Stephanie Lazarus Appeal: Respondent's (State of CA) Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION FOUR
Plaintiff and Respondent,
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THE PEOPLE OF THE STATE OF CALIFORNIA,
Case No. B241172
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v.
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Defendant and Appellant.
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STEPHANIE ILENE LAZARUS,
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Los Angeles County Superior Court, Case No. BA357423

The Honorable Robert J. Perry, Judge
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RESPONDENT'S BRIEF
KAMALA D. HARRIS
Attorney General of California
DANE R. GILLETTE
Chief Assistant Attorney General
LANCE E. WINTERS
Senior Assistant Attorney General
LINDA C. JOHNSON
Supervising Deputy Attorney General
MICHAEL KATZ
Deputy Attorney General
State Bar No. 129887
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 620-6059
Fax: (213) 897-6496
E-mail: Michael.Katz@doj.ca.gov
DocketingLAAWT@doj.ca.gov
Attorneys for Plaintiff and Respondent
TABLE OF CONTENTS
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Statement of the Case.................................................................................1
Statement of Facts......................................................................................1
Prosecution Evidence.................................................1
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A.
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1.. The Victims Sister Tried To Reach Her On

The Morning Of The Murder ..........................1
2. The Authorities Went To The Crime Scene ...........2
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3. The Condition Of The Victims Body ...................3

4. The Victims Neighbor Received The
Victims Purse And Told The Police ...............4
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5. Former Officer Hooks Talked To The

Neighbor And Inspected The Scene ................5
6. Scientific Evidence ...............................................8
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7. The Victims Car ................................................ 15
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8. Testimony From Another Former Officer

Who Rented A Room From Appellant
Before The Murder .......................................16
9. Testimony From Ruetten.....................................18
10. Testimony From Ruettens Sister ...................... 25
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11. Testimony From College Friends Of

Ruetten And Appellant ..................................26
12. The Police Searched Appellants Home In
2009 And Found Her Written Comments
About Ruetten From The 1980s And
Her Photos Of Him .......................................27
13. About Two Weeks After The Murder,
Appellant Reported Her Gun Was
Stolen; Her Gun Was Consistent With
The Kind Of Gun The Murderer Used,
Although It Was Not The Only Gun That
The Murderer Could Have Used ...................30
14. Appellants Interview With The Police .............35
TABLE OF CONTENTS
(continued)
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15. Further Evidence Of Appellants Physical

Strength, Her Superior Shooting Skill,
Her Knowledge Of How Police
Investigated Crimes, And Her
Knowledge Of Picking Locks .......................40
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16. Forensic Behavioral Analysis ............................42

B.
Defense Evidence ....................................................46
The prosecutions delay before appellants arrest did

not violate due process .......................................................52
A.
Relevant Proceedings ...............................................52
B.
Analysis ...................................................................52
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I.
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Argument ................................................................................................. 52
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1. Since Proposition 8 Applies Here, Federal

Constitutional Law Is Relevant To This
Claim, And State Law Is Irrelevant ...............52
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2. According To Federal Constitutional Law,

Appellants Claim Of Pretrial Delay
Lacks Merit ...................................................60
The trial court correctly denied appellants motion to

quash the search warrants ...................................................69
A.
B.
Analysis ...................................................................75
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II.
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3. Even Under State Law, This Claim Lacks

Merit .............................................................62
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III.
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IV.
The trial court properly denied appellants motion to

traverse the search warrants ................................................85
Appellant was not legally compelled to answer

questions from the police due to her administrative
responsibilities as a police officer .......................................89
A.
B.
Analysis ...................................................................91
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TABLE OF CONTENTS
(continued)
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VII.
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Relevant Proceedings ............................................. 104
B.
Summary of the DNA and the PCR/STR

processes ............................................................... 105
C.
Application of legal standards regarding a Kelly

prong one hearing .................................................. 108
D.
Appellant forfeited any prong three error ............... 117
E.
Any error is harmless ............................................. 117
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A.
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The court did not abuse its discretion when it excluded

defense evidence of third party culpability because the
evidence was insufficient to meet the threshold for
admissibility ..................................................................... 122
A.
B.
Analysis ................................................................. 125
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VI.
The trial court correctly denied appellants request for

a Kelly prong one hearing, moreover, appellant
forfeited her claim regarding prong three of Kelly, and
any error is harmless......................................................... 104
The trial court did not abuse its discretion or violate

appellants federal constitutional rights when it denied
her request to cross-examine the forensic behavioral
analysis expert about evidence of other burglaries ............ 131
A.
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B.
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V.
VIII.

Analysis ................................................................. 132
There was no cumulative error......................................... 133
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Conclusion ............................................................................................. 134
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TABLE OF AUTHORITIES
CASES
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California Correctional Peace Officers Assn. v. State of California

(2000) 82 Cal.App.4th 294 ............................................................. 94
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Page
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California v. Trombetta
(1984) 467 U.S. 479 [81 L.Ed.2d 413, 104 S.Ct. 2528].............. 54, 55
Chapman v. California
(1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] ..................passim
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Christal v. Police Commission

(1939) 33 Cal.App.2d 564 ....................................................... 99, 100
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Commonwealth v. Blasioli
(Pa.Super.Ct. 1996) 685 A.2d 151 ................................................ 116
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Daubert v. Merrell Dow Pharmaceuticals, Inc.

(1993) 509 U.S. 579 [113 S.Ct. 2786, 125 L.Ed.2d 469]............... 115
Delaware v. Van Arsdall
(1986) 475 U.S. 673 [106 S.Ct 1431, 89 L.Ed.2d 674].................. 132
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Fichera v. State Personnel Bd.

(1963) 217 Cal.App.2d 613 .......................................................... 101
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Fowler v. Superior Court

(1984) 162 Cal.App.3d 215 ............................................................ 67
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Franks v. Delaware
(1984) 438 U.S. 154 [98 S.Ct. 2674, 57 L.Ed.2d 667]..................... 86
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Frye v. United States

(D.C. Cir. 1923) 293 F. 1013 ......................................... 104, 114, 116
Gardner v. Broderick
(1968) 392 U.S. 273 [88 S.Ct. 1913,
20 L.Ed.2d 1082] ....................................................... 98, 99, 100, 102
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(continued)
Garrity v. New Jersey
(1967) 385 U.S. 493 [87 S.Ct. 616, 17 L.Ed.2d 562]
.......................................................................... 91-92, 94-95, 98, 100
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Hemler v. Superior Court

(1975) 44 Cal.App.3d 430 .............................................................. 79
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Page
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Illinois v. Gates
(1983) 462 U.S. 213 [103 S.Ct. 2317, 76 L.Ed.2d 527].. 76, 77, 86, 89
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In re Lance W.
(1985) 37 Cal.3d 873 ..................................................... 53, 55, 56, 57
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In re Ryan N.
(2001) 92 Cal.App.4th 1359 ......................................................... 132
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McDaniel v. Brown
(2010) 558 U.S. 120, [130 S.Ct. 665, 175 L.Ed.2d 582].............81, 82
McKinley v. City of Mansfield
(6th Cir. 2005) 404 F.3d 418 .......................................................... 95
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McKirdy v. Superior Court

(1982) 138 Cal.App.3d 12 .............................................................. 78
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Miranda v. Arizona
(1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]..................... 93
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Pasadena Police Officers Assn. v. City of Pasadena

(1990) 51 Cal.3d 564 ............................................................... 93, 102
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People v. Abilez
(2007) 41 Cal.4th 472 ................................................................... 127
People v. Alcala
(1992) 4 Cal.4th 742 .............................................................. 126, 131
People v. Allen
(1999) 72 Cal.App.4th 1093 ......................................................... 113
(continued)
People v. Angeles
(1985) 172 Cal.App.3d 1203 ................................... 56, 57, 58, 59, 60
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People v. Axell
(1991) 235 Cal.App.3d 836 .......................................................... 113
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Page
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People v. Ayala
(2000) 23 Cal.4th 225 ................................................................... 132
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People v. Boysen
(2007) 165 Cal.App.4th 761 ......................................................57, 58
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People v. Camarella
(1991) 54 Cal.3d 592 .................................................................79, 80
People v. Carrington
(2009) 47 Cal.4th 145 ..................................................................... 78
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People v. Chun
(2009) 45 Cal.4th 1172 ................................................................... 61
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People v. Cooper
(1991) 53 Cal.3d 771 ............................................. 109, 110, 111, 112
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People v. Cowan
(2010) 50 Cal.4th 401 ................................................................62, 63
People v. Cunningham
(2003) 25 Cal.4th 926 ................................................................... 133
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People v. Davis
(1995) 10 Cal.4th 463 ................................................................... 128
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People v. Edwards
(2013) 57 Cal.4th 658 ............................................................ 125, 128
People v. Epps
(1986) 182 Cal.App.3d 1102 ..................................................... 54, 55
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(continued)
People v. Eubanks
(2011) 53 Cal.4th 110 ................................................................86, 87
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People v. Fuiava
(2012) 53 Cal.4th 622 ................................................................... 118
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Page
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People v. Garcia
(2003) 111 Cal.App.4th 715 ......................................................76, 79
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People v. Garcia
(N.Y. Sup. Ct. 2013) 39 Misc.3d 482 [963 N.Y.S.2d 517] ............ 114
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People v. Gurule
(2002) 28 Cal.4th 557 ................................................................... 103
People v. Hartsch
(2010) 49 Cal.4th 472 ................................................................... 133
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People v. Haston
(1968) 69 Cal.2d 233 .................................................................... 128
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People v. Henderson
(2003) 107 Cal.App.4th 769 ......................................................... 112
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People v. Hill
(2001) 89 Cal.App.4th 48 ................................ 104-105, 108-113, 117
People v. Hirata
(2009) 175 Cal.App.4th 1499 ......................................................... 79
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People v. Hughes
(2002) 27 Cal.4th 287 ..................................................................... 77
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People v. Hulland
(2003) 110 Cal.App.4th 1646 ......................................................... 79
People v. Johnson
(1989) 47 Cal.3d 1194. ........................................................ 55-58, 60
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(continued)
People v. Kelly
(1976) 17 Cal.3d 24 ................................. 104-105, 108-110, 113, 117
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People v. Kraft
(2000) 23 Cal.4th 978 ..................................................................... 76
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Page
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People v. Lewis
(2001) 26 Cal.4th 334 ................................................................... 126
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People v. Lim
(2000) 85 Cal.App.4th 1289 ........................................................... 80
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People v. Lopez
(1988) 198 Cal.App.3d 135 ............................................................ 55
People v. Lynch
(2010) 50 Cal.4th 693 ............................................................ 129, 130
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People v. May
(1988) 44 Cal.3d 309 ........................................................... 53, 55, 56
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People v. McDaniels
(1994) 21 Cal.App.4th 1560 ......................................................77, 80
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People v. McKinnon
(2011) 52 Cal.4th 610 ................................................................... 129
People v. McWhorter
(2009) 47 Cal.4th 318 ................................................................... 128
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People v. Mirenda
(2009) 174 Cal.App.4th 1313 ......................................................... 66
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People v. Morganti
(1996) 43 Cal.App.4th 643 ........................................................... 113
People v. Morris
(1988) 199 Cal.App.3d 377 .......................................................... 115
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(continued)
People v. Nelson
(2008) 43 Cal.4th 1242 ................................................... 52-53, 61-67
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People v. Page
(2008) 44 Cal.4th 1 ................................................................ 126, 127
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Page
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People v. Ramirez
(2006) 39 Cal.4th 398 ............................................................ 129, 130
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People v. Ramos
(1984) 37 Cal.3d 136 ...................................................................... 59
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People v. Ramos
(1997) 15 Cal.4th 1133 ................................................................. 117
People v. Reeves
(2001) 91 Cal.App.4th 14 ...................................................... 106, 116
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People v. Rodriguez
(1999) 20 Cal.4th 1 ....................................................................... 132
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People v. Scott
(2011) 52 Cal.4th 452 ................................................................... 127
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People v. Seaton
(2001) 26 Cal.4th 598 ................................................................... 133
People v. Shirley
(1982) 31 Cal.3d 18 ...................................................................... 115
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People v. Smith
(2003) 107 Cal.App.4th 646 .......................................... 105, 107, 109
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People v. Soto
(1999) 21 Cal.4th 512 ................................................................... 109
People v. Thompson
(2006) 39 Cal.4th 811 ..................................................................... 76
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(continued)
People v. Tierce
(1985) 165 Cal.App.3d 256 .......................................................54, 55
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People v. Tuadles
(1992) 7 Cal.App.4th 1777 ............................................................. 76
ns
Page
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People v. Valencia
(1990) 218 Cal.App.3d 808 ........................................... 52, 53, 54, 55
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People v. Varghese
(2008) 162 Cal.App.4th 1084 ......................................................... 77
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People v. Venegas
(1998) 18 Cal.4th 47 .............................................. 108, 109, 110, 118
People v. Wash
(1993) 6 Cal.4th 215 ..................................................................... 109
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People v. Watson
(1956) 46 Cal.2d 818 ................................................................passim
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People v. Williams
(2000) 79 Cal.App.4th 1157 ......................................................67, 83
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Perry v. New Hampshire

(2012) 565 U.S. ___, [132 S.Ct. 716, 181 L.Ed.2d 694]................ 118
Raven v. Deukmejian
(1990) 52 Cal.3d 336 ........................................................... 58, 59, 60
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Riverside County Sheriffs Dept. v. Zigman

(2008) 169 Cal.App.4th 763 ......................................................... 102
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Sanitation Men v. Sanitation Commr

(1968) 392 U.S. 280 [88 S.Ct. 1917,
20 L.Ed.2d 1089] ....................................................... 98, 99, 100, 102
Spielbauer v. County of Santa Clara
(2009) 45 Cal.4th 704 ................................................................... 102
(continued)
State v. Copeland
(Wash. 1996) 922 P.2d 1304. ................ 116
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State v. Gore
(Wash. 2001) 21 P.3d 262 ............................................................ 116
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Page
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State v. Hughes
(Wash. 2005) 110 P.3d 192 .......................................................... 116
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Szmaciarz v. State Personnel Bd.

(1978) 79 Cal.App.3d 904 ............................................................ 101
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Titus v. Civil Service Com.

(1982) 130 Cal.App.3d 357 .......................................................... 101
United States v. Friedrick
(D.C. Cir. 1988) 842 F.2d 382 ........................................................ 95
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United States v. Goode

(U.S.N.Ct.App. 2001) 54 M.J. 836 ............................................... 116
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United States v. Gouveia

(1984) 467 U.S. 180 [104 S.Ct. 2292, 81 L.Ed.2d 146]................... 60
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United States v. Harris

(1971) 403 U.S. 573 [91 S.Ct. 2075, 29 L.Ed.2d 723]..................... 79
United States v. Leon
(1984) 468 U.S. 897 [104 S.Ct. 3405, 82 L.Ed.2d 677].............. 79, 80
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United States v. Lovasco

(1977) 431 U.S. 783 [97 S.Ct. 2044, 52 L.Ed.2d 752]..................... 62
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United States v. McCluskey

(D.N.M., June 20, 2013, CR 10-2734 JCH) __ F.Supp.2d __
[2013 WL 3766686] .............................................................. 114, 115
United States v. Palmquist
(1st Cir. 2013) 712 F.3d 640 ........................................................... 95
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(continued)
United States v. 8.850
(1983) 461 U.S. 555 [103 S.Ct. 2005, 76 L.Ed.2d 143]................... 60
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United States v. Vangates

(11th Cir. 2002) 287 F.3d 1315....................................................... 95
ns
Page
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Van Winkle v. County of Ventura

(2007) 158 Cal.App.4th 492 ........................................ 92, 93, 94, 103
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Williams v. City of Los Angeles

(1988) 47 Cal.3d 195 .................................................................... 102
STATUTES
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Evid. Code,
352 ............................................................................. 126, 132, 133
402 ............................................................................................ 104
1101 subd.(b)...................................................... 127, 128, 129, 131
1200 .......................................................................................... 103
Gov. Code
3303 ......................................................................................passim
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Pen. Code,
24 .................................................. 56, 57, 86
187 ................................................................. 1
12022.5.......................................................................................... 1
CONSTITUTIONAL PROVISIONS
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Cal. Const., art. I .............................................................................56, 86
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Cal. Const. art. I, 28 .......................................................................... 53

U. S. Const. 4th Amend. ...................55, 56
U. S. Const., 5th Amend. .................................................. 55, 56, 98, 100
U. S. Const., 6th Amend. ................................................................... 118
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(continued)
COURT RULES
Ca. Rules of Court, rule 8.204(d) ....................................................... 112
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OTHER AUTHORITIES
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Moenssens, DNA Evidence and Its CriticsHow Valid Are the

Challenges? (1990) 31.................................................................. 116
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Mulero et al., Development and Validation of the

AmpF STRMiniFilerPCR Amplification Kit: A MiniSTR
Mulitplex for the Analysis of Degraded and/or PCR Inhibited
DNA (2008) ........................................................................... 111, 112
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STATEMENT OF THE CASE

A Los Angeles County Superior Court jury convicted appellant of
first degree murder, a violation of Penal Code1 section 187, subdivision (a).
also found that an enhancement allegation was true, that appellant used a
handgun within the meaning of section 12022.5, subdivision (a)(1). (4CT
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638-639; 7CT 1549.) The trial court sentenced appellant to prison for a
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The jury found that the murder was willful, premeditated, and deliberate. It
appeal. (7CT 1610.)

STATEMENT OF FACTS
Prosecution Evidence
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term of 27 years to life. (7CT 1611-1614.) She filed a timely notice of
As discussed below in detail, appellant murdered Sheri Rasmussen in
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1986. At the time, appellant had been a police officer for almost two years.
Her motive for the murder was that Rasmussen was married to John
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Ruetten, the man appellant wanted to marry. Before Ruetten married

Rasmussen, appellant urged Ruetten not to do so and told him that she
loved him. According to the circumstantial evidence, appellant staged the
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crime scene, and left investigators with the false impression that burglars
killed the victim. The police did not determine that appellant was the
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murderer until 2009 when they arranged for DNA testing. Shortly after
they obtained the DNA results, they arrested appellant who was still on the
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police force.
1.. The Victims Sister Tried To Reach Her On The

Morning Of The Murder
Teresa Lane is Rasmussens sister. (4RT 365-366.) Lane testified
that Rasmussen lived in a condominium on Balboa Boulevard in Van Nuys

1
All further statutory references are to the Penal Code, unless

otherwise indicated.
in early 1986. (4RT 366-367.) On Monday, February 24, 1986, Lane

phoned Rasmussen at work at about 10 a.m. Rasmussens secretary told
Lane that Rasmussen was sick and stayed home. (4RT 389, 391-392.)
Rasmussens answering machine and Lane left a message. Lane phoned
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Lane phoned Rasmussen at home, but her call was transferred to

again around lunch time, and during her next break at work, but did not talk
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to Rasmussen. Lane left about two or three messages for Rasmussen that
day. (4RT 392-393, 403.) After the murder, Lane saw Rasmussens
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husband, Ruetten, at the police station. He was a wreck. He was
emotionally distressed and physically worn out and having a hard time
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comprehending what had happened . . . . (4RT 396.)
2. The Authorities Went To The Crime Scene
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Gregory Telian was a retired Los Angeles City firefighter. (4RT 405.)
In 1986, he was one of the paramedics who went to the crime scene. (4RT
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406.) He and his partner checked Rasmussens vital signs and determined
that she was dead. (4RT 407, 409.) It appeared that she suffered blunt
force trauma to the head. (4RT 407, 410.) The paramedics did not
examine Rasmussens body for gunshots or any other wounds. (4RT 410.)
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Telian stated that the stereo in the condominium appeared to be

yanked from the wall or where it was sitting and thrown down. (4RT
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412-413.) The prosecutor showed Telian a photo of two stereo components

on the step to the entryway. Telian agreed that those were the items he
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mentioned earlier. (4RT 412.) Rasmussens husband, Ruetten, came into

the condominium after Telian did so. (4RT 415.) According to Telian,
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Ruetten was very emotional. Ruetten kept saying, I didnt think it could
happen here. (4RT 413.)
Rodney Forrest was a retired Los Angeles Police officer. He worked
on the date of the murder and went to the crime scene at about 6:15 p.m.
(4RT 417.) When Forrest went inside, Ruetten was there. (4RT 420.) He
looked distraught . . . . He had his head in his hands. (4RT 421, 431432.) Rasmussen had a towel on her face. (4RT 424.) When a detective
phoned Forrest about this case in 2011, Forrest did not remember the case
Forrest did not mention in his report what Ruettens demeanor was. But
Forrest remembered it independently. (4RT 432-433.)
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3. The Condition Of The Victims Body
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at all. But he refreshed his memory with his report. (4RT 428-431.)
Dr. Susan Selser worked in the Los Angeles County Coroners
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Officer. (5RT 759.) She performed the autopsy in this case. (5RT 760.)
The cause of Rasmussens death was multiple gunshot wounds. (5RT 810.)
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Rasmussen had three gunshot wounds. All three entry wounds were in the
front of her body. There were two exit wounds on the back of her body,
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and there was one bullet under her skin in the back. (5RT 762.) That was a
.9 millimeter silver flat-nosed gold base bullet. (5RT 771.)
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One of the wounds had features of a contact gunshot wound, which

meant that either the assailant had the gun right up against [Rasmussens]
skin or its possible [Rasmussens] clothing [was] between the end of the
muzzle and [her] skin . . . . (5RT 766.) [A]long the edges of the wound
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you can see the black discoloration that came from the soot the gun
emitted. (5RT 766-767, 772.)
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On Rasmussens left forearm, Dr. Selser saw a pattern injury that
appeared to [be] consistent with a bite mark. (5RT 775, 778, 808-809.)
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Dr. Selser took a small piece of skin from that area and sent it to the . . .
lab so they [could] make a microscopic slide . . . . When she examined the
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slide, she could see under the microscope . . . that [there] was [a]
hemorrhage or bleeding in the tissues and no inflammation. This was
consistent with the theory that the bite mark appeared on Rasmussens
body on or about the time of [her] death. (5RT 779.)
Dr. Selser also saw a very small abrasion on the lower [back]
forearm just above the wrist area, and a pattern abrasion on the back of
the right arm along the side closest to the thumb. (5RT 780.) The
cord. (5RT 780-781.) The injuries to Rasmussens head were consistent
with the theory that she suffered blunt force trauma there. (5RT 792suffered that trauma by falling against something. (5RT 802.)
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793.) Either a person directly inflicted that injury on her, or Rasmussen
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abrasion could be consistent with the theory that someone used a rope or
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Rasmussen had a torn fenulum, which is inside the mouth on the
upper lip. Dr. Selser explained, just placing [a] hand over [Rasmussens]
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mouth probably wouldnt tear the fenulum. Thered have to be some force
that would cause it to stretch in order to tear it. (5RT 795.) The parties
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stipulated that Rasmussen did not suffer a sexual assault. (5RT 796.)
4. The Victims Neighbor Received The Victims Purse
And Told The Police
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Anatasia Volanitis was a neighbor of Rasmussen. Volanitiss

townhome and Rasmussens townhome were in the same complex.
Volanitis did not know Rasmussen well or know Rasmussens last name.
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They greeted each other when they picked up their mail. (4RT 435-437,
449.) The residents there closed their garage doors when they went to
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work. It would have been unusual for Volanitis to see a garage door open
in that complex if no one was home. (4RT 442.) When Volanitis walked
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past Rasmussens garage door at about 9:45 a.m. on the date of the murder,
Volanitis noticed that Rasmussens garage door was open and there were
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no cars in the garage. (4RT 444, 450.)

At about noon on the date of the murder, two men came to Volanitiss
door. They were dressed in work clothes and spoke Spanish. Volanitis
thought they were gardeners. They did not appear to be nervous or
frightened. They had a purse. Volanitis looked in the wallet that was in the
purse, and she found Rasmussens drivers license. (4RT 445-446.)

Volanitis told these men to go to Rasmussens condominium, and Volanitis
watched them walk in that direction. But they came back five or six
minutes later and gave Volanitis the purse. Later that afternoon, Volanitis
told her husband to give the purse to the police. (4RT 447.)
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Appellants trial counsel showed Volanitis the police report, and
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noticed that the police had come to Rasmussens condominium. Volanitis
asked her whether she told the police that she noticed the open garage door
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at 11:15 a.m. Volanitis replied, if thats what I said, thats what I said. I
dont know. (4RT 448-450.) In Volanitiss signed statement the day after
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the murder, she said that the two men brought her the purse at 4:30 p.m.
She did not write all of that statement. (4RT 451-453.) Volanitis knew that
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part of the statement was inaccurate. The statement reflected that

Volanitiss husband went to work at a particular time that day, but in fact
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he had been retired. (4RT 449, 454.)
5. Former Officer Hooks Talked To The Neighbor And

Inspected The Scene
Steven Hooks was a retired Los Angeles Police officer. He was a
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detective in 1986. (4RT 455-456.) According to Hooks, Rasmussens

neighbor, Volanitis, told Hooks that she saw Rasmussens garage door was
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open at 11:20 a.m., and she received the purse at 4:30 p.m. on the day of
the murder. (5RT 604.) Hooks went to the crime scene at 7:45 p.m. on the
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day of the murder. (4RT 459-460.) Rasmussen was dead. Her body was in
the living room. She had on a red robe and a pink top. (4RT 465-466.)
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Rasmussens right eye was bruised closed. [There was] [b]lood spattering
on her face. (4RT 466.) Hooks saw the coroners investigators pull back
Rasmussens clothing. (4RT 482.) There [a]ppeared to be two bullet
entry wounds on the left portion of her chest. (4RT 467, 482.) There was
a third gunshot wound in the middle of her chest. (4RT 482.) There
[a]ppeared to be a human bite mark on Rasmussens left forearm. (4RT

485.)
Hooks saw the coroners investigators roll Rasmussens body on its
wound . . . a lump under the skin, [and] a spent . . . bullet. (4RT 486.)
There was smeared or smudged blood on Rasmussens wrists. (4RT 534-
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side. On Rasmussens back, Hooks saw what [a]ppeared to be a exit
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536.) The condominium had an alarm system. (4RT 499.) The front door
to Rasmussens condominium had three locks on it, an interior deadbolt, a
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key lock deadbolt, and a standard handle lock opening device. (4RT 487.)
There was also a chain on the inside of the door. (4RT 555.) There was no
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damage to the front door, except some small scratches on the doorjamb,
inside the door next to the chain. (4RT 488, 491, 557.) There was no
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evidence that anyone forced the door open. (4RT 491.)
When Hooks participated in the investigation in 1986, he had no
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training, experience, or knowledge about picking locks. (4RT 488.) Lock

picking [involves] using small devices to engage a lock on the interior and
actually activate it without a key. (4RT 556.) A lock picking device
would move a deadbolt. Hooks did not see any evidence that anyone
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tampered with the locks. However, Hooks stated, I dont have much
knowledge of lock picking. (4RT 556.)
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There were three levels in the condominium. The bottom level
included a couch and stereo equipment. The second level included the
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kitchen and a sliding glass door. (4RT 569.) Hooks found two broken
fingernails near the inside of the front door. (4RT 491.) Asked whether he
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found ligature-type items on the entryway landing, Hooks agreed and

added, Speaker wire [was] intermingled with white rope that had a red
stain . . . resembling blood. (4RT 497, 499, 574-576.) Hooks also saw
bloodstains on the inside of the front door. (4RT 500, 538.) There were
[r]ed stains appearing to be blood on the closet door near a wall socket,
and the door leading to the garage. (4RT 501-502, 538.)
Hooks noticed that in the entryway, there was a disc player and a
V.C.R. stacked on top of each other at the base of the stairs that appeared to
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have a . . . red stain resembling a bloody fingerprint. (4RT 504-505, 576,
578; 5RT 607.) There was an end table with a drawer pulled out and [the]
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contents dumped on the floor, and one single piece of paper out in front of
the drawer. (4RT 508, 510-511, 537.) Next to the end table, there was a
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blanket in a chair. (4RT 507-508, 537-538, 572-573.) The blanket
appeared to have gunshot residue on it. (4RT 510.) A porcelain vase was
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broken. (4RT 513.)
Asked if he saw any collapsed shelves or pulled-out drawers in the
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dining room or breakfast room area . . . , Hooks replied that he did not.
(4RT 526.) In the kitchen, none of the shelves were pulled out, no cabinets
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were open, no items were on the floor, there were no fingernails, and there
was no blood. (4RT 526-527.) In the master bedroom, guest bedroom,
study and two bathrooms, there were no bloodstains, broken fingernails,
collapsed shelves, open drawers, open cabinets, or drawers that were
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removed. (4RT 527-531.) In the master bedroom, the drawers and shelves
in the jewelry box were undisturbed. (4RT 529.) There was stereo
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equipment in the study, but it did not appear that anyone had pulled it out.
(4RT 530.)
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There were bullet holes in the curtain covering the sliding glass door.
(4RT 522, 538.) The sliding glass door was locked, but it was shattered
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and bowed out toward the patio. There was glass on the balcony. (4RT
523.) About two or three weeks after the murder, Hooks assisted other
officers who were trying to determine the path of the bullets that passed
through the sliding glass door. (4RT 524-525.) Hooks agreed that when he
returned to the condominium the day after the murder, he saw a small
bloodstain on the . . . wall leading to the garage area, and a small amount
of blood on the file cabinet . . . [near] the stairs[.] (4RT 588.)
The police report in 1986 concluded that there were two suspects who
during a burglary, there was a struggle over the gun, a suspect grabbed
the blanket and fired three shots, two shots were fired in the kitchen area
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[and] went through a glass window, and no one found any bullets at the
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came in the condominium through an open door, Rasmussen surprised them
scene. At the time, Hooks did not state that he disagreed with those
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conclusions. (4RT 567-568, 571, 574; 5RT 612.) However, at trial, he
stated that he did not completely agree with them. Detective Lyle Mayer
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wrote that report. (5RT 606, 612.)

6. Scientific Evidence
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Joe Murillo recently retired from the Los Angeles County Corners
Office. (5RT 615.) In 1986, he made blood swatches after the autopsy of
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Rasmussen. (5RT 616.) Murillo stated, A blood swatch is a . . . piece of

cloth that is attached to a swatch card that we pour the blood on . . . . (5RT
617.) The blood swatch dries overnight on a countertop. When Murillo
went to work in the morning, he collect[ed] all of them and . . . put them in
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the freezer. (5RT 617-618.)

The court admitted the preliminary hearing testimony of Senior
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Criminalist Lloyd Maheny who passed away before trial. (5RT 648-650.)
Maheny found a bite mark on Rasmussens body and took two swabs of
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that area. (5RT 658-659, 665-670, 681-682.)

On May 28, 2009, Detective Roberto Morales worked undercover
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with other members of his surveillance team. His mission was to obtain a
D.N.A. sample [from appellant] in a public place. (6RT 967-969.) He
saw appellant at Costco. (6RT 969-970.) She was drinking from a cup at
the food court. (6RT 970-971.) Detective Morales watched appellant take
a last sip from a straw and put the cup in a trash can. Detective Morales
looked at the trash can and noticed that no one else put anything in it. (6RT
972-973, 979.) He quickly went to the trash can and took two similar
cups . . . . (6RT 974.) Each cup had a lid and straw. He picked each one
Detective Dante Palacios was on the same surveillance team and
corroborated Detective Moraless testimony. He took the cups from
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Detective Morales and gave them to Sergeant Jim Hensley. (6RT 980-
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up by the bottom and put them in envelopes. (6RT 974-975.)
984.) Sergeant Hensley corroborated Detective Palacioss testimony.
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Sergeant Hensley gave the envelopes to the crime lab. (6RT 986-988.)
Supervising Criminalist Michael Mastrocovo (7RT 1060) was an
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expert in DNA identification (7RT 1062). He analyzed the plastic cups that
the police retrieved from the trash can at Costco. Mastrocovo labeled the
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cups 7A and 7B. Each cup had a cap and straw. (7RT 1062-1063.) The
two cups had different DNA profiles. (7RT 1065.) The DNA profile from
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one of the cups (item 7A) matched the DNA profile from item 30 (the swab
from the bite mark), at 11 of the 13 locations of the profile. (7RT 1066.)
As for the other two locations of the profile, there was no data for one
location, and there was data for only one of the two alleles at the other
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location. (7RT 1066-1067.) Mastrocovo tested two additional locations of

the DNA profile of item 7A, and found that they also matched the DNA
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profile of the bite mark swab. (7RT 1067.)

Officer Maria Thomas testified that she was present on June 5, 2009,
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when a criminalist, Nand Hart Nibbrig, took two oral swab samples from
appellant in an interview room. (7RT 1043-1046.) Nibbrig corroborated
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Thomass testimony. (7RT 1048-1052.)

Jennifer Francis was a criminalist in the Los Angeles Police
Departments Crime Lab. (6RT 992.) She explained in general how she
conducts DNA analysis. (6RT 993-999.) Francis analyzed one of the two
swabs from the bite mark. That swab contained DNA from more than one
person. (7RT 1024-1025, 1035.) This result was not unlikely . . . given
that youre swabbing someones actual body. It would not be unusual to
pick up some of their D.N.A. profile. (7RT 1037.) Rasmussens DNA
DNA mixture. This person contributed a very low level of DNA to the
mixture. (7RT 1037-1038, 1040.) Rasmussen was not the major
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contributor to the DNA mixture. (7RT 1039-1041.)
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profile was consistent with the DNA left by the minor contributor to the
The DNA evidence for the major contributor to the bite mark was
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based on 13 locations or loci. Francis compared those 13 locations to
appellants DNA profile. All of them matched. (7RT 1102-1103.) The
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combination of [those 13] genetic markers . . . is expected to be found in 1

in every 402 quadrillion unrelated individuals. (7RT 1103.) Since the
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population of the earth is approximately seven billion people, one

quadrillion is approximately a hundred million earths. (7RT 1103-1104.)
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Francis analyzed the rope from the crime scene. (7RT 1104; 8RT
1248-1249.) She obtained both partial and full genetic profiles from the
human DNA on that item. Those profiles matched Rasmussens DNA.
(7RT 1104-1105.) Appellants DNA was not on the rope. (7RT 1106.)
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Thomas Fedor was a forensic serologist with the Serological Research

Institute (SERI) in Richmond, California. (12RT 1918.) He described
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his training and experience. (12RT 1919-1920.) When Fedor examined the
evidence in this case, someone else was there on appellants behalf. (12RT
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1921-1922.) Fedor analyzed the second swab from the bite mark. (12RT
1922-1923.) He found a mixture of DNA from at least two people. The
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major portion of that DNA had the same profile as appellant. The minor
portion of that profile was weak and in places perhaps ambiguous, but none
of it was foreign to . . . Rasmussen. (12RT 1923, 1960, 2045.) [T]he
chance a woman unrelated [to appellant] would have the same D.N.A.
profile as the major portion of the bite mark swab is approximately 1 in 1.7
10
sextillion. (12RT 1938.) [W]e would need 240 billion planet earths to
reach a population of 1.7 sextillion. (12RT 1939.)
For the bite mark swab analysis, Fedor used a commercial kit called
Identifiler, which SERI bought from the manufacturer. Identifiler involves
location that indicates the gender of the source of the material. (12RT
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1926.) For other tests, Fedor used the MiniFiler kit, which he described
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a test for 15 different locations or loci of the DNA profile. There is also a
this way:
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Minfiler is another P.C.R. reagent kit that is particularly

suitable for testing very small or degraded samples of D.N.A. It
essentially takes the markers that in Identifiler are susceptible to
degradation, that is, that dont give very much information in
small quantities or degraded quantities, and focuses on getting
information from those markers supplemental to the Identifiler
reagent kit that allows us to fill in some areas where Identifiler
may give weak or no results.
(12RT 1941.) MiniFiler is a test for nine locations of the DNA profile.
Tr
The ninth location reflects the gender of the person. (12RT 1943.)
Fedor used MiniFiler to analyze a broken fingernail. There were
weak and inconsistent results indicating a [DNA] mixture from at least
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three persons. (12RT 1944.) Rasmussen is a possible contributor to the

mixture, and approximately 1 woman in 670 would be similarly
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considered. (12RT 1944.) Appellant is another possible contributor . . .

and approximately 1 woman in 26,000 would be similarly considered.
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(12RT 1944, 2014, 2048.) There was no evidence of male DNA in it.
(12RT 1944.) The third person who contributed to the DNA mixture left a
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very low level[] of DNA there. This is more consistent with a casual
sort of contact . . . . (12RT 1948-1949.)
Regarding the DNA on another fingernail, Fedor determined that . . .
Rasmussen and [appellant] each could be a contributor to the mixture. The

statistics regarding [appellant] are 1 in 9,000. With respect to . . .
11
Rasmussen, 1 in 100. (12RT 2049.) Fedor also analyzed two of

Rasmussens fingernails that were damaged. (13RT 2065-2066.) A
presumptive test showed that these nails may have contained blood. (13RT
2066.) The DNA on one of these two broken nails was a mixture from at
contributor to the mixture, and approximately 1 woman in 9 billion would
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be similarly considered. (13RT 2067.) Appellant is possibly a minor
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least two persons. (13RT 2066-2067.) Rasmussen is possibly the major
contributor to the mixture, and approximately 1 woman in 10 would be
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similarly considered. (13RT 2067.)
The DNA on the second broken nail gave weak and incomplete
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results indicating a mixture from at least three persons. (13RT 2067.)

Rasmussen is possibly a contributor to that mixture. Approximately 1
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woman in 4800 would be similarly included. (13RT 2067.) Appellant is

possibly a contributor to the mixture, and approximately 1 woman in 9
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would be similarly considered. (13RT 2067.) Fedor agreed that there

were [v]ery low readings for [appellant] on those two damaged nails . . . .
There was no Y gender marker for a male on either of those nails. (13RT
chromosome].)
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2067; see 12RT 1996 [Fedor stated that the Y chromosome is the male
Fedor analyzed other nail clippings from Rasmussens fingers. (12RT
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1992.) [O]ne of the left nail clippings . . . gave weak and incomplete
results indicating a mixture from at least three [girls or women]. (12RT
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1994-1995.) Rasmussen is possibly a contributor to the mixture, and

about 1 woman in 3,000 would be similarly considered. (12RT 1994.)
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Appellant was not a person who contributed to this DNA mixture. (12RT
1994.)
The DNA on another nail clipping was a mixture from at least two
persons, including at least one male . . . . Rasmussen is possibly a major

contributor to that mixture, and approximately 1 woman in 130 trillion
12
would be similarly considered. (RT 12RT 1997-1998.) Appellants DNA

and Ruettens DNA were not in that mixture. (12RT 1998.) The DNA on a
third nail clipping was weak and incomplete results indicat[ed] a mixture
DNA of appellant, Ruetten, and Rasmussen were not in that mixture.
(12RT 1999.)
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Fedor also analyzed five clippings from Rasmussens right finger.
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from at least three persons, including at least one male. (12RT 1999.) The
Regarding the first clipping, The D.N.A. . . . gave weak and incomplete
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results indicating a mixture from at least two persons . . . . Rasmussen is
possibly the major contributor. And approximately 1 woman in 1 trillion
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would be similarly considered. (12RT 2000-2001.) Appellant and
Ruetten did not contribute to that mixture. (12RT 2001.) Regarding the
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second clipping, the D.N.A. . . . gave weak and incomplete results due to
insufficient D.N.A. No D.N.A. foreign to . . . Rasmussen was detected in
Tr
that sample. (12RT 2001.)
Regarding the third clipping from the nails on the right hand, The
D.N.A. recovered . . . is a mixture from at least two persons . . . .
Rasmussen is possibly the major contributor to that mixture. And
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approximately 1 woman in 21 trillion would be similarly considered.

(12RT 2002.) Although Fedor could not determine who the minor
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contributor was to that mixture, he determined that it was not appellant,

Ruetten, or Rasmussen. (12RT 2002-2003.)
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Regarding the fourth clipping on that hand, The D.N.A. . . . gave
weak, incomplete results indicating a mixture of at least two persons . . . .
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Rasmussen is possibly the major contributor to that mixture.

Approximately 1 woman in 58,000 would be similarly considered. (12RT
2003-2004.) Although Fedor could not determine who the minor
contributor was to that mixture, he determined that it was not appellant,
Ruetten, or Rasmussen. (12RT 2004.) The D.N.A. recovered from [the]
13
fifth right nail clipping is a mixture from at least two persons, at least one
of whom is male. The major portion of that mixture has the same D.N.A.
profile as . . . Rasmussen. The chance . . . a woman unrelated to her would
have that same profile is about 1 in 490 trillion. (12RT 2007.)
there was also a bit of dust and dirt . . . . (12RT 2008.) It contained
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Inside the envelope containing these five clippings from the right nail,
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DNA that was a mixture from at least two persons, at least one of [whom]
was male . . . . Rasmussen was possibly a contributor to that mixture.
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(12RT 2008.) About 1 woman in 10 million would be similarly
considered . . . . Ruetten is a possible contributor. And approximately 1
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man in 300 million would be similarly considered. (12RT 2008.)
Appellant did not contribute to that DNA mixture. (12RT 2008-2009.)
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There are infinite ways that a persons DNA could be transferred to

the area underneath another persons fingernails, including [c]asual
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contact, [s]haking hands, and [t]ouching intimate objects, [b]ath

towels, [a]ny soiled clothing that contains someone elses D.N.A.,
doorknobs, or door handles. (12RT 1945.) Fedor stated, I expect that
I recover my wifes D.N.A. under my nails when I do the laundry . . .
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because Im contacting soiled clothing. (12RT 1945.)

Fedor analyzed a stain from a car door handle. It was a DNA mixture
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from at least three persons, including at least one male. The major portion
of the mixture has the same D.N.A. profile as . . . Rasmussen. And the
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chance of a woman unrelated to her would have the same profile is about 1
in 490 trillion. (12RT 1951.) The mixture did not contain appellants or
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Ruettens DNA. (12RT 1951.) The other people who contributed to this
DNA mixture may have [had] . . . come kind of casual contact with the
door handle. (12RT 1951-1952.)
Cathy Law was the Chief Forensic Dentist for the Los Angeles
County Coroner. (8RT 1277.) Law examined photos of the bite mark on
14
Rasmussens body. (8RT 1280.) Law stated, It has the appearance of a

human bite mark and explained why. (8RT 1281, 1294.) She could not
give a definite opinion based only on photos. (8RT 1294.)
George Herrera formerly worked as a forensic print specialist in the
appellants trial. (11RT 1712-1713.) Several fingerprints from the crime
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scene belonged to Rasmussen and Ruetten. One belonged to Michael
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Los Angeles Police Department, but he worked in Colorado by the time of
Boldrick. (11RT 1723-1724, 1730, 1733-1737, 1748-1749, 1751-1752.)
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Boldrick visited Ruetten in the condominium the night before the murder.
(9RT 1535.) One fingerprint came from someone else, but Herrera could
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not determine whose fingerprint that was. (11RT 1749.)

7. The Victims Car
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Leona Thomas was a retired officer in Los Angeles Police

Department. (6RT 833.) On March 7, 1986, 11 days after the murder, she
Tr
found Rasmussens BMW near the intersection of Sepulveda and Covello

in Van Nuys. (6RT 834, 837, 840.) The car was in pretty good condition
. . . (6RT 838.) The keys were in it. (6RT 839.)
Detective Daniel Jaramillo was assigned this case for investigation in
&
2009. (11RT 1876-1877.) He learned that in 1986 the authorities located

Rasmussens BMW after the murder at Cohasset and Zombar in the San
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Fernando Valley. He determined that this was about two and a half miles
from Ruettens and Rasmussens condominium. (11RT 1878-1879.)
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William Moore worked in the Los Angeles Police Departments
Scientific Investigation Division. (6RT 817.) On March 18, 1986, he
Tr
examined the interior of the BMW for evidence. (6RT 818, 820.) The keys
were in the ignition. (6RT 821.) There was residue on one of the keys.
But there was an inconclusive result for the presumptive test for blood . . .
. (6RT 822-824.) Moore collected the residue from the key on cotton
cloth squares. (6RT 825.) Moore found stains inside the car, and marked
15
them on a standard diagram that the department used. (6RT 820-821.) He

also took samples from stains on the interior door handle and the top edge
of the drivers door. When he conducted a preliminary test for blood in
blood. (6RT 826-827.) Moore also found a brown fiber resembling a
human hair in the car. (6RT 827.)
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8. Testimony From Another Former Officer Who

Rented A Room From Appellant Before The Murder
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those areas, he obtained a positive result, which meant that stains might be
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Michael Hargreaves was a retired police officer. (9RT 1354.) While
he was in the police department, he and appellant became good friends and
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socialized together, but they did not have a romantic relationship. (9RT
1354-1355.) They became roommates beginning in late 1984 or early
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1985. Hargreaves moved out of appellants condominium on Valentines

Day in 1986. (9RT 1355-1357, 1377.) Both appellant and Hargreaves
competed in the California State Police Olympics. (9RT 1357-1359.)
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Asked about appellants fitness level, Hargreaves stated that it was

[o]utstanding. Compared to other women, appellants level of strength
was [s]uperior. (9RT 1359, 1379.) Appellant exercised every day. She
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ran, lifted weights, and played sports. (9RT 1361.)

Appellant, Hargreaves, and some of appellants friends and relatives
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went on a cruise together. (9RT 1371.) Appellant and Hargreaves did

some skeet shooting on the cruise ship. Appellant was an expert skeet
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shooter. (9RT 1372.) Also, appellant met the [police] department

standard as an expert shooter. (9RT 1394.) Hargreaves explained, You
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qualify shooting at the range . . . . (9RT 1394.)

Appellant told Hargreaves that her boyfriend was named John, and
that she met John at UCLA. During the time that Hargreaves lived with
appellant, he did not meet or see John. (9RT 1361-1362.) According to
Hargreaves, appellant was in love with John. (9RT 1362.) Before trial,
16
Hargreaves stated that appellant was head over heels for John[.] (9RT
1362.) Appellant spoke about John about six times. (9RT 1378-1379.)
More than once, appellant spoke to Hargreaves while she appeared to be
appellant cry about John. (9RT 1362-1363.)
One day at about 1 or 2 a.m., appellant woke up Hargreaves. She
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emotionally upset about her relationship with John. Hargreaves saw
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stood in the doorway. She was crying and told [Hargreaves] that John had
broken up with her and [she] wanted [Hargreaves] to console her . . . .
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(9RT 1363.) Appellant said that John told her he was going to marry
someone else who was a nurse. (9RT 1363-1364.) Hargreaves told
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appellant that based on what she had already said, it appeared that John was
using her, and that John had dated appellant and the nurse at the same
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time. (9RT 1381.)
Hargreaves never saw that appellant was upset or cried about anyone
Tr
other than John. (9RT 1364.) On another occasion, appellant told

Hargreaves that she went to the nurses workplace and had a confrontation
with her at a hospital. (9RT 1365, 1390.) After appellant told Hargreaves
that John was marrying the nurse, appellant was sad more often, and
&
[u]pset a little more often. (9RT 1366.) After appellants relationship

with John ended, and before appellant met her husband, appellant did not
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have a boyfriend as far as Hargreaves knew. (9RT 1369.) Appellant told

Hargreaves [t]hat she was very picky [and] her preference in men was that
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they had to be tall, athletic, and [handsome] like John. (9RT 1370, 13971398.)
Tr
When Hargreaves was a Los Angeles Police officer, he had a service
weapon. He also had a backup weapon, which was a smaller concealable

weapon that an officer would use if he or she lost the service weapon.
(9RT 1366-1367.) An officer had to buy a backup weapon with his or her
own money. (9RT 1367.) Appellant had a backup weapon. It was a .38
17
caliber revolver and had a capacity of five rounds. (9RT 1367.) After
Hargreaves moved out of appellants condominium, he was still her friend.
She told him that she lost her backup weapon in Santa Monica. It was in a
recall, appellant did not state that someone took the gun out of her car, or
that someone burglarized or damaged her car. He did not see that her car
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had any damage. (9RT 1369.)
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fanny pack. (9RT 1367-1369, 1392-1393.) As far as Hargreaves could
Hargreaves agreed that although he did not have a romantic
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relationship with appellant, he tried. He added, I made a pass or two
. . . . (9RT 1376.) [T]he few attempts that I made to suggest any type of
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intimacy were very nicely rebuffed. (9RT 1377.) Asked if appellant was
a calm person when she had to handl[e] disputes, Hargreaves replied,
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By and large, yes. (9RT 1388.) As far as he knew, appellant handled

disputes in a rational way. He never saw her make an outburst.
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Hargreaves added, Ive never seen her actively resolve a dispute though.
(9RT 1388.)
9. Testimony From Ruetten
Ruetten testified that he went to college at UCLA. (9RT 1417-1418.)
&
He met appellant there. They lived in the same dorm. (9RT 1421-1422.)
Ruetten became friends with appellant during college and remained her
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friend after college. After Ruetten left UCLA, he noticed that appellant
became physically stronger. (9RT 1426-1427.) Ruetten did not have sex
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with appellant during college, but had sex with her after college. (9RT
1427.) During college, Ruetten and appellant had some periods where
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[they] were . . . necking, [and] fooling around. (9RT 1427.) On one

occasion while Ruetten was taking a shower, appellant came in the
bathroom, looked at him, stole his clothes, and took them somewhere else.
(9RT 1427.)
18
Ruetten did not have a steady girlfriend in college. (9RT 1428.) He

dated other women. (9RT 1510.) As far as he knew, appellant did not have
a steady boyfriend in college either. (9RT 1429.) Although appellant was
his familys home in San Diego more than once. (9RT 1429, 1509.)
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not Ruettens girlfriend in college, while they were in college they went to
Appellant met all of Ruettens siblings and his parents. (9RT 1437-1438.)
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Although Ruetten dated other women during college and shortly after
college, he did not recall that he ever took any of them to San Diego to
at
meet his parents. (9RT 1510.)
Ruetten graduated from college in 1981. (9RT 1431.) He lived in the
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San Fernando Valley. (9RT 1434.) Between 1981 and 1984, Ruetten dated
appellant and had sex with her about 25 to 30 times. (9RT 1431, 1510.)
ib
But he never considered appellant to be his girlfriend, and he did not have
an exclusive relationship with her. (9RT 1431.) He did not have sex as
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many times with any of the other women. (9RT 1510.) During that period,
Ruetten and appellant discussed the nature of their relationship. Ruetten
understood that they were good friends, saw each other off and on, and
in some of those cases . . . had sexual intercourse. (9RT 1432.)
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Ruetten periodically felt uncomfortable with the idea that [they] were
friends and . . . would sometimes have this sort of intermittent sort of sex
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and connections, and so [he] probably just tried to not see her for a while.
(9RT 1432-1433, 1511.) Therefore, there would be periods of time [they]
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wouldnt see each other . . . . (9RT 1433.) Ruetten always . . . made it

clear that . . . [they] were friends and . . . this wasnt going anywhere
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toward marriage or anything of that sort. (9RT 1511.)

On average, Ruetten saw appellant two or three times each month
during this period. He also dated other women, but he did not think it was
necessary to tell appellant about that. (9RT 1433-1434.) Ruetten attended
appellants graduation ceremony at UCLA. (9RT 1435.) After appellant
19
graduated, she was [v]ery fit and very strong. (9RT 1435.) Ruetten
remained appellants friend after she became a police officer. He went to
her condominium in Mission Hills. He believed that he spent the night
roommate. (9RT 1439.)
Ruetten met Rasmussen in 1984. (9RT 1439.) He was very . . .
io
interested in dating her, and did so shortly after they met. They dated
ns
there at least once. But he did not remember that appellant had a
eight to ten times a month or more including every weekend. (9RT
at
1440.) By the summer of 1984, Rasmussen was Ruettens girlfriend, and
he was her boyfriend. Ruetten did not date any other woman. (9RT 1441-
ul
1442.) Except for one incident discussed below, Ruetten did not remember
that he ever spoke with appellant between the time he dated Rasmussen and
ib
the date Rasmussen died. (9RT 1442.) Ruetten did not feel obligated to
tell appellant he was dating Rasmussen. Ruetten explained that he and
Tr
appellant were just friends . . . and he did not even remember the last
time he saw appellant before he met Rasmussen. (9RT 1439, 1450.) He
thought that a long time had passed, and they had not seen each other
since before the Spring of 1984. (9RT 1450-1451.)
&
Ruetten and Rasmussen decided to get married in May 1985. He

bought her a BMW. (9RT 1444-1445.) Ruetten and appellant had mutual
ls
friends, and he told some of them that he was going to marry Rasmussen.
(9RT 1446.) Rasmussen lived in a condominium on Balboa in Van Nuys.
ia
About 30 to 60 days after Ruetten and Rasmussen were engaged, they lived
there together. (9RT 1446-1447.)
Tr
After Ruetten became engaged to Rasmussen, but before he moved
into her condominium, appellant phoned him. (9RT 1447.) Appellant was
very upset and was crying. Ruetten had never heard appellant cry this
much. This was full-blown crying. (9RT 1448; 10RT 1567.) Appellant
asked Ruetten to come to her condominium and talk to her. Ruetten went
20
there. Appellant was still crying. (9RT 1448.) Appellant said that she was
upset. (9RT 1449.) She knew that Ruetten was engaged. She was
basically trying to tell [Ruetten] that she had deeper feelings for [him],
told him that before. (9RT 1449.)
Appellant asked Ruetten more than once to have sex with her that
io
night, and he did so. (9RT 1451; 10RT 1568.) He explained, I felt like
ns
[and] she was in love with [him] . . . . (9RT 1449.) Appellant had never
she obviously had no closure, so I was feeling bad about that. She was
at
upset . . . I was over my head. I didnt quite know what to do or how to sort
of calm [her] down. And those are the best reasons, besides being stupid
ul
and . . . a young man. (9RT 1451.) He knew that he was going to marry
Rasmussen and had no doubt . . . about that. (9RT 1451-1452.) He made
ib
this clear to appellant. (9RT 1452.) Ruetten moved into Rasmussens

condominium one to three weeks later. (9RT 1452.)
Tr
Rasmussen was Director of Nursing at a medical center. (9RT 1452.)

One night after Ruetten moved into Rasmussens condominium,
Rasmussen came home from work and was very upset. Ruetten and
Rasmussen talked about it. He told her that he went to appellants home,
&
appellant was upset, and he had sex with appellant. Rasmussen appeared to
know that already. (9RT 1453.) Ruetten told Rasmussen that he still
ls
wanted to marry her very much. They reaffirmed their marriage plans.
(9RT 1454.)
ia
Ruetten was ecstatic that Rasmussen married him. He had no
second thoughts about it. (9RT 1456-1457.) Ruetten told Rasmussen that
Tr
he did not want to have any more contact with appellant. He did not see
appellant or speak with her again before Rasmussen was killed. (9RT
1454-1455, 1457.) Ruetten stated that he had nothing to do with
Rasmussens death, and he was not present when she died. He did not
know that anyone was going to kill her. (9RT 1456.) Rasmussens fitness
21
level was pretty good, and [s]he was probably in the best shape in her
life . . . . Appellant was definitely stronger than Rasmussen, but it was
hard to say whether she was much stronger. (9RT 1458.) The day
before the murder, Rasmussen had no injuries. (9RT 1459.)
as they typically did. Ruetten usually left the condominium at about 7:20
ns
On the date of the murder, Ruetten and Rasmussen woke up at 7 a.m.
io
a.m., and he did so on that date. (9RT 1462, 1466.) Rasmussen did not get
up to go to work that day, and Ruetten understood that she was not
at
planning on going to work. (9RT 1464-1465.) Rasmussen did not want to

give the lecture at work that she was scheduled to present, and she and
ul
Ruetten talked about that before they went to bed the previous night. (9RT
1464-1465.) Also, Rasmussen said she was not feeling well. (9RT 1532.)
ib
Before Ruetten left the condominium, Rasmussen asked him to call her
later in the morning and he planned to do that. (9RT 1465-1466.)
Tr
The keypads for the burglar alarm were in the master bedroom and
downstairs near the front door. (9RT 1466.) Ruetten explained, We
typically had the alarm on when we were gone or in bed. Any other time
we just really didnt have it armed. (9RT 1467.) Ruetten and Rasmussen
&
usually left the condominium by going through the garage door. (9RT
1471.) There was a separate door, a front door, that led to the walkway
ls
between the condominiums. He seldom used it, except when he let the cat
out. (9RT 1533-1534.) Ruetten did not believe that he ensured the front
ia
door was locked before he left on the day of the murder. He did not know
whether it was locked. (9RT 1471, 1533-1534.) Before trial, he may have
Tr
stated that he forgot to lock the front door. (9RT 1533.) Ruettens friend
visited the condominium the night before the murder and came in the front
door. (9RT 1535.) Ruetten believed that his friend also left through the
front door. (9RT 1536.)
22
Ruetten arrived at work at about 8 a.m. (9RT 1471.) Later that

morning, he phoned Rasmussen at home more than once but could not
reach her. He first phoned her at about 10 a.m. (9RT 1472-1473; 10RT
there either. (9RT 1473.) Ruetten was wondering why he could not
reach Rasmussen but he was not especially concerned. (9RT 1474-1475.)
ns
1551.) Ruetten also phoned Rasmussen at work but could not reach her
io
When Ruetten came home at about 6 p.m., [t]he garage door was open and
. . . [it] looked like there was glass or something . . . in front of the . . .
at
garage area on the driveway. Rasmussens car was missing. (9RT 1476-
1477.) Ruetten went upstairs and noticed that the door to the condominium
ul
was ajar. He had locked it when he left that morning. (9RT 1477-1478.)
Ruetten went inside the condominium and saw that Rasmussens body
ib
was on the floor. (9RT 1478.) Ruetten checked her pulse and touched her
leg. Her face was injured, it was the wrong color, and he could tell by
Tr
her eyes that she was gone. (9RT 1479.) Ruetten called 911 within 15
minutes. He was shocked. (9RT 1480.) He placed a blanket or
something over her face. (9RT 1481.)
In the living room, there was a CD player worth about $400, a VCR
&
worth less than that, a stereo receiver worth about $400, a tape deck worth
about $200 or $250, and two speakers worth $300 each. (9RT 1482-1483.)
ls
There was a television in the living room, but it was not particularly
valuable. A more expensive television was upstairs. (9RT 1483.) Nothing
ia
was missing from the condominium, except Rasmussens car and purse.
(9RT 1484.)
Tr
Ruetten stated that he was [i]n shock and messed up when he
spoke with Detective Lyle Mayer. Ruetten broke down a couple times
during the interview. (9RT 1485.) At the end of the interview, Detective
Mayer told Ruetten that he thought Rasmussen came downstairs and
surprised one or two burglars. (9RT 1485-1486.) Detective Mayer asked
23
Ruetten whether he had any ex-girlfriends. Ruetten did not tell Detective
Mayer about appellant because it [n]ever crossed [his] mind that
[appellant] was involved. (9RT 1487.) Ruetten did not consider appellant
from any life insurance policy for Rasmussen. (9RT 1488, 1526.) After
ns
to be his ex-girlfriend. (9RT 1487.) Ruetten did not receive any proceeds
Ruetten and Rasmussen were engaged, they bought the condominium from
io
Rasmussens father. They owned it in joint tenancy. (9RT 1526-1529;

10RT 1579-1580, 1582.) Ruetten sold the condominium in September
at
1986. (9RT 1529-1530; 10RT 1580.) After he paid off the mortgage, his
profit was about $10,000. (10RT 1580.)
ul
About two weeks after Rasmussen was killed, Ruetten got the BMW
back. It was not damaged. (10RT 1578-1579.) Within four weeks after
ib
Rasmussen was killed, Detective Mayer told Ruetten that appellant was not
involved in this case. (9RT 1492-1493.) Detective Mayer maintained
Tr
pretty much the same . . . theory of the homicide, although he offered

more details. (9RT 1493.) At the time, Ruetten did not doubt Detective
Mayers theory. (9RT 1493.) Appellant did not express any condolences
to Ruetten regarding Rasmussens death. (9RT 1494.)
&
Ruetten moved to San Diego about three weeks after Rasmussen died.
(9RT 1494-1495.) He gave Detective Mayer the address there. (9RT
ls
1496.) Ruetten stayed in the San Diego area until 1990 or 1991 when he
moved back to Los Angeles. (9RT 1496-1497.) When Ruetten traveled
ia
through Los Angeles, he phoned appellant. (10RT 1572, 1574-1575.)

Ruetten did not remember whether he saw her then. He may have merely
Tr
left a message for her. (10RT 1575.)

In 1989, Ruetten planned a trip to Hawaii and heard that appellant and
her friends were going there. Ruetten stayed with his friends in Pearl City,
Hawaii, and then went to Kauai because he knew appellant was staying
there. Appellant was there with another man. Ruetten did not believe then
24
that appellant killed Rasmussen. As far as Ruetten could recall, that was
the first time he saw appellant after Rasmussen was killed. (9RT 14971498; 10RT 1572-1573.) Ruetten informed appellant that he told the police
workplace. (9RT 1498.) Appellant did not deny that she had done so or
respond to Ruettens remark. It didnt seem to phase her at all[.] (9RT
io
1498; 10RT 1573-1574.) Over the next year and a half, Ruetten saw
ns
appellant had been upset and [she] had visited . . . [Rasmussen] at her
appellant about two or three times. He had sex with her twice. Ruetten did
or offered to help investigate the case. (9RT 1499.)
at
not recall that appellant ever asked about Rasmussen after Rasmussen died
ul
In about February 2009, Detective James Nuttall phoned Ruetten and

stated that he was investigating this case. Detective Nuttall asked whether
ib
Ruetten knew any women who had a reason to harm Rasmussen. Ruetten
gave Detective Nuttall appellants name. (9RT 1500-1501.) Ruetten spoke
Tr
to police officers about this case about 15 times. When the police asked
him to give a DNA sample, he did not hesitate to do so. (9RT 1501-1502.)
10. Testimony From Ruettens Sister
Ruettens sister, Gail Lopes, testified that she met appellant during
&
appellants relationship with Ruetten. Lopes saw appellant and Ruetten

together about three times. Lopes understood that Ruetten met appellant at
ls
UCLA where Ruetten went to college. (9RT 1400-1401.) Lopes believed

that appellant and Ruetten were friends and . . . they dated. (9RT 1402.)
ia
After Ruetten graduated college, he introduced Rasmussen to Lopes and

her husband. Ruetten described Rasmussen as his girlfriend. (9RT 1402.)
Tr
Lopes and her husband lived in Northern California then. Ruetten and
Rasmussen saw them three or four times in 1984 and 1985 and visited
them. (9RT 1402-1403.) Ruetten and Rasmussen seemed very much in
love. Ruetten told Lopes that he loved Rasmussen. (9RT 1403.) Ruetten
was devastated when Rasmussen was killed. (9RT 1404.)
25
After Ruettens and Lopess mother died, Lopes looked through their
mothers belongings and found a letter that appellant had written to their
mother. It was postmarked in August 1985. Appellant signed it, Love
always, Stephanie. (9RT 1404-1405, 1407.) Appellants letter partly
I wish it hadnt ended the way it did and I dont think Ill ever understand
ns
stated, Im truly in love with John and this past year has really torn me up.
io
Johns decision. (9RT 1408, internal quotation marks omitted.) Appellant

also stated in the letter, I hope some day I can find someone that I can care
at
for as much. (9RT 1409.)
ul
11. Testimony From College Friends Of Ruetten And

Appellant
David Neuman was Ruettens roommate for one year in a UCLA
ib
dorm and for one year in an off-campus apartment. They were good
friends in college and remained friends afterwards. Neuman met appellant
in college. Appellant was also Neumans friend, both during and after
Tr
college. (10RT 1583-1585, 1587.)
Neuman saw appellant and Ruetten interact all the time. (10RT
1585.) Appellant was romantically interested in [Ruetten] and [he] did not
&
feel the same way about her. (10RT 1586.) During the 1979-1980 school
year, appellant told Neuman that there was a limitation on the relationship
ls
from [Ruettens] end. (10RT 1586-1587.) Appellant used the word

buddies to describe her relationship with Ruetten. (10RT 1586-1587.)
ia
Appellant was [a]wkward and sad when she made these remarks. (10RT
1587.) Asked whether he would ever describe appellant and Ruetten as
Tr
boyfriend and girlfriend, Neuman replied, No. (10RT 1587-1588.)

Neuman attended Ruettens and Rasmussens wedding. Both Ruetten
and Rasmussen were [e]xtremely happy, and delighted at the wedding.

(10RT 1588.) Neuman socialized with them once or twice after they got
married. They were [r]eally, really happy and almost the stereotype of
26
newlyweds. They were [r]eally delighted with each other and delighted
to be married. (10RT 1588.) After Rasmussen died, Ruetten was
[d]evastated. Neuman added, its as shattered as I have ever seen a
human being. (10RT 1589-1590.)
seventh grade, and went to junior high school, high school, and college
io
with Ruetten. They both majored in engineering. They remained friends
ns
Matthew Gorder was also a friend of Ruetten. He met Ruetten in the
after college. Gorder met appellant in college and lived in the same dorm
at
as she did. (10RT 1593-1595.) Gorder stated that appellant and Ruetten
were close friends and they did spend some time together, but as far as I
ul
could see it was a platonic relationship. (10RT 1595.) Gorder
acknowledged that according to a transcript of his interview with the police,
ib
he told his wife that appellant was Ruettens girlfriend. However, Gorder
also told the police, I never saw any romantic relationship there. Gorder
1599-1600, 1602.)
Tr
knew that appellant became close to Ruettens mother and sister. (10RT
Gorder attended Ruettens and Rasmussens wedding. Like any
bride and groom, they were very happy, [and] very excited. (10RT 1596-
&
1597.) Gorder saw them in February 1986. They looked like newlyweds
and a very loving couple. (10RT 1597.) Gorder saw Ruetten shortly after
ls
Rasmussen was killed. Ruetten was in shock. [He was] [v]ery quiet. But
under the circumstances, he was in a very understandable state. (10RT
Tr
ia
1598.)
12. The Police Searched Appellants Home In 2009

And Found Her Written Comments About Ruetten
From The 1980s And Her Photos Of Him
In June 2009, Detective Kevin Becker searched a closet in appellants
home. He found a footlocker there. (10RT 1606-1607.) Inside the
27
footlocker was a brown binder with handwriting on the pages. (10RT

1608-1609.) The binder appeared to be a journal. (10RT 1610.)
Detective Gregory Stearns testified that there were photos of Ruetten
(10RT 1617.) Appellant also had photos of other people. There were
hundreds, and perhaps thousands, of photos that did not involve Ruetten.
io
The police did not make a record of how many photos involved Ruetten.
ns
in appellants home. Some of them were digitally recorded on a computer.
(10RT 1669.)
at
Detective Stearns reviewed appellants journal. (10RT 1615-1616.)

It involved a period starting November of 1984 through August of 1986
ul
that details [appellants] activities . . . while [she was] a patrol officer . . . .

(10RT 1618.) It was primarily work related, but there were personal
ib
things as well. (10RT 1618.) The journal mentioned Ruetten, but

Detective Stearns did not recall that it mentioned any other boyfriends.
Tr
(10RT 1623.)
In November 1984, appellant wrote, They held some dollars over my

head so that the referee would kiss me. Then some of the guys would give
me a dollar to kiss them. It was all in fun. They kept bringing me daiquiris
&
. . . . It kept my mind off John for a while anyway. (10RT 1624-1625.)

In April 1985, appellant wrote, After lunch I was leaving the lot and I saw
ls
John Ruettens car. Just my luck. I put a note on it and watched the car for
one half hour and checked up on it a few times . . . . I found out from him
ia
later that he had gone to Fuddruckers at about 12:10, just about five
minutes before I left. (10RT 1625-1626.) In May 1985, appellant wrote,
Tr
I really cant remember if I did anything else workwise. I did visit John
Ruetten, but his girlfriend was over. (10RT 1626-1628.)
In June 1985, appellant wrote, We really didnt do much. I really
didnt feel like working. I found out that John is getting married. I was
very depressed. This is very bad. My concentration is negative 10.
28
(10RT 1628-1629.) That same month, almost two weeks later, appellant
wrote, I really didnt feel like working. Too stressed out about John. Ive
had a real hard time concentrating these days so I called up and said I didnt
took that day off. (10RT 1632-1633.)
In December 1985, appellant wrote, I went and picked up my mail.
io
Unfortunately, I got a card from Mrs. Ruetten. This made me very, very,
ns
feel well . . . . (10RT 1629-1630.) Police records reflected that appellant
very sad. (10RT 1633-1634.) That same month, eight days later,
at
appellant wrote a draft of a personal advertisement. She stated in part, 25
year old U.C.L.A. grad. Very athletic. Seeks tall athletic male 25 to 31 . . .
ul
. (10RT 1634-1635.)
Appellant had a separate weekly planner which showed that she was
ib
not working on February 17, 1986 through February 18, 1986, and
February 21, 1986 through February 24, 1986. (10RT 1636-1637.) Police
Tr
records showed that appellant was not working on February 21st through
24th. (10RT 1638-1639.) Another document reflected that on February 25,
1986, the day after the murder, appellant wrote, For workout today, we
played basketball . . . . We didnt do much. In fact, I cant even remember
&
what we did, but the day was boring and nothing happened that was worth
remembering . . . . . (10RT 1640.)
ls
On cross-examination, Detective Stearns acknowledged that
appellants documents also mentioned she spent time with members of
ia
Ruettens family in November 1984 and April 1985. (10RT 1675-1676.)

Appellant took the day off on the day of the murder. However, that was a
Tr
Monday, and she also did not work the Monday one week before the
murder and the Monday one week after the murder. (10RT 1687.) When
the police searched appellants home, they found several books but no
books about locksmithing. (10RT 1687-1688.)
29
Los Angeles County District Attorney Investigator Wonkeun Choi

described his training and experience as a forensic examiner of computer
crimes. (11RT 1814-1816.) Investigator Choi determined that someone
1998, May 1999, and December 1999. (11RT 1816-1824, 1832-1833.)
ns
used one of the computers from appellants home to locate Ruetten in April
The results from the December 1999 search were also recorded in some of
io
the other computers from appellants home. (11RT 1823-1825, 1835.)
Investigator Choi determined that no one used those computers to search
at
for Rasmussen. (11RT 1839.)
ib
ul
13. About Two Weeks After The Murder, Appellant

Reported Her Gun Was Stolen; Her Gun Was
Consistent With The Kind Of Gun The Murderer
Used, Although It Was Not The Only Gun That
The Murderer Could Have Used
Elaine Sena-Brown was a community service officer for the Santa

Monica Police Department in 1986. (11RT 1766.) Thirteen days after the
Tr
murder, on March 9, 1986, she took a report from a woman who identified
herself as appellant. (11RT 1767-1769.) Sena-Brown was not allowed to
take the report unless the victim appeared in person at the police
&
department. (11RT 1778-1779.)

The report reflects that on March 9th, between 1 and 1:50 p.m.,
ls
someone stole a gym bag from appellants car. The bag contained a .38
caliber revolver, money, and other items. Someone punched the drivers
ia
door lock, according to the person who identified herself as appellant.

(11RT 1770-1172, 1774-1775, 1779.) Sena-Brown made conflicting
Tr
statements at trial about whether she remembered looking at the car, but
that would have been [her] normal routine to do [so]. (11RT 1772, 17801781.) The report also contained a narrative portion, but it did not
include any allegation that someone took the gun from appellants fanny
pack. (11RT 1773-1774.)
30
Detective Stearns found out that appellant reported her gun was stolen
in Santa Monica on March 9, 1986. But appellants journal did not mention
this, nor did it mention that appellant bought a new gun or had her car
repaired. The weekly planner did not mention that her gun was stolen or
ns
that she bought a new one. (10RT 1643-1644, 1651.)
Donald Baroni was the retail manager and firearms sales manager of a
io
sporting goods store in Reseda. In 2009, he was sales manager for the Los
Angeles Police Revolver And Athletic Club (LAPRAC), which sells guns
at
only to peace officers. (11RT 1755-1756.) He was familiar with the ATF
4473 form that the buyer and seller of a firearm must complete, and that the
ul
seller must keep for at least 20 years. (11RT 1757-1758.) Baroni located
two of those forms from 1983 and 1986 regarding LAPRACs sales of .38
ib
caliber Smith & Wesson revolvers to appellant. One was a model 49 and
the other was a model 649. The difference between the two models was
Tr
that the model 649 had a silver finish, and the model 49 was blue steel.
Baroni did not work at LAPRAC when these two forms were filled out.
(11RT 1758-1765.)2
Steven Rodgers was a product service representative for a
&
manufacturer of bullets, Federal Ammunition. (11RT 1786-1787.) Experts

use a unit called a grain to measure the weight of the bullet. (11RT 1791.)
ls
Rodgers looked at a photo of a bullet from the crime scene and determined
that it was a 38 caliber J bullet with a 125 grain from Federal Ammunition.
ia
His company produced this kind of bullet from the late 1970s to 1991.
Tr
(11RT 1800-1802, 1805.) It sold millions of these bullets. (11RT 1808.)
Baroni testified that the model 49 in 1984 had a barrel length of

one and 7/8 inches. (11RT 1769.) However, there was other testimony that
the measure of the barrel length varies slightly depending on how a person
determines the starting point and ending point of the barrel.
31
Both law enforcement agencies and the general public used this kind of
bullet. (11RT 1811-1812.)
Officer Richard Smith was a firearms expert. (11RT 1851-1852.)
When Officer Smith went into the police academy, the department issued
ns
him a service weapon, a Smith & Wesson model 67 revolver. Asked if an
officer who went into the academy a couple years after . . . 1983 . . . [was]
io
issued the same type of service weapon, he agreed. (11RT 1852-1853.)

Officer Smith also reiterated what a backup weapon was. (11RT 1853-
at
1854.) He reviewed the departments records for appellants firearms. The

records did not reflect that appellant ever reported any of her firearms was
ul
lost or stolen. (11RT 1857.) Officer Smith explained that if his weapon
was lost or stolen, he would notify the department because if it fell into the
ib
hands of a criminal and was used in some crime, you would want the
department to know that you [no] longer had possession of that weapon.
Tr
(11RT 1858.)
Officer Smith stated that from 1981 to 1988, the department allowed
patrol officers to use only Federal brand .38 special 125 grain bullets for
their backup weapons. (11RT 1858-1859, 1861-1862, 1871-1872.) He
&
knew about officers who were disciplined for using other ammunition.
(11RT 1872-1873.)
ls
George Luczy was an independent forensic firearms examiner and . .
. an independent explosives consultant. (13RT 2100.) He was a former
ia
Los Angeles Police officer for 20 years. (13RT 2100.) By the time of trial,
more than 98 percent of [his] work [was] . . . criminal defense work.
Tr
(13RT 2103.) He also worked with the prosecution in several high profile
cases . . . mainly in Merced County . . . and . . . Mariposa County . . . .
(13RT 2103.)
When Luczy worked for the Los Angeles Police Department, the
department kept a firearms inspection card for each officer that reflected
32
every firearm issued to that officer. (13RT 2103-2104.) Luczy agreed that
it [was] common practice . . . for police officers if they had their backup
weapon lost and stolen, to notify the armorer so that it could be taken off
between 1981 and 1986, a Los Angeles Police Officer was allowed to use
only a Federal brand .38 special caliber bullet, which weighed 125 grains.
io
(13RT 2114-2115, 2196-2198.)
ns
their card[.] (13RT 2106, 2195-2196.) Luczy also corroborated that
Luczy was a Los Angeles Police Officer on the date of the murder.
at
He went to the crime scene. He saw two bullet holes in the curtain in
Rasmussens condominium. (13RT 2119.) He explained that in every
ul
revolver, there is a tiny gap between the barrel and the cylinder, where gas
escapes when a person fires the gun. A semi-automatic firearm does not
ib
have this gap. (13RT 2131-2136.) If a person wraps a revolver in fabric

before pulling the trigger, the gunshot residue that is escaping from the
Tr
barrel cylinder gap will appear on [that fabric] . . . . (13RT 2136.) Luczy
found that residue from the barrel cylinder gap on the blanket in
Rasmussens condominium. (13RT 2138-2139.)3
Luczy analyzed the blanket with bullet holes in it. (13RT 2138-2145.)
&
The holes were not round and were sort of star shaped or . . . cross
shape[d]. Cruciform is . . . a fancy word for [that] shape. Luczy
ls
explained, its significant because that type of tearing is caused by the

high pressure gas bubble that is produced when a short-barrel revolver is
ia
fired. (13RT 2145-2146.) On the blanket, the distance between the soot
Tr
stain and the center of the nearest bullet hole was exactly two inches.
3
Luczy referred to the item as a robe. But he also agreed that

another way to describe this item was that it was a blanket with arm
holes. (13RT 2138-2139.) Most of the other witnesses who discussed this
item described it as a blanket. Therefore, respondent also refers to this item
as a blanket.
33
(13RT 2146-2147.) That was an indication that someone used a 2-inch

barrel revolver. (13RT 2147.)
Luczy agreed that this [blanket was] wrapped around a short-barreled
revolver at the time that these bullet holes were made[.] (13RT 2149-
ns
2150, 2155-2156.) It would significantly reduce the sound of the gunfire if

a person fired the gun while it was wrapped in that blanket. (13RT 2150.)
io
Although Luczy did not know what gun the murderer used, Luczy stated
that the murderer [a]bsolutely could have used a model 49 Smith &
at
Wesson revolver. (13RT 2150.) Luczy used that model of revolver,
aligned the barrel cylinder gap of the revolver with the soot stain on the
ul
blanket, and found that [t]he degree of correspondence [to the bullet hole
on the blanket] was perfect. (13RT 2148.) Luczy agreed that, based on
ib
the forensic evidence, the murderer could have used a revolver made by any
one of several companies. (13RT 2166.)
Tr
Cheryle Massaro was the custodian of records of the California

Department of Justice, Bureau of Firearms, which maintained a computer
system called Automated Firearms System (AFIS). She was also the
custodian of records for AFIS. (13RT 2300-2301.) AFIS reflected that
&
appellant bought a Smith & Wesson model 49 firearm in 1984. (13RT

2301-2304.) According to AFIS, on March 9, 1986, the Santa Monica
ls
Police Department reported that this same kind of firearm was stolen. The
report shows that the firearm was a 2-inch blue steel five shot[.] (13RT
ia
2304-2305.)
Daniel Rubin, a criminalist in the Los Angeles Police Department,
Tr
Scientific Investigation Division, specialized in firearms. (14RT 2372.)

Rubin compared the bullets from the crime scene with a photo of a Federal
.38 caliber J bullet. He also visited a Federal factory in Minnesota and took
photos of bullets there. He concluded that the murderer used that bullet.
(14RT 2397-2406, 2414.)
34
14. Appellants Interview With The Police

Detectives Jaramillo and Stearns interviewed appellant in June 2009.
(11RT 1882-1883.) The prosecutor played the video of that interview.
asked appellant if she knew Ruetten. Appellant replied, John Ruetten?
John Ruetten? Detective Jaramillo repeated Ruettens last name twice.
ns
(11RT 1886; 12RT 1895-1986.) During that interview, Detective Jaramillo
io
Appellant replied, Oh, yeah, I went to school with him. (7CT 1422.) In
response to other questions, appellant added that she went to UCLA with
detectives, Whats this all about? (7CT 1422.)
at
Ruetten and she and Ruetten were very close friends. She asked the
ul
Detective Jaramillo told appellant that the detectives were working on

a case involving Ruetten, and there were notes that Ruetten knew appellant.
ib
(9CT 1423.) Appellant stated that she and Ruetten dated. She asked
again what this was about. Detective Jaramillo replied that it related to
Tr
Ruettens wife.4 (9CT 1423.) Detective Jaramillo asked appellant if she

knew Ruettens wife. Appellant replied, Not really, and added, I knew
that [Ruetten] got married years ago. (7CT 1424.) Appellant stated that
she did not know whether she ever met Ruettens wife. Appellant added,
&
thats been a long time ago. I may have met her. Geez, you know?
(7CT 1424.) Thats been a million years ago . . . . I mean, I graduated in
ls
82. I dated other guys. Im sure he dated other girls. (7CT 1426.)
Appellant stated that Ruettens sister had stayed overnight at
ia
appellants home, and appellant had stayed overnight at Ruettens home.

Ruetten probably spent the night at [appellants] house before. (7CT
Tr
1427.) Appellant agreed that she dated Ruetten in college. She added,
4
No one used Rasmussens last name during this interview. At one

point, appellant offered several suggestions about what Rasmussens first
name might be. But other than that, no one used Rasmussens first name
either.
35
and probably after college. (7CT 1427.) Detective Jaramillo asked,

what ended the relationship between you and [Ruetten]? (7CT 1429.)
Appellant replied, it was kind of a weird relationship. I mean, . . . we
consider me his girlfriend. We just . . . dated. We did things. (7CT
ns
dated. I cant say that he was my boyfriend. I dont know that he would
1429.) Appellant noted that both she and Ruetten played sports in college,
other guys. I went on lots of vacations . . . . (7CT 1430.)
io
but it just didnt work out. She added, I went out with other guys. I saw
at
Appellant stated that she and Ruetten were friendly after they
stopped dating each other. Appellant noted, I know that we went to
ul
Hawaii at one point. Another friend of mine . . . went to Hawaii with us at

some point. (7CT 1430.) Appellant stated again that she may have met
ib
Ruettens wife. (7CT 1431.) Asked what Ruettens wife did for a living,
appellant replied, Im going to say I think she was a nurse. (7CT 1431.)
Tr
Appellant stated that she did not think she associated with Ruetten once he
got married. (7CT 1431-1432.)
Appellant repeated, I dont understand why youre talking about

some guy I dated a million years ago. Detective Stearns asked, do you
&
know what happened to his wife? Appellant replied, Yeah, I know she
got killed. (7CT 1432.) Appellant explained that she saw a poster at
ls
work and she was sure that she spoke to Ruetten about it. Appellant
stated that she might have first learned about it when someone phoned her.
ia
(7CT 1432-1433.) Appellant remarked, I dont remember how I heard. I

mean, I dont even remember what year it was. (7CT 1433.)
Tr
Detective Stearns asked whether Ruettens wife worked at a hospital
or a doctors office. Appellant replied, Im sure he must have mentioned

it. I mean, now that youre bringing it up, I think she worked at a hospital
somewhere. And yeah, I may have met her at a hospital. I may have talked
to her once or twice . . . or more, your know. (7CT 1433-1434.) Detective
36
Jaramillo asked, there was never anything uncomfortable . . . between you

and her? Appellant replied that she did not know and its been so many
years. She added, I mean, uncomfortable? I mean, . . . I cant even
Appellant stated that Ruettens sister used to come to appellants
home, and appellant knew Ruettens brother who played basketball at a
io
local college. (7CT 1435, 1459.) Appellant added, In fact, I was just
ns
remember if we had a conversation. I mean, we may have. (7CT 1434.)
coming across some pictures that I had just scanned . . . . I take a lot of
at
photos. Like 10,000. And I just did a service where I scanned everything,
and I had seen some pictures of [Ruettens] brother playing basketball.
ul
(7CT 1435.)
Appellant said that she talked to Ruetten after his wife died, but she
ib
had no idea how long Ruetten was married. (7CT 1438.) Detective
Jaramillo asked whether appellant started a relationship with Ruetten again
Tr
after his wife died. Appellant replied, I would say, no. Again, can you
give me a year? The detectives told appellant that Ruettens wife died in
1986. Appellant replied that she faintly remembered the trip to Hawaii
with another man, and she thought Ruetten met them there. Appellant
&
remarked, Id have to look at my pictures. (7CT 1440-1441.)

Asked about more details regarding the Hawaii trip, appellant stated
ls
that she thought she told Ruetten that she and her male friend were going
there, and he was welcome to meet them there. (7CT 1447.) She and this
ia
other man on the trip were just buddies. And maybe [the other man]
wanted something more but . . . it never . . . worked out, but we did things
Detective Jaramillo asked if appellant
Tr
together. (7CT 1448.)
remembered the first name of Ruettens wife. Appellant replied, Shelly,

Sheri. I dont know. Something. You know . . . its been so many years.
(7CT 1450.) Pressed further, appellant reiterated that she may have
37
spoken with Ruettens wife, and that she may have done so at the
hospital. (7RT 1451.)
Appellant added, he may have been dating her . . . . Maybe he was
married. I dont even remember. And Im like, you know what? Why are
to her? Cause I honestly dont remember the time frame. (7CT 1451-
ns
you even calling me if youre either dating her or living with her or married
io
1452.) And Im, like, come on. Knock it off. And . . . Im thinking that .
. . I may have gone to her and said, hey, . . . is he dating you? Hes . . .
at
bothering me. And so Im thinking that we had a conversation about that,
one or two maybe. (7CT 1452-1453.) [I]t could have been three. I dont
ul
want to say I had three conversations with her. (7CT 1452.)
Appellant did not recall that her conversation with Ruettens wife
ib
turned into an argument or became heated. (7CT 1456.) Appellant denied

that she had any problems with her . . . . (7CT 1456.) Appellant stated
Tr
that Scott, the man she eventually married, moved into her home in 1993.
She faintly recall[ed] that Ruetten may have called a few times . . . and
asked to talk with her. According to appellant, she told Ruetten no, I
cant talk . . . . Im living with somebody. (7CT 1454.)
&
Appellant eventually stated thats kind of sounding familiar that she

spoke to Ruettens wife at the hospital. (7CT 1460-1461.) Appellant
ls
asked, whats this got to do with me dating him and . . . her getting killed?
I mean, I . . . dont have anything to do with it . . . . (7CT 1461.)
ia
Appellant remarked, this goes way back and . . . it was very sad . . . .
[W]hen we were in college, some of us would go down to his house in San
Tr
Diego. [] I went to his house with him . . . . (7CT 1464.)

Detective Jaramillo asked, during the time that you were seeing
[Ruetten] . . . was he acting . . . kind of squirrelly or kind of sneaking

around when hed hook up with you . . . .? Appellant replied, Well, he
probably was . . . . (7CT 1470.) Detective Stearns asked if appellant had
38
any issues with [Rasmussen]. Appellant denied this. (7CT 1474.)

Appellant stated that she did not have some big huge blow up . . . with
Ruetten. She added, when I was dating him, I was probably . . . going out
1475.)
ns
with other guys, and he was probably going out with other girls. (7CT
Detective Jaramillo stated that when he saw appellant at the office on
io
prior occasions, she appeared to be kind of bubbly. Appellant replied,
people think Im really hyper, but . . . I can get upset . . . and then I forget
at
five seconds later . . . . (7CT 1476.) Detective Jaramillo noted that
appellant had known Ruetten for a lot of years. Appellant stated, we
ul
were never engaged. (7CT 1481.) [I]t wasnt like we were planning to
get married . . . . I dont know how to describe it. (7CT 1482.) Asked if
ib
there was a lot of drama in this relationship, appellant denied that there
was. (7CT 1482.) She denied that her conversation with Ruettens wife at
Tr
the hospital was confrontational. (7CT 1482-1483.) Appellant added, I

cant even picture the conversation. (7CT 1483.)
Appellant stated that she did not think Ruetten ever socialized with
her and her friends. Appellant added that she would have to look at her
&
photos. She had 10,000 photos and was a nut about that. (7CT 14851486.) Asked whether anyone had ever broken into her car, appellant
ls
replied that this happened several times, and that someone stole a gun
and other stuff from her car. (7CT 1488-1489.)
ia
Pressed about whether she had a fight with [Ruettens wife]?
appellant replied, You mean like we fought? Detective Stearns stated,
Tr
Yeah, did you ever duke it out with her? Appellant denied that she did
so. (7CT 1492.) She added, I mean, it just doesnt sound familiar . . .
what are they saying? So I . . . fought with her, so . . . now . . . Im getting
. . . the leap. Excuse me. I havent eaten. Theyre saying, okay, I fought
with her, so I mustve killed her . . . . I mean, thats insane. (7CT
39
1493.) Appellant stated, If it happened I honestly dont remember it.

(7CT 1493.)
Detective Jaramillo noted that [d]etectives processed the [crime]
are claiming that Im a suspect, then . . . I gotta problem with . . . that.
ns
scene . . . to look for scientific evidence. Appellant stated, if you guys

(7CT 1498.) She added, I dont want to . . . get in trouble for something I
io
didnt even do or youre saying I did something. (7CT 1500.) Detective
Jaramillo stated, if we asked you for a DNA swab, would you be willing to
at
give us one? Appellant replied, Maybe. (7CT 1501.) She stated, it

almost sounds like youre trying to pin something on me. Detective
ul
Jaramillo denied this, but appellant remarked, I cant believe this. (7CT
1502.) Im shocked. Im really shocked . . . . (7CT 1504.)
Tr
ib
15. Further Evidence Of Appellants Physical Strength,

Her Superior Shooting Skill, Her Knowledge Of
How Police Investigated Crimes, And Her
Knowledge Of Picking Locks
Police records and appellants journal showed that in November 1984
appellant punched a suspect who was fighting someone else. (10RT 16521653.) There was no evidence that appellant acted inappropriately during
&
that incident. (10RT 1683.) Appellants journal also reflected that she
lifted fingerprints at crime scenes, and that she investigated a burglary.
ls
(10RT 1653-1655.) Appellants daily planner in 1985 referred to a book

that was a complete course in professional locksmith[ing], and a second
ia
book about locksmithing. (10RT 1655-1656, 1687.) One of those books

had a chapter about how a person could pick a disk tumbler-type lock.
Tr
(10RT 1657.)
Jane Weaver was a retired Los Angeles Police officer. Appellant was
in the police academy with her. She became appellants friend before they
were in the academy, when they both attended a program to prepare women
for the police department. They remained friends in the academy and while
40
they served as officers. (10RT 1688-1690, 1695.) Appellant showed

Weaver a lock picking kit. Appellant stated that she learned how to use
those tools. (10RT 1690-1691.) Weaver understood, because appellant
a rocky . . . relationship and broke up. (10RT 1692.) Weaver did not
ns
told her, that John was [appellants] boyfriend during college and they had
remember when appellant showed her the lock picking tools. (10RT 1697-
io
1698.)
Weaver stated that appellant qualified as an expert shooter. That is
at
the second highest rating a person can achieve on the Los Angeles Police
Departments shooting exams. (10RT 1696-1697.) Weaver used to be a
ul
good shooter, but in the late 1990s she failed her test to be a marksman.
She falsely told her supervisor that she passed. Someone filed a personnel
ib
complaint against Weaver about this. (10RT 1693-1694.)
The police records showed that four days after the murder, February
Tr
28, 1986, and the day after that, March 1, 1986, Weaver and appellant
worked in the same police car. Weaver did not remember at trial that
appellant had any injuries on those dates or complained about injuries.
(10RT 1702-1703.) However, Weaver did not specifically remember what
&
appellant looked like on those dates. (10RT 1704.) Appellant and Weaver
worked at the Devonshire Division between 1985 and 1987. (10RT 1697.)
ls
Sometime while they were there, appellant stated that she had crush on a
doctor. (10RT 1703.) Weaver did not remember what year appellant made
ia
those remarks. (10RT 1704.)

Detective Brian McCartin was in the police academy with appellant.
Tr
(12RT 1913-1914.) As part of his training there, he engaged her in combat

wrestling, which was [j]ust fighting, trying to get each others gun away,
trying to pin each other, that type of thing. (12RT 1914-1915.) Detective
McCartin wrestled almost all the other women in the class . . . and
[appellant] was probably by far the strongest, most aggressive, most
41
persistent fighter of all the women that [he] fought. (12RT 1915.) The
recruits were instructed to do anything you can to retain your gun[,]
because if you lose your gun, youre as good as dead. The recruits used
[w]hatever [options they] had available . . . including punching and biting
ns
each other. (12RT 1916.) Appellant never bit Detective McCartin. (12RT
1917.)
io
16. Forensic Behavioral Analysis
Mark Safarik was Executive Director of Forensic Behavioral Services,
at
and formerly worked as an FBI agent for 23 years. (15RT 2469-2470.) He

concluded that the homicide did not involve a burglary or an interrupted
ul
burglary. (15RT 2481, 2496.) Rather, the perpetrator staged the crime
scene to leave police with the false impression that the perpetrator
ib
committed a burglary. (15RT 2496-2497.)
Safarik noted that the building containing Rasmussens condominium
Tr
is walled and it has a fence around it and it has a gate over the driveway
area and it has a locked gated front. So getting access to the complex itself
is a problem if you dont live there. [T]hat creates some level of risk [for
any robber] . . . . (15RT 2482.) Other residences in that neighborhood
&
dont have that barrier surrounding them. (15RT 2482.)

Also, Rasmussens condominium was in the center of the complex,
ls
and its in the center of a group of units. So its surrounded by units that
face it and units on both sides. (15RT 2482.) This posed a much higher
ia
risk for the offender . . . because . . . when you have completed the
burglary, then you need to remove property from that location, and you[] . .
Tr
. have to walk out with this property, and you[] . . . have to pass other units
. . . . (15RT 2482.) It would be a challenge to get[] out with property
without being seen. (15RT 2483.) The idea for burglars is to get into a
location without anybody being there, get property, and get out . . . . And
42
to avoid any confrontation, to avoid people that are in the residence.

(15RT 2484.)
Safarik also considered that the perpetrator came in the condominium
in the early morning. He noted, You cant tell whether someones gonna
going to be [at home] during the daytime, towards the afternoon. (15RT
ns
be there in the morning. Its more likely, if people are working, theyre not
burglary based on a single factor. Rather, he considered all the
at
circumstances as a whole. (15RT 2485-2486.)
io
2485.) Safarik agreed that he did not reach his conclusion about the staged
Safarik stated that all the windows and doorways were locked. So
ul
what youre really left with . . . is the front door, and theres no forced entry
to this . . . door . . . . Theres no indication of a kick or any kind of prying
ib
or forcing the door open. [T]hat was unusual. (15RT 2486.) Safarik
agreed that the front door may have been unlocked, or the perpetrator may
Tr
have opened it with a pick. (15RT 2487.) There was also a sign in the
entry way that the owner had a burglar alarm. (15RT 2486-2487.) Safarik
explained, it creates a problem for the burglar . . . who would not want to
take the chance of activating the alarm. [I]ts another . . . [issue] that
&
elevates the risk . . . for the offender to break in. (15RT 2487.)
A burglar does not generally expect to leave the crime scene by using
ls
the homeowners car. (15RT 2484.) Rather, Safarik noted that a burglar
would have made provisions to have the property removed. If youre
ia
going to carry out the property, then you may have a vehicle of your own to
place it into. (15RT 2488.) [I]t appears that the offender took
Tr
[Rasmussens] vehicle and then drove [it] about two and a half miles away
and parked [it]. It was unusual because this is a brand new BMW. Theres
no damage to [it], and The keys are left in the vehicle. (15RT 2488.)
The car did not contain any property from Rasmussens home, although a
burglar had an opportunity to take property away in that car. (15RT
43
2488.) Theres no indication that property was taken from the residence
except for [Rasmussens] purse. (15RT 2488, 2494.) This was an odd
combination of facts. (15RT 2488.)
inside the car. Rather, he would expect the car to be empty if the burglar
took that property. But, The problem is . . . no property really has been
ns
Safarik added that he would not expect to find Rasmussens property
io
taken from this residence except the purse. So you had an opportunity and
the means to remove the property and nothings taken. (15RT 2489.)
at
Safarik pointed out that the perpetrator moved only two pieces of stereo
equipment, and moved them only from the living room cabinet to the
ul
entryway floor in front of the stairs. (15RT 2489.) The perpetrator did not
move any of the other, equally valuable electronic equipment in the
ib
living room. (15RT 2493.) Theres no indication that the perpetrator

searched anything else in this residence . . . . (15RT 2489.)
Tr
Photographs showed that all the other rooms appear[ed] pristine. (15RT
2492.)
A burglar would probably expect to find property of value [in] . . .

the master bedroom, jewelry box . . . area. But there was no evidence that
&
anyone searched there. There was no ransacking, and nothing [was

disturbed] outside of the living room. (15RT 2490.) In addition to
ls
moving the two pieces of stereo equipment, the perpetrator pulled out a
drawer from a coffee table in the living room. The bottom of the drawer
ia
dropped out, and the drawer end[ed] up leaning against this coffee table,
but theres no indication that anything in the drawer was searched or
Tr
moved. (15RT 2490.)

Safarik stressed that a box of straight pins fell on the floor when the
coffee table drawer fell down. But the pins [were] all together, indicating
that after that material was dumped on the floor, theres no movement of it,
theres no searching of it or else those pins really would have been
44
everywhere. (15RT 2490.) Safarik also noted that there was a white
cord at the crime scene. He asked rhetorically, whats the point of
bringing a cord to commit a burglary? He explained, this white cord . . .
[Rasmussens] blood on it. (15RT 2507.) Safarik relied on Ruettens
ns
is not identified as having come from the residence . . . and it . . . has

statement to the police that the cord was not in the condominium before the
io
day of the murder. (15RT 2541-2542.) Also, the wire was pulled out from
the stereo speakers, and there was blood on one of the speakers. (15RT
at
2507.)
Safarik concluded that Rasmussen was on the ground, probably
ul
incapacitated, [but] to some extent, still alive, and then the perpetrator
retrieve[d] a [blanket] . . . nearby, wrap[ed] the gun [in it] which . . .
ib
muffle[d] the sound of the shots, and . . . fire[d] three shots. (15RT 25092510.) Safarik determined that the perpetrator put the two stereo
Tr
components near the stairs after the murder. (15RT 2510.) He explained
that there were blood stains on the wall, and that the struggle happened
on the tile entryway. Yet the two stereo components remained
undisturbed . . . at the bottom of the stairs. (15RT 2510.) The perpetrator
&
ran up the stairs to attack Rasmussen, and Rasmussen ran down the stairs.
But nobody tripped on the stereo components near the stairs. (15RT 2510,
ls
2553, 2555.) So its very, very unlikely that those [two stereo
components] would have been in place . . . by the stairs before the
ia
perpetrator killed Rasmussen. (15RT 2511.)

Safarik agreed that he had investigated burglaries in which the burglar
Tr
was unable or did not take property[.] But in those cases, there was
some other dynamic occurring at the scene that would . . . explain that.
(15RT 2544.) Safarik also investigated cases in which the burglar was
surprised in the middle of the crime. (15RT 2545.) Safarik stressed that he
45
needed to look at the specific crime details . . . to determine how the

crime occur[ed]. (15RT 2546.)
Safarik acknowledged that when the perpetrator failed to search for
the defense theory that the perpetrator was committing a burglary but was
interrupted by a surprise. (15RT 2559.) Safarik added, If thats the only
io
thing youre considering, that would certainly be consistent . . . . (15RT

2560.)
Defense Evidence
at
B.
ns
other property throughout the condominium, that was also consistent with
Evangelina Flores was a housekeeper who worked in the
ul
condominium next to Rasmussens. (16RT 2634-2635.) On the date of the

murder at about 12:30 p.m., she heard a noise through the wall. It sounded
ib
as if two people were fighting . . . . Then there were two very loud,
violent sound[s]. (16RT 2635-2637.) Flores also heard the sound of a
Tr
door slamming. (16RT 2637-2638.) Later, Flores heard a striking sound,

and the sound of something falling or dropping. (16RT 2638.) Then
everything was silent, [and] quiet. Flores heard a car drive away from the
building. (16RT 2628.) Asked whether she told a detective that she heard
&
the sounds at 12:30, and whether she later stated that she heard the sounds
at 11:30, Flores replied, Well, I was estimating . . . . (16RT 2644.) She
ls
did not look at a clock when she heard the sounds. (16RT 2645.)
Officer Gordon Wade testified that in 2009, when the police
ia
department was refurbishing some police lockers, he notified all the

employees that they had to temporarily remove the items out of the lockers.
Tr
There were four lockers that no other officer claimed. Therefore, Office
Wade removed the property from those four lockers. Appellant had some
of her property in two of those four lockers. (16RT 2675-2679, 2681.)
Officer Wade did not make a list of all the items he found in those
lockers. But one locker containing appellants property had a gun in it. It
46
was a four-inch stainless steel revolver that [he] recognized as . . . the

same type that [he] was issued in the academy 25 years ago . . . . (16RT
2679, 2682-2683.) Officer Wade noticed that the locker contained an
issued holster as well. (16RT 2679.) The revolver was loaded with .38
issued to the officers. (16RT 2680, 2683.)
io
Patricia Fant was a private forensic firearms examiner and a former
ns
special bullets that resembled the type of ammunition the police department
Los Angeles County Sheriffs deputy. (16RT 2703-2704.) Fant explained
at
that Smith & Wesson made about 623,000 copies of the model 49 revolver,
over a period of more than 37 years. (16RT 2709-2710.) Fant examined
ul
the blanket from the crime scene. (16RT 2711.)5 Fant stated that in order
to determine whether the blanket could muffle the sound of a gunshot, she
ib
would have to do a test with . . . it, which she had not conducted. (16RT
2712.) Fant agreed that the blanket contained barrel cylinder gap discharge,
Tr
which only a revolver emits. (16RT 2744-2745.)
When Fant looked at the blanket, she noticed there was hair on it. She
pointed this out to Detectives Jaramillo and Stearns who were present. One
of the detectives took the hair and put it in an envelope. (16RT 2713-
&
2714.) Fant also saw a shoe print on the blanket. She took photos of it
while the detectives were there. (16RT 2715-2717.) Fant examined the
ls
bullets from the crime scene and could not determine whether they were
made by Federal. (16RT 2717.) She stated, the different manufacturers at
ia
that time . . . bought . . . components from other manufacturers. Theres

nothing on those bullets that is distinct[ive] [or that is made by] . . . one
Tr
bullet manufacturer . . . only. (16RT 2717) Asked if the coroners bullets

5
Fant stated that the item was a patchwork . . . not a blanket.

(16RT 2711.) However, even appellants trial counsel referred to this as a
blanket. (16RT 2715.) Therefore, respondent does so too for ease of
reference.
47
in this case and the Federal bullets both had a unique hoof-shaped crimp,
Fant agreed. (16RT 2743-2744.) But Fant reiterated that she could not
determine whether the bullets in this case were made by Federal. (16RT
to both the general public and law enforcement officers. (16RT 27212722.)
io
Carl Olson was the records manager for the Santa Monica Police
ns
2751-2752.) In the 1980s, Federal sold the .38 special +P 125 grain bullet
Department. (17RT 2774.) He stated that there were three thefts from
at
motor vehicles in the citys parking structures on March 9, 1986. Appellant

reported one of them. (17RT 2776-2779.) According to the other two
ul
reports that did not involve appellant, the thief broke into the trunk of the
vehicle and did not take a firearm. (17RT 2779-2780.)
ib
Detective Nuttall (17RT 2808) testified that he opened certain items

of evidence, took them out, and put them back in their packaging (17RT
Tr
2820-2831, 2840-2841). He wore gloves when he did that, and he did not
leave more than one item open at the same time. (17RT 2845-2846.) He
did not open the bite marks swabs, or the blood or fingernail samples.
(17RT 2842.)
&
Officer Dan Myers searched appellants locker in the police

department in 2009. (17RT 2857.) He found a Smith & Wesson .38
ls
caliber revolver, and .38 caliber special +P ammunition produced by

several different brands, including Remington Peters, Winchester, Aguila,
ia
W. Super W., Federal, and Remington. (17RT 2858-2864.)

Appellants trial counsel asked Detective Stearns to testify about
Tr
whether appellants work log mentioned men other than . . . Ruetten . . . .

(17RT 2880, 2882.) Detective Stearns stated that on November 29, 1984,
appellant wrote, I worked with McDonald. Its weird working with a guy
that really likes you especially since weve . . . gone out. (17RT 28822883.) On May 19, 1985, appellant wrote, I met two firemen from
48
Glendale, really cuties. I even got their phone number so we could go bike
riding. (17RT 2883-2884.) On August 14, 1985, appellant wrote, I met
this camera man, Rodger, who was asking Kirk . . . about me. He asked for
appellant wrote, bike riding with Rodger. (17RT 2893-2894.)
On October 12, 1985, appellant wrote, Now, I must say that this is
io
not one of my favorite places to eat. Carrie . . . was working there so I
ns
my number. I told him try the station. (17RT 2885.) On October 8, 1985,
asked to sit in her section. Boy, was I glad we sat there. I saw this guy that
at
I couldn't keep my eyes off of. (17RT 2885-2886.) Later on that same
date, appellant wrote:
(17RT 2886-2887.)
Tr
ib
ul
Gene seems like such a nice guy and his body [is] in
perfect condition. Gene lives around the corner from me and he
said he has a Jacuzzi. We followed them over to Bobs Big Boy.
They ate and we talked a little more. While that ended our work
night, I went after work by myself to Genes. We drank wine.
Andy was there. We all talked. We Jacuzzied. Then Andy left.
We drove over to my house . . . . We really had a nice night. I
got very sick from the wine . . . . I went home and got my bikini
to lay in the sun with Gene.
&
On November 14, 1985, appellant stated, Then I . . . picked up a

salad. Two guys went and ate dinner with Gene. It was a real nice dinner
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and I met his dad. (17RT 2887-2888.) On December 16, 1985, appellant
wrote, I worked by myself. First thing I did was go [to] see if Gene was
[at] . . . work. No, his car wasnt there. I then drove by his house and he
ia
was out in his yard. I talked with him for a while. (17RT 2888.) On
January 3, 1986, appellant stated, Schmidt keeps hinting at wanting to take
Tr
me out. (17RT 2888-2889.) On December 28, 1985, appellant wrote that

she went with Rodger to see the musical group Manhattan Transfer. (17RT
2892-2893.)
49
On January 9, 1986, appellant stated, Flipflops, 13, Rodger. (17RT

2894.) On January 25, 1986, appellant wrote, I drove . . . on Zelah and
Chatsworth. I saw Genes car and said hello. He is so good looking.
(17RT 2890.) On January 28, 1986, appellant wrote, b-ball game with
stated, Dinner with Gene. (17RT 2895.)
io
On July 9, 1986, appellant wrote, out with Rodger. (17RT 2896.)
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Rodger, Tiny Naylors. (17RT 2894-2895.) On April 17, 1986, appellant
On July 10, 1986, appellant stated, I had a lunch date with a D.A.
at
investigator named Alfred Winfield. Hes the guy I met at the Police
Olympics. We had lunch [for about two hours and 45 minutes]. (17RT
ul
2891.) On July 24, 1986, appellant wrote, Al Whitfield6 was going to
meet me, but he got tied up. (17RT 2891-2892.) On August 19, 1986,
ib
appellant stated, Bike ride [with] Gene. (17RT 2896.) On August 24,
1986, appellant wrote, lunch [with] Gene. (17RT 2896-2897.) Appellant
Tr
also wrote on February 9, 1985, that she shot her gun in order to qualify for
her medal. She was so excited because she shot so well. (17RT 2897.)
According to Detective Stearns, none of these remarks suggested that
appellant was in love with any of these men, she was depressed about them,
&
or she could not concentrate because she thought about them. Appellant
did not state in those entries from her work log whether she had romantic or
ls
platonic relationships with these men. (17RT 2889-2890.)

Appellant did not leave any identifiable fingerprints in Rasmussens
ia
condominium, although there were identifiable fingerprints there. (17RT

2911-2919, 2921-2927.)
Tr
Appellant presented several character witnesses. Suzanne Mendoza is
appellants cousin and friend. (16RT 2649.) Mendoza had never seen
6
Appellant used both names, Winfield and Whitfield, according to

the reporters transcript.
50
appellant act violently toward anyone. (16RT 2658.) Robert Kirk was a
retired Los Angeles Police officer. (16RT 2660.) He and appellant were in
the same patrol unit together. He had been to appellants home for dinner.
(16RT 2661.) Kirk did not see any photos of Ruetten there. (16RT 2662-
ns
2663.)
Michael Alexander was a retired Los Angeles Police officer, and was
io
in the same patrol car as appellant. (16RT 2665-2666.) Alexander worked

with appellant the day after the murder and two days later. (16RT 2667,
at
2670-2671.) Appellant did not complain of any injuries when they worked
together on those days, and Alexander did not notice that appellant suffered
ul
from any injuries. (16RT 2669-2671.) Alexander believed that appellant

was not a violent person. (16RT 2672.) According to Alexander, appellant
ib
had [a]bove average strength for a woman. (16RT 2673.)
Kim Dittbern knew appellant for many, many years and attended a
Tr
program with her in 1983 to get women prepared for the physical demands
of the [police] academy . . . . (17RT 2783.) Dittbern was a police officer
for six years. She and appellant became friends. (17RT 2783-2784.)
Dittbern agreed that appellant was very athletic. She added that appellants
&
training was excellent [and] she was. . . very fit. Appellant was the
student leader. So she was very outgoing, [and] very warm in bringing in
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the new people to join us . . . . She was very friendly, [and] a natural
leader. (17RT 2785.) According to Dittbern, appellant is not a violent
ia
person. In all . . . the decades that Ive known her and [in] every situation
Ive seen her . . . I have never seen [her commit] any violence . . . . (17RT
Tr
2790.)
Sheri Huff met appellant in a college dorm and maintained a
friendship with appellant for 30 years. (17RT 2795-2796.) Huff never saw
appellant act violently. (17RT 2802.) According to Huff, appellant and
Ruetten were merely friends in college. Ruetten dated one of Huffs
51
roommates, Elaine Schultz. Huff never saw appellant display any jealousy
about Ruettens relationship with Schultz. (17RT 2797.) Huff added, We
were all friends. We hung out together. (17RT 2797.) But Huff implied
present. (17RT 2803-2804.) Huff didnt really see [appellant] date
[Ruetten] or anybody else. (17RT 2804.)
THE PROSECUTIONS DELAY BEFORE APPELLANTS ARREST

DID NOT VIOLATE DUE PROCESS
at
I.
io
ARGUMENT
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that she never saw appellant and Ruetten together when no one else was
Appellant claims that the prosecution violated due process when it
ul
delayed arresting her between 1986 and 2009. (AOB 28-52.) She is
mistaken.
Relevant Proceedings
ib
A.
The trial court rejected this claim. It reasoned that since the murder
Tr
occurred after the electorate passed Proposition 8 in 1982, the federal law
regarding pretrial delay applied here, and the state law did not apply. The
trial court relied on People v. Valencia (1990) 218 Cal.App.3d 808. (1CT
&
27.) The court noted that according to federal law, this claim lacks merit
because the prosecution team did not intentionally seek an advantage or act
with reckless disregard when it delayed arresting appellant. (1CT 25-28.)
ls
The court also explained that even if state law applied to this issue,
appellant did not deserve relief. The court relied on People v. Nelson
ia
(2008) 43 Cal.4th 1242. (1CT 28-30.)
Tr
B.
Analysis
1. Since Proposition 8 Applies Here, Federal
Constitutional Law Is Relevant To This Claim, And
State Law Is Irrelevant
As the California Supreme Court has explained, pretrial delay does

not implicate speedy trial rights . . . . But depending on the circumstances,
52
it may constitute a denial of the right to a fair trial and to due process
under the state and federal Constitutions. (People v. Nelson, supra, 43
Cal.4th at p. 1250.) The threshold issue is whether Proposition 8 applies to
relied on Valencia. (1CT 27.)
ns
those rights. The trial court correctly found that it did, and it properly
In Valencia, the defendant moved to dismiss the charges in state court
io
because the federal government deported a material witness. (People v.
Valencia, supra, 218 Cal.App.3d at pp. 812-813.) The federal standard of
at
materiality was less generous to the defendant than the state standard was.
(Id. at pp. 813-815.) The Fifth District Court of Appeal determined that
ul
Proposition 8 applied, and therefore the federal standard of materiality was

the proper one. (Id. at p. 819.)
ib
Part of Proposition 8 is the Truth-In-Evidence provision, which is now

Article I, section 28, subdivision (f)(2) of the California Constitution. That
Tr
states in part, relevant evidence shall not be excluded in any criminal

proceeding . . . . As Valencia reiterated, in In re Lance W. (1985) 37
Cal.3d 873, the California Supreme Court declared that Proposition 8
eliminated the judicially created remedy for violations of the search and
&
seizure provisions of the federal or state Constitutions . . . except to the

extent that exclusion [of evidence] remains federally compelled. (People
ls
v. Valencia, supra, 218 Cal.App.3d at p. 816, italics in original, citation and

internal quotation marks omitted.)
ia
Lance [W.] expressly did not reach the question of whether section
28[(f)(2)] mandates admission of evidence obtained in violation of other
Tr
constitutional guarantees. (People v. Valencia, supra, 218 Cal.App.3d at
pp. 816-817, citation, internal quotation marks, and original alteration

omitted.) But in People v. May (1988) 44 Cal.3d 309, 318, the California
Supreme Court applied Proposition 8 to the Fifth Amendment too, as
Valencia noted. The California Supreme Court held in May that since only
53
federal constitutional law applied, a prosecutor was allowed to impeach a

witness with statements that law enforcement officers obtained in violation
of the witnesss right against self-incrimination. (People v. Valencia,
The appellate court in Valencia also relied on its own decision in
People v. Tierce (1985) 165 Cal.App.3d 256, 263. Tierce held that
io
Proposition 8 applied when a defendant claims that the prosecution team
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supra, 218 Cal.App.3d at p. 817.)
violated due process by failing to preserve evidence. (Ibid.) Therefore,
at
Tierce decided that the proper standard for that issue is controlled by
California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413, 104 S.Ct.
ul
2528]. (People v. Valencia, supra, 218 Cal.App.3d at p. 817.) Valencia

then pointed out that the court reconsidered Proposition 8 and the loss of
ib
material evidence in People v. Epps (1986) 182 Cal.App.3d 1102, where it

stated:
&
Tr
Whenever the remedy for the violation of a federal constitutional

right, regardless of whether it is search and seizure, due process,
right to confrontation, etc., is not covered by a California
statutory scheme such as privilege, and involves the exclusion of
evidence, Proposition 8 requires the court to apply federal
judicial standards.
(People v. Valencia, supra, 218 Cal.App.3d at pp. 817-818, italics in
ls
original, citation and internal quotation marks omitted.)

The Valencia court reiterated that Proposition 8 also applied when the
defendant sought to dismiss certain charges, and the defendant did not limit
ia
his request to the exclusion of particular evidence. Valencia relied on its
reasoning in Epps that dismissal of the entire case, or dismissal of certain
Tr
charges, is the functional remedial equivalent of exclusion of evidence

. . . . (People v. Valencia, supra, 218 Cal.App.3d at p. 818, citation and
54
The Valencia court noted that after it applied Proposition 8 to a

Trombetta claim involving due process in Tierce, the California Supreme
Court did so too in People v. Johnson (1989) 47 Cal.3d 1194, 1234.
(People v. Valencia, supra, 218 Cal.App.3d at p. 818.) Also, a different
determined that Proposition 8 applied when a defendant sought the
io
dismissal of the entire case based on the deportation of a material witness.
ns
appellate court, the Fourth District Court of Appeal, relied on Epps when it
(People v. Valencia, supra, 218 Cal.App.3d at p. 818, citing People v.
at
Lopez (1988) 198 Cal.App.3d 135, 146.)
After discussing all these cases, Valencia concluded, Since dismissal
ul
[of an entire case] amounts to the exclusion of all the evidence against the
defendant . . . . , the motion to dismiss based on the deportation of a
ib
material witness pulls the trigger to apply Proposition 8 . . . . (People v.

Valencia, supra, 218 Cal.App.3d at p. 819.)
Tr
In addition to the appellate courts detailed reasoning in Valencia, the

California Supreme Court has made clear that Proposition 8 is not limited
to the Fourth Amendment. In May, the California Supreme Court stated
that Lance W.s reasoning and result are equally applicable to the Fifth
&
Amendments right against self-incrimination. (People v. May, supra, 44

Cal.3d at p. 316.) Both the exclusionary rule for the Fourth Amendment,
ls
and the exclusionary rule for the Fifth Amendment are addressed to
evidence obtained by police conduct in violation of constitutional
ia
provisions. Both are based on the same rationale of deterring unlawful

police conduct. (Ibid., original alteration omitted.) The California
Tr
Supreme Court added:

Given the probable aim of the voters in adopting section 28
[(f)(2)], namely, to dispense with exclusionary rules derived
solely from the state Constitution, it is not reasonably likely that
the California voters intended to preserve, in the form of a
statutory privilege, a judicially created exclusionary rule
55
expressly rejected by the United States Supreme Court under the

federal Constitution [when the prosecution impeaches a
witness].
(Id. at p. 318, italics in original, citation omitted.)
applied Proposition 8 outside the context of the Fourth Amendment. In
io
Johnson, our high court applied Proposition 8 to a due process claim
ns
May was not the last case in which the California Supreme Court
involving destruction of evidence as discussed above. In particular, our
at
high court cited with approval an opinion by Division Five of this appellate
district, People v. Angeles (1985) 172 Cal.App.3d 1203. (People v.
Johnson, supra, 47 Cal.3d at p. 1234.) In Angeles, which involved the
ul
same issue as Johnson, Division Five explained that it was not so much
concerned . . . about the fact that Lance W. involved Proposition 8s
ib
application to the Fourth Amendment. Rather, Division Five was

concerned about the manner our Supreme Court . . . interpreted the
Tr
imprimatur of section 28[subdivision (f)(2)] of the initiative. (People v.

Angeles, supra, 172 Cal.App.3d at p. 1216.)
Division Five stressed that the California Supreme Court in Lance W.
&
gave effect to the expression of the popular will in Proposition 8, by

examin[ing] the analysis of the legislative analyst, ballot summary, ballot
ls
arguments, preamble to the initiative, and of course, the initiative itself.

(People v. Angeles, supra, 172 Cal.App.3d at pp. 1216-1217.) Division
Five, quoting Lance W., emphasized that the purpose of Proposition 8, to
ia
ensure all relevant evidence be admitted . . . cannot be effectuated if the

judiciary is free to adopt exclusionary rules that are not authorized by
Tr
statute or mandated by the Constitution. (Id. at p. 1217, citation and

Division Five, quoting Lance W., pointed out that Proposition 8 did
not repeal . . . section 24 of Article I of the California Constitution, which
56
establishes that rights guaranteed by the state Constitution are not

dependent on those guaranteed by the federal Constitution. (People v.
Angeles, supra, 172 Cal.App.3d at p. 1217.) Rather, [t]he substantive
according to Lance W., eliminates a judicially created remedy for
violations of search and seizure provisions, and prohibits a court from
ns
scope of section 24 remains unaffected by Proposition 8. Proposition 8,
io
excluding evidence on that basis unless the federal Constitution requires it.
citations and internal quotation marks omitted.)
at
(People v. Angeles, supra, 172 Cal.App.3d at p. 1217, italics in original,

Division Five concluded that there was no functional difference
ul
between a judicially created exclusionary rule for unlawful search and

seizure violations and one utilized for loss of evidence cases. In each
ib
instance relevant evidence on the issue of guilt or innocence is being

excluded . . . . Therefore, Proposition 8 also applied to a due process
Tr
claim based on loss of evidence. (People v. Angeles, supra, 172

Cal.App.3d at p. 1217.) When the California Supreme Court cited Angeles
with approval, it implicitly adopted this reasoning. (People v. Johnson,
supra, 47 Cal.3d at p. 1234.)
&
Just as Proposition 8 applies when a defendant complains about a due

process violation based on the loss of evidence, Proposition 8 is controlling
ls
for the same reasons when a defendants due process claim is based on
pretrial delay. Moreover, based on the same principles, Proposition 8
ia
applies when a defendant complains that his fair trial right is violated by
pretrial delay. In all these contexts, unless the federal Constitution requires
Tr
exclusion of evidence, Proposition 8 prohibits a court from excluding

evidence on the basis that the state violated a defendants rights. (People v.
Angeles, supra, 172 Cal.App.3d at p. 1217.)
Appellant relies on People v. Boysen (2007) 165 Cal.App.4th 761,
772-773, for the proposition that, It is firmly established California law
57
that a finding of denial of due process based on preaccusation delay is not

dependent on finding that the delay was undertaken . . . to disadvantage the
defendant. (AOB 43, italics added, additional citation and internal
interpreting California law, not in the context of determining whether
federal law applied instead of California law.
ns
quotation marks omitted.) But Boysen made that remark in the context of
io
Appellant also cites People v. Boysen, supra, 165 Cal.App.4th at page

775, footnote 2, for the theory that Proposition 8 would be an illegal
at
revision to the state Constitution if Proposition 8 applied to pretrial delay
claims. (AOB 43-44.) Boysen held that Proposition 8 was not retroactive
ul
to the crime there, which the perpetrator committed before Proposition 8

was enacted. (People v. Boysen, supra, 165 Cal.App.4th at pp. 774-775)
ib
Boysen also held that there was no controlling federal law on the subject
[of pretrial delay]. (Id. at p. 775.) Boysens remarks were dicta on the
Tr
issue of whether Proposition 8 would be an illegal revision of the state

Constitution. On that issue, Boysen merely stated:
ls
&
[W]e note [that] . . . Proposition 8 . . . [was] an initiative.

Initiatives may amend but not revise the Constitution. (Cal.
Const., art. XVIII.) If section 28(d) is as broad as the district
attorney suggests, then an argument can be made that, given its
breadth and its effect on the judicial interpretation of our state
Constitution, it is a revision and unconstitutional. (See,
generally, Raven v. Deukmejian (1990) 52 Cal.3d 336, 349
355.)
ia
(Id. at p. 775, fn. 2, italics added.)

Moreover, contrary to Boysens dicta, Proposition 8 is not an illegal
Tr
revision of the state Constitution. Division Five of this appellate district

explained this in Angeles discussed above, and the California Supreme
Court implicitly agreed when it cited Angeles with approval in Johnson
discussed above. In addition, Raven, which Boysen cited, involved a far
58
more sweeping state initiative than Proposition 8. In Raven, the improper
ib
ul
at
io
In criminal cases the rights of a defendant to equal protection of

the laws, to due process of law, to the assistance of counsel, to
be personally present with counsel, to a speedy and public trial,
to compel the attendance of witnesses, to confront the witnesses
against him or her, to be free from unreasonable searches and
seizures, to privacy, to not be compelled to be a witness against
himself or herself, to not be placed twice in jeopardy for the
same offense, and not to suffer the imposition of cruel or
unusual punishment, shall be construed by the courts of this
state in a manner consistent with the Constitution of the United
States. This 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, nor shall it be construed
to afford greater rights to minors in juvenile proceedings on
criminal causes than those afforded by the Constitution of the
United States.
ns
provision of Proposition 115 stated:
(Raven v. Deukmejian, supra, 52 Cal.3d at p. 350, italics added.)
Tr
The California Supreme Court in Raven concluded that this improper

provision involved a broad attack on state court authority to exercise
independent judgment in construing a wide spectrum of important rights
under the state Constitution. (Raven v. Deukmejian, supra, 52 Cal.3d at p.
&
355.) The California Supreme Court cited, among other cases, People v.
Ramos (1984) 37 Cal.3d 136, 172, for the proposition that the state due
ls
process protection is broader than federal due process protection. (Raven v.

Deukmejian, supra, 52 Cal.3d at p. 354.) Appellant emphasizes that point.
ia
(AOB 42.) But here, unlike in Raven, Proposition 8 does not alter [t]he
substantive scope of state constitutional rights. It merely eliminates a
Tr
judicially created remedy for violations of search and seizure provisions,
and prohibits a court from excluding evidence on that basis unless the
federal Constitution requires it. (People v. Angeles, supra, 172 Cal.App.3d
at p. 1217, italics in original, citations and internal quotation marks omitted;
59
People v. Johnson, supra, 47 Cal.3d at p. 1234 [citing Angeles with

approval].)
As the California Supreme Court stressed in Raven, California courts
have a solemn duty to guard the sovereign peoples initiative power
process. (Raven v. Deukmejian, supra, 52 Cal.3d at p. 341, internal
io
quotation marks omitted.) Therefore, California courts are required to
ns
jealously because it is one of the most precious rights of our democratic
resolve any reasonable doubts in favor of the exercise of this precious
at
right. (Ibid., original italics and internal quotation marks omitted.) Here,
the electorate properly enacted Proposition 8, which applies to the issue of
ul
pretrial delay.
ib
2. According To Federal Constitutional Law,

Appellants Claim Of Pretrial Delay Lacks Merit
This Court should apply federal constitutional law regarding pretrial
delay. The California Supreme Court most recently discussed that law in
Tr
People v. Nelson, supra, 43 Cal.4th at pages 1251-1254. Since Nelson

involved a 1976 murder (id. at p. 1247), Proposition 8 was not relevant
there, and the California Supreme Court did not apply federal constitutional
&
law. However, the California Supreme Court determined that according to

the two most recent United States Supreme Court precedents, a defendant
ls
could not prevail on a federal constitutional claim on pretrial delay, unless

he or she proved that the government delayed to secure a deliberate tactical
ia
advantage. (Id. at p. 153, citing United States v. $8,850 (1983) 461 U.S.
555, 563 [103 S.Ct. 2005, 76 L.Ed.2d 143] and United States v. Gouveia
Tr
(1984) 467 U.S. 180, 192 [104 S.Ct. 2292, 81 L.Ed.2d 146].) The
California Supreme Court also stated that the exact standard under [the
federal] Constitution is not entirely settled (id. at p. 1250) and some of
the high courts earlier cases suggest the test might be somewhat less
onerous (id. at p. 1254).
60
However, regardless of what the United States Supreme Court may

have suggested in earlier cases, the two most recent United States Supreme
Court cases that the California Supreme Court cited in Nelson are
applied a different standard, the more recent cases implicitly overruled
them. (See People v. Chun (2009) 45 Cal.4th 1172, 1199 [holding that
io
since the test the California Supreme Court applied in an earlier case
ns
controlling here. To the extent any earlier United States Supreme Court
cannot coexist with the test it applied in two more recent cases, the recent
at
cases implicitly overruled the earlier case].)
Therefore, the relevant federal constitutional question is whether the
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prosecution team intentionally delayed arresting appellant in order to gain a

tactical advantage. There is no evidence that the prosecution team did so.
ib
Indeed, appellants trial counsel conceded that he lacked any evidence to

meet that standard. (1CT 7; AOB 33.)
Tr
Even assuming that the United States Supreme Courts earlier cases
govern here, the California Supreme Court explained that in those cases,
the United States Supreme Court indicated that if the prosecution team
delayed . . . in reckless disregard of circumstances . . . it knew about,
&
that delay might prejudice the defense, [and] violate due process if the
defendant demonstrates prejudice. (People v. Nelson, supra, 43 Cal.4th at
ls
p. 1253.) According to the California Supreme Court, the United States

Supreme Court in these earlier cases also appeared to leave open the
ia
possibility that delay might be unjustified in other circumstances as well.

(Ibid.)
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Since the California Supreme Court in Nelson did not apply
Proposition 8 to a crime that occurred before Proposition 8 was enacted, the

California Supreme Court did not need to be more specific about federal
constitutional law on this issue. But Proposition 8 would have no meaning
61
if California courts could speculate about other possible tests for unjustified
delay that the United States Supreme Court has never applied.
Even under the broadest possible federal constitutional test that the
have to prove that the prosecution team delayed . . . in reckless disregard
of circumstances . . . it knew about, and the delay prejudiced appellant.
io
(People v. Nelson, supra, 43 Cal.4th at p. 1253.) It would be insufficient
ns
United States Supreme Court ever applied on this issue, appellant would
for appellant to prove that she suffered some insignificant prejudice.
at
Rather, she would have to show that her ability to mount an effective
defense . . . was impair[ed]. (Ibid., internal quotation marks omitted,
ul
quoting United States v. Lovasco (1977) 431 U.S. 783 [97 S.Ct. 2044, 52
L.Ed.2d 752].)
ib
Here, appellant has not shown that the prosecution team knew about
any circumstances that would impair her ability to mount an effective
Tr
defense, or that the prosecution team delayed in reckless disregard of any of

those circumstances. The trial court specifically found there was no
evidence that the prosecution team acted with reckless disregard here.
(1CT 26-28.) For all these reasons, under Proposition 8 and federal
&
constitutional law, this claim lacks merit.

3. Even Under State Law, This Claim Lacks Merit
ls
Even assuming that Proposition 8 does not apply and that the state law
test is relevant here, appellant is not entitled to relief. As the California
ia
Supreme Court has reiterated, the prosecution violates due process under
state law if, before the defendant is arrested, its unjustified delay of the case
Tr
weaken[s] the defense through the dimming of memories, the death or

disappearance of witnesses, and the loss or destruction of material physical
evidence. (People v. Cowan (2010) 50 Cal.4th 401, 430, internal
quotation marks omitted.) If a defendant seeks to dismiss a charge on this
ground, he or she must demonstrate prejudice arising from the delay. The
62
prosecution may offer justification for the delay, and the court . . . balances
the harm to the defendant against the justification for the delay. (Ibid.,
citation and internal quotation marks omitted.)
material witnesses due to lapse of time or loss of evidence because of
fading memory attributable to the delay. (People v. Cowan, supra, 50
io
Cal.4th at p. 430, citations and internal quotation marks omitted.) If the
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A defendant may demonstrate prejudice by showing a loss of
prosecution engages in [p]urposeful delay to gain an advantage . . . , this
at
is totally unjustified . . . and a defendant may prevail by making only a

relatively weak showing of prejudice . . . . However, [i]f the delay was
ul
merely negligent . . . , then the defendant must present a greater showing

of prejudice . . . to establish a due process violation. The prosecutions
ib
justification for delay is strong when there is investigative delay, [and]

nothing else. (Id. at p. 431, citations and internal quotation marks
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omitted.)
When a trial court rules on a defendants motion to dismiss based on

this ground, the appellate court applies the abuse of discretion standard,
and defer[s] to any underlying factual findings if substantial evidence
&
supports them. (People v. Cowan, supra, 50 Cal.4th at p. 431, citations

omitted.) Although appellant asserts that an appellate court should apply a
ls
mixed standard of review to this question (AOB 37), he is mistaken. In

Cowan in 2010, the California Supreme Court stated that the abuse of
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discretion standard applies. (People v. Cowan, supra, 50 Cal.4th at p. 431.)

In Nelson, the California Supreme Court applied the state law test.
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Like the present case, Nelson was a murder case where the prosecution
delayed arresting the defendant until it conducted a DNA test. There, the
DNA test was in 2002, 26 years after the 1976 murder. (People v. Nelson,
supra, 43 Cal.4th at p. 1256.) The California Supreme Court stated that
the justification for the delay was strong. The delay was investigative
63
delay, nothing else. (Ibid.) Although [t]he police may have had some
basis to suspect [the] defendant of the crime shortly after it was committed
. . . they did not fully solve [the] case until 2002 . . . when they
The California Supreme Court reiterated that a court should not
second-guess the prosecutions decision regarding whether sufficient
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evidence exists to warrant bringing charges, and courts should not find a
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developed the DNA evidence. (Ibid.)
due process violation simply because they disagree with a prosecutors
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judgment as to when to seek an indictment. (People v. Nelson, supra, 43
Cal.4th at p. 1256, original alteration omitted.) A prosecutor is not required
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to file charges as soon as he or she believes there is probable cause that the
defendant committed the crime. Rather, a prosecutor may wait until he or
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she believes there is proof beyond a reasonable doubt. When a prosecutor

waits for proof of that higher standard, he or she abides by elementary
Tr
standards of fair play and decency . . . . (Ibid.)
The defendant in Nelson argue[d] that . . . DNA technology . . .

existed years before law enforcement agencies made the comparison and
that, therefore . . . they were negligent when they failed to conduct the
&
DNA tests sooner . . . . (People v. Nelson, supra, 43 Cal.4th at p. 1256.)

The California Supreme Court rejected this argument. (Ibid.) It stressed,
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A court may not find negligence by second-guessing how the state

allocates its resources or how law enforcement agencies could have
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investigated a given case. (Ibid.) [T]he difficulty in allocating scarce
prosecutorial resources (as opposed to clearly intentional or negligent
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conduct) is a valid justification for delay. (Id. at pp. 1256-1257, citation,
internal quotation marks, and original alteration omitted.) The California

Supreme Court held that the prosecution did not violate due process. (Id. at
p. 1257.)
64
Here, the prosecution team waited 23 years (from 1986 to 2009)

before it conducted a DNA analysis. That was three years less than the
delay in Nelson, where the justification for the delay was strong. (People
v. Nelson, supra, 43 Cal.4th at p. 1256.) Appellant argues that unlike in
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Nelson, the prosecution in this case had more than some basis to suspect
appellant shortly after the crime. (AOB 46, citation omitted.) But that is
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not the point of Nelson. Rather, the California Supreme Court made clear
that a reviewing court will not second-guess[] how the state allocates its
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resources or how law enforcement agencies could have investigated a given

case. (People v. Nelson, supra, 43 Cal.4th at p. 1256.)
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Appellant also argues that the a law enforcement agency must
institute disciplinary proceedings promptly in order to maintain the publics
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confidence. (AOB 47.) But that does not establish that in a criminal
prosecution the reviewing courts will tell the prosecution how to allocate its
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resources. As the California Supreme Court has explained, reviewing

courts will not do that. (People v. Nelson, supra, 43 Cal.4th at p. 1256.)
Moreover, appellant fails to prove sufficient prejudice to outweigh the
prosecutions strong justification for delay. Appellant notes that during the
&
pretrial hearing on this issue, The court was particularly concerned with
the chain of custody for the 1986 physical evidence, including the bite mark
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swab. (AOB 33, 50, citing 1CT 14, 23.) However, the trial court did not
suggest that it had concluded the chain of custody issue had merit. Rather,
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after the prosecutor and defense attorney disagreed about whether there
were gaps in the police reports about chain of custody, the trial court
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stated, thats going to . . . be a factual issue that the court is going to have
to decide. (1CT 14-15.) Appellant does not assert that the trial court later
found there was a material gap in the chain of custody. Rather, as appellant
points out, the court stated at the hearing that any gap in the chain of
custody was more prejudicial to the prosecution than to the defense. (AOB
65
35, citing 1CT 23.) Also, the court later ruled before trial that the bite
mark swab[s] [are] admissible. (3RT P28.)
Appellant cites People v. Mirenda (2009) 174 Cal.App.4th 1313,
1327-1328, for the proposition that Even a minimal showing of prejudice
48.) But here as in Nelson, the justification for delay in conducting DNA
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analysis was strong. (People v. Nelson, supra, 43 Cal.4th at p. 1256.)
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may require dismissal if the proffered justification is insubstantial. (AOB
Moreover, Mirenda was an unusual case. There, the defendant presented
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evidence . . . that the detective who had interviewed Madruga, the only
independent eye witness to the shooting, had died and was unavailable to
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either corroborate or impeach Madruga, whose story of the incident had

recently changed. (People v. Mirenda, supra, 174 Cal.App.4th at p. 1331,
ib
italics added.) Madrugas earlier statement . . . would have been helpful to

a defense of self-defense or at least provided some defense to the element
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of specific intent to kill during a heated argument. (Id. at pp. 1331-1332.)

The present case is nothing like this.
Appellant argues that he suffered prejudice because he already had

substantial evidence of third-party culpability, but the investigators failed
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to identify the person who left some of the fingerprints at the scene, and the
people whose DNA were part of some of the DNA mixture on objects at the
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crime scene. (AOB 49.) Appellant is mistaken. As discussed below in

Argument VI, there was no substantial evidence of third party culpability.
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In addition, appellant has not shown that if the prosecution team had
investigated the case earlier, they would have been able to identify any of
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the people who left some of the additional fingerprints or DNA at the crime
scene. Even if law enforcement had been able to identify these people,
appellant has not proven that they lacked an innocent reason to be in
Rasmussens home, or that there would have been any other evidence to
link them to the murder of Rasmussen.
66
Given the DNA evidence that appellant left at the crime scene when
she had no innocent reason to be there, her strong motive to commit the
crime, her false exculpatory statements to law enforcement officers during
Williams (2000) 79 Cal.App.4th 1157, 1167-1168), and the speculative
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her interview, which displayed her consciousness of guilt (People v.

nature of appellants claim of prejudice, it is unreasonable to conclude that
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the delay impair[ed] appellants ability to mount an effective defense

. . . . (People v. Nelson, supra, 43 Cal.4th at p. 1253.)
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Appellant also complains that the police did not retain the 911 tape
and other police communication. (AOB 49.) But the trial court stated, I
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. . . find this allegation to be very speculative and I dont put much weight
on it. I dont think its likely that any . . . significant value would have
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come to the defense if the tape had been preserved. (1CT 23-24.)
Appellant relies on Fowler v. Superior Court (1984) 162 Cal.App.3d 215,
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218-220 (AOB 50), but that case is inapposite. Fowler does not stand for
the broad proposition that whenever the police destroy a 911 tape, the
defendant suffers prejudice. Rather, Fowler was based on the theory that
the phone call to the 911 operator was stiffed-in, which apparently meant
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that the police themselves made a phony phone call to the 911 operator.
(Fowler v. Superior Court, supra, 162 Cal.App.3d at pp. 218-220.)
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Nothing like that happened here.

Appellant adds that she suffered prejudice because certain witnesses
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could not remember whether appellant had any visible injuries the day after
the murder. (AOB 50.) This aspect of her argument also lacks merit.
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Appellant could not have mounted a successful defense merely by proving

that she did not suffer injuries. It was not inevitable that the murderer had
to suffer any injuries. Michael Alexander, a retired officer who worked
with appellant, testified that appellant had above average strength for a
woman. (16RT 2673.) Michael Hargreaves, a retired officer who rented a
67
room from appellant before the murder, testified that appellants fitness
level was [o]utstanding, and was [s]uperior compared to other women.
(9RT 1359, 1379.) He added that appellant was an expert shooter. (9RT
was [v]ery fit and very strong. (9RT 1435.) She was definitely
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1394.) Ruetten testified that after appellant graduated from college, she
stronger than Rasmussen, but it was hard to say whether she was much
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stronger. (9RT 1458.)
Jan Weaver, a retired officer, testified that appellant was an expert
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shooter, which was the second highest level of proficiency. (10RT 1696-
1697.) Detective Brian McCartin wrestled almost all the other women in
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the police academy that he and appellant attended together. Appellant was
probably by far the strongest, most aggressive, most persistent fighter of all
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the women that [he] fought. (12RT 1915.) Given all this evidence, a
reasonable juror could have concluded that appellant could have
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overpowered Rasmussen and killed Rasmussen without suffering any

injuries herself.
Moreover, any evidence that appellant lacked injuries would have

been cumulative. Appellant presented Alexander, who worked with
&
appellant the day after the murder and two days later. (16RT 2667, 26702671.) He testified that he did not see that appellant suffered from any
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injuries on those days, and she did not complain of any injuries. (16RT
2669-2771.) Appellants trial counsel emphasized this testimony in closing
ia
argument. (18RT 3043-3044.) Appellant alludes to that on appeal too, in

the context of a different argument. (AOB 76.) In addition, appellant
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cannot show that if the prosecution had charged her with a crime earlier,
additional witnesses would have remembered whether appellant suffered
from any injuries shortly after the murder.
Appellant argues that [t]he theft of [her] handgun two weeks after the
homicide also deprived her of the ability to impeach the prosecutions
68
claim that it fired the fatal shots. (AOB 50, citation omitted.) But as the
trial court pointed out when it rejected this argument, the prosecution team
would have had to have acted very quickly, to avoid any potential
prejudice based on that theory. (1CT 11, 25.) Appellants trial counsel
to appellants suggestion, the prosecution team was not required to charge
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replied, Well, they would have, but they could have. (1CT 11.) Contrary
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her with murder within two weeks after the victims death. In sum, the trial
court did not abuse its discretion when it denied appellants motion to
THE TRIAL COURT CORRECTLY DENIED APPELLANTS
MOTION TO QUASH THE SEARCH WARRANTS
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II.
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dismiss based on pre-arrest delay.
Appellant claims that the trial court should have granted her motion to
A.
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quash the search warrants. (AOB 52-82.) She is mistaken.
Regarding the search warrant the magistrate approved on June 4,
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2009,7 Detective Stearns stated in his affidavit that he had been a law
enforcement officer for 15 years, and a Los Angeles Police officer for 14
years. He was assigned to the robbery-homicide division, but had earlier
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assignments in other divisions. He listed various homicide investigation

training programs that he completed. He had been involved in
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approximately 150 homicide investigations, 40 of those as the lead

investigator. (Mot. to Augment, Ex A. at p. 10.)
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In the 25-page Statement of Probable Cause, Detective Stearns
explained that: Rasmussen had been shot and killed in her home on
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February 24, 1986. (Mot. to Augment, Ex A. at p. 11.) Two stereo

7
The search warrants are attached to appellants motion to augment

the record, which she filed on June 3, 2013, and which this Court granted
on June 6, 2013.
69
components were stacked up near the stairs. (Mot. to Augment, Ex A. at p.

12.) There was only some disarray at the crime scene, but most of the
condominium remained undisturbed. (Mot. to Augment, Ex A. at p. 1213.) In 1986, detectives examined the evidence and believed that the
2009, Detective Nuttall examined the murderers potential motive, and he
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victim surprised a burglar . . . . (Mot. to Augment, Ex A. at p. 13.) But in
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believed that the murderer may have staged a burglary at the scene. (Mot.
to Augment, Ex A. at pp. 17-18.)
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According to the DNA evidence on the bite mark swab, the murderer
was female. (Mot. to Augment, Ex A. at pp. 16-17.) More specifically, on
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May 19, 2009, a criminalist determined that the DNA profile for the bite
mark matched the DNA for the cup discarded by [appellant]. (Mot. to
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Augment, Ex A. at p. 24.) The police determined that another potential

suspect, a coworker of Rasmussen at the hospital, did not leave her DNA
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on the bite mark. (Mot. to Augment, Ex A. at p. 18.)

On February 10, 2009, Detective Nuttall spoke to Ruetten and asked
about any women who had a potential conflict with Rasmussen. (Mot. to
Augment, Ex A. at p. 18.) Ruetten stated that before he married
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Rasmussen, he met appellant in college, and had an intimate relationship

with appellant, although they were never boyfriend/girlfriend. (Mot. to
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Augment, Ex A. at p. 18.) Ruetten stated that he began dating Rasmussen

in June 1984, and once he met Rasmussen he did not see appellant in
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person again until June 1985. (Mot. to Augment, Ex A. at p. 19.) That

month, which was after Ruetten was engaged to Rasmussen, appellant
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phoned Ruetten. She was upset, asked to meet [Ruetten] and expressed to
[him] that she wished to pursue a committed relationship with him. The
relationship was deeper for [appellant] than for [Ruetten]. (Mot. to
Augment, Ex A. at p. 19.) In the fall of 1985, appellant went to the hospital
where Rasmussen worked. Appellant told Rasmussen about appellants
70
relationship with Ruetten, and about appellants meeting with Ruetten after
Ruetten got engaged to Rasmussen. Rasmussen was upset and told
Ruetten about it. (Mot. to Augment, Ex A. at p. 19.)
Angeles Police officer had a relationship with Ruetten, which continued
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Jane Goldberg, a former roommate of Rasmussen, knew that a Los

after Ruetten and Rasmussen were engaged. (Mot. to Augment, Ex A. at
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p. 19.) Goldberg also knew about the confrontation between Rasmussen

and the woman in the fall of 1985. Rasmussen described the incident to
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Goldberg as an odd thing at work with a woman dressed real[ly]
provocatively. (Mot. to Augment, Ex A. at p. 19, original alteration
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omitted.)
Appellant had five handguns registered to her as of April 30, 2009,
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including two .38 caliber Smith & Wesson handguns with a two-inch
barrel. One of those two handguns was a model 49. (Mot. to Augment, Ex
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A. at pp. 19-20.) The model 49 handgun was reported stolen 13 days after
the murder. (Mot. to Augment, Ex A. at p. 20.) A firearms analyst
determined that the bullets from the crime scene were most consistent with
.38/.357 caliber bullets. (Mot. to Augment, Ex A. at p. 16.) Based on the
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bore rifling characteristics of the bullets at the scene, the murderer could
have used a Smith & Wesson handgun or another brand. (Mot. to
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Augment, Ex A. at p. 16.)
On May 6, 2009, Rasmussens father told Detective Nuttall that he
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knew about two women who might have had problems with Rasmussen,
and that he told the original detectives in 1986. (Mot. to Augment, Ex A.
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at p. 21.) Rasmussen told her father that a woman came to her work in or
around September of 1985. The woman was a former girlfriend of
[Ruetten and said to Rasmussen] . . . If I cant have [him], you cant
either. (Mot. to Augment, Ex A. at p. 21.) Rasmussen told her father
71
she was afraid she would not be able to defend [or] protect herself because
of the training the girlfriend had. (Mot. to Augment, Ex A. at p. 21.)
In January 1986, Rasmussen told her father that her fear of the exRasmussen found the girlfriend, in full police uniform, standing in the
living room area. [Rasmussen] didnt know how the girlfriend had gotten
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girlfriend . . . was growing. (Mot. to Augment, Ex A. at p. 21.)
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into the apartment. The girlfriend said she needed to talk to [Ruetten] and
there was a verbal confrontation. (Mot. to Augment, Ex A. at p. 21.)
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Although the girlfriend left . . . after a few minutes, and there was no
violence . . . Rasmussen was afraid. (Mot. to Augment, Ex A. at p. 21.)
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About two weeks before the murder, Rasmussen spoke to her father
while Ruetten was not present. She said that she did not want Ruetten to
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know about this conversation. (Mot. to Augment, Ex A. at p. 21.)

Rasmussen explained that she was concerned for her safety . . . . (Mot. to
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Augment, Ex A. at p. 21.) She added, I have a serious problem, I cant tell

you about it right now. Its something I have to handle on my own . . . .
(Mot. to Augment, Ex A. at p. 21.) Rasmussen told her father she was to
meet with the source of this problem when [she] return[ed] to L.A. (Mot.
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to Augment, Ex A. at p. 21.) Rasmussens father offered her a handgun,

but Rasmussen refused it. She stated, I wouldnt be able to use it
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anyway. (Mot. to Augment, Ex A. at p. 21.) Police records showed that

appellant had the day off from work on the date of the murder. (Mot. to
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Based on all the evidence, Detective Stearns believed that appellant
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was the murderer, and that during the murder she used one of the .38
caliber pistols registered to her. (Mot. to Augment, Ex A. at p. 25.)
Although one of those pistols was reported stolen 13 days after the murder,
Detective Stearns believed that appellant may have kept it. (Mot. to
72
Detective Stearns concluded that appellants relationship with . . .

Ruetten was significant to her and that she was extremely upset and
devastated when Ruetten became engaged to and ultimately married
believed that appellant may have kept diaries, daily journals or other
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Rasmussen. (Mot. to Augment, Ex A. at pp. 25-26.) Detective Stearns

writings expressing her feelings towards Ruetten and Rasmussen at the time
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leading up to and after the murder. (Mot. to Augment, Ex A. at p. 26.)
Detective Stearns also believe[d] that the locations to be searched
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may contain photographs, names, addresses, and/or information that will

identify current and former co-workers, friends or associates who . . .
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might know what appellants activities were, or how appellant appeared

after the murder. He thought it was reasonable to believe that [she] may
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have sought medical and/or dental treatment for . . . injuries . . . , including

a potential chronic injury. [T]he treatment would be documented.
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(Mot. to Augment, Ex A. at p. 25.)
Detective Stearns asked for permission to search appellants home and

workplace among other places. (Mot. to Augment, Ex A. at pp. 3, 6, 8.)
He asked for permission to search for several kinds of evidence (Mot. to
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Augment, Ex A. at pp. 5, 7, 9), among other things, [a]ny documents,

electronically or digitally stored material including . . . letters, diaries,
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journals, writings, newspaper articles, books, correspondence, [or] greeting

cards . . . that mention or pertain to the murder . . . , Rasmussen, or
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Ruetten; any photos of Ruetten or Rasmussen; any records of appellants

medical or dental treatment after the murder; any .38 or .357 caliber
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firearms that appellant had access to before the murder; and any documents
about any of those firearms (Mot. to Augment, Ex A. at pp. 5, 7, 9).
Regarding the search warrant the magistrate approved on June 29,
2009, Detective Stearns recounted his same expertise in the affidavit. (Mot.
to Augment, Ex. B at 5.) He stated that when the police executed the
73
earlier search warrant on June 5, 2009, they seized [s]everal electronic

items . . . . (Mot. to Augment, Ex. B at 6.) Detective Stearns asked for
permission to search that evidence, which included computers. (Mot. to
images, files, documents, or other data related to this investigation, or
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Augment, Ex. B at 2.) In his experience . . . these items . . . may contain

names, addresses, email addresses and other information of other persons
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who might be material witnesses . . . . (Mot. to Augment, Ex. B at 6.)

At the hearing to quash the search warrants, the trial court stated,
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some of [the first search warrant] may have been overbroad in the request.
For instance, any bills, receipts, papers or reports or forms from 1986.
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(2RT C2.) The court added, I understand your argument that [the search
for] any names, et cetera, of people who may have associated with the
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victim[,] Ruetten and/or the defendant . . . could [include] . . . anybody who

ever associated with the defendant . . . if you wanted to read it in a technical
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sense. (2RT C2.) Then it certainly could be overbroad. (2CT C2.)

The court noted, But Ill tell you, I think the law is against
[appellant] . . . . (2RT C2-C3.) It stated that there is a very strong
preference in the law for search warrants, [and] . . . they should not be read
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in a hypertechnical way. (2RT C3.) The court found there is ample

evidence of good faith, and . . . on that alone these warrants should be
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upheld. (2RT C3.) The court remarked, I dont know what else a [very
experienced] homicide detective . . . could do in terms of putting forth
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probable cause to tie [appellant] to the killing . . . . (2RT C3.)

The court stated, then the question is . . . [w]hy should the warrant be
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granted to search 23 years after the fact . . . on pretty much speculation?

The court added, I just think that the detective [acted] in good faith . . . .
(2RT C3.) I dont know why he cant rely on that if the judge said it was
okay. (2RT C4.) The court noted, I have some concern about the
computers and the phone, but I think even [that evidence was] . . . covered
74
by the original warrant . . . . (2RT C4.) I think that the good faith is
clearly demonstrated, and I think under the law thats all that has to be
shown. (2RT C4.)
information, the trial court replied, It doesnt really matter [about] the
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When appellant argued that the search warrant was based on stale
passage of time. Its more the nature of what youre looking for. In a drug
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case . . . [y]ou cant say that theyre going to have drugs for four weeks,
two weeks, ten weeks from now. (2RT C10-C11.) The court added, Ive
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read some . . . murder cases [where officers] . . . were looking for specific
things and there was reason to believe it would be on somebodys farm
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years after the fact, and they were upheld against staleness claims. (2RT
C11.) I think that it was reasonable to conclude that there would be
[it] was so strong . . . . (2RT C11.)
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evidence of the relationship given that [appellants] interest in maintaining
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The court stated, Im frankly uncomfortable with the cell phone . . . .

I agree that 23 years after the fact, it looks like a fishing expedition.
(Appellant concedes that the cell phone is not relevant here. (AOB 54.))
The court added, And the . . . computers, I accept your point, who is to
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know if the computers were even in existence. (2RT C12.) But the court
reiterated the good faith exception. (2RT C12.) The court stated that it was
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relying principally on that exception, and it did not believe it had to

decide whether there was probable cause to support the warrants. (2RT
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C12-C13.)
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B.
Analysis
When a magistrate issues a search warrant, he or she should make a
practical, commonsense decision about whether there is a fair probability

that contraband or evidence of a crime will be found in a particular place,
based on all the circumstances listed in the affidavit, including the
veracity and basis of knowledge of [the] persons supplying hearsay
75
information. (Illinois v. Gates (1983) 462 U.S. 213, 238 [103 S.Ct. 2317,
76 L.Ed.2d 527], internal quotation marks omitted; People v. Kraft (2000)
23 Cal.4th 978, 1041.) When a reviewing court decides whether a search
magistrate had a substantial basis for concluding a fair probability existed
that a search would uncover wrongdoing. (Illinois v. Gates [, supra,] 462
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U.S. [at pp.] 238-239.) (People v. Kraft, supra, 23 Cal.4th at p. 1040,
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warrant was supported by probable cause, the court asks whether the
additional citation omitted.)
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The magistrates determination of probable cause is entitled to
deferential review. (People v. Kraft, supra, 23 Cal.4th at p. 1041, citing
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Illinois v. Gates, supra, 462 U.S. at p. 236.) The reviewing court resolves
all conflicts in favor of the warrants validity, and it indulges all legitimate
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and reasonable inferences . . . to uphold the magistrates findings, if

possible. (People v. Tuadles (1992) 7 Cal.App.4th 1777, 1784, internal
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quotation marks and citation omitted.) The reviewing court should resolve
doubtful or marginal cases by upholding the warrants validity. (People
v. Garcia (2003) 111 Cal.App.4th 715, 720.)
Probable cause is a fluid concept, which depends on the
&
assessment of probabilities in particular factual contexts . . . . (Illinois v.

Gates, supra, 462 U.S. at p. 232; People v. Thompson (2006) 39 Cal.4th
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811, 818.) Although the concept of probable cause is incapable of precise

definition, it requires a reasonable ground for belief of guilt, which
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must be particularized with respect to the person to be . . . seized.

(Illinois v. Gates, supra, 462 U.S. at p. 232; People v. Thompson, supra, 39
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Cal.4th at p. 818.) Probable cause requires only a . . . substantial chance.

It is less than a preponderance of the evidence, and less than a prima
facie showing. (Illinois v. Gates, supra, 462 U.S. at pp. 232, 235; People
v. Tuadles, supra, 7 Cal.App.4th at p. 1783.)
76
As the United States Supreme Court has stressed, a reviewing court

should not engage in a hypertechnical analysis, or take a grudging or
negative attitude toward search warrants . . . . (People v. McDaniels
at p. 236, additional citations and internal quotation marks omitted.)
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Because they are often written by nonlawyers in the midst of an

investigation, technical requirements for elaborate specificity
have no place in the review of search warrant affidavits.
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(1994) 21 Cal.App.4th 1560, 1565, citing Illinois v. Gates, supra, 462 U.S.
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(People v. Varghese (2008) 162 Cal.App.4th 1084, 1103, citations and

When a trial court rules on a suppression motion, the appellate court
ul
applies a mixed standard of review. It upholds any of the trial courts
express or implied factual findings, if they are supported by substantial
ib
evidence. But the appellate court independently assesses the legal aspect of
the ruling, i.e., it independently reviews whether the search or seizure
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conforms to the constitutional standard of reasonableness. (People v.

Hughes (2002) 27 Cal.4th 287, 327.)
Here, Detective Stearnss affidavits strongly tied appellant to the
&
murder. He explained that the DNA profile for the bite mark matched the
DNA for the cup discarded by [appellant]. (Mot. to Augment, Ex A. at p.
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24.) He thoroughly outlined how appellant had a powerful motive to

commit the murder, as discussed in detail in the Relevant Proceedings
section above. When Ruetten told appellant that he was engaged to
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Rasmussen, appellant was simply obsessed with him, and she could not
accept that he ended their relationship. Given appellants unusually strong
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feelings about Ruetten, and her jealousy toward Rasmussen, there was a
fair probability that appellant still had mementos of Ruetten, and kept a
diary or journal which recorded her feelings about him. In addition,
although most people did not have personal computers in 1986 when
77
appellant murdered Rasmussen (AOB 62, 68-69), there was a fair

probability that appellant had a computer in 2009 when Detective Stearns
wrote the affidavit, and that appellant scanned important documents on her
Appellant argues that the evidence in the affidavit was stale. (AOB
61-66.) She is mistaken. As one appellate court has explained about
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staleness:
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computer so that she could easily access them.
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No clear cut rule, of course, tells us when the time span must be
deemed too attenuated. The length of the time lapse alone is not
controlling since even a brief delay may preclude an inference of
probable cause in some circumstances while in others a
relatively long delay may not do so. Nonetheless, there are
obviously some limits.
(McKirdy v. Superior Court (1982) 138 Cal.App.3d 12, 25-26, citations and
ib
internal quotation marks omitted; accord, People v. Carrington (2009) 47

Cal.4th 145, 163, citations and internal quotation marks omitted [the
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question of staleness depends on the facts of each case.].)

The appellate court in McKirdy, a Medi-Cal fraud case, reasoned:
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it would appear that the age of the information furnished would

not necessarily bear on the sufficiency of probable cause
inasmuch as 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.
(McKirdy v. Superior Court, supra, 138 Cal.App.3d at pp. 25-26.)
ia
Here, the photos and journal entries were not business records. But
they were documents that a person would commonly possess for years. A
Tr
person typically discards unimportant photos or documents eventually. But
when a person is obsessed with a subject, as appellant was about Ruetten,

there is a fair probability that she would retain the documents throughout
her lifetime.
78
Appellant relies on People v. Hirata (2009) 175 Cal.App.4th 1499,

1505, People v. Hulland (2003) 110 Cal.App.4th 1646, 1652, and Hemler v.
Superior Court (1975) 44 Cal.App.3d 430, 434, for the proposition that the
evidence of a drug crime, not a search primarily for documents that a
person would possess for sentimental value. Therefore, they do not apply
ns
evidence was stale. (AOB 61-62.) But those cases involved a search for
io
here. For the same reasons, appellants reliance on United States v. Harris
(1971) 403 U.S. 573, 579 [91 S.Ct. 2075, 2080, 29 L.Ed.2d 723] (AOB 62),
at
a case about possession of illicit whiskey, is also misplaced.
Appellant argues that Detective Stearns did not have enough evidence
ul
that appellant still possessed the gun from the murder. But appellant does
not claim that the police found that gun during the search. Even if a
ib
warrant is overbroad in part, evidence will not be suppressed if it was

seized pursuant to a portion of the warrant which was not. (People v.
Tr
Camarella (1991) 54 Cal.3d 592, 607, fn. 7, italics in original; citation and
internal quotation marks omitted.) For all these reasons, the search warrant
was valid.
Even assuming this did not amount to probable cause, Detective
&
Stearns reasonably relied on the warrant in good faith. (United States v.

Leon (1984) 468 U.S. 897, 900 [104 S.Ct. 3405, 82 L.Ed.2d 677]; People v.
ls
Camarella, supra, 54 Cal.3d at p. 596; People v. Garcia, supra, 111

Cal.App.4th at pp. 723-725.)
Tr
ia
Leon held that the exclusionary rule should not be applied

if an officer conducts a search while acting in objectively
reasonable reliance on a warrant issued by a detached and
neutral magistrate that subsequently is determined to be invalid.
In most cases, the fact that a warrant was issued by a neutral and
detached magistrate will suffice to establish that the officer has
acted in good faith in conducting the search. Leon applies an
objective standard which requires officers to have a reasonable
knowledge of what the law prohibits. Where the affidavit is
sufficient to create disagreement among thoughtful and
79
competent judges, the officers reliance on the magistrates

determination of probable cause should be deemed objectively
reasonable.
(People v. McDaniels, supra, 21 Cal.App.4th at p. 1566, citations and
ul
at
io
There are four situations in which [an officers] reliance [on a

search warrant] 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 warrant was so
facially deficient that the executing officer could not reasonably
presume it to be valid.
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(People v. Lim (2000) 85 Cal.App.4th 1289, 1296, citing United States v.
ib
Leon, supra, 468 U.S. at p. 923, and People v. Camarella, supra, 54 Cal.3d
at p. 596.)
Tr
Here, Detective Stearns did not mislead the magistrate at all, and the
magistrate remained detached and objective. Therefore, the first two
exceptions do not apply. Moreover, given the evidence in the affidavit
&
discussed above, a reasonably well trained officer would not have believed
that the affidavit so lacked probable cause that it would have been
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unreasonable to rely on it. For the same reasons, it was not so facially
deficient. Therefore, even assuming that the affidavit lacked probable
ia
cause, the Leon exception applies here.

Appellant renews her argument that the evidence was stale, and
Tr
therefore she asserts that Detective Stearns could not rely on the search
warrant in good faith. (AOB 71-72.) But as discussed above in this
argument, the evidence was not stale. Appellant also reiterates her
argument that she probably did not have a computer in 1986 when the
murder was committed. She adds that she probably did not have other
80
electronic devices then either. (AOB 72.) As discussed above in this

argument, the search for the computer was valid. For the same reasons, the
search for the other electronic devices was proper too. In sum, even if the
Moreover, any error is harmless beyond a reasonable doubt under
ns
warrant lacked probable cause, the good faith exception applies.

Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705].
io
Appellant left her DNA at the crime scene when she had no innocent reason
to be there. Regarding the DNA evidence, appellant argues that the
at
prosecution confused random match probability with source attribution.

(AOB 77.) She relies on McDaniel v. Brown (2010) 558 U.S. 120, [130
ul
S.Ct. 665, 175 L.Ed.2d 582]. (AOB 79.) She is mistaken.
As the United States Supreme Court explained in Brown:
&
Tr
ib
The prosecutors fallacy is the assumption that the random

match probability is the same as the probability that the
defendant was not the source of the DNA sample. In other
words, if a juror is told the probability a member of the general
population would share the same DNA is 1 in 10,000 (random
match probability), and he takes that to mean there is only a 1 in
10,000 chance that someone other than the defendant is the
source of the DNA found at the crime scene (source probability),
then he has succumbed to the prosecutors fallacy.
(McDaniel v. Brown, supra, 558 U.S. at p. 128, italics added.)
ls
In Brown, the DNA expert committed this fallacy during her

testimony. (McDaniel v. Brown, supra, 558 U.S. at pp. 128-129.)
Nevertheless, the United States Supreme Court concluded that Even under
ia
[the defense experts] odds, a rational jury could consider the DNA
evidence to be powerful evidence of guilt. (Id. at p. 132.) Here, the
Tr
prosecution experts, Francis and Fedor, did not commit the fallacy. They
merely testified about the first part of the testimony mentioned in Brown, as
discussed in detail in part A6 of the Statement of Facts above. Even
assuming that they committed the fallacy, a rational jury could still consider
81
the DNA evidence was powerful evidence of guilt. (McDaniel v. Brown,

supra, 558 U.S. at p. 132.)
In addition, appellant had a strong motive to commit the crime.
evidence the police obtained based on the search warrants. (AOB 75-76.)
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Appellant argues that the motive evidence was not significant without the
She is mistaken. Hargreaves, who rented a room from appellant about two
io
years before the murder and moved out the month of the murder (9RT
1355-1357, 1377), stated that she was head over heals for Ruetten. (9RT
at
1362.) She was in love with Ruetten. (9RT 1362.) After Ruetten told
appellant that he was marrying Rasmussen, appellant told Hargreaves that
ul
she went to the hospital where Rasmussen worked and had a confrontation
with Rasmussen there.8 (9RT 1365, 1390.) After Ruettens and appellants
ib
relationship ended, appellant did not have a boyfriend as far as Hargreaves

knew, until appellant met her husband. (9RT 1369.) Appellant states that
Tr
in 1992 she began dating the man who became her husband (AOB 84),
which was about six years after the murder.
Ruetten testified that after he became engaged to Rasmussen,
appellant phoned him. She was very upset, and he had never heard her
&
cry this much. This was full-blown crying. (9RT 1448; 10RT 1567.)
Appellant asked Ruetten to come to her condominium. When he did that,
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he noticed that appellant was still crying. (9RT 1448.) She said that she
was upset, and told him she was in love with him. (9RT 1449.) She asked
ia
him more than once to have sex with her that night, and he did so. (9RT
1451; 10RT 1568.) In August 1985, appellant wrote to Ruettens mother,
Tr
and partly stated, Im truly in love with John and this past year has really
torn me up. I wish it hadnt ended the way it did and I dont think Ill ever
understand Johns decision. (9RT 1408, internal quotation marks
8
She referred to Rasmussen as the nurse. (9RT 1365, 1390.)
82
omitted.) Appellant added, I hope some day I can find someone that I can
care for as much. (9RT 1409.) Taken together, this was very strong
evidence that appellant had a motive to murder Rasmussen.
enforcement officers during her interview, which displayed her
consciousness of guilt. (People v. Williams (2000) 79 Cal.App.4th 1157,
io
1167-1168.) Asked to describe her relationship with Ruetten, appellant
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Moreover, she repeatedly made false exculpatory statements to law
falsely minimized the nature of their relationship, and concealed the fact
at
that she had been deeply in love with him. (7CT 1429-1430, 1481-1482.)
Appellant also denied that she had some big huge blow up . . . with
ul
Ruetten. (7CT 1475.) But as Ruetten explained, after appellant learned

that he was engaged, she phoned him, engaged in full-blown crying,
ib
persuaded him to come to her home, and told him that she loved him. (9RT
1448-1449; 10RT 1567.) It was unbelievable that appellant would have
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forgotten that incident.
Appellant stated that she did not know whether she ever met
Rasmussen, but she might have done so. (7CT 1424.) Given how appellant
felt about Ruetten, and how appellant confronted Rasmussen under such
&
emotionally charged circumstances, it was simply unbelievable that

appellant failed to remember her conversation with Rasmussen. Although
ls
appellant later stated that she might have met Rasmussen at the hospital,
she claimed that she was not sure. (7CT 1433-1435, 1451, 1460-1461.)
ia
This was equally incredible. Moreover, appellant denied that she had an
argument with Rasmussen. (7CT 1434, 1456, 1475, 1482-1483.)
Tr
Appellant told the detectives that Ruetten may have phoned her after
he lived with Rasmussen, and that appellant may have discouraged him
because she thought it was inappropriate. (7CT 1451-1453.) This was
completely implausible given how appellant felt about Ruetten. Taken
together, this was very strong evidence that appellant deliberately and
83
repeatedly misled the police because she was conscious of her guilt. Given
all this other evidence, any error regarding the search warrants was
harmless beyond a reasonable doubt.
Appellant argues there was strong evidence that someone else, whom
support that theory was weak. Appellant revives the theory that the killer
io
was a burglar whom Rasmussen surprised. (AOB 80.) That was very
ns
she cannot identity, was the real killer. (AOB 80-82.) But the evidence to
unlikely, for all the reasons that Safarik, the behavioral analysis expert,
at
explained in detail in part A10 of the lengthy Statement of Facts.
Appellant stresses that she did not leave any fingerprints at the scene
ul
or in Rasmussens car, but other people, who were not identified, did so.
(AOB 80-82 .) But it is hardly surprising that appellant, a police officer
ib
who before this crime investigated burglaries and lifted fingerprints (10RT
1653-1655), would ensure that she did not leave any fingerprints at this
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crime scene. Significantly, appellant left her DNA at the crime scene, when
she had no innocent reason to do that.
Appellant states that the police found fingerprints near blood stains,
and the police did not identify who left those fingerprints. (AOB 81.) But
&
this does not establish that the fingerprints came from the murderer. The
crime scene was a condominium where other people presumably visited
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during the years before the murder. Appellant argues that there was male
DNA on the rope, and the DNA did not belong to Ruetten. (AOB 81.) But
ia
appellant could have brought the rope from anywhere, and anyone could
have touched it before appellant decided to commit the murder. Appellant
Tr
adds that there was male DNA on a hair on a dish towel. (AOB 81.)
Again, this is not proof that the person who left that hair had anything to do
with the murder. Anyone could have innocently used that dish towel at any
time before the murder. Appellant mentions other physical evidence from
the crime scene and in the BMW (AOB 81-82), but it is not reasonable to
84
infer that the persons who left that evidence were necessarily connected to
the murder.
In sum, there was very strong evidence that appellant was the
murderer, irrespective of the evidence stemming from the search warrant.
ns
Any error was harmless beyond a reasonable doubt.
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III. THE TRIAL COURT PROPERLY DENIED APPELLANTS

MOTION TO TRAVERSE THE SEARCH WARRANTS
Appellant argues that the trial court should have granted her motion to
at
traverse the search warrants. (AOB 82-89.) This claim lacks merit because
appellant cannot show that when Detective Stearns omitted additional facts
ul
from the affidavits he made the affidavits substantially misleading.
At the hearing on the motion to traverse, the trial court stated that
ib
even if Detective Stearns had noted in his search warrant affidavits that
appellant had moved into a new residence after the murder, I dont think
that would have added anything . . . . (2RT C13.) The court also told
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appellants trial counsel, the points youre making in your motion . . . , I

just didnt feel they were of great significance and [they were] not
sufficient to require me to . . . cross-examine [Detective] Stearns on this.
&
(2RT C13.) The court added that even if it assumed that Detective Stearns
made deliberate misrepresentations as appellant alleged, they were not
ls
significant in light of my ruling on good faith . . . if for no other reason.

(2RT C13.)
ia
The court stated that, although Detective Stearns may have not . . .
made clear in the warrant . . . that appellant had married, [and] had
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moved on with her life . . . , he did not represent[] to the contrary. He

didnt say . . . shes not married and is pining for . . . Ruetten. (2RT C13.)
The court thought it was something of interest that appellant had no
contact with Ruetten after the killing . . . but the court did not find that to
be something to traverse the warrant over . . . . (2RT C13.) The court
85
concluded, I dont see that [Detective] Stearns did anything improper here
or made significant misrepresentations. He may not have put everything he
knew at the time in the affidavit[s] . . . , but even if he had included the
additional information in the affidavits, the magistrates would have issued
to traverse. (2RT C14.)
io
In Franks v. Delaware (1984) 438 U.S. 154 [98 S.Ct. 2674, 57
ns
the warrants in any event. (2RT C14.) The court denied appellants motion
L.Ed.2d 667], the United States Supreme Court stated that, if the
at
defendant makes a substantial preliminary showing that [the affiant made a]

false statement knowingly and intentionally, or with reckless disregard for
ul
the truth . . . . the court should excise false material or add omitted
exculpatory material to warrant, and reevaluate probable cause. (Id. at pp.
ib
155-156.) The obvious purpose of Franks is to give the defendant a fair

opportunity to test probable cause, but to deny the defendant an unjustified
Tr
windfall if the affiants error was harmless.
As the California Supreme Court has explained, A defendant who

challenges a search warrant based upon an affidavit containing omissions
bears the burden of showing that the omissions were material to the
&
determination of probable cause. (People v. Eubanks (2011) 53 Cal.4th

110, 136, citation and internal quotation marks omitted.) In light of
ls
Proposition 8, section 28, subdivision (f)(2) of Article I of the California

Constitution, a trial court determines materiality by applying Illinois v.
ia
Gates, supra, 462 U.S. at page 213, which looks to the totality of the
circumstances in determining whether a warrant affidavit establishes good
Tr
cause for a search. (People v. Eubanks, supra, 53 Cal.4th at p. 136,

When an officer omit[s] facts from a search warrant affidavit, they
are not material [if] there is no substantial possibility they would have
altered a reasonable magistrates probable cause determination, and their
86
omission did not make the affidavits substantially misleading. (People v.

Eubanks, supra, 53 Cal.4th at p. 136, italics in original; citation, internal
quotation marks, and original alteration omitted.)
affidavits, Ruetten told the police that when he last saw appellant in 1985,
ns
Here, appellant stresses that before Detective Stearns wrote the

appellant stated that their meeting was her last opportunity to tell him how
showed finality to the meeting . . . which the affidavits failed to
io
she felt about him. (AOB 87, citation omitted.) Appellant argues, This
at
portray[]. Appellant adds, Even if [this] is not a misrepresentation, it

was an omission obscuring the true nature of their last meeting, and it
ul
misled the magistrate. (AOB 87.)
Appellant also notes that Detective Stearns did not tell the magistrate
ib
that . . . appellant never initiated contact with . . . Ruetten after the . . .

homicide, she dated her current husband between 1992 and the date of
Tr
their marriage, she and her husband had been happily married for about 13
years . . . when Detective Stearns wrote the affidavits in 2009, and
appellant moved into her latest residence with her husband in 1994. (AOB
87.)
&
Contrary to appellants arguments, she has not shown that when

Detective Stearns omitted additional facts from the affidavits he made the
ls
affidavits substantially misleading. (People v. Eubanks, supra, 53 Cal.4th

at p. 136, original italics omitted.) Assuming, as appellant stresses, that she
ia
told Ruetten at their last meeting in 1985 that it was his last opportunity to
tell her how she felt about him (AOB 83), that does not substantially
Tr
change the facts. As any reasonable magistrate would have understood,

when people pursue romantic relationships, they often try to cover up their
vulnerabilities by falsely projecting an attitude of strength.
Here, according to what Ruetten told the police, after appellant met
with Ruetten for the last time, she went to he hospital where Rasmussen
87
worked, and told Rasmussen about the relationship appellant had with
Ruetten. (Mot. to Augment, Ex A. at p. 19.) Rasmussens former
roommate, Goldberg, told the police that according to what Rasmussen told
the fall of 1985, this woman dressed real[ly] provocatively. (Mot. to
Augment, Ex A. at p. 19.) According to what Rasmussen told her father,
ns
her, when the female police officer confronted Rasmussen at the hospital in
io
the woman who came to her workplace in September 1985 told Rasmussen,
If I cant have [Ruetten], you cant either. (Mot. to Augment, Ex A. at p.
at
21.)
Rasmussen also told her father in January 1986 that her fear of the
ul
ex-girlfriend was growing. (Mot. to Augment, Ex A. at p. 21.)
Rasmussen found her in full police uniform, standing in the living room
ib
area. [Rasmussen] didnt know how the girlfriend had gotten into the
apartment. The girlfriend said she needed to talk to [Ruetten] and there was
Tr
a verbal confrontation. (Mot. to Augment, Ex A. at p. 21.) Two weeks

before Rasmussen was killed, she told her father that she was concerned
for her safety, and that she had a serious problem she had to handle on
her own. (Mot. to Augment, Ex A. at p. 21.) She did not want Ruetten to
&
know about it. (Mot. to Augment, Ex A. at p. 21.) Given all this other
evidence, even if appellant told Ruetten that it was his last chance when
ls
they met in June 1985, any reasonable magistrate would have understood
that appellant continued to be obsessed with Ruetten several months after
ia
that.
Moreover, no reasonable magistrate would have found a lack of
Tr
probable cause merely because appellant met her husband in 1992, six
years after the murder, and had been married to him for 13 years by the
time Detective Stearns wrote the affidavits. Detective Stearns did not
suggest that appellant lived alone for the rest of her life or that appellant
88
never had a romantic relationship again, and no reasonable magistrate

would have inferred this from the affidavits.
Significantly, the first affidavit stated that the DNA profile for the
bite mark matched the DNA for the cup discarded by [appellant]. (Mot. to
ns
Augment, Ex A. at p. 24.) There was no innocent explanation for that. The

obvious inference was that appellant was the murderer, and her motive was
io
her obsession with Ruetten. Although appellant eventually married another

man and remained married for 13 years, that did not negate the fair
at
probability (Illinois v. Gates, supra, 462 U.S. at p. 238) that appellant kept
notes and photos about her earlier obsession with Ruetten.
ul
Also, it did not matter that appellant and her husband moved into a
different residence in 1994. Detective Stearns did not suggest in the
ib
affidavits that appellant lived in the same residence from 1986 to 2009, and
no reasonable magistrate would have inferred this from the evidence that
Tr
Detective Stearns presented. For all these reasons, the trial court properly
denied appellants motion to traverse the search warrants.
&
IV. APPELLANT WAS NOT LEGALLY COMPELLED TO ANSWER

QUESTIONS FROM THE POLICE DUE TO HER
ADMINISTRATIVE RESPONSIBILITIES AS A POLICE OFFICER
Appellant claims that the trial court should have granted her motion to
ls
exclude her admissions to the police. Appellant reasons that, due to the
administrative responsibilities of all police officers, she was legally
compelled to answer questions from the other officers. (AOB 89-108.)
ia
This argument lacks merit. The only reasonable inference from the
evidence is that appellant knew this was solely a criminal investigation.
Tr
Therefore, the trial court correctly determined that the rules about
administrative investigations did not apply here.
89
A.
At the pretrial hearing on this issue, the trial court asked appellants
trial counsel, how would anyone who suspects a police officer of
they have done differently in this case? (2RT E10.) Appellants trial
counsel replied that there was nothing they should have done differently.
io
Thats not the issue. The issue is what are the consequences of what they
ns
committing a crime talk to a police officer about that crime? What should
did . . . . (2RT E10.) The court later explained why it found appellants
at
motion meritless:
Tr
ib
ul
[Y]our argument . . . just seems overbroad in the extreme. I

mean, here you have detectives from an entirely different unit
approaching [appellant], asking [her] questions . . . . Even if we
assume [they] suspected [her] of having committed the crime . . .
youre saying that because she was a police officer, that they
could not ask her questions and that her answers would be
immunized . . . [but] if they had approached someone who was a
bus driver . . . [he or she] would not have had this implied
immunity.
(2RT E13.)
Appellants trial counsel partly replied that the detectives were
&
allowed to ask appellant questions, but they had to give her Miranda rights
first. He also made some arguments which appellant repeats on appeal.
ls
(2RT E13.) The court ruled, Its clear to me that the detectives were
conducting a criminal investigation . . . . Ive read the interview. Ive
ia
listened to portions of the tape. In my view this was clearly exempted from
[Government Code section 3303]. (2RT E15.) Appellant never during
Tr
the interview asked if she had to answer the questions, nor did she raise the
issue of whether their investigation was an administrative [one]. (2RT
E16.) The court found it was not objectively reasonable that appellant
felt compelled to answer on pain of losing her job . . . . (2RT E16.)
90
The court reject[ed] the argument that because on February 2nd

of 2010, the Los Angeles Police Department took some administrative
actions against [appellant], that this is evidence that the detectives were
investigation. (2RT E16.) The court noted, That action occurred eight
months after the interview based on the fact that she had not reported for
io
duty since her arrest on June 5th of 2009, and [because] . . . she became a
ns
conducting an administrative investigation, as well as a criminal
subject of a criminal investigation resulting in her arrest for murder. (2RT
at
E16.) The court reiterated, I find it very clear that this was a criminal
investigation and is exempt from [Government Code section 3303] . . . .

B.
ul
(2RT E16.)
Analysis
ib
In Garrity v. New Jersey (1967) 385 U.S. 493 [87 S.Ct. 616, 17
L.Ed.2d 562, the state supreme court gave the state attorney general broad
Tr
powers of inquiry and investigation, and directed him to make a report to

the court about alleged fixing of traffic tickets. (Id. at p. 494.) The state
attorney general interviewed the defendants, who were police officers. The
attorney general warned each defendant (1) that anything he said might be
&
used against him in any state criminal proceeding; (2) that he had the
privilege to refuse to answer if the disclosure would tend to incriminate
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him; but (3) that if he refused to answer he would be subject to removal

from office. (Ibid.) The defendants answered the questions, and the
ia
attorney general introduced some of the answers against them at a criminal
Tr
trial. (Id. at p. 495.)

The United States Supreme Court stated, The choice imposed on
petitioners was one between self-incrimination or job forfeiture. Coercion

that vitiates a confession . . . can be mental as well as physical . . . .
(Garrity v. New Jersey, supra, 385 U.S. at p. 496, internal quotation marks
omitted.) The option to lose their means of livelihood or to pay the
91
penalty of self-incrimination is the antithesis of free choice to speak out or

to remain silent. (Id. at p. 497.) We think the statements were infected
by the coercion inherent in this scheme of questioning and cannot be
As far as respondent is aware, no California case has discussed the
ns
sustained as voluntary . . . . (Id. at pp. 497-498, fn. omitted.)

issue of whether a public employee may invoke Garrity when the interview
io
took place solely in the context of a criminal investigation, and no one

suggested to the employee that he or she was required to answer the
law undermine appellants claim.
ul
Government Code section 3303 states in part:
at
interviewers questions. However, the relevant statute and California case
[] . . . []
Tr
ib
When any public safety officer is under investigation and

subjected to interrogation by . . . any other member of the
employing public safety department, that could lead to punitive
action, the interrogation shall be conducted under the following
conditions. For the purpose of this chapter, punitive action
means any action that may lead to dismissal, demotion,
suspension, reduction in salary, written reprimand, or transfer
for purposes of punishment.
ls
&
(e) . . . [A]n officer refusing to respond to questions or

submit to interrogations shall be informed that failure to answer
questions directly related to the investigation or interrogation
may result in punitive action . . . .
[] . . . []
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ia
(i) . . . [] . . . This section shall not apply to . . . an

investigation concerned solely and directly with alleged criminal
activities.
(Italics added.)
In Van Winkle v. County of Ventura (2007) 158 Cal.App.4th 492, a
sheriffs departments major crimes bureau investigated whether one of its

deputies, the civil plaintiff, committed a criminal offense, embezzlement
92
of firearms. (Id. at p. 495.) The major crimes bureau had no authority to

conduct administrative investigations or to make recommendations
regarding discipline against a Sheriffs Department employee. (Ibid.,
ns
The deputy was arrested and a detective from the major crimes bureau
interviewed him. The detective told him, This is a criminal matter, its not
io
an administrative matter so I cant order you to speak. (Van Winkle v.
County of Ventura, supra, 158 Cal.App.4th at p. 496, internal quotation
at
marks and original alteration omitted.) The deputy waived his rights under
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694],
ul
and made an admission. (Van Winkle v. County of Ventura, supra, 158

Cal.App.4th at p. 496.) The sheriffs department fired him. (Ibid.)
ib
Division Six of this appellate district held that Government Code

section 3303, also known as the Public Safety Officers Procedural Bill of
Tr
Rights Act or POBRA (Van Winkle v. County of Ventura, supra, 158

Cal.App.4th at p. 494), did not apply to the deputys admission which he
made during the criminal interrogation while he was in custody. (Id. at p.
495.) Therefore, that deputys statement was admissible in the later
&
administrative proceedings. (Id. at pp. 496-497.)

Division Six quoted Pasadena Police Officers Assn. v. City of
ls
Pasadena (1990) 51 Cal.3d 564, 574, for the proposition that Government
Code section 3303 appl[ies] when a peace officer is interrogated in the
ia
course of an administrative investigation that might subject the officer to

punitive action, such as dismissal, demotion, suspension, reduction in
Tr
salary, written reprimand or transfer for purposes of punishment. (Van

Winkle v. County of Ventura, supra, 158 Cal.App.4th at p. 497, italics in
original; citations and internal quotation marks omitted.)

Division Six stressed that according to Government Code section
3303, subdivision (i), the statute does not cover an investigation
93
concerned solely and directly with alleged criminal activities. (Van

Winkle v. County of Ventura, supra, 158 Cal.App.4th at p. 497, original
italics and citations omitted.) Division Six noted, The County showed that
the later administrative investigation. (Id. at p. 499.)
Division Six rejected dictum from the First Appellate District in
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this was an independent criminal investigation, which was separate from
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California Correctional Peace Officers Assn. v. State of California (2000)

82 Cal.App.4th 294, that Government Code section 3303 applies to any
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criminal investigation of the employee, unless an outside agency conducts
that investigation. Division Six explained that this dictum contradicted the
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legislative intent of Government Code section 3303. (Van Winkle v.

County of Ventura, supra, 158 Cal.App.4th at pp. 498-501.)
ib
Although Van Winkle was not a criminal case, and it did not involve
Garrity which appellant partly relies on (AOB 91, 94), Van Winkles
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reasoning applies with equal force here. Government Code section 3303
does not apply when the interview concerns only a criminal investigation.
It is true that here the detectives did not explicitly tell appellant that the
investigation was only a criminal one. But as discussed below, appellant
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could not have subjectively or reasonably believed that the interview

involved an administrative or disciplinary investigation.
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Moreover, several federal circuit courts have interpreted Garrity much
more narrowly than appellant does.9 The United States Court of Appeals
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for the Third Circuit has held that there are two common features [i]n all
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cases flowing from Garrity:

(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
9
The opinions of lower federal courts are not binding here. But
respondent offers them as persuasive authority.
94
severe sanction imposed in the case of private citizens); and (2)

there is a statute or municipal ordinance mandating such
procedure.
(United States v. Palmquist (1st Cir. 2013) 712 F.3d 640, 645.)
Circuit applies Garrity more broadly, but not broad enough to apply here,
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even if the California courts adopted that courts test. The District of
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The United States Court of Appeal for the District of Columbia
Columbia Circuit has held that the person who was interviewed must have
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in fact believed [his or her] statements to be compelled on threat of loss of
job and this belief must have been objectively reasonable. (United States
v. Friedrick (D.C. Cir. 1988) 842 F.2d 382, 395. The Eleventh Circuit
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agrees with the District of Columbia Circuit on this point. (United States v.
Vangates (11th Cir. 2002) 287 F.3d 1315, 1322.) The Sixth Circuit applies
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a slightly broader test than that one, but it is still not broad enough to give
appellant relief here, even if California courts adopted it. The Sixth Circuit
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stated that Garrity applies if the person who was interviewed reasonably
believed that substantial penalties [from the employer] were likely to result
. . . if he or she refused to answer the questions, even if the employer did
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not threaten to fire that person. (McKinley v. City of Mansfield (6th Cir.
2005) 404 F.3d 418, 436.)
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Here, when the interview began, Detective Stearns said, hey,

appellant said, hi, and Detective Stearns said, Nice to meet you.
Detective Jaramillo said, Just milling around. Well have a seat. (7CT
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1420-1421.) Detective Jaramillo stated that he did not want to bring this
up in the squad room where everybody is always wondering what
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everybody else is doing. (7CT 1421.) He added, Weve been assigned a

case that weve been looking at. Its a new case. And theres some notes
. . . as far as your name being mentioned. (7CT 1422.)
95
Detective Jaramillo asked appellant if she knew Ruetten. (7RT 1422.)

When appellant asked, whats this all about?, Detective Jaramillo stated
that the case was about Ruetten and theres notes and stuff that . . . he
whats this all about?, Detective Jaramillo stated, its relating to his
wife. (7CT 1423.) Appellant later stated, you said I was going to
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interview somebody about art. And now you guys are . (7CT 1424,
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knew you and stuff. (7CT 1422-1423.) When appellant asked again,
italics added.) Detective Stearns replied, we saw . . . in this chrono file
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that maybe . . . there was some relationship there . . . and we didnt want to
come up to you at your desk and ask those kinds of questions . . . . (7CT
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1425.) [W]e wanted to afford you some privacy, some confidentiality .

(7CT 1425.) He wanted to avoid the rumor mill or gossip or that kind of
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stuff . . . . (7CT 1425.)
Later in the interview when appellant stated that she had nothing to
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do with the murder, Detective Stearns replied, Well, like we said, we just,
literally, got this the other day . . . . (7CT 1461.) He added, you work
next door to us. And were trying to get some background. (7CT 1462.)
And things have been kind of slow for us, and so . . . Chief Beck has said,
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hey . . . I want you guys working. I dont want you just sitting around
reading the paper. (7CT 1462.) So hes kind of pushing some older
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cases out . . . . . (7CT 1462.) [W]e want to talk to you about it. But, of
course, the only reason we did it here is because were getting into some
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pretty personal stuff --. (7CT 1462-1463.) Appellant stated several

times, I appreciate it. (7CT 1463-1464.)
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Near the end of interview, appellant stated, if youre doing this as an
interrogation and youre saying, hey, Im a suspect, well, now, I got a

problem with, you know, now, youre accusing me of this? Is that what
youre . . . saying? (7CT 1499.) Detective Stearns stated, Were trying
to figure out what happened . . . . Detective Jaramillo added, I mean, you
96
know youre not . . . under arrest. You can walk out whenever you feel like
[it]. (7CT 1499.) Detective Stearns stated, You can leave whenever
youd like. (7CT 1500.) Appellant replied, Im trying to give you some
in trouble for something that I didnt even do or youre saying I did
something. (7CT 1500.)
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Detective Stearns stated, youre free to go whenever you want. If
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background of . . . how I know him. (7CT 1500.) I dont want to . . . get
this makes you uncomfortable, and you want to . . . . (7CT 1500.)
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Appellant replied, Well, now, youre starting to make me uncomfortable.
When the detectives asked if appellant would give them a DNA sample, she
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replied, Maybe. (7CT 1501-1502.) Appellant soon added, I guess Im

going to have to contact somebody . . . . I know how this stuff works
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. . . . (7CT 1503, italics added.) Appellant stated that she was shocked
that someone would suspect her of this murder. She added, thanks for
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giving me the courtesy. I wish Id tape recorded it. (7CT 1504.)

Obviously, appellant was not under the impression that anyone was
conducting an administrative investigation against her. Rather, she initially
thought that the detectives wanted her help in investigating a crime about
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art. (7CT 1424.) As the interview progressed, the detectives explained that
they were investigating an old case. Given the context, this was plainly a
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criminal investigation. Appellant complained that she should not be a

suspect. (7CT 1499.) That comment would have made no sense if
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appellant thought this was a disciplinary proceeding. Appellant never tried

to leave the investigation early. In the end, she thanked the detectives for
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their courtesy. (7CT 1504.) She did not accuse them of violating any
rules regarding administrative cases. The reasonable inference was that she
acted that way precisely because she knew that this was not an
administrative investigation, and she knew that the detectives acted
97
properly. Appellant did not subjectively or reasonably believe that she was
compelled to answer the interview questions.
For these reasons, Garrity does not apply here. Appellant also relies
(1968) 392 U.S. 273 [88 S.Ct. 1913, 20 L.Ed.2d 1082] (AOB 94-95), a
police officer appeared before a . . . grand jury which was investigating
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alleged bribery and corruption of police officers in connection with
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on several other cases which are distinguishable. In Gardner v. Broderick
unlawful gambling operations. He was advised that the grand jury
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proposed to examine him concerning the performance of his official

duties. (Id. at p. 274.)
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The authorities asked the officer to waive his Fifth Amendment rights.
When he refused, he was given an administrative hearing and was
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discharged solely for this refusal . . . . (Gardner v. Broderick, supra, 392

U.S. at pp. 274-275.) The question presented . . . [was] whether a
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policeman who refuses to waive the protections which the privilege gives
him may be dismissed from office because of that refusal. (Id. at p. 276.)
The United States Supreme Court held the mandate of the great privilege
against self-incrimination does not tolerate the attempt, regardless of its
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ultimate effectiveness, to coerce a waiver of the immunity it confers on

penalty of the loss of employment. (Id. at p. 279.) Nothing like that
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happened here. The present case is not about an officer who was
discharged in an administrative hearing because she failed to waive her
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Fifth Amendment rights during a criminal investigation.

In Sanitation Men v. Sanitation Commr (1968) 392 U.S. 280 [88
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S.Ct. 1917, 20 L.Ed.2d 1089] (AOB 95), a local investigator began an

investigation of charges that employees of the Department of Sanitation
were not charging private cartmen proper fees for use of certain city
facilities and were diverting to themselves the proceeds of fees that they did
charge. (Id. at p. 281.) [E]ach of the petitioners . . . was advised that . .
98
if he refused to testify with respect to his official conduct or that of any

other city employee on the grounds of self-incrimination, his employment
and eligibility for other city employment would terminate. (Id. at pp. 281282.) Twelve of the petitioners, asserting the constitutional privilege
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against self-incrimination, refused to testify. After a disciplinary hearing . .
. they were dismissed . . . on the explicit ground . . . that they had refused to
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testify. (Id. at p. 282.)
The other three petitioners testified and denied the charges. They
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were thereafter suspended . . . on the basis of information received . . .
concerning irregularities arising out of (their) employment. (Sanitation
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Men v. Sanitation Commr., supra, 392 U.S. at p. 282.) Subsequently,

they were summoned before a grand jury and asked to sign waivers of
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immunity. They refused . . . and they were dismissed from employment on

[that] sole ground . . . . (Id. at pp. 282-283.) The United States Supreme
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Court considered only the dismissals they suffered, not their suspensions.
(Id. at p. 283.) It held, Petitioners as public employees are entitled, like all
other persons, to the benefit of the Constitution, including the privilege
against self-incrimination. (Id. at pp. 284-285.) This case is inapplicable
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here for the same reasons that Gardner is.

In a case from 74 years ago, Christal v. Police Commission (1939) 33
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Cal.App.2d 564 (AOB 96), the petitioners were former police officers.
There was a grand jury investigation about whether the petitioners
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committed any crime, especially whether they committed corruption or

had received . . . bribes or gratuities from any persons engaged in . . .
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gambling, prostitution and other unlawful activities . . . . (Id. at p. 566.)

Each of the petitioners refused to testify before a grand jury or provide
records. (Ibid.) The police commission held hearings about whether the
petitioners committed Conduct unbecoming an Officer and Disobedience
of Orders. The specific facts alleged in each case involved the refusal of
99
the officer to testify . . . . (Ibid., internal quotation marks omitted.) After

the hearings, the officers were fired. (Id. at p. 567.)
The appellate court held that the officers were not allowed to refuse
upon retaining their positions as police officers. (Christal v. Police
Commission, supra, 33 Cal.App.2d at p. 567.) The appellate court
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to testify before the grand jury under the circumstances and still insist
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reasoned, When police officers acquire knowledge of facts which will tend
to incriminate any person, it is their duty to disclose such facts to their
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superiors and to testify freely concerning such facts when called upon to do
so before any duly constituted court or grand jury. (Ibid.) They claim
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that they had a constitutional right to refuse to answer under the
circumstances, but it is certain that they had no constitutional right to
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remain police officers in the face of their clear violation of the duty
imposed upon them. (Id. at p. 568, citation omitted.) According to the
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appellate court, the department properly fired the officers even in the
absence of any specific rule requiring such officers to give testimony before
the grand jury, or of any specific rule relating to conduct unbecoming an
officer. (Ibid., internal quotation marks omitted.)
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Appellant argues that Christal from 1939 shows that . . . as a police

[officer she] was required to answer questions or face adverse employment
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action. (AOB 98.) The mistake appellant makes is that Christal conflicts
with the later United States Supreme Court opinions that appellant also
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cites, Garrity, Gardner, and Sanitation Men. (AOB 94-95.) Those United
States Supreme Court opinions made clear that the police department could
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not coerce appellant to waive her Fifth Amendment rights in a criminal

case. Indeed, appellant told the detectives at the end of the interview, I
guess Im going to have to contact somebody . . . . I know how this stuff
works . . . . (7CT 1503, italics added.)
100
Appellant cites Titus v. Civil Service Com. (1982) 130 Cal.App.3d

357, 364. (AOB 97.) But that case did not suggest that a police department
could discipline an officer for invoking her right against self-incrimination
in a criminal investigation. Rather, in Titus, an attorney who worked for
practice. The department told him he could not do so. He violated that
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policy and continued to work in private practice. After he made an
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the police department asked the department if he could also work in private
anonymous phone call to the department about a crime a client mentioned
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to him, the department traced the call to the attorney and asked him to
divulge the information from the client. When he refused to do so, the
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department fired him. (Titus v. Civil Service Com, supra, 130 Cal.App.3d
at pp. 360-361.) The appellate court held that the department acted
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properly. (Id. at pp. 363-364.) This has nothing to do with the present
case.
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Appellant also relies on Szmaciarz v. State Personnel Bd. (1978) 79

Cal.App.3d 904, 915. (AOB 97.) There, a California prison disciplined a
correctional officer because he admitted during an administrative interview
that he possessed marijuana and brought it into the prison, although he
&
claimed that he did so inadvertently. (Szmaciarz v. State Personnel Bd.,

supra, 79 Cal.App.3d at pp. 908-909, 912.) That case had nothing to do
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with a criminal proceeding.

Appellant cites Fichera v. State Personnel Bd. (1963) 217 Cal.App.2d
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613, 620-621. (AOB 97.) It is not entirely clear from that opinion whether
the police departments investigation of the two officers there was solely an
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administrative investigation. If it was, then there is nothing relevant here

about the appellate courts holding that the department properly fired the
officers for failing to take polygraph tests during a disciplinary
investigation. (Fichera v. State Personnel Bd , supra, 217 Cal.App.2d at
pp. 620-622.) On the other hand, if Fischera also involved a criminal
101
investigation of the officers, then its holding was obviously superseded by

the later United States Supreme Court cases that appellant cites, Garrity,
Gardner, and Sanitation Men. (AOB 94-95.)
(2008) 169 Cal.App.4th 763, 768. (AOB 98.) But that case involved an
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Appellant also relies on Riverside County Sheriffs Dept. v. Zigman

administrative investigation. (Riverside County Sheriffs Dept. v. Zigman,
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supra, 169 Cal.App.4th at p. 765-766.) The investigator ordered [the
deputy] to cooperate and advised her that, while any answers could not be
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used against her in a criminal proceeding, she could be subject to
disciplinary action if she refused to cooperate . . . . (Id. at p. 766.) The
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appellate court held that the deputys marital communications privilege

does not apply in law enforcement administrative investigations and
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hearings . . . . (Id. at p. 772.) Zigman does not support appellants claim

here. As discussed above in this argument, given the context of the
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interview, appellant understood that this was solely a criminal

investigation, not an administrative one.
Appellant cites Spielbauer v. County of Santa Clara (2009) 45 Cal.4th

704, 724. (AOB 109.) There, a former deputy public defender refused to
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answer questions during his employers internal investigation of

misconduct, even though the employer assured the employee that his
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statement could not be used in a criminal investigation. (Spielbauer v.

County of Santa Clara , supra, 45 Cal.4th at p. 712.) Appellant also cites
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Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564,

578, and Williams v. City of Los Angeles (1988) 47 Cal.3d 195, 199-200,
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for the same proposition. (AOB 100.) But these cases do not support
appellants claim because she understood that in the present case the
detectives were conducting only a criminal investigation, not an
administrative one.
102
Appellant argues that Government Code section 3303 creates a legal

compulsion to answer questions. (AOB 102.) In administrative or
disciplinary proceedings, that is true, as Government Code section 3303,
that same duty in a criminal investigation. Subdivision (i) states in part,
This section shall not apply to . . . an investigation concerned solely and
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directly with alleged criminal activities. When subdivision (i) refers to
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subdivision (e), makes clear. However, a public employee does not have
[t]his section, it is referring to all of Government Code section 3303.
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Therefore, subdivision (i) establishes that none of Government Code
section 3303, including the duty to testify, applies in criminal cases. (Van
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Winkle v. County of Ventura, supra, 158 Cal.App.4th at pp. 495, 497.)
Appellant argues, the fact that an administrative complaint had not
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yet been filed against [her] did not mean that appellant was not under
[administrative] investigation when the detectives interviewed her on June
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5, 2009. (AOB 104.) But the trial court correctly rejected that argument
because there was no evidence that the detectives were conducting an
administrative investigation during the interview. The trial court stated,
That [administrative] action occurred eight months after the interview
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based on the fact that she had not reported for duty since her arrest on June
5th of 2009, and [because] . . . she became a subject of a criminal
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investigation resulting in her arrest for murder. (2RT E16.)

Appellant also relies on her declaration in the trial court that she
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believed she would be subject to discipline if she did not answer the
detectives questions. (AOB 104.) Appellant has not asserted that the
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prosecutor waived the hearsay objection to appellants declaration.

Therefore, respondent has not searched the record to determine whether the
prosecutor did so. Unless appellant can show that the prosecutor waived
that objection, appellants declaration is inadmissible hearsay under
Evidence Code section 1200. (People v. Gurule (2002) 28 Cal.4th 557,
103
605-606 [self-serving hearsay is inadmissible].) Moreover, even if

appellants declaration were admissible, it is not credible based on the
transcript of the interview, discussed above in this argument.
was harmless beyond a reasonable doubt under Chapman, based on the
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For all these reasons, the trial court did not err. Moreover, any error
DNA and motive evidence as discussed in detail in Argument II above. To
(AOB 107-108), respondent also relies on Argument II above.
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THE TRIAL COURT CORRECTLY DENIED APPELLANTS

REQUEST FOR A KELLY PRONG ONE HEARING, MOREOVER,
APPELLANT FORFEITED HER CLAIM REGARDING PRONG
THREE OF KELLY, AND ANY ERROR IS HARMLESS
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V.
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the extent appellant reiterates part of her Argument II in her Argument IV
Appellant claims that the trial court should have granted her request to
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hold a hearing under prongs one and three of People v. Kelly (1976) 17
Cal.3d 24, and Frye v. United States (D.C. Cir. 1923) 293 F. 1013,10
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regarding the MiniFiler DNA evidence, and the court should have excluded
evidence of DNA testing that relied on MiniFiler. (AOB 108-132.) She is
mistaken.
&
A.
At the pretrial hearing on this issue, the court stated that it read the
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briefs that both parties filed. (3RT L1.) The court denied appellants
request to hold a hearing on prong one of Kelly regarding the MiniFiler
evidence. The court relied on People v. Hill (2001) 89 Cal.App.4th 48,
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from Division Six of this appellate district. The trial court stated that,
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based on Hill, it could hold an Evidence Code section 402 hearing on prong
10
The federal courts now use a different standard than Frye.

Therefore, respondent refers only to Kelly regarding the rest of this
argument, except when respondent analyzes an out-of-state case that cites
Frye.
104
three of Kelly. (3RT L3-L5.) The court added, regarding prong one of the
Kelly test, that the appellate court in Hill rejected the defendants
challenge[] to the Profiler Plus test kit, even though that kit used
here, that the MiniFiler test kit uses different primers. (3RT L5.)
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different primers. (3RT L5.) The trial court noted, Thats the argument
The trial court also relied on two peer reviewed scientific articles that
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the prosecutor submitted regarding the reliability of MiniFiler. (3RT L5;

6CT 1141-1153 [scientific articles].) The court stated that in Hill, the
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prosecutor did not even present any articles like that because the
manufacturer [in Hill] refused to disclose some information . . . based on
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its proprietary interests. (3RT L5.) Also, the defendants Kelly motion in
Hill was supported by a declaration from an expert, [which is] something
ib
that we dont have here. (3RT L5-L6.)
For all these reasons, the trial court denied appellants motion to hold
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a prong one Kelly hearing. The court added, I will certainly entertain [an
Evidence Code section] 402 hearing on whether . . . appropriate and proper
procedures were followed in the administration of the MiniFiler test . . . .
(3RT L6.)
Summary Of The DNA And The PCR/STR Processes
&
B.
DNA is the material in most cells of the human body that determines
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an individuals characteristics. (People v. Smith (2003) 107 Cal.App.4th

646, 650.) While virtually all DNA is the same in each human, a small
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percentage of the DNA is different in each person. (Ibid.) DNA is:

organized into 23 pairs of chromosomes, one chromosome in
each pair being inherited from the mother and one from the
father. . . . . A chromosome is a long DNA molecule in the
shape of a spiral staircase. It consists of two parallel spiral sides
(i.e., a double helix) composed of repeated sequences of
phosphate and sugar. The two sides are connected by a series of
rungs, which constitute the steps in the staircase. Each rung
consists of a pair of chemical components called bases. There
105
are four types of bases - adenine (A), cytosine (C), guanine (G),
and thymine (T). A will pair only with T, and C will pair only
with G. There are over 3 billion base pairs in the 46
chromosomes of a single human cell.
quotation marks and citations omitted.)
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&
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ib
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at
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A gene is a particular DNA sequence located along a

chromosome, ranging from a few thousand to tens of thousands
of base pairs, that produces a specific product in the body. . . .
A marker is a site on the DNA. . .also known as the locus (or
location) . . . . The function of a given gene is determined by the
order of bases in the gene. The position that gene occupies along
the DNA thread is known as its locus. [] Human beings share
more biological similarities than differences. Thus, over 99% of
human DNA does not vary from person to person. Each
persons DNA, however, has certain regions where the rungs of
the ladder will be different. This area where a locus is different
is polymorphic. The possible arrangements of base pairs that
could occur in one of these polymorphic areas (i.e., the
alternative forms of a gene that an individual could possess) are
known as alleles. These alleles can result from differences in
single base pairs, differences in multiple base pairs, or
differences in the number of base pairs found in a given region.
The individual genetic makeup described by the alleles is known
as the genotype. In forensic analysis, the genotype for a group
of analyzed loci is called the DNA profile. When a sample of
DNA is typed, the lab examiner looks at predetermined
polymorphic loci, identifies the alleles that make up the DNA
sequence at those polymorphic loci, and then determines how
likely it is for this sequence to appear in a given population.
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(People v. Reeves (2001) 91 Cal.App.4th 14, 25-26, citations and internal
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(People v. Smith, supra, 107 Cal.App.4th at pp. 653-654, citation and

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As part of the forensic DNA testing process, polymerase chain
reaction (PCR) testing:

is used to amplify targeted loci of the sample of DNA by
replicating the process by which DNA duplicates itself naturally.
Thus, the lab is able to produce a substantial number of specific,
targeted segments of DNA which can then be typed and
106
(People v. Smith, supra, 107 Cal.App.4th at p. 654, citation and internal

quotation marks omitted.) PCR is a molecular biology laboratory process
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compared. Short Tandem Repeats, or STRs, are a group of loci

which are used to type and compare the DNA. Finally, statistics
are used to evaluate how likely it is that a similar match would
occur if the DNA sample were drawn randomly from the
population . . . .
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used to make millions of copies of these very select polymorphic regions of

human DNA (People v. Smith, supra, 107 Cal.App.4th at p. 654.) PCR
at
allows a lab to analyze very tiny amounts of DNA or old and/or
degraded DNA samples by producing a substantial number of specific,
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targeted segments of DNA which can then be typed and compared.

(People v. Smith, supra, 107 Cal.App.4th at p. 654) Through PCR
ib
amplification, a laboratory may type a DNA sample at multiple sites and

can minimize the chance of human error and contamination. (People v.
Smith, supra, 107 Cal.App.4th at p. 655.)
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The PCR process is used to amplify targeted loci for analysis:
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ia
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These loci are selected because they are polymorphic, thus,

making them amenable to typing. One group of such loci
involve[s] a class of repeated units, distributed widely
throughout the DNA structure, known as short tandem repeats
(STRs). A tandem repeat involves multiple copies of an
identical DNA sequence arranged in direct succession in a
particular region of a chromosome. A STR is a tandem repeat in
which the core repeat units are just a few base pairs. Loci
containing STRs are scattered throughout the chromosomes in
enormous numbers. Such loci have a fairly large number of
alleles and are usually capable of unique identification. []
Once the amount of DNA is amplified by the PCR process[,] the
analyst proceeds to identify fragments of different sizes by their
migration in an electric field. In order to detect variations,
analyst[s] use a process known as electrophoresis. During the
PCR amplification of the STR fragments, the primers that are
used contain fluorescent tags, which become incorporated into
the STR fragments during amplification. During
electrophoresis, the amplified fragments will pass through a gel
107
ns
ib
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at
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and eventually pass through a detection window at the end of the

gel. The fragments can be passed through either a flat slab gel
or through a small-diameter capillary that contains a gel or
liquid polymer. The difference between these two methods is
that the flat gel permits multiple samples to be run at the same
time, while capillary electrophoresis only permits one sample to
be run at a time. The scientific principles underlying both
techniques are the same. [] After the fragments pass through
the detection window at the end of the gel, a laser fires, striking
the fluorescent tags, and causing the tags to emit light. A
camera will detect the light and convert it into data. By
measuring the amount of time that it takes a particular fragment
to reach the laser, the laboratory will be able to determine the
size of the fragment and, therefore, it will be able to determine
the number of sequence repeats. The faster a fragment moves
through the window, the smaller it is in size and vice versa. []
The data generated is analyzed by an accompanying computer
software program which determines the size of the alleles based
on the rate at which they reach the window.
(People v. Smith, supra, 107 Cal.App.4th at pp. 655-656, citations and other
C.
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Application Of Legal Standards Regarding A Kelly

Prong One Hearing
If evidence is derived from new or novel scientific techniques, a trial
&
court must closely review it before the proponent of that evidence presents
it to a jury. (People v. Venegas (1998) 18 Cal.4th 47, 53.) In Hill,
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Division Six summarized Kelly this way:
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[T]he proponent of evidence derived from a new scientific

methodology must satisfy three prongs, by showing, first, that
the reliability of the new technique has gained general
acceptance in the relevant scientific community, second, that the
expert testifying to that effect is qualified to do so, and, third,
that correct scientific procedures were used in the particular
case.
108
(People v. Hill, supra, 89 Cal.App.4th at p. 55, citations and internal

quotation marks omitted; accord, People v. Wash (1993) 6 Cal.4th 215,
242.)
is a mixed question of law and fact subject to limited de novo review.
(People v. Hill, supra, 89 Cal.App.4th at p. 57, citations and internal
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quotation marks omitted.) The appellate court review[s] the trial courts
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On appeal, the general acceptance finding under prong one of Kelly
determination with deference to any and all supportable findings of
at
historical fact or credibility, and then decide[s] as a matter of law, based on

those assumptions, whether there has been general acceptance. (Ibid.,
ul
Essentially, under Kellys first prong, the proponent of the evidence
ib
must demonstrate through qualified sources that there is general acceptance

of the fundamental validity of a new scientific methodology in the
Tr
relevant scientific field. (People v. Cooper (1991) 53 Cal.3d 771, 814,

internal quotation marks omitted; see also People v. Venegas, supra, 18
Cal.4th at pp. 76-80.) In evaluating general acceptance, the court considers
both professional literature and expert testimony, and determines whether
&
scientists significant either in number or expertise publicly oppose [a

technique] as unreliable. (People v. Soto (1999) 21 Cal.4th 512, 519,
ls
internal quotation marks and citations omitted) Reliability means that the
technique must be sufficiently established to have gained general
ia
acceptance in the particular field in which it belongs. (People v. Kelly,
supra, 17 Cal.3d at p. 30, citation and internal quotation marks omitted.)
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However, once a published appellate opinion has endorsed the
scientific technique at issue, it is no longer necessary for California courts

to analyze that technique under the general acceptance prong, prong one
of the Kelly test. (People v. Smith, supra, 107 Cal.App.4th at pp. 665-666.)
Rather, the published opinion becomes precedent for subsequent trials in
109
the absence of evidence that the prevailing scientific opinion has materially
changed. (People v. Venegas, supra, 18 Cal.4th at p. 53, citation omitted.)
As Division Six noted, Kelly does not require courts as a matter of law
to subject each new PCR/STR test kit . . . to prong one analysis. (People
that, compared to the STR test kits in earlier published opinions, the STR
io
test kit at issue used different genetic markers and primers to target the
ns
v. Hill, supra, 89 Cal.App.4th at p. 58.) In Hill, the defense expert testified
gene sites (loci). (Id. at p. 57.) The kit also tested more loci and used
at
more primers. (Ibid.) The test kits in the earlier published cases use[d] a
reverse dot blot to visually identify the targeted gene . . . . But the test kit
ul
in Hill use[d] florescent tagging. After the primer is mixed with the DNA,
it is illuminated with a laser. The tags in the primer are excited by the laser
ib
and glow blue, green, or yellow. (Ibid.) Division Six held that the trial
court did not need to hold a prong one hearing. (Id. at pp. 58, 60.)
Tr
Division Six explained that the test kit at issue there does not
embrace new scientific techniques. To the contrary, it uses the PCR and
STR testing methods which are generally accepted in the scientific
community. (People v. Hill, supra, 89 Cal.App.4th at p. 60.) The test kit
markers. (Ibid.)
&
is just more sophisticated because it examines a greater number of genetic
ls
Similarly, in People v. Cooper, supra, 53 Cal.3d at page 812, the
defendant challenge[d] the electrophoretic testing of the drop of blood for
ia
a serum protein called transferrin. (Ibid.) In 1991 when the California
Supreme Court decided Cooper, Electrophoresis [was] used to test for
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various enzymes and serum proteins [in blood], of which transferrin is only
one. (Ibid.) By the time of trial, There was evidence that the method had
only recently been used to test for transferrin. (Ibid.) The defendant
claimed that testing for transferrin [was] of too recent vintage to have
110
achieved general acceptance in the scientific community. (Ibid.) The

All of the experts . . . who testified on the matter said that testing
for transferrin was a valid application of established
electrophoretic methods. In the absence of contrary evidence,
there is no reason to reject a particular application of a method
such as electrophoresis that has been accepted as reliable.
io
(Ibid., citation omitted.)
ns
California Supreme Court rejected that claim. It explained:
Here, as in Hill and Cooper, the expert merely used an incrementally
at
new application of a technique that was already general accepted.

According to Mulero et al., Development and Validation of the
ul
AmpF STRMiniFilerPCR Amplification Kit: A MiniSTR Mulitplex for

the Analysis of Degraded and/or PCR Inhibited DNA (2008) J. Forensic
ib
Sci. 838, Recently, several laboratories have demonstrated improvements

in genotyping degraded DNA samples by repositioning primers in as close
as possible to the STR repeat region. (Id. at p. 838, citation omitted.)
Tr
These primer changes result in smaller PCR products termed miniSTRs

that increase the potential number of template molecules available for the
PCR. (Ibid., internal quotation marks omitted.) Together with the
&
gender-identification locus Amelogenin, this nine-locus multiplex enables

simultaneous amplification of the loci that often fail detection during the
ls
amplification of compromised DNA samples. (Ibid., citation omitted.)

The validation of the MiniFiler kit encompassed the verification of
ia
the best reaction conditions and reagent concentrations for the amplification
of pristine as well as compromised DNA. Mulero et al., supra, J. Forensic
Tr
Sci. at p. 848. Mulero et al. concluded:

In summary, the results from the models of PCR
degradation and inhibition and nonprobative samples
demonstrate that the MiniFiler kit can be extremely useful for
amplifying DNA under conditions where other commercial
autosomal STR kits yield partial or no profiles. As such, this kit
is a useful and robust complement to conventional STR kits and
111
will be especially applicable to challenging situations involving

the identification of human remains.
(Ibid.)
Respondent attaches an excerpt of a copy of the article by Mulero et
ns
al., pursuant to California Rules of Court, rule 8.204(d). Moreover, one of
the two studies the trial prosecutor submitted, from Luce et al. (6CT 1145-
io
1153), corroborated the trial courts conclusion that MiniFiler was
generally accepted in the scientific community. The Luce et al. article
at
concluded, This study demonstrates that the MiniFiler kit is successful in
generating robust and reliable DNA profiles from samples exhibiting DNA
ul
degradation or PCR inhibition, and can be used in association with the
Identifiler kit to obtain complete DNA profiles from challenged samples.
ib
(6CT 1153.) Based on these articles and the established precedent of Hill
and Cooper, the trial court did not err when it denied a prong one hearing.
Appellant relies on People v. Henderson (2003) 107 Cal.App.4th
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769. (AOB 124-126.) But that case is distinguishable. Even assuming that
the appellate court in Henderson was correct when it held that capillary
electrophoresis was a new technique (People v. Henderson, supra, 107
&
Cal.App.4th at p. 781), it is now generally accepted within the meaning of

prong one, given that Henderson established this (id. at pp. 784-785).
ls
Moreover, unlike the difference between capillary and gel electrophoresis

in Henderson, here the DNA expert did not rely on a distinctly new
ia
technique. As in Hill and Cooper, he merely used an incrementally new

application of the same generally accepted technique. He used the same
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form of electrophoresis but used a different test kit.

Appellant faults the trial court for relying on the two scientific articles
that the prosecutor presented in his pretrial brief. Appellant argues that the
trial court should have reviewed additional articles. (AOB 118-119.) But
appellant does not claim that the trial court refused to consider any articles
112
appellant presented. The trial court has the discretion to review its own
articles for Kelly purposes. However, the court operated under an adversary
system. It was not required to conduct independent research if it was
Appellant stresses that the MiniFiler test kit involved a different
number of loci, a different reaction base, different primers, and increased
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the number of cycles in the PCR amplification process. (AOB 110-111.)
ns
persuaded by the case law and the articles it already read.
But these minor differences did not transform the MiniFiler kit into a new
at
technique within the meaning of Kelly. Although appellant refers to low
copy DNA (AOB 108, 110, 119), she does not point to any testimony that
ul
Fedor modified his amplification method to analyze unusually small
amounts of DNA in this case. An analyst can use MiniFiler on degraded
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DNA, which may or may not contain an unusually small sample of DNA.
(12RT 1941[Fedor testified that MiniFiler is useful in analyzing degraded
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DNA or DNA in small quantities].) Even if the DNA sample is small, that
does not necessarily mean that the DNA analysis is low copy analysis.
Appellant has not shown that the DNA technique in this case was low copy.
Kelly hearing.
&
Even if it was, the trial court correctly decided not to hold a prong one
Courts may rely on cases from other jurisdictions for prong one of
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Kelly. (People v. Hill, supra, 89 Cal.App.4th at p. 57 [Trial courts may

rely on out-of-state cases to ascertain whether a new scientific test has been
ia
accepted]; People v. Allen (1999) 72 Cal.App.4th 1093, 1099 [in
reviewing consensus of the scientific community [t]here is no reason why
Tr
only California cases suffice for this purpose]; People v. Morganti (1996)
43 Cal.App.4th 643, 666 [other jurisdictions concluded PCR evidence was
generally acceptable in the scientific community even though there was no
California case]; People v. Axell (1991) 235 Cal.App.3d 836, 854.)
113
In People v. Garcia (N.Y. Sup. Ct. 2013) 39 Misc.3d 482 [963

N.Y.S.2d 517], the court held that a Frye hearing was not necessary
regarding the low copy DNA evidence. (Id. at p. 486.) It noted that the
demonstrating that . . . [low copy] DNA testing . . . when properly
ns
defendants motion was not supported by sufficient credible evidence

performed, is generally not acceptable in the scientific community. Instead
io
it merely cites some experts who do not endorse the procedures used in this
case. (Id. at p. 484.) The court added, General acceptance does not mean
at
unanimous acceptance. (Id. at p. 485, citation and internal quotation

marks omitted.)
ul
The court remarked, many courts in multiple jurisdictions, as well as

many other scientists and professional organizations, find the above
ib
procedures generally acceptable. (People v. Garcia, supra, 39 Misc.3d at

p. 485.) There is no doubt . . . that . . . [low copy] testimony . . . when
Tr
properly performed, generate results accepted as reliable within the

scientific community generally. (Ibid.) There is nothing new or novel
about [low copy] DNA profiling. It simply represents the application of
(Id. at p. 486.)
&
accepted and reliable procedures that are applied in a modified manner.

The court stressed that low copy DNA testing has been admitted in
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New York State trial courts over 125 times, and in a federal district court in
the Southern District of New York without a Frye hearing, and in courts of
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multiple other countries including Germany, The United Kingdom, Sweden

and Switzerland. (People v. Garcia, supra, 39 Misc.3d at p. 487, citations
Tr
omitted.) The court added, A dispute within the scientific community

over the reliability of a procedure does not preclude a trial court from
finding that the procedure is generally accepted. (Ibid.; but see United
States v. McCluskey (D.N.M., June 20, 2013, CR 10-2734 JCH) __

F.Supp.2d __ [2013 WL 3766686] [holding that low copy DNA evidence
114
was inadmissible under federal test of Daubert v. Merrell Dow

Pharmaceuticals, Inc. (1993) 509 U.S. 579 [113 S.Ct. 2786, 125 L.Ed.2d
469].)
Daubert test that does not apply to California cases. The court
inadvertently conflated two different concepts when it discussed the peak
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height imbalance of some alleles, and the idea that the analyst did not
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The federal district court in McCluskey was mistaken, even under the
determine an allele existed because the allele was below the threshold for
at
relative florescent units or RFUs. (United States v. McCluskey, supra, 2013

WL 3766686, at *58-59.) The government analyst there merely testified
ul
that she did not determine an allele existed because it fell below the proper
threshold. The analyst acted responsibly. (See ibid.) In addition, the court
ib
in McCluskey considered whether a DNA profile is eligible for an entry in

the Combined DNA Index System or CODIS. (Id. at p. 59.) But this is
Tr
irrelevant to the issue of whether the analysis produced results that were
admissible in court. Although the analyst in McCluskey could have been
more articulate when she testified, it appears that she determined certain
alleles existed, in part because there was no indication (based on peak
&
height imbalance) that DNA artifacts had been amplified inadvertently. (Id.
at pp. 59-61.) The analyst there acted properly, and the court erred.
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Appellant cites several experts who oppose the admission of low copy
DNA, or who question the reliability of low copy DNA analysis, depending
ia
on the sample size at issue. (AOB 119-121.) But as noted above, appellant
does not establish that the DNA here was low copy. In any event, the Kelly
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prong one inquiry is not whether the technique is reliable as a matter of

scientific fact, but simply whether it is generally accepted as reliable by
the relevant scientific community. (People v. Shirley (1982) 31 Cal.3d 18,
55; see People v. Morris (1988) 199 Cal.App.3d 377, 383 [consensus of
support].)
115
Also, one of the experts appellant cites, Dr. Laurence Mueller (AOB
120) is not reliable. Trial courts have repeatedly questioned Dr. Muellers
credibility and qualifications. (See, e.g., People v. Reeves (2001) 91
entirely credible and noted that Dr. Muellers lone dissent is not
sufficient to generate a controversy where the remainder of the scientific
io
community has reached consensus on use of the product rule in PCR
ns
Cal.App.4th 14, 37, 41 [trial court found Dr. Mueller to be biased and not
analysis]; Moenssens, DNA Evidence and Its CriticsHow Valid Are the
at
Challenges? (1990) 31 Jurimetrics 87, 102, fn. 60 [recounting a trial
judges remarks on Dr. Muellers financial interest and shifty nature of his
ul
criticism]; United States v. Goode (U.S.N.Ct.App. 2001) 54 M.J. 836, 850

([I]t was likely that the court members would find that Dr. Mueller and
ib
[another purported expert] were too extreme in their views and discount
their testimony); State v. Gore (Wash. 2001) 21 P.3d 262, 274 fn. 9 [trial
Tr
court observed that Mueller has a considerable personal financial interest

in having the courts continue to hold there is a significant disagreement in
the scientific community], overruled on other grounds by State v. Hughes
(Wash. 2005) 110 P.3d 192, 199; State v. Copeland (Wash. 1996) 922 P.2d
&
1304, 1318, fn. 5 [As the State points out, Dr. Muellers primary research
has involved genetics in fruit flies. He had published little in the field of
ls
human genetics, only one non-peer reviewed chapter in a general text, had
two papers in the area rejected, was uninformed of latest articles in the
ia
field, had misused a statistical model developed by Weir, had no graduate

students working under him, had not received any awards in his field in
Tr
over 10 years, had not received a research grant in about 8 years, and made
about $100,000 testifying as an expert in 1990-91]; Commonwealth v.
Blasioli (Pa.Super.Ct. 1996) 685 A.2d 151, 168 [During the Frye hearing,
after an examination of the qualifications of [the defendants] expert
witness, Dr. Lawrence Mueller, [the defendant] moved to have Dr. Mueller
116
qualified as an expert to testify about DNA statistical analysis. The trial

court responded Well, Im going to permit him to testify, but just barely,
so proceed].)
For all these reasons, the trial court did not err when it declined to
D.
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hold a prong one hearing.

Appellant Forfeited Any Prong Three Error
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If a party objects in limine to the admission of evidence, that objection

is not preserved for appeal unless the party secures a ruling from the court.
at
If the party fails to secure a ruling, and fails to object when the proponent
v. Ramos (1997) 15 Cal.4th 1133, 1171.)
ul
later introduces the evidence, then the party forfeits the objection. (People
Here, the trial court stated that although it did not think its necessary
ib
for a full blown prong three . . . Kelly hearing, it will certainly entertain
[an Evidence Code section] 402 hearing on whether . . . appropriate and
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proper procedures were followed in the administration of the MiniFiler test

. . . , which is the essence of a prong three hearing (3RT L6; see People v.
Hill, supra, 89 Cal.App.4th at p. 58 [when there is no need for a Kelly
hearing on prongs one or two, All that is necessary in the limited third
&
prong hearing is a foundational showing that correct scientific procedures

were used, citations, internal quotation marks, and original alteration
ls
omitted].) But appellant does not suggest that the trial court later changed
its mind and refused to hold that hearing. Unless she can show that the trial
ia
court did so, appellant forfeited any error regarding the trial courts failure
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to hold a hearing on prong three of Kelly.

E.
Any Error Is Harmless
Any error is harmless regarding the trial courts failure to hold a
hearing on prong one or three of Kelly. As appellant acknowledges (AOB
130), the California Supreme Court has explained that if a trial court
117
improperly admits flawed DNA evidence, it is a state law error subject to

the harmless error test of People v. Watson (1956) 46 Cal.2d 818, 836-837.
(People v. Venegas (1998) 18 Cal.4th 47, 93.) Nevertheless, appellant
She is mistaken. As the California Supreme Court has explained in a
different context, citing the United States Supreme Court:
ul
at
io
[o]nly when evidence is so extremely unfair that its admission

violates fundamental conceptions of justice, [has the court]
imposed a constraint tied to the Due Process Clause. (Perry v.
New Hampshire (2012) 565 U.S. ___, ___, 132 S.Ct. 716, 723,
181 L.Ed.2d 694 [citing, as an example, the constitutional
prohibition against a prosecutors knowin[g] use [of] false
evidence,]; . . . . The high court has repeatedly stressed that, as
a general matter, the federal Constitution does not mandate
particular rules concerning the admission of evidence.
ns
argues that any error violates her federal right to due process. (AOB 130.)
omitted, most alteration in original.)
ib
(People v. Fuiava (2012) 53 Cal.4th 622, 696-697, additional citations
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Defendants have [c]onstitutional safeguards . . . to counter the States

evidence includ[ing] the Sixth Amendment rights to counsel; compulsory
process; and confrontation plus cross-examination of witnesses. (People
&
v. Fuiava, supra, 53 Cal.4th at p. 697, quoting Perry v. New Hampshire,

supra, 132 S.Ct. at p. 723.) But state and federal statutes and rules
ls
ordinarily govern the admissibility of evidence, and juries are assigned the
task of determining the reliability of the evidence presented at trial.
(People v. Fuiava, supra, 53 Cal.4th at p. 697, italics added, citations and
ia

The Watson test applies here. But any error is harmless under either
Tr
Watson or Chapman. Regarding prong three, Fedor established in his trial
testimony that the MiniFiler procedure was sufficiently reliable. Therefore,

the jury could make its own determination about MiniFiler. Specifically,
the American Society of Crime Lab Directors accredited SERI. (12RT
118
1919.) SERI had to organiz[e] [its] protocols and quality assurance

manuals to the satisfaction of national quality assurance standards and
subject[] [its] documents and procedures to annual audits . . . most
safeguards to ensure that its DNA results were accurate. It used both
positive . . . and negative controls. (12RT 1921.) The positive control
io
was that SERI tested a specific sample every time it test[ed] any other
ns
particularly . . . five-year reaccreditation audits. (12RT 1919.) SERI used
sample . . . . (12RT 1291.) SERI knew what the results of the positive
at
control should be because SERI tested it over and over again and . . .
expect[ed] to see the same result in each current test. (12RT 1291.)
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SERIs negative control [was] a sample that contains no D.N.A.,

except that it does contain the reagents that [SERI] use[d] to prepare
ib
D.N.A. from [its] samples. (12RT 1921.) It had nothing in it and should
give [SERI] nothing in [its] tests results. (12RT 1291.) Fedor stated in his
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written report that SERI takes special precautions, to allow it to detect any
contamination of the samples:
&
[T]he reagents used in the [DNA] extraction are themselves

subjected to the entire extraction, amplification, and typing
process without adding any DNA. This blank control should
show no activity at the typing stage, thereby strongly indicating
that contamination has not occurred.
ls
(6CT 1137.)
In any event, Fedor used MiniFiler to analyze only limited evidence in
ia
this case. He used it to analyze the fingernails. On one fingernail, there

were weak and inconsistent results indicating a [DNA] mixture from at
Tr
least three persons. (12RT 1944.) Appellant was a possible contributor

to this mixture, and approximately 1 woman in 26,000 would be similarly
considered. (12RT 1944, 2014, 2048.) Regarding the DNA on another
fingernail, Fedor determined that . . . Rasmussen and [appellant] each
could be a contributor to the mixture. The statistics regarding [appellant]
119
are 1 in 9,000. With respect to . . . Rasmussen, 1 in 100. (12RT 2049.)

Fedor also analyzed the DNA mixture on two damaged fingernails.
Appellant was a possible contributor to each of these mixtures. Regarding
considered, and regarding the other, one woman in nine could have been
considered. (13RT 2065-2067.)
io
No one used MiniFiler to analyze any of the DNA evidence against
ns
one of these mixtures, one woman in 10 could have been similarly
appellant from the two bite mark swabs, which was far more compelling
at
evidence. (7RT 1024-1025, 1035, 1102-1103; 12RT 1922-1923, 1926,

1960, 2045.) Regarding the bite mark swab that Francis analyzed,
ul
appellants DNA profile is expected to be found in 1 in every 402
quadrillion unrelated individuals. (7RT 1103.) Since the population of
ib
the earth is approximately seven billion people, one quadrillion is

approximately a hundred million earths. (7RT 1103-1104.) Fedor
Tr
analyzed the second bite mark swab. He explained that the chance a
woman unrelated [to appellant] would have the same D.N.A. profile as the
major portion of [that] bite mark swab is approximately 1 in 1.7 sextillion.
(12RT 1938.) [W]e would need 240 billion planet earths to reach a
&
population of 1.7 sextillion. (12RT 1939.) Moreover, there was other

strong evidence independent of the DNA evidence, as discussed above in
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Argument II.
Appellant argues that DNA evidence from the fingernails is important
ia
because the prosecutor relied on it in his rebuttal argument. (AOB 131132, citing 19RT 3206, 3208.) But the prosecutors argument had several
Tr
layers in it, and he merely argued the fingernail evidence was a significant
reinforcement to all the other overwhelming evidence. The prosecutor
implied that appellants chain of custody argument regarding the bite mark
swabs was meritless. (19RT 3205-3206.) He added that appellants DNA
in that bite [mark] . . . could only get there as a result of her doing this
120
crime. The other explanation for it being there is just unreasonable. Its
fantastic. Its . . . not true. (19RT 3206.)
The prosecutor noted that the evidence doesnt stop there. You
know, if [it did] . . . I would say this is well beyond proof beyond a
there is more evidence. (19RT 3206, italics added.) The prosecutor
io
stated, one of the things that we have is [Rasmussens] fingernail . . .
ns
reasonable doubt. This is really proof without any doubt whatsoever. But
which is found at the crime scene. (19RT 3206.) He added, Thats 1 in
at
26,000, right? Thats not as much as 1 in 1.7 sextillion. No its not, but its
not nothing either. (19RT 3206, internal quotation marks omitted.) The
ul
prosecutor offered an analogy, that if the Staples Center in Los Angeles

was filled with women, then [o]nly one of those women could have
ib
contributed that DNA thats found under that fingernail. (19RT 3207.)
The prosecutor acknowledged, if you look at that alone by itself,
Tr
[you might think] . . . maybe theres some question about that. But its not
by itself. That woman would also have to have the motive to kill
[Rasmussen]. (19RT 3207, internal quotation marks omitted.) Also, she
would have to dispose of that gun right after the murder, would have to
&
kill with LAPD bullets, and would have to . . . be the person who bit
[Rasmussen] on the arm. (19RT 3207.)
ls
The prosecutor added that the fingernail evidence was significant
because it was never at the coroners office, unlike the bite mark swabs.
ia
(19RT 3208.) That fingernail was always in the custody of LAPD.

(19RT 3208.) Contrary to appellants suggestion on appeal (AOB 132), the
Tr
prosecutor did not appear to be using the fingernail evidence to shield

himself from appellants argument at trial that there was a chain of custody
issue with the bite mark swabs. Rather, the prosecutor had already implied
that the chain of custody issue lacked merit. (19RT 3205-3206.)
121
The prosecutor argued that the fingernail evidence was worth

considering because this made-up person who planted the DNA, not only
did they have to plant the DNA in the coroners office, they had to plant [it]
theres more evidence still. There is the staged crime scene which he
described in detail. (19RT 3208-3211.) He also stressed that the killer
He stated, Who else but [appellant] had a reason to do this to
at
[Rasmussens] face? No one. (19RT 3212.)
io
disfigured Rasmussens face and marred her beauty. (19RT 3212.)
ns
in LAPD property as well . . . . (19RT 3208.) The prosecutor noted, but
Considering the prosecutors argument in context, the DNA from the
ul
fingernails was not critical evidence. All the other evidence was
overwhelming. Even assuming that the trial court should have excluded the
ib
fingernail evidence, any error was harmless under Watson or Chapman. To

the extent appellant reiterates part of her Argument II (AOB 132),
Tr
respondent refers to Argument II above.
VI. THE COURT DID NOT ABUSE ITS DISCRETION WHEN IT

EXCLUDED DEFENSE EVIDENCE OF THIRD PARTY
CULPABILITY BECAUSE THE EVIDENCE WAS INSUFFICIENT
TO MEET THE THRESHOLD FOR ADMISSIBILITY
&
Appellant claims that the trial court violated state law and her federal
constitutional rights when it excluded third party culpability evidence
ls
regarding a burglary that occurred six weeks after the murder. (AOB 133150.) Appellant is mistaken. The trial court did not abuse its discretion or
ia
violate appellants constitutional rights. There was no link between the
Tr
perpetrators of the later burglary and the murder of Rasmussen.

A.
Appellant made the following offer of proof: About six weeks after
the murder, there was a burglary on April 11, 1986 at 8:45 a.m. in a
condominium on the same street where Rasmussen lived, Balboa
122
Boulevard. The detectives went to the scene and noted that the victims
condominium was almost an exact replica of . . . . Rasmussens
condominium. (5RT 600.) Both condominiums had security gates, . . .
stairs leading up to the condominium . . . . (5RT 600.) When the police
went to the burglary victims condominium in April 1986, they saw
io
stacked stereo equipment by the garage stairs door. (5RT 600.)11
ns
security locked-type entrances, . . . [and] subterranean garages that have
The prosecutions opposition brief included excerpts from the police
at
reports of the April 1986 burglary and the murder of Rasmussen in
February 1986. (July 10, 2012 Supp. CT 45-47.)12 The prosecution argued
ul
that there were several differences between the April 1986 burglary and the
murder of Rasmussen in February 1986. The burglary victim in April
ib
was not physically assaulted or harmed in any way, but Rasmussen was
severely beaten in the face and bitten on the arm. (July 10, 2012 Supp. CT
Tr
41.) Of course, Rasmussen was also shot with a firearm.

The perpetrators forced their entry into the condominium where the
April burglary victim lived. In contrast, there was no evidence that anyone
did this in Rasmussens condominium. (July 10, 2012 Supp. CT 41.) In
&
the April burglary, there were two perpetrators. The first one fled when the
victim confronted him. The second one brandished a firearm with a four-
ls
inch barrel. In contrast, the person who murdered Rasmussen used a gun
with a two-inch barrel. (July 10, 2012 Supp. CT 41.) The victim of the
ia
April burglary fled when the second perpetrator brandished a gun, and the
11
Tr
Appellant filed a written motion, but it did not describe the facts
of the April 1986 burglary. It summarized the law. (Dec. 7, 2012 Aug. CT
21-23.) There is only one volume of this augmented clerks transcript
which contains 30 pages.
12
There is only one volume of this supplemental clerks transcript

which contains 220 pages.
123
perpetrator allowed her to do so. In contrast, Rasmussen was murdered and

the perpetrator or perpetrators beat her up first. (July 10, 2012 Supp. CT
41.) The April burglars stole only jewelry. But no one touched
there for them. In contrast, Rasmussens killer used Rasmussens car.
(July 10, 2012 Supp. CT 41.)
io
The trial court ruled that the evidence appellant offered did not
ns
Rasmussens jewelry. The April burglars ran to a car that was waiting
meet[] the standard for third-party culpability . . . . (11RT 1888.) The
at
court previously reviewed two pages from Detective Myers report
regarding his interview of the April 1986 burglary victim, and a third page
ul
which completes the interview of the witness . . . . The court marked

those pages as court Exhibit 6. (11RT 1888; Nov. 6, 2012 Aug. CT 92-
ib
95[copy of this exhibit].) The court also previously read a summary of

Detective Stearnss interview of the witness to that burglary, and the police
Tr
reports attached to the prosecutions opposition brief. (11RT 1888.)

The court noted that certainly there were some general similarities
between the two cases. (11RT 1888.) The person who killed Rasmussen
did so in the daytime, and the April burglary was also in the daytime.
&
(11RT 1888.) In the April burglary, the victim saw one of the perpetrators
loading stereo equipment into a bag, and the second perpetrator came
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down the stairs [and] pulled a gun . . . with a 4-inch barrel, according to
the police report. (11RT 1888.) The second perpetrator pointed the gun at
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the victim, who was able to run away. No shots were fired. (11RT
1888.)
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The court found several dissimilarities between the two cases.
(11RT 1888.) In the April burglary, the perpetrators took jewelry, and they
likely went to the master bedroom upstairs. (11RT 1888-1189.) The
jewelry box was pried open . . . . The perpetrators searched the dresser
drawers and opened a hope chest . . . . (11RT 1889.) The perpetrators
124
of the April burglary left in a car, [but] in the Rasmussen incident her car
and purse were taken. (11RT 1889.) The court found this was a
principal dissimilarity. (11RT 1889.)
was forced and showed signs of forced entry, but [h]ere there is no sign
of forced entry . . . . (11RT 1889.) The attack on Rasmussen was
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vicious[], and the killer or killers . . . went to the point of actually
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Another dissimilarity was that in the April burglary, the front door
administering . . . a killing shot, a contact wound to the chest which . . .
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reflects a clear intent to kill. (11RT 1889.) In contrast, there was no

evidence that the April burglars had any intent to kill. (11RT 1889.)
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The gun in the April burglary had a four-inch barrel, but the gun here
had a two-inch barrel. (11RT 1889-1890.) The court did not put a lot of
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stock in that because an eyewitness could easily have mistaken the size of
the barrel. (11RT 1890.) The court found that the critical feature is that
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there is nothing that links the suspects in the April . . . burglary to the
incident involving . . . Rasmussen. (11RT 1890, italics added.)
The court discussed some case law. (11RT 1890-1891.) It then
stated, I do find that there is no evidence linking the suspects from the
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April . . . burglary to the . . . Rasmussen incident. (11RT 1891.) I will

not permit the defense to introduce evidence of this later burglary . . . .
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(11RT 1891.)
B.
Analysis
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As the California Supreme Court has reiterated, third party culpability
evidence is admissible only if the defendant . . . demonstrate[s] that a
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reasonable doubt exists concerning his or her guilt, [and] . . . link[s] the
third person either directly or circumstantially to the actual perpetration of
the crime. (People v. Edwards (2013) 57 Cal.4th 658, 729.) [T]he court
must decide whether the evidence could raise a reasonable doubt as to

defendants guilt and whether it is substantially more prejudicial than
125
probative under Evidence Code section 352. (Ibid.) When a trial court
rules on this issue, an appellate court applies the abuse of discretion
standard. (People v. Lewis (2001) 26 Cal.4th 334, 372-373.)
the proper showing for admissibility. Alcala claimed that a man named
Raul Vasquez was responsible for the kidnapping and murder, based on
io
evidence that, two days after [the victims] disappearance . . . , Vasquez
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In People v. Alcala (1992) 4 Cal.4th 742, the defendant failed to make
was acting suspiciously in the general area of the crime scene. Moreover,
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Vasquez was on parole for a prior murder conviction, which the
prosecutor characterized as a dissimilar gang-related incident committed
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years earlier. (People v. Alcala, supra, 4 Cal.4th at pp. 791-792.)
The California Supreme Court held this was insufficient evidence of
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third party culpability. (People v. Alcala, supra, 4 Cal.4th at pp. 792-793.)

It reasoned, [t]he mere presence of Vasquez in the general vicinity of [the
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victims] remains two days after her disappearance was not enough to
connect him to [her] kidnapping and murder. (Id. at p. 792.) The Court
reiterated, mere motive or opportunity to commit the crime without more
will not suffice to raise a reasonable doubt about a defendants guilt: there
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must be direct or circumstantial evidence linking the third person to the

actual perpetration of the crime. (Ibid., italics added, citations, internal
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quotation marks, and original alteration omitted; accord, People v. Page

(2008) 44 Cal.4th 1, 35-38.)
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Here, as in Alcala, the trial courts ruling was proper, since appellant
failed to offer any third party culpability evidence that raised a reasonable
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doubt about her guilt. The evidence of the third partys motive and
opportunity, six weeks after the murder, was insufficient. In addition, for
all the reasons the trial court pointed out in detail, discussed in the Relevant
Proceedings section above, there were significant differences between the
April burglary and the February murder of Rasmussen. There was nothing
126
to link the April burglars to the murder of Rasmussen. The trial court did
not violate state law or appellants federal constitutional rights. (People v.
Page, supra, 44 Cal.4th at p. 37, fn. 16.)
violated Evidence Code section 1101, subdivision (b), regarding the
admissibility of other bad acts. (AOB 133.) Appellant states, the [trial]
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court concluded that Evidence Code section 1101(b) was irrelevant to
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Appellant argues that when the trial court excluded this evidence, it
admissibility of evidence of third-party culpability. (AOB 139, 147,
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citation omitted.) But appellant inadvertently misinterprets the trial courts

remarks.
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The trial court merely noted that the case appellant cited regarding
Evidence Code section 1101, subdivision (b), People v. Scott (2011) 52
ib
Cal.4th 452, 472-473 (Dec. 7, 2012 Aug. CT 22) is not on point here. As
the trial court correctly explained (11RT 1890-1891), Scott held that the
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prosecutor properly joined two cases because, even if the cases had
remained separate, the evidence in each of them was cross-admissible under
Evidence Code section 1101, subdivision (b), to prove identity. (People v.
Scott, supra, 52 Cal.4th at pp. 470-473.) The trial court added, Here . . .
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the question . . . is whether or not this evidence meets the test for thirdparty culpability . . . . (11RT 1891.) The trial court correctly understood
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the law.
One way for a party to offer admissible evidence of third party
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culpability is under Evidence Code section 1101, subdivision (b). (People

v. Abilez (2007) 41 Cal.4th 472, 502-503 [holding that trial court did not
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abuse its discretion when it ruled that the evidence was inadmissible under
that statute].) However, if a defendant merely proves that the third party
has a motive under Evidence Code section 1101, subdivision (b), the
California Supreme Court has never suggested that is sufficient to prove
that the third party is linked to the current crime.
127
In addition, when a defendant relies on Evidence Code section 1101,

subdivision (b), to introduce inadmissible character evidence as a basis for
third party culpability evidence, California courts have rejected that
defendants offer of proof consisted of mere evidence of a propensity for
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approach. (People v. McWhorter (2009) 47 Cal.4th 318, 372 [much of

violence to prove identity that would not have been admissible in a trial for
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murder or, even if it was, would not itself have established identity];
People v. Davis (1995) 10 Cal.4th 463, 501 [the proposed evidence did not
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relate to motive and intent but was essentially an attempt to show that [third
party] was more likely to have been the killer because he had a history of
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violence].)
As the California Supreme Court stated regarding an Evidence Code
ib
section 1101, subdivision (b), claim:
&
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[I]t would be possible to list any number of marks common to

the charged and uncharged crimes each of which is so lacking in
distinctiveness that its presence, whether or not in combination
with other equally nondistinctive factors, is wholly lacking in
significance. To give an example whose very absurdity
illustrates the point, it might be observed that in both the
charged and uncharged crimes the robber wore trousers, had two
ears, etc.
(People v. Haston (1968) 69 Cal.2d 233, 246, fn. 15.)
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Here, it was not probative that six weeks after the murder, someone
burglarized an identical looking condominium on the same block,
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brandished a gun, did not fire it, and let the victim go. Moreover, it was not
surprising that burglars would stack stereo equipment. That is not a
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distinctive characteristic of a burglary. It does not link the April burglars

to the present case. (People v. Edwards, supra, 57 Cal.4th at pp. 729.) It
does not raise a reasonable doubt as to defendants guilt. (Ibid.)
Appellant was a police officer who investigated prior burglaries. (10RT

1653-1655.) The reasonable inference from all the other evidence was that
128
she staged a burglary to distract people from discovering that she was the
murderer. The fact that burglars stack stereo equipment only reinforces the
theory that appellant would know that and mimic burglars. In addition, the
trial court pointed out the strong differences between the present case and
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the April burglary. (11RT 1888-1191.)
Appellant relies on People v. Lynch (2010) 50 Cal.4th 693, 736, 756-
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758, overruled on another ground in People v. McKinnon (2011) 52 Cal.4th

610, 636-643, and People v. Ramirez (2006) 39 Cal.4th 398, 462-464.
at
(AOB 142-144.) But these cases do not support appellants claim. In
Lynch, the California Supreme Court held that the trial court did not abuse
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its discretion when it excluded evidence of third party culpability. The
California Supreme Court explained, evidence that three Black males, who
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were laughing . . . and were driving around in a van shortly after [the
witness] found [the victim] injured on her porch, failed to demonstrate any
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link between the individuals in the van and the . . . attack, and did not
raise a reasonable doubt as to defendants guilt. (People v. Lynch, supra,
50 Cal.4th at p. 756, internal quotation marks omitted.)
In Lynch, the California Supreme Court also rejected the defendants
&
claim that the trial court erred by admitting the prosecutions evidence of
the defendants other crimes under Evidence Code section 1101,
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subdivision (b). The California Supreme Court relied on its earlier

reasoning that, since the prior crimes evidence was relevant to identity, the
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trial court properly denied the defendants motion to sever counts. (People
v. Lynch, supra, 50 Cal.4th at p. 757.)
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Regarding the severance motion and the identity evidence, the
California Supreme Court explained:

All of the attacks occurred within a two-month period in the
nearly adjacent communities . . . . All of the victims were
Caucasian elderly women who were attacked in their homes.
Three of the victims lived in corner houses; Durham lived next
129
ns
at
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to and had regular access to her daughters corner house; and

Figueridos house was separated from the next building on the
left by an empty one-half acre. All of the victims suffered blunt
trauma to the head, and either were robbed or robbery was
attempted. Figuerido, Constantin, Herrick, and Durham were
attacked during the day, and the jury could reasonably infer
Larsons death also occurred during the day . . . . Defendant was
identified at or near the victims house for each incident, and in
the case of Constantin, he sold jewelry belonging to Vickie
Constantin the same afternoon her mother was attacked, and
gave away more jewelry taken from that residence to an
acquaintance several days later.
(Id. at pp. 737-738, italics added.)
Although appellant relies on Lynch for its Evidence Code section
ul
1101, subdivision (b) analysis (AOB 143-144), Lynch is distinguishable

regarding that issue. Here in contrast to Lynch, there was no evidence that
ib
the victim of the April burglary suffered the same injuries as Rasmussen.
More important, there was no evidence that the perpetrators of the April
Tr
burglary were present at the scene when Rasmussen was murdered in

February.
As for People v. Ramirez, supra, 39 Cal.4th at pages 462-464, which
&
appellant also relies on, there was no dispute in that case that the defendant
was the perpetrator of the current crime and the prior crimes. The issue in
ls
Ramirez was whether the Evidence Code section 1101, subdivision (b),
evidence proved the defendants intent regarding the current crime.
(People v. Ramirez, supra, 39 Cal.4th at pp. 462-464.) Here by contrast,
ia
there was no evidence that appellant was the perpetrator of the April
burglary. In sum, the trial court did not abuse its discretion when it
Tr
excluded the evidence appellant offered on the issue of third party

culpability.
Moreover, any error was harmless. The state law harmless error
standard of People v. Watson , supra, 46 Cal.2d at pages 836-837, should
130
apply here. As the California Supreme Court pointed out, there is no

federal constitutional violation when a trial court excludes third party
culpability evidence that fails to connect the third party to the crime.
harmless under Chapman or Watson for all the reasons discussed in
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(People v. Alcala, supra, 4 Cal.4th at p. 793.) In any event, any error was
Argument II above. Appellant reiterates that according to her Argument II,
io
forensic evidence supported third-party culpability and the prosecutions
motive theory was flawed. (AOB 150, citation omitted.) She is mistaken
at
as discussed in Argument II above.
ib
ul
VII. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION OR

VIOLATE APPELLANTS FEDERAL CONSTITUTIONAL RIGHTS
WHEN IT DENIED HER REQUEST TO CROSS-EXAMINE THE
FORENSIC BEHAVIORAL ANALYSIS EXPERT ABOUT EVIDENCE
OF OTHER BURGLARIES
Appellant claims that the trial court violated state law and her federal
rights when it denied her an opportunity to cross-examine the prosecutions
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forensic behavioral analysis expert about evidence of other burglaries.

(AOB 150-157.) This claim lacks merit. The trial court did not abuse its
discretion. The evidence of the April burglary had no probative value here.
&
A.
Shortly after the prosecutions expert on forensic behavioral analysis,
ls
Safarik, began testifying, appellants trial counsel asked to approach the

bench. (15RT 2478.) He stated, [This] goes to that part of [Safariks]
ia
opinion as to why he thought it was not a random burglary. Im not

going to be able to cross-examine based on the courts order on other
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similar burglaries . . . . (15RT 2479.) The court agreed that he could not
cross-examine Safarik about other similar burglaries. (15RT 2479.)
Appellants trial counsel objected that this violated his state and
federal constitutional rights to cross-examine the witness. The court replied

that this was an Evidence Code section 352 issue. (15RT 2479.) It added,
131
I dont think there were burglaries that were similar. (15RT 2480.)
[T]he only thing Ive seen so far from the defense is what I thought was an
effort to get into extraneous information about a burglary that clearly . . .
the defense objection. (15RT 2481.)
B.
Analysis
io
As the United States Supreme Court has explained, the Sixth
ns
[was] unrelated to the burglary here . . . . (15RT 2480-2481.) It overruled
Amendments Confrontation Clause guarantees a defendant the opportunity
at
for effective cross-examination. However, it does not guarantee a right to

cross-examination in whatever way, and to whatever extent, the defense
ul
might wish. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679-680 [106
S.Ct 1431, 89 L.Ed.2d 674]; In re Ryan N. (2001) 92 Cal.App.4th 1359,
ib
1386.)
A court may impose reasonable limits on cross-examination, to
Tr
prevent harassment, prejudice, [or] confusion of the issues, to protect a

witness safety, or to avoid interrogation that is repetitive or only
marginally relevant. (Delaware v. Van Arsdall, supra, 475 U.S. at p. 679;
In re Ryan N., supra, 92 Cal.App.4th at p. 1386.) A reviewing court will
&
uphold a trial courts exercise of discretion under Evidence Code section

352 unless the defendant shows the trial court exercised its discretion in an
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arbitrary, capricious, or patently absurd manner that resulted in a manifest

miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 910.)
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A trial court has broad power to exclude evidence under Evidence
Code section 352, to prevent criminal trials from degenerating into
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nitpicking wars of attrition over collateral issues. (People v. Ayala (2000)

23 Cal.4th 225, 301, citation and internal quotation marks omitted.) A trial
court does not violate a defendants confrontation right when it excludes,
under Evidence Code section 352, cross-examination that is repetitive,
prejudicial, confusing of the issues, or of marginal relevance. (Ibid.,
132
citation and internal quotation marks omitted; accord, People v. Hartsch

(2010) 49 Cal.4th 472, 497.)
Here, as discussed above in Argument VI regarding third party
culpability, the evidence of the April burglary had no probative value
did not abuse its discretion or violate appellants federal constitutional
io
rights.
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regarding the murder of Rasmussen in February. Therefore, the trial court
Moreover, any error was harmless under Watson or Chapman for the
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reasons discussed in Argument II above. Safariks testimony was a minor

part of the prosecutions case. Any error did not affect the outcome.
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VIII. THERE WAS NO CUMULATIVE ERROR
Appellant claims the cumulative effect of the alleged errors was
ib
prejudicial. (AOB 158-159.) As discussed above, the court did not err.
Even assuming there were errors in this case, appellant failed to
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demonstrate prejudice. Any individual or cumulative errors could not have

affected the verdicts. (People v. Seaton (2001) 26 Cal.4th 598, 691-692.)
A defendant is only entitled to a fair trial. She is not entitled to a perfect
one. (People v. Cunningham (2003) 25 Cal.4th 926, 1009.)
Tr
ia
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cumulative error.
&
Appellant had a fair trial. This Court should reject her claim of
133
CONCLUSION
For the reasons discussed above, respondent respectfully requests that
this Court affirm the judgment.
Respectfully submitted,
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at
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KAMALA D. HARRIS
DANE R. GILLETTE
Chief Assistant Attorney General
LANCE E. WINTERS
Senior Assistant Attorney General
LINDA C. JOHNSON
Supervising Deputy Attorney General
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Dated: November 7, 2013
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MICHAEL KATZ
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MK:ez
LA2012604892
51398685.doc
134
CERTIFICATE OF COMPLIANCE
I certify that the attached RESPONDENTS BRIEF uses a 13 point
Times New Roman font and contains 42,987 words.
ns
KAMALA D. HARRIS
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Dated: November 7, 2013
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ib
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at
MICHAEL KATZ

Stephanie Lazarus Appeal: Respondent's (State of CA) Brief

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Stephanie Lazarus Appeal: Respondent's (State of CA) Brief

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT, DIVISION FOUR

Plaintiff and Respondent,

THE PEOPLE OF THE STATE OF CALIFORNIA,

Case No. B241172

Defendant and Appellant.

STEPHANIE ILENE LAZARUS,

Los Angeles County Superior Court, Case No. BA357423

1.. The Victims Sister Tried To Reach Her On

3. The Condition Of The Victims Body ...................3

5. Former Officer Hooks Talked To The

7. The Victims Car ................................................ 15

8. Testimony From Another Former Officer

11. Testimony From College Friends Of

15. Further Evidence Of Appellants Physical

16. Forensic Behavioral Analysis ............................42

Defense Evidence ....................................................46

The prosecutions delay before appellants arrest did

Relevant Proceedings ...............................................52

1. Since Proposition 8 Applies Here, Federal

2. According To Federal Constitutional Law,

The trial court correctly denied appellants motion to

Relevant Proceedings ...............................................69

3. Even Under State Law, This Claim Lacks

The trial court properly denied appellants motion to

Appellant was not legally compelled to answer

Relevant Proceedings ...............................................90

Relevant Proceedings ............................................. 104

Summary of the DNA and the PCR/STR

Application of legal standards regarding a Kelly

Appellant forfeited any prong three error ............... 117

Any error is harmless ............................................. 117

The court did not abuse its discretion when it excluded

Relevant Proceedings ............................................. 122

Analysis ................................................................. 125

The trial court correctly denied appellants request for

The trial court did not abuse its discretion or violate

Relevant Proceedings ............................................. 131

There was no cumulative error......................................... 133

Conclusion ............................................................................................. 134

California Correctional Peace Officers Assn. v. State of California

Christal v. Police Commission

Daubert v. Merrell Dow Pharmaceuticals, Inc.

Fichera v. State Personnel Bd.

Fowler v. Superior Court

Frye v. United States

Hemler v. Superior Court

McKirdy v. Superior Court

Pasadena Police Officers Assn. v. City of Pasadena

Perry v. New Hampshire

Riverside County Sheriffs Dept. v. Zigman

Sanitation Men v. Sanitation Commr

Szmaciarz v. State Personnel Bd.

Titus v. Civil Service Com.

United States v. Goode

United States v. Gouveia

United States v. Harris

United States v. Lovasco

United States v. McCluskey

United States v. Vangates

Van Winkle v. County of Ventura

Williams v. City of Los Angeles

Cal. Const., art. I .............................................................................56, 86