Here's Danny Masterson's entire appeal brief
Danny Masterson’s appellate attorneys turned in their appeal brief a couple of days early, and we knew you’d want to dig into it and give us your thoughts.
So here’s the whole enchilada. It’s too big to fit in an email, so please come to tonyortega.substack.com to see the whole thing.
And please keep in mind, as you see Danny’s attorney Cliff Gardner attack the credibility of these victims, a jury saw these women testify in person and believed them. We think that will go a long way with the appeals court.
INTRODUCTION
In 2023, appellant Daniel Masterson was convicted of forcible rape involving complaining witnesses [Jane Doe 1] and [Jane Doe 2] based on incidents occurring in 2003. The defense in this case was simple: Mr. Masterson knew both women socially and the sex was consensual. There was no physical evidence supporting the state’s theory, there were no admissions, there were no inculpatory pretext calls. In the absence of such independent corroborating evidence, [JD1] and [JD2] were the pivotal witnesses for the state -- their credibility would be critical to the state’s case.
After an initial investigation in 2004 as to[JD1]’s claims, the District Attorney declined to prosecute. In June of 2020, nearly 16 years later, the District Attorney elected to go forward with charges involving three complaining witnesses -- [JD1], [JD2] and [JD3]. The case was tried twice. The first jury deliberated for six days, before hanging 10-2 for acquittal as to [JD1], 8-4 for acquittal as to [JD2] and 7-5 for acquittal as to [JD3]. The second jury deliberated an additional eight days before once again hanging on the charge as to [JD3]. (which was later dismissed) but convicting as to [JD1] and [JD2]. Whatever else may be said about the state’s case, it is clear that at both trials, jurors had significant reservations.
Here is why. As discussed more fully below, jurors at both trials learned that the testimony of both [JD1] and [JD2] changed dramatically over the years. To be sure, under the extremely deferential rules of appellate review, the testimony eventually offered at the two trials by both [JD1] and [JD2] was sufficient to support a conviction for forcible rape. But as shown by the protracted jury deliberations at both trials, the evolution of that testimony reflected a substantially changing narrative over time. The many changes over time -- involving both sharply changing recollections as to some facts and the wholesale addition of new facts never before mentioned -- consistently pointed in one direction: to a newly minted claim that force was used.
One explanation for these changes -- offered by the prosecution -- was that this is just how human memory works; sometimes witnesses do not disclose all the important facts at the first, second or third telling of their story but as they remember more or are asked different questions they disclose new and different information. The prosecutor explained this thesis in closing argument:
They [the defense] want to hold these victims to an extremely unrealistic standard. They want you to believe that when you give that first interview, you can only remember and say everything in that first interview. And if you remember something later, if you add something, if you correct something, if someone asks you a question that makes you remember something different, . . . that brands you a liar. That is unrealistic.
(33 RT 3288.)
But there was another explanation that was grounded in the timehonored motive of financial self-interest. This motive involved both the civil and criminal statutes of limitation. On the civil side, the statute of limitations to file a lawsuit against Mr. Masterson seeking damages for rape had long since expired by the time of trial. Under state law, however, if jurors convicted Mr. Masterson of rape in a criminal prosecution, the civil statute of limitations would be revived and both [JD1] and [JD2] would have one year to seek monetary damages for rape.
But this one-year window of opportunity to file for civil damages would open only if Mr. Masterson were convicted of forcible rape involving multiple victims. This is because the charged offenses occurred in 2003. Typically, the criminal statute of limitations for rape is ten years. But here, the prosecution offered an interpretation of the law which could avoid this potential bar. Under the prosecution’s theory, so long as Mr. Masterson was convicted of forcible rape of multiple victims within the meaning of Penal Code section 667.61, subdivision (e)(4) -- as opposed to any other form of rape (e.g. rape by intoxication) -- there was no statute of limitations bar and the criminal prosecution could go forward. And if the criminal prosecution went forward, and the jury convicted of at least two counts of forcible rape, then [JD2] and [JD1] would be able to sue for damages.
As explained in the Statement of Facts below, the record shows both [JD1] and [JD2] were well aware of the statute of limitations issues. Indeed, [JD1]’s own text messages showed that she had been made aware that unless the specific requirements of section 667.61 were met “the case can’t go forward.” As for [JD2], in a tape recorded conversation, the prosecutor directly told her there were “statute of limitations issues,” the resolution of which depended directly on “certain acts that were done, and how they were done . . . .” Under the defense theory, the need to bypass the statute of limitations is what explained the many changes in the recollections of both [JD1] and [JD2] which eventually supported claims of forcible rape.
And the changes in recollection were stark indeed. As to [JD1], the underlying incident occurred in April of 2003. Although more fully discussed in the Statement of Facts, and by way of example here only, three months after the April 2003 incident [JD1] described her April 2003 sexual encounter with Mr. Masterson as follows to her friend P.D.:
[It was] the best sex [I] had ever had. . . . [because of] [t]he positions he had me in . . . [and] [t]he speed.
(8 CT 2316.) [1. Because of the high profile nature of this case, and to protect the privacy of certain witnesses, Mr. Masterson will refer to certain witnesses by initials only.] But 14 months after that -- in June of 2004 -- [JD1] reported to police that this same encounter was actually rape.
In her June 2004 interview with police, [JD1] admitted she and Mr. Masterson had had consensual sex on an earlier occasion -- in September 2002. Her friend J.W. told police that only hours before [JD1] had sex with Mr. Masterson in April 2003, [JD1] told her how much she had enjoyed the September 2002 sex with Mr. Masterson. (8 CT 2315.) But by the time of trial, this changed too: [JD1] now told jurors the September incident was also forcible rape. And although [JD1] recounted the April 2003 incident in two separate police interviews in 2004, it was not until 2017 -- a full 13 years later -- that [JD1] claimed for the first time that Mr. Masterson displayed a gun during the incident.
[JD2]’s recollection also changed sharply over time. Like [JD1], [JD2] also knew Mr. Masterson socially. At Mr. Masterson’s invitation, she came over to his home one evening in 2003, they had wine, they kissed, they showered together and they had intercourse.
Fourteen years later, [JD2] reported to police that this was rape. In her initial report to police and her pre-trial statements, [JD2] said that (1) because she was nervous, she drank vodka and one or two glasses of wine before coming to Mr. Masterson’s house that evening, (2) she “wanted [Mr. Masterson] to kiss her” and when he did she “was getting into it with him,” (3) they showered together, although she could not recall whether or not taking a shower together was her idea and (4) after sex, they spoke to each other for hours on the bed and the bedroom terrace, and she thought they were going to “start dating.” By the time of trial, however, [JD2]s recollection changed. Now (1) she only had one or two sips of alcohol before coming to Mr. Masterson's house, (2) when Mr. Masterson was kissing her she was saying “no, no, no,” (3) Mr. Masterson “ordered her” into the shower and (4) her mother’s “takeaway” after speaking with her was that [JD2] felt like Mr. Masterson treated her “like a piece of meat.” But even at trial, [JD2] admitted that several days after they had sex -- when Mr. Masterson had not called her -- she called and told him “I really like you. I thought you liked me. I thought you were going to call.”
As noted above, the prosecution did not bring charges until June of 2020 -- 17 years after the 2003 incidents and 16 years after police initially decided not to prosecute the charge related to [JD1] Of course, the passage of time can make a reliable determination of fact difficult to achieve -- witnesses pass away, memories fade, and documentary evidence is often lost or destroyed. As this Court has recognized, that is why statutes of limitation exist, to promote justice by “prevent[ing] claims from being brought when memories have faded, evidence has been lost, and witnesses have disappeared.” (Debbie Reynolds Prof. Rehearsal Studios v. Superior Court (1994) 25 Cal.App.4th 222, 234.)
These concerns have special force here. In the 16 years between the prosecution’s 2004 decision not to prosecute, and the bringing of charges, several witnesses died. One witness who [JD1] had identified to police as having been present at the Masterson home during the April 2003 incident no longer remembered anything. Moreover, although police had tape recorded their initial interview with [JD1], police lost that recording by 2020. This was very damaging to the defense. At trial, [JD1] insisted that in 2004 she had told police facts which were contained in her trial testimony but police had neglected to include in their contemporaneous police reports. The loss of the tape recording precluded the defense from presenting the only evidence which could conclusively rebut [JD1]’s effort to bolster her own credibility. In other words, “memories [had] faded, evidence ha[d] been lost, and witnesses ha[d] disappeared,” all to the detriment of the defense.
Despite the passage of time, the state elected to try Mr. Masterson for forcible rape. The trial court rejected defense counsel’s argument that prosecution was barred by the 10-year statute of limitations set forth in Penal Code section 801.1, subdivision (b). Instead, the trial court accepted the prosecution’s position that because it had alleged a section 667.61, subdivision (e)(4) multiple victims enhancement, no statute of limitations at all applied to the charged crimes pursuant to Penal Code section 799. As discussed in Argument I below, the trial court’s conclusion was not only starkly inconsistent with the plain language of the relevant statute of limitation, the Law Revision Commission Comment to the legislation, the location of the statute at issue, and fundamental principles of statutory construction, but it leads to results which the Legislature could never have intended. Equally important, the fundamental purpose of a limitations period -- to ensure a fair and reliable trial before witnesses die, memories fade and evidence is lost -- was directly implicated here. In this case, exculpatory witnesses had died, the memories of other percipient witnesses had faded and police had lost critical evidence.
But the statute of limitations issue here was just the tip of the unreliability iceberg. As discussed in Argument II, the trial court erroneously excluded evidence that the complaining witnesses had a direct monetary interest in the outcome of the criminal trial and a strong financial incentive to characterize the long past sexual encounters as forcible rape. At the time of trial, the complaining witnesses had a pending civil lawsuit against Mr. Masterson for damages arising from what they alleged was harassment that occurred after they came forward against him in 2017. Although the civil lawsuit referred to the facts regarding the long past sexual encounters, it did not allege any cause of action (or seek damages) for rape because (as noted above) the civil statute of limitations had long since expired. The trial court excluded evidence showing that if the complaining witnesses obtained forcible rape convictions against Mr. Masterson, state law would provide a new, one-year window within which they could file rape-based causes of action, entitling them to a dramatically greater damage award than the existing lawsuit for harassment damages. And predictably, within one year of the criminal verdict, both [JD1] and [JD2] moved to amend their pending lawsuit to do just that.
The trial court’s ruling is irreconcilable with more than a century of California law recognizing the common-sense principle that a witness’ financial stake in the outcome of trial is plainly relevant to credibility. Without referencing any of this authority, the trial court excluded this evidence entirely as “speculative, irrelevant or collateral.” And during closing arguments the prosecutor took full advantage of this ruling, again and again ridiculing the defense theory that there was a financial motive to falsely claim rape in the criminal trial. The prosecutor urged jurors not to “be fooled by this” argument because “there is absolutely no evidence to suggest that any of that is true.” In the prosecutor’s view “it's easy [for defense counsel] to say that they want to sue for, quote, a lot of money” but the case was “about evidence, evidence that has come in in this case, not some speculation, not some attorney’s theory.” And in his final rebuttal, as virtually the last point made to jurors before they began deliberations, the prosecutor reminded jurors once more that “[t]here is no evidence -- there is none at all” to support defense counsel’s suggestion of a financial motive.
There is more. Each of the three complaining witnesses admitted ignoring very specific police admonishments not to discuss the case with each other during the six years leading up to trial. At trial, they claimed these communications were not about their anticipated testimony regarding the sexual encounters themselves. As the trial court itself recognized, the defense theory was that these years of communication between the complaining witnesses had shaped their testimony with an eye towards the provisions of section 667.61, thereby bypassing the criminal statute of limitations and opening the civil courthouse doors to a lawsuit for damages based on the criminal convictions. But over objection, the court allowed the prosecution to rebut the defense theory by introducing testimony from 18- year police veteran Detective Myape that in her opinion, the ongoing communications between the complaining witnesses did not in fact contaminate their testimony. The court then barred defense counsel from eliciting neutral testimony from Myape that, in fact, she did not know one way or another whether the complaining witnesses were being truthful. As discussed more fully in Argument III, the court’s admission of Detective Myape’s opinion was a plain invasion of the jury’s function; no party can offer witness testimony about whether particular testimony from another witness is credible.
There is more; the court’s ruling as to Detective Myape was not the only ruling which undercut the defense theory that the complaining witnesses had shaped their testimony together. Because at the first trial these witnesses admitted communicating with each other for years prior to trial, and to more directly support the defense theory of contamination, counsel sought to subpoena these witnesses for digital and documentary evidence of their actual communications with each other. As discussed in Argument IV, although the witnesses admitted communicating with each other for years, and although there were substantial changes in their testimony over that same time span, the trial court quashed these subpoenas, and the actual communications remain secret to this day.
There is still more. It was not just the court’s rulings in connection with the credibility of the complaining witnesses that rendered the trial unfair. To buttress its case against Mr. Masterson, the state also presented evidence of an uncharged offense pursuant to Evidence Code section 1108. At the first trial, the state called Tricia V. as its section 1108 witness. But precisely because defense counsel had time to prepare for Tricia V.’s testimony, her testimony was impeached on cross-examination in a devastating manner. After testifying on direct examination that Mr. Masterson raped her twice in 1996, Tricia was confronted on cross examination with a 2017 message she wrote to Chris Masterson, defendant’s brother, after she saw a Facebook feed about the allegations against Mr. Masterson. In that message, Tricia V. told Chris that she had heard the allegations and she “wanted to send you guys some support. Danny and you were, too, were so protective of me, looked out for me and put [me] up when my BF cheated on me and I didn’t have a place to stay. Hope you are both doing well. XOX, Tricia.”
The prosecution did not call Tricia V. at the second trial. Instead, three weeks before the second trial was scheduled to start, and five weeks before trial actually began, the prosecution gave notice that it would be calling a different section 1108 witness -- Canadian resident Kathleen J. In 2021 Kathleen J. reported to Toronto police an incident she said occurred more than two decades earlier, in 2000. The prosecution disclosed to the defense videotape interviews Toronto police had performed. After reviewing these videotapes within a week, defense counsel (1) moved to exclude Kathleen J.’s testimony because he had insufficient time to prepare, (2) moved for a continuance since he had to interview numerous identified Canadian witnesses and (3) sought a subpoena to obtain documents and communications from Kathleen J. The trial court (1) denied the motion to exclude, (2) denied the requested continuance and (3) refused to authorize the subpoena, despite explicitly finding the requested information “could reasonably assist the defendant in preparing his defense or lead to admissible evidence.” As discussed more fully in Argument V, and as defense counsel made clear at the time, the court’s rulings forced counsel to trial without proper preparation for the state’s only section 1108 witness.
These and other issues will be discussed below. Perhaps in some cases these errors, even when considered together, would not require reversal. But the fact of the matter, as all parties below recognized, is that this case was a pure credibility contest. And as shown by the hung jury at the first trial (leaning heavily towards acquittal on every count), the objective record of jury deliberations at both trials, and the split verdicts at the second trial, this was by any measure a close case.
It is true, of course, that a defendant is not entitled to a perfect trial. He is, however, still entitled to a fair one. And for the reasons outlined above, and discussed more fully below, as to the critical credibility questions at the heart of this case, Danny Masterson received neither. Reversal is required.
STATEMENT OF APPEALABILITY
This appeal is from a judgment following trial that finally disposes of all issues between the parties and is authorized by Penal Code section 1237, subdivision (a).
STATEMENT OF THE CASE
On June 3, 2021 the Los Angeles County District Attorney filed a three count information against appellant Danny Masterson. (2 CT 344- 348.) The information charged as follows:
1) Count one charged Mr. Masterson with a forcible rape of Jane Doe # 1 on April 25, 2003 in violation of Penal Code section 261, subdivision (a)(2). (2 CT 345.)
2) Count two charged a forcible rape of Jane Doe # 2 occurring between October 1, 2003 and December 31, 2003. (2 CT 346.)
3) Count three charged a forcible rape of Jane Doe # 3 occurring between January 1, 2001 and November 30, 2001. (2 CT 347.)
As the information itself established, the potential prison term for each offense was “3-6-8 [years] State Prison.” (2 CT 344.) But because each offense added an enhancement allegation that multiple victims were involved in violation of Penal Code section 667.61, subdivision (e)(4), the information accurately noted that the effect of the multiple victims allegation was to increase the prison term for each offense to “15 [years] to life State Prison.” (2 CT 344.) Mr. Masterson pled not guilty and denied the enhancing allegations.
The parties gave opening statements on October 18, 2022. (11 CT 3008.) The state rested its case on November 14, 2022. (11 CT 3040.) The defense rested that same day, without calling any witnesses. (11 CT 3040.) Jurors began deliberating on November 16, 2022. (11 CT 3043.)
After several days of deliberation the jury indicated it could not reach a verdict on any of the three counts. (11 CT 3048.) The court reinstructed jurors and replaced two jurors who tested positive for Covid. (11 CT 3048, 3049.) After several additional days of deliberation, this new jury was also unable to reach a verdict on any counts and the court declared a mistrial. (11 CT 3054.) The jury was squarely leaning towards acquittal. Count 1 was 10-2 for acquittal. (8 RT 504.) Count 2 was 8-4 for acquittal. (Ibid.) Count 3 was 7-5 for acquittal. (Ibid.)
The state elected to retry the case. Opening statements in the second trial began on April 24, 2023. (11 CT 3257-3258.) The state rested its case on May 12, 2023. (11 CT 3282-3283.) Again the defense rested without calling a witness. (11 CT 3283.) Jurors began deliberating at 9:55 in the morning on May 17, 2023. (11 CT 3288.)
Jurors deliberated all day on May 17, May 18, May 20, May 22, May 25 and May 26. (11 CT 3288-3296.) Jurors deliberated a half day on May 23. (11 CT 3293.) During this more than 29 hour deliberation, jurors returned with numerous questions for the court. (11 CT 3289-3294.) On May 31, jurors finally reached verdicts, hanging on the count three charge, but convicting on the charges in counts one and two. (11 CT 3298-3299.)
The trial court sentenced Mr. Masterson on September 7, 2023. (12 CT 3577.) The court imposed a 15 year-to-life term for each of the two convictions, for a total term of 30 years to life. (12 CT 3577.)
Mr. Masterson filed a timely Notice of Appeal. (13 CT 3636.)
STATEMENT OF FACTS
A. Overview.
As relevant here, the state charged Mr. Masterson with the forcible rape of complaining witnesses [JD1] and [JD2] occurring in 2003. Much of the defense case was spent eliciting how both [JD1]’s and [JD2]’s recollection changed over time. As noted above, the parties had very different explanations for these changes. The prosecution’s thesis was that changes in recollection like those seen here were to be expected due to the vicissitudes of memory. The defense theory was that these changes reflected a financial interest in obtaining a forcible rape conviction to reopen the civil statute of limitations and permit rape-based damage claims.
Section B of this Statement of Facts describes the early police investigation resulting in the initial decision not to prosecute the April 2003 incident involving [JD1] Section C discusses the rather unusual evidence showing the complaining witnesses were very much aware not just of the statute of limitations issues in this case, but of the prosecution’s theory as to how to avoid a statute of limitations bar. Sections D and E detail the testimony given by [JD1] and [JD2] at the second trial; in light of the defense theory (that [JD1] and [JD2] changed their testimony over time), these sections also detail the prior statements they gave to police, prosecutors and friends. Section F recounts the prosecution’s remaining evidence. Finally, section G describes the extended jury deliberations at the first and second trials.
B. After An Initial Investigation Fails To Support [JD1]’s Claims, The District Attorney Decides Not To Prosecute.
On April 25, 2003, [JD1] and Mr. Masterson had sexual relations. 14 months later -- on June 6, 2004 -- [JD1] reported to police that this was rape, giving a detailed statement to Officer Alexander Schlegel. (8 CT 2289- 2294; 30 RT 2906-2917.) The details of [JD1]’s initial version of events will be discussed in greater detail in section D below. Suffice it to say here that [JD1] told Officer Schlegel (1) she knew Mr. Masterson socially and had consensual intercourse with him on a prior occasion (September 2002), (2) after going out with friends to a club on the evening of April 24, 2003 she went to a party at Mr. Masterson’s house, had a drink, felt sick and vomited, (3) defendant put her to sleep in his bed and (4) she woke up with him having sex with her. (8 CT 2290-2293; 30 RT 2906-2914.) When [JD1] resisted, Mr. Masterson choked her until she passed out; when she woke up the next morning she did not recall anything but “she began to remember more and more as the day went by.” (8 CT 2293; See 30 RT 2914.)
In her June 2004 report to police, [JD1] said there were six witnesses: B.S., L.W., J.D., J.W., S.F. and J.S. (8 CT 2290; 30 RT 2914-2915.) [JD1] told Officer Schlegel that although she told her friend B.S. about having sex with Mr. Masterson, she ([JD1]) did not tell B.S. that it was rape. (8 CT 2293.) But she told Officer Schlegel that she had told another friend, S.F., that it was rape. (8 CT 2293.) [JD1] explained that she had substantial bruising on her body, so much so that her parents noticed “the bruises and asked her about them.” (8 CT 2294; See 30 RT 2915.)
Police immediately contacted [JD1]’s father, [JD1 father], as well as witnesses J.W., L.W. and B.S. (8 CT 2315-2317.) B.S. provided names of several other potential witnesses, including Ben. S. and P.D., who police also interviewed. (8 CT 2295, 2307, 2316, 2318.) Every one of these witnesses -- including [JD1]’s own father -- undercut the version of events [JD1]. gave to police. Some of them in remarkable fashion. In brief, here is what police learned from interviewing the witnesses [JD1] herself had named:
• [JD1]’s father. Despite [JD1]’s assurance that her parents both saw and asked about the substantial bruising on her neck, arms and thighs, [JD1]’s father told police “he had not seen [any] injuries.” (8 CT 2317.) Police asked [JD1’s father]. to have his wife ([JD1]’s mother) call them. (Ibid.) She never called. (Ibid.)
• J.W. J.W. drove [JD1] to Mr. Masterson’s house on the evening of April 24. On the car ride there, and referring to her September 2002 sex with Mr. Masterson, [JD1] said “‘I’ve got to tell you, he (Mr. Masterson) is the best sex I've ever had.’” (8 CT 2315.)
• L.W. L.W. was Mr. Masterson’s best friend, he knew [JD1] for several years and was at the house that night. (8 CT 2316.) Earlier on the evening of April 24, [JD1] was “coming on to him by putting her breasts in his face” and that after Mr. Masterson and [JD1] went upstairs, he heard “moaning and thought to himself, ‘that could have been me having sex with [[JD1]].’” (8 CT 2316-2317.) He heard noises from the bedroom -- “‘Ooohs’ and ‘Yes’” -- which sounded like [JD1] and Mr. Masterson were having a good time. (Ibid.) Later he heard what sounded like conversation but he could not hear what was being said. (Ibid.)
• Ben S. Ben S. worked for [JD1]’s parents for years and had been friends with [JD1] for 15 years; he was also friends with Mr. Masterson. (8 CT 2318.) He saw [JD1] the morning after she and Mr. Masterson had sex; [JD1] said “that [B.S.] was supposed to pick her up the night before, from Danny’s house. [JD1] was freaked out that (B.S.) would be pissed off at her. [JD1] told him that she slept with Danny. [Ben S.] told her ‘I can’t believe you did that.’ [JD1] smiled. She wanted advice on what she should do about [B.S.]” (8 CT 2318.)
B.S. In June of 2003 B.S. and [JD1] spoke about the April 2003 incident when they were in New York together. (8 CT 2315.) B.S. and [JD1] “had a long talk and [JD1] admitted she had sexual intercourse with Danny (on April 25, 2003) and did not say it was forced.” (Ibid.)
P.D. P.D. knew both [JD1] and defendant for “four or five years.” (8 CT 2316.) In July of 2003, P.D. asked [JD1] “why she had sex with Danny a second time after there had been so much drama surrounding the first time they had sex with each other. [JD1] explained that on both occasions it had been the best sex she had ever had. [P.D.] was curious and asked her why it was the best sex . . . and [JD1] said ‘I don’t know. The positions he had me in . . . The speed . . . I finished three times.’ [P.D.] asked what she meant by ‘finished’ and [JD1] explained she meant having an orgasm.” (Ibid.)
Police referred the matter to the District Attorney for filing consideration. (8 CT 2318.) After reviewing the police interviews described in summary above, in late June 2004 the District Attorney elected not to file charges. (8 CT 2309-2310.)
C. [JD1] And [JD2] Are Made Aware Of The Statute Of Limitations Issues.
In a March 2017 recorded telephone call, [JD1] and her mother spoke about the statute of limitations issues in the case. [JD1] noted that although “what happened to me was a long time ago” her mother had not “put two and two together” and “there’s a reason the statute [of limitations] was reopened.” (8 CT 2381.) [JD1] explained to her mother that “collusion is how they reopened my case.” (Ibid.) And a subsequent text from [JD1] to Detective Vargas in January 2019 shows that [JD1] had been made aware of the specific requirements needed under section 667.61 to bypass the statute of limitations:
Ugh. I was told she [JD-2] and JD-3 are both out of the case. And that means 667.61 is out and therefore statute is an issue and my case can’t go forward. Please please call JD-5. Apparently a call from you, Mueller, or BOTH will likely result in her being able to agree to continue on with case.
(8 CT 2275; 9 CT 2413.)
[JD2] was equally aware of statute of limitations concerns. Thus, in a May 2017 recorded interview, prosecutor Mueller explained to [JD2] that because of the “passage of time” there were “statute of limitations issues.” (8 CT 2384; 9 CT 2525.) Prosecutor Mueller informed [JD2] that resolution of these statute of limitations issues would depend “on certain acts that were done, and how they were done, and, you know, the fact that we potentially (UI) . . .” (8 CT 2384.) At that point, the audio of this recorded explanation of the statute of limitations abruptly ends. (Ibid.)
D. [JD1]’s Evolving Versions.
16 years after the 2004 decision not to prosecute, the prosecution filed charges in connection with [JD1]’s allegations. Although the case was tried twice, neither jury ever heard from the witnesses police interviewed back in 2004 after the report was first made: Bill B., J.W., L.W., Ben S., B.S. or P.D. What they did hear, however, was that [JD1]’s versions of events changed dramatically over time, not only in connection with [JD1]’s testimony about the April 25, 2003 charged incident, but as to the prior intercourse in September 2002 as well.
1. Version 1: the June 2004 story as told to Detective Schlegel.
[JD1] spoke to Officer Schlegel in June 2004. With respect to the prior sexual contact in September 2002, [JD1] admitted that she had “consensual sexual intercourse” with Mr. Masterson prior to the April 25 incident. (26 RT 2211; 30 RT 2938-2939; 8 CT 2293.) [JD1] explained that during the September encounter -- which involved vaginal intercourse -- Mr. Masterson “tried to enter her anus . . . but she refused.” (8 CT 2293.) Because she refused to have anal sex, [JD1] made no mention of other injuries such as pain or bleeding. (30 RT 2938-2939; 8 CT 2293.)
With respect to the April 2003 charged rape, [JD1] told Officer Schlegel that on April 24, 2003 she went to a club with friends. (30 RT 2909; 8 CT 2290.) After clubbing, they decided to go to a party at Mr. Masterson’s home. (30 RT 2909; 8 CT 2290.) Once there, she and Mr. Masterson went to the kitchen together where he made her a drink. (30 RT 2924; 8 CT 2290.)
[JD1] took her drink outside to speak with Luke Watson, then “wandered” into the back yard area where Mr. Masterson was in the jacuzzi with several women. (30 RT 2925; 8 CT 2290.) He pulled her into the jacuzzi. (30 RT 2910; 8 CT 2290.) When [JD1] started to feel nauseous, Mr. Masterson “guided her up the stairs” towards the bathroom and held on to her so that “she wouldn’t fall down.” (8 CT 2290-2291; See 30 RT 2925- 2926.) There was no mention of calling her father or leaving a voice message for him. (30 RT 2926.) Once upstairs, [JD1] vomited into the toilet but also on herself. (30 RT 2911; 8 CT 2291.) Mr. Masterson put her into the shower. (30 RT 2911; 8 CT 2291.)
[JD1] told police that Mr. Masterson carried her into his bedroom and put her in bed where she fell asleep. (30 RT 2911-2912; 8 CT 2292.) She woke up to Mr. Masterson on top of her having sex. (30 RT 2912; 8 CT 2292.) She pushed a pillow in his face to try and get him to stop; he took the pillow and pushed it into her face. (30 RT 2912; 8 CT 2292.) [JD1] could not breathe and thought she was going to “die.” (30 RT 2912; 8 CT 2292.) As she tried to find something to hit Mr. Masterson with, he placed his left hand around her throat and choked her until she passed out. (30 RT 2913; 8 CT 2292.)
When [JD1] woke up, Mr. Masterson was gone so she crawled into the closet. (30 RT 2913; 8 CT 2292.) Later, he picked her up and put her back in the bed where she fell asleep. (30 RT 2913; 8 CT 2293.) [JD1] “didn’t remember anything [that] morning . . . [but] she began to remember more and more as the day went by.” (8 CT 2293; See 30 RT 2914.)
2. Version 2: the June 2004 story as told to Detective Myers.
Several days after speaking with Officer Schlegel, [JD1] spoke with Detective Myers. As to the prior September 2002 incident, and just as she told Officer Schlegel, [JD1] told Detective Myers that she had had “consensual sexual intercourse” with Mr. Masterson previously. (8 CT 2304; See 31 RT 3078.) Similarly, and again just as she told Officer Schlegel, [JD1] explained that during the September incident, Mr. Masterson “attempted” anal sex, she “pulled herself away,” he immediately “apologized” and she thought the contact may have been “accidental.” (8 CT 2304; See 30 RT 2938-2939 [sex was consensual]; 31 RT 3150 [Mr. Masterson apologized for the anal contact]; 31 RT 3078 [Mr. Masterson’s penis “touched” her anus].) Yet again, because she had “pulled herself away,” [JD1] did not report any pain or bleeding. (8 CT 2304.)
As to the April 2003 charged offense, and in contrast to Version 1, [JD1] now said that Mr. Masterson was alone in the kitchen when he made her a drink and he brought it to her. (31 RT 3085; 8 CT 2313-2314.) And because (in contrast to Version 1) [JD1] was no longer with Mr. Masterson when the drink was made, [JD1] now theorized that he might have put a “date rape type drug” into her drink. (31 RT 3085; 8 CT 2313-2314.)
[JD1] repeated to Detective Myers what she had told Officer Schlegel -- she “wandered” into the back yard area where Mr. Masterson was in the jacuzzi. (30 RT 2910, 2925; 31 RT 3080-3081.) But in contrast to Version 1, when she began to feel sick in the jacuzzi, Mr. Masterson did not “guide” [JD1] up the stairs; instead, he “picked her up and carried her upstairs to go throw up.” (31 RT 3087; 8 CT 2305.) Again, she made no mention of calling her father or leaving him a voice mail as she was being carried up the stairs. (31 RT 3082.)
3. Version 3: the January 2017 story as told to Detective Myape.
In January 2017 -- over 12 years after giving her first two versions of events -- [JD1] spoke with Detective Myape. As to the September 2002 incident, the fleeting anal contact [JD1] had described in version 1, and characterized as “accidental” in version 2 -- and for which Mr. Masterson had immediately apologized -- evolved into Mr. Masterson “attempting” anal sex, stopping once she told him to stop. (8 CT 2349.) [“1 CTO” refers to Volume 1 of a two-volume, 351 page Clerk’s Transcript filed with this Court on May 13, 2024 entitled “Clerk’s Transcript Omission.”] But in Version 3 it did not go beyond this, and because this was merely an attempt at anal intercourse, [JD1] again reported no pain or anal bleeding. (31 RT 3035.) [During the course of the two trials Detective Myape’s name changed to Detective Reyes. To avoid confusion, Mr. Masterson will consistently refer to her as Detective Myape.]
[JD1]’s interview with Detective Myape also covered the April 2003 charged offense. But this version had a number of facts which [JD1] had never mentioned in either of her first two versions:
• For the first time, [JD1] said that when Mr. Masterson carried her upstairs she was “freaking out” and so she called her father “crying” for help. (1 CTO 193, 195.) When her father did not answer, she left him a voice mail. (4 CT 917-918.) [As noted above, [JD1]’s new recollection that she made a telephone call to her father did not occur until 2017, seven years after her father passed away. (20 RT 1368.) But precisely because [JD1] did not reveal this version of events until after her father passed away, there was no way to test [JD1]’s recent recollection.]
For the first time, [JD1] said that Mr. Masterson displayed a gun during the sexual assault. (31 RT 3036; 8 CT 2348.) [At trial, [JD1] claimed she actually did tell police about the gun in her initial interviews. (25 RT 2138.) But Officer Schlegel was clear that it had not been discussed at his June 4, 2004 interview or it surely would have made it into this report: Q: [by defense counsel] Does the mention of a gun fall under the category of something that is important to include in a report? A: [by Detective Schlegel] Yes, it is. Q: If [JD1] had mentioned a gun, would that have made it into your report? A: Yes. (30 RT 2912, 2936-2937.) Detective Myers was equally clear; if [JD1] had mentioned a gun, it would have appeared in the police report. (31 RT 3084- 3085.)]
In this version, and just as she told Detective Myers in Version 2, Mr. Masterson was alone in the house when he made [JD1] a drink and he brought it to her outside. (1 CTO 181-183.) As for getting into the jacuzzi, now Mr. Masterson pulled her by her wrist and threw her in. (1 CTO 185.)
4. Version 4: the April 2017 story as told to prosecutor Mueller.
Four months later -- in April 2017 -- [JD1] spoke with prosecutor Mueller. As to the September 2002 incident, [JD1] explained (as she had in Versions 1, 2 and 3), that the sexual intercourse was consensual. (26 RT 2224-2226). But as to the anal contact, the story began to shift again.
Recall that in Version 1, [JD1] said she “refused” anal sex and that was the end of it. In Version 2, she said she thought that fleeting anal contact was “accidental,” noting that after she refused, Mr. Masterson had immediately apologized. In Version 3, Mr. Masterson made an intentional effort to insert his penis into [JD1]’s anus, and she told him to stop. Now, in Version 4, [JD1] claimed that Mr. Masterson had penetrated her anally. (8 CT 2284.) And for the very first time, [JD1] now recalled that (1) she had to “fight him” to get Mr. Masterson to stop, (2) this caused her to pull a muscle in her back and (3) the incident had become “so traumatic to me.” (8 CT 2284.) Although in Version 4 [JD1] talked about the pain the anal penetration caused her (the pulled muscle), she said nothing at all about any other pain or bleeding. At the May 2021 preliminary hearing, [JD1] returned to this version of the story, testifying that she had to “fight[] him off . . . and was incredibly upset.” And now the contact was “not consensual.” (5 ART (8/23/24) 1011, 1018.) [“5 ART (8/23/24)” refers to Volume 5 of the 17-volume augmented Reporter’s Transcript filed with the Court on August 23, 2024. References to “ART (5/17/24)” refer to the 25-volume augmented Reporter’s Transcript filed with the Court on May 17, 2024.]
Nothing about this interview in the appellate record addresses (1) how [JD1] got in the jacuzzi, (2) whether she walked or was carried upstairs to the bathroom, (3) whether [JD1] telephoned her father for help as she went up the stairs and/or (4) whether Mr. Masterson pulled out a gun in the bedroom. Nor does anything in the record about this interview address the conflicting accounts (between versions 1 and 2) of where [JD1] was when her drink was made.
But four years later, during the 2021 preliminary hearing, [JD1] offered yet another version. [JD1] admitted telling church officials not only that she was with Mr. Masterson when her drink was poured (in accord with version 1 but in contrast to version 2), but that she herself actually made her own drink. (5 ART (8/23/24) 1098-1099.) She would not repeat that particular version again.
5. Version 5: the 2022 story as told to the first jury.
The first trial began in 2022. With respect to the September 2002 incident, and in contrast to Versions 1, 2, 3 and 4, [JD1] now claimed that the September 2002 sexual intercourse was not consensual, but was rape. (6 ART (5/17/24) 837.) As for the anal contact, [JD1] mirrored Version 3 told in 2017 to Detective Myape that when Mr. Masterson started to penetrate her anus, she pulled away and screamed “no” after which he stopped. (4 ART (5/17/24) 577.) To this version, she added that it was painful but again said nothing about bleeding. (4 ART (5/17/24) 577-579.)
As to the charged April 2003 incident, [JD1]’s Version 5 added two main new twists to the narrative.
The first has to do with how [JD1] got into the jacuzzi. Recall that in Versions 1 and 2, [JD1] said that after getting her drink she “wandered” into the back yard area where Mr. Masterson was in the jacuzzi. (8 CT 2290; 30 RT 2910, 2925.)
Second, [JD1] added substantially to facts she had for the first time added in Version 3. It was in Version 3 that [JD1] said, for the first time, that she telephoned her father as Mr. Masterson carried her upstairs and, when he did not answer, she left him a voice mail. (4 CT 917-918; 1 CTO 193, 195.) Now, [JD1] added that (1) she tried to send her father a text message saying “help” but (2) Luke Watson took her phone away before she could push send. (7 ART (5/17/24) 1053.)
As to two other important facts -- the drink at Mr. Masterson’s home and his use of a gun -- [JD1]’s testimony matched some but obviously not all of her prior versions. Thus, recall that in Version 1, [JD1] said she was with Mr. Masterson in the kitchen when he made her a drink. (8 CT 2290.) In Version 2, she was not with him when he made the drink, but he brought it to her outside. (8 CT 2313-2314.) At the preliminary hearing, [JD1] admitted telling church officials that she was with Mr. Masterson and she poured her own drink. (5 ART (8/3/24) 1098-1099.) [JD1] stuck with Version 2 at the first trial. (6 ART (5/17/24) 902-903.)
As for Mr. Masterson’s use of a gun, the testimony in Version 5 remained in line with her description to Detective Myape in Version 3. (5 ART (5/17/24) 688.) [JD1] testified that she heard a “noise from the door. A man’s voice yelling.” (5 ART (5/17/24) 688.) Mr. Masterson pulled out a gun from inside his bedside table. (5 ART (5/17/24) 688.) He then dropped the gun back into the drawer and when [JD1] reached for it he “slam[med] it really hard” on her hand. (5 ART (5/17/24) 688.)
6. Version 6: the 2023 story as told to the second jury.
At the second trial, [JD1] testified about both the September 2002 and April 2003 incidents. As to the 2002 incident, and in contrast to Versions 1, 2, 3 and 4 (but in accord with Version 5), [JD1] claimed that the September 2002 intercourse was also rape. (26 RT 2191.) After the vaginal rape, Mr. Masterson then penetrated her anally. (24 RT 1928-1931.)
But for the very first time, [JD1] recalled that this anal penetration caused a very sharp stabbing pain which [JD1] now recalled and described as “the sharpest pain I’ve ever experienced.” (24 RT 1929-1930.) For the very first time, [JD1] said that for days she experienced bleeding from her anus, discharge when she went to the bathroom, and burning. (24 RT 1933- 1934.) For the very first time, [JD1] testified “[her anus] was really injured, and [she] was in a lot of pain.” (26 RT 2229-2230.) In her previous statements to (1) Officer Schlegel, (2) Detective Myers, and (3) Detective Myape, [JD1] had never mentioned that her anus was “really injured” or that it was the “sharpest pain she had ever experienced.”
[JD1] then testified about the April 2003 charged rape. As noted, prior to the first trial [JD1] had offered three different versions of how she got a drink that evening: she was with Mr. Masterson in the kitchen when he prepared the drink, he made her the drink and brought it out to her and she poured the drink herself. At the second trial, like the first, [JD1] testified that when Mr. Masterson asked her what she wanted to drink, she said “I don’t know, vodka something” and he returned with a drink for her. (24 RT 1965-1966.)
In Versions 1 and 2, [JD1] walked to the jacuzzi. But in Version 6 (as in Version 5), Mr. Masterson forcibly dragged her from the house into the jacuzzi. (26 RT 2263-2264). When she resisted, he picked her up and carried her to the jacuzzi. (26 RT 2267.)
[JD1] started to feel ill while she was in the jacuzzi. (24 RT 1976- 1977.) In Version 1, [JD1] told police that Mr. Masterson “guided her” up the stairs to get to the bathroom. (8 CT 2290-2291; See 30 RT 2925-2926.) But in Version 6 (as in Versions 2 and 5), [JD1] told jurors that Mr. Masterson forcibly carried her upstairs. (26 RT 2281.) As she was being carried up the stairs, she telephoned her father for help; when he did not answer, she left him a voice mail. (26 RT 2282.)
Upstairs, Mr. Masterson took [JD1] to the bathroom where he helped her to throw up. (25 RT 2012-2013.) [JD1] testified that when she threw up in her hair, Mr. Masterson “drag[ged]” her into the shower. (25 RT 2012- 2014) Mr. Masterson soaped her breasts and body. (25 RT 2015.) And then picked her up and put her in his bed. (25 RT 2017.)
As for the sexual assault itself, [JD1] testified that when she woke up Mr. Masterson was penetrating her vagina with his penis. (25 RT 2018.) [JD1] grabbed a pillow and tried to push him off of her but he pushed it back into her face really hard and she passed out again. (25 RT 2019-2021.) When [JD1] came back into consciousness she grabbed for Mr. Masterson’s neck to push him away. (25 RT 2022.) He then grabbed her neck and she thought “that’s the last face I will see.” (25 RT 2023-2024.)
In Version 6 (and generally consistent with Versions 3 and 5), [JD1] testified that during the sexual assault, someone came to the door and she heard a male voice. (25 RT 2025.) [JD1] told jurors that Mr. Masterson reached into his night stand and pulled out a gun. (25 RT 2027.) Although he did not point the gun directly at her, Mr. Masterson was agitated and told [JD1] to “shut the fuck up;” he then put the gun back into the drawer. (25 RT 2028-2029.) When [JD1] tried to grab the gun which was now back in the drawer, Mr. Masterson slammed the drawer shut on her hand. (25 RT 2029.)
The next morning, [JD1] had “no memory” of anything that had occurred. (25 RT 2035.) Luke Watson was downstairs and put [JD1] in a cab; she went to her house because she was late for her father’s birthday party and she and her family were leaving for Florida that evening. (25 RT 2036-2038, 2041.) Later that day, “flashes” of her memory started to return to her. (25 RT 2049.) About 24 hours after the assault, [JD1] started to bruise. (25 RT 2052-2054.) The bruising continued to get worse showing up on her hips, forearm, hands, inside of thighs, legs, and neck. (25 RT 2055-2058.)
Of course, in Version 1, [JD1] told Detective Schlegel that her parents noticed “the bruises and asked her about them.” (8 CT 2294.) Based on her report, police contacted [JD1]’s father (8 CT 2317.) But [he] undercut [JD1]’s version of events and told police “he had not seen [any] injuries.” (8 CT 2317.) Police asked [him] to have his wife ([JD1]’s mother) call them. (Ibid.) She never called. (Ibid.)
In Version 6, the story changed. Now, [JD1] testified that it was only her mother who noticed the bruising. (25 RT 2052-2054.) [JD1] told her mother that she did not know what the bruising was from. (25 RT 2054.)
7. Summary as to [JD1].
[JD1] was aware of the requirements of section 667.61 needed, under the prosecution’s theory, to hurdle the statute of limitations bar. (8 CT 2275; 9 CT 2413.) She initially told police and prosecutors that the September 2002 sexual intercourse was consensual. By the time of the first trial, it was rape
[JD1] initially told police the 2002 anal contact was accidental, Mr. Masterson immediately apologized and when she refused anal sex, he stopped. There was no report of trauma, pain or injury. By the time of trial, he had forcibly penetrated her anus, it caused the sharpest pain she had ever experienced, she screamed and had to “fight him” to get him to stop and she suffered both pain and anal bleeding for days.
As to the April 2003 charge, [JD1] initially told police (1) she was with Mr. Masterson when he made her a drink, (2) she walked to the jacuzzi where he pulled her in, (3) when she got ill he helped her upstairs, guiding her. She never mentioned his use of a gun during the assault or calling her father. By the time of trial, Mr. Masterson made the drink by himself and brought it to her (allowing for the possibility of him slipping drugs into the drink), he forcibly dragged her from inside the house into the jacuzzi, he forcibly carried her upstairs when she got ill, she was so frightened she telephoned her father for help as she was being carried upstairs and during the sexual assault he brandished a gun.
E. [JD2]’s Evolving Versions.
In October 2003, Mr. Masterson invited [JD2] to his home for a swim. They had sex that night and then talked for hours. As [JD2] would later admit, she hoped Mr. Masterson would ask her for another date. But he did not. More than 13 years later, in January 2017, [JD2] reported to police for the first time that she had been raped.
[JD2] gave a detailed statement to Detective Myape. (29 RT 2695.) As with [JD1], [JD2]’s version of events also changed in critical respects between her report to police and the two trials.
As with [JD1], there were certain undisputed facts. [JD2] was an aspiring actress who knew Mr. Masterson through their common membership in the Church of Scientology. (28 RT 2514-2515.) They met in 1999 or 2000 and were friendly at parties that they both attended, some of which were at Mr. Masterson’s home. (28 RT 2515, 2534.)
At the time, [JD2] had problems with anxiety. (28 RT 2525.) She admitted that she often drank alcohol before social engagements to “take the edge off” and she would “get drunk” which impacted her memory. (28 RT 2527; 29 RT 2651-2652.)
In October 2003, [JD2]’s roommate invited her to go out for drinks with Mr. Masterson and his friend Luke Watson. (28 RT 2523-2524.) Because [JD2] was “nervous” about this date, [JD2] drank beforehand. (28 RT 2525, 2527.) At the end of the night, [JD2] was flattered when Mr. Masterson asked for her phone number. (28 RT 2532.)
Several days later, Mr. Masterson invited [JD2] to come over to his house for a swim. (28 RT 2533-2535.) [JD2] agreed to come over but told him she was not going for a swim. (28 RT 2535-2537.) Although Mr Masterson was “not [her] type,” [JD2] was “flattered” to be invited and “intrigued” by Mr. Masterson. (28 RT 2535-2538.)
Because she was nervous, she had something alcoholic to drink “to take the edge off” before walking over. (28 RT 2538.) Once she arrived, they had a drink, talked and walked out to the jacuzzi area. (28 RT 2542- 2546.) Mr. Masterson told her to “take off your clothes now . . . . You’re getting in the water.” [JD2] was “giggling” and telling him “I’m not going in the pool.” (28 RT 2547.) [JD2] could not recall how she got into the jacuzzi and things started to go “black.” (28 RT 2547.) Mr. Masterson kissed her “intensely” and may have put his finger in her vagina. (28 RT 2549.) After they got out of the jacuzzi, they went upstairs to his bathroom and into the shower. (28 RT 2555-2556.) [JD2] told Mr. Masterson that while kissing and other acts were fine, “we can’t have sex.” (28 RT 2563.)
In the shower, they kissed, Mr. Masterson put his fingers in her vagina, and then quickly put his penis in her vagina. (28 RT 2557.) [JD2] pushed him away and said “what are you doing? No. I told you no.” (28 RT 2557-2558.) Mr. Masterson said “okay” and stopped. (28 RT 2558.) After the shower, they got into bed, where there was “heavy kissing,” and [JD2] told him “we can’t have sex.” (28 RT 2563.)
Mr. Masterson performed oral sex and [JD2] believed she did the same. (28 RT 2564; 29 RT 2691.) According to [JD2], Mr. Masterson then flipped her so that she was on her hands and knees and put his penis in her vagina. (28 RT 2565-2566.) His penis was hitting her cervix and it was painful. (28 RT 2566.) [JD2] told Mr. Masterson that if he was not going to listen to her, he could at least put a condom on. (28 RT 2567.) [JD2] testified that Mr. Masterson did not threaten her, use a weapon or hit her. (28 RT 2577.) Afterward, they talked sitting “facing each other” on the bed for several hours until 5 or 6 a.m. (28 RT 2581, 2584.) [JD2] described it as “almost romantic” and they shared with each other that they were “both passionate people.” (28 RT 2581; 29 RT 2699.) [JD2] then walked home. (28 RT 2584.)
[JD2] was candid. After she went home, [JD2] waited for Mr. Masterson to call her for another date. After four or five days without a call, [JD2] called and said “I thought you were going to call me. . . . I thought you liked me, and I like you.” (28 RT 2585.) She thought that he would fall in love with her. (29 RT 2700.) Instead, his responses were “short” and he said he was busy. (28 RT 2585-2586; 29 RT 2702-2703.)
At some point, [JD2] called again. (28 RT 2587.) This time because she was romantically interested in a man that Mr. Masterson knew and wanted a set up because Mr. Masterson “owe[d]” her. (28 RT 2587.) Mr. Masterson refused. (28 RT 2587.) In 2006 or 2007, [JD2] called yet again, this time because she was working for an art dealer and thought that Mr. Masterson might be interested in purchasing some high end art. (28 RT 2588-2589.) Mr. Masterson once again rebuffed her and said no. (28 RT 2589.) Finally, [JD2] saw Mr. Masterson at a party in 2008 and asked about their mutual friend Ilaria. (28 RT 2589-2590.) Mr. Masterson simply answered that Ilaria was “fine.” (28 RT 2590.) And that was their only contact that night. (28 RT 2590.)
While this part of the story remained consistent, there were critical aspects that evolved over time. [JD2] would speak to her mother Joanne Berger, friends Jordan Ladd, Rachel Smith, Mariah O’Brien, Detective Esther Myape as well as testify at the preliminary hearing and both trials.
1. Version 1: the 2003 story as told to her mother, and friends Jordan Ladd and Rachel Smith.
Sometime after the 2003 encounter with Mr. Masterson, and the telephone call where she expressed her confusion over not hearing from him, [JD2] spoke with her mother. [JD2] explained to her mom that she had had “rough” sex with Mr. Masterson and her relationship with him was not “going well.” (28 RT 2594-2595.) [JD2] did not say that Mr. Masterson had raped her. (28 RT 2595.) Instead, [JD2’s mother] recalled that [JD2] was “unhappy” about how Mr. Masterson had treated her. (30 RT 2893.) [JD2] told her alcohol was involved but never mentioned the possibility of being drugged. (30 RT 2892.)
According to [JD2] herself, she soon told her friends Jordan Ladd and Rachel Smith about having sex with Mr. Masterson. Again, she did not tell either of them that she was raped. (28 RT 2604-2607.) Instead, [JD2] told Ladd that Mr. Masterson came at her like a “jack hammer.” (28 RT 2605.) She told Smith that the sex with Mr. Masterson was “forceful and jarring.” (28 RT 2607.) [JD2] did not tell her mother, Ladd or Smith that she had been afraid of Mr. Masterson nor that there were multiple sex acts after having sex on the bed.
For their parts, Smith and Ladd confirmed that [JD2] told them about sex with Mr. Masterson, but never used the word “rape.” (29 RT 2743, 2771.) Smith sought to explain that [JD2] would not use the word “rape” since that reflected a “victim mentality.” (29 RT 2743-2744.) And Ladd offered that [JD2] “begged [Mr. Masterson] to stop” and she (Ladd) therefore viewed it as rape. (27 RT 2770-2771.)
2. Version 2: the 2011-2013 story as told to Mariah O’Brien.
At some point between 2011 and 2013, [JD2] spoke with her friend Mariah O’Brien about Mr. Masterson. O’Brien had been a member of the Church of Scientology from the 1990s until 2012 and was in the same “friend group” as Mr. Masterson. (30 RT 2846-2847.) [JD2] told O’Brien that she had gone on a “date” with Mr. Masterson. (30 RT 2858.) [JD2] never mentioned drugging. (30 RT 2859.) [JD2] did not mention that she was afraid of Mr. Masterson or that they had engaged in multiple sex acts after having sex on the bed.
3. Version 3: the 2014 story as told to Mariah O’Brien.
In 2014, Ms. O’Brien invited [JD2] to her home for dinner. [JD2] was talking with another friend Jordanna Shapiro. Ms. O’Brien could not hear what they were talking about specifically but [JD2] stood up at the table and accused Mr. Masterson of raping her loud enough for everyone to hear. (30 RT 2850.) Because Ms. O’Brien’s young children were also at the table, she became upset and asked [JD2] to leave. (30 RT 2850-2851.) Ms. O’Brien testified that they had not spoken since. (30 RT 2851.) [In late 2016, [JD3] contacted O’Brien, asking if she knew of any other women claiming Mr. Masterson had assaulted them. (30 RT 2852-2853.) When O’Brien said [JD2] had made such a claim, [JD3] contacted [JD2]. (28 RT 2610-2612, 2614-2615; 30 RT 2852-2853.) It was not until [JD3] asked [JD2] to contact police that [JD2] reported to police in 2017. (28 RT 2615.)]
4. Version 4: the January 2017 story as told to Detective Myape.
As noted above, [JD2] reported a sexual assault to police in January 2017. She spoke with Detective Myape. (29 RT 2695.) [JD2] explained that prior to meeting up with Mr. Masterson that night, she “wanted him to kiss [her]. [She] wanted it to be romantic.” (9 CT 2459.) While the sexual encounter was occurring [JD2] thought to herself “What if this is just dominant sex and he really likes me and I’m just drunk.” (29 RT 2694.) Indeed, [JD2] was clear; she did not fear that Mr. Masterson was going to “hurt [her] or hit [her].” (28 RT 2635-2636.)
With respect to her alcohol consumption that night, [JD2] said that before going to Mr. Masterson’s house she had “a little bit of vodka and maybe one or two glasses of wine.” (29 RT 2668-2669.) She knew she “drank before [she] got to him because [she] was so nervous to go there.” (9 CT 2463.) Once there, she was not sure how much she had to drink. (29 RT 2668-2669.) [JD2] explained she was “drunk.” (29 RT 2696- 2697.) In the January 2017 interview, and for the first time, [JD2] said Mr. Masterson might have drugged her. (29 RT 2719-2720.) Once again, [JD2] did not mention that other sex acts occurred after they had sex on the bed.
5. Version 5: the May 2017 story as told to prosecutor Mueller.
[JD2] spoke with prosecutor Mueller in May 2017. As noted above, [JD2] testified that after she and Mr. Masterson were in the jacuzzi they went upstairs to shower together. [JD2] told Mueller she could not recall whether the shower was his idea or hers. (29 RT 2682-2683.) As for the shower itself, when Mr. Masterson entered her she concluded “he fucked up [and] . . . [h]e should not have done that, but we can manage, and . . . we’ll just kiss and make out . . . .” (7 ART (8/23/24) 1614.)
And that they certainly did, as [JD2] candidly explained to prosecutor Mueller. [JD2] described that once in the bedroom she “was getting into it with him.” (7 ART (8/23/24) 1613.)
[JD2] made no mention of her alcohol consumption before arriving at Mr. Masterson’s home, being afraid of Mr. Masterson or other sex acts which occurred after they had sex on the bed.
6. Version 6: the story as told at the 2021 preliminary hearing.
At the preliminary hearing, [JD2] testified that before coming over she had “maybe a little vodka . . . maybe a little wine.” (7 ART (8/23/24) 1554.) Once at his home, [JD2] had “a glass of red wine” but could not remember if she drank more than one. (7 ART (8/23/24) 1583-1584.) [JD2] testified that after intercourse in the bed, she did not recall any additional sexual contact between them that night. (7 ART (8/23/24) 1571.) [JD2] thought that they would “probably start dating.” (7 ART (8/23/24) 1626- 1627.) In fact, they talked on his bed and then on the terrace for “a couple of hours” about all kinds of “different things” after having sex. (7 ART (8/23/24) 1570-1571.)
Two important areas of her testimony had radically changed however. First, in stark contrast to Version 4 -- where [JD2] told Detective Myape she did not fear that Mr. Masterson was going to “hurt [her] or hit [her]” -- she now testified that she did fear Mr. Masterson would “hit [her] or hurt her” and so she did not physically resist because she was “afraid that it could escalate to violence.” (7 ART (8/23/24) 1620-1621.) Second, in contrast to Version 5 – where she could not recall whose idea it was to shower together – she now recalled Mr. Masterson “ordering [her] to go upstairs to his shower.” (7 ART (8/23/24) 1559.)
7. Version 7: the story as told at the 2023 trial.
With respect to alcohol consumption, [JD2]’s story had evolved. In Versions 1 and 2 she had told her mother, and friends, that alcohol had been involved that evening. And in Version 4, she had told Detective Myape that (1) before heading to Mr. Masterson’s home that evening, she had consumed vodka and two glasses of wine and (2) after arriving she had more to drink, though she did not recall how much. In Version 6, she testified at the preliminary hearing that before going over she had “maybe a little vodka . . . maybe a little wine” and that once there she drank “a glass of red wine” but could not remember if she drank more than one. (7 ART (8/23/24) 1554, 1583-1584.) Now however, [JD2] testified that she only had “two or three . . . sips” of alcohol before arriving at Mr. Masterson’s home. (28 RT 2538-2539.) And once at the house, [JD2] only drank “a few sips . . . [n]ot two sips, not ten.” (28 RT 2544.)
In this version, [JD2]’s expectations for romance also changed dramatically. In Version 4, [JD2] had told Detective Myape that she “wanted him to kiss [her]. [She] wanted it to be romantic.” But [JD2] now testified that rather than be romantic, she instead planned to “have a glass of wine and talk and . . . [go] home, and that’s it.” (28 RT 2536-2537.)
As for the shower, in her interview with prosecutor Mueller (Version 5), [JD2] could not remember who suggested they shower together. (29 RT 2682-2683.) In that version, [JD2] told Mr. Mueller that when Mr. Masterson entered her in the shower, she concluded “he fucked up [and] . . . [h]e should not have done that, but we can manage, and . . . we’ll just kiss and make out . . . .” (7 ART (8/23/24) 1614.)
But in Version 7, [JD2] repeated her preliminary hearing testimony (Version 6), recalling that Mr. Masterson “ordered [her] to get into the shower.” (29 RT 2682.) In stark contrast to Version 4 -- where [JD2] told Detective Myape she did not fear that Mr. Masterson was going to “hurt [her] or hit [her]” -- she now testified in line with her preliminary hearing testimony in Version 6 that “I was afraid it could become physically violent if I resisted too much.” (28 RT 2577.) Now she “wasn’t pushing him” to stop because she “didn’t want him to become [violent,] to hit [her] or something.” (28 RT 2558.)
Finally, even the number of sex acts had now changed. In Version 6 [JD2] said that after sex on the bed, she did not recall any additional sexual contact between them that night. (7 ART (8/23/24) 1571.) But in Version 7, [JD2] offered a very different recollection:
So I know more sexual acts happened, though I don’t like to categorize it as sex because all of it was rape. And more things happened after that that were also rape.
(28 RT 2579.)
8. Summary as to [JD2].
The prosecutor himself explained to [JD2] that there were “statute of limitations issues” which would depend on how “certain acts were done.” (8 CT 2384.) In the days after the 2003 incident, [JD2] “thought [Mr. Masterson was] going to call [her]” for another date. As she herself put it, “I thought [he] liked me, and I like [him].” (28 RT 2585.)
Soon afterwards, [JD2] told her mother and friends Jordan Ladd and Rachel Smith that she had “rough sex” with Mr. Masterson but not that Mr. Masterson raped her. She did not tell them that she was in anyway fearful of Mr. Masterson or that there were numerous additional sex acts in addition to intercourse. Sometime between 2011 and 2013, she told her friend Mariah O’Brien the same version of events. In summary, prior to trial, [JD2] told police and/or friends and family that (1) alcohol had been involved, (2) she drank vodka and two glasses of wine before going over to Ms. Masterson’s home and had at least one additional glass of wine once there, (3) she wanted to be “romantic” with Mr. Masterson, (4) during the encounter she did not fear Mr. Masterson would “hurt [her] or hit [her]” and (5) after sex on the bed she did not recall any additional sexual contact between them that night. But come 2014 and at a dinner party with Ms. O’Brien, she now for the first time said that Mr. Masterson had raped her. Still there was no mention that she was of fear or additional acts after intercourse.
By the time of trial, [JD2] had “two or three . . . sips” of alcohol before arriving and once at the house only drank “a few sips . . . [n]ot two sips, not ten.” Now her plan when she went to Mr. Masterson’s house was not to be romantic but to “have a glass of wine and talk and . . . [go] home, and that’s it.” Now, she was “afraid it could become physically violent if [she] resisted too much.” Finally, [JD2] testified that after having sex on the bed, Mr. Masterson committed more sex acts that she considered to be rape.
F. The Remaining Evidence.
1. Evidence Code section 1108 evidence.
Canadian citizen Kathleen J. testified pursuant to Evidence Code 1108. Her testimony is discussed in greater detail in Argument V, infra. Suffice it to say here that she testified that in 2000, she was working as an assistant prop manager on a film being shot in Toronto, Canada. (31 RT 3091-3092.) At a dinner prior to the wrap party, she had two glasses of wine. (31 RT 3094.) Later she went to a party where a man offered her a vodka drink, and sat down with her on the couch to talk. (31 RT 3098- 3100.) Kathleen started to feel nauseous and light headed. (31 RT 3101- 3102.) She said she needed a bathroom, and the man offered to show her where it was. (31 RT 3102.) Kathleen recalled walking into a bedroom with the man who then raped her. (31 RT 3102-3104.) She blacked out and her next memory was walking down the hotel hall carrying her shoes. (31 RT 3104.) She did not tell anyone about the rape. (31 RT 3106-3107.)
Five months later, Kathleen watched the movie Dracula 2000 with her husband. When she saw Mr. Masterson on screen, she identified him as her assailant. (31 RT 3109-3110.) Kathleen broke down crying and told her husband what had happened. (31 RT 3110-3111.) Having just identified the man who brutally raped her, and just told her husband about the rape, Kathleen J. and her husband continued to watch the movie, later telling police “of course we watched it.” (31 RT 3130-3131.) She did not, however, call police to report the assault until nearly 21 years later when she saw the allegations against Mr. Masterson. (31 RT 3113-3116.)
2. Expert testimony about date rape drugs and inconsistent testimony.
Police criminalist Jennifer Ferencz testified that the date rape drug Gamma-hyroxbutyrate or “GHB” was odorless and colorless. (30 RT 2830.) When added to a drink, it causes euphoria and a drunk feeling. (30 RT 2826.) A higher dose causes nausea, vomiting, lack of muscle control, drowsiness, dizziness, and sedation. (30 RT 2829.) The effects of GHB occur within about 10-20 minutes. (30 RT 2830-2831.) Ferencz admitted that alcohol can also cause nausea, vomiting and drowsiness. (30 RT 2843.) She also admitted this was the first case in which she testified as an expert where there was no physical evidence and the only evidence of impairment was self-reported by a witness claiming impairment. (30 RT 2842.) In addition to the expert testimony on date rape drugs, the prosecution responded to the evolving stories of [JD1] and [JD2], at least in part, by offering testimony from rape trauma expert Barbara Ziv, who explained why rape victims provide inconsistent testimony. (23 RT 1802- 1803, 1806.)
3. Other evidence.
Mr. Masterson, [JD1] and [JD2] were all members of the Church of Scientology (“COS”). At both trials the prosecution offered evidence about COS tenets. The trial court issued very different rulings at the two trials, and allowed substantially more COS evidence at the second trial.
Because the trial court’s rulings are the subject of Argument VI, and to avoid duplication, the rulings and evidence relating to the COS evidence will be discussed in the context of Argument VI. Suffice it to say here that while some COS evidence was allowed at the first trial, jurors were instructed that this evidence could only be considered to assess the credibility of the complaining witnesses. (19 ART (5/17/24) 2753.) At the second trial, not only was substantially more COS evidence permitted -- including testimony from a former Scientologist testifying as an expert -- but the credibility limitation on how the jury could consider that evidence was lifted, and jurors were permitted to consider the COS evidence for the truth of the matter. (33 RT 3254-3256.) In the court’s view, at the second trial this evidence was now “relevant to determining whether defendant committed the alleged crimes.” (11 CT 3175.)
Jurors also learned that Detective Myape specifically advised each of the complaining witnesses not to communicate with one another. (31 RT 2995-2999.) Myape explained that the purpose of this warning was to make sure the witnesses were “not contaminating [the case by] talking with each other.” (31 RT 2998.) Myape recalled that [JD2] responded to this advice by saying she could “pretty much talk to anybody she wanted to.” (31 RT 2995.) In accord with [JD2]’s response, jurors learned that all three complaining communicated with each other for years both digitally and in telephone conversations. (22 RT 1596 and 23 RT 1733-1734 [JD3]; 25 RT 2157-2160 [JD1]; 28 RT 2623-2625; 29 RT 2708-2709 [JD2].)
G. Jury Deliberations.
There was no dispute that the critical question for the jury involved determining whether [JD1] and [JD2] were credible. The state’s position, of course, was the witnesses were credible. The defense position, based in part on the shifting nature of the stories they presented, was that they should not be believed. At both the first and second trials, the jury wrestled with this question.
As noted above, the first jury deliberated for six days, before hanging 10-2 for acquittal as to [JD1], 8-4 for acquittal as to [JD2] and 7-5 for acquittal as to [JD3] (11 CT 3048-3049, 3054; 8 RT 504.) The second jury also struggled, deliberating all day on May 17 and May 18, returning with one question for the court. (11 CT 3288-3289.) Jurors deliberated all day on May 20, returning with two more questions. (11 CT 3290.) One question jurors asked that day went specifically to the defense theory that the witnesses’ communication with each other over many years had contaminated their recollection; jurors asked to see “all social media correspondence, emails, and texts among the three [complaining] witnesses . . . .” (36 RT 3442.) Because the trial court had denied defense counsel’s specific request to serve subpoenas on the complaining witnesses for this exact information (11 RT 578-579), all the court could do in answering this question from the jury was to advise jurors they would not be receiving this evidence. (36 RT 3442.)
Jurors deliberated all day on May 22, half a day on May 23, and a full day on May 25, returning with a fourth question for the court. (11 CT 3292- 3294.) Jurors deliberated all day on May 26. (11 CT 3296.) On May 31, jurors finally reached verdicts, hanging again as to [JD3] and convicting as to [JD1] and [JD2]. (11 CT 3298-3299; 39 RT 3485-3489.)
ARGUMENT
ERRORS REQUIRING REVERSAL OF BOTH COUNTS
I. PROSECUTION IN THIS CASE WAS BARRED BY THE TENYEAR STATUTE OF LIMITATIONS APPLICABLE TO THE CHARGED OFFENSES.
A. Introduction.
The June 16, 2020 felony complaint filed against Mr. Masterson charged him with three separate counts of forcible rape in violation of section 261, subdivision (a)(2), alleged to have occurred between 2001 and 2003. (1 CT 76-80.) The subsequently filed information accurately noted that each offense subjected Mr. Masterson to a potential prison term of 3, 6 or 8 years in state prison. (2 CT 344.)
Typically, the particular statute of limitation applicable to a criminal offense depends on the punishment prescribed for that offense -- the general rule is that the more serious the punishment, the longer the statute of limitations. Because many California offenses prescribe lower, middle and upper terms for a conviction, Penal Code section 805 -- enacted in 1984 -- provides that “for purposes of determining the applicable” statute of limitations “[a]n offense is deemed punishable by the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed.” (Penal Code section 805, subdivision (a).)
At the time of the offenses alleged in this case (2001 to 2003), Penal Code section 800 provided that when an “offense [is] punishable by imprisonment . . . for eight years or more” the statute of limitations is “six years after commission of the offense.” Under this provision, because the maximum sentence for forcible rape was 8 years, the applicable statute of limitations for the charged offenses was six years.
But at the time of the charged offenses, a person convicted of violating section 261 was required to register as a sex offender pursuant to then-current Penal Code section 290, subdivision (a). As such, at the time of the charged offenses, the statute of limitations for these crimes was actually 10 years. (See Pen. Code, former section 803, now codified at section 801.1, subdivision (b) [providing a 10-year statute of limitations for offenses which require registration].) Because the felony complaint here was not filed until 2020, and the charged crimes occurred between 2001 and 2003, prosecution was barred by this 10-year statute of limitations.
At trial, the state proposed a different analysis, relying on the interplay between section 805 and Penal Code section 799. (1 CT 31-36.) Section 799 provides in relevant part that there is no statute of limitations for “an offense punishable by . . . imprisonment in the state prison for life . . . .” (1 CT 34.) And as noted above, the first sentence of section 805, subdivision (a) provides that in determining the applicable statute of limitation “[a]n offense is deemed punishable by the maximum punishment prescribed by statute for the offense . . . .” Putting two and two together, the state argued that (1) although it charged Mr. Masterson with forcible rape (punishable by a maximum term of 8 years in prison), it had added an allegation under section 667.61, subdivision (e)(4) that multiple victims were involved, (2) in contrast to the 8-year maximum term for a section 261 violation, the section 667.61 multiple victims allegation provided an alternative penalty -- 15 years-to-life -- for a conviction if multiple victims were involved and (3) because Mr. Masterson was therefore subject to a life term, pursuant to section 799 there was no statute of limitations. (1 CT 35- 36, 58-59.)
On its face, of course, this was a perfectly logical argument. The problem arises from the second sentence of section 805, subdivision (a), where the Legislature placed an important limitation on the principle that “[a]n offense is deemed punishable by the maximum punishment prescribed by statute for the offense.” That limitation is clear: in determining the maximum punishment, “[a]ny enhancement of punishment prescribed by statute shall be disregarded.”
At trial, the state’s position was this. In light of section 805, the state conceded that “sentence enhancements and prior convictions are generally disregarded in determining the maximum possible punishment for statute of limitations purposes.” (1 CT 36.) In the state’s view, however, the phrase “any enhancement of punishment prescribed by statute” did not include the alternate life-term penalty provided in section 667.61 because “unlike an enhancement, which provides for an additional term of imprisonment, an alternative sentencing scheme sets forth an alternate penalty for the underlying felony itself.” (1 CT 35-36.) Thus, the section 667.61 “life term does not . . . constitute a sentence enhancement because it is not imposed in addition to the sentence for the underlying crime . . . rather, it is an alternate penalty for that offense.” (1 CT 36.) And because “section 667.61 is an alternate penalty scheme that, when charged, defines the length of imprisonment . . . . the unlimited time frame for prosecution set out in Penal Code section 799 . . . applies.” (1 CT 36.) The trial court agreed, rejecting Mr. Masterson’s argument that prosecution was time barred. (1 CT 146- 152.)
So the question at the heart of the statute of limitations issue in this case is simple: what did the Legislature intend in section 805 when it used the phrase “any enhancement of punishment prescribed by statute shall be disregarded”? Plainly the Legislature intended to exclude something from the maximum punishment calculus required under section 805. But by using the phrase “any enhancement of punishment” did the 1984 Legislature intend that only some enhancements be disregarded -- traditional enhancements where a prison term is added on to a base term? Or did the Legislature also intend to exclude enhancements that come in the form of alternative penalties provided in lieu of a base term?
Mr. Masterson concedes that if the Legislature intended that only traditional enhancements be disregarded in determining the maximum punishment for an offense, then the state’s statute of limitations argument is entirely correct, and there was no statute of limitations bar to prosecution here. But by a parity of reasoning, if the Legislature intended that the enhanced punishment provided in alternate penalty schemes also be disregarded, then prosecution was barred in this case. As discussed below, the plain language of the exclusion -- “any enhancement of punishment” -- is open-ended and all encompassing. The state’s argument that the phrase “any enhancement . . . shall be disregarded” should instead be interpreted to mean that only some enhancements shall be disregarded is untenable in light of section 805’s language, the Law Revision Commission’s Comments to that section setting forth examples of the types of enhancements covered by the exclusion, the location of the statute and -- most importantly -- by basic canons of statutory construction. Reversal is required.
B. The Legislature’s 1984 Overhaul Of California’s Statute Of Limitations Provisions And Enactment Of Sections 799 And 805.
In 1981, the California Law Revision Commission (“Commission”) was directed to make a study of the statutes of limitation applicable to felonies and to submit to the Legislature recommendations for legislative changes. (See Stats. 1981, Chapter 909, Sec. 3.) At the time, California’s statute of limitations scheme did not (as it does now) largely tie the limitation period applicable to a criminal offense to the punishment prescribed for that offense. Instead, California law set forth limitations periods offense by offense. (See Former Penal Code sections 799, 800, subdivisions (a)-(c).)
As the Commission noted, prior to 1984, California’s “statute of limitations for felonies has been subject to piecemeal amendment, with no comprehensive examination of the underlying rationale for the period of limitation, nor its continued suitability as applied to specific crimes or categories of crimes.” (17 Reports, Recommendations, And Studies, Recommendation Relating to Statutes of Limitation for Felonies (1984) at p. 307 (“1984 Commission Report”).) The then-current scheme was “complex and filled with inconsistencies;” “the result of fragmentary, ad hoc amendment.” (Id. at pp. 307, 308.) Because this offense-by-offense scheme did not make the limitation period depend on the maximum sentence which could be imposed for any offense, there was no need for the Legislature to address the role of enhancements in determining the appropriate limitations period. Simply put, enhancements had no role at all in the determination of what statute of limitation to apply to an offense.
In January 1984, the Commission submitted recommendations to the Legislature intended to revise the law governing statutes of limitation “on a systematic and comprehensive basis.” (Id. at p. 308.) Current Penal Code sections 799 through 805 were all part of these recommendations. These changes reflect the Legislature’s decision to switch from a “fragmentary, ad hoc” scheme with no underlying rationale to one which assigned limitations periods based on the seriousness of that crime as measured by the statutory punishment authorized for the crime itself. As recommended by the Commission, (1) section 799 provided there would be no statute of limitation for offenses punishable by death, life without parole or life and (2) section 805 provided that an offense was “deemed punishable by the maximum punishment prescribed by statute for the offense.” (Id. at p. 318, 323.)
In contrast to the pre-1984 “offense-by-offense” approach to statutes of limitation, the new focus on the “maximum punishment prescribed” as the touchstone in determining the applicable statute of limitations meant that for the first time, the Legislature would have to address the impact of potential punishment enhancements on the statute of limitations. The Legislature did so in section 805. As noted above, prior to the 1984 legislation, enhancements had no role in assessing the limitations period applicable to any offense. In the 1984 legislation the Legislature continued this approach, providing that “[a]ny enhancement of punishment prescribed by statute shall be disregarded in determining the maximum punishment prescribed by statute of an offense.” (Id. at p. 323.) The Commission included a comment to section 805, giving examples of the types of enhancements to be disregarded in assessing the maximum term of punishment, providing that “[t]he punishment for an offense is determined without regard to enhancements over the base term for the purpose of determining the relevant statute of limitations. See, e.g., §§ 666-668.” [The 1984 Legislature enacted both provisions (sections 799 and 805) into law. Section 805 was enacted verbatim, and has not been amended since 1984. And although section 799 has been amended since 1984, section 799 still provides there is no statute of limitations for offenses subject to a life term.]
C. The Plain Language Of Section 805 Requiring “Any Enhancement Of Punishment” To Be Disregarded In Calculating Statutes Of Limitation Precludes Use Of The Section 667.61 Multiple-Victims Life Term
In Determining The Statute Of Limitations In This Case. In determining the intent behind any particular statute, a court looks first to the words of the statute. (DuBois v. Workers' Comp. Appeals Bd. (1993) 5 Cal.4th 382, 387.) Here, section 805 provides that “[a]ny enhancement of punishment prescribed by statute shall be disregarded in determining the maximum punishment prescribed by statute of an offense.” (Emphasis added.)
The term “any” when used in a statute has a long history in California. As our Supreme Court has recognized, “[f]rom the earliest days of statehood we have interpreted ‘any’ to be broad, general and all embracing.” (California State Auto. Assn. Inter-Ins. Bureau v. Warwick (1976) 17 Cal.3d 190, 195. Accord Davidson v. Dallas (1857) 8 Cal. 227, 239.) “The term ‘any’ (particularly in a statute) means ‘all’ or ‘every.’” (Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d 26, 38.) In light of this longstanding definition of the term “any,” there are three fundamental principles of statutory construction which compel a conclusion that the allinclusive term “any enhancement” in section 805 means just what it says.
First, the Legislature is presumed to have been aware of existing case law when it enacted section 805. (People v. Harrison (1989) 48 Cal.3d 321, 329; People v. Hernandez (1988) 46 Cal.3d 194, 201.) Thus, the Legislature is presumed to have been aware of the “broad, general and all embracing” judicial interpretations of the word “any.”
Second, “where the Legislature uses terms already judicially construed, the presumption is almost irresistible that it used them in the precise and technical sense which had been placed upon them by the courts.” (People v. Hurtado (2002) 28 Cal.4th 1179, 1188. Accord Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050; People v. Lawrence (2000) 24 Cal.4th 219, 231; People v. Tufunga (1999) 21 Cal.4th 935, 947.) Thus, by using the term “any enhancement” to describe the prison terms that “shall be disregarded in determining the maximum punishment,” the presumption “is almost irresistible” that the Legislature used this word “in the precise and technical sense which had been placed upon [it] by the courts.” In other words, the Legislature intended it to mean that “all or every” enhancement[s] should be disregarded. (Droeger, supra, 54 Cal.3d at p. 38.)
Third, courts must interpret statutes to avoid “interpretations that render any language surplusage.” (Brennon B. v. Superior Court (2022) 13 Cal.5th 662, 691. Accord Los Angeles Unified School Dist. v. Superior Court (2023) 14 Cal.5th 758, 781.) More specifically, and precisely because the Legislature is presumed to use words in the same way they have been previously interpreted, when the Legislature uses the word “any” in a statute, a construction of the statute to render that word surplusage is to be avoided. (See, e.g., Wilson v. City of Laguna Beach (1992) 6 Cal.App.4th 543, 556; Abatti v. Eldridge (1980) 103 Cal.App.3d 484, 487.)
If the Legislature had said “enhancements of punishment shall be disregarded unless they impose a life term” or “enhancements of punishment shall be disregarded unless they are alternative sentencing schemes,” section 667.61’s multiple-victims life term could properly be considered in determining the statute of limitations. But the Legislature did not say this. Instead, the Legislature used the broad, all-encompassing term “any enhancement of punishment prescribed by statute.” (Emphasis added.) On its face, this broad term includes enhancements in the form of alternate penalty provisions. As such, the multiple-victims alternative penalty life term should have been disregarded in determining the statute of limitations.
D. The Law Revision Commission Comments To Section 805, The Location Of The Multiple-Victims Alternative Penalty Life Term And The Statutory Construction Canon That Absurd Results Should Be Avoided All Confirm The Legislature’s Intent That Alternative Penalty Provisions Be Disregarded In The Statute Of Limitations Calculus.
But separate and apart from the language of the statute, there is additional evidence establishing the Legislature’s intent that alternate penalty provisions were to be disregarded in the statute of limitations calculus. First, section 805 was accompanied by a Law Revision Commission Comment citing to Penal Code sections 666-668 as examples of enhancements to be disregarded in the limitation calculus. Significantly, at the time of the 1984 legislation, that list explicitly includes numerous alternate penalty provisions. Plainly the Legislature did not intend to exclude such provisions from the reach of section 805. Second, the Legislature elected to place section 667.61 squarely within the range of enhancement statutes identified as enhancements to be disregarded in the limitations calculus. Under accepted canons of construction, this evidence confirms the Legislature’s intent that alternate penalty provisions are to be disregarded in the statute of limitations calculus. Third, an interpretation of section 805 that permits consideration of alternative penalty provisions in the statute of limitations calculus would result in applying the same limitations period to certain misdemeanor and wobbler offenses that is applied to first degree murder and treason against the state.
1. The Law Revision Commission comment to section 805 explicitly cites alternative penalty provisions as examples of enhancements to be disregarded in calculating the statute of limitations.
As noted above, the Law Revision Commission included a comment to section 805 to help explain the statutory provision at issue here that “any enhancement of punishment prescribed by statute shall be disregarded in determining the maximum punishment prescribed by statute for an offense.” That comment gave specific examples of the types of enhancements which “shall be disregarded:”
The punishment for an offense is determined without regard to enhancements over the base term for the purpose of determining the relevant statute of limitations. See, e.g., §§ 666-668.
As the Supreme Court, and various divisions of this Court have recognized, where (as here) the Legislature enacts a measure exactly as proposed by the Law Revision Commission, the Commission’s explanatory comments “are persuasive evidence of the Legislature’s intent.” (People v. Martinez (2000) 22 Cal.4th 106, 129. Accord Zengen, Inc. v. Comerica Bank (2007) 41 Cal.4th 239, 252; Giammarrusco v. Simon (2009) 171 Cal.App.4th 1586, 1612; Bosworth v. Whitmore (2005) 135 Cal.App.4th 536, 546; Guthman v. Moss (1984) 150 Cal.App.3d 501, 508.) In light of the Commission’s specific citation to sections “666-668” there should be no dispute that the 1984 Legislature deemed these sections as examples of the type of “enhancement of punishment prescribed by statute” which were to be disregarded in the statute of limitation calculus. (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.) [Moreover, use of the weight signal “See, e.g.” before the reference to sections 666-668 makes clear that these sections were cited as examples only, not as an exclusive list. “E.g., is the abbreviation for the Latin phrase exempli gratia, meaning ‘for the sake of example. . . . In formal legal writing, e.g. is a signal indicating that the following source represents one supporting example out of a number that could be given.’” (https://www. law.cornell.edu/wex/e.g., last accessed 9/6/24. See also Cassel v. Superior Court (2011) 51 Cal.4th 113, 131 [use of the weight signal “e.g.” preceding a list of examples reflects a legislative intent to provide a list that “by its terms, [is] not all-inclusive.”].]
At the time section 805 was enacted, the sections explicitly referenced in the Commission’s comment -- sections 666 through 668 -- contained two different types of enhancement statutes. Some, like section 667, subdivision (a), look very much like what we now recognize as a traditional enhancement, providing a term of years to be added to a base term.
But others, like section 666, look very much like what we now recognize as an alternate penalty provision; they do not add a term of years onto a base term, but instead provide an alternate penalty.12 Indeed, the California Supreme Court has itself recognized that section 666 is an alternative penalty provision. (People v. Murphy (2001) 25 Cal.4th 136, 155. Accord People v. Bouzas (1991) 53 Cal.3d 467, 479 [recognizing that section 666 sets forth an alternate penalty scheme constituting a “sentence-enhancing statute, not a substantive ‘offense’ statute.”].) [Nor was section 666 the only alternate penalty provision in the referenced “section 666-668” range. At the time section 805 was enacted, section 667.51, subdivision (c) provided that “[a] violation of Section 288 by a person who has served two or more prior prison terms . . . is punishable . . . by imprisonment in the state prison for life . . . .” And section 667.7 provided that “[a]ny person convicted of a felony in which such person inflicted great bodily injury . . . who has served two or more prior prison terms . . . shall be punished by imprisonment in the state prison for life . . . .” (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 527 [recognizing that section 667.51 is an alternate penalty provision]; People v. DeSimone (1995) 62 Cal.App.4th 693, 697 [same for section 667.7].)]
In other words, section 805 provided that in determining the applicable statute of limitations “[a]ny enhancement of punishment prescribed by statute shall be disregarded.” Sections “666-668” were specifically referenced as examples of the type of statutes which would be disregarded under this provision. As discussed in Argument I-C above, the Legislature is presumed to be aware of existing case law when it enacts a statute; the Legislature is also presumed to be aware of existing statutes. (People v. Yartz (2005) 37 Cal.4th 529, 538; People v. Harrison (1989) 48 Cal.3d 321, 329.) Thus, as the explicit reference to sections “666-668” shows, the Legislature intended the phrase “[a]ny enhancement of punishment prescribed by statute” to apply not only to traditional enhancements (like sections 667 and 667.8, involving a term of years added to a base term) but to alternate penalty provisions as well (like sections 666, 667.51 and 667.8, involving provision of an alternate penalty entirely). And as the state has never disputed, if the section 667.61 life term is disregarded, prosecution here was barred by the statute of limitations.
The 1984 Legislature’s understanding that alternative penalty provisions were a type of “enhancement of punishment” was certainly not unusual for the time. As the Supreme Court concluded in People v. Brookfield (2009) 47 Cal.4th 583, prior to 1997 the term “enhancement” was not a term of art and included terms imposed pursuant to alternate penalty provisions.
In that case, defendant was convicted of shooting at an inhabited dwelling in violation of section 246. Jurors also found that (1) a codefendant used a gun and (2) the crime was gang related within section 186.22, subdivision (b)(4). Section 186.22, subdivision (b)(4) provided a life term alternate penalty provision for section 246 violations committed to benefit a gang. At sentencing, the trial court imposed both (1) the alternate penalty life term for the section 186.22, subdivision (b)(4) finding and (2) a 10-year term for the co-defendant’s gun use as provided in section 12022.53, subdivision (e)(1).
At the time of trial, section 12022.53, subdivision (e)(2) precluded imposition of an “enhancement” under section 186.22 in addition to an enhancement under section 12022.53. On appeal, defendant relied on subdivision (e)(2), contending that imposition of the two enhancements -- the section 186.22 alternate penalty life term and the section 12022.53 10- year gun use term -- were therefore improper and the 10-year term had to be stricken. The state made the exact same argument in Brookfield that the state made at trial here, arguing that the term “enhancement” as used in section 12022.53(e)(2) did not include the alternate penalty provision in section 186.22. (47 Cal.4th at pp. 591-592.) As such, the state argued that imposing both a section 186.22 life term and a section 12022.53 20-year term did not constitute the improper imposition of two “enhancements.” For his part, the defendant in Brookfield made the same argument Mr. Masterson is making here -- that the Legislature’s use of the term “enhancement” covered both traditional enhancements and alternate penalty provisions. (Id. at p. 592.)
The Supreme 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.)
Brookfield is relevant to the Legislative intent inquiry here as well. The Legislature enacted section 805 a full 13 years before the statute at issue in Brookfield. As such, there is even less reason to believe that in section 805 the Legislature intended to draw a distinction between traditional enhancements and alternate penalty provisions. Instead, in accord with the actual language of section 805 -- and the specific reference to sections 666- 668 -- the Legislature intended that alternate penalty provisions too should be disregarded in the limitations calculus.
2. The Legislature’s decision to place section 667.61 within the statutory range of sections 666-668 cited by the Law Revision Commission reflects an intent that the section 667.61 life term be disregarded in calculating the limitations period.
The Law Revision Commission comment cites Penal Code sections 666-668 as examples of enhancements to be disregarded in determining the statute of limitations. The 1994 Legislature placed section 667.61 squarely in the range of these statutes. Yet again, basic principles of statutory construction confirm that the decision to place section 667.61 where it was ultimately placed is relevant to assessing the Legislature’s intent.
In this regard, the United States Supreme Court has frequently observed that in assessing legislative intent, reviewing courts should consider where the Legislature has elected to place a particular statute. (See, e.g., Kansas v. Hendricks (1997) 521 U.S. 346, 361; Adams Fruit Co. v. Barrett (1990) 494 U.S. 638, 644-645.) The California Supreme Court has long applied this same principle, looking to where the Legislature has elected to place a statute in determining the Legislature’s intent. (See, e.g., College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 717 [in assessing Legislature’s intent in enacting Code of Civil Procedure section 425.13(a), Supreme Court considers Legislature’s decision to place the section “near other statutes long used by courts to screen the legal sufficiency and triability of claims before trial.”]; Newman v. Sonoma County (1961) 56 Cal.2d 625, 627 [Legislature’s decision to place venue provision in Civil Code rather than Government Code reflects intent that venue requirement was not jurisdictional].)
It is not surprising, then, that the intermediate appellate courts have taken the same approach. Thus, this Court has itself recognized that where the Legislature elects to place a statute is a “strong indicator of the legislature’s intent.” (Roman Catholic Bishop of Oakland v. Superior Court (2005) 128 Cal.App.4th 1155, 1169.) As another appellate court has observed, in determining legislative intent “[w]e begin with the most obvious clue: the placement [of the statue].” (People v. Silverbrand (1990) 220 Cal.App.3d 1621, 1626.)
In 1994, when the Legislature enacted the multiple-victims life term, it elected to place that provision in Penal Code section 667.61 -- squarely within the range of statutes (sections 666-668) explicitly intended to be disregarded in the limitations calculus. The Legislature’s decision to place this statute in the middle of the section “666-668” range is a “strong indicator of the legislature’s intent” that the alternate penalty provision set forth in section 667.61 was also to be disregarded in any statute of limitation calculus.
3. An interpretation of section 805 permitting consideration of alternate penalty provisions in the statute of limitations calculus would lead to results the Legislature could not have intended.
It is a fundamental canon of statutory construction that statutes should not be interpreted to result in absurd consequences the Legislature would not have intended. (Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 290; Fariba v. Dealer Services Corp. (2009) 178 Cal.App.4th 156, 169.) Here, in section 805 the Legislature provided that in determining the maximum punishment for an offense “any enhancement of punishment prescribed by statute should be disregarded.” The trial court held this exclusion does not apply to alternative penalty provisions like the life term set forth in section 667.61. As discussed below, however, if section 805’s exclusion does not apply to alternative penalty provisions, then section 667.61 is certainly not the only life-term alternative penalty enhancement which would have to be considered in determining the maximum punishment for purposes of assessing a limitations period. And this would lead to absurd consequences the Legislature could and would never have intended.
As noted above, under the 1984 scheme adopted by the Legislature, the more serious the crime, the longer the statute of limitation applicable to that crime. Thus, the Legislature provided that the most serious offenses (punishable by death, life or life without parole) would have no statute of limitation, while the least serious offenses (misdemeanors punishable by a year in county jail) would have a one-year statute of limitation. (Compare Section 799 [providing there was no statute of limitation for offenses punishable by death or life terms] with Section 802 [providing one-year statute for misdemeanors punishable by one year in county jail].) The remaining felonies considered the most serious (punishable by an eight-year prison term or more) had a six-year limitations period, while other felonies considered less serious (with maximum punishments less than eight years) had a three-year limitation period. (Compare Section 800 with Section 801.) And recognizing the increasing number of enhancements being enacted into the Penal Code, the Legislature went on to add in section 805 that in assessing the maximum punishment for purposes of determining the limitations period, “any enhancement of punishment prescribed by statute should be disregarded.”
This system certainly makes sense. It correlates seriousness of the crime with an applicable limitations period. But if section 805’s exclusion does not apply to alternate penalty provisions, this means that a number of alternate penalty provisions under California law in addition to section 667.61 would now be relevant to assessing the applicable limitations period. (See, e.g., Penal Code section 186.22, subdivision (b) [authorizing an alternative penalty for certain crimes committed to benefit a gang]; Penal Code section 12022.53, subdivision (d) [authorizing an alternative penalty for certain crimes committed with use of a gun resulting in great bodily injury].) In fact, both of these provisions authorize a life term which, under the trial court’s interpretation of section 805, would be properly considered in determining both the maximum punishment for a charged offense and the limitations period applicable to that charged offense. In turn, this would result in applying the same limitation period intended for the most serious of crimes (murder or treason) to far less serious crimes, in some cases, misdemeanors or wobblers. Under such an interpretation:
— There would be no statute of limitations for the misdemeanor of dissuading a witness in violation of section 136.1 so long as this misdemeanor was committed to benefit a gang and therefore punishable by a life term. (See Section 186.22, subdivision (b)(4)(c).)
— There would be no statute of limitations for extortion in violation of section 519, again so long as the offense was committed to benefit a gang and therefore punishable by a life term. (See Section 186.22, subdivision (b)(4)(c).)
— There would be no statute of limitations for the wobblers of firing a gun from a car in violation of Penal Code section 26100, subdivision (d), or firing at an inhabited dwelling in violation of section 246, so long as great bodily injury happens to ensue and, at sentencing, the court elects to treat the wobbler as a felony. (See Section 12022.53, subdivision (d); People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 980 [determination of whether wobbler constitutes a felony or a misdemeanor made at sentencing].)
Mr. Masterson is not making light of these crimes. But whatever else may be said about these particular crimes, the Legislature could not have intended that for purposes of determining the statute of limitations, these offenses should be treated the same as first degree premeditated murder. The Legislature could not have intended that the statute of limitations for misdemeanor dissuading a witness, or extortion (even if done to benefit a gang) should be the same as premeditated and deliberate murder. As such, this is an interpretation of section 805 which should be avoided; in determining the applicable statute of limitations here, the alternative penalty provision set forth in section 667.61 should have been disregarded.
E. Summary
In section 805, the Legislature used the broad phrase “any enhancement of punishment prescribed by statute” to describe the enhancements which were to be disregarded in determining the statute of limitations for any offense. (Emphasis added.) For over 150 years this phrase has been recognized “to be broad, general and all embracing.” Use of that phrase in section 805 reflects the Legislature’s intent that all enhancements be disregarded in determining the proper statute of limitations for an offense, not just some of them. Indeed, interpreting this phrase to exclude alternate penalty provisions would simply read out the term “any” from the statute.
The Law Revision Commission’s comment to section 805 -- which is “declarative of the [Legislature’s] intent” -- confirms this interpretation. The comment specifically refers to the enhancements in sections “666-668” -- including sections 666, 667.51 and 667.7 -- as the type of enhancements to be disregarded in determining the limitations period. Sections 666, 667.51 and 667.7 are all alternate penalty provision enhancements. So it is plain that the Legislature intended that alternate penalty provisions were to be disregarded in the limitations process. And the Legislature’s considered decision to place the section 667.61 multiple-victims life term in the middle of the section “666-668” statutory range similarly reflects a legislative intent that this life-term alternative penalty was to be disregarded in assessing the limitations period. Moreover, a contrary interpretation of section 805 would result in applying the same limitations period applied to the most serious crimes (murder and treason) to certain misdemeanors and wobblers, a result the Legislature could not have intended.
In short, section 667.61’s life term is an “enhancement of punishment prescribed by statute” and should have been disregarded in assessing the statute of limitations in this case. As such, the statute of limitations was 10 years; because the state did not commence prosecution until more than 17 years had passed, reversal is required.
F. People v. Perez (2010) 182 Cal.App.4th 231 -- On Which Both The Prosecution And Trial Court Relied -- Should Not Be Followed Because It Did Not Consider The Legislature’s Intent In Enacting Section 805.
In arguing that section 667.61’s multiple-victims life term should not be disregarded under section 805, the state placed primary reliance on a decision of the Sixth District Court of Appeal, People v. Perez (2010) 182 Cal.App.4th 231. (1 CT 35-36.) In adopting the state’s position, so too did the trial court. (1 CT 150-151 [noting that Perez held “the unlimited time frame for prosecution set out in section 799 applied because [section 667.61] ‘is an alternate penalty scheme that, when charged, defines the length of imprisonment for the substantive offense’” and that “Perez is controlling here.”].) But reliance on Perez is flawed for two related reasons.
First, Perez simply did not consider the intent of the Legislature in enacting section 805. As both this Court and the Supreme Court have long recognized, cases are not authority for propositions not presented or considered. (See, e.g., People v. Williams (2004) 34 Cal.4th 397, 405; People v. Peyton (2022) 81 Cal.App.5th 784, 807.)
In this regard, Perez involved the same question at issue here: whether the alternative penalty life term provided by the multiple-victims provisions of section 667.61 meant there was no statute of limitations pursuant to section 799. But in answering this question, neither the trial nor appellate court in Perez (1) considered the question of legislative intent behind section 805, (2) analyzed what the phrase “any enhancement of punishment prescribed by statute” meant in 1984 when section 805 was enacted, (3) discussed the explicit reference to sections 666-668 in the Law Revision Commission comment, (4) considered the location of the statute or (5) addressed the consequences of concluding that alternate penalty provisions should be considered in the statute of limitations calculus. Instead, in the view of the trial judge in Perez “the only issue is whether [section 667.61’s multiple victims life term] . . . amount[s] to an ‘enhancement’ or an ‘alternate penalty.’” (182 Cal.App.4th at p. 236.)
Characterizing the section 667.61 punishment as an alternate penalty provision rather than as an enhancement, the Perez trial court ultimately ruled that the limitation of section 805 did not apply. (Ibid.) In the view of the trial court in Perez, the multiple-victims life term “is more analogous to what is essentially a substantive offense.” (Ibid.) Because section 667.61 prescribed a life term, and because section 805 did not apply, pursuant to section 799 there was no statute of limitations. (Ibid.) For its part, the appellate court recognized that section 805 required the court to disregard “[a]ny enhancement of punishment prescribed by statute,” but -- again without an inquiry into what this phrase meant in 1984 -- the appellate court held that the section 667.61’s multiple-victims life term was not an enhancement but, instead, was “an alternate penalty scheme.” (Id. at pp. 237, 238-239.) As such, section 805 did not apply and the life term could be considered in the statute of limitations calculus.
As discussed above, Mr. Masterson has no disagreement with the Perez court’s conclusion that section 667.61’s multiple-victims life term is indeed an alternate penalty provision. It plainly is. But contrary to the conclusion of the Perez trial and appellate courts, this does not answer the statute of limitations question. The question remains whether section 805 reflected the 1984 Legislature’s intent that alternate penalty provisions be disregarded in the statute of limitations calculus.
The fact of the matter is that Perez never considered this question from the perspective of legislative intent. It never considered the Legislature’s use of the encompassing phrase “any enhancement of punishment,” the fact that the word “any” had for more than 150 years been construed “to be broad, general and all embracing” or the statutory construction principle holding that when the Legislature uses a term which has already been construed by the courts, “the presumption is almost irresistible” that the Legislature intended to use the term “in the precise and technical sense which had been placed upon them by the courts.” (Hurtado, supra, 28 Cal.4th at p. 1188.) It never considered the Law Revision Commission’s Comment referencing sections 666-668 as the type of enhancements to be disregarded in determining the statute of limitation, the fact that this range includes numerous alternate penalty provisions or the statutory construction principle that comments of the Law Revision Commission are “declarative of the [Legislature’s] intent.” Although Perez discussed Brookfield, it never considered Brookfield’s actual holding that prior to the mid-1990s, use of the term enhancement covered both alternate penalty provisions and traditional enhancements. (Brookfield, supra, 47 Cal.4th at p. 593.) And Perez never considered either the location the Legislature selected for section 667.61 (squarely between sections 666 and 668), the statutory construction principle recognizing that the location of a statute is a “strong indicator of the legislature’s intent” (Roman Catholic Bishop of Oakland, supra, 128 Cal.App.4th at p. 1169) or the consequences of a contrary interpretation.
Every one of these factors points in the same direction -- the phrase “[a]ny enhancement of punishment prescribed by statute” covers both traditional enhancements and alternate penalty provisions. If indeed cases are not authority for propositions not considered, then Perez simply does not resolve the statutory construction issue at the heart of this case.
But even setting this aside, there is a second and in some ways more fundamental flaw in Perez. Section 799 provides there is no statute of limitations for “an offense punishable by death or life imprisonment.” (Emphasis added.) But as noted above, the Supreme Court has made clear that alternate penalty provisions like section 667.61 are not substantive offenses at all, but merely “sentence-enhancing statute[s].” (Bouzas, supra, 53 Cal.3d at p. 479.) So at all points, the charged offense here remained section 261, subdivision (a)(2), with a ten-year statute of limitations. (See People v. Shoaff (1993) 16 Cal.App.4th 1112, 1117 and n.7 [alternate penalty provisions are “structured to enhance the punishment for violation of other defined crimes and not to define an offense in the first instance.”].)
There should be little doubt as to whether the alternate penalty provisions of section 667.61 establish a substantive offense. Section 667.61, subdivision (o) provides that the enhanced “penalties provided in this section shall apply only if the existence of any circumstance specified . . . is alleged in the accusatory pleading . . . .” As Division Six of this Court has concluded, by requiring that the additional elements be pled in the accusatory pleading, “the Legislature made clear that it sought to establish a penalty provision, rather than a new crime. The inclusion of this typical enhancement language would have been unnecessary had the Legislature intended to create a new crime . . . , because a crime must be charged in an accusatory pleading and there would have been no need to specify that the punishment for the crime could be imposed only if the charge was admitted or found true by the trier of fact.” (People v. Wallace (2003) 109 Cal.App.4th 1699, 1703.)
The Perez trial court’s conclusion that section 667.61 “is more analogous to what is essentially a substantive offense” is irreconcilable with the Supreme Court’s directly contrary holding in Bouzas. It is inconsistent with the rationale of Wallace. Pursuant to these authorities, section 799’s provision that there is no statute of limitations for “an offense punishable by death or life imprisonment” should have had no application here because the alternate penalty provision of section 667.61 is simply not a substantive offense in the first place. For this reason too, Perez should not be followed.
II. THE TRIAL COURT VIOLATED MR. MASTERSON’S RIGHTS TO CONFRONTATION AND A FAIR TRIAL BY CONCLUDING THAT EVIDENCE SHOWING THE COMPLAINING WITNESSES HAD A DIRECT FINANCIAL INTEREST IN THE OUTCOME OF TRIAL WAS “SPECULATIVE, IRRELEVANT OR COLLATERAL.”
A. The Relevant Facts.
As is typical with rape allegations, the complaining witnesses were the state’s main witnesses in connection with the charged offenses. For jurors to convict, they would have to find these witnesses credible.
Defense counsel sought to challenge credibility in two ways. First, as discussed in the Statement of Facts, the defense presented evidence showing stark inconsistencies in the various accounts the complaining witnesses had given over the years. The prosecution responded to this challenge, at least in part, by offering testimony from rape trauma expert Barbara Ziv, who explained why rape victims provide inconsistent testimony. (23 RT 1802- 1803, 1806.) In closing argument, the prosecutor relied on this testimony, telling jurors “you heard a little about that from Barbara Ziv with regard to inconsistencies” and that based on Dr. Ziv’s testimony, jurors should not expect consistency in recollection: “it doesn’t happen like that” and consistency is “not how we communicate.” (33 RT 3379, 3380.) The prosecutor also relied on its theory that the reason the witnesses were inconsistent is because they had been drugged. (33 RT 3258-3259, 3284, 3302-3303, 3305.)
In light of the evidence presented, the prosecutor’s arguments were certainly fair ones. But here is the problem. Separate and apart from inconsistencies -- which the prosecution could try and explain either by relying on Dr. Ziv or its drugging theory -- the defense sought to show that all three complaining witnesses had a strong financial motive to ensure that Mr. Masterson was convicted of rape. This evidence, of course, could not be rebutted with Dr. Ziv or with a drugging theory. (See Reynoso v. Giurbino (9th Cir. 2006) 462 F.3d 1099, 1113 [“A colorable showing of bias can be important because, unlike evidence of prior inconsistent statements -- which might indicate that the witness is lying -- evidence of bias suggests why the witness might be lying.”].)
It turns out that at the time of both trials, the complaining witnesses had sued Mr. Masterson and the Church of Scientology in connection with what the witnesses alleged were specific acts of harassment against them after they came forward to testify. Prior to both trials, the defense sought to pursue two related areas of inquiry in connection with this lawsuit.
First, the defense sought to introduce evidence about the request for damages the complaining witnesses had made in connection with the harassment lawsuit. (10 CT 2708-2709; 1 CTO 87, 110.) The trial court ruled admissible “evidence regarding the facts that the victims filed a civil lawsuit . . . which is still pending, alleging claims of harassment and stalking against defendant . . . and seeking damages.” (11 CT 3194.) Pursuant to this ruling, all three complaining witnesses were asked about the civil lawsuit. [JD3] and [JD2] said the lawsuit was not about money but to get the harassment to stop while [JD1] admitted the lawsuit sought money damages for the harassment. (22 RT 1608-1609 [JD3]; 26 RT 2190-2191 [JD1]; 28 RT 2629-2630 [JD2].)
Of course, the complaining witnesses’ potential interest in monetary damages from the harassment lawsuit was of only marginal benefit in proving there was a motive to falsify testimony in the criminal trial. After all, the harassment lawsuit centered around alleged conduct occurring after the complaining witnesses came forward to testify against Mr. Masterson. As such, the jury’s verdict in the criminal trial -- whether it convicted Mr. Masterson of rape or acquitted him -- had no connection with the success of the civil lawsuit seeking damages for harassment.
But this is where defense counsels’ second area of inquiry became important. Prior to both trials, defense counsel sought judicial notice of Code of Civil Procedure 340.3 under which “if there are any convictions in Masterson’s criminal case, then the statute of limitations for certain claims will be revived and may then be pursued in the complainants’ pending civil lawsuit.” (10 CT 2709; 1 CTO 87, 110.) [Section 340.3 provides as follows: (a) Unless a longer period is prescribed for a specific action, in any action for damages against a defendant based upon the defendant’s commission of a felony offense for which the defendant has been convicted, the time for commencement of the action shall be within one year after judgment is pronounced.] As defense counsel explained, the civil statute of limitations to sue for rape had expired. (14 ART (8/23/24) 3703.) But if the jury convicted of rape, section 340.3 gave the complaining witnesses an additional year within which to add rape allegations to their civil lawsuit seeking monetary damages. (14 RT (8/23/24) 3703-3705; 13 RT 704-705.) Because the monetary damages for rape would likely be far more substantial than damages (if any) for harassment allegations, this provided a strong financial motive for the complaining witnesses to testify in a manner designed to secure rape convictions. (Ibid.)
For his part, the prosecutor argued that inquiry into the motivation of the complaining witnesses was “entirely irrelevant”:
Well, first of all, there is no evidence to suggest that’s the motivating factor. In fact, I think the evidence that was presented suggests otherwise. . . .
To do so otherwise in opening up this door as to what their motivation was, then we’re getting into a whole area about each of these victim’s motivation related to the civil lawsuit. And I think that’s just expanding an issue that is going to be entirely irrelevant.
(13 RT 705.) The prosecutor cited no authority for his position that evidence showing a rape witness’ motive to testify was “entirely irrelevant.”
At the first trial, the court not only refused to judicially notice section 340.3, but went further and barred “any questions or testimony concerning civil code of procedure 340.3.” (15 ART (8/23/24) 3944.) The court explained this area of questioning was “irrelevant to these proceedings and it’s collateral at best and would be confusing to the jury and misleading to the jury. It also requires the jurors to speculate regarding matters not before them.” (Ibid.) At the second trial, the court reiterated its prior ruling, once again refusing to take judicial notice of section 340.3 and excluding “any testimony or evidence regarding [section] 340.3.” (11 CT 3195.) The court echoed the prosecutor’s argument that evidence about the victim’s motivation was irrelevant, ruling such questioning “speculative, irrelevant or collateral” and too confusing for jurors, adding that it would improperly ask jurors to “consider the impact of a guilty verdict on the defendant.” (11 CT 3195.)
As is apparent, the trial court's financial motive evidentiary rulings were logically irreconcilable. The court admitted the harassment lawsuit evidence even though (as noted above) that lawsuit provided little reason for the complaining witnesses to alter their testimony in the criminal trial. But the court excluded the financial motive evidence providing a strong reason for these witnesses to alter their testimony.
Because of the court’s rulings, defense counsel were unable to give jurors the strongest explanation for why the complaining witnesses had falsified their testimony about forcible rape: to augment their civil lawsuit with the big-ticket rape charges. In closing arguments, the prosecutor took full advantage of the court’s ruling, skewering the defense for suggesting a financial motive in the absence of any supporting evidence:
They’re all here . . . because it’s all about money. They want to sue for money or they have some animus to the Church -- the Church of Scientology and they want to get some revenge.
Ladies and gentlemen, don’t be fooled by this. Don’t be fooled by this. Why do I say that? Because there is absolutely no proof of that. There is absolutely no evidence to suggest that any of that is true.
(33 RT 3375.) The prosecutor repeated the point for emphasis: there was no evidence at all showing a financial motive:
It’s easy to say that they want to sue for, quote, a lot of money. Where is the proof? This is about evidence, evidence that has come in in this case, not some speculation, not some attorney’s theory. It’s about the evidence.
(33 RT 3376.) And once more during rebuttal argument:
[T]here is no evidence -- there is none at all -- no reasonable evidence to suggest that there is any other motive other than wanting to have justice for everything they’ve gone through. . . . . It’s not about women coming forward here who are . . . seeking money. None of that.
(34 RT 3411-3412.)
As discussed more fully below, the trial court violated both state and federal law in precluding defense counsel from presenting evidence showing that the complaining witnesses had a direct financial interest in the outcome of the criminal trial. Contrary to the trial court’s ruling, such evidence has long been recognized as relevant and admissible. The prosecutor’s argument that inquiry into a victim’s motivation for testifying is “entirely irrelevant” is both remarkable and unprecedented. Contrary to the prosecutor’s view, such an inquiry is at the heart of an adversary system. Regardless of whether this is viewed as an error of state or federal law, given the obvious concerns both juries had about the credibility of these witnesses, reversal is required. [It turns out, there was nothing “speculative” at all about this evidence. On May 31, 2024 -- exactly one year after Mr. Masterson was convicted -- all three complaining witnesses sought leave to amend their civil complaint to add “[p]roposed causes of action relating to Masterson’s sexual assaults . . . .” (Bixler et al. v. Church of Scientology et al., Case No. 19STCV29458, Declaration of Simon Leen in Support of Plaintiffs’ Motion For Leave to File Second Amended Complaint at p. 2, para. 10.) They admitted that these causes of action “are based on facts that were largely known to Plaintiffs at or around the time of those assaults, but Plaintiffs were unable to allege those causes of action in the FAC [First Amended Complaint] because they were then time-barred.” (Ibid., emphasis added.) “The proposed amendment will permit plaintiffs to bring causes of action that arose after the filing of the FAC . . . causes of action that were time barred at the time the FAC was filed . . . .” (Id. at p. 1, para. 8, emphasis added.) By separate motion for judicial notice, filed contemporaneously with this brief, Mr. Masterson has asked the Court to take judicial notice of this pleading.]
B. The Trial Court Violated Both State And Federal Law In Excluding Evidence Showing The Complaining Witnesses Had A Financial Interest In The Outcome Of Trial.
Under state law, “all relevant evidence is admissible.” (Evidence Code § 351.) Article I, section 28(d) of the California Constitution provides that “relevant evidence shall not be excluded in any criminal proceeding.”
Here, pursuant to section 340.3, a conviction at trial would allow the complaining witnesses to add rape allegations to their pending civil complaint for damages. Put another way, the complaining witnesses had a direct financial interest in the outcome of trial. The prosecutor argued that questioning in this area would improperly “get[] into a whole area about each of these victim’s motivation” and that this area of inquiry was “entirely irrelevant.” (13 RT 705.) The trial court agreed, ruling this evidence “speculative, irrelevant or collateral.” (11 CT 3195.) Under state law, this ruling cannot be sustained.
As a general rule, the existence of a bias, interest, or motive to falsify is a commonly used factor to attack the credibility of a witness. (Evid. Code section 780, subd. (f); People v. James (1976) 56 Cal.App.3d 876, 886.) “The existence of bias may be established through cross-examination as well as extrinsic evidence.” (In re Anthony P. (1986) 167 Cal.App.3d 502, 510. Accord James, supra, 56 Cal.App.3d at p. 886.)
More than a century ago the Supreme Court applied this general rule and recognized that when a witness has a financial interest in the outcome of a trial, “the jury was entitled to know the fact in considering his testimony.” (People v. Fleming (1913) 166 Cal. 357, 383.) The Court has never varied from this basic point. “Generally, any fact or circumstance tending to show that a witness has a financial interest in the outcome of a legal proceeding is a proper ground for impeachment.” (Calvert v. State Bar (1991) 54 Cal.3d 765, 777.) As Justice Jefferson concluded, “if a witness has a financial interest that will be served by favoring one party, that interest may be proved to attack credibility.” (Jefferson, Cal. Evidence Benchbook (3d ed.) § 28.53, p. 539.) And as one appellate court has similarly noted, “[i]t is, of course, an elementary rule that the financial interest of a witness in the result of a case in which he testifies is a proper subject of cross-examination as tending to show his bias and affecting his credibility.” (People v. Philpott (1962) 201 Cal.App.2d 859, 864.)
The Supreme Court decision in People v. Lucas (2014) 60 Cal.4th 153 is instructive. There, defendant was charged with capital murder. The defense theory was that the crime had been committed by John Massingale. Massingale had been arrested for the crime but was later released. At the time of trial Massingale had a lawsuit pending against authorities for wrongful arrest. The state called Massingale as a witness, who testified that he had nothing to do with the crime. In his cross-examination of Massingale, defendant sought to present evidence of Massingale’s lawsuit to show that he had a financial motive to provide testimony favorable to the state. The trial court excluded the evidence, believing that a conviction in defendant’s case “would not affect Massingale’s civil action.” (60 Cal.4th at p. 272.)
The Supreme Court held that this evidence was plainly relevant and should not have been excluded. Because the outcome of defendant’s criminal trial could indeed impact the civil action, “Massingale’s litigation of his civil suit was relevant to his alleged bias in that he had a financial interest in facilitating defendant’s conviction.” (Ibid.) Although exclusion of this evidence violated state law, it did not violate the federal constitution because “jurors were fully aware that Massingale had a significant incentive, albeit not necessarily financial, to testify against defendant—an interest in avoiding prosecution and the death penalty.” (Ibid.)
The general principles discussed above regarding evidence of bias, and the Supreme Court decision in Lucas, control this case. Here too the outcome of the criminal trial had a direct impact on the civil action. Under Civil Code section 340.3, if jurors convicted Mr. Masterson, the complaining witnesses would be permitted to add a rape allegation to their pending civil lawsuit for monetary damages. Jurors could reasonably infer this could have a significant impact on the amount of damages the complaining witnesses could expect to obtain. Thus, the complaining witnesses plainly had a financial interest in securing a conviction. The prosecutor’s suggestion that evidence challenging the complaining witnesses’ motivation was “entirely irrelevant,” and the trial court’s similar conclusion that such evidence was “speculative, irrelevant or collateral” cannot be sustained. [Indeed, the position taken by the trial court and prosecutor that evidence of the complaining witnesses’ motive was irrelevant was especially pernicious here. The prosecutor questioned all three complaining witnesses as to their motives for filing the 2019 lawsuit, plainly recognizing the relevance of such motive evidence. (22 RT 1608; 25 RT 2161; 28 RT 2630.)]
To be sure, whether this obvious financial interest actually motivated any (or all) of these witnesses to alter their testimony was a question for the jurors. Jurors could reasonably have decided this was an important factor in assessing credibility. Jurors could reasonably have decided it was not an important factor. But at all points this should have been a decision the 12 jurors were to make, not the trial judge. The trial judge’s refusal to take judicial notice of section 340.3, and its ruling “exclud[ing] any testimony or evidence” on the subject invaded the province of the jury. State law has clearly been violated.
And for two reasons, this ruling also violated federal law. First, the Due Process clause of the Fifth Amendment guarantees a fair trial. (Estes v. Texas (1965) 381 U.S. 532.) In gauging the fairness of a trial, “few rights are more fundamental than that of an accused to present witnesses in his own defense.” (Chambers v. Mississippi (1973) 410 U.S. 284, 294, 302.) And the Sixth Amendment guarantees a criminal defendant “compulsory process for obtaining witnesses in his favor . . . .” This requires “at a minimum that criminal defendants have . . . the right to put before the jury evidence that might influence the determination of guilt.” (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 56.) Taken together, a state court’s erroneous exclusion of relevant defense evidence may violate the defendant’s Fifth Amendment right to a fair trial as well as his Sixth Amendment rights to confrontation and to present a defense. (See, e.g., Davis v. Alaska (1974) 415 U.S. 308, 319-320; Washington v. Texas (1967) 388 U.S. 14, 19, 23; Chambers, supra, 410 U.S. at p. 302.)
On several occasions, the Supreme Court has applied these general rules to a trial court’s exclusion of evidence showing the potential bias of a critical prosecution witness, holding repeatedly that the exclusion of such evidence violates the constitution. “[T]he exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” (Davis, supra, 415 U.S. at pp. 316–317. Accord Olden v. Kentucky (1988) 488 U.S. 227, 231 [defendant charged with forcible sodomy, defense was consent, trial court precludes defendant from introducing evidence giving complaining witness a possible motive to falsely accuse him; held, exclusion of this evidence violated the Sixth Amendment]; Delaware v. Van Arsdall (1986) 475 U.S. 673, 678 [exclusion of evidence that key prosecution witness had motive to testify falsely violated the Sixth Amendment].)
Second, the Due Process clause separately provides the right to respond to arguments presented by the state. When the prosecution in a criminal case is permitted to introduce evidence or argument on a particular issue, Due Process requires that the defendant be permitted to introduce evidence on the same issue. (See, e.g., Simmons v. South Carolina (1994) 512 U.S. 154, 168-169 [in a capital case, Due Process does not permit the state to argue future dangerousness to the public as a reason to sentence defendant to death while at the same time exclude evidence from defendant showing that he would never get out of prison]; Crane v. Kentucky (1986) 476 U.S. 683, 690-691 [Due Process does not permit the state to rely on a defendant’s confession while at the same time exclude evidence from defendant explaining why the confession was unreliable].)
For both these reasons, the court’s exclusion of evidence showing that the complaining witnesses had a financial interest in the outcome of trial not only violated state law, but federal law as well. This was important evidence, plainly relevant under state law. As in Davis, defense counsel was simply trying to “expos[e] a witness’ motivation in testifying” which was “a proper and important function of the constitutionally protected right of cross-examination.” (Davis, supra, 415 U.S. at pp. 316–317.) And the financial motivation evidence not only supported the defense theory, but rebutted the prosecutor’s explicit (and repeated) argument to the jury that there was no evidence showing the complaining witnesses had a financial motive. (33 RT 3375, 3376; 34 RT 3411-3412.)
Moreover, Lucas itself also shows why the ruling here violated federal law. As noted, Lucas involved the identical error as occurred here — precluding jurors from learning that a key prosecution witness had a financial interest in securing a conviction. The reason there was no federal constitutional error there was because jurors knew the witness had another, even more important interest in securing defendant’s conviction: avoiding his own potential prosecution for capital murder. (60 Cal.4th at p. 272.)
Here, the complaining witnesses were cross-examined about the damages sought in the harassment lawsuit. But the outcome of the criminal trial had no impact on this lawsuit. Far more important, as the prosecutor’s own closing arguments emphasized, the defense was barred from presenting any evidence showing the complaining witnesses had a direct financial interest in the outcome of the criminal trial. Precisely because of the trial court’s ruling, as the prosecutor noted, “there is absolutely no proof” that the complaining witnesses had any financial interest in the outcome of the criminal trial. (33 RT 3375.) “There is absolutely no evidence” of financial motive. (33 RT 3375.) “Where is the proof” of financial motive? (33 RT 3376.) “There is no evidence -- there is no evidence at all” of financial motive. (34 RT 3411-3412.) Instead, the defense was cabined to attacking the complaining witnesses’ credibility by relying on inconsistencies in their testimony. And while this was certainly a forceful challenge -- it resulted in a hung jury as to all counts at the first trial -- as noted above, as to this line of attack the prosecution offered jurors an alternate explanation, relying on its drugging theory as well as the testimony of its rape trauma syndrome expert. (23 RT 1802-1803; 33 RT 3284, 3305, 3258-3259, 3379-3380.) But the prosecution could not have relied on that alternate explanation to rebut the financial motive bias. In short, in this case, unlike Lucas, jurors were not presented with an alternative explanation for why the complaining witnesses would make the false allegations. The trial court’s exclusion of this evidence violated both state and federal law.
C. Given That Credibility of The Complaining Witnesses Was The Key Issue In The Case, And The Jury Deliberations At Both Trials Show This Was A Close Case, Reversal Is Required.
When a trial court erroneously excludes relevant evidence in violation of state law, the error is reviewed under the standard of People v. Watson (1956) 46 Cal.2d 818. Such state-law errors require reversal whenever “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Watson, supra, 46 Cal.2d at p. 837.) In applying Watson reviewing courts must ask whether absent the error it is reasonably probable one or more jurors could have reached a more favorable result. (People v. Soojian (2010) 190 Cal.App.4th 491, 521.) When a trial court excludes evidence in violation of a defendant’s Fifth and Sixth Amendment rights, reversal is required unless the state can show the error “was harmless beyond a reasonable doubt.” (Chapman v. California (1967) 386 U.S. 18, 24.)
In this case, it does not matter which standard is applied. Under either standard, reversal is required for four reasons.
First, there should be no dispute that the critical question for the jury involved determining whether the complaining witnesses were credible. Fairly read, the closing arguments of both sides are almost entirely devoted to this topic. And given the many changes in [JD2]’s and [JD1]’s recollection over time, there was good reason for the parties to focus on credibility. The state’s position, of course, was the witnesses were credible. The defense position, based in part on the shifting nature of the stories presented, was that they should not be believed. Evidence explaining why the complaining witnesses’ stories changed over time was critical for jurors to fairly evaluate the credibility question at the heart of this case.
Second, as courts have long recognized, the prior hung jury reflects a close case. (See, e.g., Kyles v. Whitley (1995) 514 U.S. 419, 455 (conc. opn. of Stevens, J.) [“the fact that the jury was unable to reach a verdict at the conclusion of the first trial provides strong reason to believe the significant errors that occurred at the second trial were prejudicial”]. Accord In re Richards (2016) 63 Cal.4th 291, 320 (conc. opn. of Liu, J.); People v. Gonzalez (2006) 38 Cal.4th 932, 962; People v. Kelley (1967) 66 Cal.2d 232, 245; People v. Diaz (2014) 227 Cal.App.4th 362, 385.)
Third, an examination of the objective record of jury deliberations at both trials shows that this was a close case as to credibility. As noted, the first jury deliberated for several days, indicated it was hung on all counts, deliberated several more days after two jurors were replaced and returned a hung jury on all counts, leaning heavily toward acquittal with a 10-2 vote for acquittal on count 1 (JD1), 8-4 vote for acquittal on count 2 (JD2) and a 7-5 vote for acquittal on count 3 (JD3) (11 CT 3048, 3049, 3054; 8 RT 508.) Similarly, the second jury deliberated more than 29 hours over the course of eight days, asked several questions, asked to hear readback of testimony and ultimately returned a hung jury on count 3. (11 CT 3288-3290, 3292-3294, 3296; 36 RT 3441-3444; 39 RT 3483-3486, 3489.)
These objective indicia have long been recognized as showing a close case. (See, e.g., People v. Cardenas (1982) 31 Cal.3d 897, 907 [twelve-hour deliberation was a “graphic demonstration of the closeness of this case”]; People v. Rucker (1980) 26 Cal.3d 368, 391 [nine-hour jury deliberation shows close case]; People v. Woodard (1979) 23 Cal.3d 329, 341 [six-hour deliberation shows close case]; People v. Pearch (1991) 229 Cal.App.3d 1282, 1295 [juror questions and requests for readback show a close case]; People v. Thompkins (1987) 195 Cal.App.3d 244, 251-252 [request for readback shows close case]; People v. Williams (1971) 22 Cal.App.3d 34, 40-41 [same]; People v. Epps (1981) 122 Cal.App.3d 691, 698 [refusal to convict on all counts shows close case].) Given the central role placed on the credibility of these three witnesses, and the jury deliberations reflecting an obviously close case, the trial court’s exclusion of this evidence was prejudicial under any standard.
Finally, the prosecutor’s repeated reliance on the absence of any evidence supporting a financial motive shows just how prejudicial the trial court’s exclusion of this evidence was. As noted above, again and again the prosecutor lambasted the defense for suggesting the complaining witnesses could have a financial interest in the case; there was “no evidence” to support this and “absolutely no proof” of the defense theory. (33 RT 3375, 34 RT 3412.) Defense counsel’s suggestion was nothing but “speculation . . . some attorney’s theory.” (33 RT 3376.)
Mr. Masterson will be clear. While the prosecutor’s argument may have accurately characterized the state of the record given the trial court’s exclusion of the financial motive evidence, the argument is nonetheless directly relevant to assessing prejudice from the court’s ruling. Where a trial court erroneously excludes evidence on a critical issue, and the prosecutor relies on the absence of that evidence in urging jurors to reject the defense theory, the prosecutor’s argument reveals just how critical that excluded evidence was to the jury’s evaluation. (People v. Minifie (1996) 13 Cal.4th 1055, 1071-1072.)
With respect to the question of prejudice, Minifie bears remarkable similarities to this case. There, defendant was charged with assault. The defense theory was self-defense. The trial court nevertheless excluded evidence of threats the defendant had received. The Supreme Court first held the trial court erred in excluding the evidence. (13 Cal.4th at pp. 1065- 1070.) Turning to prejudice, the Court noted that in closing argument the prosecutor urged jurors to reject self-defense precisely because “there’s been no evidence of that.” (13 Cal.4th at p. 1071.) The prosecutor went on, arguing that self defense was “contrived [and] . . . preposterous because it is not supported by the evidence.” (Ibid.) As the Supreme Court recognized, “[t]he reason there was ‘no evidence’ and the ‘contrived’ defense was ‘not supported by the evidence’ is easily explained. The missing evidence was erroneously excluded.” (Id. at p. 1072.) The Court reversed, concluding that the prosecutor’s argument “demonstrates that the excluded evidence was not minor, but critical to the jury’s proper understanding of the case.” (Ibid. Accord People v. Humphrey (1996) 13 Cal.4th 1073, 1089. See generally People v. Powell (1967) 67 Cal.2d 32, 55-57 [prosecutor’s reference to improperly admitted evidence in closing argument reveals how important the prosecutor “and so presumably the jury” considered the evidence]; People v. Cruz (1964) 61 Cal.2d 861, 868 [“There is no reason why we should treat this evidence as any less ‘crucial’ than the prosecutor -- and so presumably the jury -- treated it.”].)
The prosecutor’s comments here bear a striking similarity to the prosecutor’s comments in Minifie. Here, the prosecutor urged jurors not to be “fooled” by the defense suggestion that the complaining witnesses had a financial interest in the outcome of this case “[b]ecause there is absolutely no proof of that” and “there is absolutely no evidence to suggest that any of that is true.” (33 RT 3375.) The prosecutor asked the rhetorically powerful question, “[w]here is the proof? This is about evidence, evidence that has come in in this case, not some speculation, not some attorney’s theory.” (33 RT 3376.) As in Minifie, “the reason there [was] no evidence . . . is easily explained. The missing evidence was erroneously excluded.” (Id. at p. 1072.) As in Minifie, the prosecutor’s argument here “demonstrates that the excluded evidence was not minor, but critical to the jury’s proper understanding of the case.” (13 Cal.4th at p. 1072.) As in Minifie, the prosecutor’s argument is strong evidence of prejudice, especially in a close case such as this. As in Minifie, reversal is required.
III. THE TRIAL COURT VIOLATED MR. MASTERSON’S RIGHT TO A FAIR TRIAL BY (1) ADMITTING DETECTIVE MYAPE’S OPINION THAT THE COMMUNICATIONS BETWEEN THE COMPLAINING WITNESSES DID NOT UNDERMINE THEIR CREDIBILITY AND (2) PREVENTING THE DEFENSE FROM CHALLENGING THAT TESTIMONY.
A. The Relevant Facts.
As discussed in the Statement of Facts, the record shows that over the years leading up to trial, the complaining witnesses had been made aware not only that there was a statute of limitations issue in the case, but that the multiple-victims forcible rape provisions of section 667.61 provided a potential way around that problem. (8 CT 2275, 2381; 9 CT 2413 [JD1]; 8 CT 2384; 9 C.T. 2525 [JD2].) And at trial, there was no real dispute that the versions of events given by the complaining witnesses evolved in similar ways over time. In fact, by the time of the first trial the initial statements by [JD1] and [JD2] about sexual intercourse facilitated by voluntary alcohol consumption had morphed, converging into similar tales of forcible rape by drugging.
In the Statement of Facts, Mr. Masterson has fully detailed the shifting nature of events relayed by the complaining witnesses. Suffice it to say here, and by way of example only:
• When [JD1] spoke with police in 2004 -- and through her conversations with the prosecutor in 2017 -- she conceded that she and Mr. Masterson had consensual sex in September 2002. (6 ART (5/17/24) 835-836; 26 RT 2211.) But in 2018 she changed her story, and then alleged the September 2002 sex was rape. (6 ART (5/17/24) 835.) At both trials she testified the September 2002 incident was rape. (6 ART (5/17/24) 837; 26 RT 2191.)
• In her June 2004 interview with police, [JD1] said that during the consensual September 2002 sex, “Mr. Masterson’s penis made contact with [JD1’s] anus [and] Masterson immediately apologized.” (31 RT 3150.) By the time of trial, she changed her story, and now alleged that Mr. Masterson had violently sodomized her and it was “just like a jolt of, like, the sharpest pain I’ve ever experienced . . . starting in my backside, all the way through to my side.” (24 RT 1930.)
• According to police officers Schlegel and Myers, [JD1] never mentioned that Mr. Masterson brandished a gun during their separate 2004 interviews with her. (30 RT 2936-2937; 31 RT 3084-3085.) She first mentioned a gun in a 2017 interview with Detective Myape. (31 RT 3036-3037.) By the time of trial, the gun was part and parcel of her version of events. (25 RT 2027.)
• According to Officer Schlegel, [JD1] reported in 2004 that when she arrived at Mr. Masterson’s home, she was in the kitchen together with Mr. Masterson when he made her a drink (and thus no allegation of drugging). (30 RT 2924; 8 CT 2290.) By the time of trial, however, [JD1] was no longer together with Mr. Masterson in the kitchen when he made her a drink; now, he made the drink alone and brought it out to her on the patio. (24 RT 1965-1966.)
• In 2004, [JD1] reported that after she became ill, Mr. Masterson helped her up the stairs. (30 RT 2925-2926; 8 CT 2291.) But by the time of trial, Mr. Masterson was no longer helping her up the stairs, he was carrying her while she cried “no, no.” (25 RT 2009.)
• [JD2] spoke with her mother about the 2003 incident, never mentioning drugging but merely saying “there was alcohol involved.” (30 RT 2892.) She spoke with her friend Mariah O’Brien sometime between 2011 and 2013 and again did not mention the possibility of being drugged. (30 RT 2859-2861.) But in 2017, [JD2] told detective Myape that Mr. Masterson may have given her a “roofie” and drugged her. (29 RT 2719-2720.)
• [JD2] told police in 2017 that she was not afraid Mr. Masterson would either hurt or hit her. (8 CT 2387-2388; 9 CT 2525.) But by the time of the preliminary hearing, [JD2] claimed that she was afraid the incident would escalate to physical violence. (7 ART (8/23/24) 1557-1560.)
The defense theory was that [JD1] and [JD2] were not credible witnesses. Their stories evolved over time because they were communicating with each other, contaminating their respective memories and changing their stories to conform to the newly minted forcible rape scenario. Each of the complaining witnesses admitted they had communicated with each other despite being warned not to do so. (22 RT 1595-1596; 25 RT 2159-2160; 27 RT 2377; 28 RT 2623-2625; 29 RT 2708- 2709.)
The state called Detective Myape to testify. Near the end of her direct examination she conceded that despite the fact that she told the complaining witnesses not to communicate with one another, they repeatedly did just that. (31 RT 2995-2999.) To rebut the central defense theory that the testimony of the complaining witnesses was contaminated by their communications with one another, and over objection, the prosecutor was permitted to elicit Detective Myape’s view that no contamination occurred:
Q: [by the prosecutor] As you sit here today with the time you’ve had investigating this case, are you still of the opinion that these three victims have not contaminated this case based on talking to one another?
[Defense counsel]: Objection; relevance, lack of foundation.
The Court: Overruled. But clarify the question. One, it’s compound and, two, it’s overly broad.
Q: As you sit here today, do you still have the same opinion that you do not believe that they have contaminated this case?
The Court: Okay. That’s just asking the same question. Rephrase the question.
Q: As you sit here today, what is your opinion about what, if any, impact any conversations these victims had with each other had on this case?
A: [Detective Myape] I think that each victim can speak for themselves. I think that -- I don’t think that they colluded or contaminated each other’s testimony.
The Court: The court will strike the word “colluded” that calls for speculation. But the latter portion may remain.
(31 RT 2998-2999.)
Having had his objection overruled, on cross-examination defense counsel sought to limit the damage and tried to make clear that Detective Myape had no special insight into whether the complaining witnesses were actually telling the truth. But despite having just allowed the prosecution to introduce Myape’s testimony that the complaining witnesses’ testimony was not contaminated, the trial court ruled defense counsel’s question improper:
Q: [by defense counsel] Now, would it be accurate to say that you do not know whether any of the statements made to you by the Jane Does are truthful?
[The prosecutor] Objection it’s overbroad.
The Court: It’s an inappropriate question, so the objection is sustained.
Q: You’re trained in how to conduct interviews; correct?
The Court: You can ask about consistent statements. You cannot ask about the veracity of statements. Rephrase your question.
[Defense counsel] I’ll come back to it.
(31 RT 3006-3007, emphasis added.) The court then advised jurors that “the credibility of any witness is for you and for you alone to decide.” (31 RT 3007.)
Later, the court explained that the reason it sustained an objection here was because “police officers cannot testify as to whether or not they believe any witness’s testimony is credible or truthful. There is case law on point. Can’t do it.” (31 RT 3015.) The explanation was puzzling -- after all, defense counsel had not asked Detective Myape if any of the complaining witnesses were credible or truthful. To the contrary, defense counsel’s question sought to make the exact point the trial court raised: that Detective Myape simply did not know one way or another whether the statements made by the complaining witnesses were truthful:
Now, would it be accurate to say that you do not know whether any of the statements made to you by the Jane Does are truthful?
(31 RT 3006.) And as defense counsel made clear, the irony here is that the only reason defense counsel’s question was necessary in the first place was because the trial court permitted Myape’s testimony that the complaining witnesses’ testimony was not contaminated, i.e. was truthful. (31 RT 3016.)
As discussed more fully below, offering jurors the testimony of an experienced detective that the complaining witnesses did not contaminate each other invaded the province of the jury and effectively constituted an opinion that the complaining witnesses had provided truthful testimony. Myape’s opinion had no place in this case. And while any prejudicial inferences from this testimony could have been rebutted had defense counsel been allowed to elicit that Myape did not know one way or another whether the complaining witnesses were telling the truth, the trial court precluded counsel from doing so. As such, and because the truth of the complaining witnesses’ testimony was the critical issue in this case, introduction of Myape’s testimony that there was no contamination, and preventing defense counsel from rebutting that testimony, deprived Mr. Masterson of a fair trial. Because both the evidence and the jury deliberations show that this was an extremely close case, reversal is required.
B. The Trial Court’s Admission Of Detective Myape’s Testimony That The Complaining Witnesses’ Testimony Was Not Contaminated Violated Mr. Masterson’s State And Federal Due Process Rights To A Fair Trial.
Under state law, only relevant evidence is admissible. (Evidence Code § 350.) Under state law, the prosecution may not admit evidence unless it is relevant. (See, e.g., People v. Leahy (1994) 8 Cal.4th 587, 597; People v. Louie (1984) 158 Cal.App.3d Supp. 28, 46.)
Federal law is similar. The Supreme Court has long held that “[an important element of a fair trial is that [the trier of fact] consider only relevant and competent evidence bearing on the issue of guilt or innocence.” (Bruton v. United States (1968) 391 U.S. 123, 131, n.6.) Evidence is irrelevant if “it fails to make any fact of consequence more or less probable.” (McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1380; See People v. Perez (1981) 114 Cal.App.3d 470, 477.) Admission of irrelevant evidence violates due process if the improperly introduced evidence is “of such a quality as necessarily prevents a fair trial.” (Lisenba v. California (1941) 314 U.S. 219, 236.)
Pursuant to these rules, no party to a criminal action may offer testimony about whether particular statements made by a witness are believable; to the contrary, such testimony about the credibility of a witness is inadmissible and irrelevant. (See, e.g., People v. Melton (1988) 44 Cal.3d 713, 744; People v. Zambrano (2004) 124 Cal.App.4th 228, 239-240; People v. Sergill (1982) 138 Cal.App.3d 34, 39-40.) Thus, when a witness’ statements support the state’s case, the state may not introduce evidence from witnesses who heard those statements and found them believable. (Sergill, supra, 138 Cal.App.3d at pp. 39-41.) Similarly, when statements of a defendant support the defense case, the defendant too is precluded from introducing testimony that a listener found the statements believable. (People v. Smith (2003) 30 Cal.4th 581, 628.)
The reason for this consistent case law is plain. Opinion testimony by one witness that another witness’ statement or testimony is (or is not) credible not only invades the province of the jury as the ultimate fact finder but is not “properly founded character or reputation evidence,” and does not bear on “any of the other matters listed by statute as most commonly affecting credibility.” (Melton, supra, 44 Cal.3d at p. 744.) Thus, “such an opinion has no tendency in reason to disprove the veracity of the statements” and is irrelevant. (Ibid.)
The decision in Sergill is instructive. There, defendant was charged with molesting his eight-year-old niece. The state’s case was based primarily on the testimony of the niece that defendant molested her; as the appellate court noted after reviewing all the evidence, the niece’s credibility was “[t]he critical question in the case . . . .” (138 Cal.App.3d at p. 41.) The defense theory was that the witness was not credible; the molestation had not occurred. Over defense objection, two police officers who had interviewed the niece were permitted to offer their opinions that she was telling the truth when she told them, as she had told the jury, that defendant molested her. (Id. at p. 38.) The Court of Appeal found error and reversed, noting that the evidence was inadmissible as expert testimony, it was inadmissible as opinion testimony of a lay witness and it was irrelevant. (Id. at pp. 40-42.)
Sergill controls. Just as in Sergill, a witness (in this case, the complaining witnesses) made statements which directly inculpated Mr. Masterson. Just as in Sergill, the state’s case was based primarily on the testimony of these witnesses. Just as in Sergill, the defense theory was that these witnesses were not credible -- here, because they had been communicating with each other for years and had contaminated each other’s testimony. And just as in Sergill, the state offered testimony from a witness (Myape in this case) to rebut this attack on credibility, offering her opinion “that I don’t think that they . . . contaminated each other’s testimony.” (31 RT 2999.)
To be sure, the prosecutor was careful not to directly ask Detective Myape if she believed the complaining witnesses were telling the truth. But the plain implication of Myape’s testimony was clear. The court’s error here was in its failure to recognize that regardless of the prosecutor’s artful phrasing, the testimony presented was the functional equivalent of an opinion on the witnesses’ credibility in violation of Sergill. In this precise respect, courts have long recognized that the prosecution cannot avoid the proscription on unfair practices by clever and subtle changes in wording. (See, e.g., People v. Modesto (1967) 66 Cal.2d 695, 710-711; People v. Giovannini (1968) 260 Cal.App.2d 597, 604-605.)
Indeed, the trial court’s failure to recognize the practical import of Myape’s testimony is especially puzzling here. In opening statements at the first trial, defense counsel promised jurors he would introduce testimony from Myape that the complaining witnesses’ decision to speak with one another “cross-contaminat[ed]” their testimony. (4 ART (5/17/24) 517.) Out of the jury’s presence, the trial court quite properly recognized that she would not allow an “expert to give an opinion as to any particular witness’s truthfulness.” (4 ART (5/17/24) 522.) Thus, it would be improper for defense counsel to “solicit[] the opinion of Detective [Myape] as to the contamination that each witness caused, she can’t give that opinion.” (Ibid.)
The trial court was entirely correct. But the court never explained why the rule barring experts from giving “an opinion as to any particular witness’s truthfulness” precluded defense counsel from asking Detective Myape if the complaining witnesses’ testimony was contaminated, but permitted the prosecutor to offer Myape’s opinion that the testimony was not contaminated. They should have been flip sides of the same coin.
But because of the court’s starkly inconsistent rulings, they were not. The fact of the matter is that the defense’s central challenge to the credibility of the complaining witnesses was based on their joint decision to ignore police admonishments not to communicate with one another. Their prohibited communications -- combined with their knowledge of the statute of limitations problem -- were the means by which their stories became contaminated and reshaped. A tweak here, a massaging of facts there. Over time [JD1]’s consensual sex act in September of 2002 became just another example of a forcible rape. Over time, a gun appeared in [JD1]’s scenario where none had been before. Over time, a drink made together in the kitchen became a drink made alone by Mr. Masterson, with an unfettered opportunity for drugging. Over time, a helpful hand up the stairs became an act met with resistence. Over time, [JD2]’s consumption of alcohol became a roofie. Over time, [JD2]’s lack of fear became an affirmative fear of physical violence.
As noted in Argument II, supra, “juror[s] [are] not some kind of [] dithering nincompoop[s], brought in from never-never land” but are instead presumed to be intelligent people. (Early, supra, 35 Cal.3d at p. 253; Richardson, supra, 43 Cal.4th at p. 1028.) Although Myape was not asked to use the words “truthful” or “credible” in describing the testimony of the complaining witnesses, it certainly does not take a rocket scientist to put two and two together. Indeed, at the first trial the trial court itself recognized that having Myape offer an opinion on contamination was improper precisely because jurors would understand it to be an opinion on the witnesses’ truthfulness. (4 ART (5/17/24) 522.) Pursuant to Sergill, admission of the evidence was error.
Ignoring her own observations at the first trial, the trial judge here explained her decision to allow Myape’s testimony, noting that “there is a difference between finding there is contamination and someone being credible. You can believe that there is no contamination, and you can still believe a witness is not credible. They are not one and the same thing.” (31 RT 3016.)
In the context of this case, as the trial court itself recognized by her ruling during the first trial, this justification has no application. The defense theory was that because of years of communicating with each other, the testimony of the complaining witnesses was contaminated; their testimony changed adversely to Mr. Masterson as a direct result of the communication. Whether changes in testimony occurred and whether they were caused by the witnesses’ communicating with each other -- that is, whether the testimony was contaminated -- was a credibility question for the jury, plain and simple. As the trial court correctly ruled during the first trial, admitting Detective Myape’s opinion regarding whether contamination occurred was a plain invasion of the jury’s function.
The trial court’s ruling is all the more puzzling given the trial court’s stated awareness of the rule from Sergill that “police officers cannot testify as to whether or not they believe any witness’s testimony is credible or truthful. There is case law on point. Can’t do it.” (31 RT 3015.) Yet at the second trial the trial court inexplicably refused to apply this rule in connection with Myape’s testimony that the complaining witnesses’ testimony was not contaminated. Equally inexplicable, the court then affirmatively relied on this rule to preclude defense counsel from introducing neutral testimony from Myape that she simply did not know one way or another whether the complaining witnesses were truthful. (31 RT 3006- 3007.) In other words, although Sergill holds that police officers may not offer an opinion about the credibility of a state witness the trial court applied Sergill to (1) admit Myape’s opinion that the complaining witnesses were credible but (2) exclude rebuttal evidence that, in fact, Myape could offer no opinion on the complaining witnesses’ credibility. This Kafkaesque application of Sergill cannot be sustained.
C. The Trial Court’s Exclusion Of Testimony That Detective Myape Did Not Know Whether The Complaining Witnesses Were Truthful Violated State And Federal Law.
On cross-examination, defense counsel sought to rebut the obvious inference from Myape’s testimony as to the credibility of the complaining witnesses by eliciting that she had no special insight one way or another into whether the complaining witnesses were telling the truth. (31 RT 3006- 3007.) As noted above, the trial court excluded this evidence. (Ibid.) This ruling separately violated both state and federal law.
As discussed in Argument II above, under state law all relevant evidence is admissible. (Cal. Const., Art. 1. § 28, subd. (d).) And under federal law, when the prosecution introduces evidence on an issue, Due Process requires that the defense be permitted to introduce evidence on the same subject. (Simmons, supra, 512 U.S. at pp. 168-169; Crane, supra, 476 U.S. at pp. 690-691.)
Here, once the trial court crossed the Rubicon by admitting evidence from Myape about whether the testimony of the complaining witnesses had been contaminated -- that is, whether they had changed their testimony because of their communications with one another -- it was directly relevant for jurors to know whether Myape had any special insight into making this factual determination. Indeed, defense counsel made clear that the only reason he pursued this area was because the prosecution had been allowed to introduce Myape’s opinion that she did not believe there was any contamination. (31 RT 3016.) And yet again the court’s ruling was entirely inconsistent with its conduct in the first trial. (See 11 ART (5/17/24) 1595 [court permits defense counsel to elicit Officer Schlegel’s testimony that he did not know one way or another whether [JD1] was telling the truth].) Exclusion of this same testimony at the second trial from Myape was error.
D. Because Myape’s Testimony Was Directly Relevant To The Critical Disputed Question At Trial -- The Credibility Of The Complaining Witnesses -- Relief Is Required.
To the extent the improper admission of Detective Myape’s testimony, and the improper exclusion of defense counsel’s impeachment, violated Mr. Masterson’s rights under state law, reversal is required if there is a reasonable probability that the error affected the outcome of trial. (See Watson, supra, 46 Cal.2d 818; People v. Maestas (1993) 20 Cal.App.4th 1482, 1497-1498.) But because the trial court’s errors in connection with this evidence also violated Mr. Masterson’s federal constitutional rights to due process and a fair trial, the error is subject to the Chapman standard of prejudice, requiring the state to prove the error harmless beyond a reasonable doubt. (See Chapman, supra, 386 U.S. at p. 24.)
To be sure, not every admission of irrelevant evidence violates due process. The ultimate issue is whether the improperly introduced evidence is “of such a quality as necessarily prevents a fair trial.” (Lisenba, supra, 314 U.S. at p. 236; Rees, supra, 993 F.2d at p. 1383.) And by a parity of reasoning, not every exclusion of evidence violates federal law -- the excluded evidence must be significant. (See Depetris v. Kuykendall (9th Cir. 2001) 239 F.3d 1057.)
Ultimately, however, there is no need to decide which standard of prejudice applies here. Even under the more lenient state-law test for prejudice, and for many of the reasons discussed in Argument II, reversal is required here for four reasons.
First, as noted in Argument II, in applying the state-law test for prejudice, the question is not whether a unanimous acquittal would occur without the error, but rather whether it is reasonably probable that one or more jurors could have found Mr. Masterson not guilty in the absence of the contamination testimony from Detective Myape -- or with a perspective balanced by the admission of the defense evidence. (See Soojian, supra, 190 Cal.App.4th 491.) Second, Detective Myape’s improper opinion went to the heart of the defense case. A central part of the defense challenge to the complaining witnesses’ credibility was that the witnesses’ decision to ignore police admonishments not to speak with each other had contaminated their testimony. But in no uncertain terms, Detective Myape told jurors there was no contamination in this case. And the prejudice from admitting Myape’s testimony was compounded when defense counsel was precluded from eliciting Myape’s testimony that, in fact, she had no insight one way or another as to whether the complaining witnesses were telling the truth.
Third, there was good reason to question the credibility of the complaining witnesses. As both the above summary, and the more detailed discussion in the Statement of Facts makes clear, their versions of events changed significantly over time. In Sergill, the appellate court found the identical error prejudicial, at least in part, precisely because there were inconsistencies in the testimony of the state’s complaining witness. (138 Cal.App.3d at p. 41.) That is the case here in spades.
Fourth, this was not a case of overwhelming evidence. The first jury was hung as to all three counts. As discussed in Argument II, courts have long recognized that a prior hung jury reflects a close case. (See, e.g., Richards, supra, 63 Cal.4th at p. 320 [conc. opn. of Liu, J.]; Gonzalez, supra, 38 Cal.4th at p. 962; Kelley, supra, 66 Cal.2d at p. 245.) As also discussed in Argument II, the objective record of jury deliberations at both trials also reflects a close case. The first jury deliberated 13 hours, requested readback of [JD1]’s testimony, stated it was hung on all counts, then deliberated 11 additional hours after two jurors were replaced before returning a hung jury on all counts, leaning heavily toward acquittal: 10-2 on [JD1], 8-4 on [JD2] and 7-5 on [JD3] (11 CT 3043, 3045-3054; 8 RT 504.) The second jury deliberated more than 29 hours over the course of eight days, asked several questions, requested readback of testimony and ultimately returned a hung jury on count 3 involving [JD3]. (11 CT 3288-3290, 3292- 3294, 3296; 36 RT 3441-3444; 39 RT 3383-3486, 3489.) And one of the questions jurors asked went specifically to the question of contamination, asking to see “all social media correspondence, emails, and texts among the three witnesses . . . .” (36 RT 3442.) These objective indicia have long been recognized as showing a close case. (See, e.g., Cardenas, supra, 31 Cal.3d at p. 907 [twelve-hour deliberations was a “graphic demonstration of the closeness of this case”]; Rucker, supra, 26 Cal.3d at p. 391 [nine-hour jury deliberation shows close case]; Woodard, supra, 23 Cal.3d at p. 341 [sixhour deliberation shows close case]; Pearch, supra, 229 Cal.App.3d at p. 1295 [juror questions and requests for readback show a close case]; Thompkins, supra, 195 Cal.App.3d at pp. 251-252 [request for readback shows close case]; Williams, supra, 22 Cal.App.3d at pp. 40-41 [same]; Epps, supra, 122 Cal.App.3d at p. 698.)
In sum, the introduction of inadmissible testimony about the credibility of the complaining witnesses -- and the exclusion of evidence rebutting that testimony -- violated both state and federal law. Ultimately, however, on the facts of this case it does not matter what standard of prejudice is applied. For all the reasons just discussed, even if this Court were to apply the less stringent standard of prejudice set forth in People v. Watson, supra, 46 Cal.2d 818, reversal would still be required. [18. As noted above, the trial court gave jurors the standard instruction advising them “the credibility of any witness is for you and for you alone to decide.” (31 RT 3007. See CALCRIM 105 [“You alone must judge the credibility or believability of the witnesses.”].) But it bears emphasis that the problem here is not an instructional one, it is an evidentiary one. In this case, as in every case where the standard instruction is given, jurors are aware they are the judges of credibility. The problem here is not that jurors did not know they were the judges of credibility. The problem is that in making this assessment, jurors were (1) permitted to consider testimony from a veteran police officer with 18 years experience, and complete familiarity with this case, that the complaining witnesses’ testimony was not contaminated and (2) precluded from hearing that, in fact, this officer had no special insight into whether the complaining witnesses were credible]
IV. BECAUSE THE DEFENSE THEORY WAS THAT THE COMPLAINING WITNESSES CHANGED THEIR TESTIMONY AFTER COMMUNICATING WITH EACH OTHER, THE TRIAL COURT VIOLATED MR. MASTERSON’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND TO PRESENT A DEFENSE BY QUASHING SUBPOENAS SEEKING THE COMPLAINING WITNESSES’ COMMUNICATIONS WITH EACH OTHER
A. Introduction.
This was a case about credibility. At both trials, the state’s position was that jurors should believe the trial testimony of complaining witnesses [JD1], [JD2] and [JD3] that Mr. Masterson had raped them. At both trials the defense position was also the same: these witnesses were not credible.
But there was a readily apparent obstacle to this defense. After all, the three complaining witnesses had separately come forward to accuse Mr. Masterson of rape. And by the time of trial, there were aspects of their stories that were remarkably similar to one another. For jurors to acquit, the defense would have to offer a plausible explanation for why three seemingly independent witnesses would present what, on their face, appeared to be mutually reinforcing stories.
Defense counsel’s explanation was straightforward. All three complaining witnesses admitted they were admonished by police not to communicate with each other. They all admitted violating this admonition, communicating with one another for years. Defense counsels’ theory was that these communications resulted in contamination of their testimony, with the complaining witnesses changing their testimony over the years
To establish this theory, the defense subpoenaed communications between the complaining witnesses after 2016. The trial court granted the state’s motion to quash these subpoenas, finding in essence that the defense had not offered a plausible justification for seeking this information.
Despite being hamstrung by the trial court’s ruling, the defense did not ignore this aspect of the case. At trial, the complaining witnesses admitted that although they had been told by police not to speak with one another, they had each communicated (both electronically and in telephone conversations) with the others. (See 22 RT 1595-1597 [JD3]; 25 RT 2155- 2158 [JD1]; 28 RT 2623-2625, and 29 RT 2708-2709 [JD2].) But each claimed that these communications involved no details at all about what had actually happened. (22 RT 1596, 1733; 25 RT 2157-2158; 28 RT 2625- 2626.) As the trial court itself recognized “the defense is collusion -- that these women colluded with each other or communicated with each other from 2016 on . . . .” (11 RT 578.)
Like the judge, the prosecution too was very much aware of the defense theory of contamination. As discussed in Argument III, as part of its case-in-chief (and over objection) the prosecution offered testimony from Detective Myape that although the complaining witnesses ignored her advice not to communicate with each other, they had not contaminated each other’s testimony. (31 RT 2999.) Detective Myape repeated this conclusion during cross-examination, confirming her opinion that the testimony of the three complaining witnesses was not contaminated. (31 RT 3000.)
But because the defense subpoenas had been quashed, the defense could not present any direct evidence that the conceded communications between [JD1], [JD3] and [JD2] did involve the details of what had happened and resulted in contamination of their respective testimonies. The defense could not directly impeach the complaining witnesses’ testimony that these communications never involved the details of what had happened. And the defense could not rebut the prosecution’s assertion that there was no contamination. Thus, aside from circumstantial evidence showing that the complaining witnesses communicated with each other for years prior to trial -- and that their versions of events changed over that time in a manner consistent with contamination -- there was no direct evidence that the communications themselves actually supported a contamination theory.
Jurors were aware of this obvious gap in the defense case. Thus, during deliberations the jury explicitly asked to see “all social media correspondence, emails, and texts among the three witnesses . . . .” (36 RT 3442.) This was, of course, the precise evidence defense counsel had asked for prior to trial. Responding to the jury’s question, the trial court effectively advised jurors that they had all the evidence they were going to get and would not be receiving this information. (36 RT 3442.)
As more fully discussed below, the trial court’s decision to quash the subpoenas cannot be sustained. The state’s case depended almost entirely on the credibility of the complaining witnesses. These witnesses admitted they had ignored police advice not to communicate with each other. And whatever else may be said about the testimony of the complaining witnesses, it is fair to say that over time there were many substantial changes in their reported versions of events. Contrary to the trial court’s ruling, and as the jury’s common-sense question during deliberations confirms, there was ample justification for defense counsel to seek the communications these witnesses had with each other. The proper remedy for the trial court’s error is a conditional reversal, remanding the case to the Superior Court with instructions to provide trial counsel with access to the information which had not been disclosed, and permit counsel to argue what use would have been made of the information at trial.
B. The Relevant Facts.
Defense counsel first broached the contamination theory at the preliminary hearing, noting the complaining witnesses all admitted speaking to one another, engaging in “four years of speaking and conferring, and, over time, their stories are becoming more similar to one another.” (8 ART (8/23/24) 1839.) Counsel had good cause to at least investigate whether the witnesses were communicating with each other and changing their stories.
As to [JD1], for example, between her initial version of events given to police in June of 2004 and her later preliminary hearing and trial testimony in 2021 through 2023, there were numerous changes. Many of these changes related either to the possibility of drugging or to Mr. Masterson’s use of force which, critically, was an element of forcible rape required to bypass the statute of limitations under the state’s theory. Thus, in her initial version of events given to police in 2004, [JD1] described a September 2002 sexual encounter with Mr. Masterson as “consensual.” (30 RT 2938-2939.) As to the charged April 2003 incident, [JD1] initially reported that when she arrived at Mr. Masterson’s home, she was in the kitchen together with Mr. Masterson when he made her a drink. (30 RT 2924; 8 CT 2290.) She reported that after she became ill, he helped her up the stairs. (30 RT 2925- 2926; 31 RT 3081; 8 CT 2290-2291.) And according to police officers Schlegel and Myers, in her initial interviews with police [JD1] said nothing about Mr. Masterson displaying a gun during the April 2003 encounter. (30 RT 2912, 2936-2937, 2942; 31 RT 3084-3085.)
But sometime after 2016, and by the time of the 2021 preliminary hearing and subsequent trials, things changed. The September 2002 incident was no longer consensual, it was rape. (5 ART (8/23/24) 1018, 1048; 26 RT 2191.) And the incidental touching of her anus during that episode, for which she told police Mr. Masterson had immediately apologized, became forcible sodomy causing “the sharpest pain I’ve ever experienced.” (24 RT 1930; 31 RT 3150.) As to the 2003 incident, [JD1] was no longer together with Mr. Masterson in the kitchen when he made her a drink; now, he made the drink alone and brought it out to her on the patio. (24 RT 1965-1966.) Mr. Masterson was no longer helping her up the stairs, he was carrying her upstairs while she cried “no, no.” (5 ART (5/17/24) 666-668.) And now [JD1] recalled that Mr. Masterson displayed a gun during the April 2003 incident. (8 ART (8/23/24) 1842; 25 RT 2027.) Every one of these embellishments -- especially the gun -- supported a conclusion that the 2003 incident was forcible.
Similarly, [JD2]’s version of events evolved in the key areas of force and drugging. [JD2] spoke with her mother about the 2003 incident, never mentioned the possibility of being drugged and said alcohol was involved. (30 RT 2892.) She spoke with her friend Mariah O’Brien sometime between 2011 and 2013 and again did not mention drugging. (30 RT 2859-2861.) And [JD2] told police in 2017 that she was not afraid she would either be hurt or hit. (8 CT 2387-2388; 9 CT 2525.)
But sometime after 2016, [JD2] claimed Mr. Masterson may have given her a “roofie” and drugged her. (29 RT 2719-2720.) And by the time of the preliminary hearing, [JD2] claimed that she was afraid the incident would escalate to physical violence. (7 ART (8/23/24) 1620-1621.)
These changes all gave defense counsel sound reason to at least inquire into whether the complaining witnesses were communicating with each other and, even if in small ways, changing their testimony to increase the likelihood of a forcible rape conviction. Significantly, there was never any dispute as to whether the complaining witnesses were in fact communicating with one another. As noted above, they each admitted it under oath. (See 23 RT 1733-1734; 25 RT 2155-2158; 28 RT 2610-2615, 2623-2625; 29 RT 2708-2709.) In order to prove that these communications involved potential contamination of testimony, defense counsel served subpoenas on [JD1], [JD2] and [JD3] seeking “all communications in your possession relating to” the sexual assault allegations against Mr. Masterson. (2 CT 365 ¶ 11 [subpoena to [JD1].]; 372 ¶ 11 [JD2.]; 379 ¶ 11 [JD3].) But in addition to seeking communications between the three complaining witnesses, these subpoenas also requested substantial additional material from them -- indeed each subpoena identified between 24 and 27 categories of material to be provided. (Ibid.)
The prosecution moved to quash these subpoenas. (2 CT 349-359.) In an August 2021 hearing, the court noted the seven-factor test set forth by the Supreme Court for assessing the propriety of discovery from a third party. [The seven factors identified by the Supreme Court as relevant to assessing the propriety of discovery from a third party are whether: (1) there is a plausible justification for the discovery, (2) the request for material is adequately described and not overly broad, (3) the material is reasonably available to the person from whom it is sought and not readily available to the defendant from other sources, (4) production of the material would violate a third party’s confidentiality or privacy rights or intrude upon a protected governmental interest, (5) defendant’s request is timely, (6) the time required to produce the information would require an unreasonable delay of trial and (7) production of the records would place an unreasonable burden on the third party. (Facebook, Inc. v. Superior Court (2020) 10 Cal.5th 329, 345-348.)]
Applying those factors, the trial court granted the state’s motion to quash. Relying on factors (1), (2), (3) and (4) the court noted: (1) defense counsel had not offered a “plausible justification” for acquiring information from the complaining witnesses, (2) the subpoenas were overly broad, requesting substantial material other than communications between the three complaining witnesses, (3) because the requests were so broad, the complaining witnesses would be unlikely to have kept all such communications and (4) the requests would actually require the complaining witnesses to turn over materials covered by statutory privileges such as the physician-patient and attorney-client privileges. As to factor (7), the breadth of the requests would impose an undue burden on the witnesses. (9 ART (8/23/24) 2237-2239.)
The defense lawyers at the first trial did their best to present the defense theory without having access to any communications between [JD1], [JD2] and [JD3] In opening statements, defense counsel explained that despite Detective Myape’s directive not to discuss the case with each other because sharing their stories is “cross pollination” and their “credibility would be shot,” the complaining witnesses had done just that. (4 ART (5/17/24) 516- 518.) At trial, defense counsel elicited from Detective Myape that she told [JD1], [JD2] and [JD3] not to speak to one another because it would “contaminate” the case and it would look like they were “trying to collude.” (13 ART (5/17/24) 1982-1984.) During cross examination, defense counsel questioned [JD1], [JD2] and [JD3] on this very point. All three admitted that Detective Myape told them not to have further contact with each other. (6 ART (5/17/24) 974; 10 ART (5/17/24) 1508-1509 [JD3]; 12 ART (5/17/24) 1831, 1833-1834 [JD2].) But as [JD2] made clear, all three ignored this advice and continued to communicate with each other. (12 ART (5/17/24) 1833-1834.) In closing argument, defense counsel again laid out the defense theory as best he could; the complaining witnesses shored up their stories by “sp[eaking] with each other” before the 2016 reports and then “continu[ing] to speak” afterwards until trial. (20 ART (5/17/24) 2899-2900.)
As discussed above, the jury at the first trial hung on all three counts, leaning heavily towards acquittal on all counts: 10-2 (count 1 involving [JD1]), 8-4 (count two involving [JD2] and 7-5 (count 3 involving [JD3]) (8 RT 504.)
Prior to the second trial, defense counsel sought once again to subpoena communications between the complaining witnesses. (11 RT 561-562.) But these subpoenas were very different. Now, defense counsel did not seek between 24 and 27 categories of information from the complaining witnesses. As to [JD3], the subpoena was very narrow and only sought communications she had “concerning Masterson” with [JD1] and [JD2]. (Settled record (“SR”) Exhibit 1 at pp. 12-14.)20 As to [JD1], the subpoena only sought communications she had “concerning Masterson” with [JD3], [JD2] and prosecution witness Rachel Dejneka. (Id. at pp. 4-6.) As to [JD2], the subpoena sought communications she had “concerning Masterson” with [JD1], [JD3] and four other witnesses. (Id. at pp. 7-9.)
This much narrower inquiry into whether the complaining witnesses were communicating details about the case with each other was justified not only by the changing versions of events (discussed above), but by a most unusual aspect of the case. As discussed in Section C of the Statement of Facts, as early as 2017, well before charges were filed, [JD1] told her mother in a recorded telephone call that “collusion” was how she would “reopen[]” the statute of limitations in her case. (8 CT 2381.) A subsequent text from [JD1] to Detective Vargas in January 2019 established that [JD1] was aware of the specific requirements needed under section 667.61 to bypass the statute of limitations. (8 CT 2275; 9 CT 2413.) Indeed, [JD1] cited section 667.61 by number. (Ibid.) And for her part, [JD2] was also aware of statute of limitations concerns; in a May 2017 recorded interview, the prosecutor explained to [JD2] that resolution of the “statute of limitations issue” would “depend on certain acts that were done, and how they were done . . . .” (8 CT 2384; 9 CT 2525.) On this record, defense counsel made a sound decision to narrow the subpoenas, and once again investigate whether the complaining witnesses’ communications with one another were contaminating their testimony in an effort to fall within the provisions of section 667.61 and remedy what the prosecutor himself described to [JD2] as the “statute of limitations issue.” [Text messages from [JD3] show she too was aware of the statute of limitations and what she called “statute issues.” (9 CT 2403, 2407.)]
There is certainly nothing inherently nefarious about witnesses being advised of potential statute of limitations problems. But by the same token, given that the complaining witnesses were aware of the statute of limitations concerns -- and at least one was aware of the potential multiple-victims forcible-rape exception to the statute of limitations set forth in section 667.61 -- there was an obvious incentive for the witnesses to alter their testimony to increase the chances of bypassing the statute of limitations by falling within the forcible rape provisions of section 667.61. When combined with subsequent changes in the witnesses’ testimony that did just that, defense counsel was virtually compelled to investigate whether there was a connection between the two. Indeed, at the preliminary hearing, the trial court itself recognized that “it is relevant if they were talking to each other and they were talking to each other particularly about . . . their incidences with Mr. Masterson.” (5 ART (8/23/24) 1106.)
But in a February 23, 2023 hearing, the court quashed these narrower subpoenas as well. The court noted that it was not “going to repeat” the analysis of the seven factors it had performed in August 2021 and that it was “incorporating those by reference.” (11 RT 579.) The trial court recognized that in comparison to the subpoenas it considered in August 2021, the new subpoenas were far narrower in scope, but it discounted that factor explaining “that was not the sole basis for the court granting the motions to quash [in August 2021].” (11 RT 579.) As to the all-important “plausible justification” factor, the court noted that because [JD1] had reported in 2003/2004 “the plausible justification factor . . . is undermined by the victim’s reporting of the incident[] -- regardless of whatever the first jury did -- what they reported . . . before any alleged defense collusion would have occurred.” (11 RT 578-579.) The court also supported its decision to quash the subpoenas by noting “there is a strong governmental interest in the protection of the third parties’ private -- as I said, text messages, written communications, emails, et cetera.” (11 RT 579.)
As noted above, the prosecution recognized the importance of this evidence. Although the trial court quashed subpoenas to the complaining witnesses prior to the first trial, defense counsel had nevertheless argued that the testimony of the complaining witnesses had been contaminated. (20 ART (5/17/24) 2899-2900.) Accordingly, at the second trial the prosecution anticipated this theory of defense and introduced testimony from Detective Myape in its case-in-chief that although the complaining witnesses had ignored her advice not to communicate with each other, she did not believe they had actually contaminated each others’ testimony. (31 RT 2999.)
Perhaps of greater significance, the jury itself noted the importance of this area. During deliberations jurors asked to see “all social media correspondence, emails, and texts among the three witnesses . . . .” (36 RT 3442.) As noted above, and precisely because it had quashed the subpoenas, the court advised jurors they would not receive this evidence. (36 RT 3442.)
C. The Trial Court Violated Both State And Federal Law In Refusing To Allow Defense Counsel To Subpoena Communications Between The Complaining Witnesses.
The right of a criminal defendant to pretrial discovery “is based on the fundamental proposition that [the defendant] is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information.” (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535–536. See generally Delaney v. Superior Court (1990) 50 Cal.3d 785, 806 n.18. [the right to discovery in criminal cases arises from the due process clause.].) Criminal defendants can establish a right to third party discovery by “demonstrating that the requested information will facilitate the ascertainment of the facts and a fair trial.” (Id. at p. 536.) “The right of a defendant in a criminal proceeding to the use of the subpoena [and/or] subpoena duces tecum[ ] to compel production of witnesses [and/or] documents is grounded upon due process rights found in the California Constitution, article I, section 15.” (Smith v. Superior Court (Sacramento) (2020) 52 Cal.App.5th 57, 76. Accord People v. York (1980) 108 Cal.App.3d 779, 790.)
There is a federal component to this issue as well. As discussed in Argument II, supra, the right to present evidence “has long been recognized as essential to due process.” (Chambers, supra, 410 U.S. at p. 294.)
The policy of ensuring a fair trial is so strong that defendants seeking discovery need not show the evidence sought is admissible, merely that it “may lead to admissible evidence.” (People v. Zamora (1980) 28 Cal.3d 88, 96.) When the evidence sought is in the hands of a third party “[a] showing . . . that the defendant cannot readily obtain the information through his own efforts will ordinarily entitle him to pretrial knowledge of any unprivileged evidence, or information that might lead to the discovery of evidence, if it appears reasonable that such knowledge will assist him in preparing his defense.” (Hill v. Superior Court (1974) 10 Cal.3d 812, 817.)
As the trial court here correctly noted, the California Supreme Court has set forth a seven factor test for assessing whether to grant discovery from a third party when there has been a motion to quash. (Facebook, Inc., supra, 10 Cal.5th at pp. 345-348.) Mr. Masterson has set forth the seven factors in footnote 19 above. As courts recognize, however, the seven factors are not of equal weight. The “most significant” consideration -- which “should be given prominence” -- is the question of whether defendant has shown a “plausible justification” for the evidence. (Facebook, supra, 10 Cal.5th at p. 345, fn. 6. Accord People v. Madrigal (2023) 93 Cal.App.5th 219, 258.)
Madrigal provides a useful example. There, defendant was charged with murder. Prosecution eyewitness Pacheco, a former co-defendant, was a significant prosecution witness. Defense counsel sought recordings of jail calls Pacheco made after being arrested, speculating that Pacheco may have made statements in her jail calls about the offense which were inconsistent with, and could be used to impeach, Pacheco’s testimony at trial. (93 Cal.App.5th at p. 254.) The trial court ruled that defense counsel’s plausible justification “amounted to ‘pure speculation’ and there was no indication the records would contain the information she sought.” (Id. at p. 256.)
The appellate court reversed, noting that the good cause/plausible justification standard imposed a “relatively low threshold for discovery.” (Ibid. citing People v. Gaines (2009) 46 Cal.4th 172, 182.) As to whether counsel established a plausible justification, the court noted (1) Pacheco was an important government witness, (2) Pacheco had “changed her statements over the course of multiple interviews with police” and (3) Pacheco had in fact spoken with other defendants in the case. (Id. at p. 258.) The court held that the defense had carried its burden of showing a plausible justification:
Given the relevance of Pacheco’s testimony and her history of contradictory statements, it is plausible that if she made statements about the case during jailhouse phone calls, defense counsel could use them to impeach Pacheco’s testimony, undermine her credibility, or use them to discover exculpatory evidence. We conclude the materials Madrigal sought might have led to the discovery of evidence that would have assisted him in preparing his defense.
(93 Cal.App.5th at p. 259.)
Pursuant to Madrigal, defense counsel here also carried his burden of showing a plausible justification. Like witness Pacheco in Madrigal, the witnesses as to whom discovery was sought in this case -- [JD1], [JD2] and [JD3] -- were the critical witnesses for the prosecution. Like witness Pacheco in Madrigal, the record here shows the witnesses made statements which changed over time. Here, the changed testimony was consistent with an attempt to avoid the statute of limitations bar by increasing the chances of forcible rape convictions. Like witness Pacheco in Madrigal, where the record showed the telephone calls the defense requested had in fact been made, the record here shows that these witnesses did in fact communicate with each other. And here, the record showed even more; [JD2] had been told resolution of the statute of limitations issue would depend on whether certain acts were done and “how they were done,” [JD1] admitted she was aware of the requirements of section 667.61, and she told her mother that the reason there was no statute of limitations bar in the case was because of “collusion.” On this record, and just as in Madrigal, “the materials [defense counsel] sought might have led to the discovery of evidence that would have assisted [counsel] in preparing his defense.”
As noted above, in reaching a contrary result with respect to the subpoenas to [JD1] and [JD3], the trial court concluded “the plausible justification factor . . . is undermined by the victim[s]’ reporting of the incidents -- regardless of whatever the first jury did -- what they reported back in 2001 and 2003 before any alleged defense collusion would have occurred.” (11 RT 578-579.) This analysis does not support the trial court’s ruling for two main reasons.
First, as to [JD1], the court was flat wrong in concluding that [JD1]’s prior reporting “undermined” the “plausible justification” for seeking their communications. On the record here, the fact that [JD1] reported in 2003/2004 does not undermine defense counsel’s plausible justification for seeking their communications, it affirmatively establishes it.
As the trial court noted, [JD1] reported a version of events in June 2004. As discussed above, in these initial versions of events, (1) [JD1] had had consensual sex with Mr. Masterson in September 2002, (2) during that incident, Mr. Masterson apologized when his penis touched her anus, (3) when [JD1] arrived at Mr. Masterson’s home on April 25, 2003, the two were together in the kitchen when he made her a drink, (4) as she became ill he helped her upstairs and (5) according to officers Schlegel and Myers, she never mentioned a gun when she spoke with them in June of 2004. (26 RT 2211; 30 RT 2912, 2924-2926, 2936-2939; 31 RT 3084-3085, 3150.) By the time of the preliminary hearing, (1) the 2002 incident was rape, (2) it also involved forcible sodomy causing “the sharpest pain I’ve ever experienced,” (3) she was no longer together with Mr. Masterson when her drink was made, (4) he carried her upstairs while she yelled “no, no, no” and (5) he brandished a gun during the incident. (5 ART (5/17/24) 645-646, 666-668, 688-689; 6 ART (5/17/24) 835-836; 22 RT 2009; 24 RT 1930; 24 RT 1966- 1967; 25 RT 2027; 26 RT 2191.) Given these changes from [JD1]’s initial account to police -- all supporting a conclusion that force was used -- the fact that she previously reported in 2004 and then substantially changed her recollection was not a reason to quash the subpoena, it was a reason to grant it.
This is especially true here. As noted above, in a recorded call [JD1] told her mother that “collusion” was the method by which the statute of limitations problem was going to be surmounted. (8 CT 2381.) And [JD1]’s text to Detective Vargas -- explicitly citing Penal Code section 667.61 -- shows that [JD1], was not only generally aware of the statute of limitations problem in the case, but the specific requirements of section 667.61 as a possible way to bypass the limitations problem. (8 CT 2275; 9 CT 2413.)
Second, as to [JD2] the record is clear she did not report to police until 2017, well after she began communicating with [JD3] (28 RT 2610-2615 [[JD3] contacts [JD2] in 2016, [JD2] reports to police in 2017].) So there was no “reporting” -- at least to police -- to “undermine” the plausible justification for seeking [JD2]’s communications.
To the extent the trial court was referencing oral versions [JD2] told family and friends, and just like [JD1], these versions evolved over time as to the key element of force. While the evolution of [JD2]’s testimony is discussed in the Statement of Facts, supra at pages 53-60, suffice it to say here that the evolution of [JD2]’s account towards a version of events more supportive of force provided ample justification for issuing the requested subpoenas. Like [JD1], the record shows [JD2] was aware of the potential statute of limitations problem in the case. Indeed, it was the prosecutor himself who told [JD2] that in light of the applicable statute of limitation, the ability to bring a criminal prosecution would depend on the “acts that were done, and how they were done . . . .” (8 CT 2384; 9 CT 2525.)
In quashing the subpoenas, the trial court also relied on the “strong governmental interest in the protection of the third parties’ private -- as I said, text messages, written communications, emails, et cetera.” (11 RT 579.) Of course, because this interest applies in virtually every case where communications from a third party are sought, that interest alone cannot predominate. Instead, that interest must be balanced against the plausible justification. And here, as discussed above, the initial version of events -- along with the evolving nature of those versions over time -- did not “undermine” justification for releasing communications from [JD1] and [JD2] as the trial court ruled, it actually enhanced that justification. Because the trial court failed to properly assess the plausible justification for seeking these communications, the balance it struck between plausible justification and the privacy interest at stake was necessarily compromised. [As noted above, in addition to addressing the plausible justification and privacy rights factors -- factors (1) and (4) in the seven factor analysis -- at the February 2023 hearing, the trial court incorporated its findings from the August 2021 hearing where it quashed the subpoenas sought by prior counsel. (11 RT 579.) The additional factors the court relied on to quash the subpoenas at that August 2021 hearing were factors (2), (3) and (7) -- all related to what the trial court here characterized as the “stunningly overbroad” nature of the August 2021 subpoenas. (9 ART (8/23/24) 2237.) Because the August 2021 subpoenas were so broad, not only was it unlikely that the complaining witnesses would have kept all such communications, but providing the volume of material would certainly have imposed an undue burden on the witnesses. (9 ART (8/23/24) 2237-2239.) But as the trial court recognized, the subpoenas at issue in February of 2023 were much narrower than the subpoenas at issue in August 2021. (11 RT 579.) Thus, the overbreadth analysis identified in August 2021 really had very little application to the properly narrowed February 2023 subpoenas.]
D. Because Harmless Error Analysis On This Record Would Be Speculative, A Remand Is Required.
When a trial court has erred in denying discovery to a criminal defendant, outright reversal is not required absent a showing of prejudice. (Gaines, supra, 46 Cal.4th at p. 181; People v. Sewell (1978) 20 Cal.3d 639, 646; People v. Coyer (1983) 142 Cal.App.3d 839, 843.) But precisely because the trial court here quashed the subpoenas, it is impossible to determine what impact the communications between the complaining witnesses would have had on their credibility. On such a record, “application of traditional harmless error analysis would be ‘speculative . . . .’” (Coyer, supra, 142 Cal.App.3d at p. 844.)
Coyer addressed this identical situation. There, the trial court improperly refused to permit discovery of pending charges against prosecution witnesses. Because the trial court had not permitted discovery, it was impossible for the appellate court to reliably determine whether defendant had been prejudiced from the error. (142 Cal.App.3d at p. 844.) For that reason, the appellate court remanded the case back to the Superior Court with instructions to provide trial counsel with access to the information which had not been disclosed, and permit counsel to argue what use would have been made of the information at trial. (Ibid.) The same remedy should apply here; a remand is required. (See Madrigal, supra, 93 Cal.App.5th at pp. 261-264; People v. Hustead (1999) 74 Cal.App.4th 410, 421.)
V. THE TRIAL COURT VIOLATED MR. MASTERSON’S RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL BY REFUSING TO GRANT A CONTINUANCE OR ISSUE A SUBPOENA SO COUNSEL COULD PREPARE FOR NEWLY NAMED SECTION 1108 WITNESS KATHLEEN J.
A. Introduction.
In 2021, well after news of the June 2020 charges against Mr. Masterson had been reported world wide, Canadian citizen Kathleen J. reported an incident to Toronto police she said had occurred with Mr. Masterson 21 years earlier. Prior to the first trial, the prosecution provided the defense with some Toronto police reports but advised the defense in writing that it would not be calling her as a witness.
The second trial was set for March 27, 2023. The prosecution made no further mention of Canadian witness Kathleen J. until March 6, 2023 -- three weeks before trial. At that point, the prosecution first gave notice that it would call her as an Evidence Code section 1108 witness. Defense counsel immediately requested the videotape interviews Toronto police had conducted in 2021. After reviewing those videotapes on March 13, counsel moved (1) to exclude testimony from Kathleen J. because of insufficient time to investigate and confront her testimony, (2) in the alternative, for a continuance to adequately prepare for her testimony by obtaining documents from Canada and interviewing witnesses about this incident and (3) for issuance of a subpoena to obtain any non-privileged documents or communications Kathleen J. had involving Mr. Masterson.
The trial court denied the motion to exclude. It denied the request for a continuance. It refused to issue the requested subpoena. As more fully discussed below, the trial court’s rulings violated Mr. Masterson’s state and federal constitutional rights to the effective assistance of counsel, compulsory process and a fair trial.
B. The Relevant Facts.
Prior to the first trial, the prosecution identified two potential section 1108 witnesses, Tricia V. and Kathleen J., a Canadian citizen. On August 22, 2022, the prosecution gave formal notice that it would be calling Tricia V. as a section 1108 witness at trial. (9 CT 2646.) Several weeks later (on September 15, 2022), the prosecution provided defense counsel with a “heavily redacted Toronto police report” regarding a 2000 incident Kathleen J. first reported to Toronto police in 2021, but explicitly advised defense counsel that “the People do not intend to call [K.J.] as a witness at trial.” (11 CT 3205 [emphasis in original]; 16 RT 810.)
True to its word, the prosecution called Tricia V. to testify at the first trial. On direct examination Tricia testified that Mr. Masterson, who she knew from working on a movie with him in 1996, raped her twice in 1996. (17 ART (5/17/24) 2487, 2492-2508, 2550-2560.)
But the ostensibly incriminating import of this testimony imploded on cross-examination. During her cross-examination, Tricia V. acknowledged that in 2017 she read a Facebook feed about Mr. Masterson and she told police she reached out to his brother Chris to find out if “Danny was ok.”
(17 ART (5/17/24) 2585-2586.) Defense counsel obtained a copy of the Facebook message Tricia V. had sent:
[H]ey Chris, I saw a fucked up article posted about Danny. Just wanted to send you guys some support. Danny and you were, too, were [sic] so protective of me, looked out for me and put up when my BF cheated on me and I didn’t have a place to stay. Hope you are both doing well. XOX, Tricia.
(18 ART (5/17/24) 2645; 20 ART (5/17/24) 2919-2920.)
As noted above, although jurors at the first trial were leaning heavily towards acquittal, they were ultimately unable to reach a verdict. The trial court declared a mistrial on November 30, 2022. (8 RT 503.) The trial court then set a series of dates for a second trial: (1) January 10, 2023 for a status conference, (2) March 6, 2023 for filing of pre-trial motions and (3) March 27, 2023 for trial. (8 RT 508.) The trial date was later changed to April 11, 2023. (10 RT 553.)
At the January 10, 2023 status conference, defense counsel expressed his concern that on the prior day, he had been told the prosecution planned to call “three new experts” and “one unnamed potentially unfound or unknown -- I don’t know if it’s a percipient witness.” (9 RT 542.) Counsel noted that there might be additional requests for subpoenas. (9 RT 543.) In light of the trial court’s previous order that no successive subpoenas be served without prior court approval (3 RT 171-172), and concerns about the time necessary to get subpoenas out, defense counsel asked for a “date in the near future” to address any subpoena issues. (9 RT 543-544.) The court set a status conference for February 16, 2023, and left it to the parties to work out a sooner date for hearing any subpoena issues. (9 RT 544-545.) At this January 10 hearing, the prosecution gave no notice it would be calling Kathleen J. as a section 1108 witness.
At the short status conference on February 16, 2023, defense counsel said he had additional subpoenas to serve which, based on the court’s previous order, required court approval. (10 RT 555.) The court set February 23, 2023 as the date to discuss these subpoenas. (10 RT 556.) At this February 16, 2023 hearing, the prosecution gave no notice it would be calling Kathleen J. as a section 1108 witness.
As discussed in Argument IV above, on February 23, 2023 the court addressed five subpoenas the defense requested for [JD1], [JD2], [JD3], witness Rachel Dejenka and section 1108 witness Tricia V. (11 RT 561.) As relevant here, at this February 23, 2023 hearing the prosecution gave no notice it would be calling Kathleen J. as a section 1108 witness.
The prosecutor elected not to call Tricia V. as a section 1108 witness at the second trial. Instead, on March 6, 2023 -- more than three months after the first jury hung and only weeks before the second trial was to start -- the state first gave notice that it would now be calling Kathleen J. as a section 1108 witness. (16 RT 810.)
Defense counsel took four steps in response. First, defense counsel immediately asked for the video recordings of witness interviews referenced in the redacted police report furnished to the defense prior to the first trial. (1 CTO 92; 13 RT 622.) Defense counsel received those videos on March 13, 2023. (1 CTO 92.)
Second, after reviewing these videos -- and only four days later -- counsel incorporated into his written pre-trial motions a request to exclude evidence from Kathleen J. “because the People’s recent disclosure of their intention to call Kathleen J. prevents Masterson from fully investigating, preparing for and defending against her 23-year-old allegation.” (1 CTO 90.) Counsel explained that in light of the information contained in the videos, there were a number of witnesses to interview to prepare for testimony from Kathleen J.:
Based upon the details revealed in the recorded interviews, Masterson -- to defend against these allegations that he did not know about until 2022 -- must now attempt to interview Kathleen J., her ex-husband, her ex-girlfriend, and two of her former stepdaughters. Masterson must also seek to obtain written notes kept by Kathleen J. and a reporter with whom she apparently spoke. Masterson must also seek to locate and interview witnesses who may have relevant information regarding an incident alleged to have occurred 23 years ago.
(1 CTO 92-93. See 13 RT 624-625.) At the March 27, 2023 hearing on this motion, defense counsel explained that he was “not effectively prepared to represent my client” in connection with this evidence. (13 RT 630.) The next day the trial court denied the defense motion to exclude, ruling that the “defense has had sufficient notice to prepare for the proffered 1108 testimony.” (11 CT 3187.) The court delayed trial for one week, until April 17, 2023. (11 CT 3164.)
Third, only two days after the trial court refused to exclude Kathleen J.’s testimony, defense counsel moved for a continuance “in order to effectively prepare for evidence to be presented at the re-trial that was previously . . . not sought to be admitted, at the first.” (11 CT 3215, 3218.) Under the current trial date, “the defense cannot be prepared to provide effective representation . . . .” (11 CT 3218) In support of his request for a continuance, defense counsel filed a declaration under seal referencing what he described as work-product and case strategy which would detail the “investigative and procedural steps” that needed to be taken to provide effective assistance at trial. (11 CT 3202-3203, 3223.)
The court denied a continuance. (11 CT 3223.) The court ruled that the defense had “plenty of time to perform whatever investigation [of Kathleen J.] he so chose” because he received notice of Kathleen J. in September 2022. (15 RT 767.) Even using the March 6, 2023 date as notice, had the defense started that very day, documents from Canada could “possibly [have been] produced by April 6th to May 6th” and counsel would have had time from the commencement of voir dire to prepare. (15 RT 767.) The court said nothing at all about defense counsel’s ability in the limited time before trial to locate and interview the numerous Canadian witnesses he had identified from the videotapes provided.
Fourth, several days after the trial court denied the continuance, defense counsel sought two subpoenas in connection with Kathleen J. The first was to the Toronto Police Department, requesting “all documents and communications relating to” Mr. Masterson’s case. (11 CT 3231-3234.) The court permitted service of this subpoena and signed a Defense Request for International Judicial Assistance (Letters Rogatory). (11 CT 3229-3236.)
The second subpoena was to Kathleen J. and in identical terms requested “all documents . . . [and] all communications” relating to Mr. Masterson. (SR, Exhibit 2 at pp. 5-6.) The court went through the sevenfactor test discussed above in Argument IV. The court agreed that the information defense counsel sought “could reasonably assist the defendant in preparing his defense or lead to admissible evidence” and that it was not available from any other source. (16 RT 808.) Although the trial court had just granted the defense request for “documents and communications” relating to the case from the Toronto police, the court went on to deny issuance of the subpoena as to Kathleen J. by finding (1) the definition of “document” was overly broad, (2) Kathleen J. had a privacy interest, (3) the request was untimely since the defense was on notice of Kathleen J. since September of 2022, (4) the request “likely would cause a delay in the trial” and (5) the request would place an unreasonable burden on Kathleen J. to ask for her communications regarding the Masterson case. (16 RT 808-809.) When defense counsel pointed out that he did not receive notice in September 2022 that Kathleen J. would be a witness because he was explicitly told in writing by the prosecution that it “was not -- not -- emphasize -- calling Kathleen J.” the trial court accurately noted that the “court and defense counsel look at what is proper notice fundamentally different[ly].” (16 RT 810-811.)
Jury selection began moments later. (16 RT 812.) Ultimately, Kathleen J. testified that Mr. Masterson raped her in 2000. (31 RT 3098- 3106.) Because of the trial court’s refusal to issue a subpoena directly to Kathleen J., defense counsel was unable to obtain any impeaching documentary evidence remotely comparable to the devastating impeachment evidence the defense had presented at the first trial regarding Tricia V. And because the trial court denied a continuance, defense counsel was unable to investigate “her ex-husband, her ex-girlfriend, . . . two of her former stepdaughters . . . a reporter with whom she apparently spoke . . . . [or] witnesses who may have relevant information” about the 2000 incident. (1 CTO 92-93.) In closing argument, the prosecutor spent substantial time urging jurors to rely on Kathleen J. in convicting Mr. Masterson. (33 RT 3301, 3302, 3303, 3304, 3305.)
C. The Combination Of Rulings Denying Both The Subpoena And A Continuance Violated Mr. Masterson’s Right To Effective Assistance By Requiring Counsel To Go To Trial Unprepared To Deal With Section 1108 Witness Kathleen J.
Under the Sixth Amendment, criminal defendants are entitled to the effective assistance of counsel at all critical stages of the proceedings against them. (United States v. Gouveia (1984) 467 U.S. 180, 187-189.) Given the fundamental role played by defense counsel in ensuring a reliable result, the right to counsel is not satisfied by the mere presence of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 685.) Instead, the Sixth Amendment requires counsel “who plays the role necessary to ensure that the trial is fair.” (Id. at 685.)
Generally speaking, there are two ways in which counsel can render ineffective assistance. First, counsel can make an error -- or a series of errors -- and thereby “fail [] to ‘render adequate legal assistance.’” (Id. at 686.) The Court has termed this type of failure as “actual ineffectiveness.” (Ibid.)
Alternatively, state interference with or restrictions on defense counsel can prevent even the most diligent of counsel from providing effective assistance. The Supreme Court has recognized a trial court may itself violate a defendant’s right to the effective assistance by actions which interfere with the ability of counsel to respond to the state’s case or conduct a defense. (Ibid.; accord Geders v. United States (1976) 425 U.S. 80, 81 [right to effective counsel violated where court precluded him from consulting with counsel during an overnight recess]; Herring v. New York (1975) 422 U.S. 853, 865 [right to effective counsel violated where trial court refused to allow defense counsel to make closing argument in bench trial]; Brooks v. Tennessee (1972) 406 U.S. 605, 617-618 [right to effective counsel violated where trial court required defendant testify first if he wished to testify at all].)
The lower federal courts have recognized some of the varied instances in which a trial court can deny a defendant his right to effective assistance. As in the Supreme Court, these cases hold that a court’s rulings can violate the right to counsel when they interfere with counsel’s ability to rebut the state’s case or present a defense. (See, e.g., Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234, 1237 [charging document did not provide adequate notice to counsel of theory on which state would rely]; United States v. Gaskins (9th Cir. 1988) 849 F.2d 454, 460 [instructional error gave jury an alternative theory of liability of which counsel was unaware]; United States v. Harvill (9th Cir. 1974) 501 F.2d 295, 295-296 [same]; Wright v. United States (9th Cir. 1964) 339 F.2d 578, 579 [instructional error removed defense on which counsel had relied].) Where a trial court’s denial of a continuance prevents defense counsel from preparing for an important prosecution witness, the right to counsel has been violated. (Hintz v. Beto (5th Cir. 1967) 379 F.2d 937, 942.) As the Fifth Circuit Court of Appeals succinctly stated, “[t]he actions of the trial court may cause ineffectiveness of counsel’s assistance.” (Bradbury v. Wainwright (5th Cir. 1983) 658 F.2d 1083, 1087.)
The “state interference” strand of the Court’s Sixth Amendment jurisprudence recognizes that the right to assistance of counsel is not satisfied by the presence of even diligent counsel under circumstances which make counsel unable to effectively represent the defendant. (Powell v. Alabama (1932) 287 U.S. 45, 71.) So the question to be answered here is whether the trial court’s actions in refusing to grant a continuance, and denying the subpoena, interfered with defense counsel’s ability to contest the state’s case. For two reasons, the answer is yes.
First, Kathleen J. was not some tangential witness to the state’s case. She was a section 1108 witness; when such evidence is admitted, “the odds of conviction increase dramatically.” (People v. Villatoro (2012) 54 Cal.4th 1152, 1155-1156.) Indeed, prior to the enactment of section 1108, such evidence had been excluded precisely because it was too powerful. (See People v. Alcala (1984) 36 Cal.3d 604, 631.) And because section 1108 evidence is so powerful, courts have reversed sexual assault convictions due to “suppression of impeachment evidence that could have undermined the credibility of [the section 1108 witness’] otherwise powerful propensity testimony.” (People v. Stewart (2020) 55 Cal.App.5th 755, 784.) This point is especially relevant here. At the first trial -- where Tricia V.’s section 1108 testimony was directly impeached by her Facebook communications expressing both gratitude and wholehearted support for Mr. Masterson -- the jury was split on all counts. This shows the importance of effective preparation in connection with section 1108 witnesses. Moreover, in assessing Kathleen J.’s importance to the case, it is worth noting the state elected to call her as the last witness jurors would hear before beginning deliberations.
Second, the trial court’s rulings in denying the continuance, and then refusing to authorize the Kathleen J. subpoena, are both unsupportable. In making this argument, Mr. Masterson recognizes that both of these rulings are reviewed for an abuse of discretion. (See, e.g., Ross v. Superior Court of Riverside County (2022) 77 Cal.App.5th 667, 680 [subpoena]; People v. Superior Court of Riverside County (2023) 93 Cal.App.5th 394, 402 [continuance].) But given the trial court’s expressed rationales, even this concededly deferential standard of review cannot save the rulings here.
Thus, while it may be true that trial courts have “broad discretion to determine whether good cause exists to grant a continuance of the trial” (People v. Jenkins (2000) 22 Cal.4th 900, 1037), that “discretion may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.” (People v. Alexander (2010) 49 Cal.4th 846, 934.) Where defense counsel has been unable to prepare for the testimony of an important prosecution witness, the denial of a continuance is an abuse of discretion. (Hughes v. Superior Court (1980) 106 Cal.App.3d 1, 4.) “To force an unprepared counsel to proceed to trial regardless of the reasons for the lack of preparedness would result in a violation of constitutional rights.” (Ibid. Accord People v. Fontana (1982) 139 Cal.App.3d 326, 332-334.) “[C]ounsel who has been denied the opportunity to prepare is the equivalent of no counsel at all . . . .” (People v. Maddox (1967) 67 Cal.2d 647, 652.) “[J]ust as a defendant may not be brought to trial too late . . . he may also not be brought to trial too soon, i.e., without adequate opportunity for preparation of his defense.” (Id. at pp. 652-653.)
That is just what happened here. Defense counsel made clear over and over again that he was not prepared for the testimony of Kathleen J. (See 1 CTO 92-93; 13 RT 630.) And the trial court’s refusal to grant a continuance was based on the court’s view that defense counsel actually had notice in September of 2022 that the prosecution would call Kathleen J. as a witness. (15 RT 767.) If this factual predicate were true -- if in September 2022 the prosecution had given defense counsel notice that Kathleen J. would be called as a witness -- the trial court’s ruling would be entirely proper given that the second trial did not start until April 2023.
But this factual predicate is not true. And it is not even very close.
Although it is true defense counsel was told that Kathleen J. had reported to Canadian police, the fact of the matter is that on September 15, 2022, the prosecution explicitly and in writing told defense counsel she would not be called as a witness. (11 CT 3205; 16 RT 810.) It is difficult to imagine how the prosecution could have made this more clear:
[T]he People do not intend to call her as a witness at trial.
(11 CT 3205, emphasis in original.) While considerable burdens are fairly placed on defense counsel in criminal cases, no defense lawyer is burdened with issuing subpoenas to investigate people in other countries who the state has promised it will not call as witnesses. The very idea defies common sense and ignores the real-world resource limitations which govern preparation for any trial. As such, the trial court’s denial of the request for a continuance was a plain abuse of discretion. (Compare People v. Murphy (1963) 59 Cal.2d 818, 826 [“The mere mention at the preliminary [hearing] of some event not charged as an offense can scarcely be held to put a person on notice that he must be prepared to instantly go to trial on an information which substitutes the casually mentioned event for the offense which had been charged.”].)
In concluding that defense counsel had notice in September 2022, the trial court never directly acknowledged the undisputed point that the prosecution had accompanied the September 2022 disclosure of Kathleen J.’s Toronto police reports with an explicit, written assurance that she was not going to be called as a witness. Instead, the trial court simply glossed over this critical point with a bland observation that ignores the obvious impact of the prosecution’s September 2022 representation:
[The] court and defense counsel look at what is proper notice fundamentally different (sic). The court finds notice is when you receive the information not when the court makes a ruling or some other reason. [The trial court’s alternative rationale was that even if counsel first received notice on March 6, had he acted right away in seeking materials from Kathleen J. they could “possibly [have been] produced [from Canada] by April 6th to May 6th.” As use of the word “possibly” suggests, this was nothing but speculation. Fairly read, the record shows that neither party nor the court were aware of when material subpoenaed from Canada would arrive. Speculation is not a proper exercise of discretion. (See In re Marriage of Heath (2004) 122 Cal.App.4th 444, 450.) And, in fact, according to the State Department, “[e]xecution of letters rogatory may take a year or more.” (https://travel.state.gov/content/travel/en/legal/travellegal-considerations/internl-judicial-asst/obtaining-evidence/Preparation-Le tters-Rogatory.html [last accessed 10/18/24].) There is, in addition, a fundamental irony in the trial court’s alternative rationale. Days after denying defense counsel’s continuance motion, the court went on to deny defense counsel’s subpoena for materials from Kathleen J. So the trial court’s alternative rationale was that it was denying a continuance because trial counsel waited four weeks to request a subpoena which the court refused to issue anyway. The trial court never explained what good it would have done to file the ultimately fruitless request for a subpoena sooner. (See People v. Hamilton (1989) 48 Cal.3d 1142, 1184 n.27 [where a trial judge’s later ruling against a defendant on the merits of an issue shows that an earlier objection would have been futile, trial counsel’s failure to have made the ultimately futile objection sooner will not bar appellate review].)]
The trial court’s denial of the subpoena fares no better. To be sure, the trial court dutifully articulated the seven factors to be considered. But as noted in Argument IV above, the seven factors are not all equal. The “most significant” factor which “should be given prominence” is the question of whether defendant has shown a “plausible justification” for the evidence. (Facebook, supra, 10 Cal.5th at p. 345, fn. 6.)
Here the court properly concluded that Mr. Masterson had shown the information sought “could reasonably assist the defendant in preparing his defense or lead to admissible evidence.” (16 RT 808.) In addition, the court recognized the information sought was not available from any other source. (16 RT 808.) But as noted above the court refused to issue the subpoena by finding: (1) the definition of “document and communication” was overly broad, (2) Kathleen J. had a privacy interest, (3) the request was untimely because the defense had been on notice of Kathleen J. since September of 2022, (4) the request “likely would cause a delay in the trial” and (5) it would place an unreasonable burden on Kathleen J. to ask for her communications regarding the Masterson case. (16 RT 808-809.)
The court’s reliance on the definitions of “document and communication” cannot outweigh the prominence of the court’s finding that the material sought could assist Mr. Masterson in “preparing his defense.” Indeed, this justification appears to be something of a makeweight; after all, the trial court had just issued a subpoena containing an identical definition of the word “document” without expressing any concern about the definition there. (Compare 11 CT 3233 with SR, Exhibit 2 at p. 5.) And as the case law has recognized, detailed definitions of terms like “documents” do not make requests overbroad:
The definitions included with the requests for production, though lengthy, do not make the requests overbroad, and do not turn them into blanket or generalized demands. The definition of “DOCUMENT,” for example, does not broaden the scope of the requests, but provides particularity as to the types of documents and things being sought. Extensive definitions often are necessary to prevent incomplete or evasive responses.
(SCC Acquisitions v. Superior Court (2015) 243 Cal.App.4th 741, 757.)
The same is true here. There was nothing burdensome about the definitions. Instead, they were typical for subpoenas and they were necessary to “prevent incomplete or evasive responses.” The trial court’s refusal to issue the subpoena was improper. [Given the “prominence” of the plausible justification factor -- and the finding there was justification here -- the remaining reasons given by the court do not justify the court’s ruling. For the reasons discussed above, the court’s timeliness finding is flatly contradicted by the record. And the court’s concern that the subpoena would delay trial needs to be put in context. Prior to the first trial, the prosecution explained in writing it would not be calling Kathleen J. That trial ended with a hung jury. As discussed above, the prosecution did not give notice of its intent to call Kathleen J. at the subsequent January 10, 2023 status conference, the February 16 status conference or the February 23 hearing on subpoenas for the complaining witnesses. Instead, the prosecution waited until March 6 -- only weeks before trial -- to give notice. Mr. Masterson’s point here is not that the prosecution did anything wrong. Indeed, in all fairness the prosecution may not have decided until March 5 that Kathleen J. would be a witness. Instead, Mr. Masterson’s point is much simpler: if indeed a subpoena would have delayed trial, the cause of that delay is as much the result of the March 6 notice of a foreign witness as it is anything that defense counsel did. This leaves Kathleen J.’s privacy interests and the burden of production. Of course, privacy interests can be mitigated by in camera review to ensure that the only material which is revealed is material directly relevant to the defense. And the potential burden of producing documents and communications related to the Masterson case should not outweigh the right to a fair trial in a case involving multiple life terms in state prison.]
Taken together, the refusal to issue the subpoena, and the denial of the continuance, left counsel unprepared for an important prosecution witness. Indeed, aside from the complaining witnesses themselves, Kathleen J. may well have been the most important prosecution witness in the case.
D. The Court-Induced Deprivation Of Counsel Requires Reversal.
The Supreme Court has articulated two different standards of prejudice to be applied in assessing when a violation of the Sixth Amendment right to counsel will require reversal. For both practical and policy reasons, the Supreme Court has made clear that the standard of prejudice depends entirely on the source of counsel’s ineffectiveness. Where the case involves “actual ineffectiveness” -- that is, where counsel has made errors which a reasonably competent attorney would not have made -- the burden is on the defendant to prove prejudice. As discussed below, where counsel’s ineffectiveness is caused by the state itself, prejudice need not be proven, but is presumed.
In Strickland the Supreme Court addressed for the first time the question of what standard should apply to “judge a contention that the Constitution requires that a criminal judgment be overturned because of the actual ineffective assistance of counsel.” (466 U.S. at p. 684.) The Court initially held that a defendant must prove his lawyer’s performance was deficient. (Id. at pp. 687-691.)
The Court then addressed allocation of the burden of proof in connection with the question of prejudice. The Court was explicit that allocation of the burden of proof depended on whether the right to counsel had been impaired by state conduct, or simply by an ineffective lawyer. Thus, the Court ultimately concluded it was appropriate to impose the burden of proving prejudice on the defendant in Strickland precisely because the state was not responsible for the error in the first instance:
[A]ctual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. The government is not responsible for, and hence not able to prevent, attorney errors that will result in reversal of a conviction or sentence.
(466 U.S. at p. 692.)
The Court was careful to distinguish these types of ineffectiveness claims from situations where the lawyer’s effectiveness was compromised because of state action. The Court noted that in cases involving “state interference with counsel’s assistance” the defendant did not have a burden to prove prejudice, but prejudice was “presumed.” (466 U.S. at p. 692.) The Court explained that the reason these types of errors were treated differently was because the state itself was “directly responsible [for these errors and as a result they were] easy for the government to prevent.” (Ibid.)
The different treatment Strickland afforded state-created impediments to counsel’s assistance reflected the exact position taken by the State of California as well. In Strickland, United States Solicitor General Rex Lee filed an amicus brief on behalf of the State of Florida, the petitioner in that case. The California Attorney General explicitly joined that brief. (466 U.S. at p. 670.) California argued that in cases of actual ineffectiveness, it was fair to impose the burden of proving prejudice on defendants “because neither the prosecution nor the court is responsible for the alleged defects in the proceedings.” (Strickland v. Washington, 82-1554, Brief of Solicitor General (Joined by California), 1983 U.S.S.Ct. Briefs LEXIS 530 at *14.) Emphasizing that in the typical ineffective assistance of counsel situation “there is no suggestion” that the prosecution or court were “responsible in any way” (id. at *19), California explained it would be unfair to impose a prejudice burden on the state because the court was simply not responsible for counsel’s error:
[B]ecause neither the prosecution nor the court is responsible for the alleged errors by defense counsel, it would be unfair to require . . . that the government bear the burden on the question [of prejudice].
(Id. at *20.)
Strickland’s focus on the source of the error in allocating the burden of proof was not only premised on California’s own position in the case, but on a long line of Supreme Court case law holding that where the state itself created an impediment to counsel’s representation in a criminal case, the defendant did not have to prove prejudice. Indeed, the Court’s case law both before and after Strickland makes this point plain.
For example, the Supreme Court has properly held that where defense counsel in a criminal case decides not to present closing argument on a defendant’s behalf, a defendant seeking to prove counsel ineffective must establish prejudice under Strickland. (Bell v. Cone (2002) 535 U.S. 685, 696-699; see People v. Dickey (2005) 35 Cal.4th 884, 925-926.) But where defense counsel’s failure to present closing argument is caused not by defense counsel himself, but by the trial court, the Court has held defendant need not prove prejudice. (Herring v. New York (1975) 422 U.S. 853.)
The difference between Herring and Bell, of course, is that the impediment in Herring was caused by the trial court. As the state of California argued in Strickland, it is entirely fair to put the prejudice burden on the state where the court is “responsible for” the error as it was in Herring. And the Supreme Court in Strickland agreed, noting that in this situation prejudice should be presumed. (466 U.S. at p. 692.) Indeed, in Bell v. Cone itself the Court explained the result in Herring by noting that it involved “government action.” (Bell v. Cone, supra, 535 U.S. at p. 696, n.3.) Significantly, the Court’s focus on “government action” in allocating the burden of proof in Strickland, Bell and Herring is entirely consistent with more than four decades of Supreme Court case law:
• Where defense counsel fails to consult with the defendant, a defendant seeking to prove counsel ineffective must establish prejudice under Strickland. (See, e.g., Kleba v. Williams (7th Cir. 1986) 796 F.2d 947, 954.) But where it is a state-created impediment that prevents counsel from consulting with defendant, the defendant need not prove prejudice. (Geders, supra, 425 U.S. 80.)
• Where defense counsel fails to call certain witnesses, a defendant seeking to prove counsel ineffective must prove prejudice under Strickland. (See, e.g., Strickland, supra, 466 U.S. at pp. 699-700.) But where defense counsel is precluded from calling certain witnesses by a state statute, no prejudice need be shown. (Washington, supra, 388 U.S. 14.)
• Where defense counsel fails to cross-examine certain witnesses, a defendant seeking to prove counsel ineffective must prove prejudice under Strickland. (See, e.g., Higgins v. Renico (6th Cir. 2006) 470 F.3d 624, 634-635; Welch v. Simmons (10th Cir. 2006) 451 F.3d 675, 706.) But where defense counsel is precluded from cross-examining a state witness by a state statute, no prejudice need be shown. (Davis, supra, 415 U.S. 308.)
In each of these cases, where the impediment to effective assistance comes not from defense counsel’s own actions, but from the trial court itself, the Supreme Court has refused to require defendants to prove prejudice under Strickland. Indeed, in Bell v. Cone the Court again explained the result in Geders by noting that it involved “government action.” (Bell v. Cone, supra, 535 U.S. at p. 696, n.3.) Thus, as the Court has succinctly concluded, state interference with defense counsel’s ability to represent a criminal defendant “is not subject to the kind of prejudice analysis that is appropriate in determining whether the quality of a lawyer’s performance itself has been constitutionally ineffective.” (Id. at p. 280. Accord Crutchfield v. Wainwright (11th Cir. 1986) 803 F.2d 1103, 1108 [holding that the Strickland harmless error standard does not “apply to situations where the state, the court, or the criminal justice system denies a defendant the effective assistance of counsel.”].)
The trial court’s combined rulings in denying a continuance, and refusing to issue the subpoena, left defense counsel unprepared for prosecution witness Kathleen J. Pursuant to the above authorities, reversal is required. (Accord Murphy, supra, 59 Cal.2d at p. 828 [denial of continuance which forced defense counsel to trial without adequate preparation reversed with no showing of prejudice].)
VI. MR. MASTERSON’S STATE AND FEDERAL RIGHTS WERE VIOLATED WHEN THE PROSECUTION OFFERED EVIDENCE ABOUT SCIENTOLOGY DOCTRINE FOR THE “NARROWLY TAILORED” PURPOSE OF SUPPORTING THE COMPLAINING WITNESSES’ CREDIBILITY, BUT THE TRIAL COURT SUA SPONTE ADMITTED IT FOR THE TRUTH OF THE MATTER ASSERTED.
A. Introduction.
Both [JD1] and [JD2] delayed reporting to police. Both claimed they delayed reporting because they feared repercussions from the Church of Scientology (“COS”) if they reported the offense. Both also claimed that they had, in fact, been harassed by the Church since reporting.
At the first trial, the state sought to support the credibility of these witnesses by introducing evidence about COS policies the complaining witnesses had discussed. For its part, the defense sought to undercut the credibility of these witnesses by introducing evidence proving that the claimed harassment never happened. The trial court ruled the evidence inadmissible in both areas. Jurors hung on all counts.
At the second trial, both parties renewed their requests to introduce the evidence which had been excluded at the first trial. The court changed its ruling in connection with the COS evidence offered by the prosecution. The complaining witnesses had testified that their understanding of certain Scientology principles explained their delay in reporting. Given this testimony, the prosecution argued that expert testimony showing these principles existed was relevant to what it called the “narrowly tailored” question as to the credibility of testimony from [JD1] and [JD2] as to why they delayed reporting. The court agreed, ruling the evidence relevant to the “reasonableness of their belief to explain their actions.”
But the court did not apply the same rationale to the harassment evidence offered by the defense. The complaining witnesses testified they had been harassed by members of the COS. Given this testimony, the defense argued that evidence showing law enforcement had found that no harassment occurred was directly relevant to the jury’s assessment of the credibility of these witnesses. But on the defense side of the ledger, the trial court once again precluded any evidence showing the witnesses’ claims of harassment were manufactured.
The court then unilaterally compounded the prejudice from its rulings. Although the prosecution had only offered the expert COS testimony for the narrowly tailored purpose of enhancing credibility, and without even a request from the prosecution, the court went much further. The court sua sponte ruled the evidence relevant not just to assess credibility (as the prosecutor requested) but for a much broader purpose, concluding that “Scientology practices and beliefs are relevant to determining whether defendant committed the alleged crimes.” (11 CT 3175.)
The jury convicted on two counts. As discussed in Arguments VI-B, C and D below, the trial court’s admission of the COS evidence violated both state and federal law and requires reversal. The trial court’s exclusion of the defense evidence is discussed in Argument VII; it too violated both state and federal law and requires reversal.
B. The Relevant Facts.
1. The court rulings.
[JD1] had sex with Mr. Masterson twice: in September of 2002 and April of 2003. 14 months after the April 2003 encounter, [JD1] came forward to police and said the September incident was consensual but the April incident was rape. Fourteen years after that, [JD1] changed her story and told police the September 2002 encounter was also rape.
[JD2] had sex with Mr. Masterson in 2003. Several days later she called Mr. Masterson, telling him she had expected him to call for another date. 14 years later, and after communicating with complaining witness [JD3], [JD2] came forward to police and said the incident was rape. (28 RT 2610-2615.)
At both trials, [JD1] and [JD2] explained their delay in reporting in similar ways. Both had been Scientologists; they delayed reporting because -- according to their understanding of Scientology -- they were not permitted to report another Scientologist to civilian authorities. (5 ART (5/17/24) 746- 747 [[JD1] first trial]; 25 RT 2071-2072 [[JD1] second trial]; 12 ART (5/17/24) 1816 [[JD2] first trial]; 28 RT 2520-2521 [[JD2] second trial].) Reporting would be considered a “suppressive act” which would expose them to excommunication. (5 ART (5/17/24) 746 [[JD1] first trial]; 25 RT 2070-2072, 2130-2131 [[JD1] second trial]; 28 RT 2520-2521 [[JD2] second trial].) [As to [JD2] at least this explanation was somewhat perplexing. [JD2] left the Church in 2005. (7 ART (8/23/24) 1547, 1635.) But she did not report to police until 2017, 12 years later. So it is not entirely clear how alleged Church doctrine explains this delay.]
Mr. Masterson has no quibble with the admission of this testimony from the complaining witnesses in connection with their credibility. The defense was fully entitled to rely on whatever delay there was to attack these witnesses’ credibility. In turn, the prosecution was fully entitled to have the witnesses offer some explanation for any delays in reporting.
But the prosecution here wanted more. Thus, prior to the first trial, and in addition to evidence from the complaining witnesses themselves about how their understanding of Scientology caused the delayed reporting, the state offered to introduce evidence from what it described as a Scientology expert, former Scientologist Claire Headley, to testify about the “policies and practices of the church.” (9 CT 2665-2667.) The trial court properly excluded the evidence, ruling that Scientology policies were not relevant; what was relevant was what the complaining witnesses believed:
What is relevant is that they believed it was correct. So whether or not Scientology declares people as suppressive persons for whatever reason, whether or not Scientology has a process where you can’t report each other, that is not what is at issue here. What is at issue here is whether or not the victims believed that in such that they took conduct relevant to that belief.
(15 ART (8/23/24) 3932.) In accord with this ruling, during the first trial the trial court gave repeated admonitions to jurors explaining that the witnesses’ testimony about their understanding of Scientology policies was introduced “to assist you in judging the credibility of the witness’s testimony and to assist you in evaluating the witness’s action or inaction taken regarding the charged incidents.” (4 ART (5/17/24) 552. Accord 4 ART (5/17/24) 552- 553; 5 ART (5/17/24) 752; 12 ART (5/17/24) 1817-1818.) As noted above, jurors hung on all counts, leaning heavily towards acquittal.
Prior to the second trial, the prosecution once again sought to introduce expert testimony from Ms. Headley. Noting that the defense had challenged the credibility of the complaining witnesses, the state offered Ms. Headley on “two relevant and narrowly tailored subjects: 1) Scientology’s teachings that a person in a relationship cannot be raped/that Scientologists cannot use the word ‘rape,’ and 2) Scientology’s teachings forbidding Scientologists from going to law enforcement to report another member.” (1 CTO 72.) The state explained that the purpose of this testimony was limited to the credibility of the complaining witnesses; in the state’s view, Ms. Headley’s testimony would “substantiate the claims of the victims” and allow “the People . . . to refute the implicit challenge to the victims’ credibility.” (1 CTO 72.)
The trial court addressed the state’s renewed request to introduce expert testimony on March 27, 2023. In open court, the prosecution repeated the narrow basis for admission of Ms. Headley’s testimony, arguing that since the defense had attacked the credibility of the complaining witnesses “it is important that this jury hears that there actually is some text, some tenet, some policy for the victims’ beliefs.” (13 RT 670.) The prosecution reiterated that the expert testimony it was seeking to introduce was “narrowly tailored” to focus on the credibility of the complaining witnesses by showing that when they (the complaining witnesses) testified about their beliefs, there were -- in fact -- policies and texts on which these beliefs were reasonably based:
Now, Ms. Headley would not be asked about her beliefs about Scientology. It would be extremely narrowly tailored, only to that there are texts that exist with certain language. She would not be testifying that these victims -- why they believed the way they did or how they believed.
That is up to the individual victims to testify about what their beliefs was, from reading these texts, from being shown these policies. But not to allow someone to testify that there are these policies or books or texts that exist puts it in the victims’ hands to represent that themselves with no backing.
(Ibid.) According to the prosecution, the purpose was to show there was “some support for their basis and belief.” (13 RT 671.)
The court understood the state’s narrowly tailored position, asking defense counsel whether “the fact that the text exists . . . doesn’t that go to the reasonableness of their belief to explain their actions?” (13 RT 675.) The evidence was relevant to show the “state of mind [of the complaining witnesses] is reasonable under the circumstances.” (13 RT 678.)
When defense counsel expressed concern that such expert testimony might go beyond simply supporting credibility, the court sua sponte suggested that the credibility theory of relevance which the prosecution itself had offered -- and which the court had adopted at the first trial -- was too limiting. Instead, the court suggested such evidence was relevant “for the truth of the matter asserted”:
What if the Court was wrong in the first trial to limit it solely to the witness’s state of mind? What if it is relevant as a principle to which the parties involved chose to live their lives? . . . What if it is admissible for the truth of the matter asserted to show why the victims did or didn’t do certain actions?
(13 RT 673.) Defense counsel argued that in that situation, jurors would be asked to “interpret religious text” which would violate the First Amendment. (13 RT 673-674. See also 6 CT 1587-1588 [raising a First Amendment objection to Headley’s testimony to the extent it permits jurors to determine religious doctrine].)
Ultimately the court ruled Ms. Headley’s testimony admissible. (11 CT 3175-3176, 3184.) But the court sua sponte went well beyond the “narrowly tailored” request the prosecution had made, and well beyond the limits the court itself had declared proper at the first trial. Recall that in the first trial, the court ruled that the Scientology evidence was relevant to the complaining witnesses’ credibility: “whether or not Scientology declares people as suppressive persons for whatever reason, whether or not Scientology has a process where you can’t report each other, that is not what is at issue here. What is at issue here is whether or not the victims believed that in such that they took conduct relevant to that belief.” (15 ART (8/23/24) 3932.) But now, and without a request from the prosecution, the court held that while the evidence was still relevant to credibility, it was admissible for much broader purposes as well:
The admission of Scientology evidence in the above-captioned case provides an important context for the victims’ delayed reporting of the crimes which itself bears on the evaluation of the witnesses’ credibility and the actual occurrence of the crimes. In addition, Scientology practices and beliefs are relevant to understanding the meetings and relationships that the victims had with defendant; defendant’s actions towards the victims; the victims’ actions before, during and after the charged crimes; the victims’ initial acceptance of defendant’s behavior and the families’ subsequent reactions. Thus, Scientology practices and beliefs are relevant to determining whether defendant committed the alleged crimes.
(11 CT 3175.) The court never explained why it had gone so far beyond the prosecution’s very specific request to admit the evidence on “two relevant and narrowly tailored subjects.” [Because the court excluded Ms. Headley’s testimony at the first trial, after the ruling changed at the next trial, the defense sought a continuance. (11 CT 3215.) The trial court explained that, in part, the ruling changed because “the Defense was now asserting that the questioned incidents had never occurred at all, rather than consisting of consensual sexual activity.” (15 RT 769.) The explanation is entirely unsupported by the record. Prior to the preliminary hearing, Mr. Masterson filed a brief which made clear that he had been charged with three counts of rape “for three consensual encounters . . . .” (2 CT 315.) At no point in either the closing argument at the first trial, or the closing argument at the second trial, did Mr. Masterson ever “assert[] that the questioned incident[s] had never occurred” with [JD2] or [JD1] (20 ART (5/17/24) 2862-2926; 33 RT 3306- 3372.) Instead, the defense was consent. (Ibid.) Indeed, the prosecution itself recognized this same fact, arguing in closing that “these women did not consent” and “none of them consented.” (33 RT 3299.)]
2. The evidence admitted, the trial court’s instructions and the prosecutors’ use of the evidence in closing argument.
In accord with the trial court’s very different ruling at the second trial, the prosecution called Claire Headley as an expert on Scientology. Ms. Headley explained she was “born” into Scientology and worked in a number of different positions with the Church until she left in 2005 at age 30. (27 RT 2438, 2448, 2469.) But in light of Ms. Headley’s subsequent history, she was certainly a curious choice for the prosecution’s expert witness. (See People v. Shirley (1982) 31 Cal.3d 18, 54 [noting the value of “qualified and disinterested experts”]; In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 220 [noting that court-appointed experts should be “neutral and objective”].)
Four years after she left the Church, Headley sued the Church. (27 RT 2475.) The lawsuit was dismissed; not only did Headley not collect any of the damages she was seeking, but she was affirmatively required to pay the Church’s legal fees. (27 RT 2469, 2475.) She then appealed that dismissal and lost that case as well. (27 RT 2475.)
In 2018, Headley became involved in the Aftermath Foundation, an anti-Scientology group started by her friends Leah Remini and Mike Rinder, former Scientologists and vocal critics of the COS. (27 RT 2475-2476.) Mr. Rinder connected Headley with the prosecutor in this case. (27 RT 2476.) By its own terms, Aftermath’s purpose is to help people “leave Scientology” and it is dedicated to publicizing what it claims are “abusive practices in the church.” (6 CT 1623.) Headley’s subsequent twitter feed reflects tweets condemning the Church as an “abusive cult” involved in “child abuse, lies [and a] coverup.” (6 CT 1640-1642.) It would be Claire Headley -- who had left the Church, sued the Church, lost a lawsuit to the Church, been ordered to pay legal fees to the Church, joined an organization dedicated to criticizing the Church and tweeted invective about the Church -- who the prosecution selected as its “qualified and disinterested” expert in this case. (See Shirley, supra, 31 Cal.3d at p. 54.)
Headley described Scientology as “an applied philosophy that members apply to all aspects of their life, every aspect, relationships, work, friends and so forth.” (27 RT 2448.) She claimed that if a rule in Scientology “is directly in conflict with a law in the United States . . . [t]he Scientologist will follow the law of Scientology.” (27 RT 2452-2453.) Scientologists did not have to “follow the law of the land.” (27 RT 2482.)
If an issue arose between Scientology members, the Church instructed them to write an internal report called a “knowledge report.” (27 RT 2453.) Headley maintained that in 1997 a “code was implemented where terms of a sensitive nature -- such as rape, sexual assault, things of that nature -- were no longer written in reports.” (27 RT 2457-2458.)
According to Headley, the term “[v]ictim is a negative term in Scientology. That means you are low on the emotional tone scale.” (27 RT 2463.) A Scientologist with an issue with another Scientologist will not contact outside law enforcement but will “handle it internally.” (27 RT 2464.) A report to outside law enforcement is considered a “high crime” under Scientology doctrine known as “Suppressive Act[s].” (27 RT 2464.) Committing a “Suppressive Act” results in the member being labeled a “Suppressive Person” no longer in “good standing as a Scientologist.” (27 RT 2464.) The member “would lose any family, friends, connections who are also Scientologists and could also result in . . . being expelled from Scientology.” (27 RT 2464.) If the suppressive person speaks negatively about Scientology, they are deemed “an enemy of Scientology” and the Church’s “Fair Game” doctrine permits the Church to “discredit, destroy utterly and undermine that person to result in silencing them so they do not speak negatively about Scientology anymore.” (27 RT 2466-2467.)
In order to explain any delayed reporting in this case, the prosecution elicited from both [JD1] and [JD2] that (1) COS doctrine precluded them from reporting another Scientologist to police, (2) this would constitute a suppressive act and (3) they should instead utilize the Church’s internal justice system. (25 RT 2071-2072, 2123-2124, 2130-2131; 28 RT 2520- 2521.) [JD1] testified that the internal justice system was run by an International Justice Chief who was “paramilitary” and wore “a uniform.” (25 RT 2123-2124.) [JD1] understood that if you were labeled a “suppressive” person, your family would be required to “disassociate from you” and if they refused, they would be “expelled [from Scientology] per the policy.” (25 RT 2119.) She added her description of the “Fair Game” doctrine; when “Fair Game” applies to a person it dictates the COS must “destroy them.” (25 RT 2162.) [[JD1] testified that she had been taught her “whole life” that “portraying yourself as a victim . . . [was a church] offense.” (25 RT 2107.) She claimed that Scientology believed that “one accuses others of things they themselves have done” so [JD1] may have “raped . . . [someone else] in a previous lifetime.” (25 RT 2120-2121.) Finally, [JD1] described a term referred to as “8C” which is “when you control someone’s body completely.” (27 RT 2385-2386.)]
Another former Scientologist, Rachel Smith, testified. Although called primarily as a witness to some of [JD2]’s pre-trial statements, she also testified about Scientology, telling jurors that Mr. Masterson was viewed in the COS community as a “celebrity” and “an opinion leader.” (29 RT 2738- 2739.) As such, if someone reported Mr. Masterson to authorities they would be investigated and punished because he was “above the law.” (29 RT 2745.) Smith explained:
Scientologists do not get raped. They don’t do victim. They don’t get defrauded. There is nothing -- you’re responsible for your own condition. Everything that happens, we pulled it in. There is no thinking rape, and also I’m not allowed to think that he did anything wrong. Otherwise, I get in trouble.
(29 RT 2758-2759. ) [[JD3] testified to many of the same religious doctrines as did [JD1], [JD2] and Rachel Smith. (21 RT 1517-1518, 1534-1535; 22 RT 1554- 1556.) [JD3] mentioned “HE&R” which referred to the policy on human emotion and reaction requiring members to be “steely-eyed [and] unfeeling.” (21 RT 1516-1517.)]
At the end of trial, the court instructed the jury on how they could consider the Scientology evidence. The court’s instruction conveyed the court’s earlier decision to go well beyond the narrow request of the prosecution itself and admit the COS evidence for much broader purposes:
You may consider evidence of Scientology only for the following limited purposes: One, to explain the alleged victims’ delay in reporting the charged crimes, including reports made to individuals within the Scientology organization and their response to those claims; Two, to explain the alleged victims’ belief regarding Scientology principles and practices related to, a, reporting another Scientologist in good standing to outside law enforcement or civil authorities and, b, fear of retaliation, fear of being declared a suppressive person and fear of harassment for reporting crimes of another Scientologist to outside law enforcement; Three, to explain the alleged victims’ actions before, during, and after the charged incidents and relevant to the charged incidents; Four, to explain all witnesses’ ties to the Scientology organization, past and present; Five, to evaluate both the circumstances under which statements were made as well as the weight to give the statements made by all witnesses including the alleged victims; And, six, to further evaluate the testimony of any expert testimony regarding the above.
(33 RT 3254-3256.)
Indeed, the breadth of the trial court’s instruction to jurors as to how they could consider the COS evidence is perhaps best illustrated by comparing this instruction to one the jurors received in connection with the COS evidence conveyed by witness Cedric Zavala. Mr. Zavala is [JD3]’s husband. During his testimony, the prosecution elicited testimony about COS teachings. (24 RT 1847-1849.) The trial court explicitly instructed jurors that the evidence they had heard on these COS teachings was admitted for purposes of assessing credibility, not for the truth of the matter. (24 RT 1903.) But the court was careful to add that this limitation on COS evidence for the “truth of the matter” did not apply to “the other witnesses”:
As it relates to witness Cedric Zavala’s testimony only, the evidence regarding witness Cedric Zavala’s beliefs of certain Scientology policies is not being admitted for the truth of the matter asserted. Rather, it is being admitted to assist you in judging the credibility of the witness’s testimony and to assist you in evaluating the witness’s actions or inaction taken regarding the charged incidents and/or evaluation of that person’s testimony. That relates only to Mr. Zavala, not to the other witnesses.
(24 RT 1903, emphasis added.) The plain inference from this instruction was that the evidence of “Scientology policies” from other witnesses could be considered for its truth. (Compare 4 ART (5/17/24) 492-493 [at first trial, court limits COS evidence to assessing the credibility of complaining witnesses]; 5 ART (5/17/24) 785 [same] with 25 RT 2130 [at second trial, court admits same evidence without that limitation].)
The prosecutor’s opening statement made clear the state embraced this same interpretation. Thus, the COS evidence would not be limited to assessing [JD1]’s and [JD2]’s credibility. Instead, that evidence would show “[y]ou can’t use the word ‘rape’ . . . and you cannot go to law enforcement to report this thing or you’ll be declared a suppressive person” and if you are declared a suppressive person, “[b]ad things happen. There are consequences.” (20 RT 1362.)
The prosecutors’ closing argument also made clear jurors could consider the COS evidence for its truth. Prosecutors did not rely on Headley’s testimony simply for the purpose of assessing credibility. Instead, they urged jurors to rely on her testimony for its truth to show “what Scientology believes, that Scientology law, their rules, their principles, they guide everything . . . . You must obey those rules over all other laws.” (33 RT 3260.) And “the Scientology law told them there is no justice for them.” (34 RT 3411.) COS evidence was not just relevant to credibility:
Most of [Mr. Masterson’s] victims are members of the Church of Scientology, and that makes sense. The Church taught his victims rape isn’t rape. You caused this. And above all, you are never allowed to go to law enforcement. What better hunting ground? In Scientology, the defendant is a celebrity and he’s untouchable.
(33 RT 3259.)
C. Admission Of The COS Evidence Violated Both State And Federal Law.
1. Admitting the COS evidence for the truth of the matter violated the First Amendment’s church-autonomy doctrine.
The First Amendment provides in relevant part that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” As the Supreme Court has recognized, the First Amendment “commands a separation of church and state.” (Cutter v. Wilkinson (2005) 544 U.S. 709, 719.)
That separation between church and state is reflected in what is known as the ecclesiastical abstention, or church autonomy, doctrine. Under this doctrine, “‘civil courts exercise no jurisdiction’ over matters involving ‘theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.’” (Seattle’s Union Gospel Mission v. Woods (2022) ___ U.S. ___, 142 S.Ct. 1094, 1096.) The First Amendment “protects religious organizations “from secular control or manipulation.” (Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America (1952) 344 U.S. 94, 116.) In the civil context, the Court has recognized that “First Amendment values are plainly jeopardized when . . . litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice.” (Our Lady of Guadalupe School v. Morrissey-Berru (2020) 591 U.S. 732, 140 S.Ct. 2049, 2063 n.10.) The Supreme Court has reached a similar conclusion in the criminal context, recognizing that it would violate the First Amendment for jurors in a criminal case to evaluate the truth of religious doctrine. (United States v. Ballard (1944) 322 U.S. 78, 86. See also United States v. Medina-Copete (10th Cir. 2014) 757 F.3d 1092, 1109 [noting without deciding the First Amendment ramifications of permitting the prosecution to present expert testimony about a defendant’s religion].)
Here, the trial court permitted witnesses [JD1], [JD2], [JD3], Rachel Smith and expert witness Claire Headley to testify in depth about (1) their understanding of what COS doctrine was and (2) their interpretation of what it meant. In contrast to the first trial (where some of this same testimony was introduced by the complaining witnesses), there was no instruction limiting this evidence to an assessment of credibility. Instead, as discussed above, the combination of instructions and the prosecutors’ arguments made clear to jurors that aside from the COS evidence introduced by Cedric Zavala, the remaining COS evidence could be considered for the truth of the matter. And permitting jurors to consider this evidence for its truth is the essential First Amendment vice here. As defense counsel concisely explained in objecting to the use of COS evidence for this purpose, jurors would be asked to “interpret religious text” which would raise a First Amendment issue. (13 RT 673-674.) Admission of the COS evidence for the truth of the matter violated Mr. Masterson’s rights under the First Amendment.
This is especially true here. As noted, to explain the complaining witnesses’ delayed reporting, the prosecution relied on what it claimed was church doctrine that Scientologists were forbidden to report other Scientologists to civil authorities, and doing so would constitute a “suppressive act.” But as the trial court was aware from at least as early as the preliminary hearing, this interpretation of Scientology doctrine was very much in dispute. (8 ART (8/23/24) 1813-1815. See also 5 CT 1274-1275; 4 ART (5/17/24) 587.)
According to written COS scripture, the prosecution’s interpretation of church doctrine was simply wrong. Thus, written Scientology scripture explicitly states:
• “[A]ny violation of the laws of the land or intentional legal wrongs . . . shall subject the offender to penalties prescribed by law,” and
• “[S]uppressive acts” include “any felony (such as murder, arson, etc.” “against person or property” and “[s]exual or sexually perverted conduct contrary to the well-being or good state of mind of a Scientologist in good standing or under the charge of Scientology . . . .”
(8 ART (8/23/24) 1814-1815.)
In aid of its contrary view, the prosecution here relied on a different written COS scripture providing that “delivering up the person of a Scientologist without justifiable defense or lawful protest” to civil or criminal authorities is a suppressive act. But the prosecution’s reliance on this language rips it from its historical context; this language was crafted to address the fact that certain countries had made the practice of Scientology itself a crime. (5 CT 1379-1381.)
In 1965, for example, a law was passed in Australia -- the Psychological Practices Act -- which effectively made criminal the practice of Scientology. (5 CT 1380 and n.7.) The “delivering up” language (on which the prosecution relied) was intended to apply to the situation where a Scientologist was confronted by police or civil authorities trying to arrest or locate another Scientologist for the crime of practicing Scientology. (Ibid.) In this situation, scripture directed the Scientologist not to cooperate with government authorities to divulge the whereabouts of another Scientologist. The spirit of this provision was identical to that which motivated numerous Jewish sympathizers in Germany and other occupied countries during World War II not to cooperate with the Gestapo when they came looking for Jewish hideaways. (Ibid.) Contrary to the state’s position, and as made clear in COS scripture written the same day as the “suppressive act” scripture at issue, the commission of crimes subjects a Scientologist to “arrest” by civil authorities.
The point here is simple. Mr. Masterson is not asking this Court to resolve what Scientology doctrine actually is. As the case law makes clear, the First Amendment precludes courts from stepping in and resolving these types of doctrinal disputes. (See also Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church (1969) 393 U.S. 440, 450.) “[C]ourts are not arbiters of scriptural interpretation.” (United States v. Lee (1986) 456 U.S. 252, 257.) Considering the COS evidence to assess credibility (as happened at the first trial) is one thing; permitting jurors to consider this evidence for the truth of the matter, especially when there is a plain dispute as to whether the doctrine even exists, was a plain violation of the First Amendment. In effect, the prosecution was permitted to weaponize Mr. Masterson’s religion, and urge jurors to use his religion against him. [In overruling defense counsel’s First Amendment objection, the trial court concluded Mr. Masterson lacked standing. As both the United States and California Supreme Courts have recognized, however, when a criminal defendant belongs to a group protected by the First Amendment, admission of evidence about the views of that group may indeed violate the defendant’s First Amendment rights. (Dawson v. Delaware (1992) 503 U.S. 159, 165; People v. Ramos (1997) 15 Cal.4th 1133, 1169.)]
2. Admitting the COS evidence for the truth of the matter permitted jurors to consider the evidence for an irrelevant purpose.
Under state law, only relevant evidence is admissible. (Evidence Code § 350.) Under state law, the prosecution may not admit evidence unless it is relevant. (See, e.g., People v. Leahy (1994) 8 Cal.4th 587, 597.) As noted above, federal law also precludes admission of irrelevant evidence. (Bruton, supra, 391 U.S. at p. 131, n.6.)
Here, the COS evidence was irrelevant when admitted for the truth of the matter asserted. Jurors were tasked with deciding if the complaining witnesses were credible, and if Mr. Masterson was guilty of forcible rape. To this end, because the complaining witnesses’ understanding of COS doctrine may have explained their years of delay in reporting, that understanding was relevant to assessing their credibility. And this is so regardless of whether the complaining witnesses’ understanding accurately reflected Church doctrine. In other words, even if the complaining witnesses were wrong about COS doctrine, their incorrect understanding could explain why they delayed reporting -- as to credibility, it was their understanding of COS doctrine that mattered.
But precisely because what mattered was the complaining witnesses’ understanding (as the trial court correctly recognized at the first trial), assessing COS doctrine for the truth of the matter added nothing of relevance to this case. It simply permitted the prosecution to present evidence from an “expert” witness, who was anything but “disinterested,” “neutral” or “objective,” and argue that Scientology was a “billion dollar organization” which did not recognize the laws of the United States, accepted rape and sexual assault and stood directly in the way of justice. (27 RT 2452-2453, 2457-2458; 34 RT 3411.) It allowed jurors to hear allegations that the Church (1) had its own justice system run by the paramilitary, (2) did not recognize rape as a crime and (3) required members to be ‘steely-eyed and unfeeling.” (21 RT 1516-1517; 25 RT 2123-2124; 29 RT 2758-2759.) As noted above, allowing consideration of COS for credibility is one thing; allowing it for the truth of the matter is quite another. Admission of the evidence for this irrelevant purpose violated both state law and Due Process.
3. The trial court’s failure to remain neutral towards Mr. Masterson’s religion violated his First Amendment right to the free exercise of religion.
Separate and apart from the First Amendment violation discussed above, Mr. Masterson’s First Amendment right to the free exercise of religion was also violated when the trial court displayed non-neutrality, even hostility, toward his religion and church. In this regard, the Supreme Court has held that in any adjudication the Constitution imposes on “the State [a] duty under the First Amendment … [to avoid] hostility to a religion.” (Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n (2018) 584 U.S. 617.)
In Masterpiece Cakeshop, a Colorado baker named Phillips refused to make a wedding cake for a same-sex couple based on his religious opposition to same-sex marriage. The couple filed a complaint against Phillips with the Colorado Civil Rights Commission, which held a hearing. During the hearing, “one commissioner suggested that Phillips can believe ‘what he wants to believe,’ but cannot act on his religious beliefs ‘if he decides to do business in the state.’” (584 U.S. at p. 634.) Another commissioner noted that religious views had been used in the past to justify “slavery [and]. . . the holocaust” and concluded “one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” (Id. at p. 635.) The Commission ultimately ruled against Phillips, ordering him to “cease and desist from discriminating against ... same-sex couples by refusing to sell them wedding cakes . . . .” (Id. at p. 630.) Colorado state courts upheld the Commission ruling.
The Supreme Court reversed, noting that the comments from the commissioners referenced above “cast doubt on the fairness and impartiality of the Commission’s adjudication.” (Id. at p. 636.) In the Court’s view, the commissioner’s statement about doing business in the state “might be seen as inappropriate and dismissive comments showing lack of due consideration for Phillips’ free exercise rights and the dilemma he faced.” (Id. at p. 635.) And the characterization of Phillips’ religious view as a “despicable piece of rhetoric” improperly “disparage[d] his religion.” (Ibid.) The Court ultimately held that “the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality.” (Id. at p. 625.)
The Court made clear the nature of the problem. The Commission’s “consideration of this case was inconsistent with the State’s obligation of religious neutrality.” (Ibid.) The Commission had failed to hold “an adjudication in which religious hostility on the part of the State itself would not be a factor.” (Ibid.) The “Free Exercise Clause bars even ‘subtle departures from neutrality’ on matters of religion.” (Id. at p. 638.) And the “requisite religious neutrality . . . must be strictly observed.” (Id. at p. 639, emphasis added). Thus, “[t]he Free Exercise Clause protects against governmental hostility which is masked, as well as overt.” (Ibid.)
Here, the trial court failed to observe this strict neutrality, showing sometimes masked and sometimes overt hostility to Masterson’s religion and church. In spite of the clear law from the Supreme Court that “courts are not arbiters of scriptural interpretation” (Lee, supra, 456 U.S. at p. 257), at the preliminary hearing the trial judge made clear that she -- not the Church itself -- would “interpret the pages [of scripture] that were just shown . . . .” (7 ART (8/23/24) 1535.) And that is precisely what the Court did in holding Mr. Masterson to answer, directly contrary to the Church’s interpretation of its own scripture, stating “the written doctrine of Scientology not only discourages but prohibits one Scientologist from reporting another Scientologist in good standing to outside law enforcement.” (8 ART (8/23/24) 1860. Compare 5 CT 1377-1380 [COS amicus brief explaining that Church doctrine does no such thing].) And as noted above, although the prosecution at the second trial offered expert testimony about COS doctrine only to support the complaining witnesses’ credibility, the court went well beyond that request, allowing the evidence in for the truth of the matter asserted.
The trial court’s hostility to Mr. Masterson’s religion was also reflected in her comments at trial. Outside of the jury’s presence, and with some frequency, the trial judge compared Scientology to criminal organizations, White Supremacist groups, Satanists and street gangs. (5 RT 316-318; 25 RT 1992; 27 RT 2438-2440; 8 ART (5/17/24) 1176; 14 ART (8/23/24) 3712-3713; 15 ART (8/23/24) 3946.) The court referred to Masterson’s alleged misdeeds as being part of “an organizational crime.” (5 RT 318.) During voir dire at both trials, the trial court advised jurors that (1) there might be evidence about Scientology, (2) in street gang cases, she always asked jurors if they could be fair regardless of their views about street gangs and (3) and she was effectively asking the same question here -- could they be fair even though Mr. Masterson was a Scientologist. (18 RT 880-881; 1 ART (5/17/24) 58-59.)
At another point, after ruling that the prosecution could ask a witness whether anyone in the audience was making her nervous, the trial court suggested that if defense counsel had concerns about the ruling, he could urge those members of the COS not to avail themselves of their right to attend a public trial, encouraging defense counsel “to have a conversation that they [the Church] should stop asserting themselves in the criminal proceeding . . . [in] the form of . . . being present for every court hearing or whatever it is they do.” (25 RT 1993.) Throughout trial, the court seldom referred to Scientology as a church or religion, instead calling it an “organization.” (See, e.g., 21 RT 1521-1522, 25 RT 1992-1993, 33 RT 3255.) And at the prosecution’s request, the court even questioned a Methodist minister sitting in the spectator section at Mr. Masterson’s public trial. (25 RT 2045.) The court concluded that the minister “has the right to stay,” noting that “I don’t think he is necessarily affiliated with the defendant or Scientology.” (Ibid.)
Taken together, and at the very least, the trial court’s actions showed the “subtle departures from neutrality” condemned by Masterpiece Cakeshop. During closing arguments, the prosecution picked up the baton and repeatedly made negative comments about the COS. In the prosecutor’s view, the alleged victims had “an organization hanging over [their] head[s]” (33 RT 3380); that they “were punished” by the Church (34 RT 3410); that “they were retaliated against by their church” (34 RT 3411); that they had “had a billion-dollar organization . . . retaliating against [them]” (34 RT 3411); and that under Scientology doctrine the victims “weren’t important.” (33 RT 3259-3260.)
Taken as a whole, the trial court was substantially more hostile to Mr. Masterson’s religion than the civil rights commissioners in Masterpiece Cakeshop. But just like the commissioners’ comments in Masterpiece Cakeshop, these “inappropriate and dismissive comments show[ed] lack of due consideration for [Masterson’s religion].” (Masterpiece Cakeshop, supra, 584 U.S. at p. 635.) And just like that case, Mr. Masterson’s First Amendment right to have his case handled by government officials who are not hostile to his faith was violated.
D. Given The Closeness Of The Case, The Nature Of The Evidence Admitted And The Prosecutor’s Reliance On That Evidence, Reversal Is Required.
As discussed above, the trial court violated the First Amendment in improperly admitting COS evidence for the truth of the matter. As an initial matter, it is unclear if admission of evidence in violation of the First Amendment is even susceptible to harmless error analysis. (See Dawson, supra, 503 U.S. at 169 [Blackmun, J., concurring].) But assuming harmless error analysis is proper, the state would have the burden of proving this federal constitutional error harmless beyond a reasonable doubt. (See Chapman, supra, 386 U.S. at p. 24.) Here, the state will be unable to meet this standard for several reasons.
First, the very nature of the evidence was inherently prejudicial. The state’s testimony surrounding the COS doctrines and practices painted an extremely harsh picture of a religion which (1) did not recognize “rape, sexual assault, [or] things of that nature,” (2) did not allow its members to report any other members to law enforcement, (3) punished members who reported crimes to police, employing “Fair Game” to “discredit [them] and destroy [them] utterly,” (4) required its members to follow the law of Scientology rather than laws of the United States and (5) prevented members from taking medicine or seeing a psychiatrist. (27 RT 2452-2453, 2457- 2459, 2466-2467, 2482; 28 RT 2527; 29 RT 2758-2759.) The prosecution drove home these precise points, both in opening statement and closing argument. (See, e.g., 20 RT 1333, 1362; 33 RT 3259- 3260, 3379-3380.)
The prosecutor used religion to drive a wedge between Scientologists and the rest of society; the evidence showed “what Scientology believes, that Scientology law, their rules, their principles, they guide everything . . . . You must obey those rules over all other law.” (33 RT 3260.) Scientologists were different from everyone else; this case was about “their rules, their principles.” (33 RT 3260, emphasis added.) The complaining witnesses had an “organization hanging over [their] head[s]” which had taught them “not to trust the police.” (33 RT 3379-3380.) They had a “billion dollar organization” retaliating against them. (34 RT 3411.) Under Scientology, there “is no justice.” (Ibid.) Mr. Masterson not only belonged to this religion, but according to the state’s evidence, he was revered in the Church as an “Opinion Leader.” (29 RT 2738.) Considering the nature of the allegations against Mr. Masterson -- rape against other members of the Church -- the COS evidence was inherently prejudicial.
Second, as discussed in Arguments II and III above, the objective record of jury deliberations shows that this was a close case. Importantly, the first jury -- which was not allowed to consider the COS evidence for any purpose other than assessing credibility -- deliberated for several days, indicated it was hung on all counts, deliberated several more days after two jurors were replaced and returned a hung jury on all counts, leaning heavily toward acquittal. (11 CT 3047-3049, 3054; 8 RT 504.) At the second trial -- and with the jury allowed to consider the COS evidence “for the truth of the matter asserted” on various factual questions -- it nonetheless deliberated more than 29 hours over the course of eight days, asking several questions and for readback of testimony and ultimately returned a hung jury on count 3. (11 CT 3288-3290, 3292-3294, 3296; 36 RT 3441-3444; 39 RT 3485- 3486, 3489.) These objective indicia have long been recognized as showing a close case.
In making this argument, Mr. Masterson recognizes that the trial court instructed the jury that it “may not conclude from [the COS] evidence that the defendant is a person of bad character or that he has a disposition to commit a crime.” (33 RT 3256.) And jurors are normally presumed to follow such limiting instructions. (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 878.)
But as the United States Supreme Court has concluded in a similar context, this presumption is subject to a significant exception. While courts generally assume a jury will follow a trial court’s instruction to ignore certain information, “there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” (Bruton, supra, 391 U.S. at p. 135.) Thus, where jurors have seen or heard something that could be highly prejudicial to a defendant, curative instructions may not be sufficient. (See, e.g., United States v. Hale (1975) 422 U.S. 171, 175, n.3 [introduction of evidence that defendant remained silent was not cured by jury instruction telling jurors to ignore the evidence]; Bruton, supra, 391 U.S. at pp. 125-126 [where evidence against defendant was “not strong,” reviewing court could not rely on instruction advising jurors to ignore prejudicial and inadmissible evidence]; Jackson v. Denno (1964) 378 U.S. 368, 387-388 [refusing to assume jury would follow instruction advising it to disregard involuntary confession of defendant].)
Moreover, it is important to recall that the trial court here did not simply tell jurors to ignore the COS evidence. Instead, it gave jurors a lengthy list of permissible purposes, but then told them they could not rely on the evidence to infer Mr. Masterson was a bad person. In this exact situation, as Judge Learned Hand recognized more than 90 years ago, telling jurors they may consider certain evidence for defined purposes -- but not for other defined purposes -- requires a much more difficult mental gymnastic than simply telling jurors to ignore the evidence in the first place. (See Nash v. United States (2nd Cir. 1932) 54 F.2d 1006, 1007 [Learned Hand, J.] [noting that an instruction telling jurors to consider evidence for one purpose but not another constitutes “the recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody’s else.”].)
The Supreme Court has proposed a commonsense guide to assessing the curative effect of a limiting instruction: in deciding the effect of a limiting instruction which advises a jury to disregard what it has seen or heard, the question is “plain and simply, whether the jury can possibly be expected to forget it in assessing the defendant’s guilt.” (Richardson v. Marsh (1987) 481 U.S. 200, 208.) California courts have applied this test in practice; when information about prior criminal conduct is conveyed to the jury, a curative instruction -- asking jurors to simply ignore information they heard -- is an inadequate basis on which to presume jurors would ignore what they had been told. (See, e.g., People v. Jacobs (1984) 158 Cal.App.3d 740, 745-746; People v. Galloway (1979) 100 Cal.App.3d 551, 562; People v. Young (1978) 85 Cal.App.3d 594, 602-603; People v. Glass (1975) 44 Cal.App.3d 772, 781; People v. Schiers (1971) 19 Cal.App.3d 102, 114; People v. Laursen (1968) 264 Cal.App.2d 932, 938.)
But given the amount of COS evidence presented in this case, and the prosecutor’s focus on this evidence in closing argument, jurors here could not be expected to ignore the impact of this evidence. To the contrary, the prosecutor’s repeated reliance on the COS evidence in urging jurors to convict shows just how prejudicial the trial court’s admission of this evidence was. (See Powell, supra, 67 Cal.2d at pp. 32, 55-57 [prosecutor’s reference to certain evidence in closing argument reveals how important the prosecutor “and so presumably the jury” considered the evidence]; Cruz, supra, 61 Cal.2d at p. 868 [same].) On this record, the state will be unable to prove that admission of the COS evidence for the truth of the matter was harmless.
Because admission of the COS evidence itself requires reversal, there is no need to dwell on whether the separate error under Masterpiece Cakeshop permits a harmless error analysis or, if not, whether the state can prove that error harmless beyond a reasonable doubt. Arguably at least, an error which in the Supreme Court’s view “cast doubt on the fairness and impartiality of the . . . adjudication” (Masterpiece Cakeshop, supra, 584 U.S. at p. 636) is an error “affect[ing] the framework within which the trial proceeds” and is not subject to harmless error analysis. (See Arizona v. Fulminante (1991) 499 U.S. 279, 310. ) Errors are structural when the effects of the error defy measurement, or where the error protects an interest very different from the defendant’s interest in avoiding an improper conviction, very different interest. (See Vasquez v. Hillery (1986) 474 U.S. 254, 263 [errors deemed structural where the “effect of the violation cannot be ascertained.”]; Faretta v. California (1975) 422 U.S. 806, 834 [refusing to allow self-representation is structural error since it protect defendant’s independent right to decide how to protect his own liberty].) But even if harmless error analysis were appropriate, for many of the same reasons as discussed above, the state will be unable to establish that the comments forming the basis of the Masterpiece Cake error, when combined with the improper admission of the COS evidence, were harmless beyond a reasonable doubt.
VII. THE TRIAL COURT’S EXCLUSION OF DEFENSE EVIDENCE IMPEACHING THE COMPLAINING WITNESSES’ CLAIMS OF HARASSMENT VIOLATED MR. MASTERSON’S RIGHTS TO CONFRONTATION, PRESENT A DEFENSE AND REBUT THE STATE’S CASE.
A. The Relevant Facts.
Prior to the first trial, it became apparent that the prosecution wanted to introduce evidence from the complaining witnesses that they had been harassed by members of the COS. As the prosecutor explained, “witnesses who are testifying under certain fears or concerns, it’s important for the jury to hear that evidence so that they can make a determination of credibility.” (14 ART (8/23/24) 3666-3667.) The prosecutor advised the court that he intended to introduce five specific incidents of harassment, including (1) [JD3]’s claim that the COS killed her dog and (2) [JD1]’s claim that the COS was going through her trash. (14 ART (8/23/24) 3667-3669.)
The defense contended such evidence should be excluded because it would involve the undue consumption of time under Evidence Code section 352. (6 CT 1595; 14 ART (8/23/24) 3660-3665.) Defense counsel explained that if the complaining witnesses were allowed to testify as to these instances of harassment, the defense would want to rebut that testimony by presenting specific evidence showing the harassment never occurred. (Ibid; 6 CT 1596-1599.) Defense counsel’s “bare bones estimate . . . to rebut these very inflammatory accusations . . . would [be to] call an additional 27 witnesses.” (14 ART (8/23/24) 3661.)
Defense counsel made a specific and substantial offer of proof as to the evidence which the defense would present in order to rebut the harassment claims, including the two specific incidents the prosecutor had identified. By way of example only, defense counsel provided documentation to show:
• The COS private-investigator harassment. [JD1] reported to police that she was being harassed by a private investigator from the COS, lurking on the edge of her property. Police located and interviewed the “stalker.” Her name was Donna Barstow -- she had no connection to the COS and was simply taking her nightly walk in the neighborhood, using a flashlight to look for abandoned items to sell on eBay. (6 CT 1596, 1728, 1746-1747, 1774-1776, 1796-1797.)
• The COS telephone-hacking harassment. [JD1] reported to police that the COS hacked her telephones and computers. Police investigators inspected her telephone and “concluded there was no evidence of hacking. The phone has a hardware or software problem.” (6 CT 1597; 7 CT 1887.)
• The COS trash-searching harassment. [JD1] reported to police that a member of the COS searched through her trash and was eavesdropping on her conversations. Detective Vargas determined that this particular “stalker,” the man going through her trash, was Gustavo Romero who had no connection to the COS, was mildly developmentally disabled, had no criminal record and spoke only Spanish. (6 CT 1597; 7 CT 1886, 1888.)
• The COS gunshot harassment. [JD1] reported to police that there was a gunshot hole in her trash can that she attributed to the COS. Police dutifully investigated and determined that the hole in [JD1]’s garbage can was not caused by a bullet but rather a sharp object piercing the can and pulling it, such as a trash truck might do. (6 CT 1597.)
• The COS dog-killing harassment. After [JD3]’s dog Ethel died, she reported to police that the COS killed Ethel by damaging its windpipe. But [JD3]’s prior Instagram posts made clear that the injury causing Ethel’s death occurred at the doggie daycare where [JD3] boarded her. (6 CT 1598; 7 CT 1896.)
• The COS automobile-stalking harassment. [JD3] reported to police a series of vehicles and people she associated with the COS were following her. Police investigated these “stalkers” as well, finding no criminal activity or connection of the individuals to the COS. (6 CT 1598-1599, 1800; 7 CT 1802- 1809.)
Defense counsel explained that if the court allowed the complaining witnesses to testify they were being harassed, the defense would present all the evidence showing that the harassment was concocted. (14 ART (8/23/24) 3670-3672.) Defense counsel expressed concern about a “trial within a trial” and argued that the court should therefore exclude the harassment evidence altogether. (14 ART (8/23/24) 3660-3663, 3671-3672. See 6 CT 1599-1600.)
With some prescience, defense counsel argued that the problem could not be solved by allowing the witnesses to state generally that they had been harassed, but precluding the defense from getting into “details to show most of these allegations are unproven . . . .” (14 ART (8/23/24) 3665.) Such a ruling would not “undo the prejudice” to Mr. Masterson and would result in an unfair trial. (Ibid.)
Ultimately, however, that is just what the court did, ruling that “[t]he people may present testimony that the victims generally felt they were subject to instances or a campaign of harassment and stalking that they felt was related to their cooperation with law enforcement in the rape case.” (15 ART (8/23/24) 3952-3953.) But questioning on “specific instances” was precluded:
The Court will not allow the specific instances [of harassment or stalking] themselves not because it’s not relevant. It is relevant. But under 352 undue consumption of time, we’re not going to start going off into a whole bunch of incidences here . . . .
(Ibid.)
Prior to the second trial, defense counsel “renew[ed] and incorporate[d] by reference all evidentiary motions, requests and arguments (whether or not they are referred to or restated herein) made during proceedings related to the first trial in this matter.” (1 CTO 86.) As to the specific issue involving evidence of harassment, defense counsel “submit[ted] on the arguments that were made at [the first trial].” (13 RT 609.) The court made the same ruling, admitting general testimony of the witnesses’ “belief that they had been harassed by Scientology for cooperating with police.” (11 CT 3190.)
Pursuant to the court’s ruling, the complaining witnesses testified very generally to incidents of harassment and stalking by members of the COS. For example, [JD1] testified that as soon as she came forward to police in 2017 she was harassed and stalked by members of the COS and that at the time of trial it was “[e]xtra today. Extra today, yes.” (25 RT 2159.) She made “many” complaints to local law enforcement and the FBI. (25 RT 2159.) Nevertheless, the harassment and stalking by the COS was a “campaign of terror . . . [which was] getting bolder and bolder and bolder and bolder.” (25 RT 2161.) [JD2] testified that she also experienced harassment and stalking from the COS which started right after her 2017 interview with Detective Myape and continued to the day of her trial testimony. (28 RT 2629.) [JD2] was “100 percent” certain the harassment was at the hands of the COS. (28 RT 2629.) And because there could be no questioning on specific instances of harassment, there was no rebuttal to the harassment allegations. [[JD3] echoed [JD1] and testified that she filed a report against Mr. Masterson with the FBI in late 2016 because “things started happening.” (22 RT 1598.) The COS started to harass and stalk her and her family and continued to do so up to and including the time of trial. (22 RT 1597-1599, 1607-1608.)]
B. Exclusion Of Defense Evidence Impeaching The Complaining Witnesses Violated Mr. Masterson’s Right To Present A Defense And Respond To The State’s Case And Requires Reversal.
As discussed in Argument II, supra, “few rights are more fundamental than that of an accused to present witnesses in his own defense.” (Chambers, supra, 410 U.S. at p. 302.) That right “has long been recognized as essential to due process.” (Id. at p. 294.) As also noted above, this right requires “at a minimum that criminal defendants have . . . the right to put before the jury evidence that might influence the determination of guilt.” (Ritchie, 480 U.S. at p. 56.) It also includes the right to respond to arguments presented by the state. (See, e.g., Simmons, supra, 512 U.S. at pp. 168-169; Crane, supra, 476 U.S. at pp. 690-691.)
Separate and apart from the protections of the Fifth Amendment, the Sixth Amendment provides that a criminal defendant has the right “to be confronted with the witnesses against him [and] to have compulsory process for obtaining witnesses in his favor . . . .” The confrontation right guarantees the right to cross-examine adverse witnesses. (See Pointer v. Texas (1965) 380 U.S. 400, 404-405.) This right is a critical component of the criminal justice system. “[C]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” (Davis, 415 U.S. at p. 316.) The right to cross-examination is considered even more important when the witness to be examined is the key witness in a criminal prosecution. (People v. Murphy (1963) 59 Cal.2d 818, 831; United States v. Brown (5th Cir. 1977) 546 F.2d 166, 170.)
Although the extent of cross-examination is within the trial court’s discretion, the right to cross-examine in a relevant area is not. Thus, although a trial court may properly limit cross-examination in an area, the court has no power to completely preclude inquiry into an area relevant to the witness’s credibility. (United States v. Atwell (10th Cir. 1985) 766 F.2d 416, 419-420; United States v. Valentine (10th Cir. 1983) 706 F.2d 282, 287- 288; United States v. Haimowitz (11th Cir. 1983) 706 F.2d 1549, 1559; Brown, supra, 546 F.2d at p. 169.) A court’s power to limit the extent of cross-examination in an area only arises “after there has been permitted as a matter of right sufficient cross-examination to satisfy the Sixth Amendment.” (Haimowitz, supra, 706 F.2d at p. 1559.) Cross-examination in any particular area is sufficient to satisfy the Sixth Amendment when the defendant has been allowed the opportunity to “expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Davis, supra, 415 U.S. at p. 318. Accord People v. Boehm (1969) 270 Cal.App.2d 13, 21.)
Applying these well-established rights, the Supreme Court has made clear that the erroneous exclusion of a defendant’s evidence may violate both the Fifth and Sixth Amendments. (See, e.g., Davis, supra, 415 U.S. at pp. 319-320; Washington, supra, 388 U.S. at pp. 19, 23; Chambers, supra, 410 U.S. at p. 302.) Where a trial court excludes critical defense evidence which fully corroborates a defense presented to the jury, the defendant’s Fifth and Sixth Amendment rights are violated. (See, e.g., Chambers, supra, 410 U.S. at p. 302; Washington, supra, 388 U.S. at pp. 19, 23.) And where a trial court excludes evidence from which jurors could properly draw inferences undercutting the credibility of a key government witness, or supporting the credibility of an important defense witness, the Constitution has again been violated. (Davis, supra, 415 U.S. at p. 318; Depetris, supra, 239 F.2d at p. 1062.)
Here, the trial court’s exclusion of the defense evidence violated both the Fifth and Sixth Amendments. It violated the Fifth Amendment right to a fair trial, and Sixth Amendment right to present a defense, because the evidence was directly relevant to the only defense presented: an attack on the complaining witnesses’ credibility. Moreover, because the state had introduced the harassment claims to support the credibility of the complaining witnesses (14 ART (8/23/24) 3666), excluding the defense evidence showing that no harassment had occurred violated Mr. Masterson’s right to rebut the state’s evidence. And excluding this evidence violated Mr. Masterson’s right to confrontation because it prevented him from “expos[ing] to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness[es].” (Davis, supra, 415 U.S. at p. 318.)
Indeed, the court’s ruling was especially curious here in light of the prosecutor’s own rationale for seeking admission of expert testimony from a COS expert. The complaining witnesses had referenced certain Scientology policies which they said explained their delay in reporting. The prosecution argued that testimony from an expert confirming the existence of these policies supported the witnesses’ credibility. (13 RT 669-670.) This was so, the prosecution explained, because confirming the existence of these policies would show there was “some support for their basis and belief.” (13 RT 670.) The trial court agreed. (13 RT 675, 678.)
The same rule should have applied to the harassment evidence. Here, the complaining witnesses referenced the fact that they had been harassed. Showing that these claims were demonstrably false would show there was no “support for their basis and belief,” and would undercut the witnesses’ credibility. A finding that the witnesses’ sworn claims of harassment were concocted was directly relevant to assessing credibility. Exclusion of this evidence violated the Fifth and Sixth Amendments.
The next question is whether the error was prejudicial. When a trial court erroneously excludes relevant evidence in violation of state law, reversal is required whenever “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Watson, supra, 46 Cal.2d at p. 837.) When a trial court excludes evidence in violation of a defendant’s Fifth and Sixth Amendment rights, reversal is required unless the state can show the error “was harmless beyond a reasonable doubt.” (Chapman, supra, 386 U.S. at p. 24.) Here too, just as in Arguments II and III above, it does not matter whether the error is reviewed under the state or federal standard. Under either standard, reversal is required.
The jury had one question to answer: were the complaining witnesses credible? On this question the jury was allowed to consider the complaining witnesses’ testimony that they were testifying despite having been harassed for years since coming forward to police. And in closing argument, the prosecutor was careful to remind jurors that the evidence showed a “billion dollar organization that’s retaliating against” the complaining witnesses. (34 RT 3411.) The complaining witnesses “were retaliated against by their Church.” (Ibid.)
But jurors had only heard one side of the story. As discussed above, the trial court had precluded the defense from presenting powerful evidence showing that the harassment claims were manufactured, and that law enforcement itself had found them unsubstantiated.
There is no need to repeat arguments made previously in this brief about how central credibility was to this case. Indeed, the prosecutor himself recognized the importance of credibility evidence, explicitly urging the jury to find the witnesses credible and convict. (33 RT 3381-3382.) The prosecutor directly tied the unrebutted harassment evidence to the complaining witnesses’ credibility, telling jurors to consider “what they’ve had to go through [to testify and] what they’re essentially still suffering from . . . with regard to the harassment and the stalking.” (33 RT 3376; See Powell, supra, 67 Cal.2d at pp. 55-57 [prosecutor’s reliance on evidence reveals its importance to both the state’s case and the jury]; Cruz, supra, 61 Cal.2d at p. 868 [same].) Nor is there any need to repeat how the hung jury and the objective record of jury deliberations at the two trials all show that jurors considered this a close case. On this record, regardless of which standard of prejudice is applied, exclusion of the defense evidence was prejudicial.
ERRORS REQUIRING REVERSAL OF THE COUNT ONE CHARGE INVOLVING [JD1] ONLY
VIII. THE STATE’S 16-YEAR DELAY IN BRINGING CHARGES ON THE COUNT ONE CHARGE VIOLATED MR. MASTERSON’S RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
A. Introduction.
The count one charge, alleging an April 2003 offense, was first reported to police in June of 2004. Police investigated and the District Attorney declined to prosecute. 16 years later, the District Attorney filed charges. Because substantial evidence had been lost in that 16-year period, Mr. Masterson moved to dismiss this charge for pre-accusation delay.
The law governing pre-accusation delay is quite simple. First, a defendant must show prejudice from the delay. (People v. Nelson (2008) 43 Cal.4th 1242, 1250.) If prejudice is shown, the state must offer reasons to justify the delayed prosecution. (People v. Boysen (2007) 165 Cal.App.4th 761, 777.) At that point, the court must balance the justifications offered against the prejudice and decide whether dismissal is proper. (Ibid.) Here, the trial court found that the defense had failed to show any prejudice from the 16-year delay and that, in any event, the delay was justified as “investigative delay and nothing more.” (5 RT 350-355 [no prejudice], 355- 356 [justification].)
As discussed below, the defense made an ample showing of prejudice. All of the lost evidence was exculpatory as to the crucial issue jurors would be asked to decide -- was the sexual encounter a forcible rape as opposed to any other kind of sexual activity? Several witnesses with favorable testimony had died. Another potentially favorable witness no longer had any memory of the events. And although the prosecution turned over what it maintained was a full copy of the original police department file, the file no longer included a tape recording of [JD1]’s initial interview with police. The state justified the 16-year delay by noting the discovery of Damian Perkins, described as a “material witness.” But as discussed below, Perkins’ recollection was so fundamentally inconsistent with [JD1]’s own version of events that the state ultimately elected not to call him as a witness at either trial. The state also relied on the discovery of another complaining witness who police could have but failed to discover back in 2004. While the state asserted other justifications, a correct weighing of prejudice versus justification shows that the count one charge should have been dismissed.
B. The Relevant Facts.
The crime set forth in count one was alleged to have occurred on April 25, 2003. (2 CT 345.) [JD1] reported the offense to police in June of 2004. (8 CT 2289-2294.) As discussed in the Statement of Facts, police investigated, interviewing a number of witnesses including B.S., J.W., P.D., L.W., [JD1]’s father and Ben S. (8 CT 2262-2265, 2315-2318.) Based on the results of the investigation, on June 25, 2004 the District Attorney rejected the case for prosecution. (8 CT 2309-2310.) Instead, the prosecution waited until June of 2020 -- a full 16 years later -- to charge Mr. Masterson. (1 CT 76-80.)
Of course, the 16-year delay at least potentially posed a statute of limitations problem for the prosecution. As discussed in Argument I, supra, the state’s legal theory was that a statute of limitations bar could be avoided by relying on the multiple-victims/forcible rape provisions of Penal Code section 667.61. (1 CT 33-36, 57-63.) And at the end of the day, after two trials, jurors convicted Mr. Masterson of forcible rape involving two victims -- [JD2] and [JD1] -- and the statute of limitations was not a bar to prosecution. Obviously, if jurors had rejected a finding of forcible rape as to the [JD1] count, then even under the state’s theory the statute of limitations would have barred conviction since there would no longer be multiple victims.
As to this critical inquiry -- whether the conduct involving [JD1] constituted rape by force -- the 16-year delay was extremely detrimental to the defense. According to police officer Schlegel, in a June 2004 interview, [JD1] said (1) she flew to Florida the day after the April 25 rape; she had “bruises on both sides of her neck, on both wrists, on her inner thighs and on both arms by the bi-cep/tri-cep area” and (2) “her parents [observed] the bruises and asked her about them . . . .” (8 CT 2294.) Obviously, testimony confirming the presence of substantial bruising would support the state’s theory that this was not consensual intercourse (as the defense claimed) or even rape by intoxication (barred by the statute of limitations). Just as obviously, testimony that contradicted [JD1]’s claims of substantial bruising would call into question [JD1]’s truthfulness and credibility.
As noted, police followed up, interviewing [JD1’s father] days later. (8 CT 2317.) [He] confirmed that he did indeed see [JD1] immediately after April 25. (8 CT 2317.) But [he] squarely contradicted [JD1]’s testimony about seeing bruises; to the contrary, [he] told police officer Myers that “he had not seen . . . injuries” on [JD1] (8 CT 2317.) Moreover, a letter [he] wrote to Mr. Masterson showed that he had other testimony undercutting the state’s thesis that [JD1] was forcibly raped; based on information[JD1] conveyed to him, [he] concluded that although the intercourse was not consensual, it was not forcible. (4 CT 905.) During the 16-year delay in prosecution, however, [he] died, so he could not be called as a witness to impeach [JD1]’s testimony about the existence of bruises or the use of force. (See 5 RT 286-289 [defense counsel explains value of [his] letter to impeaching [JD1]’s testimony].) [Although [JD1] said both her parents saw her bruises, police did not interview [JD1]’s mother. Instead, they asked [JD1’s father] to have [JD1’s mother] call them; when she did not call by June 25, the case was rejected for prosecution. (8 CT 2317.)]
But [JD1’s father] was not the only witness who could have provided testimony relating to the critical question of whether a forcible sexual encounter had occurred that night. According to [JD1], J.D. was one of a small number of people present in Mr. Masterson’s home on April 25, 2003. (8 CT 2290.) In 2004, J.D. told B.S. about that night, conveying his impression that the encounter between [JD1] and Mr. Masterson was consensual. (5 RT 334-335; 8 CT 2271, 2295, 2322.) But by the time [JD1] was first interviewed by police in 2017, he no longer had any recollection of the night in question. (5 RT 334-336; 8 CT 2340, 2352.)
There was more. As support for the force allegation central to avoiding the statute of limitation bar, the prosecution elicited testimony from [JD1] at the preliminary hearing, and at both trials, that Mr. Masterson choked her during the rape. (5 ART (8/23/24) 974; 5 ART (5/17/24) 685; 25 RT 2023-2024.) Obviously, just like the presence of bruises, this portion of [JD1]’s testimony (if credible) supported a forcible rape theory. (See 33 RT 3281 [during closing argument the prosecution relies on this conduct in urging jurors to find true the forcible rape allegation involving [JD1]].)
Finally, during the discovery process, the defense received portions of the police department’s original 2004 investigative file. (8 CT 2278.) The defense subsequently requested any recordings of the complaining witnesses. (1 CT 162.) The state responded that there were “[n]o recordings extant. Original LAPD case file missing.” (1 CT 163; 9 CT 2422.) Defense counsel inferred from “no recordings extant” that at one time there had been a recording of the [JD1] interview but police no longer had it. (8 CT 2278.) As Detective Myers later confirmed, defense counsel was correct -- there had been a tape recording of [JD1]’s police interview. (31 RT 3081.) Obtaining the recording was crucial to the reliable resolution of a stark factual conflict.
At trial, [JD1] testified that Mr. Masterson displayed a gun during the April 2003 sexual encounter. (25 RT 2027.) If credited, of course, this directly supported the state’s thesis of a forcible rape. [JD1] also testified that she told police about the gun in her initial 2004 interviews. (25 RT 2138; 26 RT 2306, 2307.) But Officer Schlegel testified that, in fact, [JD1] did not mention a gun during the 2004 interviews. (30 RT 2912, 2937.) As Officer Schlegel and Detective Myers both testified, if [JD1] told them Mr. Masterson had brandished a gun, that would have been an important fact which would have appeared in the police reports detailing these interviews. (30 RT 2937; 31 RT 3084-3085.) But the reports of the 2004 interviews with [JD1] contain no reference to a gun. (Ibid.)
The prosecutor urged jurors to resolve this factual conflict by finding that [JD1] was more credible. (33 RT 3282-3283.) In the state’s view, it “was a busy night” and Detective Schlegel “forgot to include it.” (Ibid.) Of course, a recording of [JD1]’s interview would have definitively resolved this question and allow defense counsel to show that [JD1] was lying to the jury. But by the time of trial, police had lost that recording.
Based on the loss of all this evidence, defense counsel moved to dismiss the count one charge involving [JD1] for pre-accusation delay. (8 CT 2257.) The state argued defendant had not shown prejudice. (9 CT 2506- 2507.) Alternatively, the state explained that at the time the District Attorney rejected the case in June of 2004 the state was unaware of (1) two prior incidents (involving [JD2] and [JD3]) and one later victim (section 1108 witness Tricia V.) and (2) Damian Perkins who “provided corroborating evidence based on his observations while at the defendant’s residence.” (9 CT 2546, 2548.) The trial court summarized Perkins’ remarkable corroboration; interviewed in 2017, Perkins told police he was at the Masterson home on the evening of April 25, [JD1] came down the stairs naked and screaming that Mr. Masterson had just raped her and Mr. Masterson then dragged her back upstairs. (4 RT 239-240.) In his own statement, Perkins added that (1) he and [JD1] were “very close friends” and (2) in response to [JD1] screaming that she had just been raped, and Mr. Masterson then dragging her back upstairs, he (Perkins) told [JD1] to “calm down” and Mr. Masterson would “take care of you.” (8 CT 2358-2359.)
The trial court denied the motion to dismiss, ruling that the defense had not established any prejudice. In the court’s view, [JD1’s father]’s testimony as to not seeing any bruises was cumulative to the photographic and witness testimony showing no bruises. (5 RT 352.) And calling [him] to testify about statements [JD1] made “could arguably cut for or against the defense” since [he] “accuse[d] Mr. Masterson of rape . . . .” (5 RT 352.) Turning to J.D., the court found that (1) because he did not recall anything it was speculative to assume that he would have said anything favorable to the defense and (2) his failure to recall anything actually impeached Perkins’ testimony, since he would likely have remembered something as extraordinary as what Perkins described. (5 RT 350-351.) And with respect to the missing LAPD file, the court accepted the prosecutor’s position that “the D.A.’s office kept and turned over [the file] to the defense” and “anything of exculpatory value” was turned over. (5 RT 353.) Alternatively, the court went on to rule that even if there was prejudice, the state’s justification outweighed it since this was “simply investigative delay and nothing more.” (5 RT 356.) None of the court’s rationales withstand scrutiny.
C. The Trial Court Improperly Concluded There Was No Prejudice, It Failed To Determine If The State’s Delay Was Negligent And, As A Consequence, It Was Unable To Conduct The “Delicate Balancing” State Law Requires.
A defendant’s state and federal constitutional rights to a speedy trial attach, and prevent substantial prejudicial delay, after charges have been filed. (Barker v. Wingo (1972) 407 U.S. 514; People v. Martinez (2000) 22 Cal.4th 750, 767.) Prejudicial delay before charges have been filed does not implicate the right to a speedy trial, but may instead violate a defendant’s rights to due process and a fair trial.
In this respect, the Fifth and Fourteenth Amendments to the United States Constitution protect criminal defendants “against oppressive delay” by the state prior to the filing of formal charges by the state. (United States v. Lovasco (1977) 431 U.S. 783, 789. Accord, People v. Cowan (2010) 50 Cal.4th 401, 430 [article I, section 15 of the California Constitution also protects defendant against undue delay prior to charges being filed]; People v. Nelson (2008) 43 Cal.4th 1242, 1250 [same].) Due process “protects a criminal defendant’s interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence.” (Martinez, supra, 22 Cal.4th at p. 767; see also People v. Hartman (1985) 170 Cal.App.3d 572, 580 [loss of biologic evidence and alibi witnesses caused by state delay prejudiced defense].)
While delay prior to charges does not formally implicate the right to a speedy trial, essentially the same test to determine prejudice is used. (Martinez, supra, 22 Cal.4th at p. 767; Scherling v. Superior Court (1978) 22 Cal.3d 493, 507.) Thus, in either case, the trial court must carefully balance the length and reason for the state’s delay against the prejudice caused to the defendant. (Barker v. Wingo (1972) 407 U.S. 514; Martinez, supra, 22 Cal.4th at p. 767.) This requires courts to “engage in a difficult and sensitive balancing process.” (Barker, supra, 407 U.S. at p. 533.)
As noted, the court here first found no showing of prejudice at all. (5 RT 350-355.) Alternatively, the court went on to address the justification offered for the delay, concluding that the “delay is more akin to an investigative delay and nothing more. So the court finds that justification is sufficient to overcome any claim of prejudice.” (5 RT 356.) Based on this reasoning, the court then denied the defense motion to dismiss. (5 RT 356.)
There are three basic flaws with the trial court’s reasoning. First, the court’s threshold conclusion there was no prejudice is clearly refuted by the record. Second, in assessing justification for the delay, the court ignored clear state law requiring an inquiry into whether the state’s failure to properly investigate was negligent. Third, the court’s failure to recognize any prejudice or consider the state’s negligence necessarily skewed the “difficult and sensitive balancing process” in which the court was required to engage. Mr. Masterson will address each of these flaws.
1. The defense established prejudice from the 16-year delay.
In her very first interview with police, [JD1] told police that she went to Florida the day after the April 25 incident, and both parents saw her bruises. (8 CT 2294.) One explanation for the presence of bruises, of course, was that the rape was forcible just as [JD1] testified.
But in an interview with police only a few days later, [her father] told police that, in fact, he had not seen any injuries on [JD1] (8 CT 2317.) This would plainly have undercut any inference that the rape was forcible and undercut [JD1]’s credibility. So too would [his] testimony about what [JD1] conveyed about the incident; [his] letter to Mr. Masterson makes clear [his] view (based on what he was told by [JD1]) that the incident was not forcible. (4 CT 905.)
Addressing the fact that [JD1’s father] did not see any bruises, the trial court ruled that [his] death in the 16-year period of delay did not prejudice the defense. This was so, the court explained, because it was “cumulative” to photographs taken in Florida which “don’t show any bruising” and “other witnesses” would say there was no bruising. (5 RT 352.)
In fact, however, the prosecution took exactly the opposite position at trial, arguing that although the photographs were “extremely hard to see,” they show bruises but “don’t do the bruises justice.” (33 RT 3285-3286.) For his part, defense counsel argued that the photographs contradicted [JD1]’s testimony that she had bruises everywhere. (33 RT 3352-3353.) And the only third-party witness who testified at the second trial about bruises was [JD1]’s good friend and cousin, Rachel Dejneka, who testified that she did see bruises. (27 RT 2405.) Given the prosecution’s reliance on photographs and testimony to support its position that there were bruises, it is difficult to understand the trial court’s conclusion that contrary testimony from [JD1]’s own father was somehow “cumulative” to the photographs and testimony on which the prosecution was relying to prove its case.
Equally important, even if other witnesses could testify they saw no bruises, and as defense counsel pointed out, “not all impeachment is equal. Not all impeachment is of the same strength. And this gets back to who is she making this statement to: her dad.” (5 RT 333.) Defense counsel’s practical, real-world observation has been recognized by the United States Supreme Court. (See Skipper v. South Carolina (1986) 476 U.S. 1, 8 [trial court admits evidence from defendant’s wife about his good conduct in prison but excludes such evidence from prison personnel; held, exclusion was improper since “[t]he testimony of more disinterested witnesses -- and, in particular, of jailers who would have had no particular reason to be favorably predisposed toward one of their charges -- would quite naturally be given much greater weight by the jury.”].) The same is true here; jurors could reasonably assume that [JD1]’s father would, if anything, be biased in her favor. Testimony from [JD1]’s own father that he saw no bruises would “quite naturally be given greater weight” on this point than virtually any other witness. [This is especially true here. The “other witness” which the trial court may have been referring to could have been prosecution witness Shaun Fabos. Fabos testified at the first trial that (1) [JD1] told him “something weird had happened” with Mr. Masterson, (2) [JD1] later retracted her allegation, saying she had made it up, (3) he (Fabos) did not know which version was true and (4) he was with her in Florida after the charged incident and saw no bruises. (8 ART (5/17/24) 1153-1155, 1164-1165, 1183-1184, 1191-1193.) The prosecution questioned whether Mr. Fabos had actually gone on the Florida trip, noting that he “never told anyone within the D.A.’s office” that he had done so. (8 ART (5/17/24) 1200- 1202.) So Fabos was certainly a mixed bag for the defense; he (Fabos) said he did not see any bruises, but the prosecution questioned whether he even went on the Florida trip in the first place.]
With respect to using [JD1’s father] to undercut the state’s thesis that [JD1] was forcibly raped, and as noted above, the court ruled that testimony from [him] “could arguably cut for or against the defense” since he “accuse[d] Mr. Masterson of rape . . . .” (5 RT 352.) This rationale is indefensible because, based on what [JD1] told him, [her father] did not characterize the incident as forcible rape (the only type of rape that could even arguably be prosecuted in 2022/2023 due to the statute of limitations). Instead, [his] understanding -- again based on [JD1]’s statements -- was that the offense was rape by intoxication for which the statute of limitations had long since run. The trial court’s reasoning completely ignores the statute of limitations issue in this case, and the substantial difference between a finding of rape by force in violation of section 261(a)(2) and rape by intoxication in violation of section 261(a)(3).
As discussed in Argument I, even fully accepting the state’s thesis, in order to avoid a limitations bar on prosecution the state was required to prove beyond a reasonable doubt not just rape, but rape by force. [JD1’s father]’s testimony supported an argument that the version of events [JD1] gave to her father did not constitute forcible rape. As such, the trial court erred in dismissing the value of this evidence as “arguably cut[ting] for or against the defense.”
Turning to [JD1], the trial court ruled that it was speculative whether J.D. would have said anything favorable. (5 RT 351.) And while it is true that the passage of 16 years, and J.D.’s inability to recall 16 years later, certainly made it difficult to know with certainty what J.D.’s testimony would have been, the fact of the matter is that there were certainly indications of what his testimony would have been. On the day of the charged offense -- April 25, 2003 -- B.S. memorialized in writing part of a conversation she had with J.D. that very same day. B.S. had driven to Mr. Masterson’s house looking for [JD1]; when she arrived J.D. told her that [JD1] was in the bedroom with Mr. Masterson and he “didn’t want to bug them, so to speak.” (8 CT 2271, 2295, 2322.) [The court noted [JD1]’s inability to recall was actually helpful, since it impeached Damian Perkins, a new witnesses the state identified as justifying the delay. (5 RT 351.) But although the state explained the 16- year delay in prosecution in part by the discovery of “material witness” Damien Perkins (9 CT 2546), the state did not call Perkins as a witness at the preliminary hearing, the first trial or the second trial. As this Court has long noted, sometimes “actions speak louder than words.” (People v. Newman (1951) 102 Cal.App.2d 302, 306.)]
Finally, the court’s suggestion that everything of value from the LAPD file had been disclosed is explicitly refuted by the record. There was no dispute that the file turned over by the prosecution did not contain any recordings. Indeed, that is precisely why defense counsel explicitly asked for the recording of [JD1]’s initial interviews with police. As a general matter, given the many changes in her version of events, such a recording could certainly have been useful. But more specifically, defense counsel noted that [JD1] was now claiming (1) Mr. Masterson displayed a gun during the April 2003 incident and (2) she told police this in her initial interviews, but they simply did not include this in their reports. (8 CT 2278-2279.) Thus, a recording of [JD1]s initial statement “could conclusively prove that [JD1] is not just wrong, but more importantly being untruthful, when she tells the jury that she told police about a gun and they neglected to write it down.” (8 CT 2279.) The court’s suggestion that “anything of exculpatory value” had been disclosed entirely ignores the missing recording.
In short, the trial court’s reasons for finding no prejudice at all are repudiated by the record.
2. Many of the state’s asserted justifications for the delay are inapplicable.
Turning to justification, the trial court made an alternative finding that because “the passage of time resulted in more women coming forward,” and “resulted in new evidence . . . and, therefore, new charges” this was mere “investigative delay and nothing more.” (5 RT 356.) The trial court’s reference to “investigative delay and nothing more” suggests the court conflated the standard of pre-accusation delay under state law (raised at trial) with the standard applied under federal standard (which was not raised below and is not being raised here).
The federal standard is more prosecution-friendly: a due process violation for pre-accusation delay requires proof of something more than delay. It requires proof that the delay was purposeful or the state had a tactical reason for the delay. (People v. Catlin (2001) 26 Cal.4th 107; see also People v. Horning (2004) 34 Cal.4th 871, 895.) The state constitutional standard, however, is more defense-friendly: delay alone can violate due process even if the state did not purposely delay in order to gain “a tactical advantage.” Instead, in contrast to the federal test, “negligent, as well as purposeful, delay in bringing charges may . . . violate due process.” (Id. at p. 1255. Accord People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911; People v. Hartman, supra, 170 Cal.App.3d at p. 581; People v. Pellegrino (1978) 86 Cal.App.3d 776, 780.) So, in contrast to federal law, state law equires an inquiry into whether the delay was negligent.
A finding of “investigative delay and nothing more” would, of course, satisfy the federal due process standard since there would be no finding that the delay was purposeful or designed to gain a tactical advantage. But it would not necessarily satisfy the state standard. Because the trial court here concluded the delay was “investigative delay and nothing more,” it made no state-law finding as to whether any of the delay was caused by negligence in the investigation.
But an inquiry into negligence is an important part of the state-law analysis. “The requirement of a legitimate reason for the prosecutorial delay cannot be met simply by showing an absence of deliberate, purposeful or oppressive police conduct.” (Penney v. Superior Court (Penney) (1972) 28 Cal.App.3d 941, 953.) Under state law, with respect to balancing whether due process has been violated “it makes no difference whether the delay was deliberately designed to disadvantage the defendant, or whether it was caused by negligence of law enforcement agencies or the prosecution.” (Scherling v. Superior Court, supra, 22 Cal.3d at p. 507.) To the contrary, “[n]egligence on the part of police officers in gathering evidence or in putting the case together for presentation to the district attorney, or incompetency on the part of the district attorney in evaluating a case for possible prosecution can hardly be considered a valid police purpose justifying a lengthy delay which results in the deprivation of a right to a fair trial.” (Penney, supra, 28 Cal.App.3d at p. 953.)
Here, the state justified the 16-year delay by arguing the prosecutor was unaware of (1) Damian Perkins, described as a “material witness in [JD1]’s case” who provided “corroborating evidence,” (2) an “additional two prior victims [[JD3] and [JD2]] . . . who each had reportedly been raped by the same defendant . . . .” and (3) a later victim (presumably Tricia V., a section 1108 witness who testified at the first trial only). (9 CT 2546-2549.)
The reliance on “material witness . . . Damien Perkins” as justification for the 16-year delay is curious indeed. As noted above, the state did not call “material witness” Perkins as a witness at the preliminary hearing. It did not call “material witness” Perkins at the first trial. And it did not call “material witness” Perkins at the second trial.
For good reason. Perkins’ memory was that [JD1] (his “very close friend[]”) came downstairs in the midst of being raped, screamed “Oh my God Danny just raped me,” Mr. Masterson dragged her back upstairs while she screamed “get the fuck off me” and Perkins responded by telling her to “calm down.” (8 CT 2358-2359.) This version of events was not only unsupported by any other witnesses in the house that night, but it was patently inconsistent with [JD1]’s own version of events. The state’s suggestion that Perkins provided the type of credible “corroborating evidence” justifying a decision to file charges in 2020 is belied by the state’s consistent actions in never calling Perkins as a witness. Sometimes actions really do speak louder than words.
Turning to the state’s reliance on the 2016 discovery of [JD3]’s allegations, a reasonably competent police investigation would have uncovered these allegations in 2004. As noted above, in June 2004 [JD1] told police that her parents saw the bruises on her. (8 CT 2294.) Although police interviewed her father, who did not see any bruises, they apparently neglected to interview [JD1]’s mother. Instead, officer Myers delegated the task of arranging this interview to [JD1]’s father, “request[ing] [him to] have his wife call so I could interview her. She has not called.” (8 CT 2317.)
But [she] was fully aware of [JD3]’s allegations, at least as early as January of 2004. (8 CT 2321, 2325.) Thus, had police not delegated the task of arranging this interview to [JD1]’s father, and instead interviewed [her mother], it seems likely they would have been aware of [JD3]’s allegations in 2004. And B.S., who police also interviewed in June of 2004 was aware of [JD3]’s allegations the day after they were made. (4 CT 923, 930.) Indeed, [JD1] herself was also aware of [JD3]’s allegations. (4 CT 923-924, 930.) Yet although [JD1] was reporting Mr. Masterson for rape, and had numerous conversations with police about her allegations in June of 2004, the prosecution maintains police did not learn about [JD3] until 2016 or 2017. (9 CT 2546.) In short, if indeed police were not aware of [JD3] in 2004, they certainly should have been, either through [JD1’s mother] or B.S. or [JD1]. The failure to properly gather evidence about [JD3] in a timely manner is not a valid justification for this 16-year delay. (Penney, supra, 28 Cal.App.3d at p. 953.)
Where delay is caused by the negligence of the state, the prejudice suffered by a defendant may be sufficient when balanced against the reasons for the delay to constitute a denial of due process. (Scherling v. Superior Court, supra, 22 Cal.3d at p. 507.) Here, Mr. Masterson recognizes that the above analysis still leaves the discovery of [JD2] and Tricia V. as asserted justifications to balance against prejudice in assessing whether the 16-year delay was justified. But because the trial court erred in its analysis of the prejudice caused by the 16-year delay, and because several of the state’s justifications should not have been in the balancing process at all, the question remains whether the trial court’s “sensitive balance” of prejudice against justification was impacted by these errors.
3. A proper balance of prejudice and justification requires reversal of the count one charge.
Because the trial court found no prejudice at all, and because several of the state’s justifications for the delay may not properly be considered, the trial court’s balancing of prejudice against justification was necessarily skewed. “Even a minimal showing of prejudice may require dismissal if the proffered justification for delay be unsubstantial. By the same token, the more reasonable the delay, the more prejudice the defense would have to show to require dismissal. Therein lies the delicate task of balancing competing interests.” (Ibarra v. Municipal Court (1984) 162 Cal.App.3d 856, 858.)
As an initial matter, Mr. Masterson concedes that with [JD2] and Tricia V. the state had additional evidence on which it could rely. But as the case law establishes, the mere fact that authorities have additional evidence does not preclude dismissal for pre-accusation delay. (See, e.g., Boysen, supra, 165 Cal.App.4th 761.) Instead, when substantial delay has caused prejudice, the kind of new evidence typically held to justify the delay is forensic evidence identifying defendant as the perpetrator. (Compare People v. Bracamontes (2022) 12 Cal.5th 977, 987 [state sought to justify 12-year precharging delay in rape/homicide case by noting that new forensic technique for transferring evidence from a swab to a slide led to discovery of DNA evidence implicating defendant; held, justification sufficient] and People v. Cordova (2015) 62 Cal.4th 104, 120 [state sought to justify 23- year precharging delay because sufficient evidence to charge the defendant did not exist until DNA technology was developed and used to connect him to the subject offense; held, justification sufficient where “[n]o reason exists to believe [the witnesses missing because of the delay] . . . would have supplied exonerating, rather than incriminating, evidence.”] with People v. Booth (2016) 3 Cal.App.5th 1284, 1293-1294 [state sought to justify 17-year precharging delay by noting it could not identify shooter for 17 years until co-participant came forward to identify defendant; held, justification insufficient where testimony of important defense witness was lost].) The evidence offered to justify the 16-year delay in prosecuting the charge involving [JD1] -- [JD2] and Tricia V. -- while certainly admissible, does not have the same probative value in the prejudice calculus as new forensic or eyewitness testimony directly establishing guilt as to charged offenses.
In any event, the remaining justification must be balanced against the prejudice caused by the 16-year delay to Mr. Masterson’s ability to present evidence critical to the defense. (Penney, supra, 28 Cal.App.3d at p. 953. Accord People v. Hartman, supra, 170 Cal.App.3d at p. 580.) And “[if] witnesses die or disappear during a delay, the prejudice is obvious.” (Barker v. Wingo, supra, 407 U.S. at p. 532.)
Here, the defense lost substantial exculpatory evidence relating to whether the [JD1] count constituted forcible rape. Absent the delay, [her father] could have testified that contrary to [JD1]’s testimony, he did not see bruises all over her body in the days after the incident. And he would have been examined in connection with whether [JD1]’s initial account of the incident involved any force at all. J.D. could have testified to why he believed [JD1] and Mr. Masterson did not want to be disturbed that night. And the defense would have had access to a tape recording of [JD1]’s initial statements to police to resolve whether she was lying to the jury when she claimed that in her initial interviews with police she told them Mr. Masterson brandished a gun.
Taken together, this evidence could certainly have undermined the state’s case for forcible rape as to [JD1]. The lost evidence was especially important here, because the complaining witnesses had augmented their stories over time, adding assertions about the use of force. And the record from both the 10-2 hung jury at the first trial, and the jury deliberations at the second trial, shows that this was a close case as to [JD1]. The loss of this important evidence is precisely the type of harm causing “irreparable, actual and substantial prejudice” to defendant. (People v. Hartman, supra, 170 Cal.App.3d at p. 583.) Reversal of the count one charge is required.
IX. THE TRIAL COURT VIOLATED MR. MASTERSON’S STATE AND FEDERAL RIGHTS TO CONFRONTATION AND A FAIR TRIAL BY PRECLUDING DEFENSE COUNSEL FROM PRESENTING EVIDENCE SUPPORTING THE DEFENSE THEORY THAT [JD1] WAS ALREADY INTOXICATED WHEN SHE ARRIVED AT MR. MASTERSON’S HOME.
A. The Relevant Facts.
[JD1] testified that after arriving at Mr. Masterson’s house on the evening of April 25, 2003, she drank half of a vodka-based drink. (24 RT 1966-1968.) The prosecution explored in some detail [JD1]’s testimony about the debilitating impact this drink had on her -- she was light-headed, dizzy, her head was spinning, she was breathing hard, nauseous and confused. (24 RT 1971, 1976-1977, 1979.)
There are, of course, two possible explanations for the cluster of symptoms [JD1] described. First, these symptoms could result from some kind of drug placed in [JD1]’s drink. Alternatively, these identical symptoms are also common symptoms of straightforward alcohol intoxication. (See https://www.mayoclinic.org/diseases-conditions/alcohol-poisoning/ symptoms-causes/syc-20354386; https://lmhofmeyr.co.za/conditions/ dizziness-and-balance-disorders/alcohol/, [both last accessed 3/2/24].)
The prosecution adopted the first of these explanations, arguing that these symptoms were the result of Mr. Masterson’s predatory acts in drugging [JD1]. To support this theory, [JD1] testified that when she arrived at Mr. Masterson’s house, (1) he prepared her a drink and brought it to her on the patio, (2) this was her first drink of the evening and (3) she had never before experienced such a reaction to a vodka drink. (24 RT 1966-1968; 25 RT 2007.) [JD1]’s testimony about the debilitating impact this drink had upon her, and Mr. Masterson’s role in preparing and serving the drink, fit squarely into the prosecution’s theory of the case. As such, in closing argument the prosecutor repeatedly urged jurors to conclude that [JD1] had been drugged. (33 RT 3279, 3299.) The prosecutor emphasized that prior to being given a drink by Mr. Masterson, [JD1] had “zero alcohol during the night.” (33 RT 3279.) Thus, according to the prosecutor, the symptoms [JD1] described evidenced predatory drugging by Mr. Masterson designed to reduce her capacity to resist his sexual advances. (33 RT 3280.)
Not surprisingly, defense counsel adopted the second explanation, contending that these symptoms did not show drugging by Mr. Masterson. Instead, they showed that [JD1] had been drinking to excess that night. Defense counsel called the jury’s attention to several inconsistencies in [JD1]’s account. Defense counsel elicited from [JD1]’s cousin Rachel Dejneka that [JD1] had told her she ([JD1]) actually had been drinking alcohol earlier that night. (27 RT 2407.) This was consistent with Dejneka’s statement that in 2003, [JD1] was a “bit of a partier.” (27 RT 2423.) Counsel elicited that in [JD1]’s initial report to police, she did not say Mr. Masterson prepared her drink and brought it out to her. Instead, she said she was in the kitchen with Mr. Masterson when he made her a drink. (30 RT 2924. See 8 CT 2290.) Obviously it would be more difficult for Mr. Masterson to spike [JD1]’s drink if she was there with him when he made it. In short, the source of [JD1]’s symptoms was very much a contested issue at trial.
Unfortunately, however, in resolving this contested issue, jurors did not have all the evidence. Defense counsel sought to introduce [JD1]’s admission to police that prior to arriving at Mr. Masterson’s home on the evening of the charged rape, she had urinated in the street. (13 RT 730-734.) Defense counsel’s argument was simple: although other explanations for this conduct were possible, the most likely explanation for [JD1]’s public urination was that she was intoxicated before she arrived at Mr. Masterson’s home that evening. (Ibid.) This provided an alternate explanation for the symptoms the prosecution attributed to Mr. Masterson having drugged [JD1] (Ibid.) The trial court excluded this evidence, noting that there were other conceivable reasons [JD1] could have urinated on the street. (11 CT 3179.) [This rationale echoed the court’s ruling at the first trial, where the court excluded this evidence because [JD1] could have urinated in a public street because she drank “an inordinate amount of coffee, tea, soda [or] other consumption . . . .” (6 ART (5/17/24) 898.)]
As more fully discussed below, the trial court’s speculation that the prosecution might conjure up an alternative explanation for [JD1] urinating in the street did not make the evidence inadmissible. Evidence does not have to have only one explanation to be admissible -- after all, the entire purpose of the jury system is to have a jury of 12 citizens decide between competing explanations. And common sense, as well as substantial authority discussed below, suggests that the most likely reason an adult woman would urinate in a public street is because she is intoxicated. The trial court erred in excluding this evidence. As also discussed below, given how important [JD1]’s credibility was to the count one charge, exclusion of this evidence requires reversal of the count one conviction.
B. The Trial Court Committed Prejudicial Error in Excluding Evidence From Which Defense Counsel Could Have Argued [JD1] Was Already Intoxicated When She Arrived At Mr. Masterson’s House.
As discussed in Argument II, supra, Article I, section 28(d) of the California Constitution provides that “relevant evidence shall not be excluded in any criminal proceeding.” And federal law separately provides that when the prosecution introduces evidence and argument on a particular issue, the defendant may not be precluded from rebutting the state’s evidence. (See, e.g., Simmons, supra, 512 U.S. at pp. 168-169; Crane, supra, 476 U.S. at pp. 690-691.)
Here, the trial court ruled the urination evidence inadmissible because there could be alternative innocent explanations for [JD1] urinating in the street. (11 CT 3179.) But the California Supreme Court has reached a very different conclusion; the fact that competing explanations can be given for a piece of evidence “does not make the evidence . . . inadmissible.” (See People v. Mason (1991) 52 Cal.3d 909, 957.) Instead, the competing “explanation[s] merely raise[] an ordinary evidentiary conflict for the trier of fact.” (Ibid.) Contrary to the trial court’s view here, “[t]he test of relevancy is whether the evidence tends, logically, naturally, or by reasonable inference to establish a material fact, not whether it conclusively proves it.” (People v. Yu (1983) 143 Cal.App.3d 358, 376 [emphasis added]. Accord People v. Perry (1972) 7 Cal.3d 756, 772–774 [the fact that there are alternate explanations for a piece of evidence goes to weight, not admissibility], overruled on another ground in People v. Green (1980) 27 Cal.3d 1, 28; People v. Hughes (2002) 27 Cal.4th 287, 335 [consciousness of guilt evidence admissible “even if there also exists a possible alternate basis” for defendant’s conduct].)
So the admissibility question here is not whether it is possible to come up with other explanations for [JD1] deciding to urinate in a public street. Of course that is possible. Instead, the question is whether one likely inference that can reasonably be drawn from this conduct is that [JD1] was intoxicated. In this regard, California courts have long recognized the common sense proposition that people who urinate in a public street are often intoxicated. (See, e.g., People v. Cagle (1956) 141 Cal.App.2d 612, 614; Simon v. City and County of San Francisco (1947) 79 Cal.App.2d 590, 595.) Indeed, jurisdictions throughout the country recognize that when a person urinates in public, that fact may reasonably be considered in deciding whether the person is intoxicated. (See, e.g, Commonwealth v. Belliveau (Mass. Ct. Ap. 2010) 76 Mass.App.Ct. 830, 835; State v. McIver (Iowa 2015) 858 N.W.2d 699, 702; State v. Hudson (La. Ct. App. 1993) 617 So.2d 83, 84.) In accord with these common-sense rulings, the most likely inference from [JD1] urinating on a public street was that she was intoxicated. And this inference is entirely consistent with Rachel Dejneka’s testimony that, contrary to [JD1]’s sworn testimony, [JD1] admitted having several drinks at dinner before heading to Mr. Masterson’s home. (27 RT 2407.) Because the evidence was relevant, the trial court’s exclusion of this evidence violated state law.
It also violated federal law. As noted above, the state introduced detailed testimony from [JD1] about how she reacted to the contents of the drink she claimed that Mr. Masterson prepared for her. [JD1] told jurors she was light-headed, dizzy, her head was spinning, she was breathing hard, nauseous and confused. She had never reacted like this to a single drink of vodka. (24 RT 1966-1968; 25 RT 2007.) As also noted above, the prosecution relied on this evidence in closing argument; the prosecutor’s first six words in her closing argument were “it all starts with a drink.” (33 RT 3257.) The symptoms [JD1] described occurred because “the defendant drugs his victims.” (33 RT 3258.) [JD1] was “drugged.” (33 RT 3279, 3299.)
Given that this was the state’s theory, defense counsel was entitled to present evidence and argument to counter the state’s case and support the defense theory. Evidence that [JD1] urinated in a pubic street before arriving at Mr. Masterson’s home directly supported defense counsel’s position that there was an alternative explanation for [JD1]’s symptoms that did not involve predatory conduct on Mr. Masterson’s part. In light of the state’s position in this case, the limitation placed on defense counsel’s ability to rebut that position violated federal law.
Once again, however, there may be no need to decide whether the court’s error violated state or federal law. Even under the more statefriendly Watson standard of prejudice, which looks to see if absent the error there is a reasonable probability of a more favorable result, one or more jurors could have reached a more favorable result. (See Soojian, supra, 190 Cal.App.4th at p. 521.) That is certainly the case here.
As discussed in Argument II-C above, (1) [JD1]’s credibility was key to the judgment on the count one charge, (2) the hung jury from the first trial, voting 10-2 for acquittal, shows that jurors there were extremely concerned about [JD1]’s credibility and (3) deliberations at the second took more than 29 hours, involved several questions, requests for readback of testimony and ultimately resulted in yet another hung jury as to the count three charge involving [JD3] (8 RT 504; 11 CT 3048-3049, 3054, 3288-3290, 3292-3294, 3296; 36 RT 3441-3444; 39 RT 3384-3486, 3489-3490.) Moreover, the jury’s question about wanting to see the complaining witnesses’ communications with each other demonstrates that jurors were considering the central defense theory of contamination. (36 RT 3442.) As discussed in Argument II and III above, these are all indications of a close case. (See, e.g., Cardenas, supra, 31 Cal.3d at p. 907 [twelve-hour deliberation]; Rucker, supra, 26 Cal.3d at p. 391 [nine-hour deliberation]; Woodard, supra, 23 Cal.3d at p. 341 [six-hour deliberation]; Pearch, supra, 229 Cal.App.3d at p. 1295 [juror questions and requests for readback]; Thompkins, supra, 195 Cal.App.3d at pp. [request for readback shows close case]; Epps, supra, 122 Cal.App.3d at p. 698 [refusal to convict on all counts].)
On this record, testimony that [JD1] urinated in the street prior to arriving at Mr. Masterson’s house, could certainly have resulted in one or more jurors reasonably finding that she was intoxicated before she ever arrived at the house. This would have provided an alternate explanation for her symptoms since, as noted above, the symptoms [JD1] described -- dizziness/light headedness, nausea and confusion -- are commonly associated with intoxication. This conclusion is even more likely considering Rachel Dejneka’s testimony that [JD1]’s sworn statements to the jury about not having had a drink prior to arriving at Mr. Masterson’s home were false: [JD1] had, in fact, admitted to drinking earlier that evening. (27 RT 2407.) Regardless of whether the court’s error violated state or federal law, reversal of the count 1 charge is required. [As noted above, defense counsel presented several inconsistencies in [JD1]’s account which supported a theory of intoxication. (27 RT 2407; 30 RT 2924; 8 CT 2290.) But the prosecutor sought to explain away the inconsistencies by relying on Barbara Ziv’s expert testimony about why rape victims provide inconsistent versions of events. (23 RT 1802, 1806; 33 RT 3379-3380.) In addition, the prosecutor told jurors inconsistencies in [JD1]’s recollection occurred precisely because she had been drugged. (33 RT 3284. See also 33 RT 3258-3259 [using drugging to explain inconsistencies].) Evidence that [JD1] urinated in a public street before arriving at Mr. Masterson’s house was of a different nature -- it was not evidence the prosecution could explain by relying on Dr. Ziv’s testimony or drugging by Mr. Masterson.]
CUMULATIVE ERROR AND CONDITIONAL REVERSAL
X. THE CUMULATIVE ERRORS IN MR. MASTERSON’S TRIAL REQUIRE REVERSAL OF HIS CONVICTIONS EVEN IF, STANDING ALONE, THEY ARE INSUFFICIENT FOR REVERSAL.
A series of legal errors which are independently harmless may in the aggregate rise to the level of reversible prejudicial error. (People v. Hill (1998) 17 Cal.4th 800, 844.) Such cumulative error impacts a defendant’s federal constitutional rights to due process. (See, e.g., Thomas v. Hubbard (9th Cir. 2001) 273 F.3d 1164, 1179 [cumulative effect of three significant trial errors “so infected the trial with unfairness as to make the resulting conviction a denial of due process . . . .”]; Mak v. Blodgett (9th Cir. 1992) 970 F.2d 614, 622 [collecting cases].)
The errors discussed in Arguments II-VII above are each individually sufficient to require reversal as to both the [JD1] and [JD2] charges. And the errors discussed in Arguments VIII and IX above are sufficient to require reversal as to the [JD1] charge. But even if these issues were insufficient on their own to merit reversal, taken together they require reversal.
The credibility of the complaining witnesses was the key issue in this case. The errors discussed in Arguments II-VII went to the heart of this issue. The court denied subpoenas as to the complaining witnesses, preventing defense counsel from obtaining evidence to support the defense theory of contamination. The court then permitted the prosecution to introduce testimony from an experienced detective that the testimony of the complaining witnesses had not in fact been contaminated by their years of communicating with one another. And the court excluded evidence (1) undercutting the complaining witnesses’ testimony about having been harassed and (2) showing they had a plain and obvious financial motive in obtaining a forcible rape conviction. Moreover, as to [JD1], the court excluded evidence providing an alternate explanation for the symptoms she described and attributed to having been drugged. Layered on all these errors, of course, is the trial court’s about-face at the second trial in the decision to allow in a wealth of evidence about practices of the Church of Scientology, evidence which the court had been careful to exclude or limit at the first trial.
Even if these errors were individually harmless, when taken together these errors unfairly skewed the jury’s ability to fairly assess the only genuinely disputed issue at the heart of this case -- the credibility of the complaining witnesses. This was fundamentally unfair and denied Mr. Masterson due process under both state and federal law. Reversal is required.
XI. IF THE COUNT ONE CONVICTION INVOLVING [JD1] IS REVERSED, THE COUNT TWO CONVICTION INVOLVING [JD2] SHOULD BE CONDITIONALLY REVERSED.
For all the reasons discussed in Arguments I-VII, reversal of both the [JD1] and [JD2] charges is required. For the reasons set forth in Arguments VIII-IX, reversal of the count involving [JD1] is separately required. And as discussed below, if the count one conviction involving [JD1] is reversed, the count two conviction involving [JD2] should be conditionally reversed. This is so because even accepting the state’s thesis as to the statute of limitations, if the [JD1] count is reversed, then prosecution and conviction on the [JD2] count alone is time barred.
In this regard, and as discussed in Argument I above, the state’s theory here is that there is no statute of limitations bar to prosecution because this case involves a life-term penalty pursuant to section 667.61, subdivision (e)(4). But the life term provided for in section 667.61, subdivision (e)(4) applies only where “[t]he defendant has been convicted in the present case or cases of committing [forcible rape] . . . against more than one victim.” If the charge involving [JD1] is reversed, Mr. Masterson would no longer stand convicted of committing a qualifying offense “against more than one victim.” Accordingly, even under the state’s theory as to what statute of limitation applies, prosecution on the [JD2] count would be barred. (Compare People v. Sedillo (2015) 235 Cal.App.4th 1037, 1050 [18 years after a shooting, the state charges defendant with five counts of attempted premeditated murder (which has no statute of limitations), jury convicts on lesser charges of attempted murder without premeditation (which has a six year statute of limitation); held, attempted murder convictions reversed since acquittal of attempted premeditated murder means that attempted murder convictions are time barred].)
Thus, if the [JD1] count alone is reversed, whether the [JD2] count can stand depends entirely on whether the [JD1] count is remanded for retrial and, if so, what happens on retrial. If the state elects not to retry the [JD1] charge, or if the state does retry the [JD1] charge but jurors do not convict of forcible rape, the [JD2] conviction cannot stand. If jurors do convict of forcible rape, the conviction as to [JD2] may properly remain.
In this situation, the Court should conditionally reverse the [JD2] conviction. Penal Code section 1260 provides that a reviewing court “may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.” Our Supreme Court has held that this provision authorizes conditional reversals when appropriate. (People v. Gaines (2009) 46 Cal.4th 172, 180.) Typically, a conditional reversal (and remand to the trial court) is the proper remedy when further proceedings are required to determine if reversal of a conviction is required. (See, e.g., Madrigal, supra, 93 Cal.App.5th at p. 261 [defendant convicted of murder, trial court improperly denies defense request to review telephone records for exculpatory evidence; held, conviction conditionally reversed pending outcome of review on remand]; People v. Frahs (2018) 27 Cal.App.5th 784, 792 [defendant convicted of robbery, trial court fails to hold a mental health diversion hearing; held, conviction conditionally reversed pending outcome of hearing on remand]; People v. Armijo (2017) 10 Cal.App.5th 1171, 1183-1184 [defendant convicted of attempted murder, trial court fails to conduct Marsden hearing despite timely request; held, conviction conditionally reversed pending outcome of Marsden hearing on remand].)
Here, if the charge involving [JD1] is reversed, that is exactly the situation. In that circumstance, the viability of the remaining [JD2] conviction would depend entirely on whether there was a second conviction for forcible rape. In turn, that would depend on further proceedings in the trial court. Thus, if the charge involving [JD1] is reversed, a conditional reversal of the [JD2] conviction would be required depending on further developments in the trial court.
CONCLUSION
For the reasons set forth in Arguments I through VII and X, reversal of both counts is required. For the separate reasons set forth in Arguments VIII and IX, reversal on the count one charge involving [JD1] is required.
Dated: December 18, 2024
Respectfully submitted, CLIFF GARDNER LAZULI WHITT /s/ Cliff Gardner By Cliff Gardner
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I have only scanned the appeal. But…blame the victims sticks in my craw. There are so many WTF moments and I’m really going to have to go over the financial gain section with a fine tooth comb.
The main thing that stands out to me is that there is so little aimed at Judge Olmedo. An appeal is supposed to take the trial and find the errors in it and point them out. This appeal brief seems to be attempting to retry the case.
" the testimony eventually offered at the two trials by both J.B. and N.T. was sufficient to support a conviction for forcible rape." Said Rapey's lawyer.
The attack on Claire Headley was uncalled for and her testimony was totally relevant to the situation.
As for violating the CO$'s First Amendment Rights, what gall and insufferable hubris. I wonder how those lines were inserted? No, don't wonder, Miscavige must be involved in this whining pleading. Guess who is paying for this? Masterson must be bankrupt by now and I don't see how he could pay for this very expensive appeal. Your mileage may vary and I do not play a lawyer on TV or any where else.