Judge Olmedo’s ruling about the Scientology leak: The whole enchilada

[Judge Charlaine Olmedo and Scientology attorney Vicki Podberesky]

We can tell you that Thomas Mesereau’s attorney Edith Matthai was not very happy when she saw that Judge Charlaine Olmedo had a 30-page ruling ready to issue after yesterday’s evidentiary hearing about the leak of prosecution discovery material to the Church of Scientology.

Matthai realized that Judge Olmedo had pretty much already had her mind made up before the hearing started about what had gone down in her court: That Danny Masterson’s initial defense attorneys Thomas Mesereau and Sharon Appelbaum had leaked sensitive evidence in the case to Scientology, which had ended up in the hands of the church’s attorney, Vicki Podberesky.

Judge Olmedo sanctioned Mesereau and Appelbaum, and Matthai made it clear that they would be appealing the ruling. But if Matthai was annoyed that the judge had gone into so much detail in her 30 page ruling, well, we’re thrilled.

In fact, we found her ruling so remarkable, capturing so much of what made the Danny Masterson trials such a unique moment in Scientology history, we figured you’d want to see the entire thing.

So yeah, here’s the whole enchilada.

(For our Substack subscribers: This post may be too long for your email provider. Please navigate to tonyortega.substack.com to see the entire document.)

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

PEOPLE OF THE STATE OF CALIFORNIA

Petitioner

v.

DANIEL PETER MASTERSON,

Defendant

Case No.: BA487932

FINDINGS AND ORDER RE: SANCTIONS FOR DISCOVERY DISCLOSURES

The Court has heard and considered the People's and defendant Daniel Peter Masterson's (hereinafter "defendant") counsel's arguments regarding disclosure of the criminal discovery in the above-captioned case. Criminal discovery provided by the People pursuant to Penal Code Section 1054 et. seq. to defendant is now in the possession of non-party, the Church of Scientology International, by and through its counsel, Vicki Podberesky. The Court has also read and considered the entire record of the above-captioned case.

I.

FACTUAL HISTORY

On August 22, 2019, in Los Angeles Superior Court Civil Case Number 19STCV29458, the victims in the above-captioned criminal case and other individuals filed a civil complaint against the following defendants: Church of Scientology Celebrity Centre International; Church of Scientology International; Religious Technology Center, Daniel Masterson (defendant in the instant case); and David Miscavige. A review of the docket sheet in the civil case shows that the defense attorneys of record are Andrew Brettler, William Hobbes Forman, David Mathew Hinks, and Jeffrey K. Riffer. Attorney Vicki Podberesky does not appear to be a named counsel of record for any of the civil defendants. However, in an April 20, 2023 pleading lodged with this Court in the instant case, Vicki Podberesky attempted to intervene in a defense criminal discovery request and in doing so, stated that she represents the Church of Scientology International, which is one of the named parties to the related civil case. Thus, it is unclear to this Court if Vicki Podberesky is part of the civil defense team in the civil case number 19STCV29458 or if she represents one of the civil defendants, the Church of Scientology International, in some other capacity unrelated to the aforementioned civil case.

On June 16, 2020, the People filed a criminal complaint charging defendant Mr. Masterson with three counts of forcible rape in violation of Penal Code Section 261(a)(2) and other enhancements. The charges arise from sexual incidents occurring in 2001 and 2003 against three separate women. At that time, both the victims and defendant were practicing Scientologist. The victims each eventually left Scientology however, defendant remains a Scientologist in good standing to the present day. In approximately 2016, the victims contacted law enforcement to report the 2001 and 2003 sexual incidents which are the subject of the criminal information. The victims allege that shortly after reporting to and cooperating with law enforcement in 2016 regarding the earlier forcible rapes, they became victims of a campaign of harassment, stalking and hacking commencing in 2016 and continuing to the present, committed by and/or on behalf of defendant Masterson, David Miscavige and the Scientology Organization. The allegations of harassment, stalking and hacking alleged by the victims are the subject of the civil lawsuit which is ongoing and currently pending trial in the Los Angeles Superior Court, Civil Division.

On September 18, 2020, defendant Masterson first appeared in court to answer to the criminal charges. At his first appearance, he was represented by Thomas Mesereau and Sharon Appelbaum. Thomas Mesereau and Sharon Appelbaum continued to represent defendant throughout the pretrial proceedings including the preliminary hearing and most of the contested discovery hearings. In the early stages of the criminal proceedings, Thomas Mesereau requested several protective orders. However, to be clear, these requests were for defense protective orders allowing the defense to file, under seal, their defense pleadings and to specifically exclude the media from the courtroom during court proceedings. These requests were denied. The defense has never requested a protective order limiting the dissemination of the criminal discovery to non-parties or parties in the related civil action.

On November 2, 2021, Shawn Holley and Philip Cohen were added to the criminal defense team. Between November 2, 2021 and May 31, 2022, defendant was represented by all four attorneys; Thomas Mesereau, Sharon Appelbaum, Shawn Holley and Philip Cohen. On May 31, 2022, defendant relieved Thomas Mesereau and Sharon Appelbaum. Shawn Holley and Philip Cohen continued to jointly represent defendant in the above-captioned case. At the first jury trial, defendant was represented by Philip Cohen and Karen Goldstein (who was also added to the criminal defense team shortly before trial). Although not present during the first trial, Shawn Holley continued to remain part of the defense team. Shawn Holley and Philip Cohen represented defendant at the second jury trial.

The first jury trial took place from October 11, 2022, through November 30, 2022, and a mistrial was declared due to the deadlocked jury. The second jury trial/retrial began on April 17, 2023. The case was submitted to the jury on May 17, 2023. The jury reached guilty verdicts on two of three counts of forcible rape on May 31, 2023.

The following occurrences transpired while the defendant's second jury trial/retrial was in progress:

At the commencement of the retrial on April 17, 2023, the People indicated that they had recently turned over to the criminal defense team, potentially exculpatory discovery obtained in the course of an ongoing criminal grand jury investigation. This was done after the People obtained a court order allowing for this disclosure and pursuant to the People's ongoing discovery obligation. The defense then asked for the disclosure of the actual grand jury subpoena arguing that the subpoena itself might put into context whether information provided or not provided would constitute impeachment material. The Court denied this request holding that the subpoena itself was not evidence nor was it discoverable pursuant to Penal Code Section 1054. In addition, the criminal grand jury investigation was still ongoing. A portion of this hearing was conducted at side bar and was not available to either the public or to anyone requesting transcripts.

Shortly after the Court denied the criminal defense team's request for the actual grand jury subpoena, attorney Vicki Podberesky, on behalf of and representing the Church of Scientology International, submitted to the Court a request to file under seal her declaration and the attached grand jury subpoena at issue. In her declaration, Vicki Podberesky echoed the exact same argument as previously set forth by the criminal defense team. Vicki Podberesky stated that she was intervening as "an officer of the court" and felt obligated to point out to the Court that the provision of the requested subpoena itself might provide impeachment material for the criminal defense team. The Court denied Vicki Podberesky's request to file her pleading under seal and further disagreed with her analysis as the defense had all necessary information to make their own discovery request to third party Scientology Organization on defendant's behalf should they so choose to do so.

On April 20, 2023, the Court set forth in its minute order the following: "Non-party's (Church of Scientology International) request to file declaration of Vicki I. Podberesky under seal is denied. Church of Scientology International is not a party of the proceedings pending before this Court. Church of Scientology has no standing to file a declaration in this matter and representations in the declaration do not accurately reflect the court side bar proceeding as reflected in the court transcript of that proceeding which continues to be sealed until further order of this Court. Accordingly, non-party's Church of Scientology pleading, and declaration is not received by this Court and is returned to the non-party. Any previous confirmation of receipt on non-party's request to file is hereby revoked."

On May 10, 2023, while the second jury trial/retrial was in progress, the People notified the Court of the following occurrences and requested further inquiry or proceedings by the Court into the circumstances that the People characterized as "troubling:"

- On April 24, 2023, twelve (12) letters on Church of Scientology International letterhead addressed to Chief Moore of the Los Angeles Police Department asked for criminal investigations to be opened into the actions of the investigating detectives in the above-captioned case, particularly the lead detectives, Detectives Myape (former Reyes) and Vargas, for failing to follow up on the Church of Scientology's claims that 1) the victims in this case filed numerous false police reports regarding harassment and stalking and 2) that the lead detectives testified in a manner that was biased against the Scientology Organization. In a subsequent email to the District Attorney's Office, Vicki Podberesky referenced meeting with Chief Moore regarding these complaints on the April date. Although the alleged offending testimony necessarily occurred approximately seven months earlier in the first trial (as the detective witnesses had not yet testified in the second trial), Vicki Podberesky only made this complaint while the retrial was in progress and just days before Detective Myape was scheduled to testify in the second jury trial. As a result of Vicki Podberesky's actions taken on behalf of the Church of Scientology International, Detective Myape expressed concern to the trial deputy district attorneys.

- On May 2, 2023, attorney Vicki Podberesky, again as the attorney representing the Church of Scientology, filed a letter of complaint to Supervisors in the Los Angeles County District Attorney's Office regarding the trial deputy, Reinhold Mueller, for allegedly soliciting false testimony from the victims in the retrial concerning claims of harassment and stalking by the Scientology Organization. Attached to Vicki Podberesky's email complaint were the twelve Church of Scientology International letters referenced above as well as a share file link which accessed much of the criminal discovery provided by the People to the criminal defense team in the above-captioned case pursuant to Penal Code Section 1054, et. seq. Two itemized lists prepared by the People of the discovery now in Vicki Podberesky's possession and thus the Church of Scientology's possession are attached to this order as Court's Exhibit 4 collectively.

Also occurring during this same short time frame and in the middle of the retrial, the Court directly received complaint letters from two individuals, Reverend N.J. "Skip" L'Heureux Jr. from the Committee on Religious Liberty and Bishop L.J. Guillory from the International Ad Hoc Religion and Justice Observatory Committee. During the retrial proceedings, the People expressed concern to the Court that there may be some affiliation or connection between the Scientology Organization and Reverend L'Heureux, who was present in court during a portion of one of the victim Jane Does' testimony. The complaint letters allege that the Court was fostering an atmosphere of religious intolerance by virtue of the Court's rulings related to the admission of Scientology evidence. Those letters were immediately forwarded to the Supervising Judge of the Criminal Division for any judicial action and/or response. In addition, the two complaint letters, along with the court transcript of the Court's only interaction with Reverend L'Heureux, and the Court's March 28, 2023 order regarding the admission of Scientology evidence, were marked as Court's Exhibit 2 collectively and made part of the court file.

Any notification to the Court of the above-listed events or any inquiry about the above-listed events occurred outside of the second jury's presence. Thus, the second jury was unaware of any of the complaints lodged by the Church of Scientology International or lodged by Vicki Podberesky or any other individual acting on behalf of the Church of Scientology International.

II.

PROCEDURAL HISTORY

On June 15, 2020, a complaint was filed against defendant charging him with three counts of forcible rape in violation of Penal Code Section 261 (a)(2). These three (3) counts are alleged to have occurred between 2001 and 2003. These three charges have remained the same throughout the pendency of this matter. The following requested continuances and proceedings have taken place:

9/18/20 Arraignment and Plea continued

10/19/20 Arraignment and Plea continued at defense request; Demurrer Motion by Defense denied;

11/2/20 Arraignment and Plea continued at defense request for additional discovery;

1/6/21 Arraignment and Plea set, defense request to continue until March 2021 denied in Department 100; Arraignment and Plea set for 1/20/21;

1/20/21 Arraignment and Plea in Department 100; defendant pleads not guilty; case assigned to Department 105 for all purposes;

3/24/21 Status Conference in Department 105; 4/20/21 set for contested discovery hearing and 5/18/21 set for preliminary hearing;

4/20/21 Defense motions for Discovery, Trombetta Motion, Pitchess Motion, Motion to Seal and Defense Motion to Continue the Preliminary Hearing heard, argued and denied, Preliminary Hearing remains set for 5/18/21;

4/23/21 Additional defense motions re Pitchess and privileged police investigative materials denied;

4/29/21 Second Defense Motion to Continue the Preliminary Hearing heard, argued and denied; Preliminary Hearing remains set for 5/18/21;

5/18/21 Preliminary Hearing commences;

5/21/21 Preliminary Hearing concludes; defendant held to answer on all charges;

6/7/21 Arraignment and Plea on felony information; defendant pleads not guilty;

8/9/21 Status Conference and Motion to Dismiss (995 Motion) set for 11/10/21 in Department 101; Motion to Quash Defense Subpoenas granted;

11/2/21 Counsel Holley and Cohen file written notice of appearance, a Motion to Continue, and a Motion to Dismiss Pursuant to FC 995;

11/10/21 In Department 101 - Defense Motion to Continue 995 Motion granted; 995 Motion continued to 2/8/22; In Department 105 - with all counsel present, trial date is set 8/29/22 (0/10). All counsel agree to trial date.

2/8/22 In Department 101 - Defense 995 Motion heard, argued, and denied by Judge Coen; in Department 105 - status conference; Motion to Quash Defense Subpoenas heard, argued and granted by the Court; jury trial date remains set for 8/29/22.

5/31/22 At defense request, oral Defense Motion to Continue Trial Date is granted to October 11, 2022 (0/10). Defense Motions to Dismiss Count One for Delay and to Sever Count Two are heard and argued. Motion to Sever Count Two is denied. Motion to Dismiss Count One for Delay is continued.

6/30/22 In Camera hearing with all counsel to discuss trial date. The trial date remains set for 10/11/22. In open court, defense Motion to Dismiss Count One for Delay resumes and is heard, argued, and denied.

7/26/22 Counsel sends letter to the Court requesting to continue the jury trial.

7/28/22 Counsel files a written declaration in support of her continuance.

8/12/22 Defense request to continue the jury trial is denied. The Court issues a written order denying the continuance.

8/22/22 Third Party Lavely and Singer object to People's subpoena duces tecum.

8/29/22 The People file a Motion for Conditional Examination.

9/12/22 The Defense files its Trial Brief and Motions in Limine.

9/14/22 Hearing and arguments regarding Third Party Motion to Quash and People's Request for Conditional Examination. Court issues ruling.

10/3/22 Hearing and arguments regarding Trial Briefs and Motions in Limine.

10/4/22 Court issues ruling.

10/11/22 Defense makes oral Motion to Continue the Jury Trial. Request to Continue is denied. Jury trial commences.

11/30/22 Court finds jury is deadlocked and mistrial is declared. 2nd jury trial set for 3/27/23.

1/10/23 Court denies Defense Invitation to Exercise Discretion to Dismiss the Case.

2/16/23 By agreement of the parties, jury re-trial continued to April 11, 2023 as 0 of 10.

2/23/23 Defense Request for Subpoena Duces Tecum heard argued and ruled upon.

3/27/23 Hearing and arguments regarding Trial Briefs and Motions in Limine.

3/28/23 Court issues ruling and written order re Motions in Limine and Request for Continuance.

3/31/23 Court denies defense Motion for Reconsideration for Continuance of Trial Date.

4/17/23 Court denies defense Request for Continuance of Trial. Jury trial commences with jury selection.

5/10/23 During jury trial, the People notify the Court that they have recently discovered most, if not all, of the discovery provided by the People pursuant to Penal Code Section 1054 et. seq. to the defense is now possessed by the non-party Scientology Organization attorney, Vicki Podberesky.

5/31/23 Jury returns guilty verdicts on Counts One and Two and is hung in favor of guilty on Count Three. Discovery Disclosure Hearing is continued to June 7, 2023.

III.

CASE LAW, ANALYSIS AND COURT FINDING

A. GENERAL LEGAL PRINCIPLES RE: CRIMINAL DISCOVERY

1. Penal Code Section 1054 et. seq: Criminal Discovery Process

Pursuant to Penal Code Section 1054, the purpose of criminal discovery is specifically to a) promote the ascertainment of truth in trials; b) to save court time by requiring the parties to work with each other before requesting judicial action; c) to save court time in trial by avoiding mid-trial interruptions and postponements; d) to protect victims and witnesses from danger, harassment, and undue delay of the proceedings, and e) to provide the only framework for the provision of discovery in criminal cases between partis. Penal Code Section 1054, (emphasis added).

Penal Code Section 1054.2 limits the disclosure of the personal identifying information of victims and witnesses.

Penal Code Section 1054.5 provides that the discovery scheme laid out in Penal Code Section 1054 et. seq. is the only mechanism by which the parties in a criminal action may obtain discovery. All criminal discovery is governed exclusively by, and barred, except as provided by the criminal discovery statute. Hines v. Superior Court, (1993) 20 Cal.App.4th 1818.

These codified principles have been further delineated in numerous cases. A criminal defendant's right to discovery is not absolute and is subject to a judicial determination balancing a legitimate governmental interest against a criminal defendant's right to a fair trial. This may be especially true when the information sought does not directly relate to the issue of the defendant's guilt or innocense. People v. Parker, (2022) 13 Cal.5th 1; People v. Avila (2006) 38 Cal.4th 491; People v. Superior Court, (2000)80 Cal.App.4th 1305.

2. The California Constitution and Marsy's Law: Victims and Witness's Rights

The criminal discovery process can also implicate crime victims' and other third parties' rights. The California Constitution guarantees to individuals the right of privacy. California Constitution, article 1, Section 1; Grafilo v. Wolfsohn, (2019) 33 Cal.App.5th 1024, 1033. The central concern of that guarantee is the interest in "precluding the dissemination or misuse of sensitive and confidential information." Grafilo, at pg. 1033-1044, quoting Hill v. National Collegiate Athletic Assn., (1994) 7 Cal.4th 1,35.

In addition, the Victim's Bill of Rights Act 2008 (Marsy's Law) amended the California Constitution to guarantee crime victims a number of rights, including the right "[t]o prevent the disclosure of confidential information or records to the defendant, the defendant's attorney, or any other person acting on behalf of the defendant, which could be used to locate or harass the victim or the victim's family or which disclose confidential communications made in the course of medical or counseling treatment, or which are otherwise privileged or confidential by law." California Constitution, article 1, Section 28 subdivision (b)(4), (emphasis added); Kling v. Superior Court (2010) 50 Cal.4th 1068, 1080. This provision echoes the criminal discovery chapter's stated purpose in Penal Code Section 1054(d) - that is to be treated with fairness and respect for one's privacy and dignity, and to be free from intimidation, harassment and abuse throughout the criminal justice process.

Furthermore, the California Supreme Court recently held that when balancing the disclosure of third-party information to a criminal defendant, a court should give heightened consideration to a third-party's privacy rights. The California Supreme Court held that "the California Constitution, as amended to incorporate Marsy's Law, calls for yet additional special inquiry" under the fourth Alhambra factor which focuses on a third-party's confidentiality or privacy rights." Facebook, Inc. v. Superior Court (Touchstone), (2020) 10 Cal.5th 329, 355 citing City of Alhambra v. Superior Court (Alhambra), (1988) 205 Cal.App.3d 1118.

3. Evidence Code Sections 780, 782 and 783: Process for Using Sex Victim's Conduct in Trial

Moreover, Evidence Code Section 780 and 782 sets forth a specific procedure for the requested use of a sex crime victim's prior conduct in a criminal jury trial which entails the offer of proof, in the form of an attorney affidavit, to be filed under seal, until there is a judicial determination for the use of such evidence in subsequent proceedings. This procedure is repeated in civil cases pursuant to Evidence Code Section 783. Evidence Code Sections 782 and 783.

4. Codes of Civil Procedure 177, 177.5 and 178; Monetary Sanctions

A court which is investigating possible violations of protective and seal orders is empowered to require the attendance of witnesses at a hearing to investigate the violations, including witnesses who were not subject to the protective and seal orders, and to compel nonprivileged testimony germane to the object of the hearing. Rosato v. Superior Court, (1975) 51 Cal.App.3rd 190. The trial court possesses inherent rule-making authority as well as rule-making authority granted by statute. Elkins v. Superior Court, (2007) 41 Cal.4th 1337. Furthermore, every court has the power to compel obedience to its judgments and orders, and a court of equity retains inherent jurisdiction to oversee and enforce the execution of its decrees. Brown v. Brown, (1971) 22 Cal.App.3d 82.

To that end, the statute allowing for sanctions for any violation of a lawful court order may be applied in the context of a criminal case. People v. Whitus, Superior Court, San Luis Obispo County, (2012) 209 Cal.App.4th Supp. 1. The statute permitting money sanctions to be imposed "for any violation of a lawful court order by a person," requires only that a court find the person violated the order "without good cause or substantial justification." This does not require a willful violation, but merely one committed without a valid excuse. People v Aguirre, (2021) 64 Cal.App.5th 652.

The court does not need to expressly say the word "order" for there to be a valid court order. In Scott C. Moody, Inc. v. Staar Surgical Col, the trial court, during a side bar conference, instructed counsel not to inquire into a particular topic nor to ask a particular question. Counsel violated a lawful court order by inquiring into the prohibited subject. Thus, the imposition of monetary sanctions for a violation of a court order was within the trial court's discretion. Scott C. Moody, Inc. v. Staar Surgical Company, (2011) 195 Cal.App.4th 1043.

The act of advising a client to violate a lawful court order for the production of handwriting exemplars has been found to constitute a violation of the attorneys duty to maintain respect due to courts of justice and judicial officers and has further been found to constitute an unlawful interference with the court proceedings. Hawk v. Superior Court In and For Solano County, (1974) 42 Cal.App.3d 108.

In People v. Ward, the trial court instructed defense counsel to not say the words "prosecutorial misconduct" in front of the jury. When defense counsel did so, counsel violated a lawful court order, and the imposition of monetary sanctions was lawful. People v. Ward, (2009) 173 Cal.App.4th 1518.

Moreover, a court's repeated admonishment that counsel's repetition of specific conduct will result in monetary sanctions, is tantamount to an order not to repeat certain conduct and should suffice under the statute authorizing the imposition of monetary sanctions for violation of a lawful court order. People v. Muhammed, (2003) 108 Cal.App.4th 313.

5. The Court's Inherent Power to Control the Dissemination of Discovery

In light of all of these considerations, courts have "the inherent power to fashion discovery orders," as "courts are not powerless to formulate rules of procedure where justice demands it." Hubbard v. Superior Court, (1997) 66 Cal.App.4th 1163, 1167, quoting Adamson v. Superior Court, (1980) 113 Cal.App.3d 505, 509. Rather, courts can adopt any suitable method of practice, both in ordinary actions and special proceedings, if the procedure is not specified by statute or by rules adopted by the Judicial Council. Ibid., quoting Citizens Utilities Co. v. Superior Court, (1963) 59 Cal.2d 805, 812-813. Thus, a court has the inherent power to fashion and issue orders to protect third-party rights and/or limit discovery.

In Millaud v. Superior Court, a trial court's order preventing the dissemination of criminal discovery from its use in a later, related civil case was found to be proper. Millaud v. Superior Court, (1986) 182 Cal.App.3d 471, 476. The Millaud court held "'[i]n criminal cases, the trial court retains wide discretion to protect against the disclosure of information which might unduly hamper the prosecution or violate some other legitimate governmental interest.' We see no reason why the court cannot protect against disclosure which would hamper a third-party or injure its interests, as well as prevent disclosure which would harm the prosecution." Ibid. (cite omitted).

B. THIS COURT'S PREVIOUS ORDERS, FINDINGS, DIRECTIVES AND ADMONITIONS REGARDING DISCOVERY SHARING

The above-captioned case has been pending before this Court since January 2021, approximately two and a half years. During this time, this Court has conducted numerous contested hearings related to requested discovery by the defense. Attorney Vicki Podberesky, representing the Scientology Organization, has a standing order to purchase the transcripts of all of the proceedings in the above-captioned case. Further, more often than not, Vicki Podberesky or a member of her law firm, has also been present in court to observe and take notes of most of the proceedings in the instant case. Therefore, Vicki Podberesky, along with all of the criminal defense attorneys, had access to and thus notice of, all of this Court's stated orders, findings, directives, and admonitions.

On April 20, 2021, during a discovery hearing, the Court stated that "...the victims are allowed and witnesses are allowed to be free of harassment." During this proceeding, the Court further stated "Scientology is not a party to these proceedings." April 20, 2021: pg. 101:15 and 16.

On April 23, 2021, during a follow-up discovery hearing, the Court stated, "Any admission of the civil case in the criminal case will be — will be greatly limited to the sole relevant value it has here. We are not going to litigate the civil case in the criminal case nor is discovery that is relevant or more relevant to the civil case going to be a basis for obtaining discovery here in the criminal case." April 23, 2021, pg. 23.

On August 9, 2021, during a contested discovery hearing regarding motions to quash numerous subpoenas duces tecum, the defense made a formal discovery demand for a number of items which had nothing to do with the criminal case. After much argument, the Court made numerous findings including the following:

"The Court further found [at a previous discovery hearing] that the defendant was attempting to use the Pitchess process to obtain, arguably, impeachment material of the victims who are civilians, not police officers, and the defendant's Pitchess motion was denied." August 9, 2021: pg. 113:21-25.

"The fact that the SDT includes requests for evidence related to harassment, stalking, hacking and invasion of privacy as well as materials related solely to Scientology, the organization, show that this is a fishing expedition and more related to discovery for the recently revised civil case, rather than the criminal case here." August 9, 2021: pg. 121:15-21.

"The Court also finds that — I — let me rephrase that. It appears to the Court that not only is defendant trying to obtain material that would be helpful in the civil case, that the defendant — it appears to the Court that defendant is using the criminal process to try to obtain materials that he would otherwise never be entitled to obtain in the civil case and thus, he is using the criminal process to another end than that which it is to be used for." August 9, 2021: pg. 124:15-22.

"The defendant's SDT here is, rather, a transparent attempt to get around the Court's previous rulings and denials regarding discovery matters and is further a fishing expedition meant to benefit the civil case far more than the criminal case. This is clearly evidenced particularly by defendant's information as it relates to arbitration, civil attorneys, David Miscavige, Shelly Miscavige, and the Scientology Organization. All information or documents in LAPD's possession regarding LAPD discipline relating to Shelly and David Miscavige do not appear to be relevant here. Unless the defendant cares further to illuminate how, to this Court, regarding the relevancy of either David or Shelly Miscavige to the 2001 and 2003 rape charges, the Court finds these requests to not just be overbroad but an overt attempt to obtain privileged information in LAPD files." August 9, 2021: pg. 128:5-22.

"Protection of a subject person's right to be free from unreasonable search and seizure constitutes a legitimate governmental interest. This is especially true when a private party is seeking to intrude upon a third party's privacy compelling restricted information and private messages, making this factor especially significant. Moreover, Marsy's Law, under the California Constitution, is implicated to protect the crime victim's right to privacy, privilege and confidentiality." August 9, 2021: pgs. 133:25-134:6.

"Moreover, as noted by the case law cited thus far, private citizens have an expectation of privacy right in their private communications. The defendant's SDT's violate the privacy rights and confidentiality of the third parties here." August 9, 2021: pg. 141:6-10.

"...[A]ll of the defendant's SDT's before the Court today are quashed. The Court does want to note that it further appears to the Court the SDT's are a concerted effort to obtain discovery for the case via this criminal case discovery process and by doing so, counsel is attempting to obtain items they would otherwise never be entitled to in a civil case. Furthermore, many of the items requested in the SDT's are contrary to the Court's previously [sic] ruling and seem to be an attempt to circumvent the prior Court's orders. That will be the ruling of the Court." August 9, 2021: pg. 142:4-16.

On September 14, 2022, the Court conducted a further discovery hearing relating to the People's subpoena served upon a third-party law firm to obtain discovery for the criminal case. During this contested hearing, the Court made the following statements:

"In looking at the legal analysis, it's important to stress the difference between Mr. Masterson's two distinct cases and the two separate defense attorney teams. They are not one in the same, nor do they represent the same parties or the same cause of action. One is criminal, the one before this Court; and one is civil, not before this Court. These two cases are based upon related but separate alleged actions occurring within different time frames and locations. The criminal case involves allegations of forcible rape occurring in the early 2000's and the civil case involves claims of stalking and harassment occurring in 2016 and 2017.

The criminal case regarding forcible rape allegations is now set for jury trial in approximately three and a half weeks. While there has been an attempt to blur the lines between the civil and criminal cases as well as the two distinct defense teams, this attempt is not founded in the law and is contrary to the evaluation of the applicability of the claimed privileges. To that end, as I indicated before, this is the case of People of the State of California versus Daniel Masterson and Daniel Masterson alone. There is no joint defense or common interest that applies in this case as Mr. Masterson is the whole — is the sole defendant. And there is no case law or authority whatsoever for the proposition that a joint defense in a civil case is applicable or carries over to a related but different criminal case.

Scientology as an organization and Mr. Miscavige do not stand in the same shoes as Mr. Masterson here, and the Court will not consider their

position in this Court as such, but will consider them only as potential third parties or whatnot as their issues come up zs the today." September 14, 2022: Pgs 68:3-69.13

Also on September 14, 2022 the Court expressly noted that there are different standards that apply in criminal cases to discoverable materials as compared to civil cases. In determining what constituted attorney work product, the Court noted, "attorney work product in criminal cases is expressly limited by statute and thus the qualified protection of certain materials applicable in civil cases is not available in criminal cases (cite omitted.) September 14, 2022; pg. 77:1-17.

After finding a waiver of any attorney-client privilege attached to a 2004 settlement agreement as well as other requested items, the Court further stated, "while the third party has attempted to blur the lines between the criminal case pending before this Court and the civil case across the street, to be clear there is no shared defense here as there is no more than one defendant here." September 14, 2022; pages 81:16-82:2.

When asked to clarify if the Court was finding wrongdoing on behalf of the criminal defense team at the time, the Court made clear that it was the provision of discovery materials between the civil defense team and the criminal defense team that caused the Court concern and resulted in a waiver of any applicable or claimed privilege by the third party. This Court stated "I am finding they are two distinct teams and have two distinct interests. And while they're interrelated, they're not one in the same. So free flow of confidential information isn't necessarily protected between the two. And in this case, it resulted in disclosure and use here in open court and resulted in the waiver. So that's what I'm finding." September 14, 2022; pgs. 88:14-89:4.

C. CLAIMS OF HARASSMENT AND STALKING

As noted above and while the retrial was in progress, the Scientology Organization has gone to great lengths to complain that the victims' harassment and stalking claims are false. With the related civil case still pending jury trial, it appears that this claim may be part of the civil defendants' litigation position. Indeed, this claim is the basis of the Scientology Organization's complaint against the trial deputy district attorneys. However, the Church of Scientology International's complaint made against the trial deputies is contrary to this Court's express evidentiary rulings.

This Court has repeatedly held that the admission of evidence regarding harassment and stalking was admitted not for the truth of the matter asserted, but rather for the victims' state of mind. In its October 4, 2022 order, this Court held that "[w]ith regard to threats of harassment and stalking against the victims, the Court is going to allow some testimony regarding harassment and stalking from the victims only in general terms." October 4, 2022; pgs. 31:27-32:3. The Court further held "and while defense has raised foundational arguments that there is no foundation or they can't be tied to Mr. Masterson, that's not a requirement. Again, this goes to the witnesses' state of mind and their evaluation of their credibility. In People v. Abel, a 2012 cas at 53 Cal.4th 891, it held that evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is, therefore, admissible. And an explanation on the basis of the witness's fears is likewise relevant to her credibility and is well within the discretion of the court. Evidence of a third party's threat against the witness may bear on the witness' credibility and, therefore, is relevant whether or not the threat is directly linked to the defendant." October 4, 2022, pgs. 32:22-33:10.

During the first trial in October and November 2022, the Court repeatedly gave the following admonition to the jurors regarding the victims' claims of stalking and harassment: "Ladies and Gentlemen, no evidence has been presented to you in this trial that Mr. Masterson was involve in any incident of stalking or harassment. This evidence is being admitted to assist you in judging any witness's credibility, to explain her actions, and to evaluate her state of mind during the applicable time period. This evidence is not being admitted in this trial for the truth of those allegations or to show that Mr. Masterson was involved with those allegations." (emphasis added).

In its March 28, 2023, this Court ruled that "[i]t is well established that a witness's subjective belief that he or she has been threatened or harassed in connection with the incident giving rise to the litigation is admissible. Moreover, the perceived threat or harassment need no come directly from or be attributed to the defendant nor does the event need to have actually transpired in order to be admissible as it bears on the witness's credibility... Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is thus admissible, and evidence of any explanation of the basis for such fear is likewise relevant to the jury's assessment of the witness's credibility and is admissible for that non-hearsay purpose, but not for the truth of the matter asserted. People v. Chism, (2014) 58 Cal.4th 1266." Court's March 28, 2023 order.

In addition, in the retrial, this Court similarly gave the identical admonition as given in the first jury trial to the jurors regarding this evidence; that is, that this evidence was not being admitted for the truth of those allegations but rather to evaluate the victims' state of mind. Thus, any complaint made against the trial deputy district attorney's regarding the veracity and the admission of the harassment and stalking evidence is directly contrary to the Court's repeated rulings and the purpose for which this evidence was admitted. The truth or falsity of the victims' harassment and stalking claims has never been an issue before the criminal juries, nor has it been the basis for the admission of this evidence. Moreover, any defense claim that the victims did not have a good faith belief that they were being harassed and stalked, goes to the weight, not the admissibility of this evidence.

D. ADMISSIBILITY OF SCIENTOLOGY EVIDENCE

The Constitutional Right to Freedom of Religion set forth in the First Amendment of the United States Constitution does not per se bar the presentation of religious tenets and practices when relevant and admissible in criminal prosecutions. Defense fails to cite any caselaw that stands for this overly broad proposition. Rather, in criminal cases, courts have repeatedly allowed for the presentation into evidence, those religious beliefs and practices that are highly probative on the issues that are before the jury.

Assuming arguendo defendant has standing to raise a claim under the First Amendment, the admission of Scientology evidence in the case at hand does not violate the defendant's First Amendment right, the Ecclesiastical Doctrine or Evidence Code Section 789. The First Amendment embraces two concepts: the freedom to believe and the freedom to act. The freedom to believe is absolute. The freedom to act is not. Conduct remains subject to regulation for the protection of society. Roman Catholic Archbishop of Los Angeles v. Superior Court, (2005) 131 Cal.App.4th 417 (citing Cantwell v. Connecticut, 310 U.S. 296, 303-04). Similarly, the Ecclesiastical Abstention Doctrine does not apply to criminal cases. This doctrine grew out of the so-called church property cases. Those cases involved internal church disputes whose resolution depended upon the interpretations of religious doctrine. The court in Roman Catholic Archbishop of Los Angeles, specifically declined to extend the Ecclesiastical Abstention Doctrine to criminal cases holding "[t]he case here, at its core, is not an internal church dispute. It is a criminal investigation into suspected child molestation allegedly committed by Priests. This case does not involve internal church dispute over religious authority or dogma." Id.

Moreover, the First Amendment does not render religious practices immune from criminal prosecution where such practices are in violation of state law or is relevant to the consideration of evidence in the criminal jury trial. In People v. Cooks, defendant, a Muslim, was charged with a wide range of violent crimes including murders and kidnappings spanning an extended period of time. (1983) 141 Cal.App.3d 224. Over the defense objection and claim that the First Amendment was being violated, the trial court allowed the admission of a religious binder into evidence and allowed questioning about the materials contained within the binder because the contents were relevant to the motive and commission of the crimes charged. In upholding the trial court's ruling, the Cooks court noted that "'First Amendment rights are not absolute; the protected conduct begins with the expression of opinion but staops with the perpetration of violence; free discussion must die upon the battlefields of force.' Article I, section 4, of the California Constitution expressly provides that the free exercise and enjoyment of religion does not excuse acts that are inconsistent with the 'peace and safety of the State.'" Cooks, 141 Cal.App.3d at pg. 326.

In the Cooks case, "the binder was not used to prosecute [defendant] for his religious or social-political views. The contents of [defendant's] binder were relevant to show his motive for the alleged murders and conspiracy to commit murder. The evidence was also relevant to corroborate [the accomplice co-defendant's] testimony about meeting where [defendant] read from the binder and discussed the killings of white people. Accordingly, there was no violation of the defendant's First Amendment rights." Cooks at pgs. 141 Cal.App.3d at 326-327.

The Cooks court also rejected defendant's argument that the admission of the binder and subsequent questions violated Evidence Code Section 789. The court held "[t]he binder, however, was not admitted for the purpose of attacking [defendant's] credibility because of his religious views. As previously explained, the binder was relevant evidence on the issue of whether [defendant] had committed the alleged crimes." Id. at pg. 326.

In People v. Bautista, defendant (the leader of a Pentecostal congregation) was charged and later convicted of multiple counts of child molestation. People v. Bautista, (2008) 163 Cal.App.4th 762. At trial, the trial court allowed teh admission of background information of the church and the religious tenets of its members. The court found that the admission of such evidence did not violate defendant's First Amendment right to the free exercise of religion and Evidence Code Section 789. The Bautista court explained that "the constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations simply because those beliefs and associations are protected by the First Amendment. If the evidence is relevant to the issues being tried, its use does not violate the First Amendment." Id. The Bautista court further held "tenets of defendant's church including the defendant's religious authority and congregation's concern with the appropriate behavior of teenage churchgoers provided an important context for the charged incidents. The testimony regarding the churchgoers' beliefs was relevant to understanding the meetings with the defendant, defendant's actions, the girls' initial acceptance of defendant's behavior and the families' subsequent reactions." Id.

Finally, the Bautista court concluded similarly that there was no violation of Evidence Code Section 789. The court explained that testimony regarding the church's belief and defendant's role in the church was not admitted for the purpose of attacking the defendant's credibility on the basis of his religious beliefs. As explained, the religious background provided a context for the defendant's actions and the girls' delayed reporting of the incidents. The church's teaching thus, were relevant to determining whether defendant committed the alleged crimes, and the admission of this evidence did not violate Evidence Code Section 789. Id.

In the instant case, the admission of Scientology evidence provided an important context for the victims' delayed reporting of the crimes which itself bore on the evaluation of the witnesses' credibility and the actual occurrence of the crimes. In addition Scientology practices and beliefs were relevant to understanding the meetings and relationships that the victims had with the defendant; defendant's actions towards the victims; the victims' actions taken before, during and after the charged crimes; the victims' initial acceptance of defendant's behavior and the families' subsequent reactions. Furthermore, Scientology practices and beliefs were also relevant to determining whether the victims were credible and whether the defendant committed the alleged crimes. Therefore, any complaint regarding a First Amendment violation based upon the admission of Scientology evidence made by the defendant and/or on behalf of the Scientology Organization is misplaced and is contrary to the Court's rulings and the purposes for which Scientology evidence was in fact, admitted at trial.

E. ANALYSIS OF DEFENSE POSITION

The defense team for the criminal case argues that absent the existence of an expressly written protective court order prohibiting the sharing of criminal discovery between the criminal defense team and the civil defense team, they were free to share criminal discovery with each other with no legal consequence. This position flies in the face of both statutory and caselaw authority; thwarts Marsy's Law, legislative intent, governmental and privacy interests; and most importantly is contrary to this Court's previous findings and orders.

Non-parties to a criminal case do not have an inherent right to access discovery materials, and thus the dissemination of such information to non-parties is inherently prohibited. The Ninth Circuit has stated that "there is no tradition of access to criminal discovery;" rather '[t]o the contrary, "[d]iscovery, whether civil or criminal, is essentially a private process because the litigants and the courts assume that the sole purpose of discovery is to assist trial preparation."'" United States v. Sleugh, (9th Cir.2018) 896 F.3d 1007, 1013, quoting United States v. Kravetz, (1st Cir.2013) 706 F.3d 47, 53 (emphasis added).

In People v. Thompson, the trial court prohibited one defendant from seeking discovery from a co-defendant. (2016) 1 Cal.5th 1043, 1095. The Thompson court rejected the defendant's argument that the criminal discovery rules applied to all of those involved in a criminal case as parties. The Court stated that the defendant's "inferences drawn from the definitions of the words 'between' and 'among' cannot overcome the more specific provisions in sections 1054.1 and 1054.3 that speak in terms of discovery flowing specifically from the 'prosecuting attorney' to the 'defendant' (or his or her attorney), and vice versa." Ibid. (emphasis added).

Criminal discovery is rooted in the balancing of competing interests, most commonly privacy interests of individuals or governmental interests, against a criminal defendant's right to a fair trial where his or her liberty is at stake. The defense now argues that once a court conducts such a balancing test and orders the production of discovery pursuant to Penal Code Section 1054 to a criminal defendant, the defense becomes the gate keeper of the discovery and information contained therein and may disseminate it to whomever and however he or she sees fit. Thus, the defense position stands for the proposition that a criminal defendant, whose interest are in fact inapposite of the victims' and witnesses' interests, now has gained, in essence, a proprietary interest in the information and so long as there is no expressly written protective order in place, he or she can do with the information as he or she wishes. Arguably, a criminal defendant could sell the information to a tabloid, publish it in a local newspaper, give it to other individuals with adverse interests to those of the victims or witnesses such as an ex-spouse, or as here, share it with other litigants in other noncriminal, legal matters who otherwise would not be able to obtain the same information.

This Court cannot find any statute or caselaw that gives a criminal defendant such a proprietary interest or broad right of control over the private information of other individuals nor such a free exercise of dissemination of any discovery provided through the statutorily prescribed criminal discovery process. To follow the defense position to its logical end, a court would have to issue a protective order pro forma, in every criminal case, in order to stop any abuse of the discovery process otherwise a criminal defendant would be free to disseminate, in any manner, the private communications, photos, texts, police reports, statements, lab results, medical records and any other item of discovery by the People in the course of a criminal prosecution. This is antithetical to the legal reasoning supporting the criminal discovery statutory scheme. Thus, this simply cannot be the default position.

IV. COURT FINDINDS AND ORDER:

THE COURT FINDS that attorney Vicki Podberesky, in both her individual capacity and as a representative for the Church of Scientology International for purposes of the above-captioned case, had notice of the Discovery Disclosure hearing. Vicki Podberesky was notified by the Court of the Discovery Disclosure hearing dates. While not compelled to attend the hearing, Vicki Podberesky and the non-party she represents, Church of Scientology International, were given the opportunity to appear and to address the Court if they wished to do so. Neither Vicki Podberesky nor any other representative for the Church of Scientology International chose to appear for the Discovery Disclosure hearing.

THE COURT FINDS that the Court issued numerous orders and directives to prevent the sharing of discovery between the attorneys for the criminal case and the civil case. Specifically, the Court repeatedly admonished the criminal attorneys that the criminal defense team was attempting to use the criminal discovery process to obtain discovery for the civil case, material that the civil defendants were not entitled to, and that the criminal discovery process would not be used for such a purpose. This language constitutes a lawful court order prohibiting the sharing of criminal discovery by the criminal defense team for the purpose of assisting the defense in the related civil case. Thus, the sharing of discovery and information between any of the attorneys for the criminal defense team with the civil defendants or their lawyers violated this Court's specified orders and directives.

THE COURT FINDS that the first criminal defense team, Thomas Mesereau and Sharon Appelbaum, shared criminal discovery provided by the People in the above-captioned case pursuant to Penal Code Section 1054 et. seq. with a party to the related civil litigation, the Church of Scientology International and attorney Vicki Podberesky. THE COURT FUTHER FINDS that the sharing of this information by Thomas Mesereau and Sharon Appelbaum with the Church of Scientology International and attorney Vicki Podberesky is both a violation of this Court's specific directives and orders and also a violation of the provisions of Penal Code Section 1054 et. seq., the California Constitution, and Marsy's Law. This has also resulted in the Church of Scientology International's possession of discovery materials that it would otherwise have not access to in the course of the civil litigation.

THE COURT FINDS that from at least September 18, 2020, through November 2, 2021, defendant's criminal defense attorneys Thomas Mesereau and Sharon Appelbaum had sole possession of the criminal discovery in the instant case provided by the People. THE COURT FURTHER FINDS that the criminal defense attorneys Thomas Mesereau and Sharon Appelbaum, along with additional defense counsel, continued to represent defendant through May 31, 2022. Thus, criminal defense attorneys Thomas Mesereau and Sharon Appelbaum were notified and aware of this Court's repeated directives and orders to refrain from providing criminal discovery to litigants and attorneys in the civil case.

THE COURT FINDS that the Church of Scientology International, by and through its attorney Vicki Podberesky, was aware of all this Court's rulings, findings and orders. Vicki Podberesky has had a long-standing order for transcripts of all court proceedings in the instant case since this matter has been assigned to this Court. In addition, numerous attorneys from Vicki Podberesky's law firm have been attending almost all of the court proceedings in the above-captioned case.

THE COURT FINDS that the Church of Scientology International, by and through its attorney Vicki Podberesky, has attempted to involve itself in the criminal proceedings before this Court and the retrial in the above-captioned case by filing pleadings in the criminal case to which it had no standing and by making complaints that it should have more appropriately made months earlier, but certainly not in the middle of the retrial. Detective Myape was scheduled to testify just days after Church of Scientology International's attorney met with Chief Moore to lodge complaints about the Detective. THIS COURT FURTHER FINDS that the timing of this complaint, based on the long delay of time between Detective Myape's testimony in the first trial and when the complaint was actually made while the retrial was in fact in progress, was calculated. However, THIS COURT FURTHER FINDS that the Church of Scientology International's complaint had no impact on the progress of the retrial nor impact on the testimony in the retrial and further that the second jury was unaware of these actions.

THE COURT FURTHER FINDS that while the retrial was in progress, the Church of Scientology International, by and through its attorney Vicki Podberesky, also filed a complaint against the trial deputy district attorneys (Reinhold Mueller and Arial Anson) for claims that have no legal basis and are in fact contradictory to this Court's actual evidentiary orders. Vicki Podberesky, in her email complaint to District Attorney Supervisors, complained that the trial deputies were putting forth testimony regarding harassment and stalking (the subject matter of the related civil suit) which they knew to be false. Pursuant to the Court's orders of October 4, 2022, and March 28, 2023, as well as the express admonitions given by the Court to both juries during the first trial and the retrial, testimony about harassment and stalking was not received for the truth of the matter asserted but rather to judge the credibility of the witnesses and to evaluate their state of mind. Thus, the truth or falsity of those claims was legally irrelevant for the purpose for which the testimony was admitted. This ruling was made by the Court and known and available to not only all counsel, but the general public at large. This ruling is also premised on basic principles of statutory authority and evidentiary caselaw. Thus, THIS COURT FURTHER FINDS that the Church of Scientology International's complaint to the District Attorney Supervisors made against the trial deputies while the retrial was in progress, was demonstrably false. However, THIS COURT FURTHER FINDS that the Church of Scientology International's complaint had no impact on the progress of the retrial nor any impact on the testimony in the retrial and further that the second jury was unaware of these actions.

ACCORDINGLY, THIS COURT ORDERS, to wit, attorneys Thomas Mesereau and Sharon Appelbaum to jointly and severally pay monetary sanctions, pursuant to Code of Civil Procedure Sections 177 and 177.5, for violating lawful court orders regarding the sharing of criminal discovery with a party to the related civil action, the Church of Scientology International and its attorney Vicki Podberesky, in the sum of nine hundred and fifty dollars ($950). THIS COURT FINDS no violation of its orders by attorneys Shawn Holley, Philip Cohen and Karen Goldstein.

THE COURT FURTHER FINDS that neither the Church of Scientology International nor its attorney Vicki Podberesky, are parties in the instant case. As such, the Court does not have jurisdiction over them. However, as described above and at the request of the People of the State of California, the Court has set forth its findings of occurrences and actions taken by non-party, the Church of Scientology International, by and through its attorney of record in the instant case, Vicki Podberesky, during the course and progress of the retrial in the above-captioned case.

As set forth above, the Church of Scientology International is a party to the aforementioned related civil case and through its attorney Vicki Podberesky, possessed the criminal discovery related to the victims' claims of stalking and harassment which is the subject of the civil case. It appears that this possession of criminal discovery may assist in the civil defense preparation or litigation, despite the fact that such sharing of documents was in direct contravention to this Court's repeated orders and directives. Whatever the reason, the Church of Scientology International's possession of these documents by and through its attorney Vicki Podberesky, resulted from a violation of this Court's order. This Court specifically leaves for the trial court presiding over the pending related civil matter, the determination of the impact or effect on the civil litigation and parties and in accordance with that finding, the further determination of any remedies and/or the imposition of any sanctions regarding the civil attorneys or civil parties, as deemed appropriate by that court.

June 7, 2023

Charlaine F. Olmedo

Judge of the Superior Court

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