Beruflich Dokumente
Kultur Dokumente
Vs.
B241172
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STEPHANIE LAZARUS,
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DONALD R. TICKLE
State Bar No. 142951
P.O. Box400
Volcano, CA 95689-0400
(209) 296-4536 (voice & facsimile)
E-mail: drt@volcano.net
Attorney for Defendant-Appellant
STEPHANIE LAZARUS
TABLE OF CONTENTS
1
INTRODUCTION
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Introduction.
B.
C.
D.
E.
F.
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II.
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ARGUMENT
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B.
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D.
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III.
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TABLE OF CONTENTS
Introduction.
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TABLE OF CONTENTS
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Introduction.
B.
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D.
E.
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IV.
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InteiTogation Was Prejudicial To Her Defense.
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.TABLE OF CONTENTS
Introduction.
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B.
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C.
D.
E.
F.
G.
Appellant Did Not Forfeit Her Claim That The Trial Comi
Erred By Failing To Hold A Prong 3 Hearing.
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VI.
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V.
TAB:LE OF CONTENTS
C.
D.
E.
F.
Reversal Is Required.
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The Trial Court Violated State And Federal Law By Denying Appellant
An Opportunity To Cross-Examine The Prosecution's Crime Scene
Analyst About Other Burglary Evidence.
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Respondent Errs By Conflating The Standard For CrossExamination With The Standard For Admission OfThird-Party
Culpability Evidence.
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B.
Evidence Code section 352 Did Not Bar The Proposed Cross80
Examination.
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PROOF OF SERVICE
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CONCLUSION
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VII.
B.
TABLE OF AUTHORJTIES
Federal Cases:
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Gardner v. Broderick, Police Commissioner (1968) 392 U.S. 273 .... .45, 50, 52, 57
Garrity v. New Jersey (1967) 385 U.S. 493 .............................................. .44, 48, 50
Gulden v. McCorkle (5th Cir. 1982) 680 F.2d 1070 ....... ...................................... 52
TABLE OF AUTHORITIES
Hester v. City ofMilledgeville (11th Cir.l985) 777 F.2d 1492 ....................... .45, 52
Horton v. California (1990) 496 U.S. 128 ............................................................. 25
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Sher v. US. Departlnent of Veterans Affairs (1st Cir. 2007) 488 F.3d 489 ........... 52
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TABLE OF AUTHORITIES
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United States v. Colkley (4th Cir. 1990) 899 F.2d 297 .......................................... .43
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United States v. Gouveia (1984) 467 U.S. 180 ........................................... 10, 11, 12
United States v. Grant (9th Cir. 2012) 682 F.3d 827 ..................... :........... 26, 29, 30
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United States v. Hardin (6th Cir. 2008) 539 F.3d 404 ..................................... ;....... 7
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United States v. Indorato (1st Cir. 1980) 628 F.2d 711 ......................................... 54
United States v. Leon (1984) 468 U.S. 897 ................................................ 30, 31,44
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United States v. Moore (7th Cir. 1997) 115 F .3d 1348 .......................................... 80
United States v. Palmquist (1st Cir. 2013) 712 F.3d 640 ........................... 51, 53, 54
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United States v. Reyes (9th Cir. 2009) 577 F.3d 1069 .. :........................................ 32
United States v. Sandoval-Gonzalez (9th Cir. 2011) 642 F.3d 717 ........................ 32
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United States v. Schultz (6th Cir. 1994) 14 F.3d 1093 ..................................... 24, 28
United States v. Smith-Baltither (9th Cir. 2005) 424 F.3d 913 .............................. 86
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United States v. Underwood (9th Cir. 2013) 725 F.3d 1026 .................................. 31
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TABLE OF AUTHORITIES
United States v. Washington (9th Cir. 1986) 797 F .2d 1461 .................................. 30
United States v. Zimmerm.an (3rd Cir. 2002) 277 F.3d 426 ................................... 29
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State Cases:
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Lybarger v. City ofLos Angeles (1985) 40 Cal.3d 822 ........................ 45,48, 50, 51
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Pasadena Police Officers Assn. v. City ofPasadena (1990) 51 Cal.3d 564 .... 18, 47
TABLE OF AUTHORITIES
People v. Alcala (1992) 4 Cal.4th 742 ....................................................... 83, 84, 86
People v. Alexander (2010) 49 Cal.4th 846 ........................................................... 16
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TABLE OF AUTHOR1TIES
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......................................................... 74, 75
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TABLE OF AUTHORITIES
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TABLE OF AUTHORITIES
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TABLE OF AUTHORITIES
Riverside County Sheriff's Depart. v. Zigman (2008) 169 Cal.App.4th 763 .......... 51
In re Scott (2003) 29 Cal. 4th 783 ........................................................................... 16
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Spielbauer v. County ofSanta Clara (2009) 45 Cal. 4th 704 ................................. .48
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Constitutions:
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State Statutes:
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Evidence
TABLE OF AUTHORITIES
Evid. Code, 782 ........................................................ :3
Evid. Code, 1101.. ...................................................... :............................ 70, 72, 73,78
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Budowle et al., Low Copy Number-- Consideration and Caution, Proc. 12th
International Symposium on Human Identification (2001) .............................. 57, 59
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Plaintiff and Respondent,
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Vs.
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STEPHANIE LAZARUS,
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Defendant and Appellant. ]
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B241172
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APPELLANT'S REPLY
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BRIEF
INTRODUCTION
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comment.
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the AOB. In this reply brief, appellant discusses issues requiring additional
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ARGUMENT
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RESPONDENT'S
ERRS BY
CLAIMING
THAT
FEDERAL LAW GOVERNS APPELLANT'S CLAIM
THAT THE 23-YEAR PRE-ACCUSATION DELAY
VIOLATED HER RIGHT To DUE PROCESS UNDER
THE CALIFORNIA CONSTITUTION.
Introduction.
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the date of the homicide (February 26, 1986) to the time she was charged by
complaint with murder (February 9, 2009) violated her state and federal due
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process rights. 1 (AOB 28; 11/6/12 CT 1; citing Cal. Const.,A1i. I, 15; U.S.
Const., 5th & 14th Amends.)
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I.
1. Respondent asserts that appellant's claim is that her due process rights were
standards govern state due process claims for pre-accusation delay. (People v.
Boysen (2007) 165 Cal.App.4th 76l;AOB 43-44.) Properly applied, state law
shows that the 23 year delay in charging her with murder violated her right to
defend against the charge. Even if federal law applies, she was prejudiced by
the delay.
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shall not be excluded in any criminal proceeding." (Cal. Const., Art. I, 28,
subd. (f)(2).
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judicially created remedy for ... exclusion of evidence ... except to the extent
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Art. I, 15; see, e.g. People v. Martinez (2000) 22 Cal.4th 750, 754-755
[speedy trial]; People v. Nelson (2008) 43 Cal.4th 1242 [due process]); People
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Valencia (1990) 218 Cal.App.3d 808 ("Valencia") because that case shows
that "state law is irrelevant" to a claim that pre-accusation delay violated
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due process claim for pre-accusation delay. (AOB 37-40.) They addressed
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the United States Supreme Court under the federal Constitution."]; In re Lance
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[8112 413; 104 S.Ct. 2528] (Trombetta);People v. Tierce (1985) 165 Cal.App.
3d 256, 263 [applying Trombetta]; People v. Epps (1986) 182 Cal.App.3d
1102, 1113-15 [applying Trombetta]; People v. Angeles (1985) 172 Cal.App.
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United States v. Valenzuela-Bernal (1981) 458 U.S. 858 [73 L.Ed.2d 1193,
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respondent cHtm1s that an aue process cla1ms are fungioie wlwther or not they
arise under the state or federal constitution. (RB 57.) However, Angeles
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(Id. at p. 1206.)
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ofProposition 8" was "'to require the courts of this state to look to federal law
in deciding issues concerning the exclusion of evidence.' [Citation]"].)
Respondent notes (RB 57) that Angeles concluded that "there is no
unlawful search and seizure violations and one utilized for loss of evidence
cases. In each instance relevant evidence on the issue of guilt or itmocence is
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Johnson, stpra, 47 Cal.3d at p. 1234, cited Angeles with approval. (RB 57.)
Therefore, on respondent's view, Proposition 8 "control[s] ... a defendant's
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(People v.
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Heitzman (1994) 9 Cal.4th 189, 209 ["It is well settled that a decision is not
authority for an issue not considered in the court's opinion."].)
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governed by federal law. (AOB 43-44.) Respondent claims that Boysen the
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Cir. 2008) 539 F.3d 404, 439-40 ["Black's Law Dictionary [(8th ed. 2004)]
defines dicta, or 'obiter dictum,' as: 'A judicial comment made while
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delivering a judicial opinion, but one that is mmecessary to the decision in the
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(Trope v. Katz (1995) 11 Cal.4th 274, 286-287; United States v. Hardin (6th
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persuasive).'"].)
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negligent delay can violate due process." (!d. at p. 773.) The "literal language
of California Constitution, article, I, section 28 assumes its application to
evidence introduced at a criminal proceeding. Evidence Code section 140
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require that federal dismissal rules apply inCalifornia." (!d. at p. 775, fn. 2.)
Boysen also stated, if Proposition 8 was construed to alter the scope of
the defendant's state due process right against pre-accusation, "as the district
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attorney suggests, then an argument can be made that, given its breadth and its
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courts to afford greater rights to criminal defendants than those afforded by the
Constitution of the United States[.]'" (Raven, 52 Cal. 3d at p. 350.) Raven held
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that that this was an "invalid revision of the Califomia Constitution" beyond
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115) providing that the California "Constitution shall not be construed by the
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People v. Ramos (1984) 37 Cal.3d 136, 152 ["As the Attorney General
acknowledges, 'defendant's state constitutional ... [due process] claim cannot
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404 U.S. 307 [30 L.Ed.2d 468, 92 S.Ct. 455] did not, and indeed could not,
determine the constitutional requirements of the right to a speedy trial
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not alter the "substantive scope" of the state right to due process. The putative
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authority for this argument is People v. Angeles, supra, 172 Cal.App. 3d 1203.
However, as explained above, Angeles did not address the state due process
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independent force and effect to the speedy trial provision of the California
Constitution. (Cal. Const., Art. I, 15; People v. Martinez (2000) 22 Cal.4th
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Respondent next argues that to meet the federal due process a appellant
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must show that "the prosecution team intentionally delayed anesting [and
charging] appellant to gain a tactical advantage." (RB 61; see footnote 1,
above.) However, the "the exact standard under the [federal] constitution is not
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two most recent high court cases discussed by Nelson addressed that standard.
(Id. at p. 1253, discussing United States v. $ 8,850 (1983) 461 U.S. 555, 563
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[76 L.Ed.2d 143, 103 S.Ct. 2005] and United States v. Gouveia (1984) 467
U.S. 180, 192 [81 L.Ed,2d 146, 104 S.Ct. 2292].) In support ofthis argument,
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in a case addressing state standards for second-degree felony murder. (RB 61,
c1tmg People v.
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cases "catmot coexist" with the test in two later cases which thereby
"implicitly overruled" the earlier test.].)
However, under high court rules, only a holding commanding five
votes on the relevant issue has precedential effect. (Marks v. United States
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(1977) 430 U.S. 188, 193-194 [97 S.Ct. 990; 51 L.Ed.2d 260].) "Constitutional
rights are not defined by inferences from opinions which did not address the
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question at issue." (Texas v. Cobb (2001) 532 U.S. 162, 169 [121 S.Ct. 1335,
149 L.Ed.2d 321].)
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In United States v. $8,850 (1983) 461 U.S. 555 [76 L.Ed.2d 143, 103
S.Ct. 2005], the question presented was "whether the Government's 18-month
delay in filing a civil proceeding for forfeiture of the currency violates the
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claimant's right to due process oflaw." (Id. at p. 556.) The court emphasized
_that the "due process issue presented here is a narrow one." (Jd. at p. 562.)
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The court "conclude[d] conclude that the four-factor balancing test of Barker
v. Wingo, 407 U.S. 514 (1972), provides the relevant framework for
determining whether the delay in filing a forfeiture action was reasonable."
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(Id. at p. 556.)
The "Government" had urged the comi to adopt "the standard for
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assessing the timeliness of the suit be the same as that employed for due
process challenges to delay in instituting crin1inal prosecutions. As a1iiculated
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in United States v. Lovasco, 431 U.S. 783 (1977), such claims can prevail only
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However, that was not the holding of Lovasco. It explained that "proof
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violate due process. (ld. at p. 796 ["We therefore hold that to prosecute a
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defendant following investigative delay does not deprive him of due process,
even if his defense might have been somewhat prejudiced by the lapse of
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time."].) It declined to set a bright-line rule and charged the lower courts with
"the task of applying the settled principles of due process ... to the particular
circumstances of individual cases." (Id. at p. 797 .)
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United States v. Gouveia (1984) 467 U.S. 180, 192 [81 L.Ed.2d 146,
104 S.Ct. 2292] addressed whether prison inmates "had a Sixth Amendment
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right to an attomey during the period in which they were held in administrative
detention before the retum of indictmeD;ts against them" for the murder of a
fellow inmate. (ld. at p. 182.) It emphasized that this was a "nalTOW issue."
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Gouveia concluded that the Sixth Amendment right to counsel did not
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apply "before any adversary judicial proceedings had been initiated against
them." (ld. at p. 192.) In dicta, Gouveia stated that "the Fifth Amendment
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bringing the indictment was a deliberate device to gain an advantage over him
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and that it caused him actual prejudice in presenting his defense." (Id. at p.
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U.S. at 308.)
Marion first rejected the defendants' claim that Sixth Amendment
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standards governed because "the Sixth Amendment speedy trial provision has
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occunence of the alleged criminal acts and the filing of the indictment." (404
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an event that occuned in this case only when the appellees were indicted on
April21, 1970." (Ibid.}
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caused substantial prejudice to appellees' rights to a fair trial and that the delay
was an intentional device to gain tactical advantage over the accused." (ld. at
p. 324.)
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process standard: "we need not, and could not now, determine when and in
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justice to the rights of the defendant to a fair trial will necessarily involve a
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In sum, the high court cases state that reasonable investigative delay
does not violate federal due process and that intentional or reckless delay may
The devil is in the details of the prejudice to the
defendant's ability to defend against the charge. (Marion, 404 U.S. at 324-25;
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would impair her ability to mount an effective defense, or that the prosecution
team delayed in reckless disregard of any of these circumstances. (RB 62.)
Respondent notes that the trial court found that the prosecution did not act
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However, the high court's focus is not on the reason for the delay but
the prejudice to the defendant from delay. (Marion, 404 U.S. at 324-25
[Actual prejudice to the defense of a criminal case may result from the shortest
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and most necessary delay; and no one suggests that every delay-caused
detriment to a defendant's case should abmi a criminal prosecution."].)
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firearm evidence.
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testing, or attempted to test whether her handgun was the murder weapon
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The trial court barred this defense because it concluded that appellant failed to
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prosecution team knew about any circumstances that would impair her ability
to mount an effective defense[.]" (RB 62.) Delay must be for "a valid police
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purpose." (People v. Archerd (1970) 3 Cal.3d 615, 639.) This includes "the
need of law enforcement officials for additional time to continue their
investigation, to search for the defendant, or to search for witnesses, et
omission.)
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In this case the relevant witnesses, appellant and forensic evidence were
available in 1986. Thereafter, prosecutors "'ca1mot simply place gathered
evidence ... on the "back burner" hoping that it will some day simmer into
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something more prosecutable .... '" (People v. Mirenda (2009) 174 Cal.App.4th
1313, 1329-30, citation omitted.) Accordingly, the delay in this case served
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no valid police purpose and violated appellant federal due process rights.
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raised by a due process claim for pre-accusation delay. (RB 63.) Appellant
agrees that standard applies to the question of whether the relevant factual
(AOB 36-37; People v.
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["'Any conclusions oflaw, or of mixed questions oflaw and fact, are subject to
independent review.' [Citation.]"]; People v. Cromer (2001) 24 Ca1.4th 889,
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894 ["appellate courts should use independent, de novo review, for the mixed
question determinations that implicated these constitutional rights"].)
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On the merits, respondent argues that the trial court properly fomid this
case was analogous to the investigative delay in People v. Nelson, supra, 43
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Ca1.4th 1242 (Nelson). (RB 63-65, citing People v. Nelson, supra, 43 Cal.4th
1242 ("Nelson").) Respondent concedes that "the prosecution team waited 23
(RB 65.)
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Although this was three years longer than the delay in Nelson, respondent
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argues that the justification for the delay in this case was as strong as in
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statement in Nelson that a reviewing court should not "second guess[] how the
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state allocates its resources or how law enforcement agencies could have
investigated a given case." (People v. Nelson, s-upra, 43 Ca1.4th at p. 1256.)
If this, without more, was the law, then a reviewing court would be
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1255.)
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suspect and found that "he pr<?vided an alibi supported by his mother-in-law."
(Nelson, 43 Cal.4th at p. 1248.) Detectives also "interviewed over 180
potential witnesses and followed other leads. However; they were unable to
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after waiting in line to use a DNA database created in October 2000 "to solve
sexual assault cases that lacked suspects." (Ibid., emphasis added.)
In this case, three witnesses (Rw.etten and Rasmussen's parents)
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testing, including DNA testing. Nevertheless the police did not interview
appellant or conduct any tests. (AOB 47-48.)
Respondent does not dispute that appellant or DNA testing technology
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was available at the time. Instead, respondent asserts only that a reviewing
court should not "second guess" the investigation. (RB 65 .) However, there is
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police officer.
The Califmnia Supreme Court has recognized a heightened standard of
diligence where there is evidence of officer involvement in a crime. "To
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51 Cal. 3d 564, 572; AOB 47.) Respondent asserts that this admonition should
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maintain the public's confidence in its police force, a law enforcement agency
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home. (RB 66.) Respondent's position is flawed both legally and factually.
As mater oflaw, a "defendant is presumed innocent until proven guilty,
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and the government has the burden to prove guilt, beyond a reasonable doubt,
as to each element of each charged offense. [Citations]." (People v. Booker
(2011) 51 Ca1.4th 141, 185.) This includes the identity of the perpetrator.
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(People v. Hogue (1991) 228 Cal.App.3d 1500, 1505 ["An essential element
of any crime is, of course, that the defendant is the person who committed the
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Hall (1980) 28 Cal.3d 143, 158-59.) However, the burden of proof remains
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Rasmussen's body, on speaker wire by the stereo equipment moved to near the
door to the garage, a blood sample in the stairwell to the garage, and in
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association with one of the right fingernails and two of the left fmgernails
from Rasmussen. (8 RT 1254-56; 12 RT 1981, 1997-99, 2002-04,,2007,
2011-14, 2039-40; 13 RT 1076-77, 2075, 2077-78, 2081.) Appellant was
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In the stolen BMW taken fiom the garage, there was unidentified male
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DNA in blood on the interior, driver's door handle, from which appellant and
Rasmussen's husband were excluded. (12 RT 1951, 1989.) Thus, forensic
evidence supports an inference of guilty association with the crime rather than
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have shown whether others had been seen and reported in prqximity to
Rasmussen's residence or vehicle around the times relevant to the crime.
Fowler v. Superior Court (1984) 162 Cal. App. 3d 215 shows that the loss of
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case asserted that the lost police dispatcher's tape would have shown a phony
2645-46.) Thus, the crime was the kind of incident that would typically cause
a person to notify the police and provide identifying information.
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silence and then the sound of a car driving off. (16 RT 2634-35, 2637-38,
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injuries at the time relevant to the crime. (RB 67.) On respondent's view, it
was "not inevitable that the murderer had to suffer any injuries." (Ibid.)
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Respondent also believes that appellant could not have been injured because
she was a trained police officer and in above average physical shape. (RB 6768.)
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struggle from the entryway where blood and broken fingernails were found
and extending into the living room with overtumed furniture and a broken
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the condo when Rasmussen surprised them and a violent struggle ensued
- uring wnicn "'Rasmussen wasFor the same reasons, the detectives in 2009 searched appellant's residence
for records of medical treatment in 1986 as well as records "that will identify
cunent and former co-workers, friends or associates who may have knowledge
of Detective Lazarus's activities and appearance" after the homicide. (4 CT
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or not she had any injuries. (RB 68.) However, that is precisely the point: the
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passage of23 years time caused the loss and/or dimming of memories.
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(RB 68.) However, the record shows that Alexander did not recall seeing any
signs of injury or hearing appellant complain of1njury. (16 RT 2669, 2671.)
That differs from affinnativ.e testimony based on contemporaneous personal
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knowledge.
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up handgun that the prosecution claimed to be the murder weapon. 1 CT 1011.) Respondent argues that this is unreasonable because appellant's firearm
was stolen two weeks after the crime and the prosecution
not required to
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charge appellant with murder within two weeks of the crime. (RB 68-69.)
However, is not claiming that the police had to arrest her within two
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weeks of the crime. Within a day of the incident the police had collected the
firearm evidence fiom the crime scene and Ruetten and Rasmussen's had
identified appellant as a suspect. (1 CT 10-11; 11/6/12 CT 4-5, il-13.)
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Nevertheless, the police did nothing for two weeks. The failure to do so is
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bringing appellant to the jail interview area to question a witness on one of her
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difficult to remember events that occurred many years ago, long before she
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THE
TRIAL
COURT
ERRED
BY
DENYING
APPELLANT'S MOTION To QUASH THE SEARCH
WARRANTS AND To SUPPRESS EVIDENCE.
Respondent does not dispute (1) that appellant did not live at the
residence authorized for search until eight years after the crime, or (2) that the
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computers seized and searched did not exist at times relevant to the homicide.
Instead, respondent argues that the affidavitfi:om Detective Stearns "strongly
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tied appellant to the murder" based on the DNA and alleged motive evidence.
(RB 77.)
Appellant does not dispute that the DNA evidence provided probable
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cause to arrest her on June 5, 2009. (AOB 54; 4 CT 709.) However, "[m]ere
evidence of a suspect's guilt provides no cause to search his residence."
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Ruetten and kept a diary or j oumal recording her feelings about him. (RB 77.)
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this. The only basis for this claim was Detective Stearns' "opinion" that
appellant "may be in possession of diaries, daily journals or other writing
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expressing her feelings towards Ruetten and Rasmussen at the time leading up
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708.)
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the crime. (AOB 66-68; Nathanson v. United States (1933) 290 U.S. 41, 47
[78 L.Ed. 159; 54 S.Ct. 11] ["mere affirmance of suspicion or belief without
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designed to foreclose." (United Statesv. Schultz (6th Cir. 1994) 14 F.3d 1093,
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1097-98.)
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1986.
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if he is to perform his detached function and not become a rubber stamp for
the police." (People v. Pellegrin (1977) 78 Cal.App.3d 913, 916.) "[A] mere
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could have happened ... does not by itself suppmi a deduction or inference it
did happen." (People v. Moore (2011) 51 Cal.4th 386, 406.)
"'One of the themes which runs through the decisions on the Fourth
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Amendment probable cause requirement is that ... mere conclusions will not
suffice."' (United States v. Cervantes (2012) 698 F.3d 798, 803, citations
omitted.) The high comi has emphasized that the subjective belief of the.
&
ls
ia
state ofmind ofthe officer." (Horton v. California (1990) 496 U.S. 128, 138
[110 S. Ct. 2301; 110 L. Ed. 2d 112].)
Accordingly, the detective's belief or opinion could not substitute for
Tr
ns
-there is specific
particular place for which the warrant is sought." (People v. Carrington
(2009) 47 Cal.4th 145, 161, citations and internal quotations omitted.) Absent
this '"nexus' element", the search lacked probable cause and violated the
Fourth Amendment (Illinois v. Gates (1983) 462 U.S. 213, 238 [76 L. Ed. 2d
C.
io
ns
at
Cal.App.4th 1499, 1504; AOB 61.) Respondent argues that there is "'no clear
cut rule'" for determining whether information in an affidavit is too stale to
ul
support present probable cause. (RB 78, quoting McKirdy v. Superior Court
(1982) 138 Cal.App. 3d 12, 25 (McKirdy).) However, the standard is not so
ill-defined as respondentsuggests.
ib
McKirdy itself (id. at pp. 25-26) applied the standard set by high court
and the California Supreme Court: "As a general rule, information is stale,
Tr
&
ls
accord United States v. Grant (9th Cir. 2012) 682 F.3rd 827, 835.)
In McKirdy, the issue was whether an affidavit provided probable cause
ia
---=--
Tr
four years old at the time the statements were given." (Ibid.) Nevertheless,
-=--=-
-""'-.=.c.c-'-'
=--=--=----=---==--'-'-"'=-'-'----'--'-
cc_-
what the Fraud Unit sought was not evanescent contraband but rather business
and professional records which presumably would be retained unaltered for
periods of several years." (Id. at pp. 25-26.)
personal residence were not business records but insists that because appellant
was so "obsessed" with Ruetten she would have kept documents relating to
io
That indeed was the prosecution theory at trial based on fmding writing
at
ul
ib
omitted.)
The affidavit itself offers only statements of opinion that 23 years after
Tr
the events at issue appellant kept materials related to Ruetten. (AOB 55-56;
6/4/09 Affidavit at pp. 25-26.) The statement of probable cause proffered
statements from interviewing Ruetten about his relationship with appellant
&
during college and periodically after graduation until June 1984. (6/4/09
Affidavit at pp. 18-19.)
ls
Thereafter, they did not meet until June 1985 when appellant called
Ruetten after leaming he was engaged. (Id. at p. 19.) Appellant was "upset"
and told him that she "wanted to take the relationship to the next level."
ia
(Ibid.) However, Ruetten did not say that he had any continuing contact with
Tr
ns
"described the incident to [the roommate] as, '[a]n odd thing with a women
dressed real provocatively."' (Id. at p. 19.)
In May 2009, the police interviewed Rasmussen's father. (Id. atp. 21.)
appellant in her apartment and didn't know how she had entered. (Ibid.)
ns
He said that Rasmussen told him in January 1986 that she came upon
Appellant said that "she needed to talk to John and. their was a verbal
io
confrontation. The girlfi.iend left the apartment after a few minutes, and there
was no violence, but Sheni was afraid." (Ibid.) In February 1986, Rasmussen
at
told her father that she had a serious problem in Los Angeles that she could
not tell Jolm about and needed to handle on her own. (Ibid.) However, she
ul
ib
Tr
and Rasmussen at the time leading up to and after the murder." (Id. at pp. 2526.) As explained above, an officer's opinion "cmmot substitute for the lack
of evidentiary nexus in this case, prior to the search, between the" place to be
at pp. 1097-98.)
&
searched "m1d any criminal activity." (United States v. Schultz, supra, 14 F.3d
ls
ia
1505; People v. Hulland (2003) 110 Cal.App.4th 1646, 1652; accord Henzler
v. Superior Court (1975) 44 Cal.App.3d 430, 434 ["In the absence of other
Tr
searches for evidence of drug crimes. (RB 79.) However, the cases fmding the
absence of probable cause due to stale information are not limited to searches
for drugs or similar contraband. The staleness doctrine applies in contexts as
pp. 25-26; People v. Hepner (1994) 21 Cal.App. 4th 761, 770), stolen checks
(People v. Carrington, supra, 47 Cal.4th at pp. 162-63), a murder weapon
io
ns
.Cir. 2012) 682 F.3rd 827, 835; pornography (People v. Nicholls (2008) 159
at
Ca1.4th 703, 714; United States v. Zinunerman (3rd Cir. 2002) 277 F.3d 426,
433-34), and even evidence of operating a ketmel without a license (People v.
ul
Appellant emphasizes that the "'physical entry of the home is the chief
evil against which the wording of the Fourth Amendment is directed.'
ib
&
D.
Tr
ls
ia
find the murder weapon during the search of the residence. (RB 79.) From
this absence of evidence, respondent argues that the search wanant was not
invalid even if it was "'overbroad in part[]."' (RB 79, quoting People v.
Tr
claiming that a search for a murder weapon, unlike appellant's computer, was
overbroad.
back-up handgun from the 1980's also failed to provide probable cause to
search her residence in 2009. (AOB 64-66; see, e.g., United States v. Grant
'fair probability' that the gun or ammunition from the homicide would be in
Grant's home nearly nine months after the murder.")
io
at
E.
ns
(9th Cir. 2012) 682 F.3rd 827, 835 ["In sum, the affidavit does not establish a
Respondent argues that the trial court properly concluded that that the
good faith exception to the exclusionary rule (United States v. Leon (1984)
ul
468 U.S. 897, 900 [1 04 S.Ct. 3405; 82 L.Ed.2d 677] (Leon) cured any flaws in
the search WatTant even "assuming that the affidavit lacked probable cause[.]"
ib
Tr
remedy" where a search warrant on its face violates the particularity clause of
the Fourth Amendment. (Leon, 468 U.S. at 923; accord United States v.
Washington (9th Cir. 1986) 797 F.2d 1461, 1473 ["executing officers could
&
Leon also explained that if a search wanant on its face lacks probable
cause the police may not reasonably rely on it. (Leon, 468 U.S. at 922-23
ls
["the officer will have no reasonable grounds for believing that the wanant
was properly issued" where the affidavit is "so lacking in indicia of probable
ia
Therefore, "[i]f a wanant lacks probable cause, evidence obtained during its
Tr
v. Ohio (1961) 367 U.S. 643, 655 [81 S. Ct. 1684; 6 L. Ed. 2d 1081], Weeks v.
United States (1914) 232 U.S. 383, 393 [34 S. Ct. 341; 58 L. Ed. 652].)
Respondent attempts to bypass this authority by arguing that Detective
Stearns did not mislead the magistrate such as by providing info1mation he
reasonably rely on. (RB 80, citing People v. Lim (2000) 85 Cal.App. 4th
1289, 1296.)
io
However, the cases discussed above have not found the good faith
ns
knew or should have known was false and, therefore, the officers could
at
People v. Lim, supra, also recognized that there are "four situations in which
reliance would not be established and suppression would remain an
ul
ib
abandoned his or her judicial role; (3) the affidavit was so lacking in indicia of
probable cause that it would be entirely unreasonable for an officer to believe
such cause existed; and (4) the wanant was so facially deficient that the
Tr
&
ls
F.
ia
1.
Tr
Under In re Winship (1970) 397 U.S. 358 [90S. Ct. 1068; 25 L. Ed. 2d
368], the prosecution must prove beyond a reasonable doubt every fact
necessary to constitute the crime. (ld. at p. 364.) Thus, "[i]t was not ... the
prove [s]he was guilty." (United States v. Reyes (9th Cir. 2009) 577 F.3d
1069, 1077; accord People v. Draper (1945) 69 Cal.App.2d 781, 785 [The
io
defendant "is not required to prove his innocence. The People must prove him
guilty."].)
at
"For example, a defendant who testifies 'I wasn't there!' need not
establish his absence from the crime scene or his presence elsewhere; at all
ul
times the burden remains with the government to prove beyond a reasonable
doubt that the defendant did, in fact, commit the alleged criminal act as
charged. [Citations]." (United Statesv. Sandoval-Gonzalez (9th Cir. 2011) 642
ib
Tr
told the police that Ruetten had a relationship with a LAPD officer that
"continued after Ruetten and Rasmussen were engaged." (6/4/09 Affidavit at
p. 19.) The prosecution's DNA expert (Thomas Fedor) conceded that DNA
&
ls
DNA may also be transferred from doing laundry. (Ibid.) Moreover, DNA
persists indefinitely once it has been deposited.
Ruetten' s history of intimate relations with appellant and that his relationship
ia
for why appellant's DNA could have been found at the Ruetten-Rasmussen
Tr
residence.
ns
defense's burden to prove [she] was innocent. It was the prosecutor's burden to
2.
underestimate of the likelihood that ... [someone else] would also match the
io
DNA left at the scene." (McDaniel v. Brown (2010) 558 U.S. 120, 129-30
ns
[130 S. Ct. 665; 175 L. Ed. 2d 582]; AOB 79-80.) Thus, it is not the case, as
at
the prosecution claimed at trial, that it was impossible for another person on
. earth to be the source of the DNA profiles as claimed by the prosecution.
ul
(AOB 76-79.)
Respondent asserts that the prosecution did not make this claim.
ib
However, DNA analyst Jennifer Francis stated that on earth alone she would
not expect to find a person other than appellant with the same profile as on the
bite mark swab. (7 RT 1104; AOB 78.) In closing, the prosecutor made the
Tr
(19 RT 3206.)
&
ls
center was filled with women, only one other woman could have contributed
that profile. (19 RT 3206-07.)
ia
Tr
-- espondent-attempmo-avoicl,-tnis -conclusionby
v. Brown, supra, 558 U.S. at 132 ["Even under [defense expert] Mueller's
odds, a rational jury could consider the DNA evidence to be powerful
evidence of guilt."].)
The question
presented was whether in assessing the sufficiency of the evidence for a rape
io
verdict under Jackson v. Virginia (1979) 443 U.S. 307 (Jackson), the lower
ns
court erred by "relying upon a report prepared by a DNA expert ["the Mueller
at
at 121.) The high court "granted ce1iiorari to consider two questions: the
ul
proper standard of review for a Jackson claim on federal habeas, and whether
such a claim may rely upon evidence outside the trial record that goes to the
reliability of trial evidence." (ld. at 127, citation omitted.)
ib
With regard to the latter question, the comi concluded that a federal
court reviewing a habeas petition could not rely on evidence such as the
Tr
Mueller Report because "it was not presented to any state court[.]" (ld. at p.
126.) The high court's comment about the post-verdict Mueller Rep01i must
be read in light of its exasperation with the Ninth Circuits failure to follow
&
ls
could have considered it, the Mueller Repmi provided no warrant for entirely
excluding the DNA
consideration."].)
ia
demonstrate "beyond a reasonable doubt that the error complained of did not
Tr
arguing that other motive evidence cured any error :fi.om admission of the
evidence of the illegal searches.
Prejudice is present here because the evidence obtained from the illegal
searches provided the foundation for the motive theory the prosecution
io
repeatedly urged the jury to adopt as the explanation for why appellant would
have killed Rasmussen. (AOB 73-75.) The other evidence showed that the
at
ul
(9 RT 1363-64.)
ib
upset after Ruetten broke off their relationship because he was marrying
Rasmussen.
Tr
81, 1384, 1388.) Moreover, Hargreaves said appellant did not try to reestablish her relationship with Ruetten after their break-up. (9 RT 1388-89.)
As to Ruetten, he also testified that appellant was upset and cried in
&
ls
ia
1572.)
called upon learning that she and a male friend were going to Hawaii when
Tr
ns
3.
appellant since before he got married. (Ibid.) Thereafter, they periodically got
together and had sex for about three years until appellant began her
relationship with her current husband. (9 RT 1499, 1369.) It is unreasonable
to believe that Ruetten would have reinitiated a relationship with appellant if
wife.
Jayme Weaver, a friend and fellow LAPD officer, worked with
io
ns
she had given him any reason to believe she had been motivated to kill his
(1 0 RT 1689-90.) She said that appellant mentioned Ruetten but not beyond
at
saying that he had been a college boyfriend and their relationship didn't work
out. (10 RT 1703-04.)
ul
ib
Tr
4.
&
ls
after the armed robbery of a pizza restaurant along with the shirt, hooded
ia
sweatshirt, and gloves identified as worn by the perpetrators and the wallet of
Tr
When interrogated, the defendant later made the preposterous claim that he
had been carjacked by the real perpetrators of the crime. (Id. at 1163.)
In this case, the police interviewed appellant more than 23 years after
Ruetten broke off their college-based relationship and 13 years after appellant
married another man and had a family. (4 CT 741-42.) Anyone would have
difficulty in remembering when questioned out of the blue about a relationship
she was having difficulty remembering long ago. (See, e.g., 7 CT 1426
["that's a million years ago"]; 7 CT 1427-29 [They had longed stopped dating
io
Ruetten before she got married]; 7 CT 1431 ["it's been a million years ago"];
ns
and conversations long past. Thus, as appellant repeatedly told the detectives,
at
ul
Rasmussen. (RB 83.) However, Ruetten testified that after breaking off their
relationship in June 1985, he had no contact of any kind with appellant until
Tr
5.
ib
&
ls
p. 1505.)
ia
(Mark Safarik) showed that there is no reason to believe that a burglar killed
Tr
Rasmussen when she intenupted a burglary. (RB 84.) However, the detectives
- - _ -__- __ -_-_-_
fue.
in 1
____-----------'-
evidence at the crime scene and the armed burglary committed in a virtually
35
Therefore, there was a basis for a reasonable juror, unburdened with illegally
seized motive evidence, to infer third-party culpability.
io
ns
reasonable inference that others may have been involved in the crime because
at
explained, the police found multiple latent fmgerprints near and even in
ul
ib
Tr
fii1gerprints in the residence and BMW because she was a police officer with
knowledge of fingerprint evidence. (RB 84.) If, as respondent suggests,
appellant wiped down surfaces to eliminate her fmgerprints, the police would
&
not have found the other fmgerprints in association with Rasmussen's blood in
the residence and car. Nor is there any evidence of glove marks left in blood
ls
Tr
ia
III.
THE TRIAL COURT ERRED BY DENYING APPELLANT'S
MOTION To TRAVERSE THE SEARCH WARRANTS AND To
A.
Introduction.
io
98 S.Ct. 2674], appellant asked the comi to hold a hearing so she could cross-
ns
examine Detective Stearns, because his affidavit for the June 4, 2009 search
at
wa1rant provided probable cause for all of three search warrants. (4 CT 73536; 2 RT C7-8; AOB 82.)
ul
ib
the February 24, 1986 homicide, he had only one contact with appellant; that
when they last met in the summer of 1985, appellant told Ruetten that their
Tr
meeting was her last opportunity to tell him how she felt about him; that
appellant thereafter did not initiate contact with or pmsue Ruetten in any way;
that appellant did not become associated with the residence to be searched
_until September 1995; that police knew that appellant had dated
current
&
husband since 1992; and that they had been married for about 13 years prior to
June 2009 and they had a young child together. (Ibid.). (4 CT 171-72.)
ls
The pa1iies agree that the issue is whether the under the totality of
ia
probable cause. (People v. Bradford (1997) 15 Cal. 4th 1229, 1297; People v.
Eubanks (2011) 53 Ca1.4th 110, 136; Illinois v. Gates (1983) 462 U.S. 213 [76
Tr
. proffer,--the cnnl.tted infonnation was ill1l11ateflal aild could not have affected
the probable cause determination.
(RB 86-88.)
respondent's position.
B.
crime from 1986 to 2009. The only other justification for the belated search
offered by Detective Stearns was the motive theory, i.e., his opinion that
io
because appellant was extremely upset and devastated when Ruetten became
ns
at
ul
ib
Tr
&
ls
ia
June 2009.
Tr
sought. [Citations.]" (People v. Cook (1978) 22 Ca1.3d 67, 64, fn. 6.)
-8--------------------------'--
io
A Franks hearing is appropriate when an affiant "omits material facts with the
ns
romantic relationship, or state that appellant lived in the same residence fi.om
at
affidavit misleading." (United States v. Colkley (4th Cir. 1990) 899 F.2d 297,
300; accord People v. Bradford, supra, 15 Cal. 4th at 1297.) By omitting facts
ul
ib
Tr
&
must be voided and any evidence seized pursuant to that wanant must be
suppressed." (People v. Bradford, supra, 15 Cal. 4th at 1297; Franks, 438
ls
U.S. at 155'-56.)
ia
C.
Tr
affidavit were overcome by the good faith exception to the exclusi.onary rule.
---
..
--
--
-----
However, "the good faith exception does not apply where law
enforcement is collectively at fault for an inaccurate record that results in an
unconstitutional search." (People v. Willis (2002) 28 Cal.4th 22, 49; AOB-
io
Respondent did not address this claim of e1ror. (RB 85-89.) By failing
at
IV.
ul
ib
Introduction.
Tr
A.
&
ls
ia
trial. (AOB 89-90; see, e.g. Garrity v. New Jersey (1967) 385 U.S. 493, 500
[87 S. Ct. 616; 17 L. Ed. 2d 562] (Garrity) [The "protection ofthe individual
Tr
ns
Cmnmissioner (1968) 392 U.S. 273,279 [88 S. Ct. 1913; 20 L. Ed. 2d 1082]
["The mandate of the great privilege against self-incrimination does not
io
stating that, when interviewed, she knew she could be disciplined for failing to
ns
at
declaration was hearsay. (RB 103.) Respondent also argues that appellant
ul
was not legally compelled to answer questions because the detectives were
conducting a criminal investigation and they did not tell appellant that she had
ib
Tr
regardless of whether she was told to answer. Therefore, she had automatic
immunity for use ofher statements against her in criminal proceedings. (AOB
94, 104; see, e.g., Lybarger v. City ofLos Angeles (1985) 40 Cal.3d 822, 827
&
ls
ia
B.
Hearsay
Objection
To
Tr
June 5, 2009, she "was aware at that time that ifi did not answer questions, I
coulrrbe-subj ect to discip-Ime-byih-etos-Ai1Eeles-P51rce Bepartment : Tnis- -
io
at
Court (2002) 101 Cal.App.4th 728, 743 ['"If a party fails to suppoli an
argument with the necessary citations to the record, that portion of the brief
ul
may be stricken and the argument deemed to have been waived. [Citation.]"];
California Rules ofCouli, Rule 8.204(a)(1)(C) [Each brief must cite "to the
. volume and page number of the record where the matter appears."].)
ib
Tr
210 Cal.App. 4th 174, 184 ["the People did not make a hearsay objection,
&
forfeiting the contention on appeal"].) "[W] aiver can be a two-edged sword and
in this case the second edge cuts against the People." (People v. Taylor (1993) 19
ls
C.
ia
invoke use immunity under Garrity when the interview took place solely in
the context of a criminal investigation and the interviewer did not inform the
Tr
ns
CT 843-847.)
Respondent argues that that the "relevant statute" of the Public Safety
Officers Procedural Bill of Rights (POBR) (Gov. Code, 3303) and Van
Winkle v. County of Ventura (2007) 158 Cal.App. 4th 492) "undermine
appellant's claim." (RB 92-93.)
As to the statute, respondent relies on the language that "[t]his section
io
at
ul
ib
concerned solely and directly with alleged criminal activities." (Gov. Code,
3303, subd. (i); AOB 102-03.) _
Tr
&
privilege
against
self-incrimination
ls
Thereafter,
ia
supra, 385 U.S. at 500; accord Spielbauer v. County ofSanta Clara (2009) 45
Tr
ns
administrative investigations.
io
at
ul
ib
Tr
"advis[ing] him, 'This is a criminal matter, it's not [an] administrative matter
so I can't order you to speak.' After waiving his Miranda rights (Miranda v.
Arizona (1966) 384 U.S. 436-[16 L. Ed. 2d 694, 86 S. Ct. 1602] (Miranda)),
&
Van Winlde admitted he took home one of the guns which had been brought to
the station for destruction." (Id. at 496.) The district attomey's office declined
ls
to prosecute Van Winlde but the sheriffs department "fired Van Winkle."
(Ibid.)
"
Van Winkle then sought injunctive relief claiming that "that the County
ia
had violated POBRA by: (1) obtaining statements from him during the
criminal investigation without first giving him the advisements required by
that Act( 3303); and (2) by attempting to use statements he made during the
Tr
ns
certain protections for law enforcement officers who are the subjects of
the County from taking any disciplinary action against him or from using
with alleged criminal activities."' (Id. at p. 497, quoting Gov. Code, 3303,
subd. (i).)
io
ul
D.
at
Long before the POBR, line of cases beginning with Christal v. Police
ib
564 (Christal) shows that appellant could be fired for failing to answer
Tr
&
federal courts continue to cite it as a correct statement of the law. (AOB 9798.)
ls
Respondent oddly argues that Christal conflicts with the Garrity line of
cases because they held that the police could not coerce a public employee to
waive her Fifth Amendment privilege against self-incrimination. (RB 100.)
ia
Tr
knowledge about a criminal matter, the officer must answer even if doing so
------_
ns
the POBRA do not apply to "'an investigation concerned solely and directly
io
ns
822, stating that an officer "had neither a constitutional nor a statutory right to
at
ul
ib
(ld. at 827.)
Tr
the role of a law enforcement officer" and, therefore, a deputy sheriff could be
&
ls
Cal. App. 3d 904, 915; Fichera v. State Personnel Board (1963) 217
Cal.App.2d 613, 620-21; Riverside County Sheriff's Dep't v. Zigman (2008)
111
169 Cal. App. 4th 763, 768; Huppert v. City ofPittsburg (9 Cir. 2009) 574
ia
F .3rd 696, 707 [Christal "atiiculated the duties of a police officer within the
Tr
io
E.
ns
at
immunity because the federal First Circuit has interpreted the scope of use
ul
ib
Tr
mandating this. (RB 94-95, citing United States v. Palmquist (1st Cir. 2013)
&
law." (Evid. Code, 160.) As explained above in Section D., the courts have
construed section 3303 to require answers or face administrative sanction,
ls
including job loss. (See also AOB 98-1 00.) Before the POBR, decisional law
since Christal imposed the same duty. (Christal, 33 Cal.App.2d at p. 568 [The
officers "had a constitutional right to refuse to answer under the
ia
police officers in the face of their clear violation of the duty imposed upon
Tr
them."].)
- - - - - - - . _---.-----___
must tell
fisJ-p.f2int,
Appellant does not dispute that in some cases the public employee was
asked to waive his Fifth Amendment rights. (See, e.g., Gardner, supra, 392
U.S. 273; Unifonned Sanitation Men v. C01nmissioner of Sanitation (1968)
392 U.S. 280 [88 S. Ct. 1917; 20 L. Ed. 2d 1089].)
ns
However, the high court has never imposed that as a requirement for
io
at
must answer questions. (AOB 106-107; Sher v. US. Dept. of Veterans Affairs
(1st Cir. 2007) 488 F.3d 489, 502, fu. 11 ["Although Garrity itself dealt with a
ul
ib
777 F.2d 1492, 1496 ["In essence, the privilege against self-incrimination
affords a form of use immunity which, absent waiver, automatically attaches
Tr
McCorkle (5th Cir. 1982) 680 F. 2d 1070, 1075 ["An employee who is
compelled to answer questions (but who is not compelled to waive immunity)
&
ls
ia
Pabnquist, 712 F.3d 640. (RB 94-95.) There, the govermnent investigated
defendant Palmquist for multiple counts of criminal fiaud in obtaining benefits
Tr
io
ns
have been made to me and no pressure or coercion of any kind has been used
at
ul
then answered questions. (Ibid.) Given these circumstances, the First Circuit
found that Palmquist was not entitled to use immunity under Garrity. (Id. at p.
ib
645.)
Tr
&
ls
Tr
ia
4. The Advisement in pe1iinent pa1i stated that he had the right ''to remain
silep.t if your answers may tend to incriminate you" but that if he answered
questions, "' [a]nything you say may be used as evidence in both an
administrative proceeding or any future criminal proceeding involving you."'
(Id. at p. 644.) In addition, '"If you refuse to answer the questions posed to
you on the grounds that the answers may tend to incriminate you, you cmmot
your silence c-mrbeo-considered in an administrative proceeding for any evidentiary value that is
wananted by the facts surrounding your case."' (Ibid.)
p. 645, quoting United States v. Indorato (1st Cir. 1980) 628 F.2d 711, 716.)
However, not "all" cases in fact so hold. Respondent otherwise
recognizes (RB 95) that other cases hold that the defendant is entitled to use
loss of job and this belief ... [was] objectively reasonable." (United States v.
Frederick (D.C. Cir. 1988) 842 F.2d 382, 295; accord United States v.
io
applies if a
at
ul
(McKinley v. City of Mansfield (6th Cir. 2005) 404 F.3d 418, 436, citing
ib
Tr
Here, appellant's declaration shows that she "was aware at that time
that if I did not answer questions, I could be subject to discipline by the Los
Angeles Police Department. ... This discipline would consist of a wide range
&
ls
3300) and Christal line of case, as well as the fact that the LAPD thereafter
commenced termination proceedings against her. (5 CT 842-47.)
Accordingly, appellant was entitled to automatic use immunity for her
ia
Tr
ns
F.
io
ns
Respondent next argues that the trial court properly concluded that the
at
ul
ib
G.
Tr
&
Respondent notes that the detectives said that they were investigating an old
crin1inal case, that appellant complained that she should not be a suspect but
ls
never tried to leave the room, and that appellant did not accuse the detectives
of violating the advisement rules for administrative proceedings.
(Ibid.)
Respondent emphasizes that "at the end of the interview" (RB 97) appellant
ia
said "I know how this stuff works .... " (7 CT 1503.)
However, the interview transcript does not show waiver of use
Tr
immunity provided by her right to due process and her Fifth Amendment
------.
..
ns
Moreover, appellant made the statement ("I know how this stuff
io
at
The detectives began the interview by stating that they had "been
ul
assigned a case" and "there's some notes ... as far as your name being
mentioned." (7 CT 1422.) They said the case involved John Ruetten and
asked appellant whether she knew him. (7 CT 1422-23.) Then they said that
ib
the case related to Ruetten's wife and asked whether appellant lmew her. (7
CT 1423-24.) They had called her into an interview room at the jail because
Tr
they didn't want "the rumor mill or gossip" to start from things overheard in
the squad room. (7 CT 1425.)
&
because "we're trying to get some background. We're trying to figure this out.
I mean this is from a long time ago." (7 CT 1462.) They were "getting into
ls
some pretty personal stuff' so they "didn't want to take the risk" of
interviewing appellant in an interview room where someone "sees on a
ia
been answering questions with the understanding that she was assisting the
Tr
bive-you-som-e-b-a-c-kgromrd-of--:---:---:--how-I-Imow-him-[Ru-ettenj:'-'j-:]-A-ppeHan-t-------------,--
stmied to hesitate when she became aware that they considered her a suspect.
5
(See, e.g. 7 CT 1499 [If"you're saying, hey, I'm a suspect, well, now, I got a
problem with you, you know, now, you're accusing me of this? Is that what.
you're saying?"]; 7 CT 1501 ["Well, now, you're staring to make me
Appellant then stated, "I know how this stuff works." (7 CT 15 01.)
When the detectives said "we may have some DNA at the location", appellant
io
responded, "I guess I'm going too have to contact somebody", repeated, "I
know how this stuff works," and then stopped answering questions and left the
at
room. (7 CT 1503-04.)
The sequence of events shows that appellant understood that she was
ul
required to provide background information. The fact that she also knew to
assert her right to remain silent and seek counsel when the detectives
ib
effectively accused her of committing the murder does not eliminate her right
to use immunity for the prior answers at pain of adverse employment action.
Tr
H.
&
in response to Argument II., in essence the DNA and motive evidence. (RB
104.)
ls
Appellant has addressed these issues. (See Section xxx, above; AOB
73-81.)
ia
Tr
ns
uncomfortable."].)
-several-excerpts
2999-3002.) On this basis, the prosecutor asserted that appellant showed
consciousness of guilt and false evasions about her putative obsession with
Ruetten. (Ibid.)
"There is no reason why we should treat this evidence as any less
io
ns
"crucial" than the prosecutor-- and so presumably the jury -- treated it."
at
v.
Introduction.
ib
A.
ul
Tr
(Frye).)
&
Cal.3d 24 (Kelly) and Frye v. United States (D.C. Cir. 1923) 293 F. 1013
In pertinent part, SERI (the Serological Research Institute in
ls
ia
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because the MiniFiler testing at issue is just a variant of a standard DNA test
courts. (RB 104, 108, 114.) As to a Prong 3 hearing, respondent contends that
_ _ _ _ _ _ __
appellant forfeited this claim by failing to obtain a ruling on that issue. (RB
117.) Appellant addresses these issues in turn.
B.
io
(12 RT 1922.) The offer of proof from the defense expert was that SERI
performed LCN testing using MiniFiler. (6 CT 1105.) The prosecution did
at
ul
C.
ib
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&
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one pmiy. (People v. Rist (1976) 16 Cal. 3d 211, 219 ["To exercise the power
Tr
ofjudicial discretion all the material facts in evidence must be both known and
5. Respondent suggests that appellant's claim is that the trial comi erred by
not doin.g aclditionaJ resea.rch in the scie11tific-literatute:
Appellant's claim is that the court ened by refusing to receive evidence
offered by the defense expert.
55
ns
DNA samples at issue in this case, that the Study .failed to resolve five issues,
including the lack of general scientific acceptance for low copy DNA testing
io
as conducted by SERI in this case, and also why a prong three hearing was
ns
differed from other DNA testing, particularly when applied to LCN mixed
at
Respondent offers no valid reason for the trial court's failure to hear
from the defense expert. Instead, respondent offers as an attachment to its
ul
brief a "technical note" from the Journal of Forensic Sciences. (RB 111,
discussing Mulero, et al., Development and Validation of the AmpFister
ib
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additional study is "con-oboration" that the trial court con-ectly concluded that
I
&
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The Mulero study itself recognized that "low level DNA analysis. is
highly susceptible to stochastic effects and can result in allele drop-outs, allele
Tr
---------
io
at
ul
that "[i]t is now well accepted in the scientific community that STR tests
become unreliable when used to type samples containing too little DNA."
ib
In Some Cases (2012) 36 Champion 12, 14, emphasis added, citing Budowle,
et al., supra.) Respondent notes that Laurence Mueller was one of three co-
Tr
authors of that article and cites cases criticizing Dr. Mueller's "credibility and
qualifications." (RB 116.)
&
ls
ia
DNA samples made "by sonicating" otherwise nonnal DNA samples provided
Tr
ns
ul
at
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ns
ib
Tr
&
6 CT 1105.
Fourth, when examining mixed samples, the Mulero study used 1 ng
(nanogram) of DNA. (I d. at p. 842 ["Mixtures of two DNA samples were
ls
exan1ined at various ratios (1:1, 1:3, 1;7, 1:10, and 1:15) while holding the
total amount of input DNA constant at lng. "].) LCN DNA testing addresses
ia
. samples where the amount of DNA is less than 200 picograms. (United States
Tr
usually associated with a low amount of DNA (less than200 pg). "'],citation
omitted.) "There are 1,000 12icograms in one nanog=ra=n=1'---"__,__(U=-n'-'-z'-'-te.::.. :d'-'-=S-'-'ta-'-'-t-'-'es'--v._ _ _ _ _ _
Symposium
on
Human
Identification
(200 1),
available
at
io
ns
alleles, increased production of stutter products, and allele drop in can occur."
at
ul
above, respondent ens by asserting that LCN testing was not conducted in this
case.
ib
Fifth, when testing mixed samples, the Mulero study found some
instances where stutter from the major contributor of DNA to the mixture
would overlap and mask a minor contributor that was actually present in the
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sample. (Mulero, et al., supra, at p. 848 ["Most of the alleles at each locus for
the two individuals are
different and thus do not overlap; however, some
.
.
alleles of the minqr contributor do reside at stutter positions of alleles from the
&
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sample, with partial results with ratios greater than 1:10, i.e., when the amount
of the DNA from the major contributor was 10 times greater than the minor
ia
contributor. (Ibid.)
In sum, whatever the merits of the Mulero study within its limits, it
does not negate the existence of a substantial dispute as to the validity and
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D.
prong analysis is not made gratuitous simply because the new teclmique or
procedure is part of an overall process. Kelly may apply not only to the whole,
io
but also the part of the process that is now perfom1ed with a new teclmique."
ns
Appellant explained in her opening brief (AOB 125) that "Kelly first
(People v. Henderson (2003) 107 Cal.App.4th 769, 780, citing, inter alia,
at
People v. Leahy (1994) 8 Cal.4th 587, 605 ["Kelly/Frye only applies to that
limited class of .expert testimony which is based, in whole or part, on a
technique, process, or themy which is new to science and, even more so, the
ul
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Tr
&
validation studies would have been required and then would be no conflict
within the scientific literature as to the validity of LCN testing of mixed
samples using MiniFiler. In her opening brief, appellant detailed the.
ls
ia
PCR/STR test kits because MiniFiler was the "world's first" DNA test kit to
Tr
E.
County, 2013) 39 Misc.3d 482 [963 N.Y.S.2d 517] ("Garcia") shows that a
Kelly-Frye hearing was unnecessary. (RB 114.) Respondent fails to note
io
First, Garcia and the case it relied on were decision by the county-level
at
ul
405 [898 N.Y.S.2d 408] .) Those cases are the equivalent to a decision by the
appellate division of a California Superior Comi that do not have precedential
ib
weight outside trial comis in their respective county. (People v. Holley (1993)
157 Misc.2d 402, 404 [596 N.Y.S.2d 1016] [A New York court is bound by
rules of precedent to follow state level Appellate Division rather than county
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Supreme Court cases]; People v. Corners (1985) 176 CA3 139, 146 ["Of
course, a decision of the Appellate Department of the San Francisco Superior
Comi is not binding upon the Butte County Superior Court nor upon this
&
ls
ia
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ns
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Kelly, supra, 17 Ca1.3d atp. 37.) By refusing to hear fi:om the defense expert,
ns
the trial court in this case erred in fmding general scientific acceptance based
at
Third, Garcia stated that the analyst from theNew York City Office of
ul
(Ibid.)
Therefore, it is
ib
impossible to conclude that in this case and Garcia we are comparing apples
to apples. Even assuming some precedential weight for Garcia, it does not
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resolve the present issues unless the same "procedures and interpretive
methods" of DNA testing were used. (United States McCluskey (D.N.M.
2013) 2013 U.S. Dist. LEXIS 88728 at p. *154.)
&
Fourth, the "OCME's own validation studies ofLCN DNA testing were
examined and certified by the New York State Cmmnission On Forensic
ls
ia
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omitted.)
SER:I was
.---------c-
mixed samples conducted by SERI has been similarly audited and certified as
in Garcia.
Fifth, respondent notes (RB 114) that Garcia stated that results ofLCN
ul
at
F.
io
used in the cases from other countries or New York trial to show that the
ib
Tr
(1993) 509 U.S. 579 [113 S. Ct. 2786; 125 L. Ed. 2d 469] and Federal Rule of
Evidence 702.
&
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defendant argued that LCN DNA testing was '"not considered generally
reliable even in the forensic science community.'" (!d. at p. 144.) McCluskey
agreed:
ia
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applied to the facts in issue.' Daubert, 509 U.S. at 592-93. The Court
ns
testing had been admitted in New York state trials over 125 times and in
McCluskey noted that the New York cases relied on by respondent had
admitted such evidence. However, "[m]ost laboratories in the U.S. do not
perform LCN testing" and "the New York City Office of the Chief Medical
ns
Examiner (NY OCME) is the only government facility cunently using LCN
perform LCN testing." (I d. at p. *146-47.) Thus, McCluskey shows that the
io
OC:ME is the outlier rather than the norm for testing in criminal prosecutions.
at
conflating the concepts of"peak height imbalance of some alleles" and "the
threshold for relative fluorescent units or RFUs." (RB 115.) However, the
ul
ib
both parents. If not, the results may reflect stochastic effects (McCluskey,
supra, 2013 U.S. Dist. LEXIS 88728 at pp. *162-63 ["Davis testified that to
Tr
determine whether she obtained a reliable profile from 1B23B, she looked for
peak height balance between the 'called alleles' (those represented by peaks
above the 100 RFU threshold). Davis testified that, if the peak heights at
&
heterozygous loci are within a70% ratio, thatshows her that she has 'what we
would call a nom1al sample, or just something that's not showing stochastic
ls
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DNA profiles, the Combined DNA Index System or CODIS, and therefore,
Tr
On respondent's
System). These studies and the acceptance by CODIS also tend to support a
finding of general acceptance, the fomih factor listed by Daubert."
io
(McCluskey, supra, 2013 U.S. Dist. LEXIS 88728 at pp. *95-96, record
ns
citations omitted.)
at
ul
ib
42(3) Croatian Med. J. 229, 229-30 (2001). LCN testing carries a greater
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Typing 331 (20 10). 'Trying to generate a reliable STR profile with only a few
cells from a biological sample is similar to looking for an object in the mud or
&
trying to decipher the image in a fuzzy photograph.' Jd." (Id. at pp. 145-46,
record citations omitted.)
ls
A "number ofleading authorities in the field take the position that LCN
testing is not reliable." (Id. at pp. 156-57, citing Bruce Budowle, Low Copy
ia
low-copy-
Tr
usl:ilgQ1fferent-proceclures -ana -
methods than the NMDPS Lab; these authorities therefore do not demonstrate
that the NMDPS Lab's procedures and methods yield reliable results." (ld. at
p. 157, emphasis added.)
The same criticism applies to respondent's reliance on studies from
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other laboratories without demonstrating that they used the same procedures
samples tested using MiniFiler in this case. (12 RT 1944 [From the broken
at
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ib
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For all these reasons, respondent failed to show that Garcia case it
relied should be followed where McCluskey shows a lack of general scientific
acceptance for the testing of mixed, LCN DNA as found in the fingernail
Appellant Did Not Forfeit Her Claiin That The Trial Court
Erred By Failing To Hold A Prong 3 Hearing.
ls
G.
&
Respondent contends that appellant forfeited her claim that the court
ia
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asse1is that appellant forfeited her claim by failing to secure a ruling from the
However, the record shows that the trial comi denied appellant's
6-6
request for a prong three hearing. It concluded that a Prong 3 hearing was
unnecessary because People v. Hill (200 1) 89 Cal.App.4th 48 (Hill) affirmed
holding an Evidence Code section 402 hearing before the expert testified in
io
at
Moreover, "[s]ince the third prong of the Kelly test requires case
specific proof that correct procedures were employed, it crumot be satisfied by
ul
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H.
Tr
&
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appellant's state and federal constitutional rights to due process oflaw and to a
fair trial. (AOB 127-29; Cal. Const., Art. I, 7, subd. (a), 15; U.S. Const.,
ia
5th & 14th Amends.; see, e.g. Bruton v. United States (1968) 391 U.S. 123,
131 fn6 [88 S.Ct. 1620; 20 L.Ed.2d 406] ["An important element of a fair trial
is that a jury consider only relevant and competent evidence bearing on the
Tr
ns
lieu of a Prong 3 hearing. (J RT L4, 6.) The trial court erred in relying on
nor Venegas addressed a federal due process claim. (People v. Kelly, supra,
io
ns
admission ofumeliable DNA evidence. (RB 117 -18.) However, neither Kelly
at
189, 209 ["It is well settled that a decision is not authority for an issue not
considered in the court's opinion."].)
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&
section 11 03(b )) violated his federal constitutional rights to due process and to
a fair trial. (People v. Fuiava, supra, 53 Cal.4th at p. 695.) The California
ls
Supreme Comi rejected this claim because the statute was designed to
"create[] a level playing field between prosecutors and defense attorneys, and
ensure[] that juries are given a complete picture of both the defendant's and
ia
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identification was made while it was dark, he was the only black man present,
and he was standing outside the victim's residence next to a police officer.
(Perry, supra, 181 L.Ed.2d at pp. 703-04, 705.)
io
the rights and opportunities generally designed for that purpose, notably, the
ns
Perry rejected this due process claim because, under its precedent
at
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ib
Tr
&
common sense and good judgment in evaluating the weight of the evidence
presented to them." (People v. Venegas, supra, 18 Cal.4th at p. 80, citing
ls
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violated appellant's state and federal due process rights because it did not
o9
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Lab Directors and that he used both positive and negative controls, i.e., test
ns
samples with known and no DNA. (RB 118-19, citing 12 RT 1919, 1921.)
at
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and ce1iified" for the type of testing conducted by SERI in this case. (Id. at p.
487.) Moreover, the defense expe1i had observed the testing at SERI (12 RT
1922) and identified multiple factual issues that could not be resolved by
ib
hearing only from a witness for one party in the case. (AOB 110-114.)
As to the use of controls, Fedor testified that a "positive control is a
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sample that we test every time we test any other sample; that we know its
results. We've tested it over and over again and we expect to see the same
results in each current test. Our negative control is a sample that contains no
&
D.N.A. except that it does contain the reagents that we use to prepare D.N.A.
from our samples. So essentially, it has nothing in it and so should give us
ls
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level, mixed DNA samples with DNA not detectable with other DNA test
methods. (Ibid.)
Alternatively, respondent argues that the DNA results fi:om the
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handling of the bite mark evidence. (AOB 131; see, e.g., 18 RT 3073-75,
3097-3114, 3117-3124.) The record shows that after two days of searching
multiple fieezers in December 2004, coroner's personnel found a torn
655, 683-84, 689, 699-700; 6 RT 845-46, 849, 856-57, 870-71, 887-88, 894.)
Therefore, there was reason to question both the integrity and the chain of
io
at
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ib
see, e.g., 19 RT 3208 [The fmgernail tested by Fedor using MiniFiler "was
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never at the coroner's office. That fingernail was always in the custody of the
LAPD."].)
&
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xxx, above.)
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VI.
A.
ns
Introduction.
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at
leading to the garage and a drawer in the living room had been pulled out and
its contents spilled on the floor. (4 RT 310.) The prosecution conceded that
ul
Detective Lyle Mayer, the lead investigator in 1986, concluded that the
Rasmussen was killed when she "surprised some burglars." (4 RT 311.)
This conclusion was supported by appellant's offer of proof pursuant to
ib
Evidence Code section 1101 that on April 10, 1986 an armed residential
burgla1y with the same modus operandi in a unit at a nearby condominium
Tr
&
present this evidence so that the jmy, like the detective, could draw an
inference that the Rasmussen homicide occurred during an interrupted
ls
burglaty rather than as an act ofjealousy by appellant after which the burgla1y
was "staged." (See, e.g. 4 RT 311, 592; 15 RT 1474-75, 2495-97.)
Respondent agrees that "[ o]ne way for a patiy to offer admissible
ia
subdivision (b)." (RB 127, citing People v. Abilez (2007) 41 Cal. 4th 472, 502-
Tr
03.)
excluding the evidence because "[t]here was no link between the perpetrators
(RB 122.)
On
were similar because the perpetrators of both crimes had two ears. (RB 128,
citing People v. Haston (1968) 69 Cal.2d 233, 246, fn. 15.)
io
at
B.
ns
claims that appellant offered evidence equivalent to saying that the two crin1es
ul
ib
F.3d 1348, 1353, fn. 3.) Pursuant to Evidence Code section 1101(b), "'[w]hen
... a primary issue of fact is whether or not defendant rather than some other
person was the perpetrator of a crime charged, evidence of other crimes is
Tr
&
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ia
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believe that the suspects in the April 1Ot11 burglary "committed the
-burglary/m
the inference."].)
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C.
ns
111
The relevant cases confirm that the evidence of the April1 0 burglary
at
ul
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Respondent contends that People v. Lynch, supra, differs from this case
because the victim ofthe April1 oth burglary did not suffer the same injuries as
Tr
&
uncharged incident, a trespass at the residence of another woman, she was not
injured. (Jd. at pp. 706.)
ls
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material fact other than defendant1s criminal disposition, i.e., identity, because
the common features of that incident and the charged crimes were 'sufficiently
distinctive so as to support the inference that the san1e person col11111itted both
111
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acts."' (ld. at p. 757.) Accordingly, the fact that the victim of the April1 0
the question of the common modus operandi of the evidence of the Apri11 Oth
burglary. (Ibid.)
io
ns
view, Ramirez is relevant only to the issue of intent and therefore, irrelevant to
evidence of the April1 Oth burglary. The trial court noted that the burglars on
111
but no
at
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jewelry. (11 RT 1888-89.) From this, the trial court concluded that the two
incidents were too dissimilar for jury consideration. (Ibid.)
ib
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unexpectedly opened the garage door and fled. The jury reasonably could have
concluded that defendant abandoned his plan to steal in order to flee and avoid
apprehension." (People v. Ramirez, supra, 39. Cal. 4th at p. 464.) The same is
&
true here. (AOB 144-45.) Therefore, Ramirez is relevant to show that the
circumstances of the burglary on April 10111 support an inference that the
ls
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perpetrator of the April 10111 burglary did not fire the gun, "and let the victiln
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go." (RB 128, respondent's emphasis.) Appellant agrees that the perpetrator
did not fire the gun. Howevei, he did not simply "let the victim go."
The detectives htvestigatingth:e Aptil10tli burglary reported: -"Oi1e- of
the suspects had a possible .38 caliber revolver during the burglary. The
75
suspect actually pointed the gun at victim Rivalli and very possibly would
have shot her had she not turned and ran away from the location." (11/6/12
Suppl. CT 93.) They quoted Rivalli as stating that when the man came down
revolver. He pointed it directly at me. I was scared he was going to shoot me.
Suppl. CT 95.)
io
I ducked down, turned around, and ran away from the complex." (11/6/12
Thus, the record shows that Rivalli fortunately escaped without injury
D.
at
because she was by the front door and could duck and run away.
Respondent's Cases Differ From This One.
ul
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differed.
Tr
754-56.)
"Defendant's offer of proof was that Crawford, a police officer with the
Siena Madre Police Department, would testifY that at 11 p.m. on June 22,
&
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was in the area in the late evening of June 22 in order to meet someone.
Vasquez was on parole from a previous murder conviction, which the
ia
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proof was insufficient to justifY admission of this testimony .... The mere
her disappearance was not enough to connect him to Robin's kidnapping and
T6
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the stairs, "He had a gun in his right hand. It looked like a .38 caliber
criminal history had been in the area of Rasmussen's residence after the
io
circumstances as in this case. (AOB 136-37.) On this bases, they closed the
ns
investigation and concluded that the Rasmussen homicide was the result of an
at
intenupted burglary. If the detectives drew this inference the jury should have
been permitted to do so as well.
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April1 Oth burglaries. In Edwards, the defendant was charged with the murder
ofMarjorie Deeble with special circumstances ofburglary-murder and torturemurder. (!d. at p. 669; Penal Code, 190.2, subds. (a)(17) & (18).) The
Tr
police found Deeble dead with her hands tied behind her back, her head in a
noose made from a belt and tied to the top drawer handle of a dresser, with
signs of anal and vaginal assault. (!d. at pp. 670-71.)
&
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article about a bondage murder. The trial court sustained the prosecutor's
objection, stating that if the evidence was offered to show that Steven Deeble
could have been the perpetrator, 'you don't cross the threshold,' the article on
Tr
bondage was not 'even remotely similar to the evidence in this case,' and the
729:)
evidence. "Even assuming Steven Deeble ever saw the flier, defendant failed
to demonstrate any link between the article and Deeble's murder, or that the
evidence could raise a reasonable doubt as to defendant's guilt. Hence the trial
Appellant agrees. However, appellant has not offered evidence that the
burglars on April I 0111 had just been reading literature about burglary. The link
io
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court did not abuse its discretion in excluding the evidence." (Id. at p. 729.)
at
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ib
E.
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The denial of the opportunity to present the evidence of the Aprill Oth
111
. burglary also violated appellant's due process (U.S. Canst., 14 Amend) and
Sixth Amendment right to present defense evidence and witnesses to impeach
&
and establish reasonable doubt of the prosecution's theory of the case. (AOB
148-49; see, e.g. Crane v. Kentucky (1986) 476 U.S. 683, 690-91 [106 S.Ct.
2142; 90 L.Ed.2d 636].)
ls
that any eiTor violated only state law because appellant's offer of proof
ia
"fail[ ed] to connect the third party to the crime. (RB 131.) For the reasons
explained above, this argument fails because the proffered evidence was
Tr
__
111
burglary violated
------------------------'78----------------------
F.
Reversal Is Required.
Baltither (9th Cir. 2005) 424 F.3d 913, 922; accord Conde v. Henry (9th Cir.
2000) 198 F.3d 734, 741.) Even ifham1less error analysis applies under state
io
or federal law, reversal is required. Errors "at trial that deprive a litig('!.nt of the
ns
opportunity to present his version of the case ... are ... ordinarily reversible."
at
(R. Traynor, "The Riddle of Harmless Error" (1970) at p. 68; AOB 149)
As to the latter point, respondent claims that any error was hannless
ul
under a state or federal standard for the reasons discussed in Argument II.
Appellant replied to that claim above in Section xxx.
Here, appellant
ib
emphasizes that a reasonable juror would have drawn the same inference of a
common perpetrator(s) of the two burglaries as the investigating detectives in
1986. Accordingly, the error was not harmless under state or federal
Tr
(AOB 149-50.)
VII.
ls
&
ia
A.
Respondent Errs By Conflating The Standard For CrossExamination With The Standard For Admission Of ThirdParty Culpability Evidence.
Tr
the prosecution's expert on crime scene analysis (Mark Safarik) about the
Apri11 Oth burglary to impeach his opinion that the Rasmussen homicide had
been "staged" to look burglary-related. (AOB 150.)
79
Respondent contends that the trial court properly denied crossexamination about the April I oth burglary because it was inadmissible thirdparty culpability evidence. (RB 133.) Respondent has conflated the issues
io
ns
at
(People v. Montiel (1993) 5 Cal. 4th 877, 923-924.) 'It is common practice to
ul
ib
(People v.
Therefore, "an adverse party may bring to the attention ofthe jury that
Tr
an expert did not know or consider information relevant to the issue on which
the expert has offered an opinion." (People v. Doolin (2009) 45 Cal. 4th 390,
434.) This "includes examination aimed at determining whether the expert
I
&
sufficiently took into account matters arguably inconsistent with the expert's
ls
The prior discussion shows that the evidence of the April I Oth burglary
meets these standards. (See Section VI., above; AOB 140-47.) Accordingly,
the trial court erred.
Tr
ia
B.
Alternatively, respondent argues (RB 132) that the trial court properly
80----------------------
the analogous burglary. (AOB 133-36.) Nor was it confusing of the issues or
of marginal relevance because the foundation for the proposed cross-
io
ns
the trial court barred the defense from cross-examination of any witness about
at
ul
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&
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than experts.
In People v. Ayala, supra, 23 Cal. 4th 225, a witness ("Lewis") in the
ns
io
Moreover, the jury already knew that Lewis had committed two murders and
at
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ib
478-80.)
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with the murder victin1 (Angelica Delgado) before she was killed. (Id. at pp.
Defendant sought to impeach Castaneda with evidence that,
sometime in early June 1995 before the June 16, 1995, Castandeamay have
&
argued with Angelica after having sex with her. (Id. at p. 495.) Defendant
argued that this was probative of third-party culpability. (Id. at pp. 495-96.)
ls
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Castaneda and Angelica provided only slight suppmi for a finding that he had
a motive for murder. (Ibid.) Moreover, the trial court had permitted defense
Tr
nutives-io-cu-op-erate-with-the-pu-li-ce;-and-his-detay-in-rep-ort-ing-t-h-at-he-had------------'-
Here, the evidence of the April 1Oth burglary was neither speculative
nor cumulative of other efforts to impeach Safarik. Accordingly, People v.
C.
Respondent contends that any enor was hannless under state or federal
argument.
io
ns
at
standard.
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the testimony of the witness on material points, the extent of crossexamination otherwise permitted, and, of course, the overall strength of the
prosecution's case." (Delaware v. VanArsdall (1986) 475 U.S. 673,684 [106
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Each of these factors shows prejudicial enor in this case. (AOB 156157.) Appellant emphasizes that precluding competent cross-examination of a
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"central, indeed crucial" witness to the prosecution's case is not harmless enor.
(Olden v. Kentucky (1988) 488 U.S. 227,232-33 [109 S. Ct. 480; 102 L. Ed.
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impressive to a jury. The same testimony from another source can have less
effect." (Ake v. Oklahoma (1985) 470 U.S. 68, 81, fn. 7 [105 S.Ct. 1087; 84
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83
VIII.
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133.)
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renders a criminal defense "far less persuasive than it might have been," the
resulting conviction violates due process and the defendant's right to a fair
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trial. (Chambers v. Mississippi (1973) 410 U.S. 284, 294 [35 L. Ed. 2d 297,
93 S. Ct. 1038].) The foregoing discussion shows that appellant was so
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CONCLUSION
Dated: December 6, 2013
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Respectfully submitted,
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By: _ _ _ _ _ _ _ _ __
Donald R. Tickle
Counsel for Defendant-Appellant
STEPHANIE LAZARUS
program, that the 'length of this reply brief, including footnotes but not
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certify, based upon the word-count feature of the "Word" word processing
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Donald R. Tickle
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85
I declare that I am over the age of 18, not a party to this action and my
business address is P.O. Box 400, Volcano, California, 95689-0400. On the
date shown below, I served the within APPELLANT'S REPLY BRIEF to the
following parties hereinafter named by:
Placing a true copy thereof, enclosed in a sealed envelope with postage
thereon fully prepaid, in the United States mail at Volcano, California,
addressed as follows:
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Stacy Wiese
Deputy District Attorney
Office of the District Attorney
21Q West Temple St., Ste. 18-206
Angeles, CA 900 12
::
I:.declare under penalty of perjury the foregoing is true and correct. Executed
this 6th day of December of 2013 at Volcano, California.
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Mark E. Overland
Attorney at Law
100 Wilshire Blvd., Ste. 950
Monica, CA 90401
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PROOF OF SERVICE
(People v. Stephanie Lazarus, B241172)
D.onald R. Tickle