Stephanie Lazarus Criminal Appeal: Appellant's Reply Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT, DIVISION FOUR

THE PEOPLE OF THE STATE OF ] CALIFORNIA ]

] Plaintiff and Respondent, ]

] Vs. ]

] STEPHANIE LAZARUS, ]

] Defendant and Appellant. ]

B241172

(Los Angeles County Superior Court Case No. BA357423)

ON APPEAL FROM THE SUPERIOR COURT, STATE OF CALIFORNIA, COUNTY OF LOS ANGELES,

THE HONORABLE ROBERT PERRY, PRESIDING

APPELLANT'S REPLY BRIEF

DONALD R. TICKLE State Bar No. 142951

P.O. Box400 Volcano, CA 95689-0400

(209) 296-4536 (voice & facsimile) E-mail: [email protected]

Attorney for Defendant-Appellant STEPHANIE LAZARUS

Trials & Tribulations

TABLE OF CONTENTS

INTRODUCTION 1

ARGUMENT 28

I. 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

II.

A. Introduction. 2

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. 13

G. The 23-year Delay Also Violated Appellant's State Due Process Rights. 15

1. The Standard Of Review. 15

2. This Case Is Not Analogous To The Investigative Delay In Nelson, As Respondent Suggests. 15

3. The Delay Was Prejudicial. 17

The Trial Court Ened By Denying Appellant's Motion To Quash The --- -- u - -- ---- ---- --- -- Bearel1=Wan'ants=Arn:l='Fe=Suppres-s=B-v-iElenee:- - - 21---=--c_ .c_-_---'------------=---'-'---'-'-'----Tr

ials & Tribulations

TABLE OF CONTENTS

A. Probable Cause To Arrest Appellant Did Not Establish Probable Cause To Search Her Residence .Alid Computers 23 Years After The Crime. 21

B. The Detective's Opinion Was Insufficient To Establish Probable Cause To Search Appellant's Residence. 22

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 Lacking Probable Cause. 61

F. Admission OfTheEvidenceFrom The Unlawful Searches Was Prejudicial To Appellant's Defense. 29

1. Appellant Was Not Required To Prove Her I1111ocence.29

2. The Record Shows The Prosecutor's Fallacy As To The DNA Evidence. 31

3. Other Evidence Shows That The Prosecution's Motive Theory Was Flawed. 33

4. The Evidence From Appellant's Interview Did Not Cure The Prejudice From The Illegally Seized Evidence. 34

5. Forensic Evidence Supported The Original Detective's Conclusion Burglars Killed Rasmussen When She Surprised Them.35

III. The Trial Court EITed By Denying Appellant's Motion To Traverse The Search WaiTants And To Hold A Franks Hearing. 37

A. Introduction. 37 Trials & Tribulations

TABLE OF CONTENTS

B. The Omitted Facts Undercut The Alleged Motive Offered To Justify A Search 23 Years After The Crime. 38

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. 39

IV. 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 Proceedings. 40

A. Introduction. 40

B. Respondent Forfeited Any Hearsay Objection To Appellant's Declaration. 41

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 Self-Incrimination And Be Disciplined For Failing To Answer

F. Administrative Removal Proceedings Need Not Have Commenced For There To Be Lega1 Compulsion To Answer Questions. 51

G. The Transcript Of The Interview Does Not Show That Appellant Waived Use Immunity. 51

-- -- --- ---- --- - -Il- -- - - --- InteiTogation Was Prejudicial To Her Defense. 53 Tr

ials & Tribulations

.TABLE OF CONTENTS

V. The Trial Court Erred By Denying The Defense Request To Hold A Kelly-Frye Hearing And Admitting Evidence Of Low Copy DNA Testing Using MiniFiler. 54

A. 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 Not Eliminate The Need For A Prong 1 Hearing. 1 60

E. TheN ew 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. 67

I. Admissimi Of The Minifiler Evidence Was Prejudicial To Appellant's Defense. 70

VI. Respondent Fails To Show That Evidence Code Section 1101 BatTed Admission Of The Evidence Of The Aprill Ot11 Burglary As Third-Party Culpability Evidence. 72


TAB:LE OF CONTENTS

B. A Common Modus Operandi Shows A Link Between Rasmussen Burglary And The April lOth Burglary. 73

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. 76

E. The Exclusion Of The Evidence Violated Appellant's Due Process And Sixth Amendment Rights To Present A Defense. 78

F. Reversal Is Required. 79

VII. The Trial Court Violated State And Federal Law By Denying Appellant An Opportunity To Cross-Examine The Prosecution's Crime Scene Analyst About Other Burglary Evidence. 79

A. Respondent Errs By Conflating The Standard For Cross-Examination With The Standard For Admission OfThird-Party Culpability Evidence. 79

B. Evidence Code section 352 Did Not Bar The Proposed Cross-Examination. 80

C. Prejudice Is Present Because The Prosecution Called Safarik To Validate Its Theory Of The Case. 83

VIII. Due Process Reversal Of The Judgment Because Of The Cumulative Effect Of The Trial E1Tors. 84

CONCLUSION 84

WORD COUNT CERTIFICATE 85

PROOF OF SERVICE 86


TABLE OF AUTHORJTIES

Federal Cases:

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. Maroney (1970) 399 U.S. 42 ..... : .. .. ........... 36

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

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

Conde v. Henry (9th Cir. 2000) 198 F.3d 734 ........................................................ 86

Crane v. Kentucky (1986) 476 U.S. 683 ................................................................. 85

Daubert v. Merrell Dow Pharms., Inc. (1993) 509 U.S. 579 ................................. 69

Delaware v. VanArsdall (1986) 475 U.S. 673 ............................................ , ........... 90

Devenpeck v. Alford (2004) 543 U.S. 146 .............................................................. 25

Erwin v. Price (11th Cir.1985) 778 F.2d 668 .......................................................... 53

Franks v Delaware (1978) 438 U.S. 1 .................................................................. .41

Frye v. United States (D.C. Cir. 1923) 293 F. 1013 ............................................... 59

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 Trials & Tribulations

TABLE OF AUTHORITIES

Hester v. City of Milledgeville (11th Cir.l985) 777 F.2d 1492 ....................... .45, 52

Horton v. California (1990) 496 U.S. 128 ............................................................. 25

Huppert v. City of Pittsburg (9th Cir. 2009) 57 4 F .3d 696 .................................... 51

Illinois v. Gates (1983) 462 U.S. 213 ............................................................... 26, 41

Jackson v. Virginia (1979) 443 U.S. 307 ............................................................... 35

Lefkowitzv. Cunningham (1977) 431 U.S. 801.. .................................................... 54

Lefkowitz v. Turley (1973) 414 U.S. 70 ................................................................. .48

UnitedStatesv.Lovasco(l977)43l U.S. 783 ..................................... 10, 11, 12,13

Mapp v. Ohio (1961) 367 U.S. 643 ........................................................................ 31

Marks v. United States (1977) 430 U.S. 188 .......................................................... .10

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

Payton v. New York (1980) 445 U.S. 573 ............................................................... 29

Peny v. New Hampshire (2012) 132 S.Ct. 716 ...................................................... 74

SGRO v. United States (1932) 287 U.S. 206 .......................................................... 26

Sher v. US. Departlnent of Veterans Affairs (1st Cir. 2007) 488 F.3d 489 ........... 52

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 Trials & Tribulations


United States v. $ 8,850 (1983) 461 U.S. 555 .................................................... 9, 10

United States v. Cervantes (2012) 698 F.3d 798 .................................................... 25

United States v. Colkley (4th Cir. 1990) 899 F.2d 297 .......................................... .43

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

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

United States v. Hardin (6th Cir. 2008) 539 F.3d 404 ..................................... ; ....... 7

United States v. Indorato (1st Cir. 1980) 628 F.2d 711 ......................................... 54

United States v. Leon (1984) 468 U.S. 897 ................................................ 30, 31,44

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

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

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

United States v. Underwood (9th Cir. 2013) 725 F.3d 1026 .................................. 31

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 Trials & Tribulations


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

United States Williams, 2009 U.S.Dist. LEXIS 130524 ........................................ 64

Weeks v. United States (1914) 232 U.S. 383 .......................................................... 31

In re Winshzrp (1970) 397 U.S. 358 ......................................................................... 32 / .

State Cases:

Alexander v. Superior Court (1973) 9 Cal.3d 387 ................................................. 26

Christal v. Police Commission of City and County of San Francisco et al. (1939) 33 Cal.App.2d 564 .................................................................... 49, 50, 52

City of Los Angeles v. Superior Court (1997) 57 Cal.App.4th 1506 ...................... 56

Fichera v. State Personnel Board (1963) 217 Cal.App.2d 613 ............................ 50

Fowler v. Superior Court (1984) 162 Cal.App.3d 215 .................................... 19, 20 \

Hemler v. Superior Court (1975) 44 Cal.App.3d 430 ........................................... 28

Jones v. Superior Court (1970) 3 Cal.3d 734 ......................................................... 15

In re Lance W: (1985) 37 Cal.3d 873 ............................................................... 3, 4, 5

Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822 ........................ 45,48, 50, 51

McKirdy v. Superior Court(1982) 138 Cal.App3d 12 .............................. 26, 27,29

Miller v. Superior Court (2002) 101 Cal.App.4th 728 .......................................... .46

Pasadena Police Officers Assn. v. City of Pasadena (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

People v. Angeles (1985) 172 Cal.App.3d 1203 .... ......................................... 5, 6, 9

People v. Archerd (1970) 3 Cal.3d 615 .................................................................. 14

People v. Ayala (2000) 23 Cal.4th 225 ............................................................. 88, 89

People v. Barney (1992) 8 Cal. App. 4th 798 .............................. ; ......................... 73

People v. Beamon (1978) 8 Cal.3d 625 .................................................................. 80

People v. Booker (2011) 51 Cal.4th 141 .......................................................... 18, 19

People v. Boysen (2007) 165 Cal.App.4th 761 ............................................ 3, 4, 7, 8

People v. Bradford (1997) 15 Cal.4th 1229 .................................................... .41, 43

People v. Camarella (1991) 54 Cal.3d 592 ...................................................... 30, 31

People v. Ca1penter (1999) 21 Ca1.4th 1016 ......................................................... 29

People v. Carrington (2009) 47 Cal.4th 145 .................................................... 26, 29

People v. Chun (2009) 45 Cal.4th 1172 ................................................................. 10

People v. Cook (1978) 22 Cal.3d 67 ................................................................. 23, 43

People v. Corners (1985) 176 Cal.App. 3d 139 ..................................................... 67

People v. Cowan (2010) 50 Ca1.4th 401.. .... 7 16, 75

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 Trials & Tribulations

TABLE OF AUTHOR1TIES I

People v. Doolin (2009) 45 Ca1.4th 390 ................................................................. 87

People v. Draper (1945) 69 Cal.App.2d 781 ......................................................... 32

People v. Edwards (2013) 57 Cal.4th 658 .............................................................. 84 .

People v. Engstrom (2011) 210 Cal.App.4th 174 ................................................. .46

People v. Epps (1986) 182 Cal.App.3d 1102 ........................................................... 5

People v. Eubanks (2011) 53 Ca1.4th 110 ............................................................ .41

People v. Fuiava (2012) 53 Ca1.4th ......................................................... 74, 75

People v. Garcia (2013) 963 N.Y.S.2d 517 ........................................................... 67

People v. Gonzales (20 11) 51 Cal. 4th 894 ............................................................. 89

People v. Gonzalez (1990) 51 Cal.3d 1179 ...................................................... 23, 43

People v. Hall (1980) 28 Cal.3d 143 ................................................................ 18, 19

People v. Hannon (1977) 19 Cal.3d 588 8

P_eople v. Hartsch (2010) 49 Cal.4th472 ..... ............................................. 88, 89,90

People v. Haston (1968) 69 Cal.2d 233 ........................................ : ........................ 80

People v. Heitzman (1994) 9 Cal.4th 189 ........................................................... 6, 74

People v. Henderson (2003) 107 Cal.App.4th 769 ................................................ 66

People v. Hepner (1994) 21 Cal.App.4th 761 ........................................................ 29

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 Trials & Tribulations


People v. Holley (1993) 596 N.Y.S.2d 1016 .......................................................... 67

People v. Hulland (2003) 110 Cal.App.4th 1646 ................................................... 28

People v. Johnson (1989) 47 Cal.3d 1194 ............................................................ 5, 6

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

People v. Leahy (1994) 8 Cal.4th 587 .................................................................... 66

People v. Ledesma (2006) 39 Cal. 4th 641 .............................................................. 87

People v. Lim (2000) 85 Cal.App.4th 1289 ............................................................ 31

People v. Lopez (1988) 198 Cal.App.3d 135 ............................................................. 5

People v. Lynch (2010) 50 Ca1.4th 693 ............................................................ 81, 85

People v. Martinez (2000) 22 Ca1.4th 750 .......................................................... .4, 9

People v. Massie (2006) 142 Cal.App.4th 365 ....................................................... 81

People v. May (1988) 44 Cal.3d 309 ........................................................................ 5

People v. McKinnon (2011) 52 Cal.4th 610, 636 ................................................... 81

People v Megnath (2010) 898 N.Y.S.2d 408 ......................................................... 67

People v. Miller (1990) 50 Cal.3d 954 ............................................................. 81, 85

People v. Mirenda (2009) 17 4 Cal.App.4th 1313 ............................................. .4, 15

People v. Moore (2011) 51 Cal.4th 386 ................................................................. 25

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 Trials & Tribulations


People v. Pearson (2013) 56 Ca1.4th 393 ............................................................... 87

People v. Pellegrin (1977) 78 Cal.App.3d 913 ...................................................... 25

People v. Perez (1992) 2 Cal.4th 1117 ................................................................... 25

People v. Ramirez (2006) 39 Ca1.4th 398 ......................................................... 81, 82

People v. Ramos (1984) 37 Cal.3d 136 .................................................................... 8

People v. Reed (1982) 121 Cal.App.3d Supp. 26 ................................................... 29

People v. Reeves (2001) 91 Cal.App.4th 14 ........................................................... 66

People v. Rist (1976) 16 Cal.3d 211 ....................................................................... 61

People v. Roybal (1998) 19 Ca1.4th481.. ............................................................... 73

People v. Sam (1969) 71 Ca1.2d 194 ...................................................................... 88

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

People v. Valencia (1990) 218 Cal.App.3d 808 ....................................................... 4

People v. Venegas (1998) 18 Cal. 4th 47 ............................................................... 74

People v. Watson (1956) 46 Cal.2d 818 ................................................................. 74

People v. Williams (2000) 79 Cal.App.4th 1157 .............................................. 37, 38

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 Trials & Tribulations


Riverside County Sheriff's Depart. v. Zigman (2008) 169 Cal.App.4th 763 .......... 51

In re Scott (2003) 29 Cal. 4th 783 ........................................................................... 16

Spiel bauer v. County of Santa Clara (2009) 45 Cal. 4th 704 ................................. .48

Szmaciarz v. State Personal Board (1978) 79 Cal.App.3d 904 ............................. 50

Titus v. Civil Serv. Commission (1980) 130 Cal.App.3d 357 ................................. 50

Trope v. Katz (1995) 11 Cal.4th 274 ........................................................................ 7

Van Winkle v. County of Ventura (2007) 158 Cal.App.4th 492 ............................ .47

Westside Center Associates v. Safeway Stores, 23lnc. (1996) 42 Cal.App.4th 507 ................................................................................................ 44

Constitutions:

Cal. Const., Art. I, 7(a) .............................................................................................. 73

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

Cal. Const., Art. I, 24 .......................................................... ........................................ 4

Cal. Const.; Art. I, 28(f)(2) ............................................................................. ....... 2, 3

U.S. Const., 5th Amend . ........................................................................................ passin1

U.S. Const., 6th Amend . ........................................................................................ passiln th U.S. Const., 14 Amend . ...................................................................................... passiln

State Statutes:

Evid. Code, 352 ................................................................................................ 3, 80, 81

Evidence .. : .. ... .: .. ; .... ; .. :; ........................................................................... 69------Trials & Tribulations


Evid. Code, 782 ........................................................ :3

Evid. Code, 1101.. ...................................................... : ............................ 70, 72, 73,78

Evid. Code, 1103 ....................................................................................................... 74

Gov.- Code, 3300 ................................................................................................ passin1

Other Authorities:

California Rules of Court, Rule 8.360 (b) .................................................................... 85

California Rules of Court, Rule 8.204(a)(l) ............................................................... .46

Bright, et al., Determination of the Variables Affecting Mixed MiniFiler DNA Profiles (November 2011) 5 ................................................................................... 62

Budowle et al., Low Copy Number-- Consideration and Caution, Proc. 12th International Symposium on Human Identification (2001) .............................. 57, 59

Butler, Forensic DNA T)ping, Second Edition: Biology, Technology and Genetics of STR Markers (Academic' Press 2005) ..................................... 62, 64, 72

Mulero, et al., Development and Validation of the AmpFister MiniFiler PCR Amplification Kit: A MiniSTR Multiplex for the Analysis of Degraded and/or PCR Inhibited DNA (2008) J. Forensic Science 838 ................ 56, 57, 58, 59

Thompson, Mueller, and Krane, Forensic DNA Statistics: Still Controversial In Son1e Cases (2012) 36 ............................................................................................ 62

1 Witkin, Cal. Evidence (4th ed. 2000) Introduction, 9 ............................................ 62


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT, DIVISION FOUR

THE PEOPLE OF THE STATE OF ] CALIFORNIA ]

] B241172 Plaintiff and Respondent, ]

] (Los Angeles County Vs. ] Superior Court

] Case No. BA357423) STEPHANIE LAZARUS, ]

] APPELLANT'S REPLY Defendant and Appellant. ] BRIEF

INTRODUCTION 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 the AOB. In this reply brief, appellant discusses issues requiring additional comment. Ill Ill Ill


ARGUMENT

I.

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.

A. Introduction. 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 process rights. 1 (AOB 28; 11/6/12 CT 1; citing Cal. Const.,A1i. I, 15; U.S. Const., 5th & 14th Amends.)

Respondent contends that appellant's state due process claim is govemed by the federal constitutional standard pursuant to the "Truth in 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 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 mistaken on both points.

None of the cases relied on by respondent addressed due process standards under the Califomia Constitution (A1i. I, 15) for pre-accusation delay. The case addressing this issue rejected respondent's claim that federal

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. Trials & Tribulations

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 due process of law and in multiple ways prejudiced appellant's ability to defend against the charge. Even if federal law applies, she was prejudiced by the delay.

B. 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 shall not be excluded in any criminal proceeding." (Cal. Const., Art. I, 28, subd. (f)(2). i

The courts have consistently construed Proposition 8 as eliminating judicially created rules for the exclusion of relevant evidence except as 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 its suppression is required by the United States Constitution."].)

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 criminal proceeding, including pretrial and post conviction and hearings, or in any trial or hearing of a juvenile for a criminal offense,

---,--------,------,,.,---------=---c----=-----,----,---w-c'!. 11TJ uvenile m-aaTilt com''t N ofning 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 Trials & Tribulations

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 (4th ed. 2000) Introduction, 9.) As to other provisions of the state constitution, "Proposition 8 did not repeal ... section 24 ["Rights guaranteed by this Constitution me not dependent on those gumanteed by the United States Constitution."] of article I. The substantive scope of' that provision "remains unaffected by Proposition 8." (In re Lance W., supra, 37 Cal.3d at p. 886; AOB 40-41.)

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., 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 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 40-44.)

C. None Of The Cases Relied On By Respondent's Addressed .A State Due Process Claim For Pre-Accusation Delay.

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 appellant's state right to due process oflaw. (RB 52.)

However, neither Valencia nor the cases it relied on addressed a state due process claim for pre-accusation delay. (AOB 37-40.) They addressed

-_

affect any existing statutory or constitutional right of the press." Trials & Tribulations

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 because it was a "a judicially created exclusionary rule expressly rejected by the United States Supreme Court under the federal Constitution."]; In re Lance W, supra, 3 7 Cal.3 d 873 [applying federal standards for exclusion of evidence of marijuana allegedly obtained from an unlawful search of a car].)

Altematively, the cases applied United States Supreme Court precedent 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 (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 [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. 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 United States v. Valenzuela-Bernal (1981) 458 U.S. 858 [73 L.Ed.2d 1193, 102 S.Ct. 3440].)

Citing People v. Angeles (1985) 172 Cal.App. 3d 1203, 1217 (Angeles), respondent cHtm1s that an aue process cla1ms are fungioie wlwther or not they arise under the state or federal constitution. (RB 57.) However, Angeles 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.) 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 Trials & Tribulations

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 functional difference between a judicially created exclusionary rule for 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 being excluded, and the reasoning of In re Lance W. should be applicable to both situations." (Id. at p. 1217.) Respondent observes that People v. 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 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 Trombetta governed claims for exclusion of evidence based on the loss of evidence by the police after the defendant's arrest. (I d. at p. 1234 [Application 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-accusation delay. Therefore, they have no application here. (People v. 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."].)

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. (Trope v. Katz (1995) 11 Cal.4th 274, 286-287; United States v. Hardin (6th 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 delivering a judicial opinion, but one that is mmecessary to the decision in the case and therefore not precedential (although it may be considered persuasive).'"].)

However, Boyseil addressed the Issue presented here: whether 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 advantage over a defendant." (Boysen, 165 Cal.App. 4th at p. 772.)

Boysen held that the state due process standard applied so "that 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 of a fact.' Nothing in this definition suggests 'evidence' includes "dismissals." Nothing in: section28(d) [now (f)(2)] suggests Proposition 8 was intended to 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 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 Trials & Tribulations

336, 349-355 (Raven).) Respondent argues that Raven does not support Boysen. (RB 58-59.)

However, Raven rejected as unconstitutional another proposition (Proposition 115) providing that the California "Constitution shall not be construed by the 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 that that this was an "invalid revision of the Califomia Constitution" beyond the scope of the initiative process (id. at p. 355) because it "would substantially alter the substance and integrity of the state Constitution as a document of independent force and effect." (ld. at p. 352.)

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 People v. Ramos (1984) 37 Cal.3d 136, 152 ["As the Attorney General acknowledges, 'defendant's state constitutional ... [due process] claim cannot 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 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 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

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 adoption ofProposition 8, the California Supreme Court has continued to give 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 750,754-755 [Recognizing "impmiant differences in the operation of the state and federal constitutional rights as construed by our comis."]; People v. DePriest (2007) 42 Ca1.4th 1, 26.)

E. Even If Applied, Federal Law Does Not Require Intentional Delay To Gain A Tactical Advantage.

Respondent next argues that to meet the federal due process a appellant 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 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 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 [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 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 (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 question at issue." (Texas v. Cobb (2001) 532 U.S. 162, 169 [121 S.Ct. 1335, 149 L.Ed.2d 321].)

Neither of the high court cases relied on by respondent and discussed in Nelson addressed a due process claim for pre-accusation delay.

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 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.) 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 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 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 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 Trials & Tribulations

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 showing of prosecutorial delay incuiTed in reckless disregard of circumstances, known to the prosecution" might constitute a due process violation. (Lovasco, 431 U.S. atp. 796 n.l7.)

However, Lovasco held that reasonable investigative delay did not violate due process. (ld. at p. 796 ["We therefore hold that to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of 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." (I d. at p. 797 .)

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 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 apply "before any adversary judicial proceedings had been initiated against them." (ld. at p. 192.) In dicta, Gouveia stated that "the Fifth Amendment 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 and that it caused him actual prejudice in presenting his defense." (I d. at p.

-In 790, and Marion, 404 U.S. at 324. (Ibid.) Trials & Tribulations

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 occunence of the alleged criminal acts and the filing of the indictment." ( 404 U.S. at 308.)

Marion first rejected the defendants' claim that Sixth Amendment standards governed because "the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an 11 accused, 11

an event that occuned in this case only when the appellees were indicted on April21, 1970." (Ibid.}

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 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 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 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 . one suggests that every delay-caused detriment to a defendant's case should abmi a criminal prosecution. To accommodate the sound administration of 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. Trials & Tribulations

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 violate due process. 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.)

F. Even If Federal Law Applies, The 23-Year Delay Was Unreasonable And Prejudicial To Appellant's Defense.

Assuming the federal law applies, respondent argues that appellant failed to show "that the prosecution team knew about any circumstances that

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 with "reckless disregard" of appellant's due process rights by overlooking leads as argued by the defense. (1 CT 26.)

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."].)

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 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

firearm evidence. (11/6/12 CT 11-13.) Nevertheless, for 23 years the testing, or attempted to test whether her handgun was the murder weapon Trials & Tribulations

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 interrupted a burglary and that appellant was not involved in killing 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 evidence to support this defense of third-party culpability. (AOB 133-36.) The trial court barred this defense because it concluded that appellant failed to present sufficient evidence to support the original detectives conclusion that the charged crime was connected to an armed burglary at a nearby residential 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 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 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 cetera[.]" (Jones v. Superior Court (1970) 3 Ca1.3d 734, 740, citations omission.)

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 something more prosecutable .... '" (People v. Mirenda (2009) 17 4 Cal.App.4th 1313, 1329-30, citation omitted.) Accordingly, the delay in this case served 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.

Citing People v. Cowan (201 0) 50 Ca1.4th 401, 431 ("Cowan"), respondent argues that the abuse of standard applies to all issues 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 findings are supported by substantial evidence. (AOB 36-37; People v. Alexander (2010) 49 Ca1.4th 846, 874.)

However, the application of the law to the facts to detem1ine whether 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 ["'Any conclusions oflaw, or of mixed questions oflaw and fact, are subject to independent review.' [Citation.]"]; People v. Cromer (2001) 24 Ca1.4th 889, 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 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 years (from 1986-2009) before it conducted a DNA analysis." (RB 65.) Although this was three years longer than the delay in Nelson, respondent 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


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 required to defer to the government in every case of pre-accusation delay. However, "negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process." (Id. at p. 1255.)

Moreover, the statement cited by respondent must be read in light of the factual circumstances giving rise to it. Nelson found reasonable investigatory delay because the police after the 1976 rape-murder interviewed the rape suspect and found that "he pr

police officer. The Califmnia Supreme Court has recognized a heightened standard of

diligence where there is evidence of officer involvement in a crime. "To maintain the public's confidence in its police force, a law enforcement agency must promptly, thoroughly, and fairly investigate allegations of officer misconduct[.]" (Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal. 3d 564, 572; AOB 47.) Respondent asserts that this admonition should be disregarded based on Nelson. (RB 65.) However, the circumstances of Nelson provide no reason to do so.

3. The Delay Was Prejudicial. 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

home. (RB 66.) Respondent's position is flawed both legally and factually. As mater oflaw, a "defendant is presumed innocent until proven guilty,

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 offense. Identity as the perpetrator must be proved beyond a reasonable doubt."].}

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 with the prosecution. (Ibid.; People v. Booker, supra, 51 Cal.4th at 185.)

----'-------not suggest an innocent presence in Rasmussen's residence. On February 24-

11


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 Rasmussen's BMW was stolen. (11 RT 1732-33, 1749-53, 1754.) None of those could be attributed to appellant, Rasmussen, or Ruetten. . (Ibid.)

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 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 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 excluded as a contributor at all of these locations. (Ibid.)

In the stolen BMW taken fiom the garage, there was unidentified male 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 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 such evidence supports a fmding of prejudice. (AOB 49-50.)

Respondent argues that Fowler differs because the defendant in that 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 Trials & Tribulations

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 silence and then the sound of a car driving off. (16 RT 2634-35, 2637-38, 2645-46.) Thus, the crime was the kind of incident that would typically cause a person to notify the police and provide identifying information. Accordingly, the loss of the communication tapes supports a finding of prejudice.

Respondent also argues that no prejudice resulted from the loss of memories by officers working with appellant as to whether she showed any 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.) Respondent also believes that appellant could not have been injured because she was a trained police officer and in above average physical shape. (RB 67-68.)

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 401-02.) 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 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 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 the condo when Rasmussen surprised them and a violent struggle ensued - uring wnicn "'Rasmussen was-For the same reasons, the detectives in 2009 searched appellant's residence Trials & Tribulations

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 708; 6/4/09 Search Wanant Affidavit at p. 9.i

Nevertheless, respondent argues that appellant cannot show that, had she been charged earlier, additional witness would have remembered whether or not she had any injuries. (RB 68.) However, that is precisely the point: the passage of23 years time caused the loss and/or dimming of memories.

Respondent claims that Michael Alexander remembered that appellant did not have any injuries when he worked with her two days after the incident. (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 knowledge.

It is also undisputed that the prosecution failed to test appellant's back-up handgun that the prosecution claimed to be the murder weapon. 1 CT 1 0-11.) 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 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.) Nevertheless, the police did nothing for two weeks. The failure to do so is further evidence of delay prejudicial to the defense.

Finally, respondent argues that appellant made false exculpatory

3 The search warrants and affidavits are attached as exhibits to appellant's May 28, 2013 Motion to Augment the Record on Appeal.

201---------------------------------------------Trials & Tribulations

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 bringing appellant to the jail interview area to question a witness on one of her cases. (7 CT 14 21, 14 24; 2 RT E-15.) Then they suddenly began questioning her about her relationship with Rasmussen's husband and knowledge of 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 was married and a mother.

II.

THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION To QUASH THE SEARCH WARRANTS AND To SUPPRESS EVIDENCE.

A. Probable Cause To Arrest Appellant Did Not Establish Probable Cause To Search Her Residence And Computers 23 Years After The Crime.

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 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 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." (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 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

this. The only basis for this claim was Detective Stearns' "opinion" that appellant "may be in possession of diaries, daily journals or other writing 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 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 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 disclosure of supporting facts or circumstances" is insufficient to establish probable cause]; accord United States v. Ventresca (1965) 380 U.S. 102, 108-109 [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 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 designed to foreclose." (United Statesv. Schultz (6th Cir. 1994) 14 F.3d 1093, 1 097-98.)

As to the search for appellant's computers, respondent concedes no - - - -=c..=

homicide. (RB 77-78.) Nevertheless, respondent assetis "there was a fair Trials & Tribulations

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 speculation compounded by speculation. The affidavit presents no facts that 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 1985-1986.

"The magistrate must be presented facts and not conclusory statements 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 possibility is nothing more than speculation. Speculation is not substantial evidence." (People v. Perez (1992) 2 Cal.4th 1117, 1133.) "That an event 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 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 handed law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective 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

-there is specific particular place for which the warrant is sought." (People v. Carrington Trials & Tribulations

(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 527; 103 S. Ct. 2317].)

C. The Information In The Affidavit Was Too Stale To Provide Probable Cause To Search 23 Years After The Crime.

"Stale information in a search wanant affidavit does not establish present probable cause for a search." (People v. Hirata (2009) 175 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 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.

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, 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]; 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 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 four years old at the time the statements were given." (Ibid.) Nevertheless,

---=-- -""'-.=.c.c-'-' -=--=- cc_-=--=--=----=---==--'-'-"'=-'-'----'--'-

would not necessarily bear on the sufficiency of probable cause inasmuch as Trials & Tribulations

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.)

Respondent recognizes that the materials sought from appellant's personal residence were not business records but insists that because appellant was so "obsessed" with Ruetten she would have kept documents relating to Ruetten "throughout her lifetime." (RB 78.)

That indeed was the prosecution theory at trial based on fmding writing 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 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 omitted.)

The affidavit itself offers only statements of opinion that 23 years after 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.)

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." (Ibid.) However, Ruetten did not say that he had any continuing contact with appellant after June 1985. (Ibid.)

The police also interviewed Rasmussen's former roommate who said -

Rasmussen's workplace in the fall of 1985. However, Rasmussen simply Trials & Tribulations

"described the incident to [the roommate] as, '[a]n odd thing with a women dressed real provocatively."' (I d. at p. 19.)

In May 2009, the police interviewed Rasmussen's father. (Id. atp. 21.) He said that Rasmussen told him in January 1986 that she came upon

appellant in her apartment and didn't know how she had entered. (Ibid.) Appellant said that "she needed to talk to John and. their was a verbal 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 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 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 Stearns offered only his "opinion" that appellant "may be in possession of diaries, daily journals or other writing expressing her feelings towards Ruetten and Rasmussen at the time leading up to and after the murder." (I d. at pp. 25-26.) 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 searched "m1d any criminal activity." (United States v. Schultz, supra, 14 F.3d at pp. 1097-98.)

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, 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 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 diverse as searches for business records (McKirdy, supra, 138 Cal.App. 3d at 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 (Peoplev. Cmpenter(1999)21 Ca1.4th 1016, 1044; UnitedStatesv. Grant(9tl1

. Cir. 2012) 682 F.3rd 827, 835; pornography (People v. Nicholls (2008) 159 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. 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.' [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 information should not be permitted to trump the F omih Amendment protection against that evil.

D. The Affidavit Also Failed To Provide Probable Cause To Search Appellant's Residence For The Murder Weapon.

Detective Steams offered as an additional justification for the search his 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 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. 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 Trials & Tribulations

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 (9th Cir. 2012) 682 F.3rd 827, 835 ["In sum, the affidavit does not establish a 'fair probability' that the gun or ammunition from the homicide would be in Grant's home nearly nine months after the murder.")

E. The Good Faith Exception To The Exclusionary Rule Does Not Apply To Evidence Obtained By An Overbroad Search Warrant Lacking Probable Cause.

Respondent argues that the trial court properly concluded that that the good faith exception to the exclusionary rule (United States v. Leon (1984) 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[.]" (RB 79-80; see 2 RT C3-4, 7-8, 9, 12.)

However, Leon recognized that suppression "remains an appropriate 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 ["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 cause as to render official belief in its existence entirely unreasonable"].) Therefore, "[i]f a wanant lacks probable cause, evidence obtained during its 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. Trials & Tribulations

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 knew or should have known was false and, therefore, the officers could reasonably rely on. (RB 80, citing People v. Lim (2000) 85 Cal.App. 4th 1289, 1296.)

However, the cases discussed above have not found the good faith exception inapplicable only where the officer provided false information. People v. Lim, supra, also recognized that there are "four situations in which reliance would not be established and suppression would remain an appropriate remedy: ( 1) the issuing magistrate was misled by information that the officer knew or should have known was false; (2) the magistrate wholly 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 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.

F. Admission Of The Evidence From The Unlawful Searches Was Prejudicial To Appellant's Defense.

1. Appellant Was Not Required To Prove Her Innocence.

Assuming an unlawful search, respondent argues that appellant suffered 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 defense's burden to prove [she] was innocent. It was the prosecutor's burden to 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 defendant "is not required to prove his innocence. The People must prove him guilty."].)

"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 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 F.3d 717, 723.)

Moreover, as respondent recognizes (RB 71 ), Rasmussen's roommate 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.) 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 continued after his engagement to Rasmussen, there was another explanation for why appellant's DNA could have been found at the Ruetten-Rasmussen residence.


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 prosecutor's use of the DNA evidence exemplifies the prosecutor's fallacy, i.e., "equating random match probability wifli source probability, and an underestimate of the likelihood that ... [someone else] would also match the DNA left at the scene." (McDaniel v. Brown (2010) 558 U.S. 120, 129-30 [130 S. Ct. 665; 175 L. Ed. 2d 582]; AOB 79-80.) Thus, it is not the case, as 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. (AOB 76-79.)

Respondent asserts that the prosecution did not make this claim. 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 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 center was filled with women, only one other woman could have contributed that profile. (19 RT 3206-07.)

Thus, the prosecutor adopted the fallacy of "equating random match probability with source probability, and an underestimate of the likelihood that ... [someone else] would also match the DNA left at the scene." (McDaniel v. Brown, supra, 558 U.S. at 129-130.)

-- espondent-attempmo-avoicl,-tnis -conclusionby evidence discussed in McDaniel v. Brown, supra. (RB 81, quoting McDaniel Trials & Tribulations

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."].)

Respondent failed to explain that McDaniel v. Brown, supra, involved a collateral attack on the judgment in habeas proceedings. The question presented was whether in assessing the sufficiency of the evidence for a rape verdict under Jackson v. Virginia (1979) 443 U.S. 307 (Jackson), the lower court erred by "relying upon a report prepared by a DNA expert ["the Mueller report"] over 11 years afterthetrial[.]" (McDanielv. Brown, supra, 558 U.S. at 121.) The high court "granted ce1iiorari to consider two questions: the 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.)

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 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. (I d. at 132 ["Even if the Comi of Appeals 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."].)

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 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 Trials & Tribulations

arguing that other motive evidence cured any error :fi.om admission of the evidence of the illegal searches.

3. 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 prosecut

Documents

Stephanie Lazarus Criminal Appeal: Appellant's Reply Brief