Filed 8/26/26 P. v. Davis CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(El Dorado)
THE PEOPLE, C102372
Plaintiff and Respondent,
(Super. Ct. No. P20CRF0244)
v.
ADAM CHRISTOPHER DAVIS,
Defendant and Appellant.
Defendant Adam Christopher Davis appeals from his convictions for forcible
sexual penetration, three counts of domestic violence, false imprisonment by violence,
and misdemeanor child abuse. He raises several claims on appeal: (1) the trial court
erred when it denied his motion to dismiss, which was based on his claim of outrageous
government misconduct; (2) reversal is required due to prosecutorial misconduct during
closing argument; (3) insufficient evidence supports the court’s true finding on an
aggravated circumstance allegation; and (4) the court erred by failing to stay execution
of one of his convictions for domestic violence, and his conviction for false
imprisonment, under Penal Code section 654.1 We agree with defendant that the trial
court should have stayed the sentence for either the false imprisonment or one of the
1 Further undesignated statutory references are to the Penal Code.
1
domestic violence convictions, and therefore we will vacate the sentence and remand for
a full resentencing. We find no merit in defendant’s remaining contentions and otherwise
affirm the judgment. We also refer defendant’s former trial attorney to the State Bar for
potential discipline pursuant to canon 3D(2) of the California Code of Judicial Ethics.
FACTS AND PROCEEDINGS
May 2020 Abuse of Jane Doe 1
Defendant and Jane Doe 1 (JD1) were in an emotionally abusive and “turbulent”
off-and-on relationship from 2017 to 2020. On May 9, 2020, defendant went to JD1’s
house for a barbeque with JD1 and two of her friends to celebrate JD1’s purchase of the
house; defendant consumed alcohol throughout the evening. While the four were in
JD1’s hot tub, JD1’s friends told her that they were proud of her for buying a house,
which JD1 characterized as “a huge goal for me.” Defendant began “huffing and
puffing,” rolling his eyes, acting belligerently, and “saying snarky things to [JD1] that
would embarrass her.” Defendant had told JD1 she would not be able to buy a house and
could not do it alone, and he “didn’t like it when [JD1] was doing anything to make
[herself] independent and not need him.” JD1 was upset about defendant’s behavior, and
they all got out of the hot tub and went into the house.
Once inside, JD1 found defendant using her cell phone to send text messages to
her massage therapy clients in which he referred to her in a derogatory fashion. JD1 took
her phone from defendant and ran into the backyard; defendant followed. JD1 stumbled
over some rocks and fell, and defendant put his hands around her throat as he tried to take
her phone.
JD1’s father (who lived in the house but had stayed in his room during the
barbecue) and her friend separated defendant and JD1, and JD1’s father put JD1 in the
bathroom and told her to stay there. JD1’s father drove defendant home. JD1 was angry
and insisted on talking to defendant about his actions, and therefore she jumped out of a
window, wearing only her two-piece bathing suit and robe. She left the house in her car,
2
caught up to her father’s vehicle on the freeway, and tried to convince him to pull over,
but he refused.
JD1 drove to defendant’s house, arriving approximately five minutes before
defendant, and began collecting her belongings. JD1 was in her car when defendant
arrived home, and he convinced her to come inside the house. Once inside, defendant
dragged JD1 toward the stairs. He put his forearm on JD1’s throat, leaned his body on
top of hers, held her hand down, and slapped her chest, face, top of her head, and back
about 20 times. Eventually he let her go, and she ran toward the door.
Before JD1 reached the door, defendant pulled her by her hair and arms into his
bedroom. Defendant pushed JD1 to the ground, held her by the hair, and said: “I had a
long talk with your daddy and your dad gave me permission to do whatever I want to do
to you tonight.” Defendant then threw her onto the bed, held her face down with her
hands behind her back, and hit her head, back, and buttocks. She begged him to stop. At
some point, defendant ripped off JD1’s bathing suit. JD1 did not remember if defendant
continued to hit her, or if that was the last thing he did before he said “ ‘[d]on’t fucking
move,’ ” and left the room.
JD1 ran out the back bedroom door and went to a neighbor’s house, who called
911 at around 2:20 a.m. Sheriff Deputy Toney responded to the scene and began to
interview JD1. Other deputies and a paramedic unit responded later. Paramedics
transported JD1 in an ambulance to the sheriff’s department, and then later that morning
to the BEAR clinic (Bridging Evidence, Assessment and Resources) for a sexual assault
examination. Toney rode with JD1 in the ambulance and continued to interview her.
Defendant was arrested.
3
During the interview, JD1 provided a sequence of events that differed from the
one she testified to at trial.2 In the interview, JD1 said that she was in defendant’s
bedroom when he arrived home. When defendant entered the bedroom he pushed her
towards the bed, bent her over, pushed her head into the bed, and held her other hand
behind her back. She had to turn her head from left to right to breathe. Defendant
removed her robe and bathing suit top and spanked her on her side and hips
approximately 10 times. He placed two fingers into her rectum and pushed really hard.
He told her, “ ‘Fuck you, Bitch. Die, Bitch. Get out of my house.’ ”
JD1 moved toward the front door, but defendant grabbed her by the hair and
dragged her to the ground in the living room. He placed one hand around her throat and
squeezed and hit her approximately 20 times with an open hand all over her face and
head. He then dragged her by the hair into the bedroom, threw her on the bed, said,
“don’t fucking come out,” and shut the door. JD1 ran out of the house.
April 2020 Abuse of John Doe 2
In April 2020, defendant was intoxicated and asked his nine-year-old son, John
Doe 2 (JD2), what he would do if a bully approached him. Defendant and JD2 began
“roughhousing” before “it just got a little bit more serious,” and defendant pinned JD2
down and pressed his forearm against JD2’s neck for less than five seconds. JD2 was
afraid that he was going to pass out, and he asked defendant to stop and get off him.
JD2’s sister came into the room and pulled defendant off JD2. JD2 was “flustered,”
“upset,” and “[s]haken up,” but he did not tell his mother what happened until a couple of
days after defendant was arrested for abusing JD1. JD2 did not believe defendant meant
to hurt him and did not suffer any injuries as a result of the incident.
2 JD1 testified that she was “trying to forget” the incident, and she acknowledged
that she did not remember the order of when defendant hit her and penetrated her. She
testified that she told law enforcement the truth during her interview.
4
August 2017 Abuse of Jane Doe 3
Defendant and Jane Doe 3 (JD3) were in a “very unhealthy,” “toxic,” and
“abusive” dating relationship from approximately 2012 to August 2017. On August 5,
2017, defendant and JD3 went to a bar. Defendant had been drinking alcohol, and he
called JD3 derogatory names as she drove to and after they arrived at the bar. Defendant
was eventually kicked out of the bar, and JD3 left with him.
JD3 did not recall what happened next; she remembered being pulled from her car
by her feet and then running, getting into a car, and leaving the bar. A man testified that
he saw defendant and JD3 arguing inside and then outside the bar near JD3’s car,
defendant pushing JD3, getting on top of her inside the car, and putting both hands
around her neck. When the man got to the car, defendant got off JD3, and JD3 left the
bar with the man. JD3 had blood and injuries all over her face, including a broken tooth,
a black eye, and a one-and-a-half-inch cut under her eyebrow. The following day JD3
found a broken beer mug in her car; she surmised that she had been hit in the face with
the beer mug and lost consciousness.
JD3 filed a request for a domestic violence restraining order against defendant. In
June 2018, defendant and JD3 entered into an agreement in which defendant agreed to
not contact JD3, to pay to fix her broken tooth, to return her car, and to pay for therapy
sessions, in exchange for JD3 waiving all claims against him.
Defendant’s Testimony
Defendant testified in his own defense and denied committing the charged
offenses.
Procedural History
As to JD1, the jury found defendant guilty of sexual penetration by use of force
(§ 289, subd. (a)(1)(A); count 1), two counts of felony domestic violence (§ 273.5, subd.
(a); counts 2 & 3), and felony false imprisonment by violence (§ 236; count 4). As to
JD2, the jury found defendant not guilty of child abuse under circumstances or conditions
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likely to cause great bodily injury or death (§ 273a, subd. (a); count 5), but guilty of the
lesser-included crime of misdemeanor child abuse (§ 273a, subd. (b)). As to JD3, the
jury found defendant guilty of felony domestic violence. (§ 273.5, subd. (a); count 6.)
In bifurcated proceedings, the trial court found true the aggravating circumstances
that the offense involved great violence, great bodily harm, threat of great bodily harm, or
other acts disclosing a high degree of cruelty, viciousness, or callousness (Cal. Rules of
Court, rule 4.421(a)(1));3 defendant threatened witnesses, unlawfully prevented or
dissuaded witnesses from testifying, suborned perjury, or in any other way illegally
interfered with the judicial process (rule 4.421(a)(6));4 defendant took advantage of a
position of trust or confidence to commit the offense (rule 4.421(a)(11)); and defendant
engaged in violent conduct that indicated a serious danger to society (rule 4.421(b)(1)).5
The trial court sentenced defendant to 11 years eight months in prison as follows:
the upper term of eight years on count 1, a consecutive term of one year each (one-third
the middle term) on counts 2, 3, and 6, and eight months (one-third the middle term) on
count 4. The court also imposed a sentence of 180 days in county jail on count 5, to be
served concurrent to the previously imposed consecutive sentences. Defendant filed a
timely notice of appeal.
3 Further undesignated rule references are to the California Rules of Court.
4 We will discuss the details of this finding in greater detail in the Discussion.
5 The court found not true the allegations that the victim was particularly vulnerable
(rule 4.421(a)(3)), and defendant’s prior convictions as an adult or sustained petitions in
juvenile delinquency proceedings were numerous or of increasing seriousness (rule
4.421(b)(2)).
6
DISCUSSION
I.
Defendant’s Motion to Dismiss
Defendant contends the trial court erred when it denied his pretrial motion to
dismiss, which alleged outrageous government conduct. We disagree.
A. Factual and Procedural Background
1. Defendant’s Motion
On January 22, 2024, defendant moved to dismiss the case, alleging that the
prosecution had committed prejudicial misconduct violating his right to due process, right
to counsel, and attorney-client privilege by improperly attempting to gain access to
privileged communications between defendant, Dain Weiner--defendant’s attorney at the
time of the alleged misconduct--and Weiner’s investigator, Steve Clifford.6 Specifically,
defendant asserted that Richard Horn, a district attorney’s office investigator, had 1)
unsuccessfully attempted to review an attorney-client privileged jailhouse telephone call
from defendant to Clifford, 2) surreptitiously recorded a conversation with Clifford about
privileged communications with defendant and attorney work product, and 3) called
Weiner to inquire about privileged communications with defendant and attorney work
product.
2. Prosecution’s Opposition to Defendant’s Motion
The prosecution opposed defendant’s motion to dismiss. The opposition
recounted that on June 16, 2020, S.N., JD2’s mother and defendant’s former wife, called
the El Dorado County Sheriff’s Office to report that “[d]efendant’s attorney Dain Weiner
and his private investigator Stephen Clifford were trying to bribe her with money.” The
prosecutor informed the sheriff’s office that the district attorney’s office would not
6 Weiner substituted out as defendant’s attorney in late 2020.
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conduct the investigation due to a potential conflict of interest, and detectives from the
sheriff’s office followed up with S.N.
On July 21, detectives conducted a follow-up interview with S.N. During the
follow-up call, S.N. reported that on July 8, while defendant was in custody, Clifford
asked her for permission to interview her children. S.N. was hesitant because she did not
want the children to be further traumatized by reliving the charged incident in which
defendant had put his forearm on JD2’s throat.
A few days later, S.N. met Clifford at defendant’s home to provide him with a key
to defendant’s truck to allow Clifford to retrieve defendant’s belongings. S.N. informed
Clifford that she would arrive early to unlock the gate for him, but he had already entered
the property when she arrived. S.N. explained that although the gate is locked, the gate
could be opened without unlocking it by lifting a post. Clifford searched defendant’s
truck and emerged with $5,000 in cash--which he said he found in the center console--
and told S.N. that defendant said it was there and wanted her to have some of it. S.N.
told Clifford that she and her daughter had previously searched the truck and did not find
any cash inside, and Clifford responded, “ ‘No, it was there right on top.’ ” S.N. found
this to be suspicious because defendant had never paid her money in the past, including
for child support. Clifford told S.N. he would talk to defendant and follow up with her.
Clifford called S.N. a few hours later, and they met at a park. Clifford spoke to
S.N.’s daughter for approximately an hour, after which he handed S.N. an envelope with
$3,000 in cash and told her that defendant really wanted her to have the money to help
her and her family. Clifford told her not to tell anyone about the money and that the
exchange should remain between her, Weiner, and defendant.
S.N. called the sheriff’s office, reported the incident, and gave the money to a
detective. She was sure Clifford did not find the $5,000 in the truck, but rather had
brought the money with him and had planted it before she arrived at defendant’s house.
She believed the money was payment for producing her daughter for an interview, and he
8
would have paid her the full $5,000 had she produced both her children for interviews.
Defendant subsequently told her that she was supposed to keep only $1,000 and deposit
the rest into his account; she responded that she no longer had the money.7
S.N. further reported that JD1 told her that Clifford had offered JD1 $10,000 to
drop the charges against defendant, and detectives contacted JD1 after they concluded
their interview with S.N. JD1 reported that she met Clifford twice. The first time was a
couple days before defendant’s first court appearance related to this case; Clifford said
defendant was up against some big charges and asked JD1 if she would be willing to drop
them. After JD1 declined, Clifford added that the outcome of defendant’s case depended
on what JD1 had to say, and the detectives would listen to her if she told them she did not
want defendant to go to jail. JD1 again declined.
During their second encounter, Clifford told JD1 that defendant was willing to pay
her $10,000 to drop the charges. Clifford said it was “legal” for him to offer money to
dismiss the charges, and he repeatedly cited a law, although JD1 did not remember what
it was. It did not appear to JD1 that Clifford possessed any money during their meeting.
JD1 believed that defendant had previously paid JD3 money and gave her a vehicle in
exchange for her dropping domestic violence charges against him.
In September 2021, the prosecutor became concerned that the sheriff’s office had
not completed investigating potential witness bribery or dissuasion because she had to
comply with pretrial discovery obligations before the upcoming November 2021 trial
date. (This trial date was ultimately vacated due to witness unavailability.)
On September 14, Horn began conducting a follow-up investigation. He requested
copies of all reports and evidence from the sheriff’s office, which was delivered on
7 Horn subsequently obtained a recording of a July 6, 2020, call from defendant to
his father in which defendant stated that S.N. had $3,000 of his money and had not
deposited it into his account.
9
September 22. On September 15, he pulled all telephone calls defendant made from the
county jail between May 2020 and September 15, 2021, to determine whether any calls
needed to be preserved as evidence of witness tampering; he intended to request a special
master to review any preserved calls. He found one call from defendant to Clifford and
attempted to review it, but he could not do so because the jail did not record it. He
subsequently sought to determine whether attorney-client jail calls could be recovered
with a search warrant; he was informed that attorney-client communications were not
recorded and could not be recovered.
On September 21, Horn met with JD1 to conduct a pretext call between JD1 and
Clifford. During the call, JD1 asked Clifford whether the offer to her was still available;
Clifford responded that he would contact defendant’s current attorney to find out. JD1
did not hear back from Clifford.
On June 8, 2022, Horn interviewed Clifford and surreptitiously recorded the
conversation. Clifford confirmed that he met S.N. to interview her daughter and admitted
that defendant told him there was $5,000 in the center console of his truck and to give the
money to S.N. for “her and the children.” Clifford further acknowledged that he offered
JD1 $10,000 as a “civil compromise” at the direction of defendant and Weiner. Horn did
not question Clifford about any other communications with defendant or Weiner.
Horn interviewed Weiner the same day and surreptitiously recorded the
conversation. Weiner said that defendant wanted to try to resolve the case civilly, and
Weiner sent Clifford to investigate the possibility of a civil compromise with JD1, but
she was not interested. Weiner agreed that “somebody can make th[e] argument” that an
offer of civil compromise could constitute a bribe or witness dissuasion if resolving the
charged crime by civil compromise “wasn’t completely authorized by the code section,”
and the offer was made without a “good faith intent to try to resolve it civilly.” Weiner
explained that a defense attorney could not say to a complaining witness, “hey, if we pay
you this, will you dismiss the case…. [Y]ou got to be a little more, you know, subtle
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about it.” Horn relayed JD1’s assertion that Clifford offered her $10,000 to drop the
case; Weiner responded that his “guess” was that the interaction proceeded differently to
how JD1 remembered it. Horn did not ask Weiner about other communications between
himself and Clifford or defendant.
The prosecutor argued that no misconduct had occurred because any attorney-
client communications were not privileged, or the privilege had been waived. The
prosecutor further argued that the communications were not covered by the attorney-
client privilege because they were subject to the “crime-fraud” exception.8 (Evid. Code,
§ 956.) The prosecutor added that the district attorney’s office had an ethical obligation
to investigate whether witnesses in the case had been bribed, or whether there had been
any attempt to dissuade witnesses from testifying. Finally, the prosecutor argued that
defendant could not show that he suffered any prejudice.
3. Trial Court Ruling
On February 1, 2024, the trial court denied defendant’s motion to dismiss, finding
no misconduct by the prosecution. The court observed that JD1 reported an offer of
$10,000 to not prosecute, S.N. reported a $3,000 payment, and Weiner had told Horn that
he, Clifford, and defendant had sought to civilly compromise defendant’s case. The court
determined that “there’s no way in hell this case ever could have been civilly
compromised” because such compromises could only be reached to settle misdemeanor
offenses and are prohibited in domestic violence cases or where the alleged victim is a
minor, both of which applied here. Accordingly, the district attorney’s office was entitled
to investigate whether defendant, Weiner, and Clifford had engaged in conspiracy to
8 Evidence Code section 956, subdivision (a) provides: “There is no privilege under
this article if the services of the lawyer were sought or obtained to enable or aid anyone
to commit or plan to commit a crime or a fraud.”
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bribe or dissuade witnesses pursuant to the crime-fraud exception to the rule of attorney-
client confidentiality, including by contacting Weiner and Clifford.
The trial court further observed that during his investigation, Horn did not obtain
any writings reflecting Weiner’s impressions, conclusions, opinions, legal research, or
theories of the case (see Code Civ. Proc., § 2018.030, subd. (a)), and did not listen to any
communications between defendant and trial counsel.
B. Legal Background
The attorney-client privilege authorizes a client to refuse to disclose, and to
prevent others from disclosing, confidential communications between lawyer and client.
(Evid. Code, §§ 950 et seq.; People v. Navarro (2006) 138 Cal.App.4th 146, 156.) The
privilege is fundamental to our legal system, and safeguarding a client’s confidences is
one of a lawyer’s most basic obligations. (Navarro, at p. 156.) While the privilege is a
rule of evidence and does not supply a constitutional right, a governmental intrusion into
the attorney-client privilege to obtain privileged information may violate the Sixth
Amendment right to counsel, which attaches when charges are brought. (Id. at p. 157.)
Such intrusions typically involve government misconduct, including infiltrating the
defense or intercepting confidential communications. (Ibid.)
“When conduct on the part of the authorities is so outrageous as to interfere with
an accused’s right of due process of law, proceedings against the accused are thereby
rendered improper. [Citations.] Dismissal is, on occasion, used by courts to discourage
flagrant and shocking misconduct by overzealous governmental officials in subsequent
cases.” (Boulas v. Superior Court (1986) 188 Cal.App.3d 422, 429; see Morrow v.
Superior Court (1994) 30 Cal.App.4th 1252, 1260-1261 [dismissal was appropriate
where prosecutor acquired confidential information by eavesdropping on privileged
attorney-client communication in the courtroom].) However, where government conduct
12
involves a deliberate violation of the Sixth Amendment, dismissal is inappropriate absent
demonstrable prejudice, or substantial threat thereof. (Morrow, at p. 1260.)
Evidence Code section 956 creates an exception to the attorney-client privilege.
“ ‘To invoke the Evidence Code section 956 exception to the attorney-client privilege, the
proponent must make a prima facie showing that the services of the lawyer “were sought
or obtained” to enable or to aid anyone to commit or plan to commit a crime or fraud.’ ”
(State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 643
(State Farm).) A prima facie case is “one which will suffice for proof of a particular fact
unless contradicted and overcome by other evidence. In other words, evidence from
which reasonable inferences can be drawn to establish the fact asserted.” (BP Alaska
Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1262.) A “mere
assertion of fraud is insufficient; there must be a showing the fraud has some foundation
in fact.” (Ibid.) A client’s mere attempt to defraud or perpetrate a crime by seeking the
enlistment of counsel’s services suffices to defeat the privilege. (Id. at pp. 1262-1263.)
We review a trial court’s finding on the crime-fraud exception for substantial
evidence, and we “ ‘may not weigh the evidence, resolve conflicts in the evidence, or
resolve conflicts in the inferences that can be drawn from the evidence. If there is
substantial evidence in favor of the finding, no matter how slight it may appear in
comparison with the contradictory evidence, the finding must be affirmed. [Citation.]’
(Italics added.) Thus, we focus upon whether there is sufficient evidence to support the
implied finding of a prima facie case to apply the crime/fraud exception: whether the
services of [defense counsel] were retained and utilized to enable [the client] to commit a
crime or a fraud; and whether there exists ‘ “a reasonable relationship between the [crime
or] fraud and the attorney-client communication. [Citation.]” ’ (People v. Superior Court
(Bauman & Rose) [(1995)] 37 Cal.App.4th [1757,] 1769.) In that connection, it is the
intent of the client upon which attention must be focused and not that of the lawyers.
(Glade v. Superior Court (1978) 76 Cal.App.3d 738, 746.)” (State Farm, supra, 54
13
Cal.App.4th at p. 645.) The proponent of the crime-fraud exception bears the burden of
proof of the existence of crime or fraud. (Id. at p. 643; BP Alaska Exploration, Inc. v.
Superior Court, supra, 199 Cal.App.3d at p. 1262.)
C. Analysis
Defendant contends the trial court erroneously denied his motion to dismiss
because the prosecution sent Horn to obtain confidential information from Weiner and
Clifford in the absence of any evidence that defendant used Weiner and Clifford to
commit a crime.
The Attorney General first argues that Horn did not seek to obtain confidential
information because he only inquired about Clifford’s and Weiner’s conversations with
JD1 and S.N., and did not seek to obtain any information about communications between
defendant and Weiner or Clifford.9 But as defendant points out, Horn’s interview of
Clifford elicited defendant’s statements to Clifford about the location of the money in
defendant’s truck, his directive to pay S.N., and his directive to offer a civil compromise
to JD1. Similarly, Horn elicited Weiner’s statement that defendant had directed the civil
compromise offer to JD1. Accordingly, Horn’s interviews with Clifford and Weiner
were not limited to eliciting information about Clifford’s discussions with S.N. and JD1,
but rather included substantive information about communications between defendant
and Weiner and Clifford made in the course of the attorney-client relationship. These
communications were privileged unless the crime-fraud exception applied.
9 The Attorney General does not argue, as the People did in the trial court, that the
communications were not privileged, or that Clifford waived the privilege, on the basis
that Clifford disclosed the information contained in the communications to S.N. and JD1.
(See Johnson v. Department of Transportation (2025) 109 Cal.App.5th 917, 935
[attorney-client privilege protects transmission of information regardless of whether it is
discoverable from other sources], id. at p. 939 [attorney’s client, not attorney or
attorney’s agent, holds the privilege, and privilege is not waived when client’s agent
discloses a privileged communication without the client’s authorization].)
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As we discussed previously, the trial court found that the crime-fraud exception
applied and entitled Horn to investigate defendant’s conduct through interviews with
Weiner and Clifford. The court reasoned that defendant’s case could not be civilly
compromised, and therefore Clifford’s $3,000 payment to S.N. and $10,000 civil
compromise offer to JD1 as directed by defendant suggested a conspiracy to bribe or
dissuade witnesses.
Defendant challenges the trial court’s findings and argues the crime-fraud
exception does not apply because there was no proof that he intended to use his legal
team to bribe, dissuade, or threaten any witness against him. Specifically, defendant
argues that S.N.’s statement to law enforcement provided no evidence beyond her
suspicion that defendant meant the money he gave her to constitute a bribe, and the offer
to JD1 constituted a mere attempt to explore the possibility of a civil compromise. As we
now explain, we disagree.
Initially, we agree with the trial court that defendant’s case could not be civilly
compromised. Civil compromises are governed by Penal Code sections 1377 and 1378;
section 1377 provides in relevant part: “When the person injured by an act constituting a
misdemeanor has a remedy by a civil action, the offense may be compromised, as
provided in Section 1378, except when it is committed as follows:” “(c) With an intent
to commit a felony.” “(e) By or upon any family or household member, or upon any
person when the violation involves any person described in Section 6211 of the Family
Code or subdivision (b) of Section 13700 of this code.” “(g) Upon a child, as described
in Section … 11165.6.” Family Code section 6211, subdivision (c) defines domestic
violence in part as abuse perpetrated against “[a] person with whom the respondent is
having or has had a dating or engagement relationship,” and Penal Code section 13700,
subdivision (b) defines “ ‘[d]omestic violence’ ” in part as “abuse committed against an
adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person
with whom the suspect has had a child or is having or has had a dating or engagement
15
relationship.” Penal Code section 11165.6 defines “ ‘child abuse or neglect’ ” in part as
“physical injury or death inflicted by other than accidental means upon a child by another
person.”
Section 1378 provides that the trial court “may, in its discretion, on payment of the
costs incurred, order all proceedings to be stayed upon the prosecution, and the defendant
to be discharged therefrom,” if the person injured “appears before the court in which the
action is pending at any time before trial, and acknowledges that [she] has received
satisfaction for the injury.”
Defendant acknowledges that the alleged offense related to JD1 could not have
been civilly compromised as charged, but he argues that civil compromise was possible if
the prosecutor reduced the felony charges to misdemeanors and removed all allegations
of domestic violence, and the trial court approved the compromise by finding that it
complied with statutory requirements, was a voluntary act by the alleged victim, and
appeared in the interests of justice. We note first that it is highly unlikely the prosecutor
would have agreed to such a reduction in this case. But even if JD1 agreed to
compromise, and the prosecutor agreed to reduce the charges, civil compromise was
prohibited as to the charges related to JD1 because it is undisputed that defendant and
JD1 were involved in a dating relationship, and the court was authorized to examine the
underlying facts of the charged offense to determine whether civil compromise was
statutorily prohibited. (See People v. Gokcek (2006) 138 Cal.App.4th Supp. 8, 19-20
[court may examine underlying facts of the charged offense to determine whether civil
compromise is precluded by statute]; People v. Moulton (1982) 131 Cal.App.3d Supp. 10,
17 [prosecutor’s charging decision “has little if any relationship” to the issue of whether
civil compromise is prohibited].)
Next, substantial evidence supports the trial court’s implied finding that, because
civil compromise was prohibited, the prosecution established a prima facie case of
witness bribery or dissuasion to support the application of the crime-fraud exception to
16
the attorney-client confidentiality rule. During their first encounter, Clifford asked JD1
“if she would be willing to drop [the charges against defendant],” stated that the outcome
of defendant’s case depended on what JD1 “had to say,” and indicated that she could
influence the outcome of defendant’s case by telling detectives she did not want
defendant to go to jail. Having failed to convince JD1 to “drop the charges” for free,
during their second encounter Clifford told JD1 that defendant was willing to pay her
$10,000 to drop the charges against him. JD1’s son was present for JD1’s conversation
with Clifford, and he confirmed Clifford’s offer. In the absence of any possibility that
defendant’s charges could be civilly compromised, substantial evidence supports the
finding that Clifford’s offer to JD1, made at defendant’s behest, constituted an effort to
bribe or dissuade her from testifying against defendant.
The trial court’s finding was further supported by defendant’s $3,000 payment to
S.N. While, as defendant correctly observes, Clifford did not expressly condition the
$3,000 payment to S.N. on any threat or promise, the circumstances of the payment
suggest that it was not intended as support for her family--whom he had never financially
supported before--but rather to affect her children’s testimony against defendant.
Further, there was evidence that defendant had previously engaged in a financial
settlement with JD3, another of his victims of domestic violence. Evidence of these other
acts support the trial court’s observation that defendant, Weiner, and Clifford had
engaged in a conspiracy to bribe or dissuade the witnesses against defendant.
Because substantial evidence supports the trial court’s implied finding that JD1’s
and S.N.’s reports of made or proposed payments constituted a prima facie case of
witness bribery or dissuasion, defendant has failed to demonstrate that the trial court
erred when it denied his motion to dismiss.
17
II.
Prosecutorial Error Claim
Defendant claims the prosecutor committed prejudicial misconduct during closing
argument when she urged the jury to find him guilty to end the “cycle of violence.”
Recognizing trial counsel’s failure to object to the prosecutor’s argument, defendant
argues in the alternative that trial counsel was constitutionally ineffective for failing to
object. We conclude defendant has forfeited this claim and has failed to demonstrate
ineffective assistance.
A. Procedural Background
The prosecution moved in limine to admit evidence regarding the “cycle of
violence” in abusive relationships, which would involve testimony about the effect of
physical, emotional, and mental abuse on the behaviors of domestic violence victims, and
would act to “dispel some of the common myths and misconceptions as it relates to
domestic violence.”
At trial, Horn testified as an expert on domestic violence and described the cycle
of violence that often exists in abusive relationships. The trial court instructed the jury:
“Intimate partner battery and its effects relate to a pattern of behavior that may be present
in domestic abuse cases. Testimony as to the effects of intimate partner battery were
offered only to explain certain behavior of an alleged victim of domestic abuse. [¶]
Investigator Horn’s testimony about intimate partner battery and the cycle of violence is
not evidence that the defendant committed any of the crimes charged against him or any
conduct or crimes where he is not charged. [¶] You may consider this evidence only in
deciding whether or not [JD1] and [JD3]’s conduct was consistent with the conduct of
someone who has been abused and in evaluating the believability of her testimony.”
Both parties discussed the cycle of violence during their closing arguments. The
prosecutor argued that the jury had “received tremendous evidence on this sort of bigger
picture of manipulative cycles of violence and are going on over and over and over again
18
and they just keep repeating themselves, and so we’re going to talk about it a lot.” She
subsequently added: “[T]his trial has brought forth such an important and in a lot of
ways beautiful message and that is breaking the cycle of violence.” She argued that the
charged incidents “were the culmination of a lot of stuff. A lot of bad, unhealthy, toxic
relationships, being treated, frankly, like crap.” “And the evidence really showed that
there was just this cycle that we’re talking about.” She argued that JD3’s inability to
leave defendant “kind of falls into the cycle of violence,” and the incidents involving JD1
and JD3 resulted from their attempts to “stand up” to defendant, noting, “[w]e see what
happens in that cycle.” Ultimately, the prosecutor argued, defendant “clearly has a
problem with violence and is escalating.” Defense counsel did not object to these
arguments.
During her rebuttal argument, the prosecutor noted that the incidents involving
JD1, JD2, and JD3 were tried together “because of the cycle of violence.” At the
conclusion of her rebuttal argument, the prosecutor said to the jury: “[Defendant] has
shown himself to be violent and is escalating and this is happening over and over again.
Stop the cycle now, please.” She concluded her argument by saying, “And I ask you to
stop this cycle and that you return verdicts of guilty on all charges because [defendant] is
guilty. Thank you.” Defense counsel did not object.
B. Legal Background and Forfeiture
An expert’s testimony about the cycle of violence that characterizes intimate
partner battering is admissible under Evidence Code section 1107, which provides in
relevant part: “In a criminal action, expert testimony is admissible by either the
prosecution or the defense regarding intimate partner battering and its effects, including
the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions,
or behavior of victims of domestic violence, except when offered against a criminal
defendant to prove the occurrence of the act or acts of abuse which form the basis of the
19
criminal charge.” (Id., subd. (a).) When “testimony [regarding intimate partner
battering] is properly admitted, testimony about the hypothetical abuser and hypothetical
victim is needed for [the dynamics of a violent intimate relationship] to be understood.”
(People v. Gadlin (2000) 78 Cal.App.4th 587, 595.)
“ ‘[A] defendant cannot complain on appeal of misconduct by a prosecutor at trial
unless in a timely fashion he made an assignment of misconduct and requested that the
jury be admonished to disregard the impropriety.’ ” (People v. Clair (1992) 2 Cal.4th
629, 662, quoting People v. Benson (1990) 52 Cal.3d 754, 794.)
On appeal, defendant challenges only the prosecutor’s final two statements in her
rebuttal argument; he does not refer to or challenge the remainder of the prosecutor’s
closing or rebuttal arguments. Because defense counsel did not object to either of the
statements defendant now challenges on appeal, he forfeited his claim.
C. Ineffective Assistance Claim
Anticipating forfeiture, defendant claims that trial counsel was constitutionally
ineffective for failing to object to the arguments he challenges on appeal. To establish a
claim of ineffective assistance of counsel, defendant must prove: (1) trial counsel’s
representation was deficient because it fell below an objective standard of reasonableness
under prevailing professional norms, and (2) the deficiency resulted in prejudice to
defendant. (People v. Mai (2013) 57 Cal.4th 986, 1009; Strickland v. Washington (1984)
466 U.S. 668, 687-688 (Strickland).) Proving deficient performance requires the
defendant to show “that counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” (Strickland, at p.
687.)
However, “a court need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant as a result of the
alleged deficiencies.” (Strickland, supra, 466 U.S. at p. 697.) To demonstrate prejudice,
20
a defendant “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” (Id. at p. 694.) “[T]he petitioner must carry his burden of proving prejudice
as a ‘demonstrable reality,’ not simply speculation as to the effect of the errors or
omissions of counsel.” (People v. Williams (1988) 44 Cal.3d 883, 937.)
Defendant argues he was prejudiced because the challenged arguments
“encouraged the jury, rather than finding facts with respect to credibility, instead to act as
warriors in a culture war between men and women and vote in an emotional rather than
logical fashion on the charges against [defendant].” However, on appeal, defendant
challenges only the prosecutor’s two comments at the end of her rebuttal argument, in
which she asked the jury to “stop the cycle.” As we have already observed, the
prosecutor discussed the cycle of violence at length during her closing argument. The
challenged comments were a minor portion of her conclusion on rebuttal and essentially a
brief summation of the unchallenged argument regarding the cycle of violence that had
preceded it. In the absence of any challenge to the remainder of the prosecutor’s
argument, we cannot say that defendant suffered prejudice based only on trial counsel’s
failure to object to the prosecutor’s final two statements about the cycle of violence.
Finally, the trial court instructed the jury about the limited purpose of intimate
partner battery evidence, and we presume the jury understood and followed the trial
court’s instructions. (People v. Wilson (2008) 44 Cal.4th 758, 803.) There is no
reasonable likelihood of a different result had defense counsel objected to the challenged
arguments. (See Strickland, supra, 466 U.S. at p. 694.)
III.
Aggravating Factor Claim
Defendant contends insufficient evidence supports the trial court’s true finding on
the aggravating factor allegation that he “threatened witnesses, unlawfully prevented or
21
dissuaded witnesses from testifying, suborned perjury, or in any other way illegally
interfered with the judicial process.” (Rule 4.421(a)(6).) We disagree.
A. Applicable Law and Standard of Review
The trial court must impose a sentence not to exceed the middle term unless “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.” (§ 1170, subd. (b)(2).) The
“circumstances in aggravation” referred to in section 1170 are detailed in rule 4.421,
which the trial court must apply when sentencing a defendant (§ 1170, subd. (a)(3)).
We review a claim that a circumstance in aggravation is not supported by
sufficient evidence under the substantial evidence standard. (People v. Mendez-Torres
(2025) 113 Cal.App.5th 1007, 1020.) We examine the record in the light most favorable
to the judgment and determine if there is reasonable, credible, and solid evidence from
which a trier of fact could make the required findings beyond a reasonable doubt. (Id. at
p. 1015.) We accept logical inferences that the trial court might have drawn from
circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) A single
witness’s testimony can support a conviction, or circumstance in aggravation, unless it is
impossible or inherently improbable. (Evid. Code, § 411; People v. Young (2005) 34
Cal.4th 1149, 1181.) We do not reassess witness credibility or reweigh the evidence
(People v. D’Arcy (2010) 48 Cal.4th 257, 293), and we will not reverse a finding merely
because the evidence could support an alternative conclusion (People v. Westerfield
(2019) 6 Cal.5th 632, 713).
B. Additional Background
At trial, defendant admitted that he attempted to reach a “civil compromise” with
JD1 on advice of counsel, although he disagreed that he intended to “buy out [JD1].” He
22
testified that he did not agree to offer JD1 $10,000, although he “agreed to let my lawyers
do what they wanted to do,” and he was agreeable to “almost … anything when [he] was
in jail to get out.” He then conceded that he sent Clifford to offer JD1 money, but he
reiterated that he acted on advice of counsel. He testified that he did not know what
would happen if JD1 accepted the money, but he “wanted this to end.” When asked if he
thought that the case would end if she accepted the money, defendant responded,
“Possibly, yeah.”
Weiner testified at trial that defendant believed JD1 “just wanted money,” and she
would not be interested in pursuing the case “if she was provided money.” Weiner stated
that, on his advice, defendant agreed to attempt to settle the case through a civil
compromise. They did not pursue a civil compromise after JD1 expressed her disinterest
in the offer. Weiner confirmed that defendant said $10,000 was the maximum he could
offer to JD1.
Defendant also testified that he reached a financial settlement of $3,040 with JD3
through his lawyer after she filed a petition for a domestic violence restraining order.
Defendant acknowledged that he “just wanted it to be over” and that “money makes
things -- you know,” but denied that he was “trying to pay [JD3] off” to make the
restraining order “go away.” Defendant added that he acted on advice of counsel. As to
S.N., defendant testified that he sent Clifford to give her $3,000 to deposit into his bank
account. Defendant recalled writing a letter to S.N. in which he asked her not to say bad
things about him, that he was a good father, and they needed to be a team and work
together for their children.
During argument on the aggravating circumstances allegations, defense counsel
observed: “I’m not going to get into whether Mr. Weiner was proper going to [JD1] and
offering her money. It’s not something I would have done in my practice. I’ve never
seen it done in practice for cases like this, but certainly if he’s giving advice to
[defendant] saying that you know what, if she’ll take money and that will make it go
23
away, we can do that.” In rebuttal, the prosecutor observed, “So what we have is a man
… who is offering [victims] money in exchange for them not cooperating with law
enforcement, with the prosecution, and this is by its very definition bribery. And when
you look at it as a whole as this guilty man who said he would do anything to get out of
jail, which is what he said about offering her $10,000. That is wrong. That is
aggravating. That is an aggravating factor under the law based on what he did in his
behavior.”
In finding true the allegation that defendant “threatened witnesses, unlawfully
prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way
illegally interfered with the judicial process” (rule 4.421(a)(6)), the trial court found:
“The Court feels the offers of $10,000 was to dissuade [JD1] from testifying. That’s the
whole purpose of having made that offer. It was an offer that clearly can’t be made. This
is a [domestic violence] case. You can’t civilly compromise a [domestic violence] case.
It’s a sexual allegation; you can’t dissuade a witness by offering a civil compromise.
That had that very purpose. The object was to dissuade the witness from testifying, so I
do find that has been proved [beyond a reasonable doubt].”
C. Analysis
Defendant contends the evidence of the offer to JD1 of $10,000 to drop the
charges against him was not a completed act, but rather merely constituted “initial
questioning of JD1 to see if she had interest” in a civil compromise, not a bribe,
intimidation, or attempt to dissuade her from testifying. We previously rejected
defendant’s argument that his case could have been resolved by a civil compromise.
Weiner testified that defendant believed JD1 “just wanted money” and would not
pursue the case if she were “provided money.” Defendant testified that “money makes
things -- you know,” suggesting his belief that money makes things go away, he
acknowledged that he thought the case would end if JD1 accepted money from him, and
24
he agreed that he was agreeable to “almost … anything when [he] was in jail.” As
defense counsel put it, defendant attempted to determine whether JD1 would “take
money and that will make it go away.” Substantial evidence supports the trial court’s
finding that the $10,000 offer to JD1 constituted an attempt to illegally interfere with the
judicial process.
D. Misconduct by Weiner
Rule 3.4(d) of the Rules of Professional Conduct provides that a lawyer shall not
“directly or indirectly pay, offer to pay, or acquiesce in the payment of compensation to a
witness contingent upon the content of the witness’s testimony or the outcome of the
case.” The record shows that Weiner violated his duty under this statute in his capacity
as counsel for defendant by participating in a scheme to pay JD1 in exchange for her not
testifying against defendant. Further, Weiner testified at trial that his conduct was
appropriate and that he would not have been doing his “due diligence as a defense
attorney” if he did not explore the possibility of a civil compromise, which suggests that
this was not an isolated incident but rather part of an ongoing problem likely to recur.
Accordingly, pursuant to canon 3D(2) of the California Code of Judicial Ethics,10 we
hereby report Dain Weiner to the State Bar of California for his misconduct.
IV.
Section 654
Defendant claims section 654 precludes sentencing on both domestic violence
convictions (§ 273.5, subd. (a); counts 2 & 3) and on the false imprisonment conviction
(§ 236; count 4), because the criminal acts involved an indivisible course of conduct. We
10 Canon 3D(2) of the California Code of Judicial Ethics provides: “Whenever a
judge has personal knowledge, or concludes in a judicial decision, that a lawyer has
committed misconduct or has violated any provision of the Rules of Professional
Conduct, the judge shall take appropriate corrective action, which may include reporting
the violation to the appropriate authority.”
25
disagree with defendant’s contention as to the two domestic violence convictions, but we
agree as to the false imprisonment conviction.
Section 654, subdivision (a) provides in relevant part: “An act or omission that is
punishable in different ways by different provisions of law may be punished under either
of such provisions, but in no case shall the act or omission be punished under more than
one provision.” Section 654 does not prevent multiple convictions for the same conduct,
only multiple punishments for a single, indivisible course of action. (People v. Perez
(1979) 23 Cal.3d 545, 551.) A defendant can be punished for multiple offenses where a
course of conduct is divisible, giving rise to more than one act. (People v. Corpening
(2016) 2 Cal.5th 307, 311.)
To determine whether a course of conduct involving more than a single act is
divisible for purposes of section 654, we consider whether the course of conduct included
multiple intents and objectives. (People v. Corpening, supra, 2 Cal.5th at p. 311.) If the
defendant “entertained multiple criminal objectives which were independent of and not
merely incidental to each other, he may be punished for independent violations
committed in pursuit of each objective even though the violations shared common acts or
were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8
Cal.3d 625, 639.) “[I]f all of the offenses were merely incidental to, or were the means of
accomplishing or facilitating one objective, defendant may be found to have harbored a
single intent and therefore may be punished only once.” (People v. Harrison (1989) 48
Cal.3d 321, 335.)
However, even if there is but a single objective for a course of conduct, a temporal
break between individual acts may subject them to multiple punishments. (People v.
Andra (2007) 156 Cal.App.4th 638, 640.) “ ‘This is particularly so where the offenses
are temporally separated in such a way as to afford the defendant opportunity to reflect
and to renew his or her intent before committing the next one, thereby aggravating the
violation of public security or policy already undertaken.’ ” (Ibid.) In assessing whether
26
section 654 applies, the court may consider a number of factors, including whether the
defendant had multiple sequential intents, as well as whether he had the opportunity to
pause and reflect before continuing his course of action. (People v. Surdi (1995) 35
Cal.App.4th 685, 689.)
“The question whether section 654 is factually applicable to a given series of
offenses is for the trial court, and the law gives the trial court broad latitude in making
this determination. Its findings on this question must be upheld on appeal if there is any
substantial evidence to support them.” (People v. Hutchins (2001) 90 Cal.App.4th 1308,
1312.) Thus, we review the record in the light most favorable to the judgment and
uphold it “if the record contains reasonable, credible evidence of solid value upon which
a reasonable trier of fact could have relied in reaching the conclusion in question.’ ”
(People v. Armstrong (2016) 1 Cal.5th 432, 450.) Ultimately, “[i]f the trier of fact
determines the crimes have different intents and motives, multiple punishments are
appropriate.” (People v. Saffle (1992) 4 Cal.App.4th 434, 439.)
Substantial evidence supports the trial court’s implied finding that the two
domestic violence offenses were motivated by independent objectives. Deputy Toney
testified about his interview of JD1, and JD1 testified at trial that she told the deputy the
truth. In that interview, JD1 stated that the first instance of domestic abuse and the sexual
penetration offense occurred in the bedroom, and at the conclusion of that incident
defendant said, “ ‘Fuck you, Bitch. Die, Bitch. Get out of my house.’ ” Then, as JD1
ran toward the door, defendant grabbed her by the hair and pulled her back, after which
he committed the second charged domestic violence offense in the living room.
A reasonable fact finder could find that, at the time defendant ordered JD1 to leave
his house, he had completed the first charged domestic violence offense and had the
opportunity to pause and reflect before renewing or developing the separate intent to
commit an additional abusive act against JD1. (See People v. Surdi, supra, 35
Cal.App.4th at p. 689; People v. Trotter, supra, 7 Cal.App.4th at p. 368.) Accordingly,
27
there is substantial evidence that the second act of domestic violence was not merely
incidental to the first, but was supported by an independent criminal objective. (People v.
Beamon, supra, 8 Cal.3d at p. 639 [if second offense not merely incidental to the first and
supported by independent criminal objectives, defendant may be punished for
independent violations committed in pursuit of each objective even though violations
share common acts].)
However, we agree that defendant cannot be subjected to multiple punishments for
the false imprisonment conviction and the second domestic violence conviction. In
closing argument, the prosecutor clarified that defendant was charged with false
imprisonment for grabbing JD1 by her hair as she ran toward the door and pulling her
back toward the stairs, where he committed an additional act of domestic violence. The
trial court did not give a basis for its finding of separate intents, and the record does not
suggest that defendant pulled JD1 by the hair for any intent or objective other than as an
incidental means of committing a contemporaneous act of domestic violence. In either
version of events provided by JD1 (in her trial testimony or in her interview with Deputy
Toney), defendant’s act of preventing her from leaving the house was incidental to the
commission of the second domestic violence offense. Unlike the two domestic violence
convictions, the false imprisonment and second domestic violence offenses were both
committed to facilitate one assaultive objective. (See People v. Harrison, supra, 48
Cal.3d at p. 335.)
Disagreeing, the Attorney General argues that defendant could have committed the
two domestic violence offenses without committing the false imprisonment offense
contending the trial court could have rationally found that defendant falsely imprisoned
JD1 for the separate criminal objective of ensuring that she did not report his crimes or
leave the house with his personal property. But as we have discussed, neither version of
the events as recounted by JD1 supports the finding that the false imprisonment offense
was committed after both domestic violence offenses had been completed. As a result,
28
the facts here are distinguishable from those in the cases relied upon by the Attorney
General, where courts determined that section 654 did not require staying sentences for
offenses committed after the other offense had already been completed. (See People v.
Coleman (1989) 48 Cal.3d 112, 162-163 [the defendant had essentially completed the
robbery before committing assault; court could reasonably conclude that the defendant
committed the assault with the intent and objective of preventing the victim from
sounding the alarm about the murder]; People v. Foster (1988) 201 Cal.App.3d 20, 27
[false imprisonment not necessary or incidental to commission of robbery because the act
of locking the victims in a store cooler occurred only after the robbers had obtained all
the money].)
Based on the foregoing, we conclude defendant’s claim as to counts 3 and 4 is
well taken. Therefore, we shall vacate the sentence and remand the matter for a full
resentencing. (See People v. Mani (2022) 74 Cal.App.5th 343, 379 [§ 654 previously
required court to impose sentence that provided for longest term of imprisonment, but
now provides the trial court with discretion to impose sentence of either term]; People v.
Buycks (2018) 5 Cal.5th 857, 893 [full resentencing as to all counts is appropriate to
allow court to exercise its discretion in light of changed circumstances].)
DISPOSITION
The sentence is vacated, and the matter is remanded to the trial court for a full
resentencing hearing. The judgment is otherwise affirmed.
29
Pursuant to canon 3D(2) of the California Code of Judicial Ethics and rule 3.4(d)
of the Rules of Professional Conduct, we hereby report Attorney Dain P. Weiner to the
State Bar of California for his misconduct described in part III of this opinion. The clerk
of this court is directed to send a copy of this opinion to the State Bar of California and to
Attorney Dain P. Weiner, State Bar No. 160327, at his address listed by the State Bar.
/s/
WISEMAN, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
MESIWALA, J.
Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
30