Filed 7/13/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

STEPHANIE ILENE LAZARUS,

Defendant and Appellant.

 B241172

 (Los Angeles County

 Super. Ct. No. BA357423)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Robert J. Perry, Judge. Affirmed.

Donald R. Tickle, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Linda C. 

Johnson and Michael Katz, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

Appellant Stephanie Ilene Lazarus, a 25-year veteran of the Los Angeles 

Police Department (LAPD), was charged and convicted of first degree murder in 

the shooting death of Sheri Rasmussen, the wife of appellant’s former lover, John 

Ruetten. The 1986 crime was not solved until 2009, when a DNA profile obtained 

from a bite mark on Rasmussen’s arm was matched to appellant. At trial, the 

prosecution established that appellant had been in love with Ruetten and was

emotionally devastated when she learned of his and Rasmussen’s 1985 

engagement. She went to Ruetten in tears, begging him to reconsider, and later 

confronted Rasmussen at work. The bullets used to kill Rasmussen were of the 

type then used by LAPD officers, and were discharged from a gun similar to one 

owned by appellant, which she declared stolen two weeks after the shooting. The 

jury found appellant guilty, and she was sentenced to 27 years to life.

Appellant raises the following contentions on appeal: (1) the pre-accusation 

delay violated her due process rights; (2) the trial court erred in denying a defense

motion to quash search warrants used to search appellant’s home and computers; 

(3) the trial court erred in denying a defense motion to traverse the search warrants; 

(4) the trial court erred in admitting a tape of appellant’s pre-arrest interview by 

LAPD detectives; (5) the trial court erred in failing to hold a Kelly hearing before 

admitting evidence of partial DNA profiles from material found on the victim’s 

fingernails developed through use of a “MiniFiler” DNA test kit;

1

and (6) the trial 

court erred by failing to allow the defense to introduce evidence of a burglary that 

occurred in the area six weeks after the murder, and by preventing the defense 

from cross-examining the prosecution’s crime scene expert about the burglary. 

Finding no prejudicial error, we affirm.

 

1

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

FACTUAL AND PROCEDURAL BACKGROUND

A. Information

By information dated December 18, 2009, appellant was charged with the 

willful, deliberate, and premeditated murder of Sheri Rasmussen on February 24, 

1986 (Pen. Code, § 187, subd. (a)). It was further alleged that appellant personally 

used a handgun in the commission of the offense.

B. Evidence at Trial

1. Prosecution Evidence

On February 24, 1986, Rasmussen lived in a condominium on Balboa Street

in Van Nuys with her husband John Ruetten and worked as a nurse at a Glendale 

hospital. Ruetten left for work at 7:20 that morning. Rasmussen called in sick. 

Both Ruetten and Rasmussen’s sister tried to call Rasmussen at home several times 

that day, beginning at approximately 10 a.m., but Rasmussen did not answer. At 

approximately 9:45, a neighbor, Anastasia Volanitis, noticed the garage to

Rasmussen’s condominium was open with no cars inside.2 When Ruetten returned 

home at 6:00 p.m., he noticed the garage door was open and Rasmussen’s BMW

was missing.

3

 There was broken glass on the driveway from a shattered sliding 

glass patio door. The door from the condominium to the garage, which Ruetten 

 

2 At around noon, Volanitis received Rasmussen’s purse from two Hispanic men 

whom she believed to be gardeners. Volanitis and her husband turned the purse over to 

police officers later that day. 

3 Rasmussen’s BMW was recovered on March 7, 1986, 2.5 miles from her home, 

with the keys in the ignition switch. It was not stripped or otherwise damaged. 
4

had closed and locked when he left that morning, was ajar.4 Rasmussen was lying 

dead on the living room floor, still wearing her sleep shirt and robe. 

The pathologist who examined Rasmussen declared the cause of death to be

three gunshots to her chest, all fatal. One was a contact wound and at least one 

was inflicted while she was lying on the floor or against a similar hard surface. 

There were abrasions on Rasmussen’s arms, near the wrist, consistent with injury 

from a rope or cord.5 There were signs that Rasmussen had struggled with her 

assailant, including multiple contusions, lacerations and abrasions on her hands, 

mouth, face, head and neck. Broken pieces of two of Rasmussen’s fingernails 

were found on the floor near the condominium’s front door. An injury on her face

was consistent with a blow from the muzzle of a gun, with a size and configuration 

matching a .38 caliber Smith & Wesson revolver. There was a blow to her head 

consistent with a broken vase found near her body.

6

 On Rasmussen’s left inner 

forearm was an apparent bite mark. The pathologist examined it under a 

microscope. Based on the amount of hemorrhaging and the absence of 

inflammation, she determined that the injury had been inflicted at or about the time 

of Rasmussen’s death.

7

 

4 Ruetten had not checked the front door before leaving and did not know whether it 

was locked. The condominium had a burglar alarm, but Ruetten did not believe it was 

turned on when he left. 

5 A white cord/rope with a blood stain was found near the front door. The blood 

was identified as Rasmussen’s. 

6 None of the head injuries was fatal. 

7 Cathy Law, the chief forensic dentist for the coroner’s office, testified the mark 

appeared to be a bite mark, but she could not be certain unless amylase, an enzyme found 

in saliva, was present. As will be discussed, DNA examiners detected the presence of 

salivary amylase on the mark. 
5

Based on distinct physical characteristics, experts in the field of identifying 

ammunition testified at trial that bullets recovered in or near Rasmussen’s body 

were “.38J Plus-P” ammunition, manufactured by Federal. In 1986, LAPD officers 

were required to use Federal .38J Plus-P ammunition, even when off duty and 

carrying a personal weapon. 

A sleeved quilt found near Rasmussen’s body was taken into evidence and 

examined. The presence of multiple bullet holes and gunshot residue on the quilt 

led authorities and experts to conclude that it had been wrapped around the 

assailant’s weapon to dampen the sound of the gunshots. At trial, a forensic 

firearms expert testified that based on the location of the bullet holes in relation to 

linear gunshot residue that appeared to have been discharged from the cylinder, the 

weapon was a revolver with a two-inch barrel. Any number of guns were capable 

of firing the bullets found at the crime scene, but less than a dozen had two-inch 

barrels. 

Criminalist Lloyd Mahaney took samples from the bite mark on 

Rasmussen’s arm at the scene.

8

Investigators and criminalists also collected the 

two broken fingernails found near the condominium’s front door, clippings from 

Rasmussen’s remaining fingernails, and samples of tissue and debris from the 

underside of the fingernails. Additional items and samples were collected at the 

scene and from the interior of the BMW, including multiple fingerprints, multiple 

samples of what appeared to be blood, and multiple hairs.

9

 

 

8

The samples were taken by moistening the area with distilled water and wiping it 

with cotton-tipped swabs. The swabs were placed in an enclosed tube, which had air 

holes to allow the samples to dry out. The tube was sealed in an envelope and placed in 

one of the freezers located in the evidence room at the coroner’s office. 

9

The fingerprints were obtained from the BMW and various places near where 

Rasmussen’s body was found, including the front door, the door between the living room 

(Fn. continued on next page.)
6

Stereo equipment had been pulled from a cabinet inside the condominium’s 

living room and stacked by the door to the garage. A drawer in a living room table 

had been pulled out and the contents dumped on the floor. Although there was no 

evidence of forced entry, and rooms containing other valuables -- including 

additional stereo equipment -- were undisturbed, the detectives who initially 

investigated the crime concluded that the murder was committed in the course of a 

burglary. Specifically, they theorized that one or two burglars had came in through 

an open door, were surprised by Rasmussen’s presence, and shot her during a 

struggle over a gun.10 

 

and the garage, a banister, a VCR, a CD player, and a cassette deck. The samples of 

blood stains were taken from the front door, a closet door, near a wall socket, the door 

leading to the garage, the floor near the entryway, and the BMW’s ignition key, interior 

door handle, and driver’s side door. Photographs were taken of a red stain on the stereo

equipment stacked near the door and a bloody smudge on a nearby wall that could have 

been from someone’s hand, but no identifiable fingerprints were developed from either 

source. Not all of the lifted prints were identifiable but of those that were, none matched 

appellant’s. The LAPD lab did not test all of the apparent blood stain samples for DNA, 

but in the samples that were tested, the DNA was matched to or consistent with 

Rasmussen’s. None matched appellant. An independent lab tested some of the 

remaining blood stain samples and found DNA from three individuals in the one found 

on the BMW’s door handle. One of the DNA profiles was consistent with Rasmussen’s, 

but neither appellant nor Ruetten were possible matches with the others. The DNA 

mixture could have come in part from casual contact with the door handle. The 

independent lab also found mixtures of male and female DNA on the quilt found near 

Rasmussen: the female DNA was consistent with Rasmussen’s, the male DNA was not 

identified. None of the hairs analyzed was appellant’s. One of the hairs, found entangled 

in speaker wire near the white cord, was from a male who was not John Ruetten. 

10 Mark Safarik, a crime scene analyst called by the prosecution, testified the crime 

scene had been staged to look like a burglary. He testified that Rasmussen’s 

condominium was an unlikely target for an experienced burglar, as it was in a gated 

complex surrounded by a fence, was centrally located within the complex, and had an 

alarm system. He opined that the absence of evidence of a forced entry, along with the 

fact that little property had been taken or set aside and that very little inside the 

condominium had been disturbed, suggested the motivating crime was not burglary. He 

(Fn. continued on next page.)
7

In December 2004, members of LAPD’s cold case unit re-opened the case, 

asking the coroner’s office to locate the bite mark tissue sample, which had been in 

a freezer in the coroner’s evidence room since 1986.

11

 In 2005, Jennifer Francis, a 

criminalist with LAPD, examined a piece of one of the swabs under a microscope 

and also performed DNA testing on it. Under the microscope, she saw nucleated 

epithelial cells, which are found in large numbers in saliva and provide a good 

medium for obtaining a complete DNA profile. The DNA testing indicated the 

presence of two profiles: a major profile and a minor profile. The minor profile 

was consistent with Rasmussen’s, although there was insufficient material for a 

complete match.12 The major profile was complete. The DNA that comprised the 

major profile was from a female. 

Authorities initially attempted to find a match by uploading the major DNA

profile from the bite into a national database system. This was unsuccessful. In 

2009, the investigation turned toward specific women who might have had reason 

to harm Rasmussen. LAPD officers surreptitiously obtained a sample of 

 

explained that a burglar would generally plan to arrive when no one was home; the fact 

that the crime occurred early in the day and the perpetrator brought a white rope indicated 

burglary was not the motive. He further explained that burglars do not generally steal 

vehicles. However, as the BMW had been taken, Safarik found it unusual that nothing of 

value was removed from it. Finally, the fact that the stereo equipment was found stacked 

near where the struggle appeared to have taken place, but was undisturbed, suggested it 

was placed there after the fact. 

11 When it was found, the envelope in which the tube had been sealed was torn but 

the tube inside appeared intact. There were two swabs inside the tube. 

12 As will be discussed in greater detail in part E of the Discussion, infra, the DNA 

test kits used by Francis, called Profiler Plus and COfiler, assigned numerical values to 

patterns of repeating DNA inherited from each parent at 13 points or “loci” along the 

chromosome. If the particular tissue sample tested contained insufficient cellular 

material, the test kits were unable to assign numbers at all 13 loci, and the profile was 

considered incomplete or partial. 
8

appellant’s DNA by taking possession of a drink cup and straw discarded by 

appellant. LAPD criminalist Michael Mastrocovo developed a partial DNA profile 

for the drink cup and straw. Appellant’s DNA profile matched the major profile 

found on the bite mark.

13

 

Appellant was arrested on June 5, 2009. A criminalist swabbed her mouth in 

order to develop a complete DNA profile. Francis analyzed the DNA on one of 

those swabs. Appellant’s DNA profile matched the major profile on the bite mark 

swab at 13 loci.14

In 2010, Thomas Fedor, a serologist for an independent forensics laboratory, 

Serological Research Institute (SERI), was provided the second bite mark swab. 

Several persons were present when he tested it, including a representative for the 

defense. Fedor began by placing the swab into a solution and analyzing the 

resulting liquid. It contained salivary amylase. When he performed DNA testing, 

he detected, just as Francis had, the presence of two distinct DNA profiles, one 

major and one minor.15 The minor profile was consistent with Rasmussen’s. 

Fedor separately tested the swab obtained from appellant to obtain appellant’s 

 

13 The DNA test kit used by Mastrocovo, called Identifiler, was designed to assign 

numerical values to patterns of repeating DNA at up to 15 loci, the 13 in the test used by 

Francis when she first tested the bite mark swab, plus two more. The DNA sample 

obtained from the drink cup and straw contained insufficient material to assign values at

all 15 loci. The 11 points or loci at which readings were obtained from the DNA on the 

drink cup and straw matched the profile from the bite mark. 

14 When testing the swab taken from appellant’s mouth, Francis used the Identifiler 

test kit, obtaining readings at 15 points for appellant’s DNA profile. But as she had used 

the Profiler Plus/COfiler test kits when testing the bite mark tissue sample in 2005, she 

had only 13 points on that profile to use for comparison purposes. Francis calculated that 

a match at 13 loci would be expected in one out of 402 quadrillion unrelated individuals. 

15 Fedor used the Identifiler test kit, capable of obtaining readings at 15 loci. 
9

DNA profile. Appellant’s DNA profile matched the major profile Fedor obtained 

from the bite mark swab at all 15 loci.

16

Fedor also analyzed tissue samples found on or under Rasmussen’s 

fingernails using a MiniFiler test kit. Under one fingernail, he found a mixture of 

DNA and obtained partial profiles for at least three people. One of the partial 

profiles was consistent with appellant’s.17 Fedor found low levels of DNA under 

three other nails with profiles consistent with appellant’s.

18

 There were minute

amounts of DNA material under six other fingernails contributed by both males 

and females, some of which was inconsistent with Rasmussen’s. Fedor was able to 

rule out appellant and Ruetten as possible contributors.19

In 1986, appellant was an LAPD police officer in the Devonshire Division,

having entered the police academy in 1983 and graduated in 1984. Brian 

McCartin, who attended the academy with appellant, described her as “the 

strongest, most aggressive, most persistent fighter” of the women in the class. 

Michael Hargreaves, appellant’s friend and former roommate and a former police 

officer, described her fitness level as “outstanding” and her level of strength with 

 

16 Fedor computed that the chance a woman unrelated to appellant would have the 

same DNA profile at all 15 loci was approximately one in 1.7 sextillion, many times the 

population of the earth. 

17 Because it was only a partial profile, Fedor calculated that one out of every 26,000 

women could have matched it. 

18 One of the profiles would also have been consistent with the DNA profiles of one 

out of 9,000 other women, the others were consistent with the profiles of one out of nine 

or ten other women. 

19 Fedor testified that small amounts of another person’s DNA can be deposited 

under a fingernail through casual encounters or by touching objects containing that 

person’s DNA. Another witness testified that scissors used to collect fingernails in 1986 

were not sterilized between uses because investigators were not anticipating the material 

being subjected to DNA testing or the significance of minor amounts of contamination. 
10

respect to other women as “superior.” Hargreaves also testified that appellant was 

an “expert” level shooter. Sometime between 1985 and 1987, appellant showed 

her friend and fellow police officer Jayme Weaver lock picking tools and told 

Weaver she had learned how to use them.20 

In 1986, it was common practice for LAPD officers to carry a backup 

weapon in addition to the weapon issued them by the department. Officers were 

expected to let the LAPD armorer know when they purchased a backup weapon. 

They were permitted to carry only guns that could be used with the Federal .38J 

Plus-P bullets. Records from the armorer’s office indicated that on February 29, 

1984, appellant purchased a .38 caliber Smith and Wesson Model 49 revolver.21 It

was a five shot model.22 Its barrel was approximately two inches. On March 9, 

1986, less than two weeks after Rasmussen’s death, appellant reported to the Santa 

Monica Police Department that her Smith & Wesson Model 49 revolver had been 

stolen from the glove compartment of her car while parked in Santa Monica. 

Hargreaves, appellant’s former roommate, recalled appellant telling him she had 

lost her revolver a few days earlier in Santa Monica while carrying it in a bag or 

fanny pack. She asked him how to go about reporting it. When appellant reported 

her gun stolen in Santa Monica, she told the officer at the front desk it had been 

stolen that day. There was no record indicating appellant had reported the theft to 

 

20 A search of appellant’s home uncovered appellant’s daily planner which

mentioned two books on locksmithing and lock picking. The books themselves were not 

found. 

21 Appellant’s purchase of the weapon was also documented by the record of the Los 

Angeles Police Revolver and Athletic Club, which sold guns to peace officers. 

22 Rasmussen had been shot three times. In addition, there were two bullet holes in 

the curtains covering the shattered sliding glass door, indicating two additional bullets 

had been fired. 
11

the LAPD armorer. She did, however, report to the armorer buying another gun, a 

different model, on March 19, 1986. 

Appellant and Ruetten had met in college and dated casually in the late 

1970’s. After graduation, between 1981 and 1984, they continued to date and were

sexually intimate, but Ruetten did not consider her his girlfriend. In June 1984, 

Ruetten met Rasmussen. In May 1985, Ruetten and Rasmussen became engaged. 

In June 1985, appellant learned of Ruetten’s engagement and called him, upset and 

crying. She asked Ruetten to come to her condominium. When he arrived, 

appellant, still crying, told Ruetten she was in love with him. She repeatedly asked 

him to have sex with her, and he did. 

Following this encounter, Ruetten continued his relationship with

Rasmussen, and several weeks later they moved in together. Sometime after 

Ruetten and Rasmusssen were living together, appellant went to the hospital where 

Rasmussen worked and confronted her. That evening, Rasmussen came home 

upset, and Ruetten confessed to having had sex with appellant after their

engagement; it appeared Rasmussen already knew. Ruettan promised not to have 

any further contact with appellant. Ruetten and Rasmussen were married in 

November 1985. 

Appellant told Hargreaves she was in love with “John.” On one occasion 

while they were roommates, sometime between late 1984 or early 1985 and 

February 1986, she woke Hargreaves late at night. She was crying and wanted 

Hargreaves to console her. She told him that “John” had broken up with her and 

was going to marry someone else. Appellant became sad and more easily upset 

after the breakup. Appellant told Hargreaves that she had gone to the hospital 

where Ruetten’s fiancée worked and had a confrontation with her. When 

discussing why she did not date for an extended period after the break up, appellant
12

told Hargreaves she was “picky” and preferred men who were “tall” and “athletic,” 

“like John.” 

Appellant’s home was searched in June 2009. Her journal and daily 

planners were retrieved, along with some photographs of Ruetten. The journal 

covered the period between November 1984 and August 1986. An entry for 

November 1984 discussed a night out that “kept my mind off John for a while 

anyway.” An entry for April 1985 stated that appellant “saw John Ruetten’s car,” 

“put a note on it,” “watched [it] for one half hour and checked up on it a few 

times.” An entry for May 1985 mentioned visiting Ruetten and his girlfriend being 

there. An entry for June 1985 stated that appellant had found out Ruetten was 

getting married; she described herself as “very depressed” and her concentration as 

“negative 10.” Another entry for June 1985 stated: “Didn’t feel like working. 

Too stressed out about John. I’ve had a real hard time concentrating these days so 

I called up and said I didn’t feel well and could I have a T.O. They gave it to me.” 

The journal had no entry in March 1986 or at any other time mentioning that her 

gun had been stolen. 

In August 1985, appellant wrote Ruetten’s mother, telling her she was 

“‘truly in love with John’” and that the past year had “‘really torn me up.’” The 

letter further stated: “‘I wish it hadn’t ended the way it did and I don’t think I’ll 

ever understand John’s decision.’” In December 1985, appellant received a letter 

from Ruetten’s mother that she said in her journal made her “‘very, very, very 

sad.’”

Appellant was off duty on Monday February 24, 1986, the day Rasmussen 

was killed. She was also off duty the three preceding days. She returned to work 

on February 25. An officer who shared a locker room with appellant, Jayme
13

Weaver, did not recall observing any injuries on her on that day or on any other 

occasion.

23

Appellant did not attempt to contact Ruetten after Rasmussen’s death. 

Ruetten next saw appellant in 1989 when both were in Hawaii on vacation with 

other people. He saw her two or three times afterward and they had sexual 

relations, but they never became involved in a relationship. Appellant’s home 

computers were analyzed by a computer expert who determined that she had 

performed searches of Ruetten’s name in April 1998, May 1999 and December 

1999. 

Appellant was interviewed by LAPD Detectives Gregory Stearns and Dan 

Jaramillo on June 5, 2009. When asked about Ruetten, appellant repeated his 

name twice as if trying to recall who he was before saying “Oh yeah. I went to 

school with him.” She first described him as a “close friend[],” and then said they 

dated while they were in college and “probably after college.” She was evasive 

when asked how long they dated or when she spoke with him last, talking instead 

about his age, his family, when he graduated and when she met her husband. 

When asked what ended her relationship with Ruetten, she said she did not 

consider him her boyfriend and had gone out with others when they were dating. 

She denied their break up was unfriendly. When asked if she had ever met 

Rasmussen, she initially said, “God, I don’t know” and “I may have.” She initially 

claimed not to know what Rasmussen did for a living or where she worked, but 

later said “now that you’re bringing it up, I think she worked at a hospital 

somewhere. And, yeah, I may have met her at a hospital. I may have talked to her 

once or twice.” She later stated: “I may have gone to her and said, hey, you know 

 

23 Michael Alexander, appellant’s partner in 1986, was called by the defense and 

similarly testified that he did not recall seeing any injuries on her in February of that year. 
14

what? You know what? Is he dating you? He’s . . . bothering me. And so[,] I’m 

thinking that we had a conversation about that, one or two maybe.” She claimed to 

be uncertain of Rasmussen’s first name and of how she learned of her death. 

The detectives asked appellant multiple times if she knew where Ruetten and 

Rasmussen lived after their marriage and if she had ever been to their 

condominium or confronted Rasmussen there. She initially claimed not to know 

where they lived and not to remember if she had ever been there. She 

subsequently said she “may have known.”24 When asked if she had ever gotten 

into a physical fight with Rasmussen, she said “[i]f it happened I honestly don’t 

remember it. That’s all I can tell you” and “this is just not ringing a bell.” Toward 

the end of the interview, she said she was “shocked” that “somebody would be . . .

saying that I did this. I mean, we had a fight and so I went and killed her? I mean, 

come on.” 

2. Defense Evidence

Sometime in the morning or early afternoon of February 24, 1986, 

Evangelina Flores, a cleaning lady working in a nearby condominium, heard loud 

sounds, like two people fighting, and a slamming sound, as if something had fallen. 

 

24 At one point appellant said: “I don’t think I’ve ever gone there. That’s why I’m 

saying I don’t . . . want to say, no, I’ve never gone there, and then you say, oh, I was at a 

party, cause I -- I -- I don’t -- you know, I don’t think so.” Asked specifically if she ever 

went to Rasmussen’s house and had a dispute with her there, appellant said: “You know, 

I’m must -- if I met her ever at his apartment, maybe. I mean, maybe we could’ve met at 

-- I could’ve met at her apartment. I’m thinking that the [¶] . . . [¶] hospital thing that 

sounds familiar that I -- I met her there. I just can’t say that I’ve ever -- again, was it her 

with other people? You know, I don’t -- I -- I -- I don’t know. . . . If somebody said I 

was there when they were there, then that’s possible. . . [¶] . . . but I just -- I -- I don’t 

recall, I mean, I don’t think so. I don’t -- I -- it’s not sounding familiar.” 
15

She then heard a car drive off. She told officers at the time that these sounds 

occurred at approximately 12:30 p.m. 

Andrea Dillon, a fingerprint examiner, reviewed the latent fingerprints 

collected from the condominium after the homicide by LAPD criminalists. She 

found multiple identifiable fingerprints that could not be attributed to appellant, 

Ruetten or Rasmussen, including fingerprints on the stereo equipment stacked by 

the door to the garage.

Patricia Fant, a forensics firearms examiner, testified that Smith & Wesson 

had manufactured over 600,000 Model 49 revolvers. In addition, a company in 

Brazil manufactured a cheaper copycat version. Fant expressed the opinion that 

the recovered bullets could not be identified as having been made by a particular 

manufacturer or as being .38 Special Plus-P ammunition. She further opined that 

the barrel length of the gun could not be determined by measuring the distance 

between a hole in a blanket and the position of the barrel gap discharge because 

that distance would vary depending on how the blanket was folded.25

A Santa Monica Police Department records manager reviewed records and 

determined that on March 9, 1986, the day appellant reported the theft of her 

revolver from her car, there had been two other burglaries from automobiles in 

parking structures in the same area. 

The defense introduced entries from appellant’s journal, one from July 1986

in which she complained about not having her keys to get into her house and one 

from March 1986 that mentioned taking her car in for repair. 

The defense called Suzanne Mendoza, who had known appellant virtually all 

her life, as a character witness. Mendoza had never observed appellant to be 

 

25 Fant also noticed faint shoe prints on the quilt for which the investigators had 

given no account. 
16

violent toward anybody. Michael Alexander who worked with appellant at the 

Devonshire Division in 1985 and 1986 and observed her interacting with many 

people, including arrestees, testified he did not consider her to be a violent person. 

Kim Dittbern, who attended an LAPD program with appellant for six months, 

never saw any violent behavior. Sheri Huff, who had known appellant since their 

college days, had been friends with appellant when Ruetten dated one of Huff’s 

roommates. She had never observed appellant jealous or angry. She had never 

seen appellant act violently. 

C. Verdict and Sentence

The jury found appellant guilty of first degree murder, and found true that 

she had personally used a handgun. The court imposed a sentence of 25-years to 

life for the murder and two years for the weapons enhancement. 

DISCUSSION

A. Pre-accusation Delay

Appellant contends the trial court erred in denying her motion to dismiss the 

charges due to pre-accusation delay, in view of the time that passed between the 

crime and her arrest and trial, and the alleged negligence of the original 

investigators. For the reasons discussed, we disagree.

1. Background

The information filed on December 18, 2009 accused appellant of 

committing murder on February 24, 1986, over 23 years earlier. On October 20, 

2009, appellant moved to dismiss on the ground that the delay in filing criminal 

charges prejudiced her ability to conduct her defense, and constituted a violation of 

her due process rights under the state and federal constitutions. Appellant 
17

contended that LAPD investigators were negligent or reckless in failing to 

investigate her possible involvement in the crime in 1986. She presented evidence 

that within days or weeks of Rasmussen’s death, (1) Ruetten informed the

investigators that appellant was his former girlfriend, (2) Rasmussen’s father told 

the investigators that Rasmussen had been threatened by her husband’s former 

girlfriend, and (3) Rasmussen’s parents advised them to investigate appellant. 

Appellant also presented evidence that the investigators failed to promptly

interview the woman who until June 1985 had been Rasmussen’s roommate, and

who knew that appellant had confronted Rasmussen at her workplace. Appellant

submitted a declaration from Adalberto Luper, a former LAPD detective, who 

expressed the opinion that by ignoring leads provided to them by persons close to 

Rasmussen and focusing on the possibility that the crime had been committed by 

anonymous burglars with no connection to Rasmussen, the investigators “adopted 

a ‘tunnel vision’ approach to the investigation, rather than exploring the possibility 

that an LAPD officer was involved.” According to Luper, this was “at least 

negligent.” 

With respect to prejudice arising from the delay, appellant asserted that her 

ability to prepare her defense had been compromised because: (1) the officers who 

saw or worked with appellant in the days after the homicide were unable to 

specifically recall whether appellant showed signs of having engaged in a physical 

struggle; (2) Rasmussen’s secretary, who witnessed the confrontation between 

Rasmussen and appellant, had died; (3) documents supporting the chain of custody 

of certain items of physical evidence had been lost;

26 (4) the GSR (gun shot 

 

26 The items identified in the moving papers were the samples of red stains, a white 

dish towel, the white rope or cord found near the body, portions of fingernails, two hairs, 

(Fn. continued on next page.)
18

residue) tests taken of Rasmussen’s hands and the records of 911 calls about the 

crime had been destroyed; and (5) records indicating precisely when LAPD 

officers began using the type of ammunition the prosecution claimed had been 

used to shoot Rasmussen were no longer available.

Respondent contended that to prevail, appellant was required to prove not 

only that she was prejudiced by the pre-accusation delay but that the delay 

occurred as the result of deliberate action by the prosecution or LAPD 

investigators designed to gain a tactical advantage.27 With respect to justification 

for the delay, respondent represented that the LAPD cold case unit requested DNA 

testing in September 2003, that the testing was accomplished in February 2005, 

and that periodic attempts to match the DNA (and fingerprints) from the crime 

scene to criminals whose profiles were stored in national data bases occurred 

thereafter. The case was assigned to a detective in February 2009. His

investigation quickly focused on appellant, and in June 2009, one month after her 

DNA profile was surreptitiously obtained and matched to the bite mark swab, she 

was arrested. 

Preliminarily, the court found that appellant had made a “minimal” showing 

of prejudice. The court was persuaded that due to the passage of time, appellant’s 

former partners and the women who dressed with her in the locker room might

have been unable to recall whether appellant had scratches or bruises on her body 

in the days after the killing, and that the absence of such marks could have been 

helpful to the defense. The court further found that the missing GSR evidence 

 

and samples taken by the pathologist. There was no mention of the chain of custody for 

the bite mark swabs. 

27 At the hearing, defense counsel conceded the absence of evidence of intentional 

misconduct on the part of the investigators. 
19

could have had “plausible value to the defense,” and accepted the premise that the 

type of ammunition used by the LAPD in 1986 could have been more easily 

determined in the absence of the delay. The court did not, however, place much 

stock in the argument that “the police, if they’d acted quickly could have made a 

[ballistics] match on the gun” because appellant reported her gun missing within 

two weeks of the killing. Similarly, the court did not assign prejudicial value to the 

alleged gaps in the chain of custody of certain physical evidence -- which the court 

found likely to be “more prejudicial to the people” -- or the destruction of 911 

tapes -- whose potential usefulness was “speculative.”

28

 

Having found that appellant had made a “showing of prejudice,” albeit 

“fairly minimal,” the court ruled that the truth-in-evidence provision of the 

California Constitution required application of the federal standard. In line with 

that reasoning, the court concluded that the lack of evidence that the delay was 

intentional or used to gain a tactical advantage precluded granting the motion. The 

court nevertheless went on to resolve the matter under the presumption that 

negligence was sufficient to support the motion to dismiss. The court concluded 

there was a “plausible argument to be made” that the investigating officers had 

been negligent, but stated that delay resulting from negligence required a greater 

showing of prejudice to “tip the scales” toward a finding of a due process violation

than if the delay had been intentional. The court found strong justification for the 

delay in the necessity of developing the DNA evidence and matching it to 

appellant’s DNA. Although “the police may have had some basis to suspect 

 

28 Respondent disputed that there were breaks in the chain of custody records for any 

evidence. Some specific items appellant claimed in her moving papers were missing or 

destroyed -- including, a bite mark exemplar taken of Rasmussen’s teeth and the record 

of a polygraph examination of Ruetten -- were located and turned over to the defense 

prior to the trial court’s ruling on the motion. 
20

[appellant] shortly after the crime was committed,” the case “was not solved until 

May of 2009 when [appellant’s] D.N.A. was matched to the biological matter 

recovered from the crime scene.” Once that occurred, “the authorities moved with 

appropriate dispatch and arrested [appellant].” The court concluded that “while the 

delay in bringing the charges against [appellant] has caused some possible 

prejudice to her ability to defend,” the “strong justification for delay” compelled 

the conclusion that “there was absolutely no violation of her right to due process.” 

Accordingly, the court denied the motion to dismiss.

2. Analysis

a. Negligence on the part of investigators or prosecutors

triggers application of the balancing test where the 

defendant establishes prejudice

There is no dispute that “‘[d]elay in prosecution that occurs before the 

accused is arrested or the complaint is filed may constitute a denial of the right to a 

fair trial and to due process of law under the state and federal Constitutions.’” 

(People v. Nelson (2008) 43 Cal.4th 1242, 1250 (Nelson), quoting People v. Catlin

(2001) 26 Cal.4th 81, 107.) “‘A defendant seeking to dismiss a charge on this 

ground must demonstrate prejudice arising from the delay.’” (Nelson, supra, 43 

Cal.4th at p. 1250.) Once prejudice is demonstrated, the harm to the defendant 

“must be balanced against the justification for the delay” to determine whether a 

due process violation has occurred. (Nelson, supra, at p. 1251.) 

In Nelson, our Supreme Court held that “negligent, as well as purposeful, 

delay in bringing charges may, when accompanied by a showing of prejudice,

violate due process.” (Nelson, supra, 43 Cal.4th at p. 1255.) The court observed

that the United States Supreme Court had discussed the due process implications of 

investigative and prosecutorial delay on multiple occasions without ever having 
21

been called on to decide whether negligent conduct might implicate a defendant’s 

due process rights. (Nelson, supra, 43 Cal.4th at pp. 1251-1253.)29 It concluded

that because “the exact standard under [the United States] Constitution is not 

 

29 United States v. Marion (1971) 404 U.S. 307, 324-325 and United States v. 

Lovasco (1977) 431 U.S. 783, 796-797 are often cited as establishing a federal standard 

of intentional delay. In Marion, the defendants presented no evidence of actual prejudice, 

but claimed dismissal was required because prejudice was “inherent” in the three-year

delay between the occurrence of the criminal acts and the indictment. (404 U.S. at 

pp. 308, 325-326.) The United States Supreme Court found undisputed the proposition 

that “the Fifth Amendment would require dismissal of the indictment if it were shown at 

trial that the pre-indictment delay . . . caused substantial prejudice to [the accused’s] 

rights to a fair trial and that the delay was an intentional device to gain tactical advantage 

over the accused.” It added, however, that “we need not, and could not now, determine 

when and in what circumstances actual prejudice resulting from pre-accusation delays 

requires the dismissal of the prosecution.” (Id. at p. 324.) In Lovasco, where the 

defendant established neither deliberate conduct nor negligence on the part of the 

prosecution, the Court similarly stated that it “could not determine in the abstract the 

circumstances in which preaccusation delay would require dismissing prosecutions.” 

(431 U.S. at pp. 795, 796-797.) 

Respondent’s reliance on two more recent United States Supreme Court decisions 

is misplaced. In United States v. $8,850 (1983) 461 U.S. 555, the Court characterized

Lovasco as requiring “a deliberate attempt to gain an unfair tactical advantage over the 

defendant” or “reckless disregard of [the delay’s] probable prejudicial impact” in 

assessing due process challenges based on delay in instituting criminal prosecutions. (Id. 

at p. 563.) However, it did so for the purpose of summarizing the Government’s position 

that the standard applicable to preaccusation delay provided the appropriate test for 

determining the consequences of governmental delay in filing a civil forfeiture 

proceeding -- a proposition the Court rejected. (Ibid.) In United States v. Gouveia (1984) 

467 U.S. 180, the Court addressed the concern that government officials might 

intentionally delay prosecution of prisoners for crimes committed while incarcerated, by 

pointing out that United States v. Lovasco and United States v. Marion provided 

protection against use of deliberate delay as a device to gain an advantage against 

criminal defendants. (Id. at p. 192.) Neither case addressed whether negligently caused 

delay could lead to a violation of due process where the defendant was substantially

prejudiced. 
22

entirely settled[,] . . . we can and will apply California law.” (43 Cal.4th at 

p. 1251.)

Our Supreme Court has repeatedly endorsed its holding in Nelson, 

reiterating in multiple recent cases that “‘“under California law, negligent, as well 

as purposeful, delay in bringing charges may, when accompanied by a showing of 

prejudice, violate due process,”’” and applying that standard to its analysis of the 

facts in the situation before it. (People v. Jones (2013) 57 Cal.4th 899, 920-921; 

accord, People v. Abel (2012) 53 Cal.4th 891, 909; People v. Cowan (2010) 50 

Cal.4th 401, 431.) 

Respondent contends the holding in Nelson is no longer binding because the 

crime in Nelson took place in 1976, prior to the passage of Proposition 8, adding 

the truth-in-evidence provision to the California Constitution (Cal. Const., art. I, 

§ 28, subd. (f)(2) [formerly subd. (d)]). Respondent asserts that the provision

requires application of federal standards to motions to dismiss for prejudicial 

delay.

30

 Respondent overlooks Supreme Court decisions applying the Nelson

standard where the crimes post-dated Proposition 8’s passage. (People v. Jones, 

supra, 57 Cal.4th at pp. 920-921 [crime occurred in 1985]; People v. Abel, supra, 

53 Cal.4th at p. 909 [crime occurred in 1991]; People v. Cowan, supra, 50 Cal.4th 

at p. 431 [crime occurred in 1984].) Respondent urges us to disregard this binding 

authority and instead follow the reasoning of People v. Valencia (1990) 218 

 

30 The truth-in-evidence provision, added to our state Constitution in 1982, provides 

that “[e]xcept as provided by statute hereafter enacted by a two-thirds vote of the 

membership in each house of the Legislature, relevant evidence shall not be excluded in 

any criminal proceeding . . . .” (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 

59.) It is interpreted as precluding exclusion of unlawfully obtained evidence unless 

mandated by the United States Constitution. (Ibid; People v. Bryant, Smith and Wheeler

(2014) 60 Cal.4th 335, 365 (People v. Bryant); People v. Banks (1993) 6 Cal.4th 926, 

934; In re Lance W. (1985) 37 Cal.3d 873, 888.)
23

Cal.App.3d 808. There, the motion to dismiss was based on the deportation of a 

witness who allegedly could have provided exculpatory evidence; the Court of 

Appeal held that the truth-in-evidence provision of the California Constitution 

required application of the federal standard of materiality. (Valencia, supra, 218 

Cal.App.3d at pp. 813-814, 825.) In reaching its conclusion, the court found that 

the provision applies not only where the defendant requests exclusion of evidence 

as a remedy, but also where the defendant seeks dismissal of all charges “[s]ince 

dismissal amounts to the exclusion of all the evidence . . . .” (Id. at p. 819.)

As our Supreme Court has since observed, however, the language of the 

truth-in-evidence provision “broadly eliminates rules that exclude relevant 

evidence from a criminal trial”; its words “do not speak beyond that subject.” 

(People v. Alvarez (2002) 27 Cal.4th 1161, 1178, italics added and omitted; see 

People v. Cahill (1993) 5 Cal.4th 478, 500 [“By its terms, the Truth-in-Evidence 

provision affects only the admissibility of evidence.”]; People v. Macias (1997) 16 

Cal.4th 739, 749 [The provision “was intended to eliminate judicial precedents

interpreting the state Constitution to exclude otherwise admissible evidence.”].)

Accordingly, we are doubtful that the truth-in-evidence provision applies where the 

requested remedy is not suppression of evidence, but dismissal of all charges based 

on the state’s violation of a defendant’s due process rights. 

More important, even were we persuaded that the provision applies to the 

dismissal of all charges, we would reject respondent’s argument that it compels a 

different standard for reviewing a claim of pre-accusation delay than the one 

articulated by our Supreme Court in Nelson. As the court found, the standard to be 

applied where unjustified delay has prejudiced the defense under the United States

Constitution is not settled. (Nelson, supra, 43 Cal.4th at p. 1251; see U.S. v. Gross

(E.D.N.Y. 2001) 165 F.Supp.2d 372, 378-379 [observing that “[t]he Fourth, 

Seventh, and Ninth Circuits have dismissed indictments based on a standard other 
24

than governmental intent to achieve a tactical advantage”].) The issue whether the 

United States Supreme Court has articulated a federal standard to supplant Nelson

was recently addressed in People v. Boysen (2007) 165 Cal.App.4th 761. There,

the court explained: “Even if [the truth-in-evidence provision] applies to the 

dismissal of prosecutions for preaccusation delay, there is no controlling federal 

authority limiting such dismissal to situations in which the delay was deliberate 

and designed to disadvantage defendants; and there is no requirement, therefore, 

that we limit dismissal to those cases in which delay was undertaken to 

disadvantage the defendant. Since there is no controlling federal law on the 

subject, the courts of this state are free to independently interpret the United States 

Constitution. [Citation.] Our state Supreme Court and our Courts of Appeal have 

done so, and have chosen to apply the balancing test [balancing actual prejudice 

against the justification for delay].” (Id. at pp. 771, 776.)

The weight of authority establishes that the trial court erred in its initial 

ruling that negligence alone could not support a motion to dismiss due to delay. 

However, its error did not affect the outcome. The court went on to analyze the 

justification for the delay and whether the justification outweighed the prejudice to 

appellant, concluding that it did. We, therefore, turn to this issue. 

b. The trial court did not abuse its discretion in 

concluding that the justification for the delay outweighed 

any prejudice to the defense

A defendant seeking dismissal of a charge on the ground of unjustifiable 

delay “‘must demonstrate prejudice arising from the delay.’” (Nelson, supra, 43 

Cal.4th at p. 1250, quoting People v. Catlin, supra, 26 Cal.4th at p. 107.) 

“‘[P]rejudice may be shown by loss of material witnesses due to lapse of time 

[citation] or loss of evidence because of fading memory attributable to the delay.’” 
25

(People v. Catlin, supra, 26 Cal.4th at p. 107.) The prosecution must then “‘offer 

justification for the delay, and the court considering a motion to dismiss balances 

the harm to the defendant against the justification for the delay.’” (Nelson, supra,

at p. 1250, quoting People v. Catlin, supra, at p. 107.) In determining whether the 

delay resulted in a violation of due process, the trial court engages in “‘a delicate 

judgment’ [citation], by balancing the public interest in favor of the prosecution 

against the rights of the defendant.” (Penney v. Superior Court (1972) 28 

Cal.App.3d 941, 954.) “[T]he particular circumstances surrounding the decision 

not to prosecute, the length of the delay, and the reasons for the subsequent reevaluation and prosecution must all be considered.” (Id. at p. 954.) “[W]hether 

the delay was negligent or purposeful is relevant to the balancing process. 

Purposeful delay to gain an advantage is totally unjustified, and a relatively weak 

showing of prejudice would suffice to tip the scales towards finding a due process 

violation. If the delay was merely negligent, a greater showing of prejudice would 

be required to establish a due process violation,” (Nelson, supra, 43 Cal.4th at 

p. 1256.) 

“We review for abuse of discretion a trial court’s ruling on a motion to 

dismiss for prejudicial prearrest delay [citation], and defer to any underlying 

factual findings if substantial evidence supports them [citation].” (People v. 

Cowan, supra, 50 Cal.4th at p. 431.) In evaluating the correctness of a trial court’s 

denial of a defendant’s speedy trial motion, “we consider all evidence that was 

before the court at the time the trial court ruled on the motion. [Citation.]” 

(People v. Jones, supra, 57 Cal.4th at p. 922.)

In the weighing process, “the seriousness of the crime for which the 

indictment is returned must be given appropriate consideration. The fact that the 

Legislature has decreed no statute of limitations for murder shows the importance 

that society places on governmental efforts to bring a murderer to the bar of 
26

justice.” (Penney v. Superior Court, supra, 28 Cal.App.3d at p. 954.) “[T]he delay 

may be unreasonable if the prosecution delayed in filing charges when all the 

evidence was discovered years earlier” (People v. Harman (1985) 170 Cal.App.3d 

572, 581), or where “the reason for the delay was not investigative needs but the 

lack of interest of the responsible agencies in prosecuting the defendants on the 

basis of [the] evidence.” (People v. Pellegrino (1978) 86 Cal.App.3d 776, 781.) 

On the other hand, “[i]t requires no extended argument to establish that prosecutors 

do not deviate from ‘fundamental conceptions of justice’ when they defer seeking 

indictments until they have probable cause to believe an accused is guilty . . . .” 

(United States v. Lovasco, supra, 431 U.S. at pp. 790-791.) “The determination of 

when the evidence available to the prosecution is sufficient to obtain a conviction 

is seldom clear-cut, and reasonable persons often will reach conflicting 

conclusions.” (Id. at p. 793.) 

In Nelson, the defendant had been interviewed as a suspect in a 1976 

murder, but was not charged until 2002, following DNA testing of semen stains 

found on the victim. (Nelson, supra, 43 Cal.4th at pp. 1248-1249.) Rejecting the 

defendant’s claim that the 26-year delay in bringing charges violated his 

constitutional rights to a fair trial and due process, the court observed: “The police 

may have had some basis to suspect defendant of the crime shortly after it was 

committed in 1976. But law enforcement agencies did not fully solve this case 

until 2002, when a comparison of defendant’s DNA with the crime scene evidence 

resulted in a match, i.e., until the cold hit showed that the evidence came from 

defendant. Only at that point did the prosecution believe it had sufficient evidence 

to charge defendant.” (Id. at p. 1256.) The court emphasized that “‘[p]rosecutors 

are under no duty to file charges as soon as probable cause exists but before they 

are satisfied they will be able to establish the suspect’s guilt beyond a reasonable

doubt. . . .’” (Ibid., quoting People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899,
27

914-915; see also People v. Spicer (2015) 235 Cal.App.4th 1359, 1377-1378

[prosecution “first possesses ‘facts necessary to sustain [a] charge’ when it secures 

evidence supporting the objectively reasonable belief that it ‘“will be able to 

promptly establish guilt beyond a reasonable doubt,”’” not when it has “substantial 

evidence of guilt” or “reasonable suspicion that [the defendant] committed the 

crime”].) 

Appellant does not suggest the prosecution had sufficient evidence to 

warrant charging her before the DNA match in 2009, but contends that “DNA 

technology available since the 1980’s could readily have been used to evaluate 

appellant as a suspect.” This same argument was rejected by the Supreme Court in 

Nelson. Responding to the defense claim that law enforcement agencies were 

negligent in failing to test the samples earlier for a DNA match, the court observed: 

“A court may not find negligence by second-guessing how the state allocates its 

resources or how law enforcement agencies could have investigated a given case. 

. . . [T]he difficulty in allocating scarce prosecutorial resources . . . [is] a valid 

justification for delay.’ [Citation.] It is not enough for defendant to argue that if 

the prosecutorial agencies had made his or her case a higher priority or had done 

things a bit differently they would have solved the case sooner.” (Nelson, supra, at 

pp. 1256-1257, quoting People v. Dunn-Gonzalez, supra, at p. 915.) It is clear 

from the record below that testing tissue samples to obtain a DNA profile is a 

difficult and time-consuming process. It is equally clear that there were many cold 

cases potentially resolvable through DNA analysis in the pipeline. Appellant has 

not demonstrated that law enforcement was negligent in failing to test the evidence 

in this case earlier.31

 

31 Additionally we note that appellant’s claim that DNA testing available in the 

1980’s could “readily have been used to evaluate appellant” is incorrect. “The first use of 

(Fn. continued on next page.)
28

Against the justification for the delay must be balanced the minimal 

prejudice identified by appellant. She claims witnesses would have been able to 

testify with greater certainty that she showed no sign of injury in the days 

following the murder. This would have been of marginal significance. The record 

was undisputed that no one observed appellant to have been injured in the days 

after the murder, and it was entirely possible that Rasmussen’s attacker suffered no 

visible injury, as Rasmussen was struck with a gun and another heavy object 

before being killed and had very little foreign tissue under her fingernails.

Moreover, the areas of appellant’s body her partner and coworker could have seen

were limited. 

Appellant claims she could have produced her gun and established that it 

was not the murder weapon. But according to appellant, her gun was stolen within 

two weeks of the killing. The investigation could not reasonably have been 

concluded within that period of time. 

Appellant claims a loss of evidence “to impeach” the chain of custody for 

the biological evidence, but identifies no such potential evidence. As the trial court 

observed, the passage of time was more likely prejudicial to the prosecution than 

 

nuclear DNA evidence (i.e., analysis of DNA patterns in the nuclei of cells) for forensic 

identification purposes took place in a 1988 Florida case,” two years after the Rasmussen 

homicide. (Chin et al., Forensic DNA Evidence: Science and the Law (Updated April 

2015) § 2:1, 1st par., citing Andrews v. State (Fla. 1988) 533 So.2d 841.) Moreover, 

“[e]arly cases involved a DNA typing process known as RFLP, or Restriction FragmentLength Polymorphism. [Citation.] While highly discriminating as an identifier, RFLP 

testing requires a sample size much larger than what is now suitable for STR (Short 

Tandem Repeat) test results . . . .” (Ibid.) The first reference to STR analysis, the type 

performed here, was in 1997, more than a decade after Rasmussen’s murder. (See 

Commonwealth v. Rosier (1997) 425 Mass. 807 [685 N.E.2d 739]; see also People v. 

Allen (1999) 72 Cal.App.4th 1093, 1099-1100 [acknowledging the absence of “published 

California decisions discussing STR”].)
29

the defense in demonstrating an adequate chain of custody, and appellant does not 

assign error to any trial court ruling based on chain of custody. 

Appellant claims the loss of 911 and “police communication” tapes 

prejudiced her ability to show that there were other suspects. We agree with the 

trial court that the possibility of any exonerating evidence on such tapes was 

speculative in the extreme. The body was not discovered for many hours, when 

Ruetten returned home in the evening and called 911. He had no information 

about how Rasmussen died or who killed her, and could have said nothing to 

support the existence of other suspects. After the police arrived in response to 

Ruetten’s call, Volanitis and Flores were interviewed and gave written statements 

that were made available to the defense. There was no indication that either called 

911, and no suggestion that anyone else in the area noticed anything amiss at the 

time of the murder. 

Finally, appellant claims that the delay interfered with her ability to identify 

alternate suspects whose presence was allegedly demonstrated by the unidentified 

fingerprints and DNA found at the scene and in the BMW. Such evidence -- found 

in locations and quantities consistent with casual contact -- did not suggest the 

presence of another assailant. Moreover, the databases of criminals whose 

fingerprint and DNA samples were available for computer matching had only 

increased in the intervening years. In view of the minimal prejudice and the lack 

of indication that any significant evidence had been lost, the trial court did not 

abuse its discretion in denying the motion to dismiss.
30

B. Motion to Quash

1. Background

Two warrants were issued authorizing searches of appellant’s property.

32

 

The first permitted authorities to search appellant’s residence and several vehicles 

registered to her. It sought electronically and digitally stored material, documents, 

and records related to the homicide, Rasmussen or Ruetten, including “letters, 

diaries, journals, writings, newspaper articles, books, correspondence, [or] greeting 

cards”; photographs of Ruetten and Rasmussen; items that may have belonged to 

Ruetten or Rasmussen; information identifying persons “who may have associated 

with or [may] have known” Ruetten, Rasmussen or appellant; medical or dental 

records tending to establish whether appellant received treatment for injuries after 

February 24, 1986; “bills, receipts, papers, reports or forms” from 1986 generally; 

and all .38/.357 caliber firearms in appellant’s possession. The second warrant,

issued by a different magistrate, gave permission to search the “computers, storage 

media, computer hardware and digital evidence” seized pursuant to the first 

warrant, including “[email], internet browsing histories, cached information, 

partially deleted files, records, receipts, screen captures, photographs, logs, [and] 

printouts.”

The first warrant was issued pursuant to a 26-page affidavit and statement of 

probable cause executed by Detective G. Stearns, a 14-year veteran of the LAPD 

who had been involved in approximately 150 homicide investigations, 40 as the 

lead investigator. Detective Stearns related in detail the facts surrounding the 

 

32 A third search warrant seeking the contents of appellant’s cellular phone is not at 

issue here. 
31

homicide and the 1986 investigation.33 Detective Stearns also related the facts 

surrounding DNA testing of the bite mark swab and other tissue samples from the 

crime scene by LAPD criminalist Francis, and the collection and testing of 

appellant’s discarded straw and cup for DNA comparison purposes. He stated that 

in 2009, Detective Nuttal was assigned to the matter and re-interviewed Ruetten. 

Ruetten told the detective about his relationship with appellant and appellant’s 

emotional reaction to learning of Ruetten’s engagement to Rasmussen. The 

affidavit described appellant as “express[ing] to [Ruetten] that she wished to 

pursue a committed relationship with him” at their June 1985 meeting. Detective 

Nuttal discovered that the day of the murder was a day off for appellant. The 

affidavit also described two meetings between appellant and Rasmussen. In the 

first, at Rasmussen’s workplace, appellant had allegedly told Rasmussen about 

getting together with Ruetten after he had begun dating Rasmussen and said, “‘If I 

can’t have John, you can’t either.’” On the second occasion, reported to Detective 

Nuttal by Rasmussen’s father, Rasmussen “found [appellant], in full police 

uniform, standing in the living room area” of her condominium, and had no idea 

how appellant had gotten in. There was a verbal altercation between them that left 

Rasmussen fearful. Rasmussen also allegedly told her Father two weeks before her 

death that she had arranged to meet someone to resolve “‘a serious problem’” she 

did not want to discuss with her husband. 

Detective Stearns stated in his original affidavit that based on the 

information currently available in the investigation and specifically, the evidence 

 

33 These details involved the injuries to the body, the evidence found at the crime 

scene, and the statements of the witnesses in 1986. The discussion in Detective Stearns’s 

affidavits with respect to these matters was not significantly different from the evidence 

adduced at trial, and we do not repeat it here.
32

that appellant’s relationship with Ruetten “was significant to her and that she was 

extremely upset and devastated when Ruetten became engaged to and ultimately 

married Rasmussen,” and the fact that the gun appellant had reported stolen on 

March 19, 1986 had never been recovered, it was reasonable to believe that

appellant “may still be in possession of diaries, daily journals or other writings 

expressing her feelings towards Ruetten and Rasmussen at the time leading up to 

and after the murder,” as well as the weapon used to commit the homicide, and that

“the locations to be searched may contain photographs, names, addresses and/or 

information that will identify current and former co-workers, friends or associates 

who may have knowledge of [appellant’s] activities and appearance from the 

period when the murder occurred or other material information relevant to this 

investigation.”

Detective Stearns also submitted a brief affidavit in support of the second 

warrant. He described the seizing of the electronic items pursuant to the first 

warrant and stated the items “may contain images, files, documents or other data

related to this investigation” or information concerning “persons who might be 

material witnesses in this case or have other information relevant to the ongoing 

investigation.” 

The searches of appellant’s home and computers that followed issuance of 

the two warrants led to the discovery of evidence introduced at trial, including 

appellant’s journal and planner, photographs appellant had kept of Ruetten, and 

evidence that appellant had conducted several on-line searches for information 

about Ruetten over the years. 

Prior to trial, appellant moved to quash the warrants and suppress the 

evidence obtained during the searches. Focusing on the original affidavit, she 

contended Detective Stearns had expressed unsupported opinions in it and that the 

information it contained was stale. She further contended both warrants were 
33

overbroad. She asserted that the “good-faith” exception set forth in United States

v. Leon (1984) 468 U.S. 897 (Leon) was inapplicable because Detective Stearns

could have had no “objectively reasonable” belief in the warrants’ validity. 

Respondent opposed, contending the relationship between appellant, the victim and

Ruetten, coupled with the nature of the crime, provided support for the issuance of 

the warrants, that the items sought were likely to have been retained by appellant, 

that the warrants were not overbroad, and that, in any event, the good faith 

exception applied. 

The court denied the motion to quash. At the hearing, the court stated that 

the “main reason” for the denial was the evidence of the detective’s good faith. 

The court found nothing to suggest that Detective Stearns had tried to mislead

either magistrate. The court agreed there was a plausible argument for overbreadth 

in the requests to search for “bills, receipts, paper or reports or forms from 1986” 

and for the names of all “people who may have associated with” Rasmussen, 

Ruetten or appellant. The court was “uncomfortable” with the request to search 

appellant’s computers because they were unlikely to have been in existence at the 

time of the crime. However, the court concluded that warrants should not be read 

in a hypertechnical way and that it was up to the issuing magistrates to tell the 

detective to “‘tighten [the] language’” or “beef it up.” With respect to staleness, 

the court stated that in light of its finding of good faith, it had no reason to reach 

any issue pertaining to probable cause. The court observed, however, that the 

detective had clearly laid out in the affidavit that he was looking for evidence of 

the relationship that was “the motivating factor for the killing,” and that it was 

“reasonable to conclude that there would be [such] evidence” in appellant’s home,

given “the nature of the items sought,” and the fact that “the interest in maintaining 

the relationship was so strong that . . . it [allegedly] drove the suspect to commit 

the murder or the killing in the first place.”
34

2. Analysis

a. The issuance of the warrants was supported by probable 

cause

The Fourth Amendment to the United States Constitution prohibits 

“‘unreasonable searches and seizures’” and requires search warrants to be issued 

only upon a showing of “probable cause” describing with particularity “the place 

to be searched and the . . . things to be seized.” United States Supreme Court

decisions establish an exclusionary rule that, when applicable, forbids the use of 

evidence obtained in violation of the Fourth Amendment at trial. (Herring v. 

United States (2009) 555 U.S. 135, 139.)34 “‘Probable cause sufficient for issuance 

of a warrant requires a showing that makes it “‘substantially probable that there is 

specific property lawfully subject to seizure presently located the particular place 

for which the warrant is sought.”’ [Citation.] That showing must appear in the 

affidavit offered in support of the warrant. [Citation.]’” (People v. Bryant, supra,

60 Cal.4th at pp. 369-370, quoting People v. Carrington (2009) 47 Cal.4th 145, 

161.) Probable cause may be shown by evidence that would not be competent at 

trial, including “‘information and belief.’” (People v. Varghese (2008) 162 

Cal.App.4th 1084, 1103, quoting Humphrey v. Appellate Division (2002) 29 

Cal.4th 569, 573.)

The magistrate issuing the warrant “is entitled to rely upon the conclusions 

of experienced law enforcement officers in weighing the evidence supporting a 

request for a search warrant as to where evidence of crime is likely to be found. 

 

34 As noted, the truth-in-evidence provision of the California Constitution requires 

California courts to apply federal constitutional law to motions to suppress evidence 

obtained as the result of unreasonable searches and seizures. (Cal.Const., art. I, § 28, 

subd. (f)(2); People v. Maikhio (2011) 51 Cal.4th 1074, 1089.)
35

[Citation.] It is not essential that there be direct evidence that such evidence will 

be at a particular location. Rather, the magistrate ‘“is entitled to draw reasonable 

inferences about where evidence is likely to be kept, based on the nature of the 

evidence and the type of offense.”’ [Citation.]” (People v. Sandlin (1991) 230 

Cal.App.3d 1310, 1315, quoting United States v. Fannin (9th Cir. 1987) 817 F.2d 

1379, 1381-1382.)

“In reviewing a trial court’s denial of a motion to suppress evidence 

obtained pursuant to a warrant, ‘[w]e defer to the trial court’s factual findings, 

express or implied, where supported by substantial evidence. In determining 

whether, on the facts so found, the search or seizure was reasonable under the 

Fourth Amendment, we exercise our independent judgment [citations],’” giving 

“great deference to the magistrate’s determination of probable cause.” (People v. 

HuIland (2003) 110 Cal.App.4th 1646, 1651, quoting People v. Glaser (1995) 11 

Cal.4th 354, 362.) “In cases where the facts are essentially undisputed, we 

independently determine the constitutionality of the challenged search or seizure.” 

(People v. Rangel (2012) 206 Cal.App.4th 1310, 1315.) “[B]ecause ‘[r]easonable 

minds frequently may differ on the question whether a particular affidavit 

establishes probable cause,”’ . . . ‘“doubtful or marginal”’ cases are to be resolved 

with a preference for upholding a search under a warrant.” (People v. French

(2011) 201 Cal.App.4th 1307, 1315, quoting Leon, supra, 468 U.S. at p. 914.) 

Appellant contends that because the crime occurred more than 20 years 

before the issuance of the warrants, the information used to support them was 

necessarily stale. Appellant further contends the fact that she moved residences 

during those years precluded a finding of any nexus between items related to the 

crime and her current home. Finally, she contends the search of her computers was 

improper because the affidavit provided no substantial evidence to support that 

they existed at the time of the crime or that appellant kept evidence of the crime on 
36

them. In the exercise of our independent judgment, we conclude that the 

information in the affidavit provided probable cause to search appellant’s current 

home and computers despite the passage of years.

There is no “bright-line rule defin[ing] the point at which information is 

considered stale.” (People v. Carrington, supra, 47 Cal.4th at p. 163.) “Rather, 

‘the question of staleness depends on the facts of each case.’ [Citation.]” (Id. at 

p. 163.) The question turns on whether “facts supporting the warrant application 

establish it is substantially probable the evidence sought will still be at the location 

at the time of the search.” (People v. Bryant, supra, 60 Cal.4th at p. 370, italics 

deleted.) “Substantial delays do not render warrants stale where the defendant is 

not likely to dispose of the items police seek to seize.” (People v. Stipo (2011) 195 

Cal.App.4th 664, 672; see U.S. v. McCall (4th Cir. 1984) 740 F.2d 1331, 1336 

[“‘The vitality of probable cause cannot be quantified by simply counting the 

number of days between the occurrence of the facts supplied and the issuance of 

the affidavit.’”].) Courts have recognized that firearms are likely to be retained by 

a suspect long after the crime is committed. (See, e.g., People v. Bryant, supra, at 

p. 369; U.S. v. Singer (7th Cir. 1991) 943 F.2d 758, 763; United States v. Maxim

(8th Cir. 1995) 55 F.3d 394, 397 [recognizing that firearms enthusiasts could be 

expected to hold onto weapons for 10 or 20 years].) “[F]irearms, unlike drugs, are 

durable goods useful to their owners for long periods of time.” (U.S. v. Singer, 

supra, at p. 763.) Courts also recognize the longevity of information stored on 

computers. (See, e.g., U.S. v. Lemon (8th Cir. 2010) 590 F.3d 612, 615-616; U.S.

v. Newsom (7th Cir. 2005) 402 F.3d 780, 783; see U.S. v. Johnson (D. Md. 2012) 

865 F.Supp.2d 702, 707 [because evidence on a computer is recoverable months or 

years after it has been downloaded, deleted, or viewed “the age of the information 

supporting a warrant is increasingly irrelevant when the object searched is stored 

on a computer”].) 
37

Here, the affidavit presented strong evidence of appellant’s guilt and she 

does not argue otherwise. The affidavit also presented evidence of appellant’s 

apparent motive: her romantic obsession with the victim’s husband. Given the 

evidence that her obsession was powerful enough to lead her to commit murder, it 

was probable that she would have continued to retain items evidencing her 

relationship with Ruetten and her feelings toward Ruetten and Rasmussen, even 

after all the years that had passed. Moreover, although she claimed her Smith & 

Wesson Model 49 revolver, the probable murder weapon, had been stolen, the 

magistrate could reasonably conclude that she had instead hidden it and kept it near 

her. (See People v. Carrington, supra, 47 Cal.4th at p. 163 [magistrate could 

reasonably conclude that suspect’s residence was logical place to look for specific 

incriminating items]; U.S. v. Steeves (8th Cir. 1975) 525 F.2d 33, 38 [people who 

own guns generally keep them at home or on their persons].) With respect to her 

contention that her move from one residence to another precluded a finding of a 

nexus between her current home and the evidence sought, the warrants specifically 

sought photographs, journals and diaries. A person does not normally discard such 

items, even after several moves. (See U.S. v. Freeman (5th Cir. 1982) 685 F.2d 

942, 949 [nexus between house to be searched and evidence sought may be 

established either through direct observation or through normal inferences as to 

where articles sought would be located]; U.S. v. Domingo (M.D. Fla. 2010) 2010 

U.S. Dist. LEXIS 124145, at *19-22 [reasonable to infer that defendant would 

move valued materials to his new residence].) 

Appellant claims that the warrant was overbroad in granting permission to 

search her computers, as there was no evidence she owned any of them at the time 

of the homicide. The fact that she may not have owned those computers at the 

time of the crime did not preclude the possibility that she had transferred 

information or records -- particularly photographs -- to computers owned at the 
38

time of the search. (Cf. Arkansas Chronicle v. Easley (E.D. Va. 2004) 321 

F.Supp.2d 776, 795 [recognizing that photographs and video preserved in 

computer format are “easily transferrable”]; U.S. v. Christie (10th Cir. 2013) 717 

F.3d 1156, 1164 [observing that personal computers often hold “diaries, calendars, 

files, and correspondence”].) Moreover, had she made new journal entries about 

Ruetten or Rasmussen years after the homicide, that would have been highly 

pertinent to motive. Finally, any evidence that in the ensuing years she had

conducted computer searches for information about Ruetten or the homicide would 

have further evidenced her strong feelings for him during the relevant period. (See 

People v. Varghese, supra, 162 Cal.App.4th at p. 1106 [fact that defendant 

researched romantic rival on his computer was evidence of jealousy and supported 

that rival’s murder was “crime of passion”].) In short, probable cause supported 

the issuance of the warrants despite the time that had passed since the crime. 

Moreover, as discussed below, even were we to find otherwise, the good faith 

exception would have precluded application of the exclusionary rule.

b. The good faith exception precluded suppression of 

evidence obtained in the searches.

In Leon, the Supreme Court held that when “an officer acting with objective 

good faith has obtained a search warrant from a judge or magistrate and acted 

within its scope,” the “marginal or nonexistent benefits” produced by suppressing 

the evidence obtained “cannot justify the substantial costs of exclusion.” (Leon, 

supra, 468 U.S. at pp. 920-922.) “[T]he exclusionary rule is designed to deter 

police misconduct rather than to punish the errors of judges and magistrates.” 

(Id. at p. 916.) Therefore, suppression of evidence is an appropriate remedy only if 

“the magistrate or judge in issuing [the] warrant was misled by information in an 

affidavit that the affiant knew was false or would have known was false except for 
39

his reckless disregard of the truth,” the affidavit is “‘so lacking in indicia of 

probable cause as to render official belief in its existence entirely unreasonable,’” 

or the affidavit is so deficient in particularizing the place to be searched or the 

things to be seized that the executing officer “cannot reasonably presume it to be 

valid.” (Leon, supra, at p. 923.) In considering the issue, we apply the objective 

test of “‘whether a reasonably well trained officer would have known that the 

search was illegal despite the magistrate’s authorization.’” (People v. Hochanadel

(2009) 176 Cal.App.4th 997, 1015, quoting Leon, supra, 468 U.S. at p. 923, 

fn. 23.) We review the trial court’s application of the good faith exception de 

novo. (See United States v. Crews (9th Cir. 2007) 502 F.3d 1130, 1135.)

Here, there is no question that the searches of appellant’s home, 

automobiles, and computers took place after the issuance of duly authorized 

warrants. We perceive no misrepresentations in the supporting affidavits. 

Appellant contends the detectives involved in the searches should have been aware 

that the supporting affidavits were lacking in any indicia of probable cause due to 

the staleness of the information. As discussed, the concept of staleness depends on 

the facts of the crime and the nature of the items or information sought. The 

evidence known to Detective Stearns established that there was a strong possibility 

appellant had killed Rasmussen and that she had done so as the result of jealousy 

and romantic obsession. According to information known to him and set forth in 

his affidavit, her strong feelings led her to an emotional outburst in front of Ruetten 

and to two prior hostile confrontations with Rasmussen. Given the intensity of her 

feelings demonstrated by her conduct, there was a reasonable likelihood that she 

would have documents or information relevant to her feelings toward Ruetten or 

the killing of Rasmussen in her home or on her computers. Even were we to 

conclude otherwise, we perceive no basis for the detectives involved to have 
40

concluded there was no reasonable basis to support probable cause. Accordingly, 

we find no error in the trial court’s decision to deny the motion to suppress.

35

C. Motion to Traverse

1. Background

Prior to trial, appellant moved to traverse the warrants, seeking a hearing 

pursuant to Franks v. Delaware (1978) 438 U.S. 154, in which defense counsel 

could cross-examine Detective Stearns. Appellant contended Detective Stearns 

misrepresented the nature of the communication between appellant and Ruetten 

after she learned of his engagement, and that the detective omitted material facts, 

including that appellant never initiated contact with Ruetten after the homicide, 

that she started dating her present husband in 1992, that she had been married for 

13 years and had a young child, and that she had not moved into the residence that 

was the subject of the initial warrant until May 1994. Respondent opposed, 

contending appellant had failed to make the necessary showing of material 

falsehood. The trial court denied the motion, finding no significance to the alleged 

misrepresentations and no likelihood that had the omitted facts been included, the 

issuing magistrates would have denied the warrant applications. 

2. Analysis

In Franks v. Delaware, the Supreme Court held that “where the defendant 

makes a substantial preliminary showing that a false statement knowingly and 

intentionally, or with reckless disregard for the truth, was included by the affiant in 

 

35 Because we find that the search warrants were properly issued and that, in any 

event, the officer’s reliance on them was justified under Leon, we need not address 

respondent’s argument that any error in denying the motion to suppress was harmless.
41

the warrant affidavit, and if the allegedly false statement is necessary to the finding 

of probable cause, the Fourth Amendment requires that a hearing be held at the 

defendant’s request. In the event that at that hearing the allegation of perjury or 

reckless disregard is established by the defendant by a preponderance of the 

evidence, and, with the affidavit’s false material set to one side, the affidavit’s 

remaining content is insufficient to establish probable cause, the search warrant 

must be voided and the fruits of the search excluded to the same extent as if 

probable cause was lacking on the face of the affidavit.” (Franks v. Delaware, 

supra, 438 U.S. at pp. 155-156.) Our Supreme Court has said that “‘[a] defendant 

who challenges a search warrant based upon an affidavit containing omissions 

bears the burden of showing that the omissions were material to the determination 

of probable cause.’” (People v. Panah (2005) 35 Cal.4th 395, 456, quoting People 

v. Bradford (1997) 15 Cal.4th 1229, 1297.) Facts omitted from a search warrant 

affidavit are “not material” if “there is no ‘substantial possibility they would have 

altered a reasonable magistrate’s probable cause determination,’ and their omission 

did not ‘make the affidavits substantially misleading.’” (People v. Eubanks (2011) 

53 Cal.4th 110, 136.) We review de novo a trial court’s decision denying a Franks

evidentiary hearing into the affiant’s state of mind. (People v. Panah, supra, 35 

Cal.4th at p. 457.)

Here, the trial court found no material misrepresentations in either affidavit. 

It further found that the information omitted was immaterial and would not have 

led to a different decision on the part of the issuing magistrates. We agree. That

appellant married years after the homicide had no bearing on whether she would 

likely have retained items relevant to the case, as discussed above. Moreover, we 

find no merit to appellant’s contention that Detective Stearns misled the issuing 

magistrates by either affirmative falsehoods or omissions. Although Detective 

Stearns’s original affidavit did not state that appellant did not initiate contact with 
42

Ruetten after their June 1985 meeting, it did not reference any later meetings and 

did not create the impression that appellant pursued Ruetten after the homicide. 

And while the affidavit did not state that appellant had changed residences, neither 

did it suggest that the residence to be searched was appellant’s residence in 1986. 

In short, nothing contained in or omitted from Detective Stearns’s affidavits 

rendered them “‘substantially misleading.’” (People v. Eubanks, supra, 53 Cal.4th 

at p. 136, italics deleted.) Accordingly, there was no basis for a Franks hearing, 

and the trial court did not err in refusing to hold one.

D. Admissibility of Appellant’s Interview

1. Background

Appellant was interviewed by two detectives on June 5, 2009, while still 

employed by the LAPD. She was persuaded to enter the interview area by a ruse: 

the detectives told her they needed her expertise in an art theft investigation. Once 

inside the interview room, the detectives admitted wanting to question appellant

about “a case [they were] working on” involving Ruetten and his wife. They said 

they had gotten appellant away from her desk in order to protect her privacy and 

prevent her coworkers from overhearing the questions and answers. They later 

said they “got this [case] the other day” and that the chief was “pushing some older 

cases out even to the guys . . . [¶] . . . that work active cases.” Appellant stated she 

vaguely recalled speaking to someone during the original investigation. The 

detectives did not tell appellant she was in custody. She was not advised of her 

Miranda rights prior to the interview.36 During the interview, she was told she was 

not under arrest, that she could walk out whenever she felt like it, and that she was 

 

36 Miranda v. Arizona (1966) 384 U.S. 436. 
43

“free to go.” Appellant herself referred to the possibility that she would recall 

more information pertinent to the investigation “as soon as I walk out of here.” 

Near the end of the interview, appellant stated that she knew “how this stuff 

works,” and asked if the detectives viewed her as a “suspect,” if the interview was 

“an interrogation,” and if they were “trying to pin something on [her].” Asked if 

she would provide a DNA sample, she said “[m]aybe,” and that she needed to talk 

to a lawyer. Appellant was allowed to walk out of the interview room, but

thereafter was arrested and advised of her Miranda rights. She declined to speak 

further. 

Prior to trial, the prosecution moved to admit a recording of appellant’s

interview. The moving papers asserted that appellant was not in custody at the 

time of the questioning and therefore Miranda warnings were not required. The 

prosecution further contended that the Public Safety Officers Procedural Bill of 

Rights Act (Gov. Code, § 3300 et seq., POBRA) did not apply, because the 

investigation was concerned solely and directly with criminal activities.37 

Appellant did not dispute that she was not in custody for purposes of 

Miranda. She contended, however, that the statements were inadmissible under 

 

37 POBRA applies generally where the “public safety officer is under investigation 

and subjected to interrogation by his or her commanding officer, or any other member of 

the employing public safety department, that could lead to punitive action” and provides: 

“If prior to or during the interrogation of a public safety officer it is deemed that he or she 

may be charged with a criminal offense, he or she shall be immediately informed of his 

or her constitutional rights.” (Gov. Code, § 3303, subd. (h).) However, section 3303, 

subdivision (i) specifically states: “This section shall not apply to . . . an investigation 

concerned solely and directly with alleged criminal activities.” (See also § 3303 

[“[P]unitive action means any action that may lead to dismissal, demotion, suspension, 

reduction in salary, written reprimand, or transfer for purposes of punishment.”].)
44

Garrity v. New Jersey (1967) 385 U.S. 493 (Garrity).

38 Appellant submitted a 

declaration in which she stated: “I was aware [during the interview] that if I did 

not answer their question, I could be subject to discipline by the [LAPD]. [¶] . . . 

This discipline would consist of a wide range of possible penalties, including 

suspension or termination of employment.”39 Appellant also presented evidence 

that in January 2010, LAPD’s internal affairs group recommended terminating her 

based on the following allegations: (1) “beginning [on] June 5, 2009[,] to the 

present, [appellant] has not reported for duty to her position at Commercial Crimes 

Division, as required”; (2) “on or about June 5, 2009, [appellant] became the 

subject of a criminal investigation, which resulted in her arrest for the murder of S. 

Rasmussen.” 

In its reply, the prosecution submitted the declaration of Mark Perez, an 

LAPD Deputy Chief. He stated that when an officer is internally or 

administratively investigated, a complaint form is prepared, the officer is notified 

in advance of any interrogation, and he or she is given an opportunity to be 

represented. If the officer does not wish to give a voluntary statement during an 

administrative interrogation, he or she is “explicitly ordered, on pain of 

administrative discipline up to and including termination, to . . . answer questions.” 

Such instruction is “always explicit and verbal, and the officer being interrogated is 

directed to sign a form indicating that [the officer is] the subject of an 

administrative investigation and that [the officer is] providing a statement under 

 

38 In Garrity, discussed further below, the Supreme Court held that the statements of 

police officers made under threat of removal from office were coerced and could not be 

used in subsequent criminal proceedings. (Garrity, supra, 385 U.S. at p. 500.) 

39 Respondent contends on appeal for the first time that the declaration was 

inadmissible hearsay. Respondent forfeited that objection by failing to raise it in a more 

timely manner.
45

duress, for administrative purposes only.” Deputy Chief Perez stated that appellant 

was never subjected to administrative interrogation. Also attached to the reply was 

documentary evidence that appellant herself had acted as an internal affairs 

investigator, and thus had knowledge of the procedures employed when an officer 

was under internal investigation and subject to discipline. 

At the hearing, counsel for respondent further explained: “[I]n every case 

[in which the LAPD seeks to compel a statement from an officer] . . . they ask, 

[‘]are you going to give a voluntary statement?[’]” If the officer exercises his or 

her Fifth Amendment privilege, the response is: “[‘]Very well, we are going to 

order you now to make a statement and now your privilege is protected because 

it’s supplanted by the use immunity.[’]” In other situations “before a grand jury, 

. . . in a civil matter, in a criminal matter,” the police officer retains his or her Fifth 

Amendment rights. Accordingly, “[the privilege] existed in that interview room 

when [appellant] was being interviewed by [the] detectives.” 

The court ruled the interview tape admissible. At the hearing, the court 

explained that because the detectives conducting the interview were from a 

different unit, were not in appellant’s supervisory chain of command, and 

approached her using a ruse, they were clearly conducting a criminal investigation. 

Although appellant stated in her declaration that she believed she would be 

terminated if she did not answer the detectives’ questions, the court found her 

assertion was not “objectively reasonable” based on the interview transcript as a 

whole, particularly the absence of any suggestion by the detectives that appellant 

was required to talk to them, and the absence of any inquiry by appellant whether 

she was required to answer their questions or was under administrative 

investigation. The court placed “little weight” on the fact that “eight months after 

the interview” the Department took administrative action against appellant due to 

her failure to report for duty since her arrest and her involvement in a criminal 
46

prosecution. The court found it “very clear that [the interview] was a criminal 

investigation[,] . . . exempt from [POBRA],” and that “[appellant’s] statements 

were voluntar[y] up until she was advised of her Miranda rights and invoked them

. . . .” 

2. Analysis

In Garrity, supra, 385 U.S. 493, the United States Supreme Court held that a 

police officer may not be compelled to choose between providing unprotected 

incriminating testimony and losing his or her job. There, officers under 

investigation for fixing tickets were told they would be terminated if they refused 

to answer investigators’ questions. The court held that the protection against 

coerced statements provided by the Fifth Amendment as incorporated in the 

Fourteenth Amendment “prohibits use in subsequent criminal proceedings of 

statements obtained under threat of removal from office . . . .” (385 U.S. at 

p. 500.)

Appellant appears to believe that Garrity applies to any statement made by a 

police officer during an interview conducted by fellow law enforcement officials. 

She is mistaken. “[T]he right against self-incrimination is not . . . violated until 

statements obtained by compulsion are used in criminal proceedings against the 

person from whom the statements were obtained.” (Spielbauer v. County of Santa 

Clara (2009) 45 Cal.4th 704, 727, italics added, italics omitted.) “[A]nswers freely 

given [by government employees] are not immune from use in criminal 

proceedings . . . .”” (Evangelou v. District of Columbia (D.D.C. 2012) 901 

F.Supp.2d 159, 166.) Thus, appellant’s statements were subject to suppression 

only if they were obtained by compulsion or coercion, rather than voluntarily 

given. We agree with the trial court that appellant’s statements were voluntary. 
47

In Garrity, the compulsion element was obvious: before being questioned 

each officer was told that “if he refused to answer he would be subject to removal 

from office.” (Garrity, supra, 385 U.S. at p. 494.) Accordingly, some federal 

courts have held that “for [Garrity] to apply, the threat of a penalty for remaining 

silent must have been explicit” (U.S. v. Corbin (7th Cir. 1993) 998 F.2d 1377, 

1390), and that absent an explicit threat of termination by the interrogators, there 

can be no compulsion and thus, no need to suppress. (See, e.g., Dwan v. City of 

Boston (1st Cir. 2003) 329 F.3d 275, 279 [“[C]oercion is lacking so long as the 

employee was never threatened or forewarned of any sanction for refusing to 

testify, even though the employee suffers adverse action after-the-fact as a result of 

refusing to cooperate.”]; accord, U.S. v. Palmquist (1st Cir. 2013) 712 F.3d 640, 

645; U.S. v. Indorato (1st Cir. 1980) 628 F.2d 711, 716; Singer v. State of Maine

(1st Cir. 1995) 49 F.3d 837, 847.) In U.S. v. Indorato, for example, where the 

defendant -- a police lieutenant -- was convicted of theft of property and perjury, 

the court held that statements he made in response to joint questioning by his 

superiors and FBI agents were admissible because the defendant “was not in 

custody,” there was “no overt threat that defendant would be dismissed if he 

refused to answer the questions asked,” and a rule requiring officers to obey lawful 

orders did not suggest that “dismissal would . . . have automatically followed 

defendant’s invocation of the fifth amendment.” (628 F.2d at pp. 715-716.)

Others courts have applied a less restrictive test, holding that a police officer 

claiming the protection of Garrity “must have in fact believed [his] . . . statements 

to be compelled on threat of loss of job, and this belief must have been objectively 

reasonable.” (U.S. v. Friedrick (D.C. Cir. 1988) 842 F.2d 382, 395; see, e.g., U.S. 

v. Vangates (11th Cir. 2002) 287 F.3d 1315, 1321-1322 [“In the absence of a direct 

threat, we determine whether the officer’s statements were compelled by 

examining her belief and, more importantly, the objective circumstances 
48

surrounding it.”]; accord, McKinley v. City of Mansfield (6th Cir. 2005) 404 F.3d 

418, 436; U.S. v. Waldon (11th Cir. 2004) 363 F.3d 1103, 1112; U.S. v. Trevino

(5th Cir. 2007) 215 Fed.Appx. 319, 321; U.S. v. Stein (S.D.N.Y. 2006) 440 

F.Supp.2d 315, 328; U.S. v. Camacho (S.D. Fla. 1990) 739 F.Supp. 1504, 1515.)

For example, in U.S. v. Trevino, the defendant police officer was called in by his 

chief and instructed to talk to a Texas Ranger conducting a criminal investigation. 

(U.S. v. Trevino, supra, 215 Fed.Appx. at p. 320.) During the interview, the 

defendant admitted sexual misconduct with female arrestees; in a later criminal 

trial, he sought to suppress the statements. (Ibid.) The Fifth Circuit rejected the 

proposition that the absence of an explicit threat of discharge rendered the 

statement voluntary, concluding that “implied threats could violate a defendant’s 

Garrity rights.” (Id. at p. 321.) It found, however, that “[l]ooking at the objective 

circumstances surrounding [the defendant’s] questioning, it is clear that he was not 

faced with ‘“the Hobson’s choice of either making an incriminating statement or 

being fired . . . .”’ [Citation.] [His] supervisors were not present during his 

questioning and never indicated to him that his job would be in any greater 

jeopardy if he failed to cooperate. . . . Further, [the defendant] was told before 

questioning began that he was free to leave the interrogation room at any time. 

Thus, the district court did not err in admitting his statement, as the statement did 

not implicate [his] Garrity rights.” (Id. at p. 322, quoting U.S. v. Vangates, supra,

287 F.3d at p. 1321.)40

 

40 For an example of a situation in which an officer interviewed by criminal 

investigators was found to have been subject to compulsion, see U.S. v. Friedrick, supra, 

842 F.2d at pp. 395-397 [FBI employee who had been questioned multiple times by his 

employer in connection with an internal investigation reasonably believed he was 

compelled under threat of job sanctions to speak during interviews conducted by DOJ 

criminal investigators: he had been ordered to appear at the interviews by his FBI 

(Fn. continued on next page.)
49

We need not resolve whether the threat of discharge must be overt, as here, 

the trial court found not only that there was no express compulsion, but that

appellant had no objectively reasonable basis to believe she was compelled to 

answer the detectives’ questions. The court’s finding are supported by the record. 

Appellant was not directed by her superiors to submit to the interview. The 

detectives were not in her supervisory chain of command or even in her unit. They 

were not internal affairs investigators, and at no point did they suggest that 

appellant’s job was in jeopardy if she refused to speak to them. They obtained her 

initial cooperation by using the ruse of needing help with an investigation, and then 

candidly informed her they wished to discuss her relationship with Ruetten and the 

Rasmussen homicide, which they referred to as the “case” they were “working on.” 

Thus, it was clear that the interview was part of a criminal investigation. At no 

point did the detectives suggest that appellant was required to answer their 

questions or remain in the interview room. Nor did appellant do or say anything 

indicating she felt compelled to remain or to answer their questions. As a longtime police officer formerly assigned to internal investigations, appellant was 

familiar with the distinctions between criminal and internal investigations and the 

obligations imposed on officers by each. From the fact that the detectives did not 

provide her with a formal complaint or discuss her POBRA rights, appellant would 

have been aware that the questioning was not in connection with an internal affairs 

matter. The fact that she remained in the room answering questions does not 

support that she felt compelled, but only that she wished to allay suspicion by 

 

superiors; the time gap between the two sets of interviews was brief; he had been told by 

his superiors that these were “‘further interviews,’” not a separate criminal investigation; 

he had been informed from the beginning that FBI and DOJ were conducting a joint 

inquiry; and he had not been provided the written warning about use of incriminating 

statements generally given to employees providing voluntary statements].
50

avoiding behaving in a manner that suggested guilt. Under all the circumstances, 

her alleged subjective belief was not reasonable. 

Appellant contends that California law imposes a duty on police officers to 

provide all information in their possession about criminal activity -- including their 

own -- and permits imposition of discipline if they fail to answer questions relating 

to a criminal inquiry. From this, she argues that any statement made by an officer

-- even in a purely criminal investigation -- is necessarily legally compelled. For 

this novel proposition appellant relies primarily on a case decided over threequarters of a century ago. In Christal v. Police Commission (1939) 33 Cal.App.2d 

564, police officers discharged for refusing to appear before a grand jury to answer 

questions about corruption and receipt of bribes, filed a civil suit seeking to regain 

their employment. The court held that the officers could not exercise their

constitutional privilege of refusing to testify under the circumstances presented 

“and still insist upon retaining their positions as police officers.” (33 Cal.App.2d 

at p. 567.) The court explained: “When police officers acquire knowledge of facts 

which will tend to incriminate any person, it is their duty to disclose such facts to 

their superiors and to testify freely concerning such facts when called upon to do 

so before any duly constituted court or grand jury. . . . [I]t is a violation of said 

duties for any police officer to refuse to disclose pertinent facts within his 

knowledge even though such disclosure may show, or tend to show, that he himself 

has engaged in criminal activities.” (Id. at pp. 567-568.) The officers “attempted 

to . . . claim an alleged right to continue as police officers despite a violation of 

their duties as such officers. It seems clear that they had no such right. [Citation.]” 

(Id. at p. 573.)

To the extent Chrystal stands for the proposition that an officer has a duty to 

disclose incriminating facts to a superior and to testify concerning such facts when 

called to do so in court or before a grand jury -- it is still good law, although post-
51

Garrity, it is clear that answers coerced by threat of termination cannot be used in 

subsequent criminal proceedings.

41

 (See, e.g., Gardner v. Broderick, supra, 392 

U.S. at p. 278 [“If appellant, a policeman, had refused to answer questions 

specifically, directly, and narrowly relating to the performance of his official 

duties, without being required to waive his immunity with respect to the use of his 

answers or the fruits thereof in a criminal prosecution of himself[] [citation], the 

privilege against self-incrimination would not have been a bar to his dismissal.”]

Pasadena Police Officers Assn. v City of Pasadena (1990) 51 Cal.3d 564, 578 

[“‘[A] peace officer has no absolute right under the Constitution to refuse to 

answer potentially incriminating questions asked by his or her employer; instead, 

the officer employee’s right against self-incrimination is deemed adequately 

protected by precluding any use of his or her statements at a subsequent criminal 

proceeding should such charges be filed.’”].) The rule has been modified further

by our Supreme Court’s decision in Lybarger v. City of Los Angeles (1985) 40 

Cal.3d 822, which held that while a police officer who refuses an order to respond 

to questions is subject to punitive action by his employer, including discharge, 

 

41 To the extent Christal stands for the proposition that a police officer -- or any 

other public employee -- may be terminated for exercise of the Fifth Amendment 

privilege, it has been overruled by the United States Supreme Court. (See, e.g., 

Uniformed Sanitation Men Assn., Inc. v. Commissioner of Sanitation (1968) 392 U.S. 

280, 283-285 [city employees cannot be discharged for invoking and refusing to waive 

their privilege against self-incrimination]; Gardner v. Broderick (1968) 392 U.S. 273, 

278-279 [police officer could not be discharged for refusing to execute document 

purporting to waive constitutional rights and permit prosecution on the basis of his 

compelled testimony]; see also Lefkowitz v. Cunningham (1977) 431 U.S. 801 [declaring 

unconstitutional a state statute divesting official from holding political and public offices 

for refusing to waive privilege against self-incrimination when subpoenaed to testify 

concerning his conduct in office].) Public employees may constitutionally be discharged 

for refusing to answer potentially incriminating question only “if they have not been 

required to surrender their constitutional immunity.” (Id. at p. 806.)
52

before penalties may be imposed, the officer must have been explicitly advised that 

“any statement made under the compulsion of the threat of such discipline could 

not be used against him in any subsequent criminal proceeding.” (Id. at p. 829.)

During the June 5, interview, appellant had not been ordered to answer any

questions and indeed, was not being interviewed by anyone in a position to issue 

such an order. Appellant, herself a former internal affairs officer, would have been 

aware that in the absence of a formal complaint or the explicit advisement required 

by Lybarger, she was under no danger of termination if she refused to cooperate 

with the detectives. In short, neither Christal nor any other case of which we are 

aware suggests that police officers’ un-coerced and otherwise voluntary answers to 

questions posed in the course of a criminal investigation are legally compelled and 

thus inadmissible.

Appellant further contends that she was compelled by the provisions of 

POBRA to answer the detectives’ questions. She relies on the language of 

subdivision (e) of Government Code section 3303: “The public safety officer 

under interrogation shall not be subjected to offensive language or threatened with 

punitive action, except that an officer refusing to respond to questions or submit to 

interrogations shall be informed that failure to answer questions directly related to 

the investigation or interrogation may result in punitive action.” Appellant 

acknowledges that subdivision (i) of section 3303 states that “[t]his section shall 

not . . . apply to an investigation concerned solely and directly with alleged 

criminal activities,” but argues that subdivision (i) must be interpreted to mean 

only that the procedural protections available to police officers under section 3303 

are not available in criminal investigations. She claims her interpretation is 

supported by Lybarger v. City of Los Angeles, in which the court, citing 

subdivision (e) of section 3303, said: “[A]ppellant [a police officer] had no 

statutory right to remain silent.” (Lybarger v. City of Los Angeles, supra, 40 
53

Cal.3d at p. 827.) Lybarger, however, involved a police officer removed from his 

position for refusing to answer questions posed by internal affairs investigators. It 

nowhere suggested that an officer who refuses to respond to questions posed by 

criminal investigators is subject to employee penalties. (See also Pasadena Police 

Officers Assn. v. City of Pasadena, supra, 51 Cal.3d at p. 574 [POBRA applies 

“when a peace officer is interrogated in the course of an administrative 

investigation that might subject the officer to punitive action, such as ‘dismissal, 

demotion, suspension, reduction in salary, written reprimand, or transfer for 

purposes of punishment’”]; Van Winkle v. County of Ventura (2007) 158 

Cal.App.4th 492, 499 [“The Legislature unambiguously delineated the 

investigations . . . subject to POBRA, such as disciplinary actions, from those 

which were not (e.g., . . . criminal investigations).”].) 

This court’s decision in City of Los Angeles v. Superior Court (1997) 57 

Cal.App.4th 1506 makes clear that when subdivision (i) is triggered, the remaining 

provisions of section 3303 do not apply. There, as here, the officer contended that 

“[section 3303,] subdivision (i) does not modify the entire section.” (City of Los 

Angeles v. Superior Court, 57 Cal.App.4th at p. 1513.) We rejected the argument, 

concluding that as “[t]he paragraph at issue begins with the words ‘This section,’ 

not ‘this subdivision,’” the paragraph applied “to the entire section, as it states.” 

(Ibid.) Thus, regardless of any statutory duty imposed on officers by subdivision 

(e) of section 3303 to answer questions posed in the course of an administrative 

investigation, under subdivision (i), no such duty applies when the investigation is 

“concerned solely and directly with alleged criminal activities.” POBRA imposed 

no requirement on appellant to answer the detectives’ questions, and she was under 
54

no compulsion or coercion when she did so. The trial court’s ruling admitting the 

taped interview was correct.42

E. Admission of MiniFiler Results

1. Background

The primary DNA evidence connecting appellant to the crime was found in 

the saliva on the bite mark on Rasmussen’s arm. Appellant raised no objection to 

the introduction of this evidence, and raises no issue with respect to it on appeal. 

She sought to exclude a small subset of the DNA evidence presented by the 

prosecution: analysis of tissue found on and under Rasmussen’s fingernails 

conducted by Fedor using a DNA test kit known as “MiniFiler.” MiniFiler testing

led Fedor to conclude appellant was a “possible contributor” to partial DNA 

profiles found in his examination of the fingernails. On appeal, she contends the 

evidence should not have been admitted because it was the product of a new 

scientific technique whose reliability had not been established by the prosecution 

or prior authority. For the reasons discussed, we conclude the trial court did not err 

in admitting the evidence. We first provide some background to assist in 

understanding the terms used in DNA analysis. 

a. DNA Analysis Overview

DNA, the genetic material found in the nucleus of human cells, “is 

organized into 23 pairs of . . . chromosomes, 1 chromosome in each pair being 

inherited from the mother and the other from the father.” (People v. Venegas

 

42 Because we find no error in the trial court’s admission of the taped interview, we 

need not address respondent’s argument that any error in admitting it was harmless in 

light of the other evidence of appellant’s guilt.
55

(1998) 18 Cal.4th 47, 58 (Venegas).) Each chromosome is “in the shape of a spiral 

staircase [citation] . . . ‘consist[ing] of two parallel spiral sides.’” (Ibid.) The two 

parallel spiral sides are connected by a series of “‘rungs,’” consisting of a pair of 

chemical components called “bases.” (Id. at pp. 58-59.) In most areas of the 

chromosome, “‘the sequence of base pairs is the same for everyone.’” (Id. at 

p. 59.) In certain locations, however, the sequence varies from person to person. 

(Ibid.) A location -- or locus -- that is variable is “‘polymorphic.’” (Id. at p. 59.) 

Scientists examining regions known to be polymorphic, “‘have identified loci 

where a particular pattern of base pairs is repeated successively for numbers of 

times that vary from person to person.’” (Nelson, supra, 43 Cal.4th at p. 1258.) 

The greatest variations in base pair sequences are found at locations or loci 

containing “‘variable number tandem repeats’ (VNTR’s).” (Venegas, supra, 18 

Cal.4th at p. 59; People v. Soto (1999) 21 Cal.4th 512, 521.) “A specific pattern of 

base pairs at a given location on a given chromosome is called an allele.” (Chin et 

al., supra, § 2:2, par. 7.) Alleles ““can be measured and compared to determine 

whether a suspect sample matches an evidentiary biological sample at each of the 

loci tested.’” (Nelson, supra, at p. 1258.)

43

 

“Short tandem repeats” (STRs) are essentially VNTRs with smaller numbers

of base pairs.

44

 (See Chin et al., supra, § 2:3, 1st par.; People v. Smith (2003) 107 

 

43 A person has two alleles at each locus, one from each parent. (Chin et al., supra, 

§ 2.2, par. 7.) “[E]ach allele is a number, representing the number of times a four-part 

sequence . . . is repeated at a particular locus. Thus, if a person’s alleles at a certain locus 

are 20 and 22, that person inherited a 20-repeat allele from one parent and a 22-repeat 

allele from the other.” (Andrea Roth, Safety in Numbers? Deciding When DNA Alone Is 

Enough to Convict (2010) 85 N.Y.U. L. Rev. 1130, 1135-1136.)

44 “STRs are ‘short’ because they are only two to six chemical letters long, ‘tandem’ 

because they are on adjacent chromosomes, and ‘repeat’ because the pattern repeats.” 

(Chin et al., supra, § 2:3, 1st par.)
56

Cal.App.4th 646, 655; Commonwealth v. Rosier, supra, 425 Mass. at p. 811 [685 

N.E.2d at p. 742]; U.S. v. Davis (D. Md. 2009) 602 F.Supp. 658, 665; U.S. v. Ewell

(D.N.J. 2003) 252 F.Supp.2d 104, 108.) One of the steps in STR analysis involves

producing multiple copies of the subject DNA through a “‘polymerase chain 

reaction’” (PCR), and the overall process of obtaining a profile from STRs is often 

referred to as “PCR-STR” testing or analysis.

45

 (See Nelson, supra, 43 Cal.4th at 

p. 1258; People v. Jackson (2008) 163 Cal.App.4th 313, 323.) In the PCR-STR

process, the first step is “extraction,” in which DNA is extracted from tissue 

samples obtained from the crime scene. (See People v. Jackson, supra, 163 

Cal.App.4th at p. 322; People v. Hill (2001) 89 Cal.App.4th 48, 56.) The DNA is 

then amplified using primers which essentially mimic the body’s natural cell 

replication process.46 (See People v. Jackson, supra, at p. 322; People v. Smith,

supra, 107 Cal.App.4th at pp. 654-655.) The amplification process is repeated 

numerous times in order to yield millions of copies. (See People v. Smith, supra, 

at p. 654; U.S. v. Davis, supra, at p. 665; U.S. v. Morrow (D.D.C. 2005) 374 

F.Supp.2d 51, 57.) Following amplification, typing takes place through 

“electrophoresis.” (See People v. Jackson, supra, at p. 322; People v. Smith, 

supra, at p. 655.) Finally, “[t]he sample is run through an instrument that produces 

an electropherogram [--] a graphical representation of the DNA, including the 

number of repeats in STR alleles.” (People v. Stevey (2012) 209 Cal.App.4th 

 

45 PCR-STR testing is “the current standard in the field.” (Chin et al., supra, § 2:1, 

par. 2; see District Attorney’s Office for Third Judicial Dist. v. Osborne (2009) 557 U.S. 

52, 62 [“Modern DNA testing can provide powerful new evidence unlike anything 

known before. Since its first use in criminal investigations in the mid-1980s, there have 

been several major advances in DNA technology, culminating in STR technology.”].)

46 During this process, an estimate of the quantity of DNA present, or “quantitation,” 

takes place. (Chin et al., supra, § 3:4.)
57

1400, 1408-1409.) Computerized software is used to create and interpret the 

electropherograms. (Chin et al., supra, § 3:4, p. 3-28; People v. Smith, supra, at p. 

655-656; State v. Wakefield (2015) 9 N.Y.S.3d 540.)

To perform DNA analysis, criminalists use test kits containing all the 

necessary chemicals, primers and software. (See People v. Smith, supra, 107 

Cal.App.4th at p. 656; U.S. v. Williams (D. Hawaii 2013) 979 F.Supp.2d 1099, 

1101.) Kits manufactured by different companies may use different chemicals and 

primers or different software. (U.S. v. Williams, supra, 979 F. Supp.2d at p. 1101; 

People v. Jackson, supra, 163 Cal.App.4th at p. 323; People v. Hill, supra, 89 

Cal.App.4th at pp. 57-58.) PCR-STR analysis in general, and the use of COfiler, 

Profiler Plus, and Identifiler test kits -- the kits used to analyze the bite mark tissue 

sample and many of the other tissue samples taken from the crime scene -- have 

been found by multiple appellate courts to be generally accepted in the scientific 

community. (See, e.g., People v. Hill, supra, at pp. 53, 57 [Profiler Plus]; People 

v. Smith, supra, at pp. 671-672 [Profiler Plus in combination with COfiler]; People 

v. Jackson, supra, 163 Cal.App.4th at pp. 323-325 [Identifiler].)

In the present case, after analysis using the Identifiler test kit resulted in

weak or partial profiles, Fedor re-tested certain tissue samples from the crime 

scene using a test kit called “MiniFiler.” Fedor’s testimony at trial concerning the 

DNA found on or under Rasmussen’s fingernails was based in large part on the 

MiniFiler results. This is the DNA testing at issue here.
58

b. Appellant’s Kelly Motion47

Prior to trial, appellant moved the court to hold a Kelly hearing on the 

admissibility of DNA evidence developed using MiniFiler, contending that 

“MiniFiler [was] a completely new DNA analysis commercial kit” and “its 

analytical results have never been admitted in evidence over a Kelly challenge.” 

She presented no expert declaration and submitted no scientific reports discussing 

MiniFiler. She quoted the manufacturer’s Web site, stating: “As the world’s first 

commercially available miniSTR kit, the [MiniFiler] increases your ability to 

obtain DNA results from compromised samples that previously would have 

yielded limited or no genetic data.” In addition, appellant made a number of 

claims without citing any source: (1) MiniFiler uses a “new polymerase or new 

reaction base, not previously used in existing kits”; (2) MiniFiler uses “primers that 

are different from commercial kits previously used in DNA analysis” which 

“produce[] unpredictable results with respect to major vs. minor donors when 

analyzing mixtures,” and “results in ‘primer binding site mutation,’ sometimes 

resulting in the dropout of one of the alleles, thereby affecting the analysis”; (3) 

MiniFiler “increases the PCR cycle in the amplification process from 28 to 

between 30 and 36, resulting in contamination, allellic dropout and, peak height 

imbalance, all of which affect the resulting analysis”; (5) “SERI used the 

[MiniFiler] kit to conduct analyses of low copy number samples of mixtures, i.e., 

samples containing more than one donor that contained less than 200 [picograms]

 

47 In People v. Soto, supra, 21 Cal.4th at p. 515, footnote 3, the Supreme Court 

explained that as Frye v. United States (D.C. Cir. 1923) 293 F. 1013 had been supplanted 

in federal jurisprudence, the foundational requirement formerly referred to as the 

Kelly/Frye test is now referred to as the Kelly test.
59

of template DNA”; and (6) “[t]here is a lack of scientific acceptance of MiniFiler 

for use on low level mixed samples.” 

The prosecution opposed the motion, confirming that Fedor had used 

MiniFiler to obtain certain results from Rasmussen’s fingernails which would be 

offered into evidence, but contending that MiniFiler was a PCR-STR test kit whose

technology was fundamentally unchanged from the COfiler, Profiler Plus and 

Identifiler test kits, which had been approved as generally accepted by prior court

decisions. The prosecution cited People v. Hill, supra, 89 Cal.App.4th at p. 58, in 

which the court held that the Profiler Plus test kit was not a new technique or novel 

testing device, rejecting the argument that each “new PCR/STR test kit must, as a 

matter of law, be subjected to a Kelly prong one analysis to determine scientific 

reliability.” Attached to the opposition were two articles from the Journal of 

Forensic Science: Hill, et al., “Concordance Study between the [MiniFiler] Kit and 

Conventional STR Typing Kits” (July 2007), and Luce, et al., “Validation of the 

[MiniFiler] Kit for Use in Forensic Casework” (September 2009), cited to support 

the contention that “[b]oth concordance studies and validation studies of the 

MiniFiler test kit have shown it to be both effective and reliable.”48

 

48 According to the description in one of the studies: “The [MiniFiler] is designed to 

function as an adjunct DNA typing kit to current commercial [STR] typing kits, such as 

[Identifiler], in order to obtain a more complete genetic profile of an individual. 

MiniFiler is the first commercially available 9-plex miniSTR amplification kit for use on 

forensic casework when other DNA typing kits have proven to be unsuitable for the 

genotyping of highly degraded and inhibited DNA samples. . . . The MiniFiler kit 

contains primers that amplify eight of the Identifiler kit’s largest loci . . . , and the sextyping locus . . . [¶] . . . The advantage that MiniFiler has over other commercial STR 

typing kits is the shorter amplicons (miniSTRs) that are produced during the polymerase 

chain reaction (PCR). MiniSTRs are the result of relocating the PCR primers as close as 

possible to the STR repeat region, reducing the flanking region and thus the overall size 

of the STR marker, consequently resulting in an increased success rate for obtaining a 

genetic profile from degraded DNA samples. . . . [¶] . . . In addition to shorter amplicons, 

(Fn. continued on next page.)
60

In reply, appellant contended: (1) the number of amplification cycles in the 

studies offered by the prosecution was 28 and SERI “may have employed” a 

greater number of cycles; (2) the studies did not involve an analysis of small

amounts of DNA below the “stochastic threshold” and “a hearing [would]

determine” whether SERI analyzed DNA amounts that fell below that threshold;

49

(3) the studies indicated a minimum amount of DNA, in the range of 0.2 to 0.6 

nanograms, was necessary for an accurate result, and a hearing was needed to 

determine whether SERI analyzed samples containing lower amounts; and (4) 

DNA material examined in the studies was from individual swabs or samples

containing at most two contributors, not multiple contributors as had been 

apparently analyzed by SERI. Appellant did not cite any source to support these 

allegations and did not explain their significance. Instead, the reply brief stated 

that “[a]t a hearing, an expert [would] explain” the significance of the allegations. 

 

robust profiles are obtained from challenged samples due to the optimization of the 

amplification reaction, which aids in overcoming PCR inhibition, and the increased 

number of PRC cycles (30 cycles as compared to 28 cycles for the Identifiler kit), which 

increases the sensitivity and reduces the optimum DNA template requirement. . . .” 

MiniSTR analysis was recently discussed in U.S. v. MacDonald (E.D.N.C. 2014) 

37 F.Supp.3d 782, where an expert testified it is “‘a methodology that may be used on 

degraded DNA samples to help recover information lost during conventional STR 

analysis,’” and explained: “‘Degraded DNA can occur due to sample age, humidity, 

bacteria, chemicals, and/or environmental insults that affect the quality of the DNA. 

Degraded DNA often does not amplify during the PCR process, resulting in no results. 

MiniSTR analysis amplifies the same locations, however, utilizes smaller PCR products 

which enhances the recovery of the information from the sample.’” (Id. at p. 788.)

49 In U.S. v. McCluskey (2013) 954 F.Supp.2d 1224, 1276-1277, the court described 

the “‘“stochastic threshold”’” as a laboratory-set number used to assess whether a sample 

contains sufficient DNA to obtain reliable results. In U.S. v. Davis, supra, 602 F.Supp.2d 

at page 668, the court quoted an expert who stated that the scientific community had not 

settled on a precise quantity as the stochastic threshold, but gave a “‘ballpark’” figure of 

0.125 nanograms. A nanogram is one-billionth of a gram.
61

Relying on People v. Hill, supra, 89 Cal.App.4th 48, the trial court found 

that the contentions raised by appellant were insufficient to trigger a Kelly hearing. 

The court pointed out that that “according to the Hill decision, the Profiler Plus test 

kit was challenged because it used different primers,” which was one of the main 

differences between the MiniFiler and other test kits identified by appellant. The 

court observed that “the uniqueness of the Profiler Plus test kit compared to other 

test kits was actually more extreme than the MiniFiler test kit’s uniqueness 

compared to the Identifiler and Profiler Plus test kits . . . .” During oral argument, 

defense counsel contended: “There are articles that question the reliability of 

MiniFiler and all that would come out at a hearing through expert testimony. [¶]

So it seems to me, on the basis of the evidence before the court, the court can’t 

reach the conclusion that this is governed by Hill without listening to some expert 

testimony.” The court pointed out that the prosecution had submitted two peer 

review publications indicating successful testing of the MiniFiler whereas 

appellant had submitted nothing to support her allegations. 

The court further ruled that a prong three hearing was unnecessary, but 

stated that “before the expert testifie[d],” it would entertain a motion for an

Evidence Code section 402 [section 402] hearing “on whether or not appropriate 

and proper procedures were followed in the administration of the MiniFiler test

. . . .” Additionally, the court stated: “[S]ince the People are going to be using the 

results of the MiniFiler test kit for some of the DNA evidence, [the defense is] 

going to want to try to attack that in front of the jury and explain to the jury why 

the jury should not rely on that evidence. . . [¶] . . .I think it becomes basically a 
62

trial issue . . . .” There is nothing in the record to indicate that the defense sought a 

section 402 hearing prior to Fedor’s testimony.50 

2. Analysis

a. Appellant failed to establish the necessity of a Kelly 

hearing

Under the first prong of the Kelly test, the “admissibility of expert testimony 

based on ‘a new scientific technique’ requires proof of its reliability -- i.e., that the 

technique is ‘“sufficiently established to have gained general acceptance in the 

particular field to which it belongs”’ [citation].” (Venegas, supra, 18 Cal.4th at 

p. 76.) For purposes of the first prong, “‘general acceptance’ does not require 

unanimity.” (People v. Leahy (1994) 8 Cal.4th 587, 601.) The second prong of the 

Kelly test requires that “any witness testifying on general acceptance be properly 

qualified as an expert on the subject. [Citation.]” (Venegas, supra, at p. 78.) The 

third prong requires “‘the proponent of the evidence [to] demonstrate that correct 

scientific procedures were used in the particular case. [Citations.]’” (Ibid., 

quoting Kelly, supra, 17 Cal.3d at p. 30.) 

Because Kelly is applicable only to “‘new scientific techniques’” (People v. 

Leahy, supra, 8 Cal.4th at p. 605), courts must make “the threshold determination 

of whether to conduct a Kelly hearing in the first instance.” (People v. Henderson

(2003) 107 Cal.App.4th 769, 776; see also People v. Garcia (2013) 39 Misc.3d 

 

50 During his testimony, Fedor described the MiniFiler test kit as a “PCR reagent kit 

that is particularly suitable for testing very small or degraded samples of DNA. It 

essentially takes the markers that in Identifiler are susceptible to degradation, that is, that 

don’t give very much information in small quantities or degraded quantities, and focuses 

on getting information from those markers supplemental to the Identifiler reagent kit that 

allows us to fill in some areas where Identifiler may give weak or no results.” 
63

482, 484 [963 N.Y.S.2d 517, 519], quoting State v. Harris (Ariz. App. 1986) 730 

P.2d 859, 861 [hearing is necessary “‘only when the opposing party makes a timely 

request for such an inquiry supported by authorities indicating there may not be 

general scientific acceptance of the technique’”].) In considering whether a 

technique is generally accepted, the trial court may look to published California 

decisions (People v. Henderson, supra, at p. 776), decisions from other 

jurisdictions, and “relevant scientific literature.” (People v. Axell (1991) 235 

Cal.App.3d 836, 854.) “[O]nce a trial court has admitted evidence based upon a 

new scientific technique, and that decision is affirmed on appeal by a published 

appellate decision, the precedent so established may control subsequent trials, at 

least until new evidence is presented reflecting a change in the attitude of the 

scientific community.” (People v. Kelly, supra, 17 Cal.3d at p. 32.) In other 

words, “case-by-case adjudication as to the ‘general acceptance’ prong of the Kelly

test is not required once the scientific technique in question has been endorsed in a 

published appellate opinion.” (People v. Morganti (1996) 43 Cal.App.4th 643, 

658.) 

The issue of general acceptance in the relevant scientific community is a 

mixed question of law and fact. (People v. Morganti, supra, 43 Cal.App.4th at 

p. 663; People v. Stevey, supra, 209 Cal.App.4th at p. 1410.) In conducting our 

review, we rely primarily on the record below, but may also consider published 

legal opinions not considered by the trial court when it made its determination. 

(People v. Brown (1985) 40 Cal.3d 512, 530; People v. Reeves, supra, 91 

Cal.App.4th at p. 38; People v. Allen, supra, 72 Cal.App.4th at p. 1099.)

Where, as here, the issue is the novelty of a change in the method of 

analyzing DNA, courts have recognized that “[w]hat was once considered 

revolutionary has now become rather mundane,” and the threshold issue is 

“whether the improvement or refinement in DNA methodology qualifies as another 
64

breakthrough innovation within the meaning of Kelly, or whether the change 

represents a mere evolution of a generally accepted scientific technique.” (People 

v. Stevey, supra, 209 Cal.App.4th at p. 1411.) As discussed, the PCR-STR method

of analyzing DNA has been found to be generally accepted by many, many courts. 

(See, e.g., People v. Jackson, supra, 163 Cal.App.4th at pp. 323-325; People v. 

Smith, supra, 107 Cal.App.4th at p. 665; People v. Hill, supra, 89 Cal.App.4th at 

pp. 53, 57; People v. Allen, supra, 72 Cal.App.4th at p. 1099; Commonwealth v. 

Rosier, supra, 425 Mass. at p. 812 [685 N.E.2d at p. 743]; U.S. v. Morrow, supra, 

374 F.Supp.2d at p. 61.) When a new kit utilizing the PCR-STR methodology 

comes onto the market, the issue is not whether there are differences between it 

and prior kits, but whether it significantly changes the methodology. (People v. 

Jackson, supra, 163 Cal.App.4th at p. 325; People v. Hill, supra, 89 Cal.App.4th at 

p. 58; see also U.S. v. McCluskey, supra, 954 F.Supp.2d at p. 1257 [“Courts 

addressing the use of new amplification and quantification kits have focused, not 

on the relatively minor differences between each kit, but instead on their common 

function in the application of DNA analysis.”]; U.S. v. Trala (D.Del. 2001) 162 

F.Supp.2d 336, 346 [observing that “the PCR process of amplifying relatively 

small samples of DNA into an analyzable quantity has received widespread 

acceptance in courts,” and concluding that “‘questions as to the reliability of the 

particular type of multiplex kit go to the weight of the evidence, rather than its 

admissibility’”].) 

The Profiler Plus test kit at issue in Hill had a number of differences when 

compared to the previously accepted Promega test kit, including its examination of 

additional loci, its use of different primers, its use of fluorescent tagging to visually 

identify the targeted gene, and its new software. (Hill, supra, 89 Cal.App.4th at 

pp. 57-58.) In Jackson, the Identifiler kit was found to have similar differences 

from the COfiler and Profiler Plus kits that preceded it, and in addition, to 
65

“reduce[] the amount of template DNA required” for analysis purposes.

51

 

(Jackson, supra, 163 Cal.App.4th at p. 324.) Nonetheless, in neither case did the

court find the need for a prong one Kelly hearing. In Jackson, the court explained: 

“[T]he Identifiler test kit uses the PCR/STR testing methods, which have been 

generally accepted by the scientific community. Although defendant has identified 

seven changes in the Identifiler kit from the previous test kits, defendant has not 

shown that these differences change the methodology of the testing of the DNA. 

The changes . . . appear to increase the accuracy and efficiency of the same 

methodology of PCR/STR testing. The Identifiler test kit appears to be a more 

sensitive test, able to use less template DNA and reaction volume to genetically 

type more loci using a broader range of fluorescent color dyes. . . . [I]t appears 

Identifiler is a new and improved version of the same scientific procedure already 

generally accepted by the scientific community.” (Id. at p. 325, italics deleted.) 

The defendant had expressed concern about the test’s introduction of “nonnucleotide linker[s]’” but “admit[ted] to not knowing what the substance is and 

merely speculate[d] the non[-]nucleotide linkers might interfere with the evaluation 

of mixed samples.” (Ibid.) Accordingly, the court concluded, the defendant had 

failed to show “the use of non[-]nucleotide linkers makes the Identifiler test a 

materially distinct scientific technique.” (Ibid.) 

Appellant here likewise failed to establish that MiniFiler represented a new 

technique or methodology, or that there was any question of its acceptance in the 

DNA testing community. In her original moving papers, appellant claimed without 

 

51 “Low template” DNA testing, also known as “low copy number” or “LCN” 

testing, refers to tests performed on “amounts of DNA that are at or below the ‘stochastic 

threshold.’” (U.S. v. Davis, supra, 602 F.Supp.2d at p. 668; see U.S. v. Grinnage (3d Cir. 

2012) 486 Fed.Appx. 325, 329.)
66

attribution that the MiniFiler test kit used new bases and primers and increased the 

number of amplification cycles. She did not explain how these alleged differences

made MiniFiler materially distinct from the Identifiler or other test kits. She 

quoted the manufacturer’s Web site representing that MiniFiler would obtain DNA 

results from compromised samples that previously would have yielded limited 

genetic data, but the fact that the company’s marketing material promised that its 

product was better than other comparable products does not establish that this was 

a new methodology. She claimed that SERI used MiniFiler “to conduct analyses 

of low copy number samples of mixture, i.e., samples containing more than one 

donor that contained less than 200 [picograms] of template,” but if she believed 

this to be an inappropriate use of the test kit, she remained free to question Fedor in 

a prong three or section 402 hearing. 

Appellant’s reply papers contained similar defects. She made a number of

unattributed contentions and accused SERI of possibly inappropriate uses of 

MiniFiler, such as analyzing low template DNA, employing a greater number of 

amplification cycles than was optimal, and processing DNA mixtures from more 

than two contributors. She promised that “an expert” would “explain the 

significance” of these contentions “at a hearing.” She did not indicate she was 

quoting an expert or had consulted an expert with respect to any of the topics 

discussed in her moving papers, nor did she identify an expert prepared to testify 

that MiniFiler was an entirely new and untested technology on which DNA 

scientists did not agree. She thus failed to provide any basis for her assertion that 

MiniFiler was a fundamentally different PCR-STR test kit, and the trial court had 

no obligation to order a Kelly hearing.

We find support for our conclusion in People v. Borden (2011) 90 A.D.3d

1652 [935 N.Y.S.2d 810]. There, the court rejected the defendant’s contention that 

the trial court erred in failing to conduct a Frye hearing to determine the 
67

admissibility of DNA results obtained through use of a MiniFiler kit, explaining 

that prior to trial, the prosecution presented uncontradicted evidence that “the 

MiniFiler test is simply a more advanced form of traditional polymerase chain 

reaction/short tandem repeat testing, which this Court and others have long 

recognized as having gained general acceptance in the scientific community.” (Id. 

at p. 1653.) Similarly, in People v. Garcia, supra, 39 Misc.3d 482 [963 N.Y.S.2d 

517], the court addressed whether a Frye hearing was required before the 

prosecution could introduce the results of low copy number DNA testing. The 

court found that the defendant “fail[ed] to meet the initial threshold” because he 

had provided no support for his assertion that low copy number DNA testing “is 

generally not acceptable in the scientific community.” Here, the only evidence 

before the court at the time of the hearing consisted of the studies introduced by the 

prosecution, which essentially described MiniFiler as a refined version of 

Identifiler, equally reliable and yielding similar results. In her briefs on appeal, 

appellant repeatedly claims to have made an “offer of proof” and to have 

“proffered testimony by [the] defense expert” to establish otherwise. In fact, 

appellant made no offer of proof and proffered no testimony. She made a number 

of unsupported allegations and, at best, intimated she would be able to locate an 

expert at a later date should the court schedule a hearing. On this record, the court 

had no obligation to hold a Kelly hearing.52 

 

52 Appellant contends the recent decision in U.S. v. McCluskey, supra, 954 

F.Supp.2d 1224 supports her position. The testing in McCluskey did not involve 

MiniFiler. The test kits challenged by the defendant there were Identifiler and 

Quantifiler, and the court concluded that because they both used PCR-STR methodology, 

any questions about them went to the weight of the DNA evidence, not its admissibility. 

(McCluskey, supra, at pp. 1256-1257.) The court also addressed “whether the [low copy 

number] testing performed in this case, by the NMDPS [New Mexico Department of 

Public Safety] Lab, [was] reliable.” (Id. at p. 1279, italics added.) The court concluded it 

(Fn. continued on next page.)
68

b. Appellant forfeited any error with respect to whether 

proper procedures were utilized by SERI when she failed to 

request a prong three or Evidence Code section 402 hearing 

prior to Fedor’s testimony

At the hearing on appellant’s Kelly motion, the court found no need for “a 

full blown prong three . . . Kelly hearing,” but stated that it would “entertain [an 

Evidence Code section] 402 hearing on whether or not appropriate and proper 

procedures were followed in the administration of the MiniFiler test before the 

expert testifies or before trial, if we can make the arrangements.” After learning 

from the prosecutor that the expert was from out of town and charged thousands of 

dollars per day to testify, the court stated: “We’ll do a hearing before he testifies

. . . .” However, when the time came for Fedor to testify, defense counsel did not 

request a section 402 hearing. 

The third Kelly prong requires the proponent of the evidence to 

“‘demonstrate that correct scientific procedures were used in the particular case. 

[Citations.]’” (Venegas, supra, 18 Cal.4th at p. 78, quoting Kelly, supra, 17 Cal.3d 

at p. 30.) The third prong “inquires into the matter of whether the procedures 

actually utilized in the case were in compliance with that methodology and 

technique, as generally accepted by the scientific community.” (Venegas, supra, at 

p. 78.) The section 402 hearing offered by the court provided appellant the 

 

was not, finding, among other things, that the NMDPS lab did not modify its procedures 

when testing a low copy number samples by, for example, increasing the amplification 

cycles (id. at p. 1282) or modify its statistical formulas to account for the possibility of 

alleles dropping out in analyzing the profile to determine whether it matched the 

defendant’s. (Id. at p. 1283.) Nor had it performed internal validation for its low copy 

number testing or received certification for it. (Id. at p. 1280.) Because of the limited 

nature of the court’s holding, we find little in McCluskey to assist our analysis. 
69

functional equivalent of a prong three hearing without the necessity of incurring 

the expense of having the expert fly in for a separate hearing. Appellant’s failure 

to request an opportunity to question Fedor outside the presence of the jury about 

the scientific procedures he used in conducting the MiniFiler analysis forfeited this 

issue. (See People v. Ramos (1997) 15 Cal.4th 1133, 1171 [defendant who failed 

to obtain definitive ruling from court on admissibility of evidence failed to 

preserve the issue for appeal].)

c. Assuming introduction of the DNA evidence obtained

through the MiniFiler test kit was error, it was harmless

Although we conclude the trial court did not err in denying the Kelly motion, 

we find no basis to believe that any erroneous admission of the DNA evidence 

obtained through MiniFiler testing could have prejudiced appellant.

53

 

Appellant was identified as the likely culprit through DNA analysis of saliva 

left on a bite mark on Rasmussen’s arm. Her DNA profile precisely matched the 

profile of the person who bit Rasmussen shortly before her death. As serologist 

Fedor testified, the chance that a woman unrelated to appellant would have the 

same DNA profile as the bite mark swab at all 15 loci was approximately one in 

1.7 sextillion, many times the population of the earth. Appellant had a compelling

 

53 “It is . . . well settled that the erroneous admission or exclusion of evidence does 

not require reversal except where the error or errors caused a miscarriage of justice. 

(Evid. Code, §§ 353, subd. (b), 354.) ‘[A] “miscarriage of justice” should be declared 

only when the court, “after an examination of the entire cause, including the evidence,” is 

of the “opinion” that it is reasonably probable that a result more favorable to the 

appealing party would have been reached in the absence of the error.’” (People v. 

Richardson (2008) 43 Cal.4th 959, 1001, quoting People v. Watson (1956) 46 Cal.2d 

818, 836.) 
70

motive to kill Rasmussen. She had been abruptly dropped by Ruetten, with whom 

she had been intimate for several years and with whom she was in love, when he 

met his future wife. Upon learning of the engagement, appellant was distraught. 

She called Ruetten, crying, and begged him to come to her apartment, where she

professed her love for him. She thereafter turned her anguish on the object of 

Ruetten’s affections, confronting Rasmussen at her place of work and revealing to 

her Ruetten’s prior infidelity. She confessed to her roommate, wrote in her 

journal, and confided in a letter to Ruetten’s mother her deep-seated unhappiness

and distress over Ruetten’s marriage to Rasmussen. The circumstantial evidence 

was very strong: appellant was off work the day of the killing, she had no alibi, the 

gun used to commit the murder was consistent with a gun owned by appellant, and 

the bullets used were LAPD-required ammunition. Within weeks, appellant 

reported a gun that matched the likely murder weapon stolen, but only to Santa 

Monica police, not to her own department, which was investigating the murder. 

Her stories concerning how and when the gun was stolen were inconsistent. She 

proffered no explanation for how her DNA came to be present on Rasmussen’s 

body. The evidence of motive and the circumstantial evidence, combined with the

presence of appellant’s DNA on a wound inflicted on the victim during her 

struggles with her assailant, provided convincing evidence of appellant’s guilt. 

The MiniFiler evidence indicating that her profile partially matched DNA found on 

or under Rasmussen’s fingernails at certain alleles was, at best, merely 

corroborative of the evidence of the bite mark DNA. 

Appellant points out that in rebuttal, the prosecutor argued that the MiniFiler 

evidence eliminated any doubt that appellant committed the crime. After 

discussing the gun, the bullets, and the bite mark DNA which he contended 

supplied proof “without much doubt whatsoever,” the prosecutor briefly discussed 

the fingernail DNA evidence, describing it as “not nothing” and having 
71

significance in conjunction with the other evidence. He also argued it undercut 

any claim that the bite mark swabs had been tampered with because the fingernails 

had stayed with LAPD while the bite mark swabs were stored at the coroner’s 

office. But appellant presented no serious evidence of tampering. While the 

envelope containing the test tube and swabs had developed a small tear over the 

years, and appellant raised questions about the accuracy of the coroner’s evidence 

log indicating no one had touched the test tube in the years between 1986 and 

2005, she presented no evidence that someone in or having access to the coroner’s 

office had a motive to frame her and no explanation for how tampering with the 

swabs collected in 1986 could have resulted in her DNA and Rasmussen’s DNA 

being found on them in two separate tests. Considering the prosecutor’s argument 

in context, the DNA fingernail evidence was not critical, and even assuming the 

trial court should have excluded it in the absence of a Kelly hearing, any error was 

harmless.

F. Evidence of Third Party Culpability

1. Background

During opening statements, defense counsel indicated his intention to

present evidence of a burglary that occurred in Rasmussen’s neighborhood in April 

1986. The court subsequently warned counsel that there would have to be 

“remarkable similarities” before the evidence could come in and questioned why

the matter had not been resolved prior to trial. The next day, the prosecution filed 

a motion to exclude third party culpability evidence. The moving papers 

contended that the April burglary was “markedly different” from the crime at issue,

and that there was “no direct or circumstantial evidence linking [any] third person 

to Ms. Rasmussen’s murder.” 
72

According to police reports, on April 11, 1986 -- six weeks after the murder 

-- a residential burglary occurred on Balboa Boulevard, over a mile from 

Rasmussen’s condominium. The victim’s condominium was similar to

Rasmussen’s in that both had locked security gates and stairs leading from the 

garages to the condominiums. The victim, Lisa Rivalli, told the detectives that she 

had been home alone the day of the burglary due to illness. After someone rang 

her doorbell several times that morning, she looked out her peephole and saw an 

unfamiliar Hispanic male. She did not open the door. When she left later in the 

day, a younger Hispanic male in a blue station wagon seemed to be watching her. 

When she returned, her front door had been forced open. Standing at the threshold, 

she saw the same Hispanic male who had been sitting in the blue car, now putting

stereo equipment by the garage stairs into a bag. He ran past her, out the front door 

and the security gate. A second Hispanic male came downstairs carrying a gun, 

described by the victim as a .38, with a four-inch barrel. Rivalli turned and ran. 

The armed burglar also ran. Rivalli observed paper stuffed into the locks of the 

outside security doors, apparently placed there to keep them from locking shut. 

Many items on the upper floor of the condominium had been rifled or disturbed, 

including a typewriter, a jewelry box, a dresser and a hope chest. The culprits 

escaped with some of Rivalli’s jewelry. 

The trial court concluded the evidence did not meet the standard for third 

party culpability evidence and excluded it. The court found certain similarities, 

including that the killing took place in the daytime and the April burglary was a 

daytime crime. Stereo equipment was involved in both crimes, as was a gun. 

However, the court found that the differences prevailed. The April burglars forced 

their way inside; Rasmussen’s home showed no sign of forced entry. The burglars 

ransacked Rivalli’s bedroom, and took jewelry; Rasmussen’s home showed no 

evidence the intruder sought jewelry. The burglars left Rivalli’s home in their own 
73

vehicle; Rasmussen’s assailant left in hers. Finally, the burglars, upon being 

discovered by Rivalli, fled without discharging a weapon. Rasmussen’s assailant 

brutally beat her, bit her and shot her to death. The court found the “critical 

feature” to be that nothing linked the suspects in the April burglary to the 

Rasmussen homicide. 

When crime scene analyst Mark Safarik testified concerning whether the 

crime scene had been staged to look like a burglary, defense counsel argued that 

the court’s ruling on the inadmissibility of evidence pertaining to the April 

burglary precluded him from effectively cross-examining the witness. The court 

disagreed, stating that Safarik’s testimony was based solely on his observations of 

the crime scene, not on an analysis of burglaries in the area, and noted that counsel 

was free to cross-examine the witness concerning his observations. 

2. Analysis

“‘A criminal defendant has a right to present evidence of third party 

culpability if it is capable of raising a reasonable doubt about his own guilt.’” 

(People v. Panah, supra, 35 Cal.4th at p. 481, quoting People v. Sandoval (1992) 4 

Cal.4th 155, 176.) This rule does not, however, “‘“require that any evidence, 

however remote, must be admitted to show a third party’s possible culpability. ”’” 

(Ibid.) “[T]he standard for admitting evidence of third party culpability [is] the 

same as for other exculpatory evidence: the evidence [has] to be relevant under 

Evidence Code section 350, and its probative value [can]not be ‘substantially 

outweighed by the risk of undue delay, prejudice, or confusion’ under Evidence 

Code section 352.” (People v. Kaurish (1990) 52 Cal.3d 648, 685.) Moreover, the 

evidence “‘“must link the third person either directly or circumstantially to the 

actual perpetration of the crime.”’” (People v. Edwards (2013) 57 Cal.4th 658, 

729.) ““‘In assessing an offer of proof relating to such evidence, the [trial] court 
74

must decide whether the evidence could raise a reasonable doubt as to defendant’s 

guilt and whether it is substantially more prejudicial than probative under Evidence 

Code section 352.”’” (Ibid.) We review the trial court’s ruling on the 

admissibility of third party culpability evidence for abuse of discretion. (People v. 

Prince (2007) 40 Cal.4th 1179, 1242.)

The trial court’s decision to reject the proposed evidence because the details 

of the April 1986 burglary did not bear sufficient similarities to the details of the 

Rasmussen homicide was a reasonable one. In a neighborhood as large and 

densely populated as Van Nuys, where both condominiums were located,

burglaries are common. That both the Rasmussen homicide and the burglary six 

weeks later took place inside townhouse-style condominiums with garages and 

involved (or appeared to involve) attempts to steal stereo equipment does not make 

them distinctive or suggest that the two crimes were connected. Both crimes 

involved armed culprits, but if we accept Rivalli’s description of the gun as a .38 

caliber, we must also accept her statement that it had a longer barrel than the gun 

used in the Rasmussen homicide. The April burglars took care to ensure the 

residence was empty, watching the occupant leave before attempting to enter and 

forcing the door open. They ransacked the bedroom and stole jewelry. When 

confronted, the burglars, though armed, fled in their own vehicle. The 

dissimilarities between the April burglary and the assault on Rasmussen are 

striking, and the trial court was well within its discretion in concluding appellant 

had failed to raise a reasonable inference that the April burglary was in any way 

connected to Rasmussen’s murder.

Appellant contends the trial court’s evidentiary ruling deprived him of his 

constitutional right to “confront[]” or effectively cross-examine the prosecution’s 

crime scene analyst. A similar argument was made in People v. Abilez (2007) 41 

Cal.4th 472, where the defendant argued that the exclusion of evidence of his co-
75

defendant’s decades-old juvenile sexual offense violated his constitutional right to 

present a defense, by denying him the opportunity to effectively cross-examine the 

co-defendant to establish that it was he who sodomized and killed the victim. 

(Id. at pp. 498-503.) The Supreme Court rejected the contention that “the excluded 

evidence was ‘so vital to the defense that due process principles required its 

admission,” concluding instead that its exclusion “was a garden-variety evidentiary 

issue under state law” that “did not implicate defendant’s federal constitutional 

right to present a defense.” (Id. at p. 503; see People v. Prince, supra, 40 Cal.4th 

at p. 1243, quoting People v. Robinson (2005) 37 Cal.4th 592, 626-627 [rejecting

defendant’s claim that exclusion of proffered third party culpability evidence 

violated his federal constitutional rights to present a defense and to confront and 

cross-examine witnesses: “‘There was no error under state law, and we have long

observed that, “[a]s a general matter, the ordinary rules of evidence do not 

impermissibly infringe on the accused’s [state or federal constitutional] right to 

present a defense.”’”].) Cross-examining Safarik about a specific burglary that 

occurred on a later date in a different location would have had little bearing on the 

validity of his opinions and conclusions concerning the Rasmussen crime scene. 

The trial court did not err in excluding the evidence and did not violate appellant’s 

constitutional right to confront a witness or present a defense.

G. Summary

Certain facts were largely uncontradicted at trial and were demonstrated 

through the introduction of evidence whose admission is not challenged on appeal. 

Critical among them were: (a) that appellant, deeply in love with Ruetten, was 

devastated by his decision to marry Rasmussen; (b) that appellant directed her 

anger not at Ruetten, but at Rasmussen, confronting her at her place of work; and 

(c) that appellant’s DNA appeared in the saliva of the bite mark inflicted on 
76

Rasmussen’s forearm near the time of her murder. These facts alone raise the 

nearly inescapable inference that appellant confronted, assaulted and murdered 

Rasmussen.

Appellant does not claim the decades-long delay in matching her DNA to 

that found in the bite mark was intentionally designed to secure a tactical 

advantage, and her showing of prejudice was minimal. We discern no error in the 

trial court’s determination that the substantial justification for the delay 

outweighed any marginal prejudice demonstrated by appellant, and that she failed 

to establish a violation of her due process rights.

Similarly, the passage of time did not preclude the magistrate judges from 

determining that the search warrants issued for appellant’s home and computer 

were supported by probable cause. The motive for the crime -- appellant’s 

obsession with Ruetten and desire to continue their relationship -- supported the 

inference that she would have retained items relating to him, including 

photographs uploaded to a computer. In any event, as the trial court found, the 

officers conducting the searches relied in good faith upon the issuance of the 

warrants. Appellant demonstrated no material misrepresentations in the affidavits 

in support of the warrants to merit a Franks hearing.

Appellant’s interview statements were voluntarily made in the course of 

what any officer in her position would have recognized as a criminal investigation. 

Neither POBRA nor any other law rendered her statements legally compelled. We 

expressly reject appellant’s suggestion that a law enforcement officer questioned in 

the course of a criminal investigation is automatically entitled to use immunity for 

statements voluntarily made.

Appellant failed to demonstrate the court erred in declining to hold a prong 

one Kelly hearing on the DNA evidence derived from the use of the Minifiler kit. 

Appellant made no offer of proof that the scientific techniques employed by the 
77

Minifiler were either sufficiently different from, or substantially less reliable than, 

other DNA testing previously deemed admissible. And she forfeited any challenge 

to the reliability of the actual testing by failing to avail herself of the court’s offer 

to hold a section 402 hearing. Most significantly, the probative value of the 

evidence derived from the Minifiler testing was marginal, and any error in its 

admission was necessarily harmless.

Finally, the trial court acted well within its discretion in rejecting appellant’s 

proffered evidence of third party culpability based on the burglary of another 

condominium six weeks after Rasmussen’s murder. The circumstances of that 

burglary -- in which the intruders waited for the occupant to leave, forced entry, 

stole jewelry, and upon being detected fled in their own vehicle -- differed 

radically from those of the instant crime, where the assailant gained unforced 

access to the residence while the occupant was home, took no jewelry, but 

assaulted, bludgeoned and shot the victim to death, before leaving in the victim’s 

car.

For similar reasons, appellant demonstrated neither a violation of her state or 

federal constitutional rights nor evidentiary error in the trial court’s ruling 

precluding her from cross-examining the prosecution’s crime scene expert on the 

unrelated burglary.
78

DISPOSITION

The judgment is affirmed.

CERTIFIED FOR PUBLICATION

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

COLLINS, J.