Sexual assault case dropped against prominent Aptos real estate broker

In a case that has roiled a large slice of Aptos society, a rape charge against a prominent Aptos real estate investor and broker has been dropped and he is preparing to file a defamation lawsuit against his accuser.

The case against Frank DeBernardo was headed to trial until the Santa Cruz County District Attorney’s Office told a judge last month that it was dropping charges due to insufficient evidence. 

That came after the accuser, identified in court records only as Jane Doe, changed part of the story she had told during a preliminary hearing in January. One of DeBernardo’s attorneys, Juliet Peck, said in court papers that the change constituted perjury, but Doe has not been charged.

Michael Mahan, the lead prosecutor on the case, said last week that the DA’s office couldn’t comment on the specific reasons it chose to drop the charges, or how various pieces of evidence played into the process. 

Mahan said the dismissal does not mean the case is closed for all time. “If additional information came in, we’d certainly take another look at it,” he said. 

Asked if a perjury charge might be filed against Jane Doe, he said it was possible, but his office would be reluctant to do so because such a prosecution might dissuade other victims from coming forward. 

Last Monday, DeBernardo’s civil attorney, Marc Eisenhart, submitted paperwork asking the court to allow him to file a $100 million defamation lawsuit against the woman. 

The allegations against DeBernardo led to “unimaginable emotional, financial and reputational devastation to Mr. DeBernardo, prosecuted for felony rape and vilified in his own community and in the local media,” Eisenhart wrote in the court documents. Jane Doe previously filed a lawsuit against DeBernardo. That civil case remains active in the courts.

DeBernardo and Jane Doe’s attorney have declined to comment on the dismissal of the criminal case, but court papers paint a detailed picture of the story that began at a November 2021 “Friendsgiving” party at DeBernardo’s home. 

DeBernardo, 48, had been charged with raping the woman after the party broke up and Jane Doe, described as his wife’s best friend, had gone to bed in a guest room. The woman alleged that she had passed out from alcohol and was fully dressed but was awakened unclothed and with DeBernardo on top of her.

DeBernardo’s 2022 arrest sparked coverage in regional media and in real estate publications. He pleaded not guilty and the case went to a preliminary hearing.

At the unexpectedly long six-day preliminary hearing in January, DeBernardo’s defense lawyer, Peck, took a somewhat unusual course. 

Such hearings are held to determine whether the prosecution has enough evidence to take the matter to trial. In most cases, the prosecution presents an outline of its evidence and the defense merely questions prosecution witnesses without calling witnesses of its own. In this case, however, Peck put on what is called an affirmative defense, meaning she called a number of witnesses in an attempt to disprove the allegations and prevent the case from going to trial.

According to a transcript of the proceedings, Peck introduced evidence intended to show that Doe had attempted to pry $50,000 out of a Long Beach businessman by accusing him of assaulting her on a yacht in 2020 and also had claimed that a man sitting next to her on a 2019 flight to Arkansas had toucher her inappropriately. Both instances were investigated by law enforcement, who declined to press charge, court records say.

Despite Peck’s efforts, Judge Stephen Siegel ruled in January that DeBernardo would have to stand trial on charges of raping the woman and coercing witnesses. Siegel said that “even though [her] credibility has a lot of questions about it, I cannot find that there is no credibility, that she is not, that she has no credibility. … She may have all sorts of problems elsewhere but in terms of what happened here, I don’t have enough to say there is no credibility.”

But the woman’s credibility continued to slide when she later admitted to prosecutors that part of her sworn testimony in January was false.

In the preliminary hearing, Jane Doe testified under questioning from Peck that she had met with DeBernardo about a month after the alleged rape, but denied that DeBernardo had paid her money to stop her from telling his wife about what happened at the party. 

However, Doe later admitted to receiving money from DeBernardo. 

According to an affidavit filed by DeBernardo’s defense team, Doe was called to a meeting at the district attorney’s office on Oct. 28. Prosecutor Mahan, DA’s Inspector Steven Ryan and Doe’s lawyer, Dana Scruggs, also attended the meeting, as did a private investigator working with Scruggs.

“During the meeting, Doe admitted that she had received an envelope from DeBernardo on Dec. 22, 2021, containing $10,000, a material fact that she denied at the preliminary hearing,” Peck wrote in a sworn affidavit. Peck added that the change in Doe’s story amounted to perjury and “could lead to prosecution against Doe by the Santa Cruz District Attorney’s Office.”

Then, on Nov. 20, at a hearing ostensibly held to schedule pretrial hearings and briefs, the prosecution surprised the court by dismissing the criminal case against DeBernardo due to insufficient evidence.

The DA’s office made no announcement that the criminal case against DeBernardo had been dropped.

The incident sparking the court case occurred at the pre-Thanksgiving party at DeBernardo’s home in November 2021. Court papers describe Jane Doe as a longtime friend of the DeBernardo family and a particularly close friend of DeBernardo’s wife. Their children were also close. She had regularly visited and sometimes stayed at the DeBernardos’ home between Soquel and the Forest of Nisene Marks State Park. DeBernardo’s mother had developed a number of high-end homes in the Aptos area and he specialized in selling luxury homes throughout the region.

Court records make it clear that there was a sex act but contain contradictory assertions about whether it was consensual. 

At the gathering, after all the guests had left and DeBernardo’s wife had gone to sleep, Jane Doe opted to go to bed in a spare room, according to testimony from several people. She told friends soon afterward that she had passed out but awoke after a time to find DeBernardo undressed and on top of her. DeBernardo later told friends that they had engaged in consensual sex, according to court records, and that he deeply regretted it. 

In Jane Doe’s lawsuit against DeBernardo, Scruggs wrote that the woman had discussed the event with friends and relatives but chose not to go to the authorities at that point. “Plaintiff was understandably in shock, confused, conflicted, traumatized and emotionally distraught,” Scruggs wrote. 

A month after the party, Doe texted DeBernardo, which led to a confrontational meeting arranged by mutual friends. Scruggs alleged in the civil complaint that at that time DeBernardo “reluctantly and apologetically took responsibility for his sexual assault, battery and rape of the incapacitated and unconscious plaintiff.” 

That was followed by the meeting where DeBernardo handed her the envelope containing the money.

DeBernardo was arrested in March 2022. That May, his accuser filed her civil lawsuit against DeBernardo. According to defense pleadings in the case, her lawyer, Scruggs, later offered to settle the lawsuit for $12 million. He didn’t respond to several phone messages. 

In other court papers, Eisenhart and Peck detailed what they say is the woman’s history of making false accusations. This account is drawn from their court filings and the preliminary hearing transcript.

In December 2019, Jane Doe flew from Los Angeles to an airport in Bentonville, Arkansas, to visit her then-boyfriend. 

As she left the plane, she approached a ground security coordinator who later testified at DeBernado’s preliminary hearing that Doe told her “the man next to her on the plane had been touching her upper thigh.” She said she had reported it to a flight attendant, who offered to move her to another seat but she declined. The flight attendant told police she had served Doe and her seatmate several drinks but had seen nothing inappropriate.

The ground security coordinator testified that she called authorities and the FBI responded along with local police because it was an interstate flight. No charges were filed in connection with the flight.

Court papers say that a year after the Arkansas trip, Doe went to Long Beach to visit a new boyfriend, an insurance executive. They attended a party on a yacht. There, Doe would later claim to police, she was left alone with another boat owner, Robert Snow, who she said touched her inappropriately underneath a table. 

Ultimately, Doe’s boyfriend got into a physical altercation with Snow. Police were called. Snow told them he never meant to touch the woman but might have brushed against her while stepping around her.

According to transcripts from the preliminary hearing, Snow told a Long Beach detective that he had a conversation with Ms. Doe and her lawyer over the phone and they said they would be willing to drop any criminal charges and settle for $50,000. Police declined to file charges against Snow and he didn’t pay the woman any money, court records say.

In Monday’s court filing, DeBenardo’s civil lawyer, Eisenhart, wrote, “given the devastating consequences of a rape conviction, and as a corollary to society’s justifiable outrage at sexual assaults, to falsely accuse someone of rape is equally reprehensible and outrageous and unimaginable.”

Freelance writer Royal Calkins is a former editor of the Monterey Herald and city editor of the Santa Cruz Sentinel. He is a contributing writer for the Voices of Monterey Bay website and can be reached at calkinsroyal@gmail.com.

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