and

Genetics of STR Markers (Academic Press 2005) at p. 168.) As explained
ul
above, respondent ens by asserting that LCN testing was not conducted in this
case.
ib
Fifth, when testing mixed samples, the Mulero study found some
instances where stutter from the major contributor of DNA to the mixture
would overlap and mask a minor contributor that was actually present in the
Tr
sample. (Mulero, et al., supra, at p. 848 ["Most of the alleles at each locus for
the two individuals are
different and thus do not overlap; however, some
.
.
alleles of the minqr contributor do reside at stutter positions of alleles from the
&
major contributor."].) Whether or not a minor contributor could be detected

depended on the ratio of the major to the minor contributor in the mixed
ls
sample, with partial results with ratios greater than 1:10, i.e., when the amount
of the DNA from the major contributor was 10 times greater than the minor
ia
contributor. (Ibid.)
In sum, whatever the merits of the Mulero study within its limits, it
does not negate the existence of a substantial dispute as to the validity and
Tr
reliability ofMiniFiler testing at issue in this case.
D.
The Fact That MiniFiler Testing Uses Polymerase Chain

Reaction (PCR) Of Short Tandem Repeats (STRs) OfDNA
Did Not Eliminate The Need For A Prong 1 Hearing.
prong analysis is not made gratuitous simply because the new teclmique or
procedure is part of an overall process. Kelly may apply not only to the whole,
io
but also the part of the process that is now perfom1ed with a new teclmique."
ns
Appellant explained in her opening brief (AOB 125) that "Kelly first
(People v. Henderson (2003) 107 Cal.App.4th 769, 780, citing, inter alia,
at
People v. Leahy (1994) 8 Cal.4th 587, 605 ["Kelly/Frye only applies to that
limited class of .expert testimony which is based, in whole or part, on a
technique, process, or themy which is new to science and, even more so, the
ul
law."]; People v. Reeves (2001) 91 Cal.App.4th 14, 31 [Prong one hearing

held on general acceptance of product rule, the final step ofPCR analysis].)
ib
Respondent asserts that Henderson is inapplicable because "the DNA

expert did not rely on a distinctly new technique" but "merely used an
Tr
incrementally new application of the same generally accepted technique."

(RB 112.)
Appellant's response is short and simple: if this assertion was true, no
&
validation studies would have been required and then would be no conflict
within the scientific literature as to the validity of LCN testing of mixed
samples using MiniFiler. In her opening brief, appellant detailed the.
ls
differences between accepted Identifiler testing and the MiniFiler testing

conducted in this case. (AOB 110-11.) Here, appellant reiterates that Orchid-
ia
Cellmark, the manufacturer of MiniFiler differentiated it fi:om prior
PCR/STR test kits because MiniFiler was the "world's first" DNA test kit to
Tr
test for "miniSTR" at eight loci. (6 CT 1102, 1105; AOB 110.)
E.
The New York State Case Relied On By Respondent Does

Not Show That LCN Testing Of Mixed DNA Samples With
Minifiler Has Received General Scientific Acceptance.
County, 2013) 39 Misc.3d 482 [963 N.Y.S.2d 517] ("Garcia") shows that a
Kelly-Frye hearing was unnecessary. (RB 114.) Respondent fails to note
io
substantial differences between Garcia and this case.
First, Garcia and the case it relied on were decision by the county-level
at
Supreme Comi in New York state. (Garcia, 39 Misc.3d at p. 486, citing

People v Megnath (N.Y. Supreme Comi, Queens County, 201 0) 27 Mise 3d
ul
405 [898 N.Y.S.2d 408] .) Those cases are the equivalent to a decision by the
appellate division of a California Superior Comi that do not have precedential
ib
weight outside trial comis in their respective county. (People v. Holley (1993)
157 Misc.2d 402, 404 [596 N.Y.S.2d 1016] [A New York court is bound by
rules of precedent to follow state level Appellate Division rather than county
Tr
Supreme Court cases]; People v. Corners (1985) 176 CA3 139, 146 ["Of
course, a decision of the Appellate Department of the San Francisco Superior
Comi is not binding upon the Butte County Superior Court nor upon this
&
comi."].) To fmd legal acceptance of admission of scientific evidence requires

"a published appellate decision," meaning a decision of state-wide precedence.
ls
(People v. Kelly, supra, 17 Cal.3d at p. 32

Second, in Garcia, the defendant's request for a hearing was "not
ia
suppmied by sufficient credible evidence demonstrating that . . . [low copyJ

DNA testing ... when properly perfonned, is generally not acceptable in the
scientific community." (Id. at p. 484.) Appellant's offer of proof by the
Tr
defense expe1i, as well as the scientific literatme, provided credible evidence
that the-testing at issuedhere-has not received general scier1tiric- acceptanc-e:

(AOB 110-114, 119-121.)
ns
Respondent contends People v. Garcia (N.Y. Supreme Court, Bronx
Respondent notes that Garcia stated that, "[g] eneral scientific

acceptance does not mean unanimous acceptance." (Garcia, 39 Misc.3 d at p.
485.) However, the California Supreme Court's view is that "resolution of the
cross-section of the scientific cmmnunity, including representatives, ifthere

are such, of those who oppose or question the new teclmique." (People v.
io
Kelly, supra, 17 Ca1.3d atp. 37.) By refusing to hear fi:om the defense expert,
ns
general acceptance issue would require consideration of the views of a typical
the trial court in this case erred in fmding general scientific acceptance based
at
only on the proffer of the prosecution.
Third, Garcia stated that the analyst from theNew York City Office of
ul
the Chief Medical Examiner ("OCME") conducted "Low Copy Number

(hereinafter LCN) DNA testing." (Garcia, 39 Misc.3d at p. 483.) However,
the opinion does not identify the test kit used.
(Ibid.)
Therefore, it is
ib
impossible to conclude that in this case and Garcia we are comparing apples
to apples. Even assuming some precedential weight for Garcia, it does not
Tr
resolve the present issues unless the same "procedures and interpretive
methods" of DNA testing were used. (United States McCluskey (D.N.M.
2013) 2013 U.S. Dist. LEXIS 88728 at p. *154.)
&
Fourth, the "OCME's own validation studies ofLCN DNA testing were
examined and certified by the New York State Cmmnission On Forensic
ls
Science (NYSCFS) in 2005. OCME is also audited yearly by the National

Forensic Science Teclmology Center (NFSTC), an outside agency that
ia
develops standards and programs for . the accreditation of all public

laboratories in New York State. It too approved the protocols developed by
OCME for LCN DNA testing." (Garcia, 39 Misc.3d at p. 487, citations
Tr
omitted.)
SER:I was
.---------c-
(12 RT 1919.) However, there is no evidence thatLCNMiniFilertesting of
mixed samples conducted by SERI has been similarly audited and certified as
in Garcia.
Fifth, respondent notes (RB 114) that Garcia stated that results ofLCN
courts in Germany, The United Kingdom, Sweden and Switzerland. (Garcia,

39 Misc. 3d at p. 487.) However, the opinion fails to identify what test kit was
testing was comparable to the MiniFiler testing in this case.
Although Not Controlling, McCluskey Supports Appellant's

Position That The LCN Testing In This Case Has Not
Achieved General Scientific Acceptance.
ul
at
F.
io
used in the cases from other countries or New York trial to show that the
Finally, Respondent recognizes that in United States McCluskey

(D.N.M. 2013) 2013 U.S. Dist. LEXIS 88728, the court concluded that the
ib
LCN testing conducted in that case was insufficiently reliable to be admitted

in evidence under the standards of Daubert v. Merrell Dow Pharms., Inc.
Tr
(1993) 509 U.S. 579 [113 S. Ct. 2786; 125 L. Ed. 2d 469] and Federal Rule of
Evidence 702.
The defendant in McCluskey filed a pretrial motion to exclude evidence
&
of LCN testing of a swab taken of the base of the magazine of a handgun.

(McCluskey, supra, 2013 U.S. Dist. LEXIS 88728 at pp. *3, *144.) The
ls
defendant argued that LCN DNA testing was '"not considered generally
reliable even in the forensic science community.'" (!d. at p. 144.) McCluskey
agreed:
"Although Rule 702 and Daubert set a relaxed standard for
ia
admissibility, the Goverrunenthas not demonstrated that [prosecution expert]
Davis's testimony onLCN testing is 'scientifically valid' and 'properly can be
Tr
applied to the facts in issue.' Daubert, 509 U.S. at 592-93. The Court
andmethods.' [Fed. R. Evid,] Rule 702(c)." (!d. atp. *175.)
ns
testing had been admitted in New York state trials over 125 times and in
McCluskey noted that the New York cases relied on by respondent had
admitted such evidence. However, "[m]ost laboratories in the U.S. do not
perform LCN testing" and "the New York City Office of the Chief Medical
testing," although several private and academic laboratories in the U.S.
ns
Examiner (NY OCME) is the only government facility cunently using LCN
perform LCN testing." (I d. at p. *146-47.) Thus, McCluskey shows that the
io
OC:ME is the outlier rather than the norm for testing in criminal prosecutions.
In a confusing discussion, respondent argues that McCluskey erred by
at
conflating the concepts of"peak height imbalance of some alleles" and "the
threshold for relative fluorescent units or RFUs." (RB 115.) However, the
ul
government's analyst herself linked the two concepts as .relevant to

determining whether the DNA tested reflected a "normal" heterozygous
sample, i.e., with peak heights reflecting a roughly equal contribution from
ib
both parents. If not, the results may reflect stochastic effects (McCluskey,
supra, 2013 U.S. Dist. LEXIS 88728 at pp. *162-63 ["Davis testified that to
Tr
determine whether she obtained a reliable profile from 1B23B, she looked for
peak height balance between the 'called alleles' (those represented by peaks
above the 100 RFU threshold). Davis testified that, if the peak heights at
&
heterozygous loci are within a70% ratio, thatshows her that she has 'what we
would call a nom1al sample, or just something that's not showing stochastic
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effects."'], citations omitted.)

Respondent also criticizes McCluskey for considering whether an allele
ia
rejected by the analyst as a stochastic effect rather than real would,

nevertheless, have been considered eligible for entry into the F.B.I. database of
DNA profiles, the Combined DNA Index System or CODIS, and therefore,
Tr
evidence of the presence of additional DNA. (RB 115;)
sufficiently reliable to be admissible evidence. (Ibid.)
On respondent's
However, McCluskey correctly explained why this is relevant to the

question of reliability. "The Identifiler kit, after review and evaluation by a
panel ofFBI personnel, was approved and accepted for use by NDIS (National
System). These studies and the acceptance by CODIS also tend to support a
finding of general acceptance, the fomih factor listed by Daubert."
io
(McCluskey, supra, 2013 U.S. Dist. LEXIS 88728 at pp. *95-96, record
ns
DNA Index System), which is part of CODIS (Combined DNA Index
citations omitted.)
at
Moreover, McCluskey reviewed the scientific literature and noted

studies showing that LCN DNA testing "may yield umeliable and
ul
nmrreproducible results because of the significant increase in stochastic

effects. See, e.g., Peter Gill, Application ofLow Copy Number DNA Profiling,
ib
42(3) Croatian Med. J. 229, 229-30 (2001). LCN testing carries a greater
potential for error due to difficulties in analysis and interpretation caused by

four stochastic effects: allele drop-in, allele drop-out, stutter, and heterozygote
Tr
peak height imbalance. John M. Butler, Fundamentals of Forensic DNA
Typing 331 (20 10). 'Trying to generate a reliable STR profile with only a few
cells from a biological sample is similar to looking for an object in the mud or
&
trying to decipher the image in a fuzzy photograph.' Jd." (Id. at pp. 145-46,
record citations omitted.)
ls
A "number ofleading authorities in the field take the position that LCN
testing is not reliable." (Id. at pp. 156-57, citing Bruce Budowle, Low Copy
ia
Number Typing Still Lacks Robustness and Reliability, available at

http://www. prom ega. com/resources/miicles/profiles-in-dna/
low-copy-
number-typing-still-lacks-robustness-and-reliability (20 10).) Although the
Tr
Govenm1ent cites some authorities as suppmiing the reliability ofLCN testing,
- these authorities -are-
usl:ilgQ1fferent-proceclures -ana -
methods than the NMDPS Lab; these authorities therefore do not demonstrate
that the NMDPS Lab's procedures and methods yield reliable results." (ld. at
p. 157, emphasis added.)
The same criticism applies to respondent's reliance on studies from
and methods as SERI in this case.

Finally, McCluskey confirms "that problems with LCN testing are
io
exacerbated with mixed samples" (id. at p. *182) as found on the fingernail
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other laboratories without demonstrating that they used the same procedures
samples tested using MiniFiler in this case. (12 RT 1944 [From the broken
at
fingemail, Fedor obtained only "weak and incomplete results indicating a

mixture from at least three people."].) A leading study cautioned that '"minor
ul
contributor alleles in this situation [of mixed samples] could be experiencing

stochastic sampling (allele drop-out, etc.) as well as allele masking by the
taller major contributor alleles. This fact is important to keep in mind when
ib
working with DNA mixtures."' (I d. at p. 182, quoting Jolm M. Butler,

Advanced Topics in Forensic DNA Typing: Methodology 334.)
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For all these reasons, respondent failed to show that Garcia case it
relied should be followed where McCluskey shows a lack of general scientific
acceptance for the testing of mixed, LCN DNA as found in the fingernail
Appellant Did Not Forfeit Her Claiin That The Trial Court
Erred By Failing To Hold A Prong 3 Hearing.
ls
G.
&
evidence in this case.
Respondent contends that appellant forfeited her claim that the court
ia
should have held a Prong 3 hearing, i.e., to determine whether correct

scientific procedures were used in the MiniFiler testing conducted by Fedor.
(AOB 126, citing People v. Roybal (1998) 19 Cal. 4th 481, 505.) Respondent
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asse1is that appellant forfeited her claim by failing to secure a ruling from the
However, the record shows that the trial comi denied appellant's
6-6
request for a prong three hearing. It concluded that a Prong 3 hearing was
unnecessary because People v. Hill (200 1) 89 Cal.App.4th 48 (Hill) affirmed
holding an Evidence Code section 402 hearing before the expert testified in
Hill because it authorized the alternative procedure because the proponent of
the evidence made a "'foundational showing that correct scientific procedures
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were used."' (People v. Hill, supra, 89 Cal.App.4th at p. 58, quoting People v.

Barney, supra, 8 Cal. App. 4th at p. 825; AOB 126-127.)
at
Moreover, "[s]ince the third prong of the Kelly test requires case
specific proof that correct procedures were employed, it crumot be satisfied by
ul
relying on a published appellate decision." (People v. Morganti, supra, 43

Cal.App.4th atp. 661, citing People v. Barney, supra, 8 Cal. App. 4th atp. 824
ib
[rejecting claim that general acceptance established by a published appellate

decision "should extend to and subsume the third prong of Kelly-Frye"].)
For both reasons, appellant's claim of error for the denial of a Prong 3
H.
Tr
hearing is properly before this court.
Admission of the MiniFiler Test Results Violated

Appellant's Due Process Rights.
&
Absent general scientific acceptance of MiniFiler testing of low

copy, mixed DNA samples, admission of evidence of the test results violated
ls
appellant's state and federal constitutional rights to due process oflaw and to a
fair trial. (AOB 127-29; Cal. Const., Art. I, 7, subd. (a), 15; U.S. Const.,
ia
5th & 14th Amends.; see, e.g. Bruton v. United States (1968) 391 U.S. 123,
131 fn6 [88 S.Ct. 1620; 20 L.Ed.2d 406] ["An important element of a fair trial
is that a jury consider only relevant and competent evidence bearing on the
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issue of guilt or innocence."].)
-----------In-her-opening-brief, appellant-noted -cases applymg-the state law

standard of prejudice to claims of error in admitting scientific evidence that
67
ns
lieu of a Prong 3 hearing. (J RT L4, 6.) The trial court erred in relying on
had not achieved general acceptance. (People v. Kelly, supra, 17 Cal.3d at p.

40, citing People v. Watson (1956) 46 Cal.2d 818, 836; accord People v.
Venegas, supra, 18 Cal.4th at p. 93.) Respondent seizes on this to argue that
appellant's federal due process rights were not violated by the enoneous
nor Venegas addressed a federal due process claim. (People v. Kelly, supra,
io
17 Cal.3d 24; People v. Venegas, supra, 18 Cal.4th 47.) Therefore, those
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admission ofumeliable DNA evidence. (RB 117 -18.) However, neither Kelly
cases have no application to this issue. (People v. Heitzman (1994) 9 Cal.4th
at
189, 209 ["It is well settled that a decision is not authority for an issue not
considered in the court's opinion."].)
ul
Respondent notes that violations of state rules governing the admission

of evidence generally do not rise to a violation of due process. (RB 118, citing
People v. Fuiava (2012) 53 Cal.4th622, 696-97, andPerryv. New Hampshire
[132 S.Ct. 716, 723; 181 L.Ed.2d 694].) However,
ib
(2012) 565 U.S. _
neither case addressed the enoneous admission of scientific evidence.
Tr
In People v. Fuiava, supra, the defendant argued that pennitting the

prosecution to offer evidence of his character for violence after he presented.
evidence of the victim's character for violence pursuant to Evidence Code
&
section 11 03(b )) violated his federal constitutional rights to due process and to
a fair trial. (People v. Fuiava, supra, 53 Cal.4th at p. 695.) The California
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Supreme Comi rejected this claim because the statute was designed to
"create[] a level playing field between prosecutors and defense attorneys, and
ensure[] that juries are given a complete picture of both the defendant's and
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victim's character." (Id. at p. 696.) Appellant similarly seeks a level playing
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field with regard to the handling of DNA evidence.

InPeny v. New Hampshire, supra, the defendant argued that admission
------------.oT-evi:denc-e-of-m1--eyewitrress-i-dentificati-on-of-him--as---the-b-I-ack--man-who----------'committed a burglary violated his right to due process because the

()
identification was made while it was dark, he was the only black man present,
and he was standing outside the victim's residence next to a police officer.
(Perry, supra, 181 L.Ed.2d at pp. 703-04, 705.)
goveming admissibility of lineup evidence, "[w]hen no improper law

enforcement activity is involved, we hold, it suffices to test reliability through
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the rights and opportunities generally designed for that purpose, notably, the
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Perry rejected this due process claim because, under its precedent
presence of counsel at postindictment lineups, vigorous cross-examination,
at
protective rules of evidence, and jury instructions on both the fallibility of

eyewitness identification and the requirement that guilt be proved beyond a
ul
reasonable doubt." (Id. at p. 703.)
However, the unreliable scientific evidence differs from character
ib
evidence or testimony by a percipient witness which jurors are capable of

evaluating on their own.
In contrast, the Kelly/Frye "rule is 'intended to prevent lay jurors fi:om
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being unduly influenced by procedures which seem scientific and infallible,

but which actually are not.' [Citation.]" (People v Cowan (2010) 50 C4th401,
470.) "In most other instances, the jurors are pem1itted to rely on their own
&
common sense and good judgment in evaluating the weight of the evidence
presented to them." (People v. Venegas, supra, 18 Cal.4th at p. 80, citing
ls
Kelly, supra, 17 Cal. 3d at pp. 31-32.) However, "DNA evidence is different.
Unlike fingerprint, shoe track, bite mark, or ballistic comparisons, which
ia
jurors essentially can see for themselves, questions conceming whether a

laboratory has adopted conect, scientifically accepted procedures for
generating autorads or determining a match depend almost entirely on the
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teclmical interpretations of expe1is. (Id. at p. 81.)

--For=ffie same Teas on, =tne enorreous -aclmission--of-unreltabte
violated appellant's state and federal due process rights because it did not
o9
support a permissible inference against her. (AOB 129.)

I.
Admission Of The Minifiler Evidence Was Prejudicial To

Appellant's Defense.
results was harmless under either a Watson or a Chapman standard because

Fedor testified that SERI was accredited by the American Society of Crime
io
Lab Directors and that he used both positive and negative controls, i.e., test
ns
Respondent argues that any error in admitting the MiniFiler tests
samples with known and no DNA. (RB 118-19, citing 12 RT 1919, 1921.)
at
However, unlike the situation in Garcia, 39 Misc. 3d at 482, the record

does not show that "validation studies of LCN DNA testing were examined
ul
and ce1iified" for the type of testing conducted by SERI in this case. (Id. at p.
487.) Moreover, the defense expe1i had observed the testing at SERI (12 RT
1922) and identified multiple factual issues that could not be resolved by
ib
hearing only from a witness for one party in the case. (AOB 110-114.)
As to the use of controls, Fedor testified that a "positive control is a
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sample that we test every time we test any other sample; that we know its
results. We've tested it over and over again and we expect to see the same
results in each current test. Our negative control is a sample that contains no
&
D.N.A. except that it does contain the reagents that we use to prepare D.N.A.
from our samples. So essentially, it has nothing in it and so should give us
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nothing in our results." (12 RT 1921.)

However, Fedor did not explain what controls, if any, were mn for low-
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level, mixed DNA samples with DNA not detectable with other DNA test
methods. (Ibid.)
Alternatively, respondent argues that the DNA results fi:om the
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MiniFiler testing of the fmgemail samples was insignificant because

MiniFilerTM--wasJ.rot-us-ed-to-test-the-bite-mark-samples-.
However, the defense mounted a substantial challenge to the integrity of

0
handling of the bite mark evidence. (AOB 131; see, e.g., 18 RT 3073-75,
3097-3114, 3117-3124.) The record shows that after two days of searching
multiple fieezers in December 2004, coroner's personnel found a torn
655, 683-84, 689, 699-700; 6 RT 845-46, 849, 856-57, 870-71, 887-88, 894.)
Therefore, there was reason to question both the integrity and the chain of
February 1986. (18 RT 3073-75, 3097-3114, 3117-3124.)
io
custody of the evidence offered as the swab of bite mark on Rasmussen in
at
Because of the defense critique, the prosecution in rebuttal argun1ent

emphasized the MiniFiler test of the fingernails as uncompromised
ul
scientific evidence of the identity of the perpetrator. (AOB 131-32; 19 RT

3206, 3208.)
Respondent contends that the prosecutor did not offer
ib
MiniFiler evidence as a "shield" to the questions related to the bite mark

evidence. (RB 121.) However, the record shows the contrary. (AOB 131-32;
see, e.g., 19 RT 3208 [The fmgernail tested by Fedor using MiniFiler "was
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never at the coroner's office. That fingernail was always in the custody of the
LAPD."].)
Respondent also repeats its argument about appellant's alleged motive
&
to kill Rasmussen. (RB 122.) However, the properly admitted evidence

shows that the prosecution's motive theory was flawed. (AOB 75-76; Section
For all these reasons, the prosecution's reliance on the
ls
xxx, above.)
inadmissible MiniFiler evidence at trial was prejudicial under both a state
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ia
and federal standard. (AOB 130-32.)
ns
envelope with a swab tube protruding through a hole in an envelope. (5 RT
VI.
A.
ns
RESPONDENT FAILS To SHOW THAT EVIDENCE

CODE SECTION 1101 BARRED ADMISSION OF THE
EVIDENCE OF THE APRIL 10TH BURGLARY As
THIRD-PARTY CULPABILITY EVIDENCE.
Introduction.
io
In opening statement, the prosecutor noted evidence at the scene of the

Rasmussen homicide that. stereo equipment had been stacked by the door
at
leading to the garage and a drawer in the living room had been pulled out and
its contents spilled on the floor. (4 RT 310.) The prosecution conceded that
ul
Detective Lyle Mayer, the lead investigator in 1986, concluded that the
Rasmussen was killed when she "surprised some burglars." (4 RT 311.)
This conclusion was supported by appellant's offer of proof pursuant to
ib
Evidence Code section 1101 that on April 10, 1986 an armed residential
burgla1y with the same modus operandi in a unit at a nearby condominium
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complex that was "almost an exact replica" of Rasmussen's residence in her

condominium complex. (11/6/12 Suppl. CT 93.)
Nevertheless, the trial court denied every attempt by appellant to
&
present this evidence so that the jmy, like the detective, could draw an
inference that the Rasmussen homicide occurred during an interrupted
ls
burglaty rather than as an act ofjealousy by appellant after which the burgla1y
was "staged." (See, e.g. 4 RT 311, 592; 15 RT 1474-75, 2495-97.)
Respondent agrees that "[ o]ne way for a patiy to offer admissible
ia
evidence of third-party culpability is under Evidence Code section 1101,
subdivision (b)." (RB 127, citing People v. Abilez (2007) 41 Cal. 4th 472, 502-
Tr
03.)
excluding the evidence because "[t]here was no link between the perpetrators
of the later burglary and the murder of Rasmussen."
(RB 122.)
On
respondent's view, appellant "merely" offered motive evidence insufficient to

establish a link to the charged crime. (RB 127.) Alternatively, respondent
were similar because the perpetrators of both crimes had two ears. (RB 128,
citing People v. Haston (1968) 69 Cal.2d 233, 246, fn. 15.)
io
However, the cases support appellant, including those cited by

respondent.
A Common Modus Operandi Shows A Link Between

Rasmussen Burglary And The April lOth Burglary.
at
B.
ns
claims that appellant offered evidence equivalent to saying that the two crin1es
ul
"Modus operandi evidence is evidence that demonstrates a defendant's

11
distinctive method of operation." (United States v. Moore (i Cir. 1997) 115
ib
F.3d 1348, 1353, fn. 3.) Pursuant to Evidence Code section 1101(b), "'[w]hen
... a primary issue of fact is whether or not defendant rather than some other
person was the perpetrator of a crime charged, evidence of other crimes is
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ordinarily admissible if 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, supra, 69 Cal.2d aty. 245.)
&
Thus, a common modus operandi is sufficient to establish a link

between the crimes to meet the standards of admissibility of Evidence Code
ls
section 1101 (b).

As to the evidence, appellant offered more than m:otive evidence or
ia
minimal commonalities such as having two ears. (AOB 136-37.) Appellant

will not repeat her offer of proof. (Ibid.) Suffice it to say that the two
detectives who investigated both crimes concluded that there was reason to
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believe that the suspects in the April 1Ot11 burglary "committed the
-burglary/m
resiaence: {I1757-Tz=Suppl.-GT-=9-5;- ZJ.-=R-- --
567-68, 571; 9 RT 1471.)

73
Accordingly, the trial court erred by denying appellant's jury the

opportunity to draw the same inference. (AOB 142-147, 148-49; People v.
Massie (2006) 142 Cal.App.4th 365, 374 ["It is the province of the trier of fact
the inference."].)
Respondent Fails To Distinguish The California Supreme

Court Cases Showing That The Evidence Was Admissible.
io
C.
ns
to decide whether an inference should be drawn and the weight to be accorded
111
The relevant cases confirm that the evidence of the April1 0 burglary
at
passed the threshold for admission of common modus operandi evidence.

(AOB 142-147, discussing People v. Lynch (2010) 50 Cal.4th 693, 756-58,
ul
overruled on another point by People v. McKinnon (2011) 52 Cal.4th 610,

636; People v. Miller (1990) 50 Cal.3d 954, 989;People v. Ramirez (2006) 39
Cal.4th 398, 462-63.)
ib
Respondent contends that People v. Lynch, supra, differs from this case
because the victim ofthe April1 oth burglary did not suffer the same injuries as
Tr
Rasmussen. Respondent has misconstrued Lynch. The women who were

victims in the charged burglary-murders suffered the same blunt force trauma
to the head. (People v. Lynch, supra, 50 Cal.4th at pp. 737-38.) As to the
&
uncharged incident, a trespass at the residence of another woman, she was not
injured. (Jd. at pp. 706.)
ls
Nevertheless, the California Supreme Comi held that the evidence of

the trespass at the residence of the uninjured women "was relevant to prove a
ia
material fact other than defendant1s criminal disposition, i.e., identity, because
the common features of that incident and the charged crimes were 'sufficiently
distinctive so as to support the inference that the san1e person col11111itted both
111
Tr
acts."' (ld. at p. 757.) Accordingly, the fact that the victim of the April1 0
- - burglary was notshot=15y

evidence of the burglary.
As to People v. Ramirez, supra, 39 Ca1.4th 398 (Ramirez), respondent

claims that it differs because there was no dispute that the defendant
committed the charged and uncharged crimes. (RB 130.) On respondent's
the question of the common modus operandi of the evidence of the Apri11 Oth
burglary. (Ibid.)
io
Respondent overlooks one of the reasons the trial court excluded
ns
view, Ramirez is relevant only to the issue of intent and therefore, irrelevant to
evidence of the April1 Oth burglary. The trial court noted that the burglars on
111
but no
at
April 1Oth took jewelry fiom the upstairs bedroom on April 10
evidence that someone went upstairs at the Rasmussen residence to take
ul
jewelry. (11 RT 1888-89.) From this, the trial court concluded that the two
incidents were too dissimilar for jury consideration. (Ibid.)
ib
However, under analogous circumstances, People v. Ramirez, supra,

explained that the 'jury reasonably could have concluded that ... [the
perpetrator] intended to steal, but was interrupted when ... [the victim]
Tr
unexpectedly opened the garage door and fled. The jury reasonably could have
concluded that defendant abandoned his plan to steal in order to flee and avoid
apprehension." (People v. Ramirez, supra, 39. Cal. 4th at p. 464.) The same is
&
true here. (AOB 144-45.) Therefore, Ramirez is relevant to show that the
circumstances of the burglary on April 10111 support an inference that the
ls
perpetrator at the Rasmussen residence was also engaged in a burglary With

intent to steal when the homicide occurred.
ia
Respondent suggests that the two burglaries differ because the
perpetrator of the April 10111 burglary did not fire the gun, "and let the victiln
Tr
go." (RB 128, respondent's emphasis.) Appellant agrees that the perpetrator
did not fire the gun. Howevei, he did not simply "let the victim go."
The detectives htvestigatingth:e Aptil10tli burglary reported: -"Oi1e- of
the suspects had a possible .38 caliber revolver during the burglary. The
75
suspect actually pointed the gun at victim Rivalli and very possibly would
have shot her had she not turned and ran away from the location." (11/6/12
Suppl. CT 93.) They quoted Rivalli as stating that when the man came down
revolver. He pointed it directly at me. I was scared he was going to shoot me.
Suppl. CT 95.)
io
I ducked down, turned around, and ran away from the complex." (11/6/12
Thus, the record shows that Rivalli fortunately escaped without injury
D.
at
because she was by the front door and could duck and run away.
Respondent's Cases Differ From This One.
ul
Respondent claims that this case is analogous to People v. Alcala

(1992) 4 Ca1.4th 742, 791-93 (Alcala). (RB 126.) However, the offer of proof
In Alcala, the prosecution charged the defendant with the
ib
differed.
kidnapping-murder of 12 year-old Robin Samsoe whose mutilated body was

found in a remote mountain ravine five days after she disappeared. (Id. at pp.
Tr
754-56.)
"Defendant's offer of proof was that Crawford, a police officer with the
Siena Madre Police Department, would testifY that at 11 p.m. on June 22,
&
1979, two days after Robin's disappearance, he observed Vasquez acting

suspiciously in the general area of the crime scene. Vasquez would testifY he
ls
was in the area in the late evening of June 22 in order to meet someone.
Vasquez was on parole from a previous murder conviction, which the
ia
prosecutor characterized as a dissimilar, gang-related incident cmmnitted years

earlier." (Id. at pp. 791-92.)
The California Supreme Court "conclude[ d] that defendant's offer of
Tr
proof was insufficient to justifY admission of this testimony .... The mere
presence of\fasquez in the
her disappearance was not enough to connect him to Robin's kidnapping and
T6
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the stairs, "He had a gun in his right hand. It looked like a .38 caliber
murder." (ld. at p. 792.)

In this case, appellant did not just offer evidence that someone with a
criminal history had been in the area of Rasmussen's residence after the
an exact replica" of Rasmussen's residence (11/6/12 Suppl. CT 93) that the

investigating detectives concluded occurred under virtually identical
io
circumstances as in this case. (AOB 136-37.) On this bases, they closed the
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homicide. She offered evidence of an armed burglary at a residence "almost
investigation and concluded that the Rasmussen homicide was the result of an
at
intenupted burglary. If the detectives drew this inference the jury should have
been permitted to do so as well.
ul
Alternatively, respondent argues (RB 128) that People v. Edwards

(2013) 57 Cal. 4th 658 shows the absence of a link between the Rasmussen and
ib
April1 Oth burglaries. In Edwards, the defendant was charged with the murder
ofMarjorie Deeble with special circumstances ofburglary-murder and torturemurder. (!d. at p. 669; Penal Code, 190.2, subds. (a)(17) & (18).) The
Tr
police found Deeble dead with her hands tied behind her back, her head in a
noose made from a belt and tied to the top drawer handle of a dresser, with
signs of anal and vaginal assault. (!d. at pp. 670-71.)
&
"Defendant sought admission of an envelope addressed to Deeble' s son

Steven and an enclosed flier found by Detective Vic Cantu in a trash can in the
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second bedroom in Deeble's apa1iment. On the flier were photographs of a

woman in bondage and of Charles Manson, ai1d several atiicles, including an
ia
article about a bondage murder. The trial court sustained the prosecutor's
objection, stating that if the evidence was offered to show that Steven Deeble
could have been the perpetrator, 'you don't cross the threshold,' the article on
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bondage was not 'even remotely similar to the evidence in this case,' and the
'- -- -- ev1dence was -confusmg' -and not--helpfUl-to
729:)
The California Supreme Court found no enor in excluding this
evidence. "Even assuming Steven Deeble ever saw the flier, defendant failed
to demonstrate any link between the article and Deeble's murder, or that the
evidence could raise a reasonable doubt as to defendant's guilt. Hence the trial
Appellant agrees. However, appellant has not offered evidence that the
burglars on April I 0111 had just been reading literature about burglary. The link
io
in this case as recognized by the investigating detectives was of common
ns
court did not abuse its discretion in excluding the evidence." (Id. at p. 729.)
modus opernadi at a virtually identical condominium unit within two blocks of
at
the crime scene. The "'likelihood of a particular group ofgeographically

proximate crimes being unrelated diminishes as those crin1es are found to
ul
share more and more common characteristics."' (People v. Lynch, supra, 50

Cal.4th at p. 736, quoting People v. Miller (1990) 50 Cal.3d 954, 989.)
The Exclusion Of The Evidence Violated Appellant's Due

Process And Sixth Amendment Rights To Present A
Defense.
ib
E.
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The denial of the opportunity to present the evidence of the Aprill Oth
111
. burglary also violated appellant's due process (U.S. Canst., 14 Amend) and
Sixth Amendment right to present defense evidence and witnesses to impeach
&
and establish reasonable doubt of the prosecution's theory of the case. (AOB
148-49; see, e.g. Crane v. Kentucky (1986) 476 U.S. 683, 690-91 [106 S.Ct.
2142; 90 L.Ed.2d 636].)
ls
Respondent argues that People v. Alcala, supra, 4 Cal.4th 742, shows
that any eiTor violated only state law because appellant's offer of proof
ia
"fail[ ed] to connect the third party to the crime. (RB 131.) For the reasons
explained above, this argument fails because the proffered evidence was
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common modus operandi evidence admissible pursuant to Evidence Code
_ _ _ _ _ _ __:_s_ec.. . :.t: . : io=n:. . : l:. : l-"-0.: :;_1(Q2 to
__
an opportunity to present evidence of the April 10
111
burglary violated
------------------------'78----------------------
appellant's due process and Sixth Amendment rights. (AOB 149-50.)
F.
Reversal Is Required.
Depriving a defendant of an opportunity to present his defense is
Baltither (9th Cir. 2005) 424 F.3d 913, 922; accord Conde v. Henry (9th Cir.
2000) 198 F.3d 734, 741.) Even ifham1less error analysis applies under state
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or federal law, reversal is required. Errors "at trial that deprive a litig('!.nt of the
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"without more, sufficient to warrant reversaL" (United States v. Smith-
opportunity to present his version of the case ... are ... ordinarily reversible."
at
(R. Traynor, "The Riddle of Harmless Error" (1970) at p. 68; AOB 149)
As to the latter point, respondent claims that any error was hannless
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under a state or federal standard for the reasons discussed in Argument II.
Appellant replied to that claim above in Section xxx.
Here, appellant
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emphasizes that a reasonable juror would have drawn the same inference of a
common perpetrator(s) of the two burglaries as the investigating detectives in
1986. Accordingly, the error was not harmless under state or federal
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(AOB 149-50.)
VII.
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&
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.
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A.
Respondent Errs By Conflating The Standard For CrossExamination With The Standard For Admission Of ThirdParty Culpability Evidence.
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The trial court also denied appellant the opportunity to cross-examine
the prosecution's expert on crime scene analysis (Mark Safarik) about the
Apri11 Oth burglary to impeach his opinion that the Rasmussen homicide had
been "staged" to look burglary-related. (AOB 150.)
79
Respondent contends that the trial court properly denied crossexamination about the April I oth burglary because it was inadmissible thirdparty culpability evidence. (RB 133.) Respondent has conflated the issues
In cross-examination of an expert, the"' courts have traditionally given

both parties wide latitude in the cross-examination of experts in order to test
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their credibility. Thus, a broader range of evidence may be properly used on
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and overlooks the pertinent authority.
cross-examination to test and diminish the weight to be given the expert
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opinion than is admissible on direct examination to fortify the opinion.'
(People v. Montiel (1993) 5 Cal. 4th 877, 923-924.) 'It is common practice to
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challenge an expert by inquiring in good faith about relevant information,

including hearsay, which he may have overlooked or ignored.' (Id. at p. 924;
see People v: Gonzales[(20ll) 51 Cal.4th 894,] 923-924.)"
ib
Pearson (2013) 56 Cal.4th 393, 459-60.)
(People v.
Therefore, "an adverse party may bring to the attention ofthe jury that
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an expert did not know or consider information relevant to the issue on which
the expert has offered an opinion." (People v. Doolin (2009) 45 Cal. 4th 390,
434.) This "includes examination aimed at determining whether the expert
I
&
sufficiently took into account matters arguably inconsistent with the expert's
conclusion."(People v. Ledesma (2006) 39 Cal.4th 641, 695.)
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The prior discussion shows that the evidence of the April I Oth burglary
meets these standards. (See Section VI., above; AOB 140-47.) Accordingly,
the trial court erred.
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B.
Evidence Code section 352 Did. Not Bar The Proposed

Cross-Examination.
Alternatively, respondent argues (RB 132) that the trial court properly
-------barred-eross=examinaticn-ptu'S'l:lant-tc-Evidenee-Gcde--3-:2-seetien-l:>ee-ause-it,------------was "repetitive, prejudicial, confusing of the issues or of marginal
80----------------------
significance." (People v. Ayala (2000) 23 Cal.4th 225, 301, citations and

internal quotations omitted; accord People v. Hartsch (2010) 49 Ca1.4th472,.)
However, the proffered cross-examination was not repetitive because
the analogous burglary. (AOB 133-36.) Nor was it confusing of the issues or
of marginal relevance because the foundation for the proposed cross-
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examination met the California Supreme Comi' s for cross-examination of an
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the trial court barred the defense from cross-examination of any witness about
expe1i. (See Section A, above.)
at
As to the question of whether the proposed cross-examination was
more prejudicial than probative, '"[p ]rejudice' as contemplated by section 352
ul
is not so sweeping as to include any evidence the opponent fmds inconvenient.

. Evidence is not prejudicial, as that term is used in a section 3 52 context,
ib
merely because it undermines the opponent's position or shores up that of 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.)
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"An attempt to attack the merits of damaging testimony to which a

party has unsuccessfully objected has long been recognized as a necessary and
proper trial tactic" of cross-examination. (People v. Sam (1969) 71 Ca1.2d
&
194, 207.) In particular, "' [c]ross-examination ... may be directed to the

eliciting of any matter which may tend to overcome or qualify the effect of the
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testimony given ... on direct examination."' (People v. Gonzales (20 11) 51

Ca1.4th 894, 945, citations and internal quotations omitted.)
ia
The cases cited by respondent do not support a contrary conclusion
because they both addressed cross-examination of a percipient witnesses rather
Tr
than experts.
In People v. Ayala, supra, 23 Cal. 4th 225, a witness ("Lewis") in the
penalty phase ofa capital trial testified on direct-examination ihatwllile m-

custody with the defendant he saw the defendant stab another imnate. (Id. at
81
p. 290.) "Defendant wanted to ask Lewis on cross-examination whether he

had committed murder and assaults in prison. He asse1ied that if his character
was on trial in the penalty phase, so should be the adverse witnesses 1; but the
trial court disagreed." {Id. at p. 300.)
ns
The California Supreme Comi affmned this ruling. "Impeaching Lewis

with inquiries into his own violent conduct--an inquily that would not have
io
borne on any question of veracity or honesty--would have been collateral.
Moreover, the jury already knew that Lewis had committed two murders and
at
that he had been a member of a prison gang. There was no abuse of

discretion." (Id. at p. 301.)
ul
Here, the cross-examination of Safarik would have properly addressed

the credibility of his opinion that the burglary was staged and would not have
been cumulative.
ib
In People v. Hartsch, supra, 49 Ca1.4th 472, the defendant's "friend

Frank Castaneda" on direct-examination testified that he saw the defendant
478-80.)
Tr
with the murder victin1 (Angelica Delgado) before she was killed. (Id. at pp.
Defendant sought to impeach Castaneda with evidence that,
sometime in early June 1995 before the June 16, 1995, Castandeamay have
&
argued with Angelica after having sex with her. (Id. at p. 495.) Defendant
argued that this was probative of third-party culpability. (Id. at pp. 495-96.)
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The California Supreme Court rejected this argument because the

"evidence of Castaneda1s guilt, on the other hand, was entirely speculative."
(Id. at p. 497.) "Furthermore, the evidence of some smi of altercation between
ia
Castaneda and Angelica provided only slight suppmi for a finding that he had
a motive for murder. (Ibid.) Moreover, the trial court had permitted defense
Tr
counsel to "extensively impeach[]Castaneda with his crimi11al record, his
nutives-io-cu-op-erate-with-the-pu-li-ce;-and-his-detay-in-rep-ort-ing-t-h-at-he-had------------'-
seen defendant with Angelica the night she disappeared." (Ibid.)
Here, the evidence of the April 1Oth burglary was neither speculative
nor cumulative of other efforts to impeach Safarik. Accordingly, People v.
C.
Prejudice Is Present Because The Prosecution Called

Safarik To Validate Its Theory Of The Case.
Respondent contends that any enor was hannless under state or federal
argument.
io
standards for the reasons discussed in its response to appellant's second
ns
Hartsch, supra, is inapplicable here.
(RB 133.) However, respondent overlooked the high comi
at
standard.
Relevant factors in assessing prejudice "include the importance of the
ul
witness' testimony in the prosecution's case, whether the testimony was .

cumulative, the presence or absence of evidence conoborating or contradicting
ib
the testimony of the witness on material points, the extent of crossexamination otherwise permitted, and, of course, the overall strength of the
prosecution's case." (Delaware v. VanArsdall (1986) 475 U.S. 673,684 [106
Tr
S. Ct. 1431; 89 L. Ed. 2d 674].)
Each of these factors shows prejudicial enor in this case. (AOB 156157.) Appellant emphasizes that precluding competent cross-examination of a
&
"central, indeed crucial" witness to the prosecution's case is not harmless enor.
(Olden v. Kentucky (1988) 488 U.S. 227,232-33 [109 S. Ct. 480; 102 L. Ed.
ls
2d 513]) This is especially true for an expert witness because "testimony

emanating from the depth and scope of specialized lmowledge is very
ia
impressive to a jury. The same testimony from another source can have less
effect." (Ake v. Oklahoma (1985) 470 U.S. 68, 81, fn. 7 [105 S.Ct. 1087; 84
L.Ed.2d 53], citations omitted.) Accordingly, the violation of appellant's state
Tr
and federal rights to cross-examine and to impeach Safarik's testimony was
prejudicial-to appellant'-s defense.
83
VIII.
Respondent contends that no errors occurred at appellant's trial and,

even assuming so, appellant received a fair trial if not a "perfect one." (RB
io
133.)
However, where the cumulative effect of individually harmless errors
at
renders a criminal defense "far less persuasive than it might have been," the
resulting conviction violates due process and the defendant's right to a fair
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trial. (Chambers v. Mississippi (1973) 410 U.S. 284, 294 [35 L. Ed. 2d 297,
93 S. Ct. 1038].) The foregoing discussion shows that appellant was so
ib
prejudiced from the cumu.lative effect of the trial errors.
CONCLUSION
Dated: December 6, 2013
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For the foregoing reasons, the judgment should be reversed.
ia
ls
&
Respectfully submitted,
Tr
ns
DUE PROCESS REQUIRES REVERSAL OF THE

JUDGMENT BECAUSE OF THE CUMULATIVE
EFFECT OF THE TRIAL ERRORS.
By: _ _ _ _ _ _ _ _ __
Donald R. Tickle
Counsel for Defendant-Appellant
STEPHANIE LAZARUS
WORD COUNT CERTIFICATE

This Court appointed me as attorney for appellant Stephanie Lazarus.
Pursuantto California Rules of Court, Rule 8.360, subdivision (b)(l), I hereby
program, that the 'length of this reply brief, including footnotes but not
io
including the tables and this certificate, is 24,631 words.
ns
certify, based upon the word-count feature of the "Word" word processing
Tr
ia
ls
&
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ib
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Donald R. Tickle
at
Executed this 6th day ofDecember of2013 at Volcano, California.
85
I declare that I am over the age of 18, not a party to this action and my
business address is P.O. Box 400, Volcano, California, 95689-0400. On the
date shown below, I served the within APPELLANT'S REPLY BRIEF to the
following parties hereinafter named by:
Placing a true copy thereof, enclosed in a sealed envelope with postage
thereon fully prepaid, in the United States mail at Volcano, California,
addressed as follows:
io
California Appellate Project

520 South Grand Ave., 4th Floor
Los Angeles, CA 90071
Stacy Wiese
Deputy District Attorney
Office of the District Attorney
21Q West Temple St., Ste. 18-206
Angeles, CA 900 12
Office of the Attorney General

300 South Spring Street
Fifth Floor, North Tower
Los Angeles, CA 900 13
(Counsel for Respondent)
::
I:.declare under penalty of perjury the foregoing is true and correct. Executed
this 6th day of December of 2013 at Volcano, California.
ia
ls
/.:.;
t()
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c)
(.)
ib
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&
1. ..
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Clerk, Criminal Division

Los Angeles Superior Court
210 West Temple St.
Los Angeles, CA 90012
Mark E. Overland
Attorney at Law
100 Wilshire Blvd., Ste. 950
Monica, CA 90401
c ,
at
Stephanie Lazarus, WE4479
..'
(._)
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-=-----------------------
= :;: ;
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PROOF OF SERVICE
(People v. Stephanie Lazarus, B241172)
D.onald R. Tickle

Stephanie Lazarus Criminal Appeal: Appellant&#39;s Reply Brief

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Stephanie Lazarus Criminal Appeal: Appellant&#39;s Reply Brief

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

(Los Angeles County

Defendant and Appellant.

Plaintiff and Respondent,

THE PEOPLE OF THE STATE OF

SECOND APPELLATE DISTRICT, DIVISION FOUR

ON APPEAL FROM THE SUPERIOR COURT,

APPELLANT'S REPLY BRIEF

Respondent's Ens By Claiming That Federal Law Governs Appellant's

The Truth In Evidence Provision Of The California Constitution

None Of The Cases Relied On By Respondent's Addressed A

The Language In Boysen Rejecting Respondent's Position Was

Even If Applied, Federal Law Does Not Require Intentional

Even If Federal Law Applies, The 23-Year Delay Was

The 23-year Delay Also Violated Appellant's State Due Process

The Standard Of Review.

This Case Is Not Analogous To The Investigative Delay

The Delay Was Prejudicial.

The Trial Court Ened By Denying Appellant's Motion To Quash The

Probable Cause To Arrest Appellant Did Not Establish Probable

The Detective's Opinion Was Insufficient To Establish Probable

The Information In The Affidavit Was Too Stale To Provide

The Affidavit Also Failed To Provide Probable Cause To

The Good Faith Exception To The Exclusionary Rule Does Not

Admission OfTheEvidenceFrom The Unlawful Searches Was

Appellant Was Not Required To Prove Her I1111ocence.29

The Record Shows The Prosecutor's Fallacy As To The

Other Evidence Shows That The Prosecution's Motive

The Evidence From Appellant's Interview Did Not Cure

Forensic Evidence Supported The Original Detective's

The Trial Court EITed By Denying Appellant's Motion To Traverse

By Failing To Address The Issue, Respondent Concedes That

The Omitted Facts Undercut The Alleged Motive Offered To

As A Police Officer, Appellant Was Legally Compelled To Answer

Respondent Forfeited Any Hearsay Objection To Appellant's

Use Immunity Applied Whether Or Not The Detectives Told

Apart From The POBR, California Law Has Long Required

Use Immunity Applied Regardless Of Whether The Detectives

Administrative Removal Proceedings Need Not Have

The Transcript Of The Interview Does Not Show That

-- -- --- ---- --- - -Il-

SERI Conducted Low Copy DNA Testing.

The Conflict In The Scientific Literature Shows That A Prong 1

The Fact That MiniFiler Testing Uses Polymerase Chain

TheNew York State Case Relied On By Respondent Does Not

Although Not Controlling, McCluskey Supports Appellant's

Admission of the MiniFiler Test Results Violated Appellant's

The Trial Court Erred By Denying The Defense Request To Hold A

Admissimi Of The Minifiler Evidence Was Prejudicial To

Respondent Fails To Show That Evidence Code Section 1101 BatTed

Respondent Fails To Distinguish The California Supreme Comt

Respondent's Cases Differ From This One.

The Exclusion Of The Evidence Violated Appellant's Due

Prejudice Is Present Because The Prosecution Called Safarik To

VIII. Due Process

WORD COUNT CERTIFICATE

A Common Modus Operandi Shows A Link Between

Ake v. Oklahoma (1985) 470 U.S. 68 ................. :................................................... 91

Arizona v. Fulminate (1991) 499 U.S. 279 ............................................................ 59

Bruton v. United States (1968) 391 U.S.123 .......................................................... 73

Bumper v. North Carolina (1968) 391 U.S. 543 .................................................. ,.27

California v. Trombetta (1984) 467 U.S. 479 .......................................................... 5

Chambers v. Mississippi (1973) 410 U.S. 284 ................................................ :...... 92

Chapman v. California (1967) 386 U.S. 18 ........... :......... :.................................... 35

Stephanie Lazarus Criminal Appeal: Appellant's Reply Brief

Stephanie Lazarus Criminal Appeal: Appellant's Reply Brief