Here’s Danny Masterson’s motion for bail while on appeal, in all its pricey detail

[Danny Masterson and his new appellate attorneys, Gardner and Multhaup]

We were just out of court yesterday at the hearing in Leah Remini’s lawsuit when we heard the news that Danny Masterson’s new appellate attorneys had moved for him to be freed on bail while he’s appealing his convictions.

Judge Charlaine Olmedo has scheduled a hearing for this week to hear this argument, but does it stand a realistic chance of succeeding? We suspect that it’s a non-starter, but we still marvel at what money buys for wealthy clients.

We thought you’d want to see that as well, and what better way than to show you the whole enchilada, the entire motion for bail filed by Masterson’s new appellate attorneys, Cliff Gardner and Eric Multhaup.

We know there’s a lot of impenetrable legal stuff in the middle, but the initial parts are pretty interesting as these two highly paid attorneys try to portray convicted serial rapist Masterson as an asset to the community who won’t make a run for it if he’s let out of custody.

But they are also, at the end, making an argument that there is new exculpatory evidence that the jury never got to hear, involving four witnesses that the LAPD interviewed in 2004. But whatever that evidence is, it was redacted from this public version of the document.

Well, read what is there and let us know if you think that there’s any chance that Judge Olmedo bites on it.

NOTICE OF MOTION AND MOTION FOR BAIL ON APPEAL

To the Hon. Charlaine P. Olmedo, Los Angeles Superior Court: Defendant Daniel Masterson through his attorneys Clifford Gardner and Eric Multhaup moves the Court for an order granting bail on appeal pursuant to Penal Code sections 1272, subd. (3) and 1272.1. As set forth in the accompanying Memorandum of Points and Authorities and Exhibits, defendant far exceeds the criteria for bail on appeal set forth in Penal Code section 1272.1. In fact, defendant is among the most deserving candidates for bail on appeal that a court will encounter due to two unusual aspects of this case.

First, for the past 20 years, defendant has led an exemplary law-abiding life devoted to his family, his community and to many charitable and humanitarian causes. That unblemished track record uniquely establishes the strength of his ties to the community and his lack of dangerousness to any other person, including the complaining witnesses in this case.

Second, counsel for defendant will raise an appellate issue regarding the expiration of the statute of limitations that is significantly stronger than the arguments previously presented to this Court. Counsel have delved into the legislative history of Penal Code sections 799 and 805 in a manner that was not done in People v. Perez (2010) 182 Cal.App.4th 231 or in any other published case. The result of this analysis clearly demonstrates that an allegation of multiple victims under Penal Code section 667.61(e)(4) is an “enhancement” within the meaning of the Penal Code section 805(a) admonition that “[a]ny enhancement of punishment prescribed by statute shall be disregarded in determining the maximum punishment prescribed by statute for an offense.” Therefore, the section 667.61 allegation does not abrogate the normal 11 year statute of limitations prescribed for rape in Penal Code section 801.1. This argument weighs strongly in favor of granting bail on appeal because a decision in defendant’s favor will result in complete termination of the prosecution, not merely in a reversal of the judgment.

In addition, a defendant may apply for post-conviction bail pending habeas corpus proceedings pursuant to Penal Code section 1476. Post-conviction counsel are actively pursuing habeas corpus relief concurrently with the appeal, based in part on extensive exculpatory evidence that was not presented to the jury. As an indication of the tenor and quality of this evidence, counsel has attached summaries of four witness interviews conducted by Det. Myers of the L.A.P.D. in 2004 in response to Jenn B.’s complaint. These interviews contain information highly favorable to defendant that informed the District Attorney’s decision not to prosecute at this time. Counsel for defendant has concurrently filed a motion to submit these interview reports under seal with service on the District Attorney to avoid undue media attention to this complaining witnesses and to the exculpatory witnesses.

This motion is based on the accompanying Memorandum of Points and Authorities, the Exhibits attached to the Sentencing Memorandum, and such further evidence and argument as may be presented at the hearing of this motion.

Respectfully submitted,
CLIFFORD GARDNER, ERIC S. MULTHAUP
Attorneys for Defendant DANIEL MASTERSON

MEMORANDUM OF POINTS AND AUTHORITIES

I. THE STATUTORY FRAMEWORK FOR BAIL ON APPEAL

Penal Code section 1272.1 provides as follows:

Release on bail pending appeal under subdivision (3) of Section 1272 shall be ordered by the court if the defendant demonstrates all the following:

(a) By clear and convincing evidence, the defendant is not likely to flee. Under this subdivision the court shall consider the following criteria:

(1) The ties of the defendant to the community, including his or her employment, the duration of his or her residence, the defendant’s family attachments and his or her property holdings.
(2) The defendant’s record of appearance at past court hearings or of flight to avoid prosecution.
(3) The severity of the sentence the defendant faces.

(b) By clear and convincing evidence, the defendant does not pose a danger to the safety of any other person or to the community. Under this subdivision the court shall consider, among other factors, whether the crime for which the defendant was convicted is a violent felony, as defined in subdivision (c) of Section 667.5

(c) The appeal is not for the purpose of delay and, based upon the record in the case, raises a substantial legal question which, if decided in favor of the defendant, is likely to result in reversal. Where a defendant presents sufficient evidence to objectively satisfy the clear and convincing evidentiary standard as to Penal Code sections 1272.1(a) and (b), and where the defendant raises a substantial legal question under section 1272.1(c), the court must order the defendant released on bail as a mandatory duty, not a discretionary decision. See In re Podesto (1976) 15 Cal. 3d 921; In re Pipinos (1982) 33 Cal.3d 189.

II. DEFENDANT’S ENTITLEMENT TO BAIL ON APPEAL UNDER THE STATUTORY FACTORS.

A. The Unlikelihood that Defendant Will Flee if Granted Bail on Appeal.

1. Defendant’s ties to his family and to the community.

Defendant’s family moved to Los Angeles in 1992 when defendant was 16 years old. He has lived in southern California ever since, in Los Angeles itself until 2018, and then in Santa Barbara County town of Santa Ynez since then. Before his family moved to Los Angeles, defendant had a thriving career as a child model and actor closely supervised by his mother, Carol Masterson. In Los Angeles, he expanded into television roles and was successful. He has maintained a close family relationship with his mother and with his three younger brothers and one younger sister, who all live in the Los Angeles area. He has also maintained a strong relationship with his father, who lives on the East Coast. See Exhibit 1, letter from Carol Masterson, August 16, 2023; Exhibit 2, letter from Alanna Masterson, August 2, 2023. [These good character letters have been selected from the good character letters submitted with defendant’s Sentencing Memorandum.]

In 2004 when defendant was 28 years old, he met Bijou Philips, who was also working in the entertainment industry. They began dating, became exclusive, and married in 2011. After multiple miscarriages and medical problems, as set forth in the letter from Bijou Philips, August 23, 2023, they had a daughter in 2014. Defendant cared for both the daughter and Bijou, who described him as a “life-saving partner” in her letter. She describes defendant as an exemplary father. Exhibit 3.

Also, during this period, defendant engaged in significant philanthropic efforts, particularly with an organization devoted to helping long-term disabled first-responders, fire-fighters and police in the aftermath of 911.

Theresa Ashton, executive assistant for the two largest law enforcement unions in New York, attests that defendant was very active in post-911 charitable activities for first responders, and “raised millions of dollars so that rescue workers could receive free medical care for a decade.” Exhibit 4, letter of Theresa Ashton, July 24, 2023. For these efforts, he was awarded the Ellis Island Medal of Honor in 2013. See: medalists.eihonors.org.

Retired New York Fire Department Lt. Patrick McGreen attests to defendant’s extensive charitable efforts for 911 first responders and to defendant’s assistance to Lt. McGreen himself when he was ill. Exhibit 5.

In 2017, the complaining witnesses made their charges against defendant and by 2018, defendant had been ostracized from his acting career in the aftermath of the complaints. He and his family moved to a more rural setting in Santa Ynez. He formed close relationships with members of the local viticulture industry, with law enforcement agents, and his neighbors. See Exhibit 6, letter from Ryan Smith, July 23, 2023; and Exhibit 7, letter from Chris Atkinson, August 3, 2023. Until the verdict in this case, he lived a quiet but productive life in Santa Ynez with his wife and daughter, with frequent visits by his parents and siblings.

Since his incarceration, he continues to speak with his family and friends as much as the custodial communications system will permit, and his family ties remain as strong as ever. However, they are severely attenuated with respect to direct contact, which is particularly acute with respect to his nine year old
daughter.

Defendant has no practical ability to flee if released on bail. He has surrendered his passport to authorities. He is a publicly recognizable figure due to the international syndication of his television shows, to the extent that he has no place to go where he could be anonymous.

2. Defendant’s record of appearance at past court hearings.

Defendant has an unblemished record of court attendance.

3. The severity of the sentence.

The sentence of 30 years to life is certainly severe, but it did not deter defendant from appearing for the announcement of the verdict, and would not deter from defendant from complying with all terms of bail on appeal.

B. The Absence of Any Danger Posed by Defendant to Any Other Person or to the Community.

Defendant uniquely qualifies for bail on appeal under this criterion because he has lived the past 20 years in an exemplary manner in every aspect of his life since 2003 when the last of the incidents giving rise to the charges occurred. As set forth in the Sentencing Memorandum, defendant has demonstrated beyond a shadow of a doubt that he is a devoted husband, a loving father, and a contributing member to his local community and to larger social causes. As noted above, he made extraordinary efforts on behalf of a New York City charitable organization dedicated to helping first responders and law enforcement personnel suffering from long term disabilities arising from their service on 9/11. See Exhibits 4 and 5.

The outpouring of heartfelt testimonials to his good character and positive life-style during the past 20 years demonstrate far beyond clear and convincing evidence that defendant would lead a law-abiding life if granted bail on appeal. This is a very rare case in that the defendant’s 20 years of law-abiding life provide overwhelming evidence that he would continue to do so if granted bail on appeal.

C. Defendant Will Raise an Appellate Issue of Manifest Substance that Will Result in Reversal of the Judgment and Preclude Re-Prosecution.

1. Introduction and summary.

To meet the showing required by Penal Code section 1272.1, subd. (c), the undersigned counsel have delved into the legislative history of Penal Code sections 667.61, 799 and 805, and have developed significantly stronger arguments than were previously presented in this court that the prosecution was barred by the statute of limitations. Counsel are not asking this Court to revisit its prior ruling, but are asking that the Court recognize that the statute of limitations argument presented here is far stronger and thus more supportive of granting bail on appeal than were the arguments previously presented to the Court.

In short, the legislative history of Penal Code sections 799 and 805 is abundantly clear that the Legislature intended that both traditional base term plus add-on enhancements as well as alternative penalty provisions “shall be disregarded in determining the maximum punishment prescribed by statute for an offense.” Penal Code section 805, subd. (a).

That legislative history was not made known to or otherwise considered by the court in People v. Perez, supra, which this Court cited as controlling authority in its September 7, 2023 denial of defendant’s motion for mistrial. This Court may have been bound to follow Perez by stare decisis, but is not so limited in determining whether the current version of the argument meets the Penal Code section 1272.1(c) requirement of a substantial legal question for purposes of bail on appeal.

2. The clear and unambiguous legislative history of sections 799 and 805 demonstrates that a Penal Code section 667.61 allegation must be disregarded in determining the statute of limitations for the rape charges.

a. The 1984 legislative overhaul of the statute of limitations provisions.

The legislative history of Penal Code sections 799-805 began in 1981, when the Legislature passed Stats., 1981, Chapter 909, section 3, which directed the California Law Revision Commission [hereafter “LRC”] to study the then-existing patchwork of statute of limitations provisions applicable to felonies and to make recommendations for simplifying and clarifying them.2 The LRC responded in 1984 with a Recommendation Relating to Statues of Limitations for Felonies, 17 Cal. L. Revision Comm’n Reports 301 (1984). The Report described the state of the law as “complex and filled with inconsistencies.” Id. at 307. The Report also provided “Recommended Legislation” designated as Penal Code sections 799 to 806 to replace the existing patchwork, Id. at 317 – 324. The legislature enacted the L.R.C. recommendations virtually verbatim. Stats. 1984, ch. 1270, Section 2.

b. The express directive in section 805(a) that “[a]ny enhancement of punishment prescribed by statute shall be disregarded in in determining the maximum punishment
prescribed by statute for an offense.”

The Legislature enacted section 805(a) in haec verba with the L.R.C. recommendation:

(a) An offense is deemed punishable by the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed. Any enhancement of punishment prescribed by statute shall be disregarded in determining the maximum punishment prescribed by statute for an offense (emphasis supplied).

The underscored portion in plain language categorically excludes a punishment-enhancing provision from being considered in determining the maximum punishment for an offense for statute of limitations purposes. The key issue here is what provisions the Legislature intended to include within the term “enhancement of punishment prescribed by statute.”

c. The L.R.C. Comment that explains the intended scope of the term “enhancement of punishment prescribed by statute” in section 805(a).

The L.R.C. Recommendation for the text of section 805(a) was accompanied by a Comment, 17 Cal. L. Revision Comm’n Reports at 323, and that Comment accompanies current section 805(a) verbatim:

The punishment for an offense is determined without regard to enhancements over the base term for the purpose of determining the relevant statute of limitation. See, e.g., §§ 666–668 (enhancement of punishment for habitual criminals). For the definitions of “base term” and “enhancement,” see Rule of Court 405.

That Comment is deemed directly indicative of the legislative intent underlying the statute under consideration. See Rojas v. Superior Court (2004) 33 Cal.4th 407, 418 n.7 [“The official comments of the California Law Revision Commission on the various sections of the Evidence Code are declarative of the intent not only of the draft[ers] of the code but also of the legislators who subsequently enacted it.”]. Accord: People v. Williams (1976) 16 Cal.3d 663, 667-668.

Thus, the Comment cited Penal Code sections 666, 667, and 668 as examples of the types of enhancements that were to be disregarded in determining the statute of limitations for a particular charge. Penal Code section 666 is an enhancement that provides an alternative and more severe penalty for a charge of petty theft if a prior conviction is pled and proven for a specified list of prior theft offenses.3 Section 666 is obviously not a ”base term” plus “enhancement” provision, but is functionally indistinguishable in its effect.

Section 666 has been repeatedly construed as a sentence enhancement provision. People v. Bouzas (1991) 53 Cal.3d 497 resolved a split of authority as to whether the proof of the prior conviction portion of section 666 was an element of the current offense, or whether it was a sentencing enhancement. The answer to that question was relevant to the issue of whether a defendant could stipulate to the fact of a prior conviction and keep that fact from the jury, or whether the fact of the prior conviction was an element of the offense in which case the jury would have to be apprised of the charge pursuant to Article I, section 28 – “article I, section 28, subdivision (f) now provides, ‘When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.’.” 53 Cal.3d at 476. The Supreme Court concluded that section 666 was a “sentence-enhancing statute”:

In other words, a charge under section 666 merely puts a defendant on notice (see § 969 [prior convictions must be alleged in the information]) that if he is convicted of the substantive offense and if the prior conviction and incarceration allegation of section 666 is admitted or found true, he faces enhanced punishment at the time of sentencing. We conclude that, on its face, section 666 is a sentence enhancing statute, not a substantive “offense” statute. 53 Cal.3d at 479.

Thus, section 666 was deemed a “sentence-enhancing statute” for purposes of determining whether the fact of the prior conviction has to be adjudicated by a trier of fact or whether it could be stipulated by the defendant. Bouzas’ recognition of section 666 as a “sentence-enhancing statute” is consistent with the legislative intent to include section 666 and its ilk within the phrase “[a]ny enhancement ” in section 805(a).

The other two examples in the Comment of sentence enhancing statutes that were excluded from consideration in statute of limitations determinations were Penal Code sections 667 and 668. Both of these are structured in the “base term” plus “enhancement” format. Section 667 [“nickel prior”] provides for a five year enhancement for a current conviction of a serious felony where the defendant has previously been conviction of a serious felony. Section 668 provides that a conviction in a different jurisdiction that could have been punished in California by a prison term “is punishable for any crime subsequently committed within this state in the manner prescribed by law and to the same extent as if that prior conviction had taken place in a court of this state.”

Sections 667 and 668 have the same operative effect as section 666 – enhanced punishment – but they employ a different mechanism to impose that punishment. Section 666 abrogates the standard statutory punishment for the charged offense, and substitutes an alternative and more severe punishment upon proof of an aggravating factor. Sections 667 and 668 retain the basic statutory punishment for the charged offense, and impose an additional term of punishment for an aggravating factor. The Comment is clear and unequivocal that both types of enhancement provisions “shall be disregarded” for statute of limitations purposes.

Penal Code section 667.61(e)(4), enacted in 1994, is functionally indistinguishable from section 666. “[S]ection 666 operates like the Three Strikes law and section 667.61; it does not establish an enhancement, but establishes an alternate and elevated penalty for a petty theft conviction when a recidivist has served a prior term in a penal institution for a listed offense.” People v. Murphy (2001) 25 Cal.4th 136, 155.

Given that the Comment expressly specifies section 666 as an example of an enhancement that “shall be disregarded” in determining the statute of limitations for a particular offense, and given that section 667.61 is functionally indistinguishable from section 666, the conclusion is compelled that section 667.61(e)(4) is a sentencing-enhancement provision that the Legislature intended to exclude from statute of limitations determinations.

d. The legislative placement of section 667.61 within the statutory range of sections 666 – 668 cited in the Comment as excluded from statute of limitations determinations.

It is a well-settled principle of statutory construction in California and in American jurisprudence generally that in construing a statute, the reviewing court should consider where the Legislature has elected to place the statute under consideration. People v. Bouzas, supra, 53 Cal.3d at 478-479 invoked this principle in construing section 666:

Section 666 is – and has been since 1872 – part of title 16 of the Penal Code, which is directed primarily to sentencing and punishment matters, to the exclusion of statutes defining substantive crimes (see Cooks, supra, 235 Cal.App.2d at p. 10 [history of former §§ 666 & 667]). This supports our conclusion that the Legislature has long intended that section 666 establishes a penalty, not a substantive “offense.”

See also Roman Catholic Bishop of Oakland v. Superior Court (2005) 128 Cal.App.4th 1155, 1169 [“the statute’s placement” is a “strong indicator[] of the Legislature’s intent”]; People v. Silverbrand (1990) 220 Cal.App.3d 1621, 1626 [“in determining legislative intent, we begin with the most obvious clue: the placement of the statute”]; Newman v. Sonoma County (1961) 56 Cal.2d 625, 627.

The Legislature elected to place section 667.61 within the range of statutes designated in the section 805 Comment as examples of statutes to be disregarded for statute of limitations purposes. The Legislature is presumed to have related statutes in mind when enacting a new statute:

“We construe the words in context of related statutes, harmonizing them whenever possible. (Ibid.) We presume the Legislature was aware of existing related laws” when it enacted section 1170.95, and that it “intended to maintain a consistent body of rules.” (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199. In re R.G.(2019) 35 Cal. App. 5th 141, 146.

The very specific placement of section 667.61 within the range of statutes designated in the section 805 Comment, reflects the Legislature that it be treated the same as surrounding its neighbors for statute of limitations purposes, i.e., another instance of the penalty enhancement statute that “shall be disregarded” for statute of limitations purposes.

e. The term “enhancement” has been construed in other contexts to include both “base term” plus “enhancement” provisions and alternative penalty provisions.

People v. Brookfield (2009) 47 Cal.4th 583 confirms that prior to 1997, the Legislature’s use of the term “enhancement” referred both to traditional enhancements and alternate penalty provisions. Defendant Brookfield argued that the Legislature’s use of the term “enhancement” in section 12022.53, subdivision (e)(2) included both “base term” plus “enhancement” provisions and alternate penalty provisions. (Id. at p. 592.) That argument is directly comparable to that of defendant here.

The Court recognized that the question was one of legislative intent. (Ibid.) The Court noted that “decisions of this court in the last decade” drew a sharp distinction between “penalty provisions and sentence enhancements.” (Ibid.) These cases made clear that the term “‘enhancement’ refers only to a sentence enhancement, not a penalty provision.” (Id. at p. 593.) But these cases had not “been decided when the Legislature enacted section 12022.53 [in 1997]” and, as such, “the Legislature did not have the benefit of this court’s later decisions that have given the term ‘enhancement’ the narrow meaning that the Attorney General argues we should apply to that term . . . .” (Ibid.) Accordingly, “as used in the statute, the word ‘enhancement’ includes not only . . . sentence enhancements . . . but also . . . alternate penalty provisions . .
. .” (Ibid.)

f. The absence of any reference to or discussion of any statute of limitations impact by the enactment of section 667.61 in its legislative history.

Counsel for defendant have scoured the legislative history of section 667.61, and there is no reference to or discussion of any possible impact it might have on the statutes of limitations for the underlying offenses to which it applied. The Legislature is presumed to be “aware of existing related laws” when it enacts a new statute, In re R.G. (2019) 35 Cal. App. 5th 141. Surely the legislative history would have noted and discussed the statute of limitations ramifications of enacting section 667.61 if it intended to in effect repeal the existing Penal Code section 801.1 statute of limitations for rape and dispense with any statute of limitation entirely.
/
/
/
g. The failure of People v. Perez to consider or address the legislative intent as to the meaning of the term “enhancement of punishment prescribed by statute” in
Penal Code section 805(a).

People v. Perez, supra, never addressed the crucial question of what the 1984 Legislature intended to include within the term “enhancement of punishment by statute” in section 805(a). Rather, the Perez analysis is based solely on the judicial distinctions drawn between alternative penalty provisions and base term/enhancement provisions in cases that had nothing to do with statute of limitations issues.

Perez relied heavily on People v. Jones (2009) 47 Cal.4th 566, see 182 Cal.App.4th at 237 – 239, but Jones merely held that a 20 year firearm use enhancement under Penal Code section 12022.53(c) could be imposed on a defendant who had been convicted of violating Penal Code 246 with a street gang enhancement that carried a punishment of 15 years to life. There was no statute of limitations issue in the case. Jones did confirm that the Penal Code section 186.22 gang enhancement was an “alternate penalty provision” and not a “sentence enhancement” because it “because it does not add an additional term of imprisonment to the base term,” 47 Cal.4th at 576. That unremarkable observation is irrelevant to determination of legislative intent whether “enhancement” as used in section 805(a) includes both alternate penalty provisions and base term plus additional punishment provisions.

Perez also relied on People v. Brookfield, supra, a companion case to Jones, which held that the trial court erred in imposing a Penal Code section 12022.53 firearm use enhancement on a defendant who was convicted of violating Penal Code section 246 with a gang enhancement finding, but who did not personally discharge the firearm. Again, no statute of limitation issue was involved.

Perez then noted that “the primary recommendation of the Law Revision Commission [in 1984] [was] that the length of a ‘limitations statute should generally be based on the seriousness of the crime’.” Id. at 242. Perez then concluded without any reference to the enhancement exclusion of section 805 that “[d]efendant’s crimes were serious enough to earn him a life sentence; therefore they were serious enough to warrant prosecution at any time during his natural life id. at 243 – 43.

That conclusion simply ignored the operative language of section 805(a) that enhancements “shall be disregarded” in determining the applicable statute of limitation, and for that reason is of very dubious persuasive value. For these reasons, defendant urges this Court to recognize that defendant has raised a very substantial legal question as to the very validity of this prosecution at all, which surely exceeds the Penal Code section 1272.1(c) requirement for granting bail on appeal.

D. The Anticipated Habeas Corpus Proceeding as an Additional Reason for Granting Bail on Appeal.

[Four pages are REDACTED]

CONCLUSION

Defendant requests that this Court grant bail on appeal, and offers to comply with any relevant terms and conditions imposed by the Court that enable him to be an at-home parent and financial provider for his family, including house arrest and/or participation in an electronic monitoring program administered by the probation department.

WHEREFOR, for the foregoing reasons, defendant requests that this Court grant bail on appeal.

Date: January 17, 2024. Respectfully submitted,

CLIFFORD GARDNER, ERIC S. MULTHAUP
Attorneys for DANIEL MASTERSON

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