ROBERT L. SHAPIRO State Bar No. 043693 JOHNNIE COCHRAN, JR. State Bar No. 33334 GERALD F. UELMEN State Bar No. 39909 ALAN DERSHOWITZ State Bar No. BB0121200 F. LEE BAILEY State Bar No. 0820520 LAW OFFICES OF ROBERT L. SHAPIRO 2121 Avenue of the Stars l9th Floor Los Angeles, CA 90067 310/282-6255; 310/550-3000 Attorneys for Defendant, ORENTHAL JAMES SIMPSON ORIGINAL FILED AUG 29, 1994 SUPERIOR COURT SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES PEOPLE OF THE STATE OF CALIFORNIA. Plaintiff, v. ORENTHAL JAMES SIMPSON, aka O.J. SIMPSON, Defendant. Case No. BA097211 MOTION TO SET ASIDE INFORMATION UNDER SECTION 995 OF THE PENAL CODE; MEMORANDUM OF POINTS AND AUTHORITIES TO THE CLERK OF THE ABOVE-ENTITLED COURT AND TO THE DISTRICT ATTORNEY OF THE COUNTY OF LOS ANGELES: NOTICE IS HEREBY GIVEN that on Wednesday, September 7, 1994, at 9:00 A.M., or as soon thereafter as the matter may be heard, Defendant ORENTHAL JAMES SIMPSON, through his counsel, will move to set aside Counts One and Two of the Information, pursuant to Section 995 of the Penal Code, on the ground that the defendant has been committed without reasonable or probable cause that he was the perpetrator of the murders charged. This motion is based on the thirteen-volume transcript of the preliminary hearing conducted in this matter on June 30 through July 8, 1994, the exhibits, papers, records and pleadings in this case, the attached memorandum of points and authorities, and argument as may be adduced at the hearing of this motion. DATED: Aug. 26, 1994 Respectfully submitted, Law Offices of Robert L. Shapiro By: Robert L. Shapiro By: Johnnie Cochran, Jr. BY: Gerald F. Uelmen By: Alan Dershowitz By: F. Lee Bailey ttorneys for Defendant ORENTHAL JAMES SIMPSON TABLE OF CONTENTS I. SUMMARY OF ARGUMENT II. STATEMENT OF FACTS A. Investigative Activity at 875 S. Bundy . B. Entry to Premises at 360 N. Rockingham . C. Investigative Activity at 360 N. Rockingham . D. Evidence Connecting the Defendant O. J. Simpson With the Crime E. Evidence of Malice Aforethought . III. ARGUMENT A. The Magistrate Erroneously Excluded the Search Warrant Affidavit from Evidence . B. The Court Must Reassess the Factual Findings After Considering the Erroneously Excluded Search Warrant Affidavit C. The Warrantless Entry to Mr. Simpson's Home Was Not Justified by Exigent Circumstances D. Illegal Investigative Activity was Permitted to Continue After the Alleged Benevolent Purpose of the Entry had been Accomplished E. The "Plain View" Doctrine Did Not Permit Warrantless Seizure and Analysis of Minute Stains F. There Was Not Sufficient Evidence to Find Probable Cause that O. J. Simpson Was the Perpetrator of the Crimes Charged G. There Was Not Sufficient Evidence to Find Probable Cause that the Homicides Were Committed with "Malice Aforethought" . TABLE OF AUTHORITIES Birt v. Superior Court (1973) 34 Cal.App.3d 934 Coolidqe v. New Hampshire (1971) 403 U.S. 443 Garabedian v. Superior Court (1963) 59 Cal.2d 124 Mincey v. Arizona (1978) 437 U.S. 385 People v. Baird (1985) 168 Cal.App.3d 237 People v. Caffero (1989) 207 Cal.App.3d 678 People v. Cain (1989) 216 Cal.App.3d 366 People v. Dickson (1983) 144 Cal.App.3d 1046 People v. Duncan (1986) 42 Cal. 3d 91 People v. Leiqhty (1988) 205 Cal.App. 3rd 922 People v. Smith (1972) 7 Cal.3d 282 People v. Timms (1986) 179 Cal.App.3d 86 Schmerber v. California (1966) 384 U.S. 757 Skinner v. Railway Labor Executives Ass'n. (1989) 489 U.S. 602 Somers v. Superior Court (1973) 32 Cal.App.3d 961 State v. Cota, 675 P.2d 1101 (Or. App. 1984) Tharp v. Superior Court (1984) 154 Cal. App. 3d 215 Thompson v. Louisiana (1984) 469 U.S. 17 United States v. Jacobsen (1984) 466 U.S. 109 United States v. Preslar, 610 F.2d 1206 (4th Cir. 1979) LaFave, Search and Seizure: A Treatise on the Fourth Amendment (2nd Ed. 1987) MEMORANDUM OF POINTS AND AUTHORITIES I. SUMMARY OF ARGUMENT The first task facing the court will be to review the factual conclusions of the magistrate regarding the admissibility of the evidence seized without warrant at the home of the defendant. While ordinarily the findings of the magistrate regarding the credibility of the officers would be controlling, those findings were fatally flawed by the exclusion from evidence of the sworn affidavit executed by one of the testifying detectives. In that affidavit, he presented a scenario that was significantly inconsistent with his testimony at the hearing, containing a number of misrepresentations and concealments. While the search pursuant to the warrant obtained by the affidavit was not in issue, because the prosecution announced it would not offer any evidence obtained pursuant to the warrant, the affidavit itself was highly relevant both to impeach the credibility of the officer and as substantive evidence of the true nature of the search. Thus, this court must independently reassess the credibility of the officers giving full consideration to the improperly excluded affidavit. The second task facing the court will be to review the legal conclusions of the magistrate. The defendant will contend that the legal conclusion that exigent circumstances justified a warrantless entry to a private residence was erroneous and not supported by the facts; that the legal conclusion that investigative activity could continue after the alleged benevolent purpose of the entry had been accomplished was erroneous and not supported by the facts; and that the legal conclusion that the "plain view" doctrine permits warrantless seizure and analysis of minute stains was erroneous and not supported by the facts. After excluding the incompetent evidence that was unlawfully acquired, the third task facing the court will be to determine if there is sufficient evidence remaining to find probable cause to believe the defendant O.J. Simpson perpetrated the crimes charged in the information. The fourth and final task facing the court will be to determine if there is probable cause to believe that the homicides charged were committed with the "malice aforethought" required for a charge of murder. II. STATEMENT OF FACTS This statement of facts was compiled from the daily transcripts of the preliminary hearing in which each volume is separately paginated. References to the Reporter's Transcript (R.T.) include both volume and page numbers, separated by a slash: Volume/Page. A. Investigative activity at 875 S. Bundy The initial arrival of police at the scene of the homicides at 875 S. Bundy was in response to a radio call to the location across the street, "Possible 459 suspects there now, 874 South Bundy," shortly after midnight on Monday, June 13, 1994. (R.T. 8/6) The first detectives at the scene were Ron Phillips and Mark Fuhrman, partners assigned to West Los Angeles Homicide. Fuhrman was called by Phillips at 1:05 A.M., and both arrived at 2:10 A.M. (R.T. 7/23-24) Fuhrman was told by Phillips in the initial call at 1:05 A.M. that one of the victims was the ex- wife of O.J. Simpson. (R.T. 7/31) Fuhrman had previously visited O.J. Simpson's home on a call in 1985. (R.T. 7/71) Within an hour of their arrival at the Bundy scene, Phillips and Fuhrman were informed that they were off the case, that because of the "V.I.P. nature of the homicide," it was being reassigned to the Robbery-Homicide Division and that Detectives Vannatter and Lange would be taking over the investigation. (R.T. 7/60-61) They then went out onto the street to await the arrival of Detectives Vannatter and Lange, who arrived more than an hour later. (R.T. 7/30) Detective Vannatter was first called at 3:00 A.M., and arrived at the Bundy scene to take charge of the investigation at 4:05 A.M. (R.T. 8/31) Detective Phillips then led Detective Vannatter on a "walk-through" of the crime scene. Vannatter observed the two victims lying at the entrance gate, with "a lot of blood" having run down the walkway towards the sidewalk. (R.T. 8/33) He testified he observed a left-handed leather brown glove and a blue knit cap lying at the feet of Ron Goldman. (R.T. 8/33) Prior to Vannatter's arrival, Detective Fuhrman had observed a glove. When asked how closely he observed it (singular), Fuhrman testified: "There's an iron fence and through that iron fence you can get very close to the male victim. And looking there I could see them down at his feet" (plural, emphasis supplied). (R.T. 7/64) When asked if he picked up the glove to examine it, he responded: "Not at that time, no. (R.T. 7/65) Detective Vannatter also examined the walkway leading away from the bodies to the rear of the residence, where he observed a trail of bloody shoe-prints, with what he believed were "blood droplets that appeared to be not associated with the two victims, as if the person leaving the bloody footprints was dripping blood from something." (R.T. 8/34) Vannatter was also informed that the two young children of Nicole Brown Simpson and O.J. Simpson had been taken from the house at 875 S. Bundy to West L.A. police headquarters. (R.T. 8/31) Vannatter was joined by his partner Detective Lange after 20-25 minutes, and decided to proceed to the house of O.J. Simpson. He testified that his purpose in going to Mr. Simpson's home was to notify him of his former wife's murder and to arrange for the care of his children. Simpson was not considered a suspect, nor did the detectives believe that any related events had occurred at Simpson's home. (R.T. 7/71) Detective Vannatter testified: "Knowing that one of the victims had been identified as Nicole Simpson, knowing that her husband -- or ex-husband at that point -- was a very well-known person; that we had two children in custody, two minor children that had been taken from this very traumatic scene, we made a determination to go to Mr. Simpson's residence and attempt to notify him of the death before the media got word of it and to also make arrangements for the disposition of the two children that were his children." (R.T. 8/35) All four of the homicide detectives involved in the investigation up to this point -- Vannatter, Lange, Phillips and Fuhrman -- then left the scene of the homicide and proceeded to the home of O.J. Simpson two miles away at 360 N. Rockingham. (R.T. 7/69) Detectives Vannatter and Fuhrman gave contradictory explanations why Detectives Phillips and Fuhrman were included on this foray although they had already been relieved of their responsibility for the case. Detective Vannatter said, "they were assisting us," and testified that he would have had no difficulty locating the Simpson residence, since he "worked that division for three years." (R.T. 8/35, 99) Detective Fuhrman testified, "Detective Lange and Vannatter didn't know the area," and that Vannatter asked him to "lead us up there." (R.T. 7/70) Detective Fuhrman stopped taking notes of any of his activities after leaving the Bundy address, and prepared no reports, because, as he put it, he knew he was off the case. (R.T. 8/8) B. Entry to premises at 360 N. Rockinqham The four detectives arrived at the Simpson residence shortly after 5:00 A.M. (R.T. 7/72) The premises are a single- family home on a large corner lot completely surrounded by walls and fences, with two gates, one facing Ashford Street and one facing Rockingham. (R.T. 7/18) An intercom with a call button and speaker box is located at the Ashford Street gate. (R.T. 7/32, 8/36) All four detectives began pressing the call button, and could hear it ringing inside the residence. They continued to ring the bell for 10-15 minutes. (R.T. 7/33) They observed an upstairs light on inside the residence. Two cars were parked on the inside driveway. (R.T. 7/33, 8/38, 9/4-5) Detective Vannatter observed a posted sign that the premises were protected by Westec Security, a private security company. He requested Detective Phillips to contact them via a cellular phone, and secure a telephone number for the residence. (R.T. 8/38-39) A Westec patrol unit responded to the scene, and a Westec supervisor arrived a few minutes later. (R.T. 7/35) The supervisor informed the detectives there was a full-time maid on the premises and provided the residential telephone number. The number was called, and an answering machine responded, with a recording of O.J. Simpson requesting a recorded message be left. (R.T. 8/41-42) The single event that allegedly transformed the police visit from a "notification call" to an emergency demanding immediate rescue operations was the discovery of a dried speck approximately 1/8 to 1/4 inch in diameter above the door handle on a white Ford Bronco parked in front of the residence on Rockingham. (Exhibits 8A-C, R.T. 7/78-80) The circumstances leading up to the discovery of this stain were the subject of sharply divergent and contradictory accounts by the two detectives who testified, however. Detective Fuhrman testified that the vehicle was parked "in a very haphazard manner," with the tires turned into the curb." (R.T. 7/36-37) Crime scene photographs taken from front, rear and both sides of the car established that this testimony was patently false. (Exhibits F1-4, R.T. 8/10-11) Furhman testified he immediately inspected the vehicle with a flashlight and found the stain above the driver's door handle. (R.T. 7/37) He also testified he found "three or four little lines, red- stained lines" at the lower seam of the door. (R.T. 7/37) This second stain was apparently observed by no one else, was remembered by no one else, and was not photographed or preserved for analysis. (R.T. 8/97, 9/87) He testified that after he observed the "stain," he looked in the interior of the vehicle and saw a package addressed in handwriting to O.J. Simpson, a shovel, and what appeared to be heavy-gauge plastic. (R.T. 7/39) According to Detective Vannatter, both he and Fuhrman first looked in the rear of the Bronco, and he saw a package addressed to Orenthal Productions, which he knew to be Mr. O.J. Simpson's first name. (R.T. 8/39) He asked Fuhrman to run a Department of Motor Vehicle check, and then returned to the other detectives at the gate. He was then directed back to the Ford Bronco when Fuhrman told him he saw what he believed to be blood on the car. (R.T. 8/41) Detective Vannatter testified he "did not recall" seeing any other stains on the door. (R.T. 8/97) Both Detectives Vannatter and Fuhrman could offer no factor other than the color of the stain for their conciusion that it was blood. (R.T. 7/78-79, 8/97) A criminalist did not examine the single stain until sometime between 7:10 A.M. and 10:10 A.M., applying a presumptive test that did not exclude the possibility of blood, but could not confirm whether it was human blood or animal blood. (R.T. 9/81-87) In an attempt to impeach the credibility of Detective Vannatter, which was erroneously excluded, the defense offered the affidavit for a search warrant sworn to at 10:45 that morning in which he falsely stated that: "Detectives observed what appeared to be human blood, later confirmed by scientific investigation personnel to be human blood on the driver's door handle of the vehicle." (Exhibit H, R.T. 22-24) After the observation of the suspected blood spot, a decision was made to "go over the wall." (R.T. 8/45) Detective Fuhrman climbed over the 5 1/2-foot wall, unhinged the Ashford Street gate and opened it to admit the other detectives. All four proceeded to the front door of the premises and knocked. Receiving no answer, they went to the rear of the premises to the guest rooms bordering the swimming pool. (R.T. 8/46-47) They went to the first guest room and awoke Brian "Kato" Kaelin, a long-term house guest of Mr. Simpson. They asked where Mr. Simpson was, and Kaelin informed them he was in Chicago. They expressed no concern about any injured persons on the premises, and were told that Mr. Simpson's daughter, Arnelle, was in an adjoining guest room. (R.T. 9/35, 37). Leaving Detective Fuhrman with Kaelin, the other three detectives awoke Arnelle Simpson at 5:30 A.M. She told them she could get in touch with her father, and led them into the house through the front door to place a telephone call. (R.T. 9/61- 62) She placed a telephone call to Cathy Randa, her father's administrative assistant, and Ms. Randa provided the officers with the telephone number of the hotel in Chicago where O.J. Simpson was staying on a business trip planned two months in advance. Both Arnelle Simpson and Cathy Randa confirmed that this telephone call was made at 5:45 A.M. (R.T. 9/64, 75) Within five minutes after this call, Ms. Randa received a telephone call from Mr. Simpson. (R.T. 9/76) Arnelle Simpson also explained to the officers that the maid had weekends off, that she and Kato were the only persons on the premises, and made arrangements to retrieve the Simpson children from the West L.A. police station. (R.T. 9/65-66) Thus, within one hour of their arrival, the detectives had accomplished all of the ostensible purposes of their visit to Mr. Simpson's home. Again, the court rejected admission of the search warrant affidavit to challenge the credibility of Detective Vannatter. Less than five hours after learning of the planned business nature of Mr. Simpson's trip to Chicago, Detective Vannatter swore under oath in an attempt to mislead the magistrate issuing a search warrant that "Simpson had left on an unexpected flight to Chicago during the early morning hours of June 13, 1994." (Exhibit H, R.T. 9/28-29) C. Investigative activity at 360 N. Rockinqham Police remained in full control of the premises at 360 N. Rockingham from the time of their entry at 5:30 A.M. throughout the entire day on Monday, June 13, 1994. From the outset, they engaged in investigative activity such as interviewing persons on the premises about events related to the homicides at 875 S. Bundy, and searching for and seizing evidence. Significantly, Detective Vannatter summoned a criminalist to the Rockingham premises at 5:30 A.M., before entry was even made. (R.T. 9/81) His explanation for that call was a particularly revealing one: "I requested a criminalist to respond to my location, knowing that regardless of what I had there, whether I had another scene, someone injured or whatever, there was going to have to be collection of evidence. So I requested a criminalist respond to my location." (R.T. 8/45) The criminalist arrived at 7:10 A.M. and remained on the premises for three hours identifying, testing, photographing and seizing evidence before even going to the scene of the homicide itself. (R.T. 9/82) After the detectives awoke Mr. Kaelin, they entered his room, searched his closet, and scrutinized his clothing and shoes for bloodstains, examining the pattern in an effort to match the bloody footprints at the Bundy crime scene. (R.T. 9/36, 7/96) They asked him who drove the Bronco, the current location of the keys to the Bronco, and interrogated him in great detail about the activities of himself and O.J. Simpson the evening before. (R.T. 9/38, 48) Arnelle Simpson was asked if an officer could take an envelope containing a bill addressed to her. (R.T. 9/68) The driveway was closely inspected to look for blood drops. (R.T. 8/60-61) The alleged discovery of a leather glove matching a glove seen at the Bundy premises was a direct result of the investigative activity of the detectives. The glove was allegedly found by Detective Fuhrman on a narrow passageway where the house backed up against a tall fence, strewn with debris and overgrown with vegetation. (Exhibits 9A-D, R.T. 7/52-54) The area is accessible only through a gate next to the garage, inside the enclosed premises of the Simpson home. The only reason for Detective Fuhrman to venture into this largely inaccessible part of the premises was to do follow-up investigation to his interrogation of Mr. Kaelin, who told him of hearing a loud banging noise in that area at approximately 10:45 P.M. the night before. (R.T. 7/48) The suggestion that Detective Fuhrman was "looking for the body of a possible victim" is simply creative and transparent fiction. (R.T. 7/101) At no time did any officers suggest to Mr. Kaelin that they had any concerns about a suicide or murder occurring on the Rockingham premises, or that there were any injured persons on the premises. (R.T. 9/35) Nor were any such concerns ever expressed to Arnelle Simpson (R.T. 9/64) Mr. Kaelin had spent the entire night in his room without hearing any noises or unusual sounds after what he thought was an "earthquake" eight hours earlier. (R.T. 9/56) No attempt was even made to question Arnelle Simpson about any unusual events the night before, even though her room adjoined Mr. Kaelin's. (R.T. 9/64) Nor was any effort made to check out the area by simply opening the window in Kaelin's adjoining bathroom. (R.T. 9/39-40) In any event, the information obtained from Mr. Kaelin and the follow-up search of the passageway behind the house came well after the initial purpose of the entry had been accomplished. The evidence is consistent and undisputed that the call was placed to notify Mr. Simpson at 5:45 A.M., and Arnelle Simpson immediately initiated steps to retrieve the children. Detective Fuhrman's own estimate of the time he discovered the glove was between 6:15 and 6:30 A.M. (R.T. 7/105-106, 8/18) Detective Vannatter testified that he saw the glove and observed blood droplets in the driveway around 6:45 A.M. (R.T. 8/62), and later added that no more than 30 minutes elapsed between his observation of the glove and blood drops and his decision to secure the premises and seek a search warrant at 7:30 P.M. (R.T. 8/66-67) Both Arnelle Simpson and Brian Kaelin were informed at approximately 7:30 A.M. that they would have to leave the premises of their home. Kaelin was told to wait out on the street for officers to take him to a police station for an interview (R.T. 9/39), and Arnelle Simpson was simply asked to leave the premises. (R.T. 9/66) After instructing the criminalist regarding the protection, marking and photographing of physical evidence, Detective Vannatter left the premises to seek a search warrant, which was not issued until 10:45 A.M. Once again, the defense was precluded from challenging Detective Vannatter's credibility by showing that, in the sworn affidavit for the search warrant, he made no reference whatsoever to any emergency or exigent circumstances at the Simpson premises, relating only that the glove was observed "during the securing of the residence," and falsely stating that the glove was "containing human blood." (Exhibit: H, R.T. 9/22) D. Evidence connecting the defendant O.J. Simpson with the crime. There is, of course, no dispute that a double homicide occurred on the premises at 875 S. Bundy on the evening of Sunday, June 12, 1994. The question is whether there is probable cause to believe that the defendant O.J. Simpson perpetrated the crime. In order to find probable cause, sufficient evidence to support the probability of the following factual scenario proposed by the prosecution would be required: 1. That the victims were both killed by a single assailant, between 10:00 P.M. and 11:00 P.M. on Sunday, June 12, and that assailant was Mr. Simpson. 2. That Mr. Simpson went from the premises at 875 S. Bundy to his home at 360 N. Rockingham in time to respond to an airport limousine pick-up at 10:56 P.M. 3. That Mr. Simpson dropped or deposited a glove worn at the murder-scene on a narrow passageway behind his home. The evidence presented at the preliminary hearing fell woefully short of establishing the probability of any of these three propositions. 1. The "single assailant" theory is highly improbable in terms of the nature of the wounds inflicted and the positions of the victims' bodies. Both victims were found in close proximity to each other at the entrance gate to the home. (R.T. 8/32) The coroner identified four separate stab wounds to the neck of Nicole Brown Simpson, and three cutting wounds to the scalp, all antemortem. (R.T. 12/62, 70) He identified two wounds to the neck, five to the face, three stab wounds in the torso, and numerous other smaller wounds on the scalp of Ronald Goldman, all antemortem. (R.T. 12/81-87) He testified that there were "two morphologically different types of stab wounds on the victims," and that two knives could have produced the injuries on both of the victims. (R.T. 13/24-25) It is highly improbable that all of these wounds could have been inflicted by a single assailant on two different victims without an outcry or attempt to escape. No greater precision to fix the time of death within an approximate range of two hours was presented. Based upon gastric contents of the victims' stomachs, body temperature determinations and rigor mortis determinations, the coroner offered a range of 9:00 P.M. to midnight as the time of death of Nicole Brown Simpson. (R.T. 13/16) Mr. Goldman was observed leaving the restaurant where he was employed at 9:50 P.M. (R.T. 4/11) He was wearing black pants, a white shirt and black shirt when he left the premises. (R.T. 4/17) His body when found at the scene was clothed in Levi jeans, a long-sleeved shirt or sweater and canvas boots. (R.T. 12/73) Apparently he walked to his apartment and changed clothes before proceeding on foot to the Bundy address. (R.T. 4/17) The bodies were not discovered until after midnight by a couple who were led to the premises by a dog. (R.T. 4/79) The only attempt to place Mr. Simpson at the scene of the homicides was through the testimony of a serologist who analyzed a single drop of blood which was removed from the walkway leading to the rear of the Bundy premises, 86 feet west of the west curb of Bundy and 1 foot 10 inches north of the north wall. (Exhibit 19, Photo I.D.114; R.T. 11/53, 76) There was no attempt to show the age of this blood drop, or to link it with any other blood at the scene except by its proximity. In fact, this particular blood drop varied from the others in its apparent color. (R.T. 11/77) The criminalist described variations in color as the only indication of the age of a bloodstain, and testified one is generally unable to determine whether stains are placed or dropped at the same time. (R.T. 11/67) Since this stain was found in a location where Mr. Simpson would be a frequent visitor (the home of his ex-wife and two of his children), the inability to date the drop or associate it with other evidence at the premises is critical. In any event, the serological analysis of this single drop of blood was far from conclusive. The serologist testified that he tested it for blood type, enzyme group and PGM subtype. The results were indicative of Type A blood, ESD Type 1 and PGM subtype 2+2-. (R.T. 12/5, 8, 9) Testing of the defendant and the victims produced the following results: Blood Type ESD PGM Nicole Brown Simpson A 1 1+ Ronald Goldman O 1 2+1+ O.J. Simpson A 1 2+2- Based on these results, he testified that Nicole Brown Simpson and Ronald Goldman could be excluded as the source of the blood drop, but O.J. Simpson could not. (R.T. 12/9) On cross-examlnation, he conceded that this conclusion assumes that the blood drop is not a mixture of the blood of two individuals, and that if it were, his results could also be consistent with a mixture of the blood of Nicole Brown Simpson and a fourth person with Type O blood and a 2+2- PGM subtype. (R.T. 12/34) This, of course, would exclude the defendant as a potential source. With respect to a random match probability, the serologist used computations of the frequency of each of these three characteristics based upon an internal compilation of crime lab results, rather than a random sample of the population as a whole. (R.T. 12/13) Using a frequency of 33.7% for Type A, 79.6% for ESD Type 1, and 1.6% for PGM subtype 2+2-, he simply multiplied the factors to produce a frequency of .43% for the combination of these three factors. (R.T. 12/16-17) An objection that there was no foundational showing that these three factors are independent was overruled. (R.T. 12/10, 19) Even accepting this computation, however, it simply shows that the probability that a person selected at random would match the identified factors in the blood drop was 1 in 200, or 1 in 100 if the drop was a mixture. In the City of Los Angeles, that means 40,000 to 80,000 persons could produce blood with identical markers. (R.T. 12/35-36) 2. The attempt to prove that Mr. Simpson went from the premises at 875 S. Bundy to his home at 360 N. Rockingham was nothing less than leaping to conclusions by the police coupled with sleight of hand by the prosecutor. Detective Vannatter's testimony regarding the stain on the door of the Bronco on the Motion to Suppress was incorporated as part of the record for the preliminary hearing. (R.T. 10/89) The only analysis of that stain presented at the preliminary hearing was the result of a presumptive test administered at the scene by criminalist Dennis Fung. (R.T. 11/37) The presumptive test was indicative of blood, without the ability to distinguish animal blood from human blood. The presumptive test will also produce false positives on a number of vegetable substances frequently found in fast food ingredients. (R.T. 11/64-65) No attempt was made to link this stain with the blood of Mr. Simpson or either of the victims of the homicide at 875 S. Bundy. The prosecutorial sleight of hand involved the transformation of a witness' testimony that he didn't notice whether a car was there or not on two occasions lnto testimony that it was not there on the first occasion and it was there on the second occasion. Limousine driver Allan Park, who picked up Mr. Simpson the night of June 12 to transport him to the airport, testified that when he arrived at the premises at 10:25 P.M., he "didn't notice" any white Ford Bronco parked on Rockingham. (R.T. 6/15) He similarly testified that when he left the premises with Mr. Simpson in the back of the limousine, he "didn't look to see" if there were any cars parked in front of the house on Rockingham. (R.T. 6/40) In her summation, the prosecutor asserted that "when Allan Park drove down to the Rockingham gate at about 10:40, the Ford Bronco was not there." (R.T. 13/40) There is simply no evidence to support that assertion. The selective nature of this device can also be noted. Mr. Park also testified that he "didn't notice" any injuries to Mr. Simpson's hands as they were packing up the limousine and getting ready to leave for the airport. (R.T. 6/41) If his testimony that he "didn't notice" the Bronco justifies a conclusion it wasn't there, then his testimony he "didn't notice" injuries to Mr. Simpson's hands would justify a conclusion that Mr. Simpson's hands were not injured at the time he left for Chicago on the evening of June 12. 3. The key item of evidence by which the prosecution attempted to link Mr. Simpson to the scene of the homicide was visual match between two gloves, one found at the foot of Ronald Goldman, and one allegedly found or. the debris-strewn passageway at the rear of Mr. Simpson's home. It must be noted at the outset that the glove at Mr. Simpson's home was the fruit of an unlawful entry and an illegal warrantless search. Thus, it cannot be considered as evidence justifying a finding of probable cause. Even if it is deemed admissible evidence, however, its probative value is greatly diminished by its incongruity with any rational theory of the prosecution's case. The criminalist suggested that the presence of five "blood drops" on the driveway at 360 N. Rockingham revealed a "trail" from the Bronco to the front door of Mr. Simpson's home. (R.T. 11/41-43) Once again, the only test results presented with respect to these drops was the presumptive test that does not distinguish animal from human blood and presents false positives for various vegetable substances. But even if they are assumed to be human blood, the "trail" does not lead to the rear passageway where the glove was found. In fact, no footprints or "blood drops" were found leading to the glove or anywhere in its vicinity. (R.T. 11/70) Even weaker is the attempt to link the glove in any way to Mr. Simpson. No blood tests of the glove were offered other than the same inconclusive presumptive test. (R.T. 11/68-69) Apart from its presence behind his home, in an area where numerous persons besides himself would have access, there is no explanation of how it got there or who or what deposited it. E. Evidence of malice aforethouqht If the prosecution theory of Mr. Simpson's guilt is accepted, it requires acceptance of a scenario that is completely inconsistent with a planned killing. The testimony of Brian "Kato" Kaelin establishes that on Sunday evening, Mr. Simpson attended a dance recital for his daughter at which he saw his former wife Nicole, returned to his home around 7:00 P.M., seemed tired and relaxed, and went out for a hamburger with Kaelin from 9:10 P.M. until approximately 9:40 or 9:45 P.M. (R.T. 6/86-94, 99-101) All of the witnesses to the movements of Ronald Goldman confirm that he had no plans to even be at the home of Nicole Brown Simpson until he received a telephone call from her at approximately 9:35 P.M. (R.T. 4/10, 16) Not one shred of evidence supports even an inference that Mr. Simpson went to Nicole Simpson's house that evening with "malice aforethought." While the prosecution did present evidence that Mr. Simpson purchased a collectable knife on May 3, 1994 (R.T. 2/44-45, 66- 71), the coroner was unwilling to offer a definitive opinion that the knife was consistent with the wounds inflicted in the absence of detailed measurements of the blade. (R.T. 12/100) Nothing but the wildest speculation links the purchase of the knife with the murders of Nicole Brown Simpson and Ronald Goldman. III. ARGUMENT A. The Magistrate Erroneously Excluded the Search Warrant Affidavit from Evidence. At the conclusion of the testimony of Detective Vannatter, counsel for the defendant offered, as Exhibit H, the affidavit he signed to apply for a search warrant on the morning of Monday, June 13, 1994. The prosecutor voiced a strenuous objection on the grounds of lack of foundation and relevancy. (R.T. 9/19-20) The court sustained the objection on the grounds the affidavit was hearsay. (R.T. 9/21) Detective Vannatter was then recalled and acknowledged that he was the affiant. (R.T. 9/22-23) He acknowledged stating that scientific investigation personnel confirmed there was human blood on the driver's door handle of the Bronco, but when asked when he was so informed, an objection was sustained. The Court then ruled: "I'm not going to go into the -- what I agree with the prosecution would amount to a traversal of the search warrant since the prosecution has indicated that they are in fact not going to offer any of the evidence that was recovered after its execution." (R.T. 9/28) Thereafter, a single question was permitted, and the detective admitted stating in the affidavit that "Simpson had left on an unexpected flight to Chicago during the early morning hours of June 13th . . ." (R.T. 9/29) The Court later reiterated its ruling that the search warrant affidavit itself was inadmissible. The exclusion of the affidavit was clearly erroneous and highly prejudicial. The affidavit fell within the exception to the hearsay rule spelled out in Section 1235 of the California Evidence Code: "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770." Not only was the affidavit admissible to impeach the credibility of Detective Vannatter, but it was admissible by virtue of Section 1235 as evidence of the matters stated. The fact that the detective described the discovery of the glove as occurring "in securing the premises" rather than in an exigent search for victims was crucial substantive evidence that this earlier version of what happened was the true version, and should be given greater credence than the version created in response to the defendant's motion to suppress. The offer of the affidavit was in full compliance with Section 770 of the Evidence Code, since it was offered while Detective Vannatter was still available, and had not been excused from giving further testimony in the act:on. Section 770 provides: "Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or (b) The witness has not been excused from giving further testimony in the action." The disjunctive nature of these requirements was intended to give counsel a tactical option. As the comment of the Law Revision Commission explains: "Permitting a witness to explain or deny an alleged inconsistent statement is desirable, but there is no compelling reason to provide the opportunity for explanation before the inconsistent statement is introduced in evidence. Accordingly, unless the interests of justice otherwise require, Section 770 permits the judge to exclude evidence of an inconsistent statement only if the witness during his examination was not given an opportunity to explain or deny the statement and he has been unconditionally excused and is not subject to being recalled as a witness. Among other things, Section 770 will permit more effective cross-examination and impeachment of several collusive witnesses, since there need be no disclosure of prior inconsistency before all such witnesses have been examined." The exclusion of the affidavit deprived the defendant of compelling evidence that the detective in charge of this investigation was willing to make false and misleading statements and conceal material facts in order to persuade a judge to issue a search warrant for the defendant's home. What more relevant evidence could be presented to challenge the credibility of his testimony on a motion to suppress, where the reasonableness of his warrantless search of the same premises was at issue? Of even greater consequence, however, was the exclusion of material evidence that the crucial discovery of a glove on the defendant's premises did not occur during an emergency search for victims, but "during the securing of the residence." Detective Vannatter testified at the hearing that he made a decision to secure the residence after the discovery of the glove. (R.T. 8/66-67) B. The Court Must Reassess the Factual Findinqs After Considering the Erroneously Excluded Search Warrant Affidavit. The ruling of the magistrate excluding the search warrant affidavit in this case is closely analogous to the situation presented in Tharp v.. Superior Court (1984) 154 Cal. App. 3d 215. There, a defendant filed a motion to traverse and quash a search warrant prior to his preliminary hearing. At the hearing on the motion, the magistrate precluded questioning regarding omissions of information about the credibility of an informant. The motion to suppress was denied, and the defendant was held to answer. In the Superior Court on defendant's motion to set the information aside under Penal Code Section 995, the Superior Court concluded that the restrictions on his right to cross- examine on the motion to suppress denied a substantial right. The Superior Court then resorted to the procedures outlined in Penal Code Section 995a(b), which allows a remand to the committing magistrate to correct "minor errors of omission." On appeal, the Court held that a remand was not appropriate in these circumstances and directed the Superior Court to rule on the motion to set aside the information: "The magistrate's erroneous evidentiary ruling was the direct result of the prosecutor's attempt to limit inquiry into the affiant's knowledge regarding the informant's background. The prosecutor, for reasons we are not privy to, purposely objected to the admission of relevant information. The magistrate in turn excluded the evidence. Without question, the error was the result of volitional decisions, unequivocal in nature. Since the error does not satisfy the 'of omission' requirement of Section 995a, subdivision (b), a remand to the committing magistrate is therefore not authorized." 154 Cal.App.3d at 220. Thus, this Court is left to reassess the factual findings made by the magistrate, after duly considering the erroneously excluded search warrant affidavit. C. The Warrantless Entry to Mr. Simpson's Home Was Not Justified by Exigent Circumstances. The ruling of the magistrate that the warrantless entry to Mr. Simpson's home was justified by exigent circumstances extended the doctrine of exigency beyond any previous reported decision. It subjects the protections of one's home embodied in the Fourth Amendment to the mere post-hoc recitation of benevolent motives by police officers, avoiding the requirement that a neutral magistrate review their determinations of probable cause before a search warrant is issued. The horrific visions of hostages, kidnap victims and unattended bleeding bodies conjured up by the officers in response to the defendant's motion to suppress can only be described as a "fanciful attempt to rationalize silence into a justification for [his] warrantless entry." People v. Smith (1972) 7 Cal.3d 282 287. As the Court noted in People v. Dickson (1983) 144 Cal.App.3d 1046, 1063: "The risk 'exigent circumstances' will be used as a pretext is especially grave when officers have some suspicion, short of probable cause, that criminal activity is under way on the premises they intend to invade. This is not to say an officer's motives must be completely pure when he enters with the avowed purpose of protecting life and property. Clearly when an officer hears gunfire and screams of pain inside a house he may rush in with an investigator's curiosity as well as the savior's desire to save lives. But where mixed motives are possible the courts must be alert the savior's image is not merely pretence for an unconstitutional invasion of a suspect's private home. "Without entering the policeman's head, we can never be certain whether he was thinking as a savior or an investigator. However, where as here the 'exigent circumstances' rest on a claimed imminent threat of danger to life and property, we hold the court is entitled to ask at least two questions. First, the objective test: was the threat so imminent and serious a reasonable policeman would believe that a warrantless, emergency entry was necessary to save lives and property? And, second, the subjective test: was this officer indeed motivated primarily by a desire to save lives and property?" Without discounting the risk of pretext noted by Dickson, the California Supreme Court clarified the standard to be applied in People v. Duncan (1986) 42 C'al. 3d 91, 104, emphasizing that the conduct of the officers should speak more loudly than their subjective beliefs: "In Dickson, the court divided the question whether exigent circumstances exist into two separate inquiries: whether the officer's primary motivation was to save lives and property, and whether a reasonable police officer would have found the threat so imminent and serious that a warrantless entry was necessary. (144 Cal.App.3d at p. 1063). On the other hand, the court in Peol-le v. Baird supra, 168 Cal.App.3d 237 244, declared: 'while we agree that both subjective and objective criteria must be examined in any motion to suppress, we disagree with the Dickson court's formulation and application of the subjective test. In particular, we object to the court's requirement that the officer's Primary motivation must be determined, and question its apparent holding that it is the appellate court which must determine what the officer believed.' (Italics in original.) We agree with Baird. "It is unreasonable to expect an officer to be unconcerned with the collection of evidence and the capture of criminals. While the trial court must find that the officer believed an emergency to exist, reasonable actions taken by the officer should not preclude such a finding. For example, in Stegman the officer waited for a backup unit before entering the defendants' property. As the court stated, '[p]ersons in the process of manufacturing illicit drugs may reasonably be expected to be armed and willing to use arms to prevent apprehension. An officer is not required to rush blindly into a potential illicit drug laboratory and possibly encounter armed individuals guarding the enterprise, with no regard for his own safety just to show his good faith belief the situation is emergent.' (164 Cal.App.3d at pp. 945-946.) "On the other hand, if the officers act in a manner inconsistent with a motive to preserve life or property, the warrantless entry or search cannot be justified after the fact by employing the exigent circumstances doctrine." Here, of course, the subsequent conduct of the officers belied their motive to "save lives". The only concern they expressed to the occupants they roused from their beds was the immediate location of O.J. Simpson. The investigation they immediately pursued was to locate evidence linking Mr. Simpson to the crime scene they had just left. They commandeered full authority and control over the premises for nearly six hours before obtaining a search warrant, detaining all lawful occupants and ultimately evicting them from their own home. But regardless of what might be said about the true motives of the officers, the objective reasonableness of the conclusions to which they leaped based upon the silence they encountered and the tiny speck of red stain they observed on a car door is where the ruling of the magistrate wreaks the greatest mischief. All of the rationalizations offered by the officers are identical to the traditional rationalizations offered in a case of "hot pursuit" of a fleeing felon. The link suggested from the speck of blood on the door was that the perpetrator of the homicide on Bundy Drive had come to the Rockingham residence. As Prosecutor Marcia Clark put it, in her summation to the magistrate: "The bloody shoe prints leaving that crime scene with blood drops alongside them were to the left of those shoe prints. That shows us that the killer was injured somewhere on his left side. The blood on the driver's door handle of the Ford Bronco would logically be opened with the left hand, and it's no coincidence that we just happen to find the blood spot on the driver's door handle." (R.T. 13/39) The problem, of course, is that this dramatic discovery is made at least five and one-half hours after the homicides occurred, and two miles away from the scene. No court would ever call that "hot pursuit". Cold pursuit cannot be transformed to hot pursuit simply by the overheated imaginations of laggard detectives. The linchpin of every case finding "exigent circumstances" for warrantless entries following a homicide is temporal and physical proximity to the actual scene of a reported crime. This, in fact, is the most notable feature of the case the magistrate found most analogous, People v. Cain (1989) 216 Cal.App.3d 366. There, the victim of an attempted rape which occurred at 4 a.m. immediately called the police. They immediately responded. They heard music coming from the apartment next door, heard the television playing and saw lights on. "At this point in time it was probably 4:15 to 4:30 A.M." 216 Cal.App.3d at 372. After three or four minutes knocking, they entered the unlocked door and immediately encountered the defendant, drunk and asleep in the middle of the floor, wearing bloodstained clothing. The only thing the officers seized was the defendant himself. While the magistrate may have found the early morning hours and the lack of a response to knocking were analogous to this case, in actuality her ruling in this case extends Cain from the apartment next door to an enclosed private residence two miles away, and from an entry 15-30 minutes after the commission of a crime to an entry five and a half hours after the discovery of a crime scene. On this record, the prosecution simply failed to meet the heavy burden of justifying a presumptively unreasonable warrantless entry to a private residence. As the Supreme Court concludes in Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971): '...'searches conducted outside the judicia, process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.' The exceptions are 'jealously and carefully drawn,' and there must be 'a showing by those who seek exemption...that the exigencies of the situation made that course imperative. (T)he burden is on those seeking the exemption to show the need for it. D. Illegal Investigative Activity was Permitted to Continue After the Alleqed Benevolent Purpose of the Entry Had Been Accomplished. The officers claimed to be motivated by their concern for Mr. Simpson's safety, the need to assure themselves that additional victims in need of aid were not on the premises, and the need to arrange for the care of Mr. Simpson's children. Realistically, these concerns required a 20 minute visit to the premises. In actual fact, they were accomplished in 30 minutes. Within a half-hour after their entry at 5:30 a.m., the officers had personally spoken to Mr. Simpson to notify him of his ex- wifes' death and arrange his immediate return, they had roused everyone in the guest rooms and learned that the house was secure and protected by an alarm system, and they had set in motion arrangements by Arnelle Simpson to retrieve the children. The evidence is not in dispute that all investigative and evidentiary discoveries ensued after the ostensible purpose of the entry had been accomplished. The constitutional limitations on the scope of police activity after an entry justified by exigent circumstances is well stated by La Fave, Search and Seizure: A Treatise on the Fourth Amendment, Vol. 2, Sect. 6.6(a), pp. 705-06 (2nd Ed. 1987): "Once it is determined that the suspicion which led to the entry is without substance, the officers must be carefully limited to achieving the objective which ju~tified the entry -- the officer may do no more than is reasonably necessary to ascertain whether someone is in need of assistance and to provide that assistance." The cases illustrating this limitation include some that are quite analogous to the conduct of the officers in this case. In United States v. Preslar, 610 F.2d 1206 (4th Cir. 1979), the court upheld a warrantless entry to the defendant's apartment in response to concerns for his safety reported by his landlady. She informed police she had not seen him for some time, and detected an unusual odor emanating from his apartment. The police entered without a warrant, and found defendant lying immobile on a bed, covered with blood he had apparently vomited. Evidence of the discharge of firearms was also apparent. An ambulance was called, and defendant was taken to a hospital. But the officer remained, searching the apartment for weapons. Although the Court found the entry was justified by exigent circumstances, it invalidated the search on the grounds the exigency ended when the defendant was taken to a hospital. The Preslar court concluded that a contrary ruling would undermine the rejection of a "murder scene" exception to the Fourth Amendment by Mincey v. Arizona, 437 U.S. 385 (1978). Even where police are called to the scene of an ~ctual homicide, they are not entitled to commandeer the premises without a warrant and engage in a general search for evidence. ThomPson v. Louisiana, 469 U.S. 17 (1984). In People v. Timms, 179 Cal.App.3d 86, 92, the Court concluded: "Under Thompson and Mincey it is clear that once the police were summoned to appellant's premises because of a homicide they could make a prompt warrantless search of the premises to see if there were any other victims or suspects on the premises, but emergency calls do not imply consent to unlimited warrantless searches." In State v. Cota, 675 P.2d 1101 (Or. App. 1984), the Court assumed that the entry to the home occupied by a drug suspect they had just arrested was justified by concern for a small child they observed in the house. They asked the child where his father was, and the child let them to another room in the house where they encountered Mr. Killmon. The Court held that, even if the entry was lawful, the officers should have left after they encountered Killmon: "Once he had been found, there was no 'practical necessity' (citation omitted) for any officer to go farther into the house. The contraband that is the subject of this case was discovered after Killmon was located and after the officer's only other legitimate purpose at or in the house - the arrest of the defendant - had already occurred. The evidence should have been suppressed." 675 P.2d at 1103- 04. E. The "Plain View" Doctrine Did Not Permit Warrantless Seizure and Analysis of Minute Stains. While police officers who are lawfully in a position to observe contraband or evidence of a crime are ordinarily permitted to seize it without a warrant, this doctrine of "plain view" has never been extended to permit the scrutiny or inspection of pavement within the curtilage of a home to identify bloodstains or any other minute particles of evidence. Even if it were conceded (and it is not) that the police were entitled to make a cursory inspection of the premises at Mr. Simpson's house to look for bleeding victims, the absence of such persons from the pavement on his driveway would have been immediately obvious even to the nearsighted Mr. Magoo. The minute stains identified by the officers in this case, who waited for daylight to look for them, required the kind of scrutiny that can only be characterized as a search for evidence. While it was aided by sunlight, it was not aided by search warrant. The subsequent activity of a criminalist in swatching and testing these stains over a three hour period before the issuance of a search warrant is even more egregious. Even if it were concluded the stains were in "plain view" that does not mean warrantless "field testing" is automatically permissible. As the U.S. Supreme Court declared in United States v. Jacobsen, 466 U.S. 109, 124-125 (1984): ". . . A seizure lawful at its inception can nevertheless vlolate the Fourth Amendment because its manner of execution unreasonably infringes possessory interests protected by the Fourth Amendment's prohibition on 'unreasonable seizures'. Here, the field test did affect respondent's possessory interests protected by the amendment, since by destroying a quantity of the powder it converted what had been only a temporary deprivation of possessory interests into a permanent one. To assess the reasonableness of this conduct, 'we must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.' In Jacobsen, the Court struck the balance in favor of the government because of the contraband nature of the substance tested and the de minimis impact of a drug field test. Accord, People v. Leiqhty (1988) 205 Cal.App. 3rd 922. The testing of blood stains, of course raises concerns of a whole different order. Blood is not contraband, and its analysis can reveal highly private information. Cf. Schmerber v. California, 384 U.S. 757 (1966); Skinner v. Railway Labor Executives Ass'n., 489 U.S. 602 (1989). The destruction or loss of a portion of the sample can have a significant impact on fragile and irreplaceable exculpatory evidence. F. There Was Not Sufficient Evidence to Find Probable Cause that O.J. Simpson Was the Perpetrator of the Crimes Charged. The prosecution posited the presence of O.J. Simpson at the scene of this double homicide upon the serological analysis of single bloodstain. Even if this bloodstain were given the greatest evidentiary value it could assume, it would not achieve the value of a fingerprint. The serologist conceded as much. (R.T. 12/28-29) The analogy is an important one, because even the presence of a fingerprint of the defendant at the house of his former wife and children would not provide probable cause to hold him to answer for the crime of murder. In that respect, the case is analogous to Birt v. SuPerior Court (1973) 34 Ca:.App.3d 934, where the Court held the defendant's fingerprint on a cigarette lighter in a van being utilized to commit a burglary was insufficient to hold her to answer. "At most, the presence of petitioner's fingerprint on the lighter found on the front seat showed that, at some unknown time and place, she had been inside the van; but there was no direct or circumstantial evidence to indicate when and where that had been. Only by guesswork, speculation, or conjecture can it be inferred that petitioner was inside the van, or in the area, at the time of the McNutt burglary. (citations omitted;. If probable cause is shown by the evidence at bench, we can only assume that the People could have charged any highway patrolman whose fingerprints might be found on the window sill of the van, or the lessor and any prior lessee whose fingerprints might be inside the vehicle. The manifest injustice which lies in such assumptions likewise characterizes the singling out of petitioner for prosecution." 34 Cal.App.3d at 937. G. There Was Not Sufficient Evidence To Find Probable Cause That the Homicides Were Committed With "Malice Aforethought." Probable cause must be established for each element of the crime charged, including the element of intent. Garabedian v. Superior Court (1963) 59 Cal.2d 124. The defendant has been held to answer on a charge of murder, defined by Penal Code Section 187 as the unlawful killing of a human being "with malice aforethought." California Penal Code Section 188 defines malice: "Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no considerable provocation appears, or when the circumstances show an abandoned and malignant heart." In the absence of probable cause of mailce, the defendant could ony be convicted of the elsser offense of manslaughter, California Penal Code Section 192. But an information must be set aside if there is a total absence of evidence to support a necessary element of the crime charged. Sommers v. Superior Court (1973) 32 Cal. App. 3d 961. In People v. Caffero (1989) 207 Cal. App. 3d 678 the court upheld the dismissal of an information charging murder, even though the evidence showed the defendants caused the death of the victim by neglect, because "the evidence will not support the inference defendants acted with conscious or wanton disregard for human life and thus with malice aforethought." 207 Cal. App.3d at 686.