People v. Milham

• Decision Date: 23 August 1984
• Docket Number: Cr. 44425
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Charles Lee MILHAM, Defendant and Appellant.

Page 688

205 Cal.Rptr. 688

159 Cal.App.3d 487

The PEOPLE, Plaintiff and Respondent, v. Charles Lee MILHAM, Defendant and Appellant.

Cr. 44425.

Court of Appeal, Second District, Division 7, California.

Aug. 23, 1984.

Hearing Denied Nov. 15, 1984.

James A. Stotler, Santa Ana, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Robert F. Katz and Carol Wendelin Pollack, Deputy Attys. Gen., for plaintiff and respondent.

BEVERLY, Associate Justice. ^*

Introduction

Appellant was charged by information with three counts: count I alleged a violation of section 23101, subdivision (a), of the Vehicle Code, on or about December 29, 1981. It was further alleged in that count that while under the influence of intoxicating liquor and under the combined influence of intoxicating liquor and a drug, appellant drove a vehicle upon a highway, and that in so driving, did an act forbidden by law in violation of Vehicle Code section 21662, thereby approximately causing bodily injury to Wendy Milham and Thomas Wilcox. Count II alleged a violation of section "192.3, subdivision (a)" of the Penal Code, vehicular manslaughter. The named victim in that count, Wendy Milham, was appellant's pregnant wife. Count III alleged a violation of that same section, with the named victim, Thomas Wilcox, a passenger of the same vehicle as appellant and his wife. Appellant was found guilty of count I, and was also found guilty of counts II and III as misdemeanors.

Trial

On December 29, 1981, Theodosia Milham (Theo), appellant's eight-year-old daughter, and also a passenger in the car at the time of the fatal accident, lived with her mother, Wendy, and appellant in Torrance. She testified that her father filled bullets with gunpowder that morning, with the help of a friend named Tom (Thomas Wilcox). During that time her father was drinking "Tequila Sunrises." They then left for the mountains and, on the way, stopped at a liquor store where both appellant and Tom bought beer and a couple of tequila sunrises. When they arrived at the location in the mountains for target shooting, they looked for trash to build a fire because it was dark. Target shooting was done at cans which were set up on a hill. During this time appellant and Tom were drinking. Theo testified that she thought Tom was drinking beer and appellant was drinking tequila sunrises. The reason she thought appellant was drinking tequila sunrises was because he told her so, and she saw the labels on the cans from which he drank, which said "Tequila Sunrise."

Theo did not see how many drinks appellant took from the can. She knew Tom was drinking beer because that was the only thing he drank, and she also saw the can from which Tom was drinking. Appellant drank a little bit before and a little bit after the target practice, and he drank while shooting the guns. The shooting lasted for "a long time."

After they finished shooting, they got in the car and left the area. Theo was in the back seat lying on her mother's lap, appellant was driving, and Tom was in the front passenger seat. Appellant and Theo's mother began to argue in the car. Just before the accident, appellant was facing Theo's mother in the back seat. The last thing Theo remembered seeing was appellant turning and facing her. She felt a big bump. They started bouncing up and down the road, and the car then bounced end over end. Theo next remembered waking up in a yucca plant with a broken arm and a couple of scratches. She called out, but no one answered until she called out several more times and appellant woke up. He was right under her.

When asked if she felt anything unusual before the car went off the road, Theo said she felt a big rock in the road.

Dr. Marianne Bette testified that she was driving from Pasadena to Lancaster and noticed a small two-car collision on the road. As she drove toward a telephone, she saw a man staggering in the street and waving her down. She pulled over, thinking he was in the previous accident she had seen. The man told her that his wife and kids were over the side of the road and that he had just climbed up. Dr. Bette got out and tried to see where the car was, but could see nothing. There was a little girl crying hysterically down the hill. She saw that appellant had a laceration on his left thigh, and was walking around without his shoes on. She felt his head and noticed liquor on his breath. In her opinion, he was not sober. She believed that this occurred at about 8:30 p.m. Dr. Bette remained at the scene for approximately 2 1/2 hours. She further noted that appellant had no glasses on, that the laceration on his thigh was approximately four inches in length, and that his clothes were dirty and dusty. There was also crusting of blood on appellant's face. She did not see a laceration on the back of his head, but noticed drops of blood the next day on the back of her car seat where appellant had been sitting. In Dr. Bette's opinion, appellant was drunk. He was staggering in the street, had a strong smell of alcohol about him, and was slurring his words. This was her opinion despite the other possible causes that could give rise to some of the same signs which may have resulted from appellant's injuries.

Curtis D. Slocum, a paramedic for the Los Angeles County Fire Department, testified that between 8:30 and 9:00 p.m., on December 29, 1981, he responded to a call approximately four miles north of Angeles Forest Highway. He was the passenger in the emergency vehicle, and as such responsible for the patient. His partner, Wayne Lee, was the driver, and thus was responsible for radio calls and paperwork. When Mr. Slocum examined appellant he saw many lacerations and abrasions, with one three-to-four-inch laceration on appellant's left thigh. He also observed a laceration of appellant's scalp where blood had coagulated. Appellant appeared to be oriented as to place, time and recognition, with a little slurred speech. He also noted a moderate to strong odor of alcohol on appellant's person. He spent 45 minutes with appellant but never saw him walk around. The only additional symptom of intoxication noticed by the witness was slurred speech.

Officer Diana Sanchez of the California Highway Patrol, investigated the accident on December 29, 1981. Upon her arrival at the scene, she made contact with the paramedics, sheriff's deputies, and other Highway Patrol officers who had arrived on the scene. At the scene of the accident she measured approximately 97 feet of skid marks which began on the northbound traffic lane, gradually curved into the southbound traffic lane onto a dirt shoulder approximately 8 feet wide, and ended where the vehicle had gone over the side. In examining these skid marks, Officer Sanchez formed the opinion that the driver of the vehicle took a curve at an excessive speed, which caused the vehicle ultimately to go onto the opposite side of the road and in the opposing traffic lane. The car continued southbound in the northbound traffic lane and swerved back into the southbound lane onto the dirt shoulder, and ultimately over the side. After the accident, Officer Sanchez drove the same curve, and noticed that she could not maintain a speed in excess of 40 to 42 miles per hour without the rear end of her car beginning to fishtail.

Officer Sanchez approached the ambulance where appellant was seated, after being told by the paramedics that a victim of the accident was inside the ambulance. Upon approaching the ambulance, Officer Sanchez stated, "Hello. Were you involved in the accident?" Appellant responded that he was, and that he had been driving the car. He also said that he thought he had killed his wife. He told the officer that he was going southbound on Angeles Forest Highway at approximately 55 miles per hour, and that for some unknown reason he went over the cliff. Appellant stated that he blacked out for an unknown period of time after the accident occurred but later managed to crawl up the cliff and flag down a motorist for assistance.

Officer Sanchez smelled a moderate to strong odor of alcohol on appellant and examined his eyes while he was still in the ambulance. She held out her finger approximately seven inches from his face, and asked appellant to follow her finger from left to right, keeping his head perfectly still and moving only his eyes. At that time she noticed that he had horizontal nystagmus, which was indicative of alcohol intoxication. His eyes were also bloodshot and watery. She then asked appellant to exit the ambulance to perform some field sobriety tests. She asked appellant if he felt up to it, and he replied he did. He stated that he had a laceration on his left leg, and did not feel that he could stand on that leg alone, but believed that with his right leg he would have no problem. She asked him if there were any physical defects that might prevent him from performing tests in reference to his feet, ankles, hips, arms or anything additional, and appellant replied no. He was asked to perform the tests on a dry, flat, asphalt roadway in the light of the high beams of the patrol car and Officer Sanchez' flashlight. She may have also used her spotlight. There was also lighting from other vehicles including the sheriff's patrol car.

Officer Sanchez had to explain the tests to appellant more than two times. She first asked appellant to perform the modified position of attention. The other two tests were the standing-on-one-foot test and the finger-to-nose test. On the first test, appellant began to weave in a circular motion approximately four inches off center. When asked to stand on his right leg, appellant fell back and Officer Sanchez had to catch him. Upon performing the finger-to-nose test, appellant first touched the bottom of his nostrils and moved his finger back up to the tip. With his right finger he touched the bridge of his nose with the first joint. With the left finger, he touched the first joint to the bottom...