People v. Davis CA3

Opinion

Filed 8/26/26 P. v. Davis CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 5 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.

7 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 10 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.”

11 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].)

14 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.