P. v. Weinstein CA2/1

Filed 6/26/26 P. v. Weinstein CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B327696

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA484270)
v.

HARVEY WEINSTEIN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Lisa B. Lench, Judge. Judgment of conviction
affirmed; sentence vacated and remanded for resentencing.
The Freedman Firm, Michael G. Freedman; Bonjean Law
Group and Jennifer Bonjean for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Stacy S. Schwartz, David F. Glassman and
Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff
and Respondent.
__________________________________
Harvey Weinstein appeals from a judgment entered after a
jury found him guilty of forcible oral copulation, sexual
penetration by a foreign object and forcible rape, and the court
sentenced him to 16 years in prison. He raises numerous
contentions on appeal, including claims of evidentiary,
instructional, prosecutorial, and sentencing error. We reject his
attempts to disturb the jury’s guilty verdicts, but we agree, as
does the Attorney General, that he is entitled to remand for
resentencing because the court imposed an upper term sentence
based on a now-invalid aggravating factor.

BACKGROUND
A. Brief Procedural Overview
A fourth amended grand jury indictment charged
Weinstein with seven counts of sexual offenses against four
women.
A jury trial commenced on October 24, 2022, and closing
arguments concluded on December 2, 2022. Approximately 50
witnesses testified and nearly 300 exhibits were admitted into
evidence. After deliberating for about nine days, the jury reached
its verdicts on December 19, 2022.
The jury found Weinstein guilty on three counts involving
Jane Doe No. 1 (JD1): forcible oral copulation (Pen. Code, § 288a,
subd. (c)(2)(A); count 1), sexual penetration by a foreign object
(Pen. Code, § 289, subd. (a)(1)(A); count 2), and forcible rape (Pen.
Code, § 261, subd. (a)(2); count 3).
The jury was unable to reach a verdict on count 4 involving
Jane Doe No. 2, sexual battery by restraint (Pen. Code, § 243.4,
subd. (a)), and the court declared a mistrial as to this count.
The jury found Weinstein not guilty on count 5 involving
Jane Doe No. 3, sexual battery by restraint (Pen. Code, § 243.4,

2
subd. (a)). The jury was unable to reach a verdict on a lesser
included offense of count 5, sexual battery (Pen. Code, § 243.4,
subd. (e)(1)), and the court declared a mistrial as to this count.
The jury was unable to reach a verdict on the counts
involving Jane Doe No. 4, forcible oral copulation (Pen. Code,
§ 288a, subd. (c)(2); count 6) and forcible rape (Pen. Code, § 261,
subd. (a)(2); count 7), and the court declared a mistrial as to these
counts.

B. Evidence Presented at Trial
We include here a summary of evidence that is pertinent to
the convictions involving JD1 and our resolution of Weinstein’s
contentions on appeal.
The events giving rise to the charges occurred in February
2013, when JD1 was in Los Angeles attending a film festival. At
the time, she lived in Rome, Italy with her husband and three
children, and she worked as an actress and model. She spoke
little English; her first language was Russian, and she spoke
Italian when she was in Italy.1
1. JD1 and Weinstein attend the 2013 Los Angeles
Italia Film Festival
Pascal Vicedomini,2 an Italian journalist, cofounded
multiple film festivals, including two held annually in Italy and

1 At trial, in 2022, JD1 chose to testify in English, with a

Russian language interpreter standing by to assist as needed.
2 Vicedomini was not present at trial. The jury was shown
a video recording of conditional examination testimony he gave
shortly before trial. As discussed later in this opinion, the court
allowed the conditional examination to proceed by
videoconference based on a finding that Vicedomini had a medical
condition that made it dangerous for him to fly to Los Angeles

3
one held annually in Los Angeles. The latter, named the Los
Angeles Italia Film Festival, was founded “[t]o create an
industrial as well as cultural bridge between Italy and the United
States.” Both JD1 and Weinstein attended the Los Angeles Italia
Film Festival in February 2013.
Vicedomini had known JD1 since 2009, when he was
introduced to her by an Italian producer with whom she was then
working. Vicedomini and JD1 became friends, and he also
developed a relationship with her family over the years. JD1
worked with Vicedomini on some of his film festivals. In
February 2013, she made arrangements to attend the Los
Angeles Italia Film Festival and coordinated with Vicedomini.
She did not have an “official” role with this festival, but she was
part of an Italian “team” attending. Her unofficial role was to
“walk the red carpet,” have her photograph taken with various
guests, and participate in interviews with journalists.
Vicedomini personally invited Weinstein to attend the film
festival in February 2013. Awards were going to be handed out
to persons associated with two films produced by The Weinstein
Company, and Vicedomini wanted Weinstein to present one of
the awards. In an email to Weinstein, Vicedomini jokingly
referred to Weinstein as “the owner of the festival,” given how
central Weinstein’s films were to the festival’s events.
A year or two before the 2013 Los Angeles Italia Film
Festival, JD1 met Weinstein in Rome, Italy. Vicedomini invited
her to join him for a drink outside a hotel. When she arrived, he
introduced her to multiple people, including Weinstein, a few

from his home in Rome, Italy for an in person examination.
Weinstein challenges this ruling on appeal.

4
women, and another man. JD1 did not converse with any of them
because she did not speak English then, although she could
understand it. Weinstein invited her to his hotel room. She
declined and left the gathering.
2. The sexual offenses and the aftermath
On February 15, 2013, JD1 checked into room 801 at the
Mr. C Hotel in Los Angeles. She used a pseudonym rather than
her real name, explaining she did so “to be incognito [and] to
have [her] privacy because at that time [she] was a public
person.” Other than her family in Italy, the only person to whom
she disclosed her hotel and room number was Vicedomini. On
February 16, 2013, the day before the film festival events began,
Vicedomini visited her at her hotel. He was staying at a different
hotel.
On February 17, 2013, the opening night of the festival,
JD1 walked the red carpet at around 7:30 p.m., and then spent
time mingling with guests in a “V.I.P. room” inside the theater.
Both Vicedomini and Weinstein were in the room. Someone tried
to introduce JD1 to Weinstein, and she stated that they had
already met. The conversation ended there due to her limited
English. She did not discuss her hotel information with anyone
in the room. Later, JD1 and the other guests went into the
theater for a presentation where actor Al Pacino received an
award. At some point during the night’s festivities, JD1 took a
photo with Al Pacino.
After the awards ceremony, JDI, other members of the
Italian team, and VIP guests attended a dinner hosted by
Vicedomini at the same property where the theater was located.
At trial, JD1 did not recall if Weinstein was at the dinner.
According to her testimony, after dinner, she “call[ed her]

5
limousine driver,” and the driver took her to the Mr. C Hotel.
Her hotel folio shows no limousine service charge for that day, as
it does for other dates during her stay.
JD1 arrived at her room after midnight, on February 18,
2013. She took off her dress, put on a robe, and was about to
remove her makeup when the hotel telephone rang. She
answered it, and a hotel employee told her she had a guest at the
hotel. She said she was not expecting anyone, and the employee
told her it was Weinstein. After she reiterated that she was not
expecting a guest, Weinstein got on the line, identified himself,
and said he had to talk to her. She was confused about why he
was there but said she would go downstairs to talk to him. He
said no and told her they could not meet in the lobby because he
was famous. She said she would talk to him the next day and
hung up the phone.
Shortly thereafter, JD1 heard knocking on her hotel room
door. Then, she heard Weinstein speaking loudly, identifying
himself and telling her to open the door and let him in because he
had to talk to her. She was frustrated and confused about how he
knew where to find her. After about 20 seconds, she opened the
door because she was concerned that people would hear him
speaking so loudly in the hallway and she wanted him to stop.
She felt ashamed and embarrassed to have a stranger making
noise outside her door like that, and she wanted to protect her
reputation at the hotel.
When she opened the door, Weinstein walked into her
room, which she was not expecting. He told her there was
nothing to worry about, he just wanted to talk. He reiterated
that he could not meet her downstairs because a lot of people
knew him. She sat on the edge of the bed, and he sat in front of

6
her on a chair. She remained frustrated and confused about why
he was in her room and how he knew she was at this hotel. She
wondered if he had followed her or if he was waiting for her. She
did not know anything about him other than that he was “from
the industry,” but she did not feel afraid. He told her to talk
about herself, so she talked about her children and showed him
photos of them on her cell phone. They also talked about his
children. She told him that her mother was very ill with cancer.
He told her that she (JD1) was a good woman.
Weinstein removed his jacket, placed it on a chair, and
asked JD1 to give him a massage. She asked him to leave. He
moved from the chair to the bed and sat with his back against the
pillows. She remained sitting on the edge of the bed. The
situation felt awkward and it seemed like he had become a
“totally different person” from a few minutes before when they
were talking about their children. She wondered if she had given
him the wrong impression because of her limited English. She
became “more direct” in her approach, continuing to ask him to
leave. He replied, “ ‘Come on. We’re just talking. Relax,’ ” or
words to that effect.
He became “more physical,” trying to hold her hand. He
told her she had a beautiful face, but her breasts were too large
for a job in acting. As he said this, he tried to open her robe.
Still, she was not afraid. She just thought he was a “super
arrogant guy.” She moved away from him on the bed, closed her
robe, and asked him to leave her room. She told him that nothing
was going to happen between them and repeated that she had
three children.
He opened his pants and touched himself as he held her
hand. She tried to stand up but he held onto her. She started to

7
panic and cry. He told her there was “nothing happening” and it
was “not a big deal.” He touched her vagina and asked her if she
liked it and if she was wet. He tried to insert his fingers into her
vagina but she twisted her body away from him to prevent it. He
got off the bed, stood in front of her, and took off his pants. She
was terrified. She continued to ask him to leave, and she
mentioned her children, as she tried to take her phone out of the
pocket of her robe to show him photos of them again. He had
trouble getting an erection and said she had “to do something to
help.” He told her “[t]o suck him and suck his balls.”
Weinstein moved back onto the bed and pulled JD1 toward
him as she tried to stand up. “His face changed. His eyes
changed, his behavior changed.” He reiterated that she had to
help him. He grabbed her hair, pulled her head to his penis, and
placed it in her mouth. She was crying and moving her head
from side to side, trying to get away, but he had one hand
gripping her hair and the other holding his penis in her mouth.
She was afraid he would hurt her so she relented and tried to do
as he asked. He moved her face to his testicles and told her “to
suck his balls, play with his balls, lick, something like that.” She
tried to comply, but he became upset because he was still having
trouble getting an erection.
He stood up and led her to the bathroom. On the way, he
removed her robe. He pushed her into the bathroom sink, stood
behind her looking in the mirror, and masturbated as he placed a
finger in her vagina and told her to look in the mirror. She
moved her body to try to prevent him from continuing to digitally
penetrate her. He held her and placed his penis in her vagina,
and she said “stop” and “no,” as she cried. She continued to move
her body such that he could not remain inside her. He continued

8
to try, telling her, “ ‘[Y]ou are not a little girl. Come on. You like
it. Tell me you like it,’ ” or words to that effect. Eventually, he
gave up and masturbated instead, as he told her how beautiful
she was and pulled her hair to raise her head up so it was facing
the mirror. He ejaculated and cleaned himself with a towel. She
picked up her robe from the floor and put it on.
He acted like nothing happened, paying her compliments
and acting “happy” and “nice again.” Then, he told her it would
be better if she did not tell anyone what happened, adding, “ ‘You
do know me.’ ” She understood this to mean that he was
“somebody powerful,” and it would be “dangerous for [her]” to
talk about it. He said he needed to get some sleep because he had
to speak at an event he was hosting the next day. He invited her
to the event and said he would send her invitation through “our
friend Pascal [Vicedomini].” She did not respond, and he left her
room.3
JD1 felt “very guilty” and “very humiliated” (and she still
felt that way at the time of trial nine and a half years later). She
took a long shower and cleaned the room. She found Weinstein’s
jacket. She felt afraid that she would have to see or interact with
him again. She did not know what to do so she called her
children’s nanny in Italy and spoke with her children. She was
too afraid to tell the nanny what happened because Weinstein
instructed her not to tell anyone. She was crying hysterically and

3 In 2019, when Weinstein’s limousine driver was

interviewed by police officers in this case, he stated that he
dropped Weinstein off at his hotel at 1:30 a.m. on February 18,
2013. At trial in 2022, the driver testified that he dropped
Weinstein off at either 12:30 or 1:00 a.m. on February 18, 2013.

9
told the nanny “that something really bad happened to [her]”
with “ ‘a very bad man.’ ”4
JD1 charged breakfast to her hotel room on February 18,
2013, as reflected on her hotel folio. She testified that at some
point that morning or around lunchtime, she met Vicedomini at
his hotel. She told him that she had seen Weinstein, and
Vicedomini did not seem surprised. She did not tell him about
the sexual offenses due to her feelings of fear, shame, and guilt.
But she did tell him that Weinstein had forgotten his jacket. She
tried to give the jacket to Vicedomini, but he would not take it.
During his conditional examination, Vicedomini testified that he
did not recall JD1 ever mentioning the jacket or that anything
had happened between her and Weinstein.
Also on the morning of February 18, 2013, JD1 showed
Vicedomini a photo of her and Al Pacino, taken the night before,
that she had posted on her social media account that morning
with the caption, “Thank you Al for a #beautiful evening.” They
were in the company of an Italian actor/director when JD1
showed Vicedomini the photo.
JD1 returned to the Mr. C Hotel and told an employee at
the reception desk that Weinstein had left his jacket. The
employee walked into an office behind the desk and called out
another employee. This second employee told JD1 that she could
leave the jacket with him, and she did.
In the days following the encounter with Weinstein, JD1
drank a lot of alcohol, which was not normal for her. This was

4 JD1 testified that after she returned to Italy she told the

nanny more details about what happened with Weinstein, and
she confessed to a priest. Neither of these witnesses testified at
trial.

10
her way of “punish[ing]” herself because she felt “very guilty”
about how everything unfolded, “most of all” that she opened her
hotel room door to Weinstein. She chose not to attend any film
festival events on February 18, 2013.
On February 19, 2013, JD1 went to the festival and drank
a lot of alcohol in the VIP room. Then, she walked into the
theater with two people she knew, who were part of one of
Weinstein’s movies, and she sat with them. Weinstein came into
the theater after and sat near them. JD1 felt like she could not
breathe, and she tried to interact with other people so that
Weinstein could not interact with her. After the awards
ceremony, she left and returned to her hotel.
JD1 testified that she remained in Los Angeles for a few
more days to appear at events that her public relations manager
was “pushing” her to attend. Her hotel folio indicates that she
checked out of her room at the Mr. C Hotel on March 5, 2013.5
3. Testimony from a hotel guest and hotel
employees regarding circumstances at the Mr. C Hotel
during JD1’s stay
Alexandra De Lara testified at trial for the prosecution.
She stayed at the Mr. C Hotel, from February 15-19, 2013, in
room 701, directly below JD1’s room. At some point during her
stay, she was “woken up in the middle of the night by what
sounded like an argument” between at least two people, occurring
“either above [her] or on the same floor as [her].” She looked out
into the hallway to try to determine where the voices were
coming from, but she did not locate the source.

5 JD1 returned to the Mr. C Hotel on April 15, 2013, and

stayed until April 27, 2013.

11
The defense presented testimony showing that a fire alarm
was activated at the Mr. C Hotel at approximately 12:40 a.m. on
February 18, 2013. It was triggered by a false alarm in the main
kitchen. The alarm lasted for four minutes, and had a loud
auditory component and a strobe visual component. Numerous
hotel guests lodged complaints about a fire alarm, including
JD1’s neighbor in room 803. JD1 testified that she did not recall
hearing a fire alarm on February 18, 2013.
Hotel records show that in the morning on February 19,
2013, JD1 lodged a complaint with hotel staff that there was dust
in her room.
4. JD1 files a police report against Weinstein in
Los Angeles in 2017
In February 2017, JD1 attended the Los Angeles Italia
Film Festival with her daughter, Maria (who also testified at
trial). At one point during the festivities, Maria told JD1 that
someone was looking at JD1. When JD1 turned, she saw
Weinstein. JD1 felt “[t]errorized again” and felt like she could
not breathe. She and Maria moved away from him. Shortly
thereafter, when they arrived at a restaurant for a group dinner,
JD1 saw Weinstein and Vicedomini sitting together at a table, so
she and Maria walked to a faraway table and sat down.
Eventually, Weinstein approached their table and stood next to
JD1. They looked at each other and she froze. She felt like she
was experiencing the 2013 encounter all over again. Weinstein
told someone at the table to move and he sat two chairs away
from her. She went to the balcony and when she returned, he
was gone.
Later that year, in September 2017, Maria told JD1 that
she was being sexually harassed by another student at her high

12
school. In encouraging a reluctant Maria to report it to the
police, JD1 shared that she had been raped and believed it was a
mistake that she did not report it. JD1 promised Maria she
would go to the police.
On September 28, 2017, Maria filed a police report. A
couple of weeks later, JD1 told Maria the name of the person who
had raped her (Weinstein) and said that “it happened a while
back at the Mr. C Hotel.” Maria did not recognize Weinstein’s
name, so she conducted an internet search. She recognized him
as the man they had seen at the film festival earlier that year.
JD1 filed a police report on October 19, 2017. She testified
that she did not do so earlier because she felt guilt about what
happened and she was afraid for her life, her children’s lives, and
her reputation.
5. Weinstein emails hotel management about JD1
On October 26, 2017, one week after JD1 reported the
crimes, Weinstein emailed Guiseppe Cipriani, the owner of the
management company that ran the Mr. C Hotel. Weinstein
attached a photo of JD1 and asked Cipriani whether he or his
staff knew her, and instructed Cipriani to be discreet. Weinstein
sent follow-up emails, asking to speak with Cipriani, and telling
him not to take calls from a certain woman (identified by her first
name only) or her brother. A couple of months later, Weinstein
attempted to arrange a dinner with Cipriani and Cipriani
declined. Weinstein wrote back, “Already cancelled I won’t ask
again u guys have been amazing to me Wont forget . . . . [Sic.]”
Weinstein also stated in this email that he could introduce
Cipriani to a potential investor, acknowledging that he did not
know if Cipriani needed such an investor.

13
6. The Mr. C Hotel’s lost-and-found records for
February 2013 are not produced in this action
In 2020, the prosecution subpoenaed the Mr. C Hotel’s lost-
and-found records for the period January through March 2013.
Brando Juris, a former general manager of the hotel, received the
subpoena. He provided records from June 2013 and later, but no
records for the requested time period. At trial, when the
prosecutor asked why he did not send the requested records, he
testified: “Because there was -- I think some -- something
happened with -- they changed the I.T. company, and I think
from the day that the new I.T. company started, they erased two
years of data back then.” He also testified that if an item, such as
a jacket, were returned to hotel personnel, that should have been
recorded in the lost-and-found records maintained by hotel
security.
In 2020, the prosecution sent another subpoena for the
same records to Guy Groves, who was the Director of Safety and
Security at the Mr. C Hotel in February 2013. In that position,
he was in charge of the lost-and-found records. When prosecutors
first spoke with him on May 5, 2020, before service of the
subpoena, he said he had personal copies of the lost-and-found
records for the period January through March 2013, but he was
concerned about producing them without a subpoena because he
had signed a separation agreement with the hotel when his
position was eliminated. He explained, “ ‘My family can’t eat if I
develop a reputation for providing information within the hotel
industry that has been previously stated was destroyed [sic] .’ ”
He laughed when prosecutors told him about the reported
“computer glitch” that had purportedly erased data. He
responded, “ ‘Well, that’s what I would say, if I didn’t want to

14
turn over the records.’ ” After he received the subpoena, he told
prosecutors that when he accessed his personal backup on his
personal computer to search for the records, he found that he was
missing the same data as the hotel. At trial he testified: “[I]n
2013, there was an incident with the I.T. company that was
actually, you know, handling the computer systems for the hotel.
Well, they rebooted the servers and deleted items that were on
the desktops of several computers, and including the lost-and-
found document.”
7. Evidence of uncharged sexual assaults
The prosecution presented evidence of uncharged sexual
assaults by Weinstein. Because Weinstein challenges the court’s
admission of this evidence, we address it below in the Discussion
section of this opinion.
8. Parties’ theories of the case
As pertinent to this appeal, the prosecution advanced the
theory that Weinstein was able to locate JD1 at Mr. C Hotel
because Vicedomini shared her hotel information with Weinstein
to ingratiate himself to Weinstein. The prosecution also argued
that the jury could infer consciousness of guilt from evidence that
Weinstein told JD1 not to tell anyone what happened and
evidence that he tried to suppress incriminating information from
the Mr. C Hotel (i.e., the lost-and-found records) by contacting
Cipriani after JD1 reported the crimes.
The defense advanced the theory that no sexual encounter
occurred between Weinstein and JD1. The defense argued there
was evidence indicating JD1 was not in her hotel room at the
time she said Weinstein committed the offenses (e.g., no record of
a limousine service taking her back to the Mr. C Hotel that night
and the fact she did not recall the fire alarm). Relying on

15
Facebook messages exchanged between JD1 and Vicedomini
(which we discuss in detail below), the defense argued that JD1
and Vicedomini were in a sexual and romantic relationship, and
JD1 spent the night in Vicedomini’s hotel room when she said she
was with Weinstein.

C. Verdicts, Motion for New Trial, and Sentencing
The jury found Weinstein guilty of forcible oral copulation,
sexual penetration by a foreign object, and forcible rape. The jury
could not reach a unanimous verdict on the factors in aggravation
that JD1 was particularly vulnerable or that Weinstein carried
out the offenses with planning, sophistication or professionalism,
and the court declared a mistrial as to these factors in
aggravation.
Weinstein filed a motion for new trial, and the court denied
it on grounds we discuss below. Along with the motion,
Weinstein submitted three declarations from jurors that he relies
on in this appeal. The declarations discuss how the jurors
weighed the evidence during their deliberations and how they
might have voted if evidence the court excluded were presented
to them in the manner characterized by defense counsel. The
declarations are improper and we decline to consider them in
reviewing Weinstein’s contentions. (See People v. Steele (2002) 27
Cal.4th 1230, 1264 [“ ‘As a matter of policy, Evidence Code
section 1150, subdivision (a), excludes evidence of the subjective
reasoning processes of jurors to impeach their verdicts’ ”].)6

6 In any event, the declarations relate to prejudice, and

because we conclude Weinstein has shown no error, the
declarations are irrelevant to our resolution of this appeal.

16
The court sentenced Weinstein to 16 years in prison: the
upper term of eight years for forcible oral copulation; a
consecutive six-year middle term for sexual penetration by a
foreign object; and a consecutive two-year term (one-third the
middle term) for forcible rape. The court imposed the upper term
on count 1 based solely on the aggravating circumstance of
Weinstein’s prior conviction in New York for sexual offenses. The
court ordered Weinstein’s sentence to run consecutive to the 23-
year sentence imposed in New York.
While this appeal was pending, the New York Court of
Appeals vacated Weinstein’s New York convictions and remanded
the matter for a new trial. We grant Weinstein’s request for
judicial notice of the opinion of the New York Court of Appeals.
(People v. Weinstein (N.Y. Apr. 25, 2024, No. 2020-00590) 2024
NY Slip. Op. 02222.)

DISCUSSION
A. The Trial Court Did Not Err in Excluding a Set of
Facebook Messages Between JD1 and Vicedomini
Weinstein contends the trial court violated his
constitutional and state law rights when it excluded some
Facebook messages between JD1 and Vicedomini that he sought
to introduce during cross-examination of Vicedomini and JD1.
He asserts that the excluded messages were “sexually charged,”
indicating that around the time of the 2013 Los Angeles Italia
Film Festival, JD1 and Vicedomini were having a romantic and
sexual relationship. He argues that the exclusion of these
messages precluded him from (1) challenging the prosecution’s
theory that Vicedomini provided JD1’s hotel and room
information to Weinstein, (2) presenting the defense’s theory that
JD1 was with Vicedomini at his hotel at the time she claimed

17
Weinstein was in her hotel room committing the sexual offenses,
and (3) attacking JD1’s and Vicedomini’s credibility. In fact,
Weinstein did make all these arguments to the jury based on
other evidence the court admitted, including another set of
Facebook messages JD1 and Vicedomini exchanged the day
before the film festival commenced, messages that the
prosecution unsuccessfully sought to exclude. Thus, there was no
denial of Weinstein’s constitutional right to present a defense.
Moreover, as explained below, he forfeited his state law claims by
failing to comply with mandatory rape shield procedures (Evid.
Code, §§ 782, 1103) before seeking to introduce the Facebook
messages during trial.
1. Relevant testimony and proceedings
a. Vicedomini’s conditional examination
The first time the defense attempted to introduce the
Facebook messages that the court excluded was during the
conditional examination of Vicedomini, which was held a few
weeks before trial commenced. Accordingly, we begin our
discussion of this evidentiary issue with what occurred during
the conditional examination. We note that at trial JD1 testified
before the prosecution played the video recording of Vicedomini’s
conditional examination.
Vicedomini testified in Italian, with the assistance of an
interpreter.
During direct examination, the prosecutor asked
Vicedomini how he knew JD1, and he responded: “I’ve known her
since 2009. She was introduced to me by an Italian producer, a
very good producer with whom she was working. And we became
friends, and it was always a transparent friendship. It was
always a crystal clear friendship without any moments of crisis.

18
[¶] I never had the feeling that she could have anything against
me or anything of that kind.” Vicedomini stated he could not
recall if he was the person who invited JD1 to the 2013 Los
Angeles Italia Film Festival.
Later in the examination, the prosecutor asked Vicedomini
about a February 12, 2013 email he sent to Weinstein, inviting
Weinstein to participate in the 2013 Los Angeles Italia Film
Festival, which was set to begin on February 17, 2013. In the
email, Vicedomini stated, in pertinent part: “In addition feel free
to suggest me [sic] any people to invite to the party which will be
a lot of fun. Of course it will be a big pleasure to have you as my
very special guest. There are a lot of ‘nice’ people to meet.” The
prosecutor asked Vicedomini what he meant by “ ‘nice’ people to
meet,” and Vicedomini replied: “Interesting people. I meant --
that’s what I meant. It was nice people basically because this is
all part of the system. It’s all part of the -- these types of events.
[¶] You’re trying to make them seem attractive to someone
because there are parties. There are so many events and for him
to be able to come to your event you try to say well there are
going to be nice people.”
The prosecutor then inquired about the circumstances
surrounding JD1’s attendance at the 2013 Los Angeles Italia
Film Festival. The prosecutor introduced the following set of
Facebook messages exchanged between Vicedomini and JD1 on
February 12, 2013, which were translated from Italian to
English:
JD1: How are you honey?
Vicedomini: very well and you?
JD1: I’ve changed my passport !!!! Tomorrow I’m
coming home and I arrive on the 16th!!!!!!

19
Vicedomini: good.
JD1: You know, you haven’t invited me yet?)))
Vicedomini: where to
JD1: To the festival?
Vicedomini: I didn’t understand
JD1: To your festival!! )
Vicedomini: I’m not understanding what you’re talking
about
JD1: Can I come to your festival?
Vicedomini: you’re really so idiotic
Vicedomini: I can’t wait honey
JD1: Idiotic, a little) I know. . . .
Vicedomini: as soon as you’re here . . . I’ll show you right
away how happy I am
JD1: Ha ha ha!!! Please do!!!!
Vicedomini: and I won’t say anything and it won’t matter
Vicedomini: and I say something and you laugh in my face
(sic)
Vicedomini: you’re never ok with anything that I say
Vicedomini: so then we have to find other distractions
Vicedomini: what do you want to do
JD1: I’ll smile! From happiness and joy!
Based on a review of these Facebook messages, the
prosecutor asked Vicedomini to confirm that on February 12,
2013, JD1 indicated she would attend the Italia Film Festival.
Vicedomini responded affirmatively and added, “[I]t would have
been a pleasure for her to come to the festival. We’ve been
friends since 2009.” The prosecutor then asked, “And that was
the same day you promised Mr. Weinstein that he would meet
nice people, correct?” Vicedomini replied, “I’m sorry to say, but

20
this is not the type of person I was referring to when I said ‘nice
people’ when you are talking to a producer of that caliber.” When
the prosecutor again asked Vicedomini to acknowledge that the
Facebook message exchange with JD1 and the email to Weinstein
both occurred on February 12, 2013, Vicedomini stated, “I don’t
see any link or connection between the two things. All I did was
ask her [JD1] as a dear friend of mine to come to the festival.
There’s no link between these conversations.” Vicedomini
acknowledged that the conversations occurred on the same day.
Later, during a break in Vicedomini’s testimony, while the
parties and the court were discussing the relevance of other
documentary evidence the prosecution sought to introduce on
direct examination, the prosecutor laid out the prosecution’s
theory that Vicedomini shared JD1’s hotel information with
Weinstein “to ingratiate himself to Mr. Weinstein” because he
“needed Mr. Weinstein’s connections, he needed Mr. Weinstein’s
stars to come to his film festival or else his film festival would not
have relevance.”
During cross-examination, Vicedomini testified that when
he told Weinstein he could meet “ ‘nice’ people” at the film
festival, he meant smart, successful, influential people. He
denied that this was a reference “to providing women for sex,”
specifically JD1.
Defense counsel asked Vicedomini if he had a “close
personal relationship” with JD1, and Vicedomini replied: “It was
a great friendship. I had a great friendship with her and with
her children and over the years I had established a very friendly
relationship with her and her family.” Defense counsel followed
up, “As a matter of fact, Mr. Vicedomini, that friendly
relationship went further into romance at one point, didn’t it?”

21
The prosecutor objected to the question on the ground of
relevance, and the court sustained the objection. Defense counsel
asked to be heard, and the court responded, “No.” Cross-
examination continued.
Defense counsel asked Vicedomini some questions about
the February 12, 2013 Facebook messages the prosecutor
introduced. Then, defense counsel attempted to introduce the
following Facebook messages that Vicedomini and JD1
exchanged on February 12, 2013, immediately after they
exchanged the other messages the court admitted on direct
examination:
Vicedomini: you really don’t appreciate much the way I am
Vicedomini: you’re used to it now so you don’t appreciate it
JD1: I appreciate you so much
Vicedomini: you don’t show it much
Vicedomini: and you don’t actively participate in the game
Vicedomini: you always take everything for granted
Vicedomini: and it’s a shame
JD1: Yesssssss. . . . You’re right!!!!!!
JD1: But it was like this (sic)
Vicedomini: just think that while I’m talking to you
something is happening to me
Vicedomini: . . .
JD1: Now new life (sic)
Vicedomini: what do you wanna do
Vicedomini: that’s what happens to me
JD1: Wanna do?
JD1: Nothing!
JD1: You wait!
JD1: )))))

22
Vicedomini: I’d need your beautiful mouth now
JD1: I think I know how to help you)
JD1: I was thinking exactly that)
Vicedomini: You know me too well
JD1: Right?
JD1: Not yet?
Vicedomini: you can just imagine what’s happening right
now
JD1: Are you touching yourself?!!
JD1: Or are you with someone??????
Vicedomini: guess
JD1: My imagination soars!!!
JD1: I’m thinking you’re not alone!!!!!
The prosecutor objected on the ground of relevance to the
admission of these messages. The court asked defense counsel to
explain its theory of relevance. Counsel stated: “Establishes the
nature of the relationship such that it would be anathema for Mr.
Vicedomini to provide [JD1] as a human being the way that the
prosecution has suggested or to provide her room number to Mr.
Weinstein as they just indicated in their offer of proof that they
expect [JD1] to testify to for purposes of making her available to
Mr. Weinstein. [¶] They [Vicedomini and JD1] were in a
romantic relationship. They were dating, Your Honor. There is
no way logically I think a jury can infer that Mr. Vicedomini
would provide [JD1] to Mr. Weinstein as a piece of chattel or
otherwise for sexual favors.” The court responded, “That’s not
what it was being offered for, but all that aside, I don’t think it’s
relevant to prove or disprove your assumption.” The court added,
“I don’t know . . . that these messages show that relationship.”
The court told defense counsel, “I will give you some leeway on

23
this but I’m not going to get into the nitty gritty of the
relationship between this witness and [JD1].” Counsel replied,
“Understood and I will take the court’s guidance and take a step
back and see if I can do this in a bit more reserved manner.”
Cross-examination continued as follows:
“[Defense counsel:] Mr. Vicedomini during the course of
the 2013 L.A. Italia Film Festival, was your relationship with
[JD1] one of friendship and affection?
“[Vicedomini:] A very great friendship.
“[Defense counsel:] And you felt strongly about that
friendship, correct?
“[Vicedomini:] And with all my friends I’m very passionate.
“[Defense counsel:] And you were very passionate and
friendly and protective of your relationship with Miss -- with
[JD1], correct?
“[Vicedomini:] I’m always very, as I said, I’m very
affectionate and very open as a human being until we reach a
certain level then it remains within the concept of friendship and
but [sic] I do believe in a quality relationship. As you said yes, I
am protective. I’m very cognizant of the fact that people trust me
and that is important to me.
“[Defense counsel:] And I just want to ask one final
question on this, Mr. Vicedomini. You did not in any way suggest
that you would be providing [JD1] to Harvey Weinstein for sexual
favors, correct?
“[Vicedomini:] I would never ever in my life do or think
something of that nature. I’ve had a relationship with Mr.
Weinstein of many years. We have done many things together.
We’ve worked together and we’ve had a quality relationship and
never in my life would I have even thought of something like

24
that. I’m a serious and responsible person and we’ve had a
quality relationship.” Vicedomini also denied that he provided
JD1’s hotel room number to Weinstein.
Later in the cross-examination, after inquiring about other
topics, defense counsel asked Vicedomini the following additional
questions about his relationship with JD1:
“[Defense counsel:] Did [JD1] share details, intimate
details with her friend Pas[cal] Vicedomini during the course of
your relationship in 2012, 2013, and on?
“[Vicedomini:] I didn’t understand the question.
“[Defense counsel:] Back in 2013 and on did you and [JD1]
enjoy a relationship in which -- or a friendship, in which she
would share details with you about her life, privately?
“[Vicedomini:] No.
“[Defense counsel:] In the text messages that you shared
with [JD1], did you have private interaction that was not open for
other people to see and read?” The prosecutor objected to this
question on grounds of vagueness and relevance. Defense counsel
apologized, and the court sustained the objection.
Defense counsel asked Vicedomini if he and JD1 “shared
information that was private to the two of” them. Vicedomini
responded: “[A]s I said we do have a great friendship and this
friendship goes back to 2009. We have a very pleasant
relationship. It’s a fun relationship. I know her children.”
Defense counsel asked the following two questions about
Vicedomini’s relationship with JD1 and then did not ask any
more questions on this subject:
“[Defense counsel:] And you shared private information
with one another, correct?
“[The prosecutor:] Objection. Vague and relevance.

25
“The court: I don’t think it’s irrelevant. I don’t know what
‘private’ means.
“[Defense counsel:] Okay. I’ll try it again.
“The court: So the objection is sustained.
“[Defense counsel:] You had an open line of communication
between the two of you, correct? Back in 2013 and onward?
“[Vicedomini:] Very rarely. Very rarely.”
b. JD1’s trial testimony
During JD1’s direct examination, when asked how she
became associated with the Los Angeles Italia Film Festival, she
responded, “I was a friend of and I worked with the founder of the
festival,” whom she identified as Vicedomini. Later in her direct
examination, she testified that at the time of the 2013 Los
Angeles Italia Film Festival, she and Vicedomini had a “friend
relationship.”
During cross-examination, defense counsel asked JD1 if she
went to Vicedomini’s hotel room after the film festival events on
February 17, 2013, and spent the night there. She responded,
“Absolutely not.” Next, counsel asked, “That’s because you and
Pascal had a relationship together, didn’t you?” The prosecutor
objected on the ground of relevance, the court sustained the
objection, and defense counsel asked to approach. The court
granted the request, and a lengthy bench conference ensued.
Defense counsel argued the evidence Weinstein sought to
admit about the nature of JD1 and Vicedomini’s relationship was
“pure impeachment,” asserting these witnesses “lied” when they
testified they were “just friends” or “colleagues” at the time of the
2013 Los Angeles Italia Film Festival. Counsel further argued
there was circumstantial evidence supporting the defense’s
theory that JD1 was in Vicedomini’s hotel room after midnight on

26
February 18, 2013, the time she said Weinstein sexually
assaulted and raped her in her hotel room. Counsel noted, for
example, that there was no charge on her hotel folio showing that
the hotel’s limousine service brought her back to the hotel (or
anywhere) that night, as it had on other nights, and there was
evidence (including a Facebook message) indicating she was with
Vicedomini at some point in the morning on February 18, 2013.
Counsel also reiterated the defense theory asserted at
Vicedomini’s conditional examination that Vicedomini would not
have given Weinstein the hotel room number of a woman with
whom he himself was having an affair.
The prosecutor argued, “[T]his isn’t just an opportunity for
the defense to make rank speculation and just assassinate [JD1’s]
character with no evidence . . . .” Defense counsel responded:
“And the prosecution opened this door when they sought
information from her on direct about the nature of her
relationship. She said[,] ‘We were friends.’ The prosecution is
hiding vital information. We had information they were sexting
with each other five days before the event [referencing the
February 12, 2013 Facebook messages the court excluded during
Vicedomini’s conditional examination]. Sexting with each other
the day before the event.” The latter reference was to the
following set of Facebook messages that JD1 and Vicedomini
exchanged on February 16, 2013:7
JD1: I’m waiting for you. . .

7 Defense counsel initially told the court that these

messages were exchanged on February 17, 2013—the first day of
the film festival—but later acknowledged that because they
reflect “UTC,” or Coordinated Universal Time, they were in fact
exchanged on February 16, 2013 Pacific Standard Time.

27
Vicedomini: on my way love
Vicedomini: it’s that I don’t know where to buy what you
asked me for
JD1: You have to buy((( (sic)
JD1: Hurry up . . . There’s a surprise waiting for you
Defense counsel stated: “It’s vital I be able to establish
circumstantially to the jury that there is an alternative
reasonable explanation for all of her story. She was with Pascal
[Vicedomini] and she made this up. [¶] It’s central to our defense
and this has nothing to do with rape shield [law. (See Evid.
Code, §§ 1103 & 782.)] It has nothing to do with dragging her
through the mud. She is a liar. She said[,] ‘We are just friends.’
You don’t just sext with someone you are just friends with.”
The prosecutor disputed the characterization of the
messages as “sexting” or as indicative of a romantic relationship,
stating: “There is no reference to sex or to any sexual act. There
is playful banter between the two of them and there is absolutely
no evidence that they had a romantic relationship on either side.
There is nothing to say that they were together that night. There
is no evidence of it and the defense doesn’t just get to assassinate
a rape victim’s character just because they want to put on a
defense with no evidence.”
Defense counsel asserted that another Facebook message
exchange between JD1 and Vicedomini “maybe three months
later” indicated they were in a romantic relationship. Counsel
did not reference the date of these messages but described them
as follows: “[JD1] and Pascal [Vicedomini] were back in Italy and
they texted about going to the, I think it was the Capri Film
Festival, and this time he texted her overtly[,] ‘You’re staying
with me. Bring a change of clothes.’ ” Counsel added: “It’s

28
absurd to even suggest they weren’t in a relationship. And the
fact that they were in a relationship, which can be proven, and
it’s something for the jury to weigh and consider, means that she
had a reason and a place to be somewhere else on the night of the
17th and we believe she was, the night of the 17th[,] the morning
of the 18th.” Counsel also asserted the prosecution had no
evidence JD1 was in her hotel room that night. The prosecutor
noted JD1 had already testified she was there, and that was
“evidence.”
The court asked defense counsel, “So what are you wanting
to put into evidence?” Counsel referenced some of the February
12, 2013 messages that the court excluded during Vicedomini’s
conditional examination and some of the February 16, 2013
messages that he was attempting to introduce for the first time.
The court stated that none of these messages establish JD1 was
in Vicedomini’s hotel on the night of February 17 through the
early morning hours of February 18, 2013, and characterized the
defense’s claim to the contrary as “highly speculative.” The court
reasoned it was irrelevant if JD1 and Vicedomini had a sexual
relationship if there was no evidence she was with him on the
night in question. The court stated the defense could question
JD1 about circumstantial evidence the defense believed showed
JD1 was not in her hotel room that night (e.g., limousine service
records and evidence that a fire alarm rang at the Mr. C Hotel
and JD1 said she did not hear it).
Following a break in the proceedings, the conference
between the court and the parties resumed in the judge’s
chambers. The prosecutor informed them about a conversation
with JD1 during the break, stating: “She’s very concerned that
the defense is going to be allowed to ask into her relationship

29
with Mr. Vicedomini. She said there was a sexual encounter with
him at one point in time while she was going through a breakup
with her husband. But it was not on this trip. And she is very
concerned that she’s going to have to divulge this in front of the
media. Her kids consume media and she is concerned her kids
will find out about that.” The timeframe of this encounter is not
disclosed in the record, but as Weinstein states in his appellate
briefing, it occurred at some point after the festival, and this
timeline appears to be undisputed.
Defense counsel continued to argue that the defense should
be permitted to question JD1 about the February 12 and 16, 2013
Facebook messages. Counsel also noted, “[T]he fact they had a
romantic relationship, that that romantic relationship moved
forward, they were still in a romantic relationship several
months later when he asks her ‘spend the night with me’ at, you
know, whatever event it was in Italy. I don’t even need to get
into that. [¶] For the court’s edification it wasn’t like it was a
tryst over that night but even if it were that would still be
relevant for the jury to consider.”
Defense counsel maintained, “[T]o foreclose this line of
cross-examination is to basically take away the entirety of our
defense of this particular witness, this victim.” The court
responded, “The texts don’t establish they were getting together
that night [February 17, 2013]. They [the texts] were from the
night before.”
The prosecutor argued the evidence the defense sought to
admit was “precluded by the rape shield laws” and the defense
was “required to file a motion to seek to admit” it. Defense
counsel replied, “This is not rape shield. It is pure
impeachment.” The court responded, “I don’t think her sexual

30
relationship with someone else is pure impeachment.” Defense
counsel argued that the evidence “impairs her credibility,” and
the rape shield laws do not “prevent[] a witness [from] being
called out on her perjury.”
Defense counsel explained that the purpose of introducing
this evidence was not to show that JD1 was having sexual
relations with another man but to show she was not in her hotel
room on the night in question. Counsel referenced the February
16, 2013 Facebook messages and stated, “None of that is graphic
but it certainly shows the nature of the relationship, baby, honey,
come over. I can’t wait to see you, all of those things. That’s not
protected by the rape shield law.” The court questioned whether
these messages actually indicated a sexual relationship but
stopped short of saying it was an unreasonable inference. The
court reiterated that the messages were “not evidence that they
were together [at the time in question]. It is an inference that he
[defense counsel] wants to draw from the fact that they may have
been together the night before.”
Defense counsel argued that because there was evidence
that JD1 and Vicedomini “were together every single day” from
February 16 to February 19, 2013, “It’s not a long shot that they
may have spent the night together on one or more of those nights,
and we have information that they did.” The court responded:
“Well, that’s the part that I think is lacking. And there is a rape
shield law for a reason, even if the defense would like to establish
otherwise, and I have to take that into consideration. I can’t just
ignore the fact it exists. So it does mean that it has to be
particularly relevant not just inferentially a possibility. I think
that I’m compelled to take that into consideration.”

31
The court made its ruling and had the following exchange
with defense counsel about the ruling:
“The court: All right. I’m going to let you ask during this
time period, meaning the 17th and 18th and the time of the Italia
Film Festival whether she had an intimate relationship with Mr.
Vicedomini and you can use the texts on the 16th, from the 16th.
It has to be made clear they are from the 16th.
“[Defense counsel]: Right.
“The court: Which is why my recollection initially that [sic]
they weren’t from the 17th. So whatever she says is what she
says.
“[The prosecutor]: The implication --
“The court: You are not getting into whether it’s any other
point in time she had an intimate relationship with Mr.
Vicedomini.
“[Defense counsel]: That’s fine.”
When cross-examination resumed, defense counsel asked
JD1 the following questions:
“[Defense counsel:] When we last left off we were chatting
about Pascal Vicedomini and your relationship with Mr.
Vicedmoni. [¶] You previously testified that you and Mr.
Vicedomini had simply a friendly relationship, a friend
relationship I think you said, co-workers, correct?
“[JD1:] We were very close friend [sic], co-workers.
“[Defense counsel:] And the truth is you actually had a
romantic relationship with Mr. Vicedomini at least in the days
leading up to the L.A. Italia Film Festival in 2013, correct?
“[JD1] That’s not correct.

32
“[Defense counsel:] Did you have a romantic relationship
with him at or around that time maybe February 16th, 17th,
18th?
“[JD1:] Can you repeat the question with the date.
“[Defense counsel:] I want to direct your attention[,] well
the easiest way to think about it is the L.A. Italia Festival started
on the 17th of February. I’m going to bracket those days and ask
you did you have a romantic relationship with Mr. Vicedomini on
the 16th, 17th, 18th during that time frame?
“[JD1:] No.
“[Defense counsel:] What was the nature of your
relationship with him?
“[JD1:] Close friends, co-worker.
“[Defense counsel:] Did you ever have a romantic
relationship with Mr. Vicedomini?
“[The prosecutor]: Objection. Relevance.
“The court: Objection is sustained.”
Defense counsel then reviewed with JD1 the contents of the
February 16, 2013 Facebook message exchange between her and
Vicedomini. JD1 testified that when Vicedomini wrote, “ ‘on my
way love,’ ” he meant that he was on his way to meet her at her
hotel. She stated that in Italian, the word “ ‘love’ ” is a term of
affection used to refer to both friends and romantic parters.
Defense counsel asked her what she meant when she wrote that
there was a “ ‘surprise waiting for’ ” him. She responded, “I don’t
remember that. Probably I took something from Italy to him.”
She confirmed that she and Vicedomini did meet at her hotel on
February 16, 2013.

33
c. Relevant defense closing argument
During argument to the jury, defense counsel’s first
comments about JD1 were as follows: “Harvey Weinstein did not
rape [JD1]. He was never in her hotel room ever. The evidence
clearly established that not only was he not in her hotel room in
the early morning hours of February 18th, 2013; she wasn’t in
her hotel room on February 18th, 2013.” Counsel stated that JD1
said she took a limousine back to the Mr. C Hotel late on the
night in question, but her hotel folio shows no limousine service
on February 17 or 18, 2013. He added: “There would not be
records, however, if she got a ride, for instance, from Pascal
[Vicedomini], from the dinner and went back to his hotel. That
would match up with the documents that we have.”
Counsel argued, Vicedomini “was sending [JD1] love notes,
affectionate texts, in the days and week or so leading up to the
L.A. Italia Film Festival. You saw those text messages.” He
further asserted, “The evidence points to the fact that she and
Pascal [Vicedomini] were, in fact, involved in a relationship, a
loving relationship, a romantic relationship. Uncontrovertible
evidence is that she was in his room the very next morning.”
Counsel referenced a message JD1 sent Vicedomini, indicating
that she showed him a photo that was taken at the film festival
on February 17, 2013, “ ‘immediately the next morning,’ ” or
February 18, 2013.
Defense counsel also questioned the prosecution’s theory
that Vicedomini shared JD1’s hotel information with Weinstein,
asking, “Why would [Vicedomini] give another man his lover’s
hotel room number? That’s just bizarre.”
Later in the argument, defense counsel asserted that a fire
alarm “blared” on “[e]very floor” of the Mr. C Hotel during the

34
time JD1 said Weinstein was in her room committing the sexual
offenses. Counsel argued: “[JD1] was interviewed probably six
different times. Not once did she ever say anything about a fire
alarm. And the reason she didn’t say anything about it is
because she didn’t know about it, and the reason she didn’t know
about it is because she wasn’t there, she was with Pascal
[Vicedomini] in his hotel room that night. That’s where she was.”
d. Weinstein’s motion for new trial
After the jury found Weinstein guilty of the sexual offenses
involving JD1, he filed a motion for new trial, arguing, among
other things, that the court erred when it excluded the February
12, 2013 Facebook messages between JD1 and Vicedomini that
he sought to introduce during cross-examination of Vicedomini
and JD1. He further asserted that during the conference
regarding these messages, “[T]he defense also alerted the Court
to May 2013 Facebook messages showing that [JD1] made plans
to bring a change of clothes to an event at the Cannes Film
Festival so that she could go home with Mr. Vicedomini.”
Weinstein claimed the trial court “ultimately excluded” the May
2013 Facebook messages.
We disagree with Weinstein’s characterization of what
occurred during the bench and chambers conference that we
summarized above. During the conference, defense counsel
referenced messages that JD1 and Vicedomini exchanged a few
months after the February 2013 messages that the defense
sought to admit; but counsel did not identify the later messages
by date or seek to introduce them. Rather, defense counsel told
the court, “I don’t even need to get into that,” and indicated he
was referencing the later messages “[f]or the court’s edification”
regarding the nature of JD1 and Vicedomini’s relationship.

35
Moreover, when the court asked defense counsel point-blank, “So
what are you wanting to put into evidence,” counsel referenced
only the February 12 and 16, 2013 messages. The court did not
“exclude” the May 2013 messages, as it was never asked to admit
them. Nonetheless, Weinstein argued in his motion for new trial
that the court erred in excluding them.
Weinstein submitted with his motion for new trial the
English translation of a set of May 21, 2013 Facebook messages,
which states, in pertinent part:
JD1: Honey I don’t know why but my cell doesn’t
work !!!!! I can write here when there is w f
(sic) !!! What are you doing? Where can I see
you? What are tomorrow’s plans? Where?
[Lips emoji.]
Vicedomini: Love get a change together because tonight
you’re coming to my place . . . and tomorrow
morning you’ll be in cannes [sic] straight away
Vicedomini: see you directly at de grisogono (sic)
JD1: No I can’t. They’re organizing everything for
me. Today I have to go with them, then maybe
during the evening I’ll get out of there))))
JD1: Are you going to dinner?
JD1: I’ll come later.
Vicedomini: exactly
Vicedomini: see you there
Vicedomini: bring a change of clothes
Vicedomini: and then we’ll leave together
JD1: Yes)))
At the hearing on the motion for new trial, defense counsel
argued about the exclusion of “the text messages,” in general, and

36
did not reference the May 21, 2013 messages, specifically. In
denying the motion for new trial, the court concluded: “[T]he
evidence with respect to the text messages was properly excluded
after an analysis pursuant to Evidence Code section 352, and also
because the relevance that you [defense counsel] are saying is
that it involved sexual conduct[,] I think this is protected by rape
shield law and prohibited.”
2. Applicable law
Evidence is admissible only if it is relevant. (Evid. Code,8
§ 350.) “ ‘Relevant evidence’ means evidence, including evidence
relevant to the credibility of a witness or hearsay declarant,
having any tendency in reason to prove or disprove any disputed
fact that is of consequence to the determination of the action.”
(§ 210.) Section 780 provides that “in determining the credibility
of a witness,” a jury may consider “any matter that has any
tendency in reason to prove or disprove the truthfulness of his
testimony at the hearing, including but not limited to,” the
“existence or nonexistence of a bias, interest, or other motive”; a
“statement made by him that is inconsistent with any part of his
testimony at the hearing”; the “existence or nonexistence of any
fact testified to by him”; and “[h]is admission of untruthfulness.”
(§ 780, subds. (f), (h), (i) & (k).)
There are statutory exceptions to the maxim that “all
relevant evidence is admissible.” (§ 351.) Under section 352, for
example, “The court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time

8 Undesignated statutory references are to the Evidence

Code.

37
or (b) create substantial danger of undue prejudice, of confusing
the issues, or of misleading the jury.”
Under California’s rape shield law, in a criminal
prosecution charging rape or other sexual offenses, a defendant
who seeks to offer “evidence of sexual conduct of the complaining
witness,” in order “to attack the credibility of the complaining
witness” under section 780, must comply with the procedures
outlined in section 782. (§§ 782, subds. (a) & (c)(1), 1103, subd.
(c)(1) & (5); People v. Fontana (2010) 49 Cal.4th 351, 354, 362
(Fontana); People v. Franklin (1994) 25 Cal.App.4th 328, 334
(Franklin) [section 782 “specifies a procedure which must be
followed before a defendant being prosecuted for a sexual offense
will be allowed to attack the credibility of the alleged victim by
presenting evidence of that witness’s sexual conduct”], italics
added.) “[S]exual conduct, as that term is used in sections 782
and 1103, encompasses any behavior that reflects the actor’s or
speaker’s willingness to engage in sexual activity.” (Franklin, at
p. 334, fn. omitted.)
To comply with section 782, “First, the defendant must file
a written motion and an offer of proof detailing the relevancy of
the evidence. [Citation.] If the court finds the offer sufficient, it
shall order a hearing out of the presence of the jury to allow
questioning of the complaining witness regarding the offer of
proof. [Citation.] If the court finds the evidence relevant under
section 780 and admissible under section 352, the court may
make an order stating what evidence may be introduced by the
defendant and what questions are permitted.” (Fontana, supra,
49 Cal.4th at p. 354, citing § 782, subd. (a)(1)-(4).)
The “discretion afforded by Evidence Code section 782,” is
to be exercised “ ‘narrowly.’ ” (Fontana, supra, 49 Cal.4th at p.

38
362.) Our Supreme Court has “emphasize[d] that ‘[g]reat care
must be taken to insure that this exception to the general rule
barring evidence of a complaining witness’[s] prior sexual
conduct . . . does not impermissibly encroach upon the rule itself
and become a “back door” for admitting otherwise inadmissible
evidence.’ ” (Id. at p. 363; People v. Chandler (1997) 56
Cal.App.4th 703, 708 (Chandler) [“By narrowly exercising the
discretion conferred upon the trial court in this screening process,
California courts have not allowed the credibility exception in the
rape shield statutes to result in an undermining of the legislative
intent to limit public exposure of the victim’s prior sexual history.
[Citations.] Thus, the credibility exception has been utilized
sparingly . . . .”].)
“A trial court’s ruling on the admissibility of prior sexual
conduct will be overturned on appeal only if appellant can show
an abuse of discretion.” (Chandler, supra, 56 Cal.App.4th at p.
711.) A defendant who fails to file the requisite motion under
section 782, however, “may not . . . complain of error” on appeal
regarding the trial court’s exclusion of the evidence at trial on
other grounds, such as relevance. (People v. Sims (1976) 64
Cal.App.3d 544, 554 (Sims).)
3. By failing to comply with rape shield law,
Weinstein forfeited his claim that the trial court
abused its discretion in excluding some of the
February 12, 2013 Facebook messages
Weinstein offered the February 12, 2013 Facebook
messages to attack JD1’s credibility. He claims this evidence
tended to show JD1 engaged in sexual conduct with Vicedomini
and therefore impeached her testimony that she and Vicedomini
were just friends or colleagues and that she was in her own hotel

39
room in the early morning hours of February 18, 2013. However,
he did not file the requisite written motion under section 782.
Therefore, he will not now be heard to complain of error in the
exclusion of this evidence.
On appeal, Weinstein characterizes the excluded February
12, 2013 messages as a “sexual” conversation between JD1 and
Vicedomini, that demonstrated a “sexual relationship” between
them, and “suggested that Vicedomini’s motivation for inviting
JD1 [to the Los Angeles Italia Film Festival] was for his own
sexual pleasure.” He argues that rape shield procedures were
inapplicable because he “never sought to attack JD1’s credibility
based on her ‘sexual conduct,’ ” but rather, he “sought to attack
JD1’s credibility by showing that she lied to the jury about
material and relevant facts.” To that end, he maintains that he
sought to introduce this evidence to show: “(1) the prosecution’s
theory that [Vicedomini] invited JD1 to the festival for
[Weinstein]’s sexual benefit and provided her hotel information to
[Weinstein] was unlikely; (2) JD1 was plausibly with Vicedomini
in his hotel room on February 18, 2013 when the fire alarms were
blaring in her hotel room; and (3) she repeatedly misled the jury
about her relationship with Vicedomini.”
During JD1’s testimony, when Weinstein tried to introduce
the messages, defense counsel explained to the trial court that
Weinstein wanted to use the messages for “pure impeachment,”
to “call[] out” JD1 “on her perjury.” Counsel argued that the
messages “impair[ed] her credibility” by showing that she “lied”
when she testified that she and Vicedomini were “just” friends or
coworkers and provided “an alternative reasonable explanation
for all [of] her story,” i.e., that “[s]he was with [Vicedomini] and
she made this up.”

40
Weinstein’s offer of proof regarding this evidence and its
proposed use falls squarely within section 782’s parameters:
“evidence of sexual conduct of the complaining witness [that] is
offered to attack the credibility of the complaining witness under
[s]ection 780.” (§ 782, subd. (a).) As he articulated in his opening
appellate brief, “Evidence Code section 780 expressly states that
a jury may consider in determining the credibility of a witness
any manner that has any tendency in reason to prove or disprove
the truthfulness of his testimony, including the existence of bias,
interest, or other motive, the existence of a prior inconsistent
statement of the witness, the existence or non-existence of any fact
testified to by him, and his admission of untruthfulness.” (Italics
added.) Weinstein sought to argue to the jury that these
messages described sexual conduct, and from this evidence of
purported sexual conduct the jury should infer that JD1 was
engaged in a sexual relationship with Vicedomini, and therefore
she was not credible when she testified that she and Vicedomini
were friends and colleagues and that she was in her hotel room
on the night of February 17, 2013, among other things. In other
words, he sought to use evidence of her purported sexual conduct
to “disprove the truthfulness of h[er] testimony” by showing the
“nonexistence of a fact testified to by h[er].” (§ 780, subd. (i).)
Thus, a written motion was required, and it was for the court to
decide under the procedures outlined in section 782 whether the
evidence was admissible.9

9 Although we decide this issue based on Weinstein’s failure

to comply with rape shield procedures and therefore do not need
to reach the merits of the trial court’s exclusion of this evidence,
we note that the conclusion Weinstein wanted the jury to draw
from the evidence depends on multiple links in a chain of

41
In arguing that rape shield procedures were inapplicable,
Weinstein relies on two cases that are inapposite, Franklin,
supra, 25 Cal.App.4th 328 and People v. Tidwell (2008) 163
Cal.App.4th 1447 (Tidwell). In Franklin, the Court of Appeal
concluded, among other things, that the defendant, who was
appealing his conviction for continuous sexual abuse of a child,
was not required to comply with section 782’s procedures before
introducing at trial evidence that the complaining witness had
made “a prior false accusation of sexual molestation” against
another individual. (Franklin, at pp. 330, 335.) The court
reasoned, “The instance of conduct being placed before the jury as
bearing on credibility is the making of the false statement, not
the sexual conduct which is the content of the statement. [¶]
Even though the content of the statement has to do with sexual
conduct, the sexual conduct is not the fact from which the jury is
asked to draw an inference about the witness’s credibility. The
jury is asked to draw an inference about the witness’s credibility
from the fact that she stated as true something that was false.”
(Id. at p. 335.) The appellate court agreed with the defendant’s
contention that the trial court erroneously applied section 782 in
excluding the evidence, but did not reverse the judgment because

speculative inferences. Evidence that “leads only to speculative
inferences” is irrelevant (People v. Morrison (2004) 34 Cal.4th
698, 711 (Morrison)), and a court “ ‘has no discretion to admit
irrelevant evidence.’ ” (People v. Alexander (2010) 49 Cal.4th 846,
904 (Alexander), quoting People v. Babbitt (1988) 45 Cal.3d 660,
681 (Babbit).) Were we to address the merits, we would conclude
the trial court did not abuse its discretion in excluding the
messages based on irrelevance, as well as a substantial danger of
confusing the issues or misleading the jury under section 352.

42
the exclusion of the evidence did not result in a miscarriage of
justice. (Id. at pp. 336-337.)
In Tidwell, the defendant filed a section 782 motion before
his trial for rape and other offenses, seeking permission to
introduce evidence that the complaining witness had made prior
false complaints of rape. (Tidwell, supra, 163 Cal.App.4th at pp.
1448, 1452.) After holding an evidentiary hearing on the motion,
the trial court excluded the evidence, finding it inadmissible
under section 352. (Id. at p. 1454.) On appeal, the defendant
argued the trial court erred in not allowing him to question the
complaining witness at the evidentiary hearing pursuant to
section 782. (Id. at p. 1452.) The Court of Appeal held, “Section
782 was inapplicable because it was [the complaining witness]’s
allegedly false complaints that the defense sought to use as
impeachment evidence, not her prior sexual conduct or
willingness to engage in sexual activity. Under these
circumstances, the language of section 782 does not apply and the
procedure mandated by section 782 is unnecessary.” (Id. at p.
1456.) The court concluded the evidence was properly excluded
under section 352 because “the evidence concerning falsity of the
rape complaints” was “weak[]” and “admitting the evidence would
have resulted in an undue consumption of time.” (Id. at p. 1458.)
Here, Weinstein did not seek to have the jury draw
credibility inferences based on a false report of sexual conduct, as
the defendants did in Franklin and Tidwell. Rather, he sought to
have the jury draw the inference that JD1 was lying about the
true nature of her relationship with Vicedomini and her
whereabouts on the night in question, among other things, based
on messages purportedly evidencing her willingness to engage in
sexual conduct with Vicedomini and describing specific acts of

43
sexual conduct. By failing to comply with section 782’s
mandatory procedures, he forfeited his challenge on appeal to the
trial court’s exclusion of the evidence. (See Sims, supra, 64
Cal.App.3d at p. 554.)
Section 782’s procedures ensure that the court has an
opportunity to consider the relevance of the proposed evidence of
the complaining witness’s sexual conduct, and any section 352
concerns, and determine “the nature of the questions to be
permitted” during the witness’s examination, before the witness
takes the stand. (See § 782, subd. (a)(4).) The circumstances that
unfolded during Vicedomini’s conditional examination and at
trial due to Weinstein’s noncompliance with these procedures
illustrate why they are so important. Weinstein placed the trial
court in the difficult position of evaluating these issues, weighing
the competing considerations, and ruling on the permissible scope
of cross-examination in the middle of the witness’s testimony.
The lengthy bench and chambers conferences during JD1’s cross-
examination, while the jury was waiting, demonstrate why
compliance with section 782 is necessary.
Without citation to authority, Weinstein argues the
prosecution forfeited “its position” that the evidence was barred
by rape shield law because the prosecution did not object to the
evidence on this ground when Weinstein first sought to introduce
it before trial at Vicedomini’s conditional examination, objecting
instead based on relevance. It was Weinstein’s obligation, as the
party who sought to offer the evidence, to comply with rape shield
procedures, and the prosecution had no obligation to prompt
Weinstein’s compliance. We note that during trial, when
Weinstein sought to offer the evidence on cross-examination of
JD1, the prosecutor pointed out that Weinstein had not filed the

44
requisite motion. In response, Weinstein argued rape shield law
was inapplicable. As explained, Weinstein skipped a step when
he failed to file the requisite motion, and thus, he forfeited his
claim of error.
Weinstein also points out that the trial court did not
exclude the evidence because he failed to comply with rape shield
procedures. The court conducted a merits analysis before
excluding the evidence. Weinstein cites no authority that
precludes us from finding forfeiture under these circumstances.
Here, there was a real danger the jury would consider the
messages solely for Weinstein’s assertion that they showed an
extramarital sexual affair between JD1 and Vicedomini—
precisely what rape shield protects against. Weinstein attempted
to evade these protections by seeking to introduce the evidence in
the middle of witness examination, without a written motion and
an evidentiary hearing—procedural safeguards that exist to
allow the court to take “ ‘great care’ ” in evaluating the
admissibility of the evidence instead of deciding “on the fly”
whether the “exception to the general rule barring evidence of a
complaining witness’[s] prior sexual conduct” applies. (Fontana,
supra, 49 Cal.4th at p. 363.) We decline to excuse or make light
of his noncompliance by reviewing the merits of the court’s
evidentiary ruling despite the forfeiture.
4. The evidence the court admitted allowed
Weinstein to challenge the prosecution’s theory of the
case, present his defense, and challenge the witness’
credibility; his claim to the contrary is unsupported
by the record
As set forth in more detail above, during JD1’s cross-
examination, the defense sought to introduce, over the

45
prosecution’s objection, not only the February 12 messages, but
also the February 16, 2013 Facebook messages between JD1 and
Vicedomini. During the chambers conference regarding this
matter, defense counsel claimed that the purpose of introducing
this evidence was not to show that JD1 was having sexual
relations with another man but to show she was not in her hotel
room on the night in question. To that end, counsel referenced
the February 16 messages and stated, “None of that is graphic
but it certainly shows the nature of the relationship, baby, honey,
come over. I can’t wait to see you, all of those things. That’s not
protected by the rape shield law.” When the court ruled that the
defense could introduce the February 16 messages and ask JD1
“whether she had an intimate relationship” with Vicedomini on
February 17 or 18, 2013, defense counsel responded, “That’s fine,”
indicating the defense was satisfied with the ruling. On cross-
examination, JD1 denied she was in a “romantic relationship”
(which was the way defense counsel characterized the
relationship in its questions) with Vicedomini during the
timeframe February 16-18, 2013. She also denied she spent the
night in Vicedomini’s hotel room from February 17-18, 2013.
During Vicedomini’s cross-examination, the defense
explained to the court that it wanted to introduce the February
12, 2013 messages to show the nature of the relationship between
JD1 and Vicedomini and to draw the inference that Vicedomini
would not have provided Weinstein with JD1’s hotel information.
The court excluded the messages on relevance grounds but told
the defense, “I will give you some leeway on this but I’m not going
to get into the nitty gritty of the relationship between the witness
and [JD1].” Defense counsel responded, “Understood and I will
take the court’s guidance and take a step back and see if I can do

46
this in a bit more reserved manner.” Defense counsel asked
Vicedomini if he was “protective of [his] relationship with [JD1],”
and he responded affirmatively. Counsel also asked if he had “in
any way suggest[ed] that [he] would be providing [JD1] to Harvey
Weinstein for sexual favors,” and Vicedomini vehemently denied
this. Vicedomini also denied that he provided JD1’s hotel room
number to Weinstein. Counsel did not ask Vicedomini if he was
with JD1 overnight from February 17-18, 2013.
During closing argument, the defense asserted, among
other things: (1) that there was evidence indicating JD1 did not
spend the night in her hotel room from February 17-18, 2013
(e.g., the lack of records indicating she took a limousine back to
the Mr. C Hotel in the evening on February 17 or in the early
morning hours on February 18; evidence that a fire alarm rang in
the hotel after midnight on February 18 but she did not hear it;
and a Facebook message indicating she was with Vicedomini at
his hotel at some point in the morning on February 18); and (2)
that the Facebook messages the court admitted, which the
defense referred to as “love notes, affectionate texts,” indicated
JD1 was in a romantic relationship with Vicedomini. The
defense argued to the jury that reasonable inferences from this
evidence were: (1) that Vicedomini would not “give another man
his lover’s hotel room number”; and (2) that JD1 was with
Vicedomini in his hotel room at the time she said Weinstein
committed the sexual offenses against her in her hotel room.
The court’s application of California statutory rules of
evidence did not infringe on Weinstein’s constitutional rights to
challenge the prosecution’s case, present a defense, and confront
the witnesses against him. (See People v. Turner (2020) 10
Cal.5th 786, 818 [“ ‘As a general matter, the ordinary rules of

47
evidence do not impermissibly infringe on the accused’s right to
present a defense’ ”]; Babbitt, supra, 45 Cal.3d at p. 683.)
5. Weinstein did not offer the May 21, 2013
messages at trial
Weinstein contends the trial court erred in excluding May
21, 2013 Facebook messages between JD1 and Vicedomini. We
cannot review this claim on the merits for the simple reason that
Weinstein never sought to introduce these messages.
As noted above, during the bench and chambers
conferences regarding the defense’s request to introduce the
February 12 and 16, 2013 Facebook messages, defense counsel
referenced messages that JD1 and Vicedomini exchanged a few
months later. Counsel represented that in the messages,
Vicedomini asked JD1 to spend the night with him at another
film festival. He did not identify the date of these later messages
or seek to introduce them. Rather, he told the court, “I don’t even
need to get into that,” and indicated he was referencing the later
messages “[f]or the court’s edification” regarding the nature of
JD1 and Vicedomini’s relationship. Moreover, when the court
asked defense counsel to specify the messages Weinstein wanted
to introduce, counsel referenced the February 12 and 16, 2013
messages, but not the May 21, 2013 messages. The court did not
“exclude” the messages as it was never asked to admit them.
“[T]he absence of an adverse ruling precludes any appellate
challenge.” (People v. Samayoa (1997) 15 Cal.4th 795, 837
[“defendant never sought to introduce evidence that assertedly
would have been excluded under the prosecution’s [in limine]
memorandum, and hence the trial court was never required to
rule upon the scope of admissible expert testimony relating to
defendant’s state of mind”].)

48
The first time the defense identified these messages by date
and presented them to the court was in connection with
Weinstein’s motion for new trial. The messages (which are
quoted above), indicate that Vicedomini and JD1 were attempting
to coordinate their schedules for that evening; that Vicedomini
told JD1 to bring a change of clothes “because tonight you’re
coming to my place”; refer to JD1’s attendance at the Cannes
Film Festival the next day; refer to the two of them meeting at a
dinner; and refer to “leav[ing] together.”
Weinstein argues that, to the extent we conclude his claim
regarding the May 21, 2013 messages is forfeited, we should
nonetheless review the claim on the merits because it would have
been futile for him to pursue introduction of these messages given
the court’s exclusion of other evidence he sought to introduce. In
support of this argument, he cites cases addressing whether a
claim of prosecutorial misconduct is forfeited where the
defendant fails to object in the trial court. (People v. Centeno
(2014) 60 Cal.4th 659, 674 (Centeno); People v. Hill (1998) 17
Cal.4th 800, 820; People v. Arias (1996) 13 Cal.4th 92, 159.) This
is a very different situation. Here, the court did not have an
opportunity to review the messages for itself and decide whether
they were admissible because the defense did not present them to
the court before or during trial. Accordingly, for us to conclude it
would have been futile for the defense to pursue introduction of
these messages, our conclusion would be based on pure
speculation.
Because the defense did not offer the May 21, 2013
messages for admission at trial, there is no claim for us to review
regarding admission of this evidence.

49
B. Weinstein Has Not Demonstrated That the
Prosecutor Knowingly Elicited False Testimony
About the Nature of JD1 and Vicedomini’s
Relationship and Failed to Correct It
Weinstein asserts, “The prosecution knew that JD1 and
Vicedomini were engaged in a sexual relationship at the time of
the film festival but elicited false testimony from both witnesses
that characterized the relationship as platonic and/or a working
relationship.” He contends his due process rights “were violated
when the prosecution misled the jury with false testimony and
then argued the false facts to the jury.” Because Weinstein has
not established that the testimony was false, his contention is
without merit.
1. Applicable law
“[A] conviction obtained through use of false evidence,
known to be such by representatives of the [s]tate, must fall
under the Fourteenth Amendment [citations]. The same result
obtains when the [s]tate, although not soliciting false evidence,
allows it to go uncorrected when it appears.” (Napue v. Illinois
(1959) 360 U.S. 264, 269.) In other words, “[A] conviction
knowingly ‘obtained through use of false evidence’ violates the
Fourteenth Amendment’s Due Process Clause.” (Glossip v.
Oklahoma (2025) 604 U.S. 226, 246.) “To establish a Napue
violation, a defendant must show: (1) that the testimony was
actually false, (2) that the government knew or should have
known that it was false, and (3) that the testimony was material,
meaning there is a ‘reasonable likelihood that the false testimony
could have affected the judgment of the jury.’ ” (U.S. v. Renzi
(9th Cir. 2014) 769 F.3d 731, 751; Dickey v. Davis (9th Cir. 2023)
69 F.4th 624, 636.)

50
The Attorney General argues that Weinstein forfeited his
claim of Napue error by not “rais[ing] a Napue objection at trial
or object[ing] to the prosecutor’s comments during argument.”
(See, e.g. People v. Carrasco (2014) 59 Cal.4th 924, 966-967
[because the defense knew the witness’s testimony was false,
Napue claim was forfeited by failure to object].) Although
Weinstein did not raise an objection at trial under Napue
specifically, we address his claim on the merits because defense
counsel made clear during trial that it was Weinstein’s position
that JD1 and Vicedomini lied about the nature of their
relationship.
2. Analysis
The claim of Napue error fails because Weinstein has not
shown that any testimony was false. There is no evidence, even
considering the excluded messages, that establishes that JD1 or
Vicedomini lied when they characterized their relationship as a
friendship. To the extent they had a sexual encounter, as JD1
told the prosecutor they did some time when she and her
husband were going through a breakup, this does not mean
either of them considered the relationship something other than
a friendship. Had the defense asked JD1 if she ever had a sexual
encounter with Vicedomini (if the defense had followed rape
shield procedures and been permitted to ask such a question),
and she answered no, that would have been false (to the extent
the prosecutor’s representation to the defense and the court about
JD1’s statement accurately described what occurred between her
and Vicedomini). The court permitted the defense to ask whether
JD1 and Vicedomini had an “intimate relationship” on February
16th, 17th or 18th. The defense asked JD1 if she had a “romantic
relationship” with Vicedomini on any of those dates, and if she

51
stayed overnight with Vicedomini from February 17-18, 2013,
and she answered no to both questions. There is nothing in the
record establishing that either of these answers was false.
Weinstein asks us to accept his characterization of the
relationship as truth based on inferences he draws from the
evidence. Our task, however, is to determine whether any
testimony was demonstrably, actually false. We conclude the
record establishes no such false testimony. Accordingly, the
prosecutor did not err in arguing the challenged testimony to the
jury.

C. The Trial Court Did Not Preclude Weinstein From
Exploring Whether JD1 Had a Financial Motivation
or Interest in the Outcome of the Criminal Trial
Weinstein contends the trial court violated his
constitutional and state law rights to present a defense when,
“Without explanation, the trial court barred defense counsel from
exploring JD1’s financial interest in the outcome of trial.” He
further argues that his constitutional right to a fair trial was
“infringed” when the prosecutor “told the jury that there was
‘zero’ evidence that JD1 had a financial motivation – an assertion
that [he] had no ability to refute.” The record does not support
Weinstein’s claims of error.
1. Relevant testimony and proceedings
During cross-examination, defense counsel asked JD1
about a photograph of her and the actor Al Pacino, taken during
the 2013 Los Angeles Italia Film Festival, that she posted on a
social media account. The following exchange ensued:
“[Defense counsel:] The reason that you sought out posts
and photographs -- let me reverse that -- photographs and then

52
posts with rich powerful influential people is because that would
help you as a social media influence, for instance; correct?
“[JD1:] I didn’t see it that way.
“[Defense counsel:] ‘Look at me. I’m hanging out on yachts
with rich people. Is that great.’
“[JD1:] I was rich at that time, very wealthy. I didn’t need
that.
“[Defense counsel:] As rich as Al Pacino?
“[JD1:] As rich as Al Pacino.
“[Defense counsel:] My goodness.
“[JD1:] Uh-huh.
“[Defense counsel:] Congratulations.”
The following day, when cross-examination resumed,
defense counsel began:
“[Defense counsel:] I want to pick up on something that
you mentioned yesterday just to sort of flesh that out very briefly,
if you would bear with me. [¶] We talked a little bit about 2013,
2012, and that time frame in your life and you made a statement
yesterday that you were wealthier than Al Pacino. I think
everybody remembers that. [¶] You recall that, correct?
“[JD1:] I was saying that I was wealthy and --
“[Defense counsel:] Certainly nothing wrong with that.
“[JD1]: It was I married a wealthy man. Not my wealth.
“[Defense counsel:] Good for you. That’s not the case today
however though?
“[The prosecutor:] Objection. Irrelevant.
“The court: Objection sustained.
“[Defense counsel]: Isn’t it true you had a conversation
with [the prosecutor] and a detective just a few days ago and you
indicated some, a little bit of financial distress?

53
“[The prosecutor]: Objection. Relevance.
“The court: Objection is sustained.
“[Defense counsel]: May I approach?
“The court: Not right now. Keep it in mind.”
Defense counsel did not revisit the issue with the trial
court. Nor did counsel ask JD1 whether she had a financial
motivation in accusing Weinstein of the crimes or in testifying
against him at trial, or whether she had a financial interest in
the outcome of the criminal trial.
During closing argument, defense counsel asserted, “This
trial has been revelatory, and what it has revealed is that fame
and fortune attracts fame and fortune seekers. And that, folks, is
why we’re here today.” Counsel further argued that the charged
offenses involving JD1 “just didn’t happen,” adding, “She made
the story up for reasons we may never know. Maybe we could
guess.”
In rebuttal, the prosecutor responded:
“All right. So then [defense counsel] says to you, ‘Well,
there’s a lot of fame seekers. There’s a lot of money seekers.’
Well, great. We all understand that, theoretically, those two
things could be motivations. Theoretically, yes, that could be a
motivation. If that’s a possible motivation, what do you do when
you have a victim on the stand prepared to answer questions for
two days for you? You ask her those questions. And then
[defense counsel] says, ‘Well, I guess we’ll never know. We’ll
never know.’ Well, you could have asked her.
“Is there any evidence -- okay. So fame; right? Is there any
evidence in this trial – we’ve been here eight weeks. Do you have
any evidence that [JD1] sought fame? Any evidence? Zero. Do
you have any evidence that she sought wealth? We’re five years

54
past 2017 and Me Too. Do you have a single shred of evidence
that [JD1] sought wealth? Nothing. Zero.”
The prosecutor also queried, “[W]here is the evidence that
she has any motivation other than to come in and tell you the
truth so she can get justice for what he did to her? Where is the
evidence of that?” Defense counsel did not object to any part of
the prosecutor’s argument.
In support of this contention that the trial court erred in
precluding him from exploring JD1’s financial motivation and
interest, Weinstein cites to an exhibit he submitted with his
motion for new trial. In the motion, he described the document
as a detective’s “updated chrono” that the prosecution produced
in discovery. Included in the chrono is an entry regarding a
meeting with the detective, prosecutors, and JD1 concerning
potential dates for her trial testimony. The entry states that
during the meeting, which occurred just under a month before
her testimony commenced, they “discussed [that] she recently
had been hacked, and was having financial difficulties due to
unsuccessful business ventures leading to possible eviction and
inability to provide for her family. She worked with her attorney
on these issues including providing financial stability with her
living situation.” It appears that this is the “conversation” to
which defense counsel was referring when he questioned JD1
during cross-examination, as set forth above.
Weinstein also cites to a portion of JD1’s grand jury
testimony during which the prosecutor asked her if, in 2017, she
had a discussion with a particular person about “potentially
getting money from Mr. Weinstein” and “receiving $1 million in a
settlement based on a claim of sexual assault being made.” JD1
denied that the discussion took place. The prosecutor then asked

55
if she had ever filed a civil action against Weinstein, and she
responded, “Never. And I will never do that.”
2. Analysis
The record does not demonstrate error. Weinstein never
asked JD1 whether she had a financial motivation in accusing
Weinstein of the crimes or in testifying against him at trial, or
whether she had a financial interest in the outcome of the
criminal trial. Nor did the trial court exclude such testimony.
The court sustained the prosecution’s relevance objections
to two questions the defense asked JD1 about her financial
condition at the time of trial. When defense counsel asked to
approach, the court stated, “Not right now. Keep it in mind.
During subsequent bench and chambers conferences that
occurred during JD1’s testimony, defense counsel never made an
offer of proof as to why the testimony was relevant or explained
to the court that the defense wanted to show that JD1 had a
financial motivation or interest related to the outcome of the
criminal trial. The record does not show that it would have been
futile for the defense to pursue introduction of this evidence. In
fact, the record shows the opposite, as the court expressly invited
the defense to revisit the issue later, but the defense declined the
invitation.
We reject Weinstein’s assertion that “Due Process
precluded the prosecutor from asking the jury to credit JD1’s
testimony and convict [Weinstein] because he failed to introduce
evidence of her financial motivations when the evidence was
excluded [o]n the prosecutor’s motion.” As a threshold matter, we
note the defense did not object to the prosecutor’s argument. “As
a general rule, ‘ “[a] defendant may not complain on appeal of
prosecutorial misconduct unless in a timely fashion, and on the

56
same ground, the defendant objected to the action and also
requested that the jury be admonished to disregard the perceived
impropriety.” ’ ” (People v. Centeno, supra, 60 Cal.4th at p. 674.)
We address the claim on the merits, notwithstanding the general
rule, as Weinstein appears to be asserting that his substantial
rights were affected by the asserted error. (See Pen. Code,
§ 1259.)
With respect to his complaint about the prosecutor’s
argument, Weinstein misinterprets the record. In response to the
defense’s argument to the jury that the complaining witnesses
were “fame and fortune seekers,” the prosecutor argued there
was no evidence that JD1 had sought fame or wealth. There is
nothing false about this argument. Weinstein does not claim on
appeal that there is any evidence that JD1 did anything prior to
trial in an attempt to seek fame or wealth (e.g., send a demand
letter, file a lawsuit, go to the press), which is what the
prosecutor was saying. The prosecutor further argued, “[W]here
is the evidence that she has any motivation other than to come in
and tell you the truth so she can get justice for what he did to
her? Where is the evidence of that?” Weinstein did not ask JD1
about her “motivation,” and the trial court did not make any
ruling precluding him from doing so. Thus, he has not
demonstrated error.

57
D. The Trial Court Did Not Abuse its Discretion in
Denying Weinstein’s Motion for New Trial Based on
Evidence That JD1 Filed a Civil Action for Damages
Against Him After the Jury Returned the Guilty
Verdicts
1. Relevant proceedings
One of the grounds on which Weinstein moved for new trial
was his claim of “newly discovered evidence,” namely, the civil
lawsuit JD1 filed against Weinstein eight weeks after the jury
returned the guilty verdicts. (Pen. Code, § 1181, subd. (8).)
Weinstein argued in his motion that the “civil complaint filed by
[JD1] has revealed that she intended to seek financial gain from
Mr. Weinstein, and had a motivation to lie about her allegations
during the trial and in front of the grand jury.” At the hearing on
the motion, the trial court rejected Weinstein’s argument,
stating, “I believe [JD1]’s decision with respect to civil litigation
is something that occurred after the trial took place. I don’t know
the reason for the timing. You can speculate as to the reason for
the timing. You can speculate as to what her motivations were at
the time of trial, but the reality is that it is something that took
place after the trial occurred and I don’t think it makes her
testimony false.” The court denied the motion for new trial.
2. Applicable law
A trial court may grant a motion for new trial, “When new
evidence is discovered material to the defendant, and which he
could not, with reasonable diligence, have discovered and
produced at trial.” (Pen. Code, § 1181, subd. (8).) “In ruling on a
motion for new trial based on newly discovered evidence, the trial
court considers the following factors: ‘ “1. That the evidence, and
not merely its materiality, be newly discovered; 2. That the

58
evidence be not cumulative merely; 3. That it be such as to
render a different result probable on a retrial of the cause; 4.
That the party could not with reasonable diligence have
discovered and produced it at the trial; and 5. That these facts be
shown by the best evidence of which the case admits.” ’ ” (People
v. Delgado (1993) 5 Cal.4th 312, 328; People v. O’Malley (2016) 62
Cal.4th 944, 1016-1017.)
“ ‘[T]he trial court has broad discretion in ruling on a new
trial motion,’ and its ‘ruling will be disturbed only for clear abuse
of that discretion.’ [Citation.] In addition, ‘[w]e accept the trial
court’s credibility determinations and findings on questions of
historical fact if supported by substantial evidence.’ ” (People v.
Verdugo (2010) 50 Cal.4th 263, 308.)
“ ‘Numerous cases hold that a motion for a new trial should
be granted when the newly discovered evidence contradicts the
strongest evidence introduced against the defendant.’ ” (People v.
Rafael B.D.R. (2024) 101 Cal.App.5th 385, 396; People v. Hall
(2010) 187 Cal.App.4th 282, 298.) On the other hand, the
“general rule” is “that a new trial should not be granted ‘ “where
the only value of the newly discovered testimony is as impeaching
evidence” or to contradict a witness of the opposing party.’ ”
Rafael B.D.R., at p. 397, quoting Hall, at p. 299.)
3. Analysis
The trial court did not abuse its discretion in declining to
grant a new trial based on evidence that JD1 filed a civil action
for damages against Weinstein after trial. Weinstein could not
have attacked JD1’s credibility with this evidence because it did
not exist at the time of trial. Moreover, even if this evidence
could have been placed before the jury, such impeachment

59
evidence does not merit a new trial, as the authorities cited above
indicate.
In any event, this posttrial evidence does not show that any
of JD1’s trial testimony was false, as the defense did not ask her
if she had a financial motivation or interest in the outcome of the
criminal trial, as already discussed. JD1’s grand jury testimony
that she had not filed a lawsuit against Weinstein and “will never
do that” is irrelevant in challenging his convictions because it
was not introduced at trial. Finally, the posttrial civil action does
not show that JD1 falsely accused Weinstein of the crimes, and it
was not unreasonable for the trial court to reject this speculative
claim.10

E. The Trial Court Did Not Abuse its Discretion in
Allowing Vicedomini’s Conditional Examination to
be Conducted by Video Conference, and Weinstein
Forfeited His Contention on Appeal That the
Admission of the Video at Trial Violated His
Constitutional Rights
Weinstein contends, “The trial court erred when it granted
the prosecution’s motion for a conditional examination based on
dubious ‘health’ concerns raised by Vicedomini at the eleventh
hour.” He further contends that admission of the conditional
examination at trial violated his federal and state constitutional
rights to confront a witness.

10 We deny Weinstein’s request for judicial notice of

motions filed in the civil action.

60
1. Relevant proceedings
Because Vicedomini was a material witness who lived in
Italy, the parties agreed to conduct a conditional examination of
him in March 2022, when he planned to be in Los Angeles for the
Italia Film Festival. However, on February 10, 2022, Vicedomini
notified the prosecution that he would not be able to attend the
film festival in person due to work commitments in Italy, and he
did not know when he would be in Los Angeles again. The
defense declined to stipulate to a conditional examination
conducted by video conference.
On September 12, 2022, which was approximately one and
a half months before trial began in this case, the prosecution filed
a motion for a conditional examination of Vicedomini by video
conference. The prosecution attached to the motion email
correspondence with Vicedomini about scheduling the
examination. The correspondence indicates that between
February and July 2022, the prosecutor attempted to secure
Vicedomini’s attendance at an in person conditional examination
in Los Angeles, but Vicedomini stated he could not travel there
due to his work commitments. In August 2022, Vicedomini
informed the prosecutor that in addition to the work
commitments, he could not travel to Los Angeles because he was
going to have surgery on his head in October 2022. The
prosecutor requested that Vicedomini provide documentation
from a medical provider regarding the nature of the surgery and
his inability to travel. Vicedomini responded that he had
scheduled an appointment with his doctor “to make a final check-
up on [his] health,” and he would provide the requested
documentation thereafter.

61
On September 10, 2022, Vicedomini sent an email to the
prosecutor, stating, “Following up on my previous
correspondence, I confirm that I am unable to travel to America
anytime soon because in addition to the already announced
surgery on my head, there is a new and more worrisome problem
with my legs for which the medical specialist categorically
advises against long trips at high altitude since he cannot
possibly manage any negative consequences on my health.”
Vicedomini attached to the email a report from his doctor with
attached imaging, dated September 8, 2022, stating in pertinent
part: “The [ultrasound] study of the shallow and deep venous
axis of the lower limbs shows signs of thrombophlebitis in the
internal geminal veins of the left leg with thickened and poorly
compressible walls. Signs of insufficiency of the left greater
saphenous vein with presence of a few ectatic perforating
branches of the thigh and leg (4 mm max).” The doctor
prescribed a course of treatment for the condition, including
medication, and noted, “Adequate hydration is recommended and
prolonged flights are not recommended.”
At the hearing on the motion, the defense raised no
objection to an in person conditional examination but objected to
it being conducted by videoconference. Defense counsel asserted
Vicedomini was being “recalcitrant” about attending the
examination in person and did not “me[e]t the medical threshold”
for a video examination. Counsel further argued that a video
examination would infringe on Weinstein’s rights to confront and
cross-examine Vicedomini during the conditional examination.
After considering the parties’ arguments, the court denied
the prosecution’s motion for a video conditional examination of
another prospective trial witness who lived in Italy and stated

62
she could not travel to Los Angeles for medical reasons but did
not provide supporting documentation from a medical provider.
The court granted the motion for a video conditional examination
of Vicedomini, stating:
“With respect to Mr. Vicedomini I think it’s a bit different.
I think that there is evidence of a medical condition that makes
air travel, especially prolonged air travel, dangerous. And I’m
going to allow it as to him and I’m going to allow it because
initially the defense was willing to do a conditional examination
for Mr. Vicedomini. Initially there was an assertion he was an
important witness for both sides. I know it’s changed. So there
was I thought an agreement that he could be subjected to a
conditional examination when he was going to be in Los Angeles.
“That didn’t happen and now it looks like it’s not going to
happen because, in part at least, of his medical condition. So I’m
going to allow it. I’m going to allow it. [Sic.] Whether it gets
used at trial is a different issue but I’m going to allow the
examination to take place and I expect the People to set up
whatever technology needs to be set up to effect that.”
At the outset of the conditional examination, the court
stated for the record that it was being conducted via “the Zoom
platform because Mr. Vicedomini is in Italy.” The court further
explained, “[T]he proceedings are being captured by a
videographer for potential use in the future for the jury should
that become necessary.” Before beginning the direct
examination, the prosecutor asked the court:
“[The prosecutor]: Your Honor, before I begin, may I just
ask that a record be made that we can see his [Vicedomini’s] face
in court and that he takes up the large screen in court and may I

63
ask that the defendant’s camera be put on so that for purposes of
the 6th Amendment the witness can see him.
“The court: Yes.
“[The prosecutor]: Can we get Mr. Weinstein spotlighted in
that camera?
“The court: Okay. All right. Mr. Weinstein is now visible
on the camera.”
Defense counsel did not raise an objection to this set-up or
claim that Vicedomini and Weinstein could not see and hear one
another while Vicedomini testified.
After establishing that Vicedomini was participating in the
examination from Rome, Italy, the prosecutor asked him: “Now,
even for witnesses who live internationally we are accustomed to
them coming here to testify in person. Is there a particular
reason why you’re not able to travel?” Defense counsel objected
based on relevance, and the court sustained the objection.
Vicedomini did not testify on this subject.
After the testimony concluded, the parties and the court
discussed matters relevant to presentation of the conditional
examination at trial:
“[The prosecutor]: I don’t know this needs to be on the
record, but I just have a question about how we’re going to
present that conditional exam testimony. Are we -- should we
redact out the objections?
“The court: I think it should be redacted out. If it was
sustained and stuff was stricken I think it should be redacted
out.
“[The prosecutor]: Okay.
“The court: If you have the ability to do that. I don’t know
if you do.

64
“[The prosecutor]: I don’t know what format the video is
going to come in but I’ll talk to her.
“The court: Unless you have an objection to that, [defense
counsel].
“[Defense counsel]: No. No. I don’t. That’s the normal
process.”
The defense did not raise an objection to the prosecution’s
use of the conditional examination at trial, either at the
examination itself or when the prosecution introduced it at trial.
2. Applicable law
Under Penal Code section 1336, subdivision (a), a party
may apply for an order permitting a conditional examination of a
material witness when the witness “is about to leave the state, or
is so sick or infirm as to afford reasonable grounds for
apprehension that he or she will be unable to attend the trial, or
is a person 65 years of age or older, or a dependent adult.”
Although Vicedomini was under 65 years of age, and had not yet
raised a medical issue, the defense agreed to his in person
conditional examination, and so informed the court. The issue
before us is whether the trial court erred in allowing the
conditional examination to proceed by videoconference.
Penal Code section 1340, subdivision (a) provides, “The
defendant has the right to be present in person and with counsel
at the examination, and if the defendant is in custody, the officer
in whose custody he or she is, must be informed of the time and
place of the examination, and must take the defendant thereto,
and keep him or her in the presence and hearing of the witness
during the examination.” However, “If the court determines that
the witness to be examined is so sick or infirm as to be unable to
participate in the examination in person, the court may allow the

65
examination to be conducted by a contemporaneous, two-way
video conference system, in which the parties and the witness can
see and hear each other via electronic communication.” (Id.,
subd. (b).)
We review a trial court’s order granting a conditional
examination for abuse of discretion. (People v. Jurado (2006) 38
Cal.4th 72, 114; People v. Mays (2009) 174 Cal.App.4th 156, 172.)
Whether conditional examination testimony may be
admitted at trial is a separate question. The Sixth Amendment’s
“Confrontation Clause guarantees the defendant a face-to-face
meeting with witnesses appearing before the trier of fact. (Coy v.
Iowa (1988) 487 U.S. 1012, 1016.) Notwithstanding that,
admission of out-of-court testimonial statements does not violate
the Sixth Amendment if two requirements are met:
“unavailability and a prior opportunity for cross-examination.”
(Crawford v. Washington (2004) 541 U.S. 36, 68.)
Likewise, under state law, a video recording of a
conditional examination “may be shown by either party at the
trial if the court finds that the witness is unavailable as a witness
within the meaning of [s]ection 240 of the Evidence Code.” (Pen.
Code, § 1345.) One of the grounds for finding a witness
unavailable listed in section 240 is that the witness is “unable to
attend or to testify at the hearing because of then-existing
physical or mental illness or infirmity.” (Evid. Code, § 240, subd.
(a)(3).) For a finding of such unavailability, “ ‘the illness or
infirmity must be of comparative severity; it must exist to such a
degree as to render the witness’s attendance, or his testifying,
relatively impossible and not merely inconvenient.’ ” (People v.
Winslow (2004) 123 Cal.App.4th 464, 471, italics omitted.) “[T]he
phrase ‘relatively impossible’ to testify does not mean it is

66
impossible to elicit the testimony due to insanity or coma or other
total inability to communicate. Rather, the phrase includes the
relative impossibility of eliciting testimony without risk of
inflicting substantial trauma on the witness.” (Id. at pp. 471-
472.)
Under constitutional and state law requirements, “[T]he
prosecution bears the burden of showing that the witness is
unavailable and, additionally, that it made a ‘good-faith effort’
[citation] or, equivalently, exercised reasonable or due diligence
to obtain the witness’s presence at trial.” (People v. Sanchez
(2016) 63 Cal.4th 411, 440.)
3. Analysis
The trial court did not abuse its discretion in allowing the
conditional examination to proceed by videoconference.
Vicedomini provided a report from his doctor with imaging
attached, showing he had a medical condition (leg vein issues,
including thrombophlebitis) for which he was undergoing
treatment. Due to this medical condition, the doctor
recommended that he refrain from taking long flights. This
evidence supports the trial court’s finding that prolonged air
travel—such as a flight from Italy to Los Angeles and a return
flight from Los Angeles to Italy—would be dangerous for
Vicedomini, and therefore he was unable to participate in the
conditional examination in person due to his infirmity.
Weinstein’s opinion that “Vicedomoni’s claims of health issues
were pretextual” and “dubious” is not sufficient cause for us to
disturb the court’s finding, which is supported by substantial
evidence.
Weinstein contends the court erred in admitting the
conditional examination testimony at trial, arguing the

67
“prosecution failed to show a ‘good faith’ effort to obtain
Vicedomini’s testimony as is required for an unavailability
finding.” This contention is forfeited because Weinstein never
objected or asked the court to make a ruling on this issue. (See
People v. Williams (2008) 43 Cal.4th 584, 620, 625 [the
defendant’s claim that “the prosecution failed to establish that it
had employed reasonable diligence to procure [a witness]’s
presence at trial within the meaning of Evidence Code section
240, subdivision (a)(5)” was “not raised in the trial court and is
forfeited”].)
When the court ruled that the conditional examination
could proceed by videoconference,” the court stated, “Whether it
gets used at trial is a different issue but I’m going to allow the
examination to take place . . . .” Thus, the court made clear that
it was not deciding at that juncture whether the requirements for
admission of the conditional examination testimony at trial had
been met. Similarly, at the outset of the conditional examination,
the court stated for the record, “[T]he proceedings are being
captured by a videographer for potential use in the future should
that become necessary,” again making clear that it had not ruled
on Vicedomini’s unavailability for trial.
Defense counsel’s conduct at the conditional examination
indicated that the defense did not object to the admission of the
testimony at trial. For example, when the prosecutor commented
that Vicedomini was not testifying in person and asked him, “Is
there a particular reason why you’re not able to travel”—
attempting to elicit information that would be critical to a finding
of unavailability for trial—defense counsel objected based on
relevance, and the court sustained the objection. At the
conclusion of the conditional examination, when the parties and

68
the court discussed the format by which the testimony would be
presented at trial, defense counsel stated the defense had no
objection to the prosecutor’s proposal and gave no indication that
the defense objected to admission of the testimony at trial.
Further, the defense never asked the court to make a ruling
on Vicedomini’s unavailability for trial and did not object when
the prosecutor offered the testimony during trial.
Where the defense did not ask the trial court to make a
ruling on Vicedomini’s unavailability for trial or object to
admission of the testimony on this ground, engaged in conduct
indicating acquiescence, and prevented the prosecution from
eliciting testimony regarding Vicedomini’s unavailability,
Weinstein will not now be heard to complain.
Weinstein also contends the admission of the conditional
examination testimony at trial “violate[d his] Sixth Amendment
guarantee since [he] was never afforded a face-to-face
confrontation with Vicedomini” because the examination was
conducted by videoconference rather than in person. He cites
case law indicating that an objection on this ground in opposition
to an application for a conditional examination may preserve this
contention on appeal. (See People v. McCoy (2013) 215
Cal.App.4th 1510, 1525 (McCoy).) Assuming the claim was
preserved because defense counsel objected on this ground at the
hearing on the motion for Vicedomini’s conditional examination,
the claim nonetheless lacks merit. Weinstein cites no case law
suggesting that admission of conditional examination testimony
violates the confrontation clause where the examination was
conducted by videoconference technology allowing the witness
and the defendant to see and hear each other while the witness
testified, rather than in person. The cases he cites are

69
inapposite. (See, e.g., Coy v. Iowa, supra, 487 U.S. at pp. 1014-
1015, 1020, 1022 [the defendant’s confrontation right was
violated because a screen was placed between the defendant and
two complaining witnesses so they could not see him during their
testimony].)
During the conditional examination, the prosecutor and the
court stated for the record that Vicedomini and Weinstein had
their cameras turned on so that they would be visible to one
another. Defense counsel did not raise an objection to the set-up
or claim that Vicedomini and Weinstein could not see and hear
one another while Vicedomini testified. Thus, any claim
regarding the video and camera set-up is forfeited. (McCoy,
supra, 215 Cal.App.4th at pp. 1526, 1527 [the defendant’s failure
to object at the conditional examination that “the video
conference system did not allow for a face-to-face confrontation”
or violated Penal Code section 1340, subdivision (b), at a time
when “the magistrate could have ruled on whether to turn the
camera during [the witness]’s testimony to allow her to see
defendant,” forfeited the contention on appeal].) In any event,
there is nothing in the record indicating the set-up violated
constitutional standards or Penal Code section 1340, subdivision
(b).
Weinstein has not demonstrated that his right to a face-to-
face confrontation was violated.

F. The Trial Court Did Not Abuse its Discretion in
Admitting Testimony From De Lara
As discussed in the background section of this opinion, De
Lara was the Mr. C Hotel guest who occupied the room directly
below JD1’s at the time of the charged offenses involving JD1.
Weinstein contends admission of De Lara’s testimony was error

70
and denied him a fair trial because it was irrelevant and led to
“untrustworthy, speculative inferences” that “the prosecution
demanded that the jury make.”
“ ‘The trial court is vested with wide discretion in
determining the relevance of evidence,’ although a court ‘has no
discretion to admit irrelevant evidence.’ ” (Alexander, supra, 49
Cal.4th at p. 904, quoting Babbitt, supra, 45 Cal.3d at p. 681.)
Evidence that “leads only to speculative inferences” is irrelevant.
(Morrison, supra, 34 Cal.4th at p. 711.) Admissibility requires
that, “Inferences drawn from the evidence must be logical and
reasonable, not merely speculative.” (People v. Bryant, Smith
and Wheeler (2014) 60 Cal.4th 335, 405.)
We review a trial court’s decision excluding evidence for
abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155,
201.) “To establish an abuse of discretion, defendants must
demonstrate that the trial court’s decision was so erroneous that
it ‘falls outside the bounds of reason.’ A merely debatable ruling
cannot be deemed an abuse of discretion. [Citations.] An abuse
of discretion will be ‘established by “a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of
justice.” ’ ” (People v. Bryant, Smith and Wheeler, supra, 60
Cal.4th at pp. 390, 405, 409, 423.)
1. Relevant proceedings and testimony
At a hearing regarding De Lara’s prospective testimony,
defense counsel urged the court to exclude it, asserting it would
be irrelevant. Counsel told the court that when De Lara gave a
statement, she said she heard a noise “ ‘down the hall, not
upstairs,’ ” and she was “not specific what day she actually heard
it.” The prosecutor represented that De Lara said in her

71
statement that she heard an argument “either in the hallway or
above her” at some, unspecified point during her stay. The
prosecutor added, “And the court will recall that the allegations
from [JD1] is [sic] that Mr. Weinstein showed up at her door and
was making noise in the hallway which would have been above
and in the hallway which is what Ms. De Lara essentially
describes.” Defense counsel argued there were indications in De
Lara’s statement that she heard the noise at the beginning of her
stay (Feb. 15, 2013) rather than on the date JD1 said the offenses
occurred (Feb. 18, 2013), and there was nothing indicating the
noise was connected to Weinstein.
The court stated, “[P]art of the problem is it’s speculation
as to what her ultimate testimony is going to be. There seems to
be a difference of opinion as to what her statement is and if the
People establish that it happened at the relevant point in time or
likely happened at the relevant point in time I think it’s
admissible.” The court further stated, “If it turns out that the
People’s offer of proof is incorrect, so be it, but I am entitled to
accept their offer of proof.”
At trial, De Lara testified on direct examination that she
stayed at the Mr. C Hotel, in room 701, from February 15-19,
2013, on a business trip. At some point during her stay, she was
“woken up in the middle of the night by what sounded like an
argument” between at least two people, occurring “either above
[her] or on the same floor as [her].” She recalled it being “a
verbal argument,” in that she “heard elevated voices,” but she
could not recall whether it involved men, women, or both, and she
did not hear what they were saying. She looked out into the
hallway to try to determine where the voices were coming from,
but she did not locate the source.

72
During cross-examination, after looking at a transcript of a
statement she gave to the prosecutor in October 2020 (around
two years before trial), De Lara confirmed that when the
prosecutor asked her where she believed the noises were coming
from, she responded, “ ‘I don’t know. I remember like hearing
yelling. Whether it was coming from down -- it sounded like
more it was coming from down the hall, from what I remember,
versus upstairs.’ ” She also confirmed that she told the
prosecutor during her statement that she did not know which day
during her stay she heard the noises. She testified on cross-
examination, “For some reason though it feels to me like it was
on the earlier side of my stay because I don’t think my third
colleague had arrived yet. I think it was just the two of us that
had arrived. But I can’t say for certain which day it happened.”
In response to a question by defense counsel, she affirmed that
the “earlier part of [her] stay would have been the 15th or 16th
when she first got there [to the Mr. C Hotel].” On redirect
examination, she testified that when she gave her statement to
the prosecutor in October 2020, she was not certain that the
noises were coming from down the hall as opposed to upstairs.
During argument, when the prosecutor was discussing
JD1’s testimony that Weinstein banged on her hotel room door
and yelled for her to open it, the prosecutor stated: “And if you
recall Alexandra De Lara was also a guest of Mr. C’s. And
Alexandra De Lara told us that she heard a noise. She heard
yelling. She thought it was coming from either the hallway or
from upstairs; so she actually went out into the hallway to see if
she could see something.” Defense counsel did not object to this
argument.

73
During Weinstein’s closing argument, defense counsel
stated, “And what of the witness that the prosecution called to
suggest that she heard the assault as it was happening, this
person by the name of De Lara -- I believe it’s Alexandra De
Lara? Supposedly, the prosecution called her to describe hearing
the actual assault, as it was happening. That is not -- that’s not
just troubling, that’s insulting. That’s insulting. And for them to
bring it up in closing argument, and double-down on it, is even
more insulting.” After providing the defense view as to the
specifics of her testimony, defense counsel stated, “They [the
prosecution] know full well that that noise complaint was a red
herring, has nothing to do with this case whatsoever, can’t say it
was on the same day, and it was down the hall on the 7th floor.”
2. Analysis
As addressed previously, a court has broad discretion to
admit evidence “having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the
determination of the action.” (§ 210; Alexander, supra, 49 Cal.4th
at p. 904.) Based on its offer of proof, the prosecution offered De
Lara’s testimony as tending to show she heard elevated voices at
the door of JD1’s hotel room (directly above De Lara’s room) on
the night in question. As the court indicated, it was impossible to
know what De Lara’s ultimate testimony would be. But given De
Lara’s previous statement about the incident, her proximity to
JD1’s room, and the overlap in their stays at the Mr. C Hotel, the
court did not err in overruling the relevance objection and
allowing her to testify.
De Lara testified consistently with the prosecution’s offer of
proof. She stated that during her stay, she was awakened in the
middle of the night by an argument (elevated voices) emanating

74
either from above or down the hall from her room. She looked out
into the hallway but did not locate the source of the noise. She
was unsure which night she heard the argument, and could not
rule out that it had occurred on the night of February 17-18,
2013. On cross-examination, the defense elicited testimony
indicating the argument may have occurred before the night in
question (possibly February 15 or 16), and it may have taken
place down the hall from her room. The defense did not ask the
court to strike the testimony or object to the prosecutor’s
argument about it. Instead, defense counsel argued to the jury
that the prosecution’s reliance on this testimony was “insulting”
because it was irrelevant, having “nothing to do with this case
whatsoever.”
The trial court did not exceed the bounds of reason or
exercise its discretion in an arbitrary, capricious, or absurd
manner when it allowed De Lara to testify. Weinstein’s
challenge to this testimony goes to its weight, not its
admissibility. It was for the jury to determine the credibility of
the testimony and the weight to assign it.

G. The Trial Court Did Not Abuse Its Discretion in
Admitting Evidence of Weinstein’s Uncharged Sexual
Offenses.
Under section 1108, subdivision (a), “In a criminal action in
which the defendant is accused of a sexual offense, evidence of
the defendant’s commission of another sexual offense or offenses
is not made inadmissible by Section 1101, if the evidence is not
inadmissible pursuant to Section 352.” Under section 352, “The
court in its discretion may exclude evidence if its probative value
is substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create

75
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.”
Weinstein contends the trial court’s admission of evidence
of uncharged sexual offenses “stripped” him of the presumption of
innocence, denied him a fair trial, and constituted an abuse of
discretion.
1. Relevant proceedings and testimony
Prior to trial, the prosecution filed a motion under sections
1108 and 1101, subdivision (b), seeking to introduce “evidence of
[Weinstein]’s misconduct involving 16 women: the sexual assaults
of 13 women, the attempted sexual assault of one additional
woman and the mistreatment of two more women.” The
prosecution stated that the evidence could be categorized into
four scenarios that Weinstein employed when he sexually
assaulted his victims or engaged in sexual misconduct. As stated
in the respondent’s brief, these four scenarios are: “(1)
[Weinstein] unexpectedly appeared at the victim’s apartment or
hotel room and sexually assaulted, or attempted to sexually
assault, the victim when she allowed him entry; (2) [Weinstein]
trapped the victim in a bathroom and sexually assaulted her; (3)
[Weinstein] trapped the victim in a bedroom and sexually
assaulted her; and (4) [Weinstein] engaged in sexually aggressive
behavior toward employees.”
Weinstein filed an opposition, arguing, among other things,
that by bringing “disparate complaining witnesses together in
one case, the government’s various complaining witnesses
constitute the type of propensity evidence contemplated by
Evidence Code section 1108. Thus, additional 1108 witnesses are
wholly unnecessary.” He further argued that at minimum, the
prosecution’s proposed evidence “must be limited.”

76
At the hearing on the motion, after hearing argument from
the parties, the court stated:
“I’m taking it as a good faith request [by the prosecution]
for those witnesses, but I’m not going to allow all of them. I think
there are too many and I think that the number of them is going
to confuse the issues that the jury is going to be here to decide
and that is the ultimate question.
“I think a general appropriate cutoff for relevance and not
being too remote is, as I indicated, things that occurred in the two
thousands.
“The only exception to that I think that has some merit has
to do with Kelly S. which has an event that occurs before 2000
but is relevant also to an event that occurred after 2000.”
With respect to the four “scenarios” presented by the
prosecution, as enumerated above, the court ruled that as to the
first scenario, it would allow testimony from one witness,
Natassia M. As to the second scenario, the court allowed
testimony from Kelly S. and two other witnesses to be chosen by
the prosecution (out of seven witnesses who fell within the
parameters of the second scenario and the court’s ruling on
remoteness). Regarding scenario three, the court allowed
testimony from Kelly S. and Ms. I. and documentary evidence
regarding Miriam H. (Weinstein’s New York conviction). The
court deferred a ruling on the witnesses related to the fourth
scenario.
As to the permitted witnesses, the court explained: “They
are relevant because they are alleged to have occurred and under
[section] 1108 they are made relevant. But I have to do a
[section] 352 analysis. My 352 analysis is not too remote, having
some similarity to the scenarios involved in the charged offenses,

77
which I think all of these do, and not so many of them that we
lose sight of the ultimate issue the jury is going to be called upon
to try.”
The court further stated: “I believe right now based upon
the offer of proof from the People that in addition to being
admissible under [section] 1108 the ones I designated are
admissible under [section] 1101(b) if in fact lack of consent
becomes an issue, which I know the People have to prove in their
case in chief. I believe these incidents, if they come out the way
the offer of proof is, would be relevant to show lack of consent and
knowledge of lack of consent. I think they are relevant on a
common plan theory. I don’t think they are relevant on a modus
operandi theory. So that’s my analysis of it.”
Although the court ruled that the prosecution could call a
total of six witnesses to testify about uncharged sexual conduct,
the prosecution called only four.
a. Ashley M.
In 2003, Ashley M. was cast as a dancer in Miramax’s
“Dirty Dancing: Havana Nights.” She traveled to Puerto Rico
where the movie was being filmed.
She met Weinstein for the first time on the movie set. One
day during filming, he walked up to her and suggested they go
outside and talk. After they sat and began talking, she felt
scared and nervous because she did not know what was going to
happen. He told her she was pretty. Then, he told her he wanted
to do “a naked massage” with her. She declined, explaining that
she was engaged. He asked who her fiancé was, and when she
told him, he said he knew him. Weinstein told her not to worry
about the massage because it would just be a friendly thing. He

78
explained he had done it with Gwyneth Paltrow, and it advanced
her career, so Ashley should think about doing it.
She became worried and tried to think of another excuse to
get out of the situation. Again she declined the massage, telling
him she was supposed to be on set. He responded aggressively,
“ ‘I’m the one in charge here. They all answer to me.’ ” It scared
her. She was relieved when a meal break was called on set. But
Weinstein told her he would be waiting to take her to a hotel
when the break was over.
Ashley called her mother and her fiancé because she was
afraid and did not know what to do. They both advised her to
speak with the producer or choreographer. She did, but neither
helped. She was “[f]reaked out.”
The break ended, and Ashley went back to the set.
Weinstein and his assistant Bonnie were waiting near a
limousine. Ashley felt better knowing she would not be alone
with him. He instructed her aggressively and repetitively,
“ ‘Walk to Bonnie and get in the car. Walk to Bonnie and get in
the car.’ ” Ashley looked to Bonnie for help, and Bonnie said,
“ ‘Don’t worry. I’ll be with you the entire time. He just wants to
talk about future projects.’ ” This made Ashley feel more at ease,
and she got in the car. After a short drive they arrived at a hotel.
Weinstein went to the front desk and spoke to a member of
the staff. Ashley felt worried because she did not know what was
going on, but having Bonnie there made her feel better. A few
minutes later, they walked to an elevator, went upstairs, and
walked down a long hallway. When they stopped at the door to a
room, Ashley felt more worried. Weinstein entered the room and
Ashley followed. Bonnie shut the door behind them and
remained in the hallway.

79
As soon as they entered the room, Weinstein became
physically aggressive with Ashley. She did not know what to do
because he was so much bigger than her. He shoved her onto the
bed, removed her shirt and bra, and took off his shirt and pants.
He climbed on top of her, straddling her body. She was crying
hysterically, telling him to stop, and trying to move. He fondled
her breasts and began masturbating. He told her, “ ‘It’s okay.
It’s not like we’re having sex.’ ” He ejaculated on her breasts and
face.
Ashley cleaned herself and got dressed quickly. She just
wanted to leave. She had been afraid Weinstein was going to
rape her, and she felt thankful he had not. After he got dressed,
they left the room. As Ashley walked out, she saw Bonnie
standing in front of the door holding a clipboard. Ashley was
crying hysterically. They walked back to the limousine and drove
back to the set.
As soon as she got back, Ashley called her mother and
fiancé and told them Weinstein masturbated in front of her,
without disclosing the other details. She was still hysterical. She
did not tell anyone on the set what happened because she felt like
they were all worried about their careers.
Ashley did not wind up being in the movie because her
scene was filmed while she was at the hotel. She traveled home
the next day. At some point later, she received a voicemail
message from Weinstein or Bonnie, offering her a part in a movie.
She did not take the part and never worked on another one of his
films.
b. Kelly S.
In 1991, Kelly S., a 24-year-old actress, met Weinstein at a
party during the Toronto International Film Festival. They had

80
a nice conversation about books, films, and her career. When the
party ended in the late afternoon, he asked her to go get a drink
and she agreed. They walked to a nearby patio, had a few glasses
of wine, and talked about films for about an hour. He mentioned
an Irish film and told her there was an acting role in it that
would suit her. He invited her to his hotel to see it. She was
ambitious and thought it was a good opportunity, and she wanted
to see the script.
They walked to his hotel and went up to his room. Kelly
thought they would grab the script and go back downstairs to
read it. Weinstein went into the bathroom, and she sat on the
corner of the bed. When he came out, he was wearing an
unbuttoned shirt and was otherwise naked. He was holding a hot
facecloth. She was shocked. He walked toward her quickly,
aggressively, and purposefully. He told her, “ ‘You’re gonna love
this,’ ” and “ ‘It’s okay. It won’t take long.’ ”
He pulled off her skirt. She was not wearing underwear.
He placed the hot cloth on her vagina and said, “ ‘My wife loves
this. You’ll love it.’ ” She responded, “ ‘No. Stop it. What are
you doing?’ ” He began licking her vagina. She froze and felt
“[n]auseous, scared, terrified.” He had one hand on her chest,
and his arms were across her legs. Then, he inserted his fingers
into her vagina.
She became hysterical and said, “ ‘Please let me out of here.
Stop. Stop this. I have to go.” He responded, “ ‘I’m going to fuck
you. It won’t take long.’ ” He put his penis inside her vagina. He
was on top of her. She panicked and was able to get out from
under him. She grabbed her things and asked him why he did
this to her. He responded, “ ‘Everything is okay.’ ” She left and
went to a friend’s house. She told her friend what happened.

81
Weinstein called Kelly at her home several times. She
asked him why he raped her, and he said that was not what
happened. He said he really liked her and would leave his wife
for her. He also told her that she should go to New York and
meet with a woman who did casting for his company.
Kelly did go to New York, and she brought a friend so she
would not be alone. Weinstein paid for her trip. She and her
friend were supposed to meet him for dinner but he did not show
up. The next morning, he called her hotel room. He told her to
“get rid of” her friend and said he was coming up to her room.
His tone was aggressive and demanding, and she was scared.
When she said no, he became very angry and started yelling.
Every time she hung up the phone he called back. The employees
working at the front desk did not know what to do because he
was making a scene. Kelly went out into the hallway and heard
him screaming in the lobby and out on the street. Eventually, he
left. She did not go to an audition or meet with Weinstein in New
York. She had no further phone calls with him. She stopped
pursuing a career as an actress because she did not want “to go
through anything like that again.”
In 2008, Kelly ran into Weinstein in the lobby of the Four
Seasons Hotel in Toronto. He walked by her, and she blurted out
his name because she was shocked to see him. He went over to
her, said hello, and left. Her “blood kind of stopped,” and she
became angry. Later, when she was having wine with a friend,
Weinstein’s assistant, Victoria, approached her and said he
wanted to see her. She agreed because she wanted to confront
him about what happened in 1991. Victoria took her upstairs to
Weinstein’s suite. Kelly and Weinstein made small talk and then

82
Kelly “blurted out[,] ‘How does it feel to be in front of the one
woman that said no to you?’ ”
Weinstein asked Victoria to wait in the hallway. He moved
Kelly away from the door because she was being loud, saying all
the things she had wanted to say to him for nearly 20 years. His
arm was across her shoulder, and he was speaking in a soft tone
as he moved her. Next thing she knew, they were in a bathroom.
He closed the door and stood in front of it. She felt stupid, angry,
and afraid. His demeanor changed, and he began propositioning
her for sex. She said no and told him she had to leave.
Weinstein pulled her shirt, attempting to see her breasts,
and he pulled down her skirt. He asked her to show him her
breasts and vagina. He pulled out his penis and began
masturbating. He grabbed her breast. She told him to stop and
said she had to leave. He continued telling her to show him her
breasts. She did not try to leave because there was no way she
could get around him because he was much bigger than her.
After five to 10 minutes, he ejaculated on the bathmat. He fixed
his pants and opened the bathroom door. They walked out. Kelly
opened the door to the suite. Victoria was standing outside, and
Weinstein asked her to invite Kelly to some parties and do
something for her son. Victoria took Kelly back downstairs.
Eventually, Kelly told a few friends about what happened
with Weinstein. She did not report the 1991 or 2008 incident to
the police. She was afraid, embarrassed, and ashamed, and she
felt stupid.
c. Ambra B.
In March 2015, Ambra B. was working as a model in New
York. She was from Italy and did not speak much English then.
On March 26, 2015, she went to a party with her agent and some

83
other models. She noticed Weinstein looking at her, but she did
not know who he was. He walked over and asked her name and
the name of her agency. Her agent spoke to him for a few
minutes. He told Ambra she looked like the actress Mila Kunis.
They exchanged business cards, and he left.
The next day, Ambra’s agent told her Weinstein wanted to
see her for a casting opportunity at the Tribeca Film Center. She
went, and Weinstein said he was happy to see her. Again, he told
her she looked like Mila Kunis. Ambra showed him her digital
portfolio on her iPad, which included photos in bikinis and
lingerie. He asked if her breasts were real. She hesitated before
answering because it was a strange question that she was not
typically asked. Then she said yes. Weinstein asked if she was
sure and grabbed her breast over her clothing.
Ambra was shocked. But she did not react until Weinstein
put his hand on her upper thigh and told her to kiss him. She
said no and leaned back. He apologized and moved away from
her. He left the room, and an assistant came in. Ambra did not
feel safe and wanted to leave. She went to the bathroom. She
was shaking.
Ambra left and went to her agency. She was crying and
told one of the agents what happened. She said she wanted to go
to the police, but the agent was against it. Nonetheless he and
his fiancé went to the police station with her. She was scared,
tired, and overwhelmed. She was sent to a different station
where she went to make her report. At the second station,
officers set up a pretext call between her and Weinstein. During
the call, she agreed to go to a show with him the next day.
Before the show, she went to the police station and
obtained an audio recording device. After the show, Weinstein

84
came over to her and said that his driver would take her to the
bar at Tribeca Grand. She remained in contact with the police
and texted a sergeant so they knew where she was going. When
she arrived, she went to a restaurant bar in the lobby and waited.
She felt safe because she saw that police officers she had met
with were there in plain clothes. Weinstein joined her at her
table, and they talked about acting. Suddenly, he said he needed
to go to his hotel room, and he asked her to go with him. When
she asked why, he said he needed to get ready for an event.
Ambra followed him, and they took the elevator to the
second floor. She told him she left her jacket downstairs, which
she had done on purpose because she did not want to go to his
room. He followed her downstairs to get the jacket, and then
they went back up to the second floor. An undercover police
officer followed them and pretended to be a reporter from TMZ.
The officer asked Weinstein questions to stop him from trying to
take Ambra into a hotel room.
Weinstein and Ambra went back down to the lobby, and
Weinstein spoke with someone at the front desk. Then, he led
Ambra outside and to a service entrance. Another man was
there, who might have been with hotel security. They took the
service elevator to the 8th floor penthouse. When they were in
the hallway, Ambra told Weinstein she did not want to go inside
the room. He kept insisting and began screaming at her that he
was famous and everyone knew him, and it would embarrass him
if she did not go in the room. She kept repeating that she wanted
to go. Eventually, he told her to leave and not to contact him
again.
Ambra walked to the elevator, and Weinstein followed her.
They went downstairs, and he insisted she have a drink. The

85
police had told her to go into the bathroom if she felt
uncomfortable, so she did. An officer was waiting inside the
bathroom and told her everything was done. She left and went
home.
d. Natassia M.
Natassia M. first encountered Weinstein in 2002, after she
moved to New York for a modeling campaign. She was at a
restaurant with the person who had hired her for the campaign
and a “famous model.” She testified: “I didn’t know who he
[Weinstein] was but he was sitting on a chair at this restaurant
staring at me, gazing at me for a very long time with his legs
open and hunched over and he would not break his gaze so I
started yelling in the restaurant.” She yelled, “ ‘Who the fuck is
that fat fuck who is sliming me.’ ” The model whispered to her
that it was Weinstein and indicated that she should be quiet.
Natassia yelled, “ ‘I don’t give a fuck who it is. That guy is
sliming me.’ ”
In 2007, Natassia M. booked a large modeling campaign
that required her to travel to 27 countries. During fashion week
in New York, she took photographs with several celebrities. Her
publicists told her to take a photo with Weinstein. When she was
introduced to him, he said, “ ‘Where are you staying? What’s
your room number?’ ” She was flabbergasted and did not know
how to respond. She told him the name of her hotel, they took a
photo, and the interaction ended.
Natassia next saw Weinstein in London in 2008. She was
at a BAFTA Awards afterparty, when she ran into a glass wall.
Her publicists made her an ice pack and told her to take some
photos with Weinstein while she was holding the ice pack so they
could create a story about it. So, she did, and she also took

86
photos with other celebrities. After the party, she went back to
her hotel and went to bed.
She woke up to Weinstein banging on her hotel room door,
loudly yelling her name, and loudly saying his own name. She
was embarrassed and concerned that her publicists would hear
him. She opened the door and noticed that his shirt and pants
were rumpled and he did not look neat. He stormed into the
room and said, “ ‘You know no one gets to be an A-lister unless it
goes through me.’ ” Natassia was very scared of Weinstein
because he was “the most powerful person in Hollywood,” who
“could make you or break you.” She did not know what to do in
this situation, so she “completely froze.” She did not know how
he found her room.
She backed away from him and sat on the bed. He took off
his pants, pushed her down on the bed, and climbed on top of her.
She said, “ ‘I don’t do the casting couch thing.’ ” She turned her
head away from him and looked into the blanket on the bed. He
inserted his penis into her vagina. She played dead and did not
respond at all. He was much bigger than her, he was
intimidating, and she knew he had the power to ruin her career if
she tried to fight him. He climbed off her, stood next to the bed,
masturbated, and ejaculated into his hand. He washed his hands
in the bathroom, said something about a movie, and then left.
The following day there was a script on the bedside table for the
movie Weinstein had mentioned to her.
She did not call the police because she did not like to share
private things about herself. She did tell her best friend and a
director, however. She had no further contact with Weinstein in
London.

87
Natassia went to Los Angeles because she wanted to get a
part in the movie Weinstein had mentioned. She took singing
and dancing lessons to prepare for the part because it was a
musical. After meeting with the director, she had a dance
audition. To her surprise, Weinstein was at the audition. She
was horrified and could not concentrate. She did not see him
again on that trip.
She still wanted the part in the movie, so she continued her
vocal training. She recorded her voice and sent an email to
Weinstein and his staff telling them that she was going to send
them a DVD. Weinstein responded, telling her to send the DVD
to his assistant. He also mentioned having a “threesome” with
her, and she told him she was not interested. He then told her to
drop off the DVD with his assistant in the lobby of the Peninsula
Hotel.
When she arrived in the lobby, she tried to give the DVD to
his assistant, but the assistant would not take it, explaining that
Weinstein wanted to speak with her about the movie. She
followed the assistant to a room and they walked in together.
Natassia handed the DVD to Weinstein. He chuckled and tossed
it aside. She looked to his assistant for help getting out of there.
Weinstein moved to a different part of the suite, and Natassia
turned to look at him. When she turned back, the assistant was
gone.
Weinstein called Natassia over to him, and she then
noticed that there was another woman in the room who she
believed was a prostitute. She was furious. They tried to get her
to have a threesome with them. She really wanted the movie
role, so she decided to play along but pretend that she was really

88
innocent and shy. She put on a bathrobe and watched as the
woman performed oral sex on Weinstein.
The next time Natassia saw Weinstein was at an Oscar’s
party in 2011. She was there with her boyfriend. Weinstein
asked to speak to her, and they sat down together. He told her he
thought she was going to contact the tabloids. She said she was
never going to do that because he was powerful and could ruin
her career. He responded, “ ‘It pays to be my friend, Natassia.’ ”
She took this to mean that he had discredited and blacklisted her
in Hollywood, and she would have to pretend to be his friend so
he would “fix any damage” he had done to her career.
Thereafter, Natassia saw Weinstein when she was in Santa
Monica for a film festival. She approached him to try to arrange
a meeting for a producer she had just met. Weinstein invited her
to meet him at the Montage hotel for a drink and told her that his
assistant would be there so she did not have to worry. When
Natassia arrived at the hotel, Weinstein’s assistant approached
her and said Weinstein wanted to meet with her in his suite. She
went to the suite, and he told her to have a glass of champagne.
She decided to confront him about his “problems” and asked
whether he had ever considered speaking to a therapist. He told
her he had spoken to a therapist. Then, he said he was in a
hurry and wanted her to watch him take a shower. She agreed
because she wanted to pretend to be his friend and because she
thought he understood he had a problem.
Natassia also saw Weinstein in New York in 2011. An
actor had invited her to see a theater production, and she invited
her friend Dahlia to attend because Dahlia liked to meet
celebrities. Dahlia wanted to meet Weinstein, so Natassia
arranged for them all to meet at an Italian restaurant. When

89
they arrived at the restaurant, Weinstein told Dahlia that he
wanted to show her his office, which was nearby. The two began
walking and Natassia followed. When they arrived at the office,
Weinstein told the few employees who were there to leave, and
they did. Weinstein, Natassia, and Dahlia chatted inside his
office. He told Natassia that she could not be an actress, but she
should not worry because she could be a “host.”
While Dahlia was smiling and speaking with Weinstein, he
put his hands on her head and pushed it toward his groin area.
Natassia asked him what he was doing to her friend. Dahlia
looked at her and said, “Oh my god,” or something like that.
Weinstein grabbed Natassia’s hand and pulled her into a dark
room. He stood in front of the closed door, grabbed her breast,
and began masturbating. After he ejaculated, he opened the
door, said goodbye, and Natassia and Dahlia left.
2. Applicable law
Ordinarily, evidence of a defendant’s prior bad acts is
inadmissible to prove his propensity to commit the charged
offense, but may be admitted where relevant to prove a fact “such
as motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident, or whether a defendant
in a prosecution for an unlawful sexual act or attempted unlawful
sexual act did not reasonably and in good faith believe that the
victim consented.” (§ 1101, subds. (a)-(b).) As set forth above,
however, section 1108 permits the admission of evidence of prior
sexual offenses to show a defendant’s propensity to commit a
charged sexual offense, so long as the evidence of the uncharged
offenses is not inadmissible under section 352 (i.e., “if its
probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time

90
or (b) create substantial danger of undue prejudice, of confusing
the issues, or of misleading the jury”). (§§ 352, 1108, subd.
(a)(1).)
“The admission of relevant evidence will not offend due
process unless the evidence is so prejudicial as to render the
defendant’s trial fundamentally unfair.” (People v. Falsetta
(1999) 21 Cal.4th 903, 913.) “ ‘ “In applying section 352,
‘prejudicial’ is not synonymous with ‘damaging.’ ” [Citations.]’
[Citation.] “ ‘ “Undue prejudice” refers not to evidence that
proves guilt, but to evidence that prompts an emotional reaction
against the defendant and tends to cause the trier of fact to
decide the case on an improper basis: “The prejudice which
exclusion of evidence under . . . section 352 is designed to avoid is
not the prejudice or damage to a defense that naturally flows
from relevant, highly probative evidence. ‘[A]ll evidence which
tends to prove guilt is prejudicial or damaging to the defendant’s
case. The stronger the evidence, the more it is “prejudicial.” ’ ” ’ ”
(People v. Hollie (2010) 180 Cal.App.4th 1262, 1276-1277.)
In deciding whether to admit evidence of a prior sexual
offense under section 1108, “trial judges must consider such
factors as its nature, relevance, and possible remoteness, the
degree of certainty of its commission and the likelihood of
confusing, misleading, or distracting the jurors from their main
inquiry, its similarity to the charged offense, its likely prejudicial
impact on the jurors, the burden on the defendant in defending
against the uncharged offense, and the availability of less
prejudicial alternatives to its outright admission, such as
admitting some but not all of the defendant’s other sex offenses,
or excluding irrelevant though inflammatory details surrounding
the offense.” (People v. Falsetta, supra, 21 Cal.4th at p. 917.)

91
“Like any ruling under section 352, the trial court’s ruling
admitting evidence under section 1108 is subject to review for
abuse of discretion.” (People v. Story (2009) 45 Cal.4th 1282,
1295.) “A trial court abuses its discretion when its ruling ‘falls
outside the bounds of reason.’ ” (People v. Hollie, supra, 180
Cal.App.4th at p. 1274.)
3. Analysis
Under section 1108, evidence of Weinstein’s uncharged
sexual offenses was relevant to show his propensity to commit
the sexual offenses charged in this case. The only question is
whether the trial court abused its discretion in concluding the
probative value of the evidence was not “substantially
outweighed by the probability that its admission [would] (a)
necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of
misleading the jury.” (§ 352.) The court’s decision to admit the
evidence did not exceed the bounds of reason for the following
reasons.
The court limited the uncharged offenses quantitatively
and temporally. Out of the 16 witnesses originally proposed by
the prosecution, only four testified at trial (two fewer than the
court’s ruling allowed). The court carefully considered the issue
of remoteness, limiting the conduct to that which occurred in the
year 2000 or later (except in one instance where a 1991 incident
informed a later 2008 incident involving the same witness).
None of the uncharged conduct was more graphic or
inflammatory than the charged conduct. And all of the
uncharged conduct was probative as to JD1, given the breadth of
the offenses Weinstein committed against her (sexual penetration
by a foreign object, forcible oral copulation, and forcible rape),

92
and the other conduct he engaged in when he was with her (e.g.,
masturbation, trying to open her robe to access her breasts).
Weinstein’s suggestion that the jury may have punished
him for the uncharged offenses rather than the charged offenses
rings hollow where the jury returned not guilty verdicts as to
three of the four complaining witnesses in this case.
In short, Weinstein has not shown the trial court’s decision
to admit the evidence fell outside the bounds of reason.

H. Weinstein Has Not Established Instructional Error
1. CALCRIM No. 1191A
Weinstein contends the trial court “misinstructed the jury
in connection with its use of section 1108 evidence where the
instruction [CALCRIM No. 1191A] failed to specify the
enumerated 1108 offenses or [the] elements on which the jury
was expected to deliberate.”
a. Relevant proceedings
Weinstein filed written objections to the prosecution’s
proposed jury instructions. As to CALCRIM No. 1191A, he
objected as follows, in full, with no elaboration: “The
Prosecution’s Proposed Instruction 1191A is incomplete and
misstates the law.”
Subsequently, during a conference on jury instructions, the
parties and the trial court discussed this specific instruction. The
prosecutor informed the court that he had modified the standard
instruction to reflect that the uncharged offenses must be proved
beyond a reasonable doubt rather than a preponderance of the
evidence. Defense counsel agreed with that change. Later
during the conference, defense counsel brought up CALCRIM No.
1191A again and reiterated that the defense would stipulate to

93
raise the burden of proof for the uncharged offenses. Counsel
added, “[O]therwise, no objection to that instruction.”
When the trial court instructed the jury with CALCRIM
No. 1191A, as follows, the defense raised no objection:
“The People presented evidence that the defendant
committed sexual assaults that were not charged in this case.
These crimes are defined for you in these instructions.
“You may consider this evidence only if the People have
proved beyond a reasonable doubt that the defendant in fact
committed the uncharged offenses. If the People have not met
this burden of proof, you must disregard this evidence entirely.
“If you decide that the defendant committed the uncharged
offense, you may, but are not required to, conclude from that
evidence that the defendant was disposed or inclined to commit
sexual offenses, and based on that decision, also conclude that
the defendant was likely to commit and did commit sexual
offenses, as charged here. If you conclude that the defendant
committed the uncharged offense, that conclusion is only one
factor to consider along with all the other evidence. It is not
sufficient by itself to prove that the defendant is guilty of sexual
offenses. The People must still prove the charge beyond a
reasonable doubt.”
The trial court also instructed the jury on the elements of
sexual battery by restraint (CALCRIM No. 935A & 935B), sexual
battery (CALCRIM No. 938), forcible rape (CALCRIM No. 1000),
forcible oral copulation (CALCRIM No. 1015), and sexual
penetration by a foreign object (CALCRIM No. 1045).
b. Applicable law and analysis
“ ‘Generally, a party may not complain on appeal that an
instruction correct in law and responsive to the evidence was too

94
general or incomplete unless the party has requested appropriate
clarifying or amplifying language.’ ” (People v. Hudson (2006) 38
Cal.4th 1002, 1011-1012, italics added.) The Attorney General
argues that by failing to object to the instruction in the trial
court, Weinstein forfeited his contention that the court erred by
not listing specific uncharged offenses and their elements in the
version of CALCRIM No. 1191A given to the jury. Weinstein,
however, contends that due to the omissions from the instruction
that he asserts, “CALCRIM [No.] 1191A as given was not correct
in law,” and his contention therefore is not subject to forfeiture.
Thus, despite the defense’s express approval of the instruction
given to the jury, we must nonetheless review Weinstein’s claim
on the merits and determine if the instruction was correct in law.
We review a claim of instructional error de novo. (People v.
Cole (2004) 33 Cal.4th 1158, 1210 (Cole).) “ ‘ “[T]he correctness of
jury instructions is to be determined from the entire charge of the
court, not from a consideration of parts of an instruction or from a
particular instruction.” ’ ” (People v. Solomon (2010) 49 Cal.4th
792, 822.) “Jurors are presumed able to understand and correlate
instructions and are further presumed to have followed the
court’s instructions.” (People v. Sanchez (2001) 26 Cal.4th 834,
852 (Sanchez).) “ ‘A defendant challenging an instruction as
being subject to erroneous interpretation by the jury must
demonstrate a reasonable likelihood that the jury understood the
instruction in the way asserted by the defendant.’ ” (Solomon, at
p. 822.)
In arguing that the instruction given to the jury was
incorrect in law, Weinstein relies on the Bench Notes to
CALCRIM No. 1191A, which state in pertinent part, “In the first
sentence, the court must insert the name of the offense or

95
offenses allegedly shown by the evidence. The court must also
instruct the jury on elements of the offense or offenses.”
Weinstein asserts, “Without a proper instruction, the jurors were
left with nothing but their own subjective and individual beliefs
about what constituted a ‘sexual assault’ which necessarily
precluded them from unanimously finding that Defendant
committed an enumerated offense as is required under section
1108.” When we consider the instructions as a whole, as we
must, it is readily apparent that Weinstein’s assertion lacks
merit.
The first two sentences of the instruction given to
Weinstein’s jury state, “The People presented evidence that the
defendant committed sexual assaults that were not charged in
this case. These crimes are defined for you in these instructions.”
(CALCRIM No. 1191A, italics added.) Elsewhere in the charge to
the jury, the court instructed on the elements of sexual battery by
restraint (CALCRIM No. 935A & 935B), sexual battery
(CALCRIM No. 938), forcible rape (CALCRIM No. 1000), forcible
oral copulation (CALCRIM No. 1015), and sexual penetration by
a foreign object (CALCRIM No. 1045). The third and fourth
sentences of CALCRIM No. 1191A informed the jury, “You may
consider this evidence only if the People have proved beyond a
reasonable doubt that the defendant in fact committed the
uncharged offenses. If the People have not met this burden of
proof, you must disregard this evidence entirely.” Thus,
CALCRIM No. 1191A informed the jurors that they could
consider evidence of an uncharged “sexual assault” if, and only if,
they concluded the prosecution proved beyond a reasonable doubt
that the evidence of that uncharged sexual assault satisfied the
elements of one of the crimes on which they were instructed. To

96
the extent the court should have listed the specific crimes in
CALCRIM No. 1191A, the omission did not render the instruction
incorrect in law.
Weinstein’s reliance on People v. Jandres (2014) 226
Cal.App.4th 340 is misplaced. The case supports our conclusion
that there was no error here. There, the version of CALCRIM
No. 1191 given to the jury was erroneous in numerous respects,
including that it listed the uncharged offense as attempted
kidnapping, which is not a sexual offense within the meaning of
section 1108. (Id. at pp. 351, 358.) “The evidence [of an
uncharged sexual offense] was admissible only as a potential
violation of Penal Code section 647.6 [annoying or molesting a
child under 18 years of age], and yet the court made no mention
of that provision,” an error the People conceded on appeal. (Id. at
p. 358.) Moreover, the court did not instruct the jury on the
elements of a violation of Penal Code section 647.6, another error
the People conceded on appeal. (Ibid.) Here, in contrast, the
court instructed the jurors on the elements of five sexual offenses,
and CALCRIM No. 1191A made clear that these were the
offenses they could consider as uncharged sexual assaults if the
elements were proven beyond a reasonable doubt. We conclude
there is no reasonable likelihood the jurors used “their own
subjective and individual beliefs about what constituted a ‘sexual
assault,’ ” as Weinstein asserts, where the charge to the jury was
clear.
Weinstein further argues, without supporting authority,
that “a [d]efendant is entitled to have a jury determine
unanimously whether uncharged sex offenses occurred before
that evidence can be used for any purpose.” The suggestion that
unanimity is required is incorrect. As our Supreme Court has

97
explained, with respect to evidence of uncharged sexual offenses
“Jury unanimity has not been held to be a prerequisite to
individual jurors considering this evidence.” (People v. McDaniel
(2021) 12 Cal.5th 97, 145, citing CALCRIM No. 1191A.)
Finally, Weinstein maintains, “A note written by the jury
expressing confusion over the use of the evidence [of uncharged
offenses] was understandable where the jury was denied the
criteria by which to consider whether [Weinstein] committed a
range of unidentified ‘sexual assaults.’ ” The note in question
states: “If we do not believe that the prosecution has proven the
uncharged offenses against a named victim beyond a reasonable
doubt, are we to disregard the testimony in its entirety? Or are
we still allowed to use portions of their testimony to support
reasonable doubt?” The court wrote back, “Please refer to
instructions #375 and 1191A. If you still have a question, please
let us know.” This note expresses no confusion as to which sexual
offenses constitute “sexual assaults” within the meaning of the
instruction or the elements of the sexual offenses. Thus, the note
is not germane to our analysis of whether there was instructional
error.
For the foregoing reasons, we conclude the version of
CALCRIM No. 1191A given to the jury was correct in law, and
there is no reasonable likelihood the jury misunderstood the
instruction in the way Weinstein asserts.
2. CALCRIM No. 371
Weinstein contends the trial court erred in instructing the
jury on consciousness of guilt and suppression of evidence with
CALCRIM No. 371. He asserts, “The instruction was unjustified
where the record is devoid of any basis for giving the instruction.”
He further argues that “the prosecution engaged in serious

98
misconduct by using the instruction to suggest that [Weinstein]
destroyed the Mr. C lost and found records, a baseless claim.”
a. Relevant proceedings
1. Conference on jury instructions
The prosecution asked the court to instruct the jury with
CALCRIM No. 371. During a conference on jury instructions, the
defense objected, arguing there was no evidence suggesting
Weinstein had suppressed evidence. The prosecutor argued the
instruction was warranted based on the missing lost-and-found
records from the Mr. C Hotel and evidence that Weinstein
threatened JD1 (and Jane Doe No. 3) not to tell anyone about the
sexual offenses. After hearing additional argument from defense
counsel, the court stated it would hold off on making a ruling and
allow the defense to research the issue.
During a subsequent conference, the defense reasserted its
objection to CALCRIM No. 371, again arguing there was no
evidence to support it. The court stated it was “not sure that
there [was] sufficient reason to give it,” and asked the prosecutor
for further argument. The prosecutor indicated that “the
principal reason” the prosecution requested the instruction was
because there was evidence that Weinstein threatened JD1 (and
Jane Doe No. 3) not to tell anyone about the sexual offenses. The
court recalled that it was expecting research on that issue (which
it does not appear the court received, based on the record before
us). The parties presented further argument on whether the
instruction applied on that basis.
The prosecutor argued: “[T]he other use of that evidence
that the defense refers to is the fact that there are, in fact,
missing lost-and-found records from Mr. C’s, and there’s evidence
that Mr. Weinstein personally reached out to the owner of Mr. C’s

99
Hotel and asks specifically to speak to him about [JD1] in the
days after she came forward with the allegations -- and it is
circumstantial evidence; there is no doubt about that -- but it’s a
reasonable inference that he wanted Mr. Cipriani to take
affirmative steps to help out his case.” Defense counsel
responded, “There is zero evidence that there was any sort of
destruction or malfeasance on the part of Mr. Weinstein.”
Defense counsel also disputed that there was evidence showing
Weinstein threatened Jane Doe No. 3.
The court stated that it would conduct its own research on
the matter and notify the parties when it had a ruling.
During a conference the following day, the court informed
the parties: “I’m going to give [CALCRIM No.] 371. I think there
is enough evidence to give 371. I understand the defense is
objecting to it. I think we’ve talked about it as much as there is
to talk about. So I am going to give it.” Defense counsel
responded, “May I inquire -- not quarreling with the court. But
can the court articulate the grounds for giving 371?” The court
stated, “I think that the fact that there were statements about
not telling anybody about what happened is sufficient to justify
giving it.”
The court instructed the jury with CALCRIM No. 371 as
follows: “If the defendant tried to hide evidence or discourage
someone from testifying against him, that conduct may show that
he was aware of his guilt. If you conclude that the defendant
made such an attempt, it is up to you to decide its meaning and
importance. However, evidence of such an attempt cannot prove
guilt by itself.”

100
2. Relevant closing argument
In opening argument, during a discussion about witness
Ambra M., the prosecutor noted that when she went to
Weinstein’s office, she was “not asked to sign in to that guest or
visitor sign-in log.” The prosecutor argued: “It wouldn’t seem
that important; right? Except for the fact that it is a pattern of
missing items when it comes to anything about Harvey
Weinstein. [¶] With [JD1], it’s the lost and found records for Mr.
C’s. Somehow those don’t exist either.”
Later in the argument, the prosecutor addressed the emails
Weinstein sent to Cipriani, the owner of the management
company that ran the Mr. C Hotel, about JD1. Immediately
thereafter, the prosecutor stated:
“And since we’re on the topic of Mr. C’s, there’s other
questions. What about all the records? Where are those? So Guy
Groves, the Head of Security at the time, he told us that he had
records that went back 20 years. He sarcastically laughed when
we informed him that Mr. C’s said that they had had some
computer glitch, a technical issue as to why they didn’t have all
the records. He laughed. And he said that if he didn’t want to
produce things, he would make up that excuse. He would say,
‘Oh, there was a computer glitch. It was a technical issue.’
“But what happens only a couple weeks later? When we go
back a couple of weeks later to talk with him, what does he say?
‘Oh, there was a computer glitch, technical issues.’ Why the
sudden change? He said that he has signed a separation
agreement with Mr. C’s and that in that separation agreement,
he agreed to delete the records from his computer, to destroy
them. Why? Why did they have to be destroyed? Why are they

101
the only missing records the lost and found records from the time
of [Weinstein] assaulting [JD1]?”
Later, the prosecutor referenced the jury instruction on
consciousness of guilt and suppression of evidence (CALCRIM
No. 371), arguing: “[Weinstein]’s effort to conceal evidence,
whether it be by telling someone not to go forward to the police
after he raped or assaulted them or by working with someone,
whether it was Mr. Cipriani to try to make evidence disappear at
Mr. C’s Hotel, that concealing or telling people not to go to the
police, that is evidence that he knew he was guilty of the crimes.
And the judge gave you this instruction that says that.” Defense
counsel did not object to any part of the prosecutor’s argument.
After the defense presented its argument, and just before
the prosecution presented its rebuttal argument, defense counsel
raised the following issue with the court:
“As the court recalls, the People requested [CALCRIM No.]
371, which relates to destroying or destruction of evidence, and
we objected on the grounds that when that instruction was
proffered, it was meant to apply to the allegation that somehow
Mr. Weinstein made records from Mr. C’s disappear. The court
found there was not an appropriate grounds -- the court found
there was not a proper legal basis for giving 371 based upon the
Mr. C’s issue.
“The People then requested the instruction with regard to
alleged threats by Mr. Weinstein against Jane Does 1 and 3, and
the court agreed to give that instruction on that basis. However,
yesterday in closing argument Ms. Martinez [the prosecutor]
referenced section [sic] 371 and discussed it in relation to an
allegation that Mr. C’s records somehow disappeared.

102
“Your Honor, we chose not to object at that time. We let
her make her arguments. She has let us have our argument.
But I would like to ask the court to admonish Mr. Thompson [the
other prosecutor], should he intend to go there, that that would
be an inappropriate invocation of 371 that the court has already
ruled on.”
The court responded: “I don’t think I ruled that it wasn’t. I
just said -- when you asked me what the basis of it was, I said the
statements made to the alleged victims. I didn’t say it wasn’t the
Mr. C’s issue, that I recall. I just said it was the statements to
the alleged victims.” The court asked the prosecutor, “But I don’t
know -- are you planning on going into that, Mr. Thompson?”
The prosecutor replied: “I’m not, but I concur with the court, and
we have made it clear that that was also the basis of why we
were requesting 371. And the defense did not request limiting
language within 371, which it could have done. The obvious plain
language of 371 applies to both circumstances, and we have
indicated our intent to argue it that way.” The court stated,
“Okay. Well -- okay. We’ll leave it at that.”
During rebuttal argument, the prosecutor discussed
Weinstein’s emails to Cipriani, the missing lost-and-found
records, and Weinstein’s former attorney’s investigation
regarding evidence from the Mr. C Hotel. As noted by Weinstein
in his appellate briefing, the prosecutor argued, among other
things: “So, as you know, the defense has subpoena power. If
these records were truly destroyed -- there must be an I.T.
company. They don’t just vanish without somebody just looking
into it. Where is the person that can describe that to us?” The
prosecutor also argued: “Then we have the investigation started
by his attorney . . . [.] [S]o this is after Mr. Weinstein has already

103
been involving himself with Giuseppe Cipriani for two months.
Then his attorney gets involved in December -- end of December
2013. [¶] Now, here is where the magic comes in. These are all
the records that you see in this trial that that computer glitch did
not affect.”
The prosecutor did not specifically reference CALCRIM No.
371 in the rebuttal argument, and defense counsel raised no
objection to any part of the argument.
3. Motion for new trial
Weinstein argued in his motion for new trial that it was
improper to instruct the jury with CALCRIM No. 371, and
referenced the prosecutor’s arguments to the jury in the motion.
In denying the motion, the trial court stated, “I do think the jury
in this case was properly instructed and I don’t think there was
misconduct on the part of the People with respect to that.”
b. Applicable law and analysis
“ ‘It is an elementary principle of law that before a jury can
be instructed that it may draw a particular inference, evidence
must appear in the record which, if believed by the jury, will
support the suggested inference. [Citation.] Whether or not any
given set of facts may constitute suppression or attempted
suppression of evidence from which a trier of fact can infer a
consciousness of guilt on the part of a defendant is a question of
law. Thus in order for a jury to be instructed that it can infer a
consciousness of guilt from suppression of adverse evidence by a
defendant, there must be some evidence in the record which, if
believed by the jury, will sufficiently support the suggested
inference.’ ” (People v. Hart (1999) 20 Cal.4th 546, 620; see also
People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102 [“to the
extent Coffman contends that facts giving rise to an inference of

104
consciousness of guilt must be conclusively established before
[the instruction] may be given, she is incorrect; there need only
be some evidence in the record that, if believed by the jury, would
sufficiently support the suggested inference”].) “To support an
inference that the defendant attempted to suppress evidence, the
record need not establish that the evidence actually was
destroyed.” (Hart, at p. 620.) We independently review the trial
court’s decision to give the instruction. (Cole, supra, 33 Cal.4th
at p. 1217.)
Sufficient evidence supports the trial court’s decision to
instruct the jury with CALCRIM No. 371. First, there was
evidence supporting the inference that Weinstein discouraged
JD1 from reporting the crimes and testifying against him. She
testified at trial that immediately after Weinstein committed the
sexual offenses, “He was acting like nothing happened. He was
giving me compliments and then he say that better I’m not
talking to no one about it. ‘You do know me’ he say. [Sic.]”
When the prosecutor asked JD1, “What did you take that to
mean,” she responded, “My understanding he’s somebody
powerful that’s better I’m not talk because it’s dangerous for
me. . . . [Sic.]” Because of these statements, she was too afraid to
tell her children’s nanny what happened when she called her the
same night. Based on this evidence, the court did not err in
giving CALCRIM No. 371, which allows the jury to infer
consciousness of guilt from evidence that the defendant tried to
discourage someone from testifying against him.
As to the second theory—the missing lost-and-found
records—we reject Weinstein’s assertion that the court’s ruling
precluded the prosecution from presenting this theory to the jury.
Although the court stated that it overruled the defense’s objection

105
to CALCRIM No. 371 based on evidence of Weinstein’s
“statements about not telling anybody about what happened,” the
court did not rule that the prosecution was precluded from
referencing CALCRIM No. 371 to advance the theory about the
missing lost-and-found records. And the defense did not ask for
such a ruling. Later, during a break in argument, the court
confirmed that it had not limited the prosecution’s use of
CALCRIM No. 371 to just the one theory about discouraging a
witness from testifying.
The court did not err in allowing the prosecution to present
the second theory to the jury because there was evidence
supporting the inference that Weinstein attempted to suppress
incriminating evidence from the Mr. C Hotel. After JD1 reported
Weinstein’s crimes to the police, Weinstein emailed Cipriani, the
owner of the management company that ran the Mr. C Hotel,
attaching a photo of JD1 and asking Cipriani whether he or his
staff knew her, and admonishing Cipriani to be discreet.
Weinstein sent follow-up emails, asking to speak with Cipriani,
and telling him not to take calls from a certain woman (identified
by her first name only) or her brother. A couple of months later,
Weinstein attempted to arrange a dinner with Cipriani and
Cipriani declined. Weinstein wrote back, “Already cancelled I
won’t ask again u guys have been amazing to me Wont
forget. . . . [Sic.]” Weinstein also stated in this email that he
could introduce Cipriani to a potential investor, acknowledging
that he did not know if Cipriani needed such an investor.
Subsequently, for purposes of this criminal litigation, the Mr. C
Hotel produced certain records from the time of JD1’s stay (e.g.,
her hotel folio, noise complaints about the fire alarm, etc.) but not
others (lost-and-found records). At trial, former hotel employees

106
(who were employed at the hotel in February 2013) testified that
lost-and-found records for a period of time before June 2013 were
erased in 2013 due to an I.T. (information technology) issue. Two
and a half years before trial, however, when prosecutors asked
one of these same former employees about the reported
“computer glitch” that deleted the records, he laughed and
replied, “ ‘Well, that’s what I would say, if I didn’t want to turn
over the records.’ ” This evidence supports an inference that
Weinstein contacted Cipriani to ensure that the hotel would
provide no incriminating evidence linking Weinstein to JD1 or, in
the words of CALCRIM No. 371, that “the defendant tried to hide
evidence.” The trial court did not err in allowing the prosecution
to argue this theory to the jury. Consequently, the prosecutors
did not commit “prosecutorial misconduct” in doing so,
notwithstanding Weinstein’s claim to the contrary.
Weinstein contends the prosecution “interfered with [his]
Fifth Amendment rights by telling the jury ‘the defense has
subpoena power. If these records were truly destroyed -- there
must be an I.T. company. They don’t just vanish without
somebody just looking into it. Where is the person that can
describe that to us?’ ” We agree with the Attorney General that
Weinstein forfeited this contention. “When a defendant believes
the prosecutor has made remarks constituting misconduct during
argument, he or she is obliged to call them to the court’s
attention by a timely objection. Otherwise no claim is preserved
for appeal.” (People v. Morales (2001) 25 Cal.4th 34, 43-44.) The
defense did not object to this or any other part of the
prosecution’s argument. “The failure to timely object and request
an admonition will be excused if doing either would have been
futile, or if an admonition would not have cured the harm.”

107
(People v. Clark (2011) 52 Cal.4th 856, 960.) Weinstein suggests
that any objection would have been futile, although he does not
explain why with respect to this argument specifically.
Even if Weinstein had preserved this claim for review, or it
would have been futile to object, the claim fails on the merits. In
People v. Ratliff (1986) 41 Cal.3d 675, 691, the case on which
Weinstein relies in support of his claim of Fifth Amendment
interference, our Supreme Court explained, “[T]he Griffin rule
[Griffin v. California (1965) 380 U.S. 609] forbids any reference to
a defendant’s failure to take the stand in his defense, but ‘that
rule does not extend to comments on the state of the evidence or
on the failure of the defense to introduce material evidence or to
call logical witnesses.’ ” In questioning why the defense did not
introduce evidence from the I.T. company that erased the lost-
and-found records, the prosecutor did not comment on
Weinstein’s silence or “the absence of evidence that only the
defendant’s testimony could provide.” (People v. Brady (2010) 50
Cal.4th 547, 565-566.) There was no Griffin error.
Weinstein has shown no error with respect to CALCRIM
No. 371.

I. Weinstein’s Claim of Juror Bias Is Forfeited and
Without Merit
Weinstein contends, “Where [his] jury received inherently
prejudicial extrinsic information of his prior rape conviction in
New York, a conviction that was later vacated, a substantial
likelihood of juror bias exists, entitling [him] to a new trial.”
1. Relevant proceedings
During voir dire of prospective jurors on Panel B, defense
counsel asked, “Who in here immediately thought this is the
Harvey Weinstein case. I already know a little bit about it, I’ve

108
read about it, he must be guilty.” Prospective Juror 101 indicated
he was aware of Weinstein’s conviction in New York, but stated
he understood the court’s instruction to only consider the
evidence presented in this case and affirmed that he could be fair.
No prospective jurors from Panel B were seated on Weinstein’s
jury.
The following day, during voir dire of prospective jurors on
Panel A (from which Weinstein’s jury was chosen), defense
counsel asked the panel, “Do you think when you first heard the
name Harvey Weinstein you immediately thought, ‘Oh, oh, oh,
hang on a second. Time out. I already know about this guy. I
think he’s done some stuff and I’ve started to make up my mind a
little bit about whether or not he’s probably guilty?’ ” Prospective
Juror 52 responded, “It’s hard to avoid the news and determine
and have a fair mind with Mr. Weinstein being guilty or not and
given that his convictions in New York is [sic] so public. It’s hard
to avoid that.” Defense counsel followed up, “Do you think you
might go into the deliberation room sort of with giving the
prosecution a little bit of a head start because you already know
about some other things that you’ve read about in the media?”
Prospective Juror 52 replied, “Maybe not directly from the media
but the court’s ruling in New York.”
In addition to Prospective Juror 52, prospective jurors 33,
32, 10, 4, 49, 43, 12, and 46 all expressed a concern about
remaining unbiased in light of Weinstein’s New York convictions.
Some questioned, “[I]f he’s guilty in New York how can he be not
guilty here[?]” The court excused all but prospective jurors 32
and 43 for cause. The defense exercised peremptory challenges
as to these jurors, and they were excused. At the time

109
Weinstein’s jury was empaneled, the defense had not used all of
its peremptory challenges.
2. Applicable law
“A defendant accused of a crime has a constitutional right
to a trial by unbiased, impartial jurors.” (People v. Nesler (1997)
16 Cal.4th 561, 578.) “ ‘The Sixth Amendment right to an
impartial jury and the due process right to a fundamentally fair
trial guarantee to criminal defendants a trial in which jurors set
aside preconceptions, disregard extrajudicial influences, and
decide guilt or innocence “based on the evidence presented in
court.” ’ ” (People v. Mataele (2022) 13 Cal.5th 372, 402-403.)
Voir dire “enables the trial court and the parties to determine
whether a prospective juror is unbiased and both can and will
follow the law.” (People v. Wilson (2008) 44 Cal.4th 758, 822.)
3. Analysis
As the Attorney General points out, challenges to the
“manner of conducting voir dire” are forfeited “by failing to raise
them with the trial court when the court could have addressed
them.” (People v. Oyler (2025) 17 Cal.5th 756, 807.) It is not
clear, however, what defense counsel could have challenged
because here, voir dire functioned as it should. Prospective jurors
indicated they were aware of Weinstein’s New York convictions.
Defense counsel explored whether they could and would follow
the law. All jurors who expressed bias were excused, either for
cause or by peremptory challenge. On this record, Weinstein’s
claim of a “substantial likelihood of juror bias” is without merit.
He argues that his “entire trial process was infected”
because his “New York conviction was never introduced into
evidence and the jury was never told to disregard the
information.” He did not ask the trial court to instruct the jury to

110
disregard the information, and it is too late to raise an objection
now. The jury was instructed, however, that it was only
permitted to consider evidence presented in this case. (See
CALCRIM No. 222 [“ ‘Evidence’ is the sworn testimony of
witnesses, the exhibits admitted into evidence, and anything else
I told you to consider as evidence”].) “Jurors are presumed able
to understand and correlate instructions and are further
presumed to have followed the court’s instructions.” (Sanchez,
supra, 26 Cal.4th at p. 852.)
Weinstein further asserts that “the jury labored under the
gross misapprehension that [he] was fairly and justly convicted of
rape in New York.” The vacation of his New York convictions
does not retroactively establish bias where none existed before.
Even if Weinstein preserved a claim for review, he has not
demonstrated error.

J. Weinstein Is Entitled to Resentencing
Penal Code section 1170, subdivision (b) provides, in
pertinent part: “(b)(1) When a judgment of imprisonment is to be
imposed and the statute specifies three possible terms, the court
shall, in its sound discretion, order imposition of a sentence not to
exceed the middle term, except as otherwise provided in
paragraph (2). [¶] (2) The court may impose a sentence
exceeding the middle term only when there are circumstances in
aggravation of the crime that justify the imposition of a term of
imprisonment exceeding the middle term and the facts
underlying those circumstances have been stipulated to by the
defendant or have been found true beyond a reasonable doubt at
trial by the jury or by the judge in a court trial. . . . [¶] (3)
Notwithstanding paragraphs (1) and (2), the court may consider
the defendant’s prior convictions in determining sentencing based

111
on a certified record of conviction without submitting the prior
convictions to a jury.”
Here, the trial court imposed an upper term sentence based
solely on an aggravating factor that no longer exists—Weinstein’s
New York convictions that have since been vacated. As the
parties agree, Weinstein is entitled to resentencing. Accordingly,
we vacate his sentence and remand the matter for that purpose.11

DISPOSITION
The sentence is vacated and the matter is remanded for
resentencing. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED

M. KIM, J.

We concur:

BENDIX, Acting P. J.

WEINGART, J.

11 We reject Weinstein’s contention that cumulative error

requires reversal of his convictions. As explained above, he has
demonstrated no error, let alone multiple errors.

112