State Bar Court of California
Hearing Department
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND
DISPOSITION AND ORDER APPROVING DISBARMENT; ORDER OF INVOLUNTARY INACTIVE
ENROLLMENT
DISBARMENT
Case Number(s): 12-C-15305
In the Matter of: DANIEL MADDEN HORTON, Bar # 160532, A
Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Esther J. Rogers , Bar # 148246,
Counsel for Respondent: Eric Hamilton Hintz, Bar #119211,
Submitted to: Settlement Judge.
Filed: December 11, 2013.
<<not>> checked. PREVIOUS STIPULATION
REJECTED
Note: All information required by this form and any
additional information which cannot be provided in the space provided, must be
set forth in an attachment to this stipulation under specific headings, e.g.,
"Facts," "Dismissals," "Conclusions of Law,"
"Supporting Authority," etc.
A. Parties' Acknowledgments:
1.
Respondent is a member of the State Bar of California, admitted December
9, 2002.
2.
The parties agree to be bound by the factual stipulations contained
herein even if conclusions of law or disposition are rejected or changed by the
Supreme Court.
3.
All investigations or proceedings listed by case number in the caption
of this stipulation are entirely resolved by this stipulation and are deemed consolidated.
Dismissed charge(s)/count(s) are listed under "Dismissals." The
stipulation consists of 10 pages, not including the order.
4.
A statement of acts or omissions acknowledged by Respondent as cause or
causes for discipline is included under "Facts."
5.
Conclusions of law, drawn from and specifically referring to the facts
are also included under "Conclusions of Law".
6.
The parties must include supporting authority for the recommended level
of discipline under the heading "Supporting Authority."
7.
No more than 30 days prior to the filing of this stipulation, Respondent
has been advised in writing of any pending investigation/proceeding not
resolved by this stipulation, except for criminal investigations.
8.
Payment of Disciplinary Costs-Respondent acknowledges the provisions of
Bus. & Prof. Code §§6086.10 & 6140.7. (Check one option only):
checked. Costs are awarded to the
State Bar.
<<not>> checked. Costs
are waived in part as set forth in a separate attachment entitled "Partial
Waiver of Costs".
<<not>> checked. Costs
are entirely waived.
9.
ORDER OF INACTIVE ENROLLMENT:
The parties are aware that if this stipulation is approved, the judge will
issue an order of inactive enrollment under Business and Professions Code
section 6007, subdivision (c)(4), and Rules of Procedure of the State Bar, rule
5.111(D)(1).
B. Aggravating Circumstances [for definition, see Standards for Attorney
Sanctions for Professional Misconduct, standard 1.2(b)]. Facts supporting
aggravating circumstances are required.
<<not>> checked. (1) Prior
record of discipline
<<not>> checked. (a) State Bar Court case # of prior case .
<<not>> checked. (b) Date prior discipline effective .
<<not>> checked. (c) Rules of Professional Conduct/ State
Bar Act violations:
<<not>> checked. (d) Degree of prior discipline
<<not>> checked. (e) If Respondent has two or more incidents
of prior discipline, use space provided below. .
<<not>> checked. (2) Dishonesty:
Respondent's misconduct was surrounded by or followed by bad faith, dishonesty,
concealment, overreaching or other violations of the State Bar Act or Rules of
Professional Conduct.
<<not>> checked. (3) Trust
Violation: Trust funds or property were involved and Respondent refused or was
unable to account to the client or person who was the object of the misconduct
for improper conduct toward said funds or property.
checked. (4) Harm: Respondent's
misconduct harmed significantly a client, the public or the administration of
justice. See Attachment, p. 8.
<<not>> checked. (5) Indifference:
Respondent demonstrated indifference toward rectification of or atonement for
the consequences of his or her misconduct.
<<not>> checked. (6) Lack of
Cooperation: Respondent displayed a lack of candor and cooperation to victims
of his/her misconduct or to the State Bar during disciplinary investigation or
proceedings.
checked. (7) Multiple/Pattern of
Misconduct: Respondent's current misconduct evidences multiple acts of
wrongdoing or demonstrates a pattern of misconduct. See Attachment, p. 8.
<<not>> checked. (8) No
aggravating circumstances are involved.
Additional aggravating circumstances: .
C. Mitigating Circumstances [see standard 1.2(e)]. Facts supporting
mitigating circumstances are required.
<<not>> checked. (1) No Prior Discipline: Respondent has no prior record
of discipline over many years of practice coupled with present misconduct which
is not deemed serious.
<<not>>
checked. (2) No Harm: Respondent did not harm the client or person who was
the object of the misconduct.
<<not>>
checked. (3) Candor/Cooperation: Respondent displayed spontaneous candor and
cooperation with the victims of his/her misconduct and to the State Bar during
disciplinary investigation and proceedings.
<<not>>
checked. (4) Remorse: Respondent promptly took objective steps spontaneously
demonstrating remorse and recognition of the wrongdoing, which steps were
designed to timely atone for any consequences of his/her misconduct.
<<not>>
checked. (5) Restitution: Respondent paid $ on in restitution to without
the threat or force of disciplinary, civil or criminal proceedings.
<<not>>
checked. (6) Delay: These disciplinary proceedings were excessively
delayed. The delay is not attributable to Respondent and the delay prejudiced
him/her.
<<not>>
checked. (7) Good Faith: Respondent acted in good faith.
<<not>>
checked. (8) Emotional/Physical Difficulties: At the time of the stipulated
act or acts of professional misconduct Respondent suffered extreme emotional
difficulties or physical disabilities which expert testimony would establish
was directly responsible for the misconduct. The difficulties or disabilities
were not the product of any illegal conduct by the member, such as illegal drug
or substance abuse, and Respondent no longer suffers from such difficulties or
disabilities.
<<not>>
checked. (9) Severe Financial Stress: At the time of the misconduct,
Respondent suffered from severe financial stress which resulted from
circumstances not reasonably foreseeable or which were beyond his/her control
and which were directly responsible for the misconduct.
<<not>>
checked. (10) Family Problems: At the time of the misconduct, Respondent
suffered extreme difficulties in his/her personal life which were other than
emotional or physical in nature.
<<not>>
checked. (11) Good Character: Respondent's good character is attested to by a
wide range of references in the legal and general communities who are aware of
the full extent of his/her misconduct.
<<not>>
checked. (12) Rehabilitation: Considerable time has passed since the acts of
professional misconduct occurred followed by convincing proof of subsequent
rehabilitation.
<<not>>
checked. (13) No mitigating circumstances are involved.
Additional
mitigating circumstances: No prior record of discipline, See Attachment, p. 8.
Pretrial
Stipulation, See Attachment, p. 8.
Good
Character, See Attachment, p. 8.
D. Discipline: Disbarment.
E. Additional Requirements:
(1) Rule 9.20,
California Rules of Court: Respondent must comply with the requirements of
rule 9.20, California Rules of Court, and perform the acts specified in
subdivisions (a) and (c) of that rule within 30 and 40 calendar days,
respectively, after the effective date of the Supreme Court's Order in this
matter.
<<not>> checked. (2) Restitution:
Respondent must make restitution to in the amount of $ plus 10 percent
interest per year from . If the Client Security Fund has reimbursed for all
or any portion of the principal amount, respondent must pay restitution to CSF
of the amount paid plus applicable interest and costs in accordance with
Business and Professions Code section 6140.5. Respondent must pay the above
restitution and furnish satisfactory proof of payment to the State Bar's Office
of Probation in Los Angeles no later than days from the effective date of the
Supreme Court order in this case..
<<not>> checked. (3) Other: .
Attachment language (if any):.
ATTACHMENT TO
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
IN THE MATTER OF: DANIEL MADDEN HORTON, State Bar No. 160532
STATE BAR COURT CASE NUMBER: 12-C-15305
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that the facts and
circumstances surrounding the offense for which he was convicted involved moral
turpitude.
Case No. 12-C-17435-PEM (Conviction Proceedings)
PROCEDURAL BACKGROUND IN CONVICTION PROCEEDING:
1. This is a proceeding pursuant to sections 6101 and 6102 of the Business
and Professions Code and rule 9.10 of the California Rules of Court.
2. On February 15, 2012, in People v. Horton, Sacramento Superior Court, case
number 12M00022, Respondent was charged with three counts: a violation of Penal
Code section 647.6(a)(2) [motivated by unnatural sexual interest in children],
and a violation of Penal Code 664/288.4(a)(1) [motivated by unnatural sexual
interest in children, attempting to arrange a meeting] and a violation of Penal
Code section 647.6(a)(2) [motivated by unnatural sexual interest in children].
3. On June 2, 2012, Respondent plead no contest and was convicted of
violating Penal Code section 647.6(a)(2) [motivated by unnatural sexual
interest in children]. The remaining two counts were dismissed in the interest
of justice.
4. Respondent was sentenced to 90 days’ jail time, and three years’
probation. Respondent was also required to register as a sex offender under
Penal Code section 290 and complete a sex offender management program.
5. On July 8, 2013, the Review Department of the State Bar Court issued an
order referring the matter to the Heating Department for a hearing and decision
recommending the discipline to be imposed in the event the Hearing Department
finds the facts and circumstances surrounding the offense for which Respondent
was convicted involved moral turpitude or other misconduct warranting
discipline.
FACTS:
6. Prior to February 2012, Respondent served as a juvenile judicial
commissioner for the Sacramento County Superior Court. In that capacity,
Respondent presided over hearings in matters initiated under Welfare and
Institution Code section 300 [juvenile dependency hearings] and section 602
[juvenile detention hearings].
7. On February 2, 2012, The Sacramento Police Department conducted a sting
operation on Respondent. The sting operation arose from allegations Jane Doe
made regarding Respondent as follows: In November 2010, Respondent entered a
tanning salon in Sacramento and approached employee Jane Doe. Jane Doe was
alone in the salon. Respondent falsely stated that he was a modeling agent
searching for a tanning salon for his models’ use. Respondent asked Jane Doe if
she would audition to be one of his models. Respondent convinced Jane Doe that
she likely had a body to model nude and informed her she could make $600 per
nude photo shoot. When Respondent raised the topic of nude modeling, Jane Doe
revealed to Respondent that she was only 17 years old. At Respondent’s
suggestion, Jane Doe put on a bathing suit. Respondent informed Jane Doe that
he needed to see her bare breasts to determine whether she would qualify for
nude modeling and Jane Doe complied. During the course of Respondent’s
interaction with Jane Doe, Respondent inappropriately touched Jane Doe and
indecently exposed himself.
8. Approximately one year after the incident, Jane Doe went to the
Sacramento Police Department. She explained to the police: she was ashamed of
the incident with Respondent and did not immediately report it to them because
she felt it was her fault for being so gullible. She was enticed by the money
and the opportunity to have air brushed photos that hid what she considered her
flaws. It was not until a year later, when her friend spotted Respondent’s car,
that Jane Doe had the courage to report the incident with Respondent to the
police.
9. By the time Jane Doe made the report, the statute of limitations to
charge Respondent with a crime had passed. Thus, the Sacramento Police
Department conducted a sting operation by deploying Amber Doe in Respondent’s
expected travel route during his lunch break from the court and Ashley Doe in
his expected travel route after he left work in the afternoon. Both decoys
could pass as juveniles but in fact Amber Doe was 20 and Ashley Doe was 18.
10. In approaching both decoys, Respondent again impersonated a modeling
agent looking for nude models. Both decoys informed Respondent they were 17 years
old, soon to turn 18.
11. Respondent inquired if Amber Doe would be interested in nude modeling
and she said responded that she was not.
12. When Respondent approached Ashley Doe, he claimed to be visiting
Sacramento from San Diego to audition two other girls in a nearby club.
Respondent inquired if Ashley Doe would be interested in auditioning to perform
in a nude video. Respondent informed Ashley Doe she could make $3,000 for a
seven or eight minute video. After Ashley Doe expressed interest in nude modeling,
Respondent asked her to do a five minute audition in a nearby alley, but Ashley
Doe declined.
13. Respondent’s conduct was abhorrent. The facts and circumstances
surrounding Respondent’s conviction involved moral turpitude. (See In Re Safran
(1976) 18 Cal. 3d 134 [conviction for annoying or molesting child may or may
not involve moral turpitude]; In the Matter of Meza (Review Dept. 1991) 1 Cal.
State Bar Ct. Rptr. 608 [the crime of child molestation involves moral
turpitude.] )
CONCLUSIONS OF LAW:
14. The facts and circumstances surrounding Respondent’s misdemeanor
conviction for Penal Code section 647.6(a)(2) [motivated by unnatural sexual
interest in children] did involve moral turpitude.
AGGRAVATING CIRCUMSTANCES.
Harm (Std. 1.2(b)(iv)): Respondent’s conduct harmed the administration of
justice. It also significantly harmed Jane Doe by altering her sense of
security and trust. Jane Doe’s immediate reaction now is to distrust men,
including at times her fiancé, with whom she has a child. She also continues to
blame herself for being naive.
Multiple Acts of Misconduct (Std. 1.2(b)(ii)): Respondent’s inappropriate
acts towards at least three victims represent multiple acts of misconduct.
MITIGATING CIRCUMSTANCES.
No Prior Record of Discipline: Although Respondent’s misconduct is serious,
he is entitled to mitigation for having practiced law for approximately 18
years before his misconduct began without discipline. (In the Matter of Riordan
(Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41, 49.)
Pretrial Stipulation: Respondent entered into a stipulation with the State
Bar prior to trial, thereby relieving Jane Doe of the trauma she would have
suffered testifying and saving the State Bar and the State Bar Court resources.
(Silva-Vidor v. State Bar (1989) 49 Cal.3d 1071, 1079 [where mitigative credit
was given for entering into a stipulation as to facts and culpability].)
Good Character: Respondent is entitled to some mitigation based upon the
nine individuals, including three attorneys, who provided letters attesting to
Respondent’s good character. Since the individuals were unaware of the full
extent of Respondent’s conduct, the mitigation credit is reduced. (ln the
Matter of Reiss (Review Dept. 2012) 5 Cal. State Bar Ct. Rptr. 206, 219.)
AUTHORITIES SUPPORTING DISCIPLINE.
The Standards for Attorney Sanctions for Professional Misconduct provide a
"process of fixing discipline" pursuant to a set of written
principles to "better discharge the purposes of attorney discipline as
announced by the Supreme Court." (Rules Proc. of State Bar, tit. IV, Stds.
for Atty. Sanctions for Prof. Misconduct, Introduction (all further references
to standards are to this source).) The primary purposes of disciplinary
proceedings and of the sanctions imposed are "the protection of the
public, the courts and the legal profession; the maintenance of high
professional standards by attorneys and the preservation of public confidence
in the legal profession." (In re Morse (1995) 11 Cal.4th 184, 205; std.
1.3.)
Although not binding, the standards are entitled to "great
weight" and should be followed "whenever possible" in
determining level of discipline. (In re Silverton (2005) 36 Cal.4th 81, 92,
quoting In re Brown (1995) 12 Cal.4th 205, 220 and In re Young (1989) 49 Cal.3d
257, 267, fn. 11.) Adherence to the standards in the great majority of cases
serves the valuable purpose of eliminating disparity and assuring consistency,
that is, the imposition of similar attorney discipline for instances of similar
attorney misconduct. (In re Naney (1990) 51 Cal.3d 186, 190.) Any discipline
recommendation different from that set forth in the applicable standards should
clearly explain the reasons for the deviation. (Blair v. State Bar (1989) 49
Cal.3d 762, 776, fn. 5.)
The facts and circumstances surrounding Respondent’s criminal conviction
involve moral turpitude. Thus, Standard 3.2 applies to this matter.
Standard 3.2 states that "Final Conviction of a member of a crime
which involves moral turpitude, either inherently or in the facts and circumstances
surrounding the crime’s commission, shall result in disbarment. Only if the
most compelling mitigating circumstances clearly predominate, shall disbarment
not be imposed .... "
Here, Respondent preyed on vulnerable young women whom he believed to be
underage. He attempted to lure the young women into inappropriate sexual
situations by posing as a modeling agent and promising them money to pose nude.
And, in Jane Doe’s case, Respondent also inappropriately touched her and
indecently exposed himself. Respondent’s misconduct is even more egregious
since he held a position of trust as juvenile court commissioner in charge of
juvenile dependency and detention matters. Respondent’s misconduct was
abhorrent and involved moral turpitude.
In aggravation, Respondent committed multiple offenses. Although he was
convicted as to only one victim, respondent engaged in similar conduct on at
least two other occasions, for which he was not convicted. Furthermore, Jane
Doe was significantly harmed by Respondent’s wrong doing. She continues to
suffer emotionally and believes that she will be permanently affected by
Respondent’s reprehensible conduct.
While Respondent is entitled to mitigative credit for his lack of a prior
record, his willingness to enter into this stipulation and the letters he
supplied to support good character, such mitigation is neither compelling nor
clearly predominates, which is required under Standard 3.2 to impose discipline
less than disbarment. Disbarment is the only appropriate outcome to achieve the
directive of the applicable Standards, which compels disbarment in this
situation to protect the public and the legal profession.
Case law also supports disbarment. In In re Lesansky (2001) 25 Cal.4th 11,
the attorney was convicted of the felony of attempting to commit a lewd act on
a child. The Supreme Court held that because Respondent’s conduct "was
such a serious breach of the duties of respect and care that all adults owe to
all children, it showed a flagrant disrespect for the law and for societal
norms, that continuation of [the attorney’s] State Bar membership would be
likely to undermine public confidence in and respect for the legal
profession." (ld., at p. 17.) That same principle holds true in this
matter. Respondent’s conduct, just like that in the Lesansky case, showed such
a flagrant disrespect for the law and societal norms, the only outcome that is
appropriate is disbarment.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has
informed Respondent that as of November 6, 2013, the prosecution costs in this
matter are approximately $5,131. Respondent further acknowledges that should
this stipulation be rejected or should relief from the stipulation be granted,
the costs in this matter may increase due to the cost of further proceedings.
SIGNATURE OF THE PARTIES
Case Number(s): 12-C-15305
In the Matter of: DANIEL MADDEN HORTON
By their signatures below, the parties and their counsel, as applicable,
signify their agreement with each of the recitation and each of the terms and
conditions of this Stipulation Re Facts, Conclusions of Law and Disposition.
Signed by:
Respondent: DANIEL MADDEN HORTON
Date: 11/25//13
Respondent’s Counsel: ERIC HAMILTON HINTZ
Date: 11/25//13
Deputy Trial Counsel: ESTHER J. ROGERS
Date: 11/25//13
DISBARMENT ORDER
Case Number(s): 12-C-15305
In the Matter of: DANIEL MADDEN HORTON
Finding the stipulation to be fair to the parties and that it adequately
protects the public, IT IS ORDERED that the requested dismissal of
counts/charges, if any is GRANTED without prejudice, and:
<<not>> checked. The stipulated facts and disposition are APPROVED
and the DISCIPLINE RECOMMENDED to the Supreme Court.
checked. The stipulated facts and disposition are APPROVED AS MODIFIED as
set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
checked. All Hearing dates are vacated.
1. On page 1 of the Stipulation, paragraph A.(1), "2002" is
deleted, and in its place is inserted "1992."
2. On page 1 of the Stipulation, paragraph A.(3), "(10)" is
deleted, and in its place is inserted "(11)."
3. On page 3 of the Stipulation, paragraph B.(7), the "X" next to
Multiple/Pattern of Misconduct is deleted.
4. On page 6 of the Stipulation, the title "Case No. 12-C-17435-PEM
(Conviction Proceedings)," is deleted, and its place is inserted
"Case No. 12-C-15305-PEM (Conviction Proceedings)."
5. On page 8 of the Stipulation, under Aggravating Circumstances, the first
paragraph relating to Harm, all language relating to Jane Doe after the word
"justice," is deleted.
6. On page 8 of the Stipulation, under Aggravating Circumstances, the
entire second paragraph relating to Multiple Acts of Misconduct is deleted.
7. On page 8 of the Stipulation under Mitigating Circumstances, the
paragraph relating to Pretrial Stipulation, the phrase "thereby relieving
Jane Doe of the trauma she would have suffered testifying and," deleted.
8. On page 9 of the Stipulation, paragraph 1, "Conviction" is
deleted, and in its place is inserted "conviction."
9. On page 9 of the Stipulation, paragraph 2, the sentence "And, in
Jane Doe’s case, Respondent also inappropriately touched her and indecently
exposed himself," is deleted.
10. On page 9 of the Stipulation, paragraph 3, the entire paragraph
relating to multiple offenses, is deleted.
The parties are bound by the stipulation as approved unless: 1) a motion to
withdraw or modify the stipulation, filed within 15 days after service of this
order, is granted; or 2) this court modifies or further modifies the approved
stipulation. (See rule 5.58 (E) & (F), Rules of Procedure.) The effective
date of this disposition is the effective date of the Supreme Court order
herein, normally 30 days after the file date. (See rule 9.18(a), California
Rules of Court.)
Respondent is ordered transferred to involuntary inactive status pursuant
to Business and Professions Code section 6007, subdivision (c)(4). Respondent’s
inactive enrollment will be effective three (3) calendar days after this order
is served by mail and will terminate upon the effective date of the Supreme
Court’s order imposing discipline herin, or as provided for by rule 5.111(D)(2)
or the Rules of Procedure of the State Bar of California, or as otherwise
ordered by the Supreme Court pursuant to its plenary jurisdiction.
Signed by:
Judge of the State Bar Court: Lucy Armendariz
Date: 12/11/13
CERTIFICATE OF SERVICE
[Rules Proc. of State Bar; Rule 5.27(B); Code Civ. Proc., § 1013a(4)]
I am a Case Administrator of the State Bar Court of California. I am over
the age of eighteen and not a party to the within proceeding. Pursuant to
standard court practice, in the City and County of San Francisco, on December
11, 2013, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND
ORDER APPROVING; ORDER OF INVOLUNTARY INACTIVE ENROLLMENT
in a sealed envelope for collection and mailing on that date as follows:
checked. by first-class mail, with postage thereon fully prepaid, through
the United States Postal Service at San Francisco, California, addressed as
follows:
ERIC HAMILTON HINTZ
HINTZ & WELCH
1006 4TH ST. #220
SACRAMENTO, CA 95814
<<not>> checked. by certified mail, No. , with return receipt
requested, through the United States Postal Service at , California, addressed
as follows:
<<not>> checked. by overnight mail at , California, addressed
as follows:
<<not>> checked. by fax transmission, at fax number . No error
was reported by the fax machine that I used.
<<not>> checked. By personal service by leaving the documents
in a sealed envelope or package clearly labeled to identify the attorney being
served with a receptionist or a person having charge of the attorney’s office,
addressed as follows:
checked. by interoffice mail through a facility regularly maintained by the
State Bar of California addressed as follows:
Esther Rogers, Enforcement, San Francisco
I hereby certify that the foregoing is true and correct. Executed in San
Francisco, California, on December 11, 2013.
Signed by:
George Hue
Case Administrator
State Bar Court