Read Danny Masterson’s ‘demurrer’ he’s hoping will get his criminal charges dismissed

Our legal experts tell us that our perception yesterday wasn’t incorrect: They say that it is unusual for a “demurrer” to be filed in a criminal prosecution at this stage, which gives Danny Masterson a chance, however slim, to get his charges dismissed before he’s even entered a plea.

That’s what happened yesterday in Los Angeles as Masterson’s attorney, Tom Mesereau, raised a host of objections about the case, which has the That ’70s Show actor facing 45 years to life for allegedly raping three different women in incidents in 2001 and 2003. (See yesterday’s curtain-raiser for a breakdown of the individual allegations.)

We had expected that the arraignment would be a very quick affair. Masterson would answer a few questions, plead not guilty to the charges, and the whole thing would be over in minutes. Instead, it took hours. Why? Because Masterson showed up with a large entourage.

That threw the court, which was practicing social distancing methods, into a quandary, and what should have taken a few minutes instead took a couple of hours. Masterson was ultimately able to bring in only six people from his posse, and he chose his sister Alanna, brothers Will and Jordan, brother-in-law Billy Baldwin, producer Paige Dorian, and another woman we weren’t able to identify.

Left on the outside were several of Masterson’s longtime friends, which included fellow Scientologist Emily Armstrong, lead singer of Dead Sara. And hearing that name, we remembered that she was photographed at a Scientology Celebrity Centre annual gala seven years ago with fellow rocker (and then Scientologist) Cedric Bixler-Zavala, who is now married to one of Masterson’s accusers, Chrissie Carnell Bixler.

Masterson himself was in a light blue suit and a grey colored mask, and he had his sunglasses sitting on the back of his neck so that the temple tips were sticking out on either side of his tie. (We saw a lot of people on social media wondering what they were.)

On the other side, two of his three victims were in the courtroom, along with Leah Remini and her assistant Valerie Haney. Leah had been selected as the support person for Chrissie Carnell Bixler because Cedric was at home taking care of their twins.

Mesereau tried to keep cameras out of the courtroom by going into a rant about how the case was based on old allegations that had been pushed by the media, and that LAPD Chief Charlie Beck and DA Jackie Lacey had been “bullied” by the victims into charging Masterson. The judge, however, allowed cameras.

Instead of having Masterson enter a plea, Mesereau revealed that he was filing a demurrer, which the judge was then obligated to consider, moving the arraignment back to October 19. Demurrers in civil lawsuits are common, and Masterson has filed one in the lawsuit that the same women have filed against him down the street at the Stanley Mosk Courthouse. But a demurrer at the arraignment in a criminal case? Not common, our experts tell us. And probably very expensive for Masterson.

Mesereau indicated that if the judge denies the demurrer, Masterson will at that point enter a not guilty plea — and he signed a waiver yesterday that will allow him to avoid being in court if that happens.

So Masterson buys another month, won’t have to be in court to plea, and gets a longshot attempt at having the case dismissed. Here’s the document itself that Mesereau and co-counsel Sharon Appelbaum filed. We look forward to your thoughts on it.

TO THE HONORABLE JUDGE OF THE ABOVE-ENTITLED COURT, TO LOS ANGELES COUNTY DISTRICT ATTORNEY JACKIE LACEY AND HER REPRESENTATIVES:

Please take notice that on September 18, 2020, in Department 30 at 8:30 am or as soon thereafter as may be heard, the defendant DANIEL PETER MASTERSON, by and through counsel, Thomas A. Mesereau, Jr and Sharon Appelbaum, demurs to the felony complaint filed against him in the above-entitled case on the ground that it appears from the face of said complaint that the prosecution is barred by the statue of limitations. This demurrer will be based on the attached supporting memorandum, on the charging document in this case, and on such argument as may be made at the hearing on this demurrer.

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Mr. Masterson is charged with 3 counts of forcible rape under Penal Code section 261(a)(2). Count One is alleged to have occurred on or about April 25, 2003, involving a Jane Doe #1, Count Two is alleged to have occurred on or between October 1, 2003 and December 31, 2003, involving a Jane Doe #2, and Count Three is alleged to have occurred on or between January 1, 2001 and November 30, 2001, involving a Jane Doe #3. All three charges are alleged to have occurred in the County of Los Angeles. The prosecution has also charged Penal Code section 667.61(b) and (e)(4), the One Strikes Law for multiple victims.

An arrest warrant was issued for Mr. Masterson on June 16, 2020, the same date that the felony complaint was filed.

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II. LEGAL ARGUMENT

A. A DEMURRER IS A CHALLENGE TO THE JURISDICTION OF THE COURT OVER THE OFFENSE CHARGED; THE REMEDY FOR LACK OF JURISDICTION IN THIS CASE IS DISMISSAL

Under Penal Code section 1004, “The defendant may demur to the accusatory pleading at any time prior to the entry of a plea, when it appears upon the face thereof… (1)…any information or complaint that the court has no jurisdiction of the offense charged therein.” When the Court has no jurisdiction over the offense charged, the Court is to sustain the demurrer. Penal Code section 1007.

1. The court has no jurisdiction over the offense charged in that it alleges that the offenses were committed on dates beyond the statute of limitations

Failure to comply with the appropriate statute of limitations is a jurisdictional question. Cowan v. Superior Court, 14 Cal.4th 367 (1996); People v. McGee, 1 Cal.2d 611 (1934); People v. Williams, 21 Cal.4th 335 (1999). The Court must dismiss charges filed after the appropriate statute of limitations has run, if the limitations period has not been tolled, otherwise the defendant’s right to a fair trial is prejudiced. United States v. Marion, 404 U.S. 307,322 (1971), People v. Angel, 70 Cal. App. 4th 1141, 1144, 1150 (1999), see In re Demilio, 14 Cal. 3d 598 (1975).

a. The statute of limitations for Penal Code 261(a)(2) has run

Statutes of limitations are to be strictly construed in favor of the defendant. People v. Zamora, 18 Cal. 3d 538, 574 (1976) (dismissing convictions for grand theft and conspiracy to commit arson because they were barred by the statute of limitations).

Prior to the change in Penal Code section 799 in January 2017, violations of Penal Code section 261(a)(2), forcible rape, were subject to a ten (10) year statute of limitations. Penal Code section 801.1(b)(2016). The ten year statute of limitations was only allowable for those crimes committed on or after January 1, 2015, or those crimes whose statute of limitations had not expired by that date.

Before the extension in 2015, the statute of limitations for Penal Code section 261(a)(2) was six (6) years because the offense was punishable by up to eight (8) years in jail. Penal Code 800. Six years is the applicable statute of limitation in the instant matter.

The felony complaint alleges that the crimes occurred in 2001 and 2003. For the purpose of calculating the statute of limitations, the prosecution is considered to have begun on June 16, 2020, the date when an arrest warrant was issued for Mr. Masterson and the information on this case filed with the Court. Penal Code section 804.

The changes against Mr. Masterson expired in 2007 and 2009. All three (3) counts’ limitations periods had expired before the 2015 and the subsequent 2017 changes in the law. Therefore, this prosecution did not begin within the statute of limitations period.

b. The One Strike Law does not apply a separate statute of limitations nor does it supersede the statute of limitations of the underlying statute

Penal Code section 805(a) states, “An offense is deemed punishable by the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed…” In the case at the bar, the offenses with which the defendant is charged area three counts of Penal Code section 261(a)(2), whose statute of limitations has expired for each count.

The One Strike Law, Penal Code section 667.16(b) and (e)(4), provides a punishment of 15 years to life per count, if the allegation, here multiple victims, is found true by a jury. The prosecution is relying on the life in prison potential punishment to extend the statue of limitations by invoking Penal Code section 799. Their reliance is misplaced.

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The One Strike Law has been called a penalty provision and an alternate sentencing scheme and is not an enhancement. People v. Jones, 58 Cal.App.4th 693, 709, fn. 9 (1997), People v. Acosta, 29 Cal. 4th 105 (2002). The One Strike Law does not provide an additional term of imprisonment, but rather an increased base term if a jury finds that a defendant commits a particular crime under a specified set of circumstances, Jones at 709; Acosta at 119.

The Acosta opinion discussed two alternate sentencing schemes, the One Strike Law and the Three Strikes Law, and their interrelationship at sentencing. The Court described the separate legislative purposes of both alternative sentencing schemes, explaining that the Three Strikes Law is to “provide greater punishment for recidivists” while the One Strike Law’s purpose “is to provide life sentences for aggravated sex offenders, even if they do not have prior convictions.” Acosta at 127 (internal citations omitted).

i. In the absence of an aggravating factor during the particular offense, a subsequent crime is necessary to be committed for the One Strike Law to apply

The multiple victims provision of the One Strike Law is different from the other statutory circumstances which require an aggravating factor be committed during the underlying offense. The other circumstances include committing another crime during the commission of the offense such as kidnapping, burglary, use of a deadly weapon, tying or binding a victim, or administering a controlled substance to a victim by force or fear. Penal Code section 667.71.

No additional action during the offense is required for the multiple victims circumstance. The statute reads that for the One Strike Law to apply, “the defendant has been convicted in the present case or cases of committing an offense against more than one victim.” Penal Code section 667.61(c). The prosecution does not have to prove any additional elements from what any case with 3 counts of Penal Code section 261(a)(2) would require. If the prosecution were successful on only one count, the One Strike Law would not apply. The multiple victims provision is more like a recidivist theory since it is based on the accumulation of offenses rather than the aggravation of a particular incident.

ii. The underlying offense should govern the statute of limitations

Two Courts of Appeal have come to opposing conclusions on whether an alternate sentencing scheme can lengthen the statute of limitations of the underlying offense. The Supreme Court of California has not yet weighed in on the subject.

The First District Court of Appeal held that the Three Strikes Law did not extend the statute of limitations in a robbery case. People v. Turner, 134 Cal.App.4th 1591, 1596 (1st Dist. 2005). The Court used statutory construction and interpretation and found that the discussion of Penal Code section 805 regarding the “offense”, specifically refers to the underlying offense and not the alternate sentencing scheme. Id.

The Turner court determined that the statute of limitations was based on the offense rather than facts relating to the offender himself or “based upon facts other than the commission of the offense.” Id.at 1597. Punishing the defendant for recidivism was a fact that related to the defendant and was not an act or omission that was part of the crime itself.

Here, the issue under the One Strike Law, multiple victims, would also be a fact relating to the defendant, rather than an act or omission. The determination of whether there were multiple victims over the course of separate crimes is a fact similar to recidivism in that it is triggered by bad conduct on the part of the defendant rather than any act he committed that was specific to a particular count. The multiple victims provision is about the offender, not the offense. The Turner standard should be applied here.

In the Sixth District Court of Appeal, the court narrowly construed the First District’s ruling in Turner to apply only to the Three Strikes Law, People v. Perez, 182 Cal. App. 4th 231,236 (6th Dist. 2010). The Perez court decided that an alternate sentencing scheme should define the statute of limitations for the substantive offense and that a prosecution on the One Strike Law could commence at any time. Id. at 239-240.

Perez incorrectly relied on two cases in which the California Supreme Court dealt with imposing additional penalties for defendants who committed gang related offenses either directly or indirectly using a gun. See People v. Jones, 47 Cal.4th 566 (2009); People v. Brookfield, 47 Cal.4th 583 (2009). Significantly, neither case dealt with the statute of limitations nor required a subsequent crime to be committed to apply the penalty provision, but both required the prosecution to prove an additional element and fact, that the shootings at issue were for the benefit of a gang. Only then could the more severe penalty be leveled on the defendant at sentencing.

Turner is the more compelling decision as it involved prosecuting a defendant for the underlying crime, not prior or subsequent actions of the defendant. At sentencing, the Turner court was free to utilize the alternate sentencing scheme. Here, the defense moves the court to agree with the Turner court and find that the One Strike Law has not extended the statute of limitations for Penal Code section 261(a)(2).

B. VIOLATION OF THE DEFENDANT’S DUE PROCESS RIGHTS

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In Stogner v. California, 539 U.S. 607, 617, the United States Supreme Court determined that the Ex Post Facto Clause prohibits resurrecting time-barred prosecutions, but found it is lawful to extend a limitations period before the prior period expires. Here, the time period clearly expired years before either extension to the limitations period began.

To proceed with this prosecution would be to deny the defendant his Fifth Amendment right to due process by way of the Fourteenth Amendment. The statute of limitations exists for a reason: to ensure that criminal defendants are not prosecuted for stale cases caused by pre-accusation delay. U.S. Amend V., U.S. Amend XIV; Cal const. I section 15. Evidence and witnesses are lost with the passage of time and prejudice to the defendant is caused by the delay.

In Zamora, the Court found that law enforcement must exercise reasonable diligence in the investigation of a case and to exercise that diligence within the time period of statue of limitations. Statutes of limitations have been said to be a defendant’s primary safeguard against the possibility of prejudice from preaccusation delay. See United States v. Lovasco, 431 U.S. 783, 789 (1977).

This is true for the case at bar. The allegations here are by complainants who were adults at the times of the alleged incidents which occurred between sixteen and nineteen years ago. In the intervening years, witnesses have died, memories have faded, potential exculpatory evidence has been lost, all resulting in prejudice to the defendant. This case should not be allowed to proceed.

1. Due Process requires an evidentiary hearing

When the statute of limitations is extended or tolled, the legislature created mechanisms to ensure due process, notice and a hearing, for defendants. The reason for these statutory rules is fairness. Evidentiary notice to the defense is necessary when due to the passage of time evidence is lost and proving a negative becomes that much more difficult.

Cases that fall within Penal Code section 803(f)(2), dealing with sex crimes of minors, entitles the defense to an evidentiary hearing before the preliminary hearing. The prosecution would need to prove that 1) prosecution began within 1 year from date of report, 2) the statute of limitations period had expired, 3) substantial sexual conduct as described in section 1203.66 had occurred and 4) that there is independent evidence that corroborates the victim’s allegation. If the victim was 21 years old or older at the time of the report, the evidence must be proven by clear and convincing evidence. Penal Code section 803(f)(2).

2. Request for an evidentiary hearing

Should the Court find that the statute of limitations has been extended by the One Strike Law, the defense requests an evidentiary hearing be conducted.

Trial courts have discretion to hold such a hearing, People v. Zamora, 18 Cal. 3d 538, fn. 25 (1976). The Court stated that trial courts have discretion whether to hold a hearing on the limitation issue before proceeding to a trial. Id. at fn 25. They went on to say that:

if it appears possible that the evidence will establish as a matter of law that the period of limitation has run, then judicial economy may be far better served if the issue is resolved at the earlier possible stage of the proceedings rather than waiting until an entire trial on multiple issues is completed. Moreover, the determination of the trial court after such a hearing will be similar to that on a motion for a directed verdict (ss 1118, 1118.1) with the necessity of first litigating the merits of the case. We conclude therefore that a trial court has within its discretion the power to hold an evidentiary hearing for the purposes of determining as a matter of law the statue of limitations bars the prosecution.

Id. at fn 25. Should the Court find that the statute of limitations has been extended by the One Strike Law, there is a possibility that the jury does not find the defendant guilty on more than one count. That would result in the entire case being dismissed after trial because the One Strike Law would not apply since it is based on multiple victims. In order to avoid undue consumption of time, a hearing would be best to review the evidence.

3. Request for specified information

If this Court decides to follow Perez, the defense requests specified information as why allegations from 2001 and 2003 by complainants, who were adults at the time, were filed in 2020. When was the prosecution made aware of each allegation? When was each reported? What caused the delay? How much time did they spend investigating these allegations? Did law enforcement exercise the appropriate amount of due diligence as required under Zamora? If not, the case should not be allowed to proceed.

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III. CONCLUSION

Defendant respectfully requests that the charges in this information be dismissed as they are barred by the statute of limitations. Alternatively, should the Court allow the case to proceed, the defendant requests an evidentiary hearing and specific information regarding the time delay and investigation during the intervening years.

Dated: September 18, 2020

Respectfully submitted,

Sharon Appelbaum
LAW OFFICES OF SHARON APPELBAUM

 
A couple of things surprise us here. First, the document refers to the absence of an aggravating factor in the commission of these rapes. Does the defense team not read this website? We’ve written several times that at trial prosecutors will enter evidence that during his violent rape of Victim B, Masterson brandished a firearm. Sheesh. Also, we’ve previously reported that the night of Victim B’s incident, a witness we talked to said he saw her coercively being carried back upstairs to Masterson’s room by Masterson and one of his friends, which suggests “kidnapping in concert,” a major aggravating factor.

Two decisions made by Judge Miguel T. Espinoza were also important yesterday. He denied Meserau’s request for a protective order to keep the media from seeing any evidence in the case, and he granted the protective order requested by the victims that will keep Masterson from coming anywhere near them during the case.

And a surprise: Judge Espinoza ordered Masterson, a gun collector, to turn in all of his firearms by this morning, which we’re told is not common in protective orders.

So sure, take your longshot, Danny, but so far things seem to be going against you in court.

 
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Source Code

“I remember one space academy, I think the curriculum was two thousand years. I was a student there.” — L. Ron Hubbard, September 19, 1961

 
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Overheard in the FreeZone

“When checking out a used car, one can sort of ‘shroud’ it and get a feel for its chronic emotion, look beyond its scuffs into its heart, hear its noises in your mind and home in on the car’s voice, unscramble the frequencies, maybe even spot a postulate or two. You can get a sense of previous owners, scan to where they lived, where they took the car, what the car saw on its travels, if there were children and pets. Was the car happy? Explore its time track back to the factory; are there any hidden moments? It doesn’t take long to do if you can get the seller to shut up for a minute. Service histories can be falsified too, it’s not unheard of. Does the car even want another owner? Dependency on MEST documentation is only one route to knowing something.”

 
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Random Howdy

“I always wanted to start my own cult even more than I ever wanted to be a rock star. I’m going to go watch some gun videos and start winding down. Goodnight Sherb, get some sleep.”

 
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Full Court Press: What we’re watching at the Underground Bunker

Criminal prosecutions:
— Danny Masterson charged for raping three women: Demurrer filed by Masterson, arraignment delayed to October 19.
— Jay and Jeff Spina, Medicare fraud: Jay’s sentencing is set for October 5 in White Plains, NY. Jeffrey’s is set for October 24.
— Hanan and Rizza Islam and other family members, Medi-Cal fraud: Next pretrial conference set for Jan 12 in Los Angeles
— Dennis Nobbe, Medicare fraud, PPP loan fraud: Charged July 29. Bond revoked Sep 14. Nobbe dead, Sep 14.

Civil litigation:
— Luis and Rocio Garcia v. Scientology: Oral arguments were heard on July 30 at the Eleventh Circuit
— Valerie Haney v. Scientology: Forced to ‘religious arbitration.’ Motion for reconsideration denied on August 11
— Chrissie Bixler et al. v. Scientology and Danny Masterson: Sept 29 (CSI/RTC demurrer against Riales, Masterson demurrer), Oct 26 (motions to compel arbitration)
— Jane Doe v. Scientology (in Miami): Jane Doe dismissed the lawsuit on May 15 after the Clearwater Police dropped their criminal investigation of her allegations.
— Matt and Kathy Feschbach tax debt: Eleventh Circuit ruled on Sept 9 that Feshbachs can’t discharge IRS debt in bankruptcy. Update required in federal lawsuit on Oct 19.
— Brian Statler Sr v. City of Inglewood: Second amended complaint filed, trial set for Nov 9, 2021.
— Author Steve Cannane defamation trial: Trial concluded, awaiting verdict.

 
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Scientology’s celebrities, ‘Ideal Orgs,’ and more!

We’ve been building landing pages about David Miscavige’s favorite playthings, including celebrities and ‘Ideal Orgs,’ and we’re hoping you’ll join in and help us gather as much information as we can about them. Head on over and help us with links and photos and comments.

Scientology’s celebrities, from A to Z! Find your favorite Hubbardite celeb at this index page — or suggest someone to add to the list!

Scientology’s ‘Ideal Orgs,’ from one end of the planet to the other! Help us build up pages about each these worldwide locations!

Scientology’s sneaky front groups, spreading the good news about L. Ron Hubbard while pretending to benefit society!

Scientology Lit: Books reviewed or excerpted in our weekly series. How many have you read?

 
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THE WHOLE TRACK

[ONE year ago] Here’s the Kent team’s 3rd lawsuit against Scientology and David Miscavige — dive in!
[TWO years ago] Scientology’s minion lawyer stretches his ‘theta arm’ to touch the future!
[THREE years ago] Tonight, Paul Haggis calls out Scientology’s celebs: ‘Damn them for being purposely blind’
[FOUR years ago] Talking highlights of ‘Fair Game’ with its author, Aussie journalist Steve Cannane
[FIVE years ago] THE GETTING CLEAR CONFERENCE: How to see the videos that lay Scientology bare
[SIX years ago] Scientology’s tent party in England: The 9-minute trailer!
[SEVEN years ago] Scenes from Scientology’s Armageddon
[NINE years ago] The Top 25 People Crippling Scientology, No. 6: Anonymous

 
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Posted by Tony Ortega on September 19, 2020 at 07:00

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