Danny Masterson and his criminal defense attorney Thomas Mesereau. Photo: Reuters. 

Danny Masterson’s attorney Thomas Mesereau made his opening move last week in Los Angeles criminal court when he filed a demurrer seeking to dismiss the charges against his client based upon the statute of limitations.

We were there at the Downtown Los Angeles criminal court listening to the proceedings on audio feed in a different department. The department in which the Masterson hearing took place had an extremely limited capacity due to social distancing requirements.

We listened as Mesereau opened with a tiresome and bloviating litany of complaints about how old the case was, how it was a media circus, and how politicized it had become in Los Angeles. Mesereau even attacked Leah Remini, although not by name, as a “television producer who is sitting in this courtroom.” As Tony Ortega noted in his coverage of the hearing:

Leah Remini was in the courtroom because she had been named Chrissie Carnell Bixler’s support person while Cedric Bixler-Zavala was at home with their twins. Leah wasn’t just there as a spectator, but to provide emotional support for these victims.

None of what Thomas Mesereau said matters. What will matter are the facts, the evidence, and the law. Bill Cosby was sent to prison in an “old case” that had significantly more pretrial publicity than Masterson’s case. Mesereau was Cosby’s lawyer and lost the case. Cosby left the courtroom in handcuffs and promptly fired Mesereau as his attorney.

The Church of Scientology is very much involved in the Danny Masterson civil and criminal cases as it acted to cover up Masterson’s alleged sexual felonies. Scientology and its leader David Miscavige are named in the civil cases against Danny Masterson filed by the three women who will now be able to testify against the actor at his criminal trial with a jury listening to their every word.

THOMAS MESEREAU AND HIS CLIENT BILL COSBY 

Thomas Mesereau with his client Bill Cosby. Mesereau lost the case. From USA Today: “Cosby is serving three-to-10 years maximum in a state prison in Collegeville, Pennsylvania, near Philadelphia, after a jury in Montgomery County last year convicted him of drugging and sexually assaulting a Temple University employee in 2004.”

After his client Bill Cosby was convicted, Mesereau went on the offensive and attacked the #MeToo movement to justify his loss in court. In the video below, Mesereau is scathing in his callous attack on the #MeToo movement. He blames #MeToo for the problems faced by his male clients accused of sexual assaults against women. He likewise blames “politics and celebrity” for Cosby’s conviction. He cited these same bogus complaints in his opening statement in People v. Masterson:

The judge granted the three complaining witnesses (Masterson’s victims) a protective order against the actor. Masterson and his agents are not allowed to approach or harass the women. We saw this order as a way to protect the women from the Fair Game campaign the Church of Scientology has ruthlessly waged against them. As part of the protective order, Masterson was ordered to surrender his firearms to the court within 24 hours.

Mesereau sought a protective order for his client Danny Masterson. Mesereau basically wanted a gag order where no one could talk about the case. The judge shot that down. We saw Masterson’s request for a gag order as proof that the media coverage has gotten to him. He is “alleged serial rapist Danny Masterson” and nothing can change that. Masterson was arrested on the charges and remains free on a $3.3 million dollar bond:

Danny Masterson’s $3.3 million bail information from the LA Criminal Court website. This is public information.

Thomas Mesereau filed a demurrer on behalf of Masterson. Where have we seen that before? We saw it when Bill Cosby’s attorney Marty Singer opened with a demurrer in December 2014:

Embattled comedian Bill Cosby has responded to the lawsuit filed against him by a woman claiming Cosby sexually assaulted her at the Playboy Mansion in 1974.

In court documents filed Thursday in Los Angeles County Superior Court, Cosby demurred to the complaint, reports the Los Angeles Times. Cosby asserts that plaintiff Judy Huth and her attorney attempted to extort him prior to filing the lawsuit, the factual basis of which the documents characterize as “patently false.”

Mesereau’s demurrer seeks to have the three felony counts of forcible rape against his client dismissed based upon the statute of limitations. We believe Mesereau’s motion will be denied. Mesereau tacitly concedes this by requesting an evidentiary hearing and seeking a request for specified information if his statute of limitations argument fails.

From our perspective, the 70-year-old Mesereau has thrown everything against the wall in the Masterson case to see what sticks. It is also quite easy to see that Mesereau is setting up for an appeal at the very outset if his client is convicted.

Thomas Mesereau with his client Michael Jackson. The photo was taken during Jackson’s 2005 criminal trial for child sexual molestation. 

Los Angeles County Deputy District Attorney Reinhold Mueller filed three counts of forcible rape against Masterson. Here are the essential facts to know about the charges Masterson is facing under California law:

• Forcible rape is a violation of California Penal Code 261(a)(2).
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• Forcible rape is classified as a serious felony within the meaning of CPC 1192.7. Violent sex crimes fall under the One Strike or Three Strikes law as enacted by the California legislature:

1192.7.  (a) (1) It is the intent of the Legislature that district attorneys prosecute violent sex crimes under statutes that provide sentencing under a “one strike,” “three strikes” or habitual sex offender statute instead of engaging in plea bargaining over those offenses.

• • Forcible rape is classified as a violent felony within the meaning of CPC 667.5(c): For the purpose of this section, “violent felony” shall mean any of the following:
    (1) Murder or voluntary manslaughter.
    (2) Mayhem.
    (3) Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262….

Masterson is further charged with multiple rapes under California Penal Code 667.61(c). The charge of multiple rapes makes Masterson subject to California’s One Strike law. Under this law, rape is one of the sex crimes that can result in a life sentence for a first-time conviction. Under Section 799 of the California Penal Code, any crime(s) for which a person can receive the death penalty or life imprisonment have no statute of limitations. Masterson is charged with three counts of felony offenses involving substantial sexual conduct. Each charges carries a life sentence if Masterson is convicted.

Under Section 799, prosecutors can take as long as they want to press charges for these crimes. Prosecutors can file and begin their cases at any time. Section 799 explains why Danny Masterson’s case was slow rolled in the LA District Attorney’s Office: Prosecutors knew they would charge Masterson under Section 799.

In its 2010 ruling in People vs. Perez, the California Appeals Court discussed the case of  Mario Renee Perez, a defendant who had been convicted of multiple rapes and was therefore, like Masterson, subject to CPC 667.61. The defendant tried to assert a statute of limitations defense as has Masterson. The Appeals Court wrote:

“A jury convicted defendant, Mario Renee Perez, of three sex offenses, each involving a different victim. He claims that the statute of limitations barred his prosecution on two of the three charges… Finding that recent California Supreme Court decisions compel rejection of his limitations claim and that his other claims lack merit, we will affirm the judgment… Each of the four charges named a different victim. The information alleged with regard to each count that defendant fell under the alternative, and more severe, punishment scheme set forth in the “One Strike” law (§ 667.61, subds. (b), (e)).

Like Defendant Masterson, Defendant Perez also demurred. The Appeals Court addressed the defendant’s demurrer and the statute of limitations (emphases ours):

DISCUSSION
I. Statute of Limitations

Counts 1 and 4 charged defendant with violations of section 288, subdivision (b)(1), resulting from acts alleged to have occurred “on or about and between” January 1, 1995, and September 1, 1996 — or, in the case of count 1, possibly between January 1, 1995, and October 1, 1996.

Defendant demurred to the information on the basis that these charges were outside the statute of limitations. The prosecution responded that because defendant was charged under the One Strike law (§ 667.61) and thus subject to a sentence of life imprisonment, the charges were authorized by section 799 and were not stale.

The trial court ruled against defendant. It explained: “The issue this [c]ourt must decide is more narrow than whether [section] 667.61, in its entirety, is an `enhancement’ or an `alternate penalty.’ Instead the issue is only whether subdivisions (b) and (e)(5) of [section] 667.61, when operating together, amount to an `enhancement’ or an `alternate penalty.’ While other portions of [section] 667.61 are analogous to the three strikes law and may not extend the statute of limitations under the reasoning of People v. Turner (2005) 134 Cal.App.4th 1591 [ 36 Cal.Rptr.3d 888], the specific [section] 667.61 allegation in this case is more analogous to what is essentially a substantive offense. . . .

As charged here, it has to be established that `The [d]efendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim.’ Thus, in this case, and as applicable to [d]efendant, the life sentence would be imposed based entirely on facts and elements proven in this individual case — not on prior convictions. . . . [¶] . . . [¶] The demurrer is overruled.”

Recent California Supreme Court authority establishes that the trial court’s ruling was correct.

The maximum punishment for a violation of section 288, subdivision (b)(1), is eight years in prison. ( Ibid.) An offender who suffers convictions “in the present case or cases” (§ 667.61, subd. (e)(5)) of violations of *section 288, subdivision (b)(1), against more than one victim is, however, subject to a sentence of life imprisonment. (§ 667.61, subds. (b), (c)(4), (e)(5).) As the trial court noted, the “present case or cases” language is important to a full explanation of why there is no prosecution deadline in these circumstances.

Section 799 provides, as relevant here: “Prosecution for an offense punishable by death or by imprisonment in the state prison for life . . . may be commenced at any time.”

We expect the Prosecution to cite, among other cases, People v. Perez in its answer to Masterson’s demurrer. While Perez concerns sexual crimes against minors, it also addresses 667.61 and Section 799. The seriousness of the multiple rape charges are what Masterson will not be able to overcome. Likewise, the crimes Masterson is alleged to have committed are punishable by a life sentence and this is an exceptionally strong part of the Prosecution’s case.

The Appeals Court in Perez also addressed the People v. Turner case (emphasis ours):

Turner stated that “the issue is whether the `offense’ referred to must itself be punishable by life imprisonment, or whether the Legislature intended to include any offense which may result in a life sentence based upon facts other than the commission of the offense itself. . . . [T]he former interpretation is correct. . . .” ( Turner, supra, 134 Cal.App.4th at p. 1596.) To the extent that this language might aid defendant in theory, however, it must be read in light of the holding of Turner, which considered the situations of wrongdoers “who commit a current felony offense, and who are recidivist offenders” ( id. at p. 1597) under the Three Strikes law.

Defendant’s case [Perez] does not involve recidivism and the precise holding of Turner does not apply. Turner is instructive, however, insofar as it notes the Legislature’s preference “that the selection of the applicable statute of limitation should be based upon the seriousness of the offense as indicated by the punishment prescribed for it.” ( 134 Cal.App.4th at p. 1598.)

Legislation passed in 1984 “reflected the primary recommendation of the Law Revision Commission that the length of a `limitations statute should generally be based on the seriousness of the crime.’ [Citation.] The use of seriousness of the crime as the primary factor in determining the length of the applicable statute of limitations was designed to strike the right balance between the societal interest in pursuing and punishing those who commit serious crimes, and the importance of barring stale claims. [Citation.] It also served the procedural need to `provid[e] predictability’ and promote `uniformity of treatment for perpetrators and victims of all serious crimes.'” ( Id. at p. 1594.)

Defendant’s crimes were serious enough to earn him a life sentence; therefore they were serious enough to warrant prosecution at any time during his natural life.

We conclude that People v. Jones, supra, 47 Cal.4th 566, and People v. Brookfield, supra, 47 Cal.4th 583, and the Legislature’s intent that more serious crimes be prosecutable farther into the future, mandate that section 799 applies to the prosecution of defendant, and that prosecuting him for his conduct in 1995 or 1996 in counts 1 and 4 was not time-barred.

Footnote 10 in People v. Gray:

Perez held that because section 667.61 established an alternative sentencing scheme, when a defendant was sentenced to a life sentence under the statute, ―the unlimited time frame for prosecution set out in section 799 for an offense punishable by death or by imprisonment in the state prison for life . . .‘ applies.‖ (Perez, supra, 182 Cal.App.4th at p. 239.)

Danny Masterson is facing very serious charges. His attempts to escape justice by arguing the statute of limitation are doomed to fail.

The Felony Complaint & Arrest Warrant for Danny Masterson:

The People vs. Perez