People v. Millard, D047681.

Citation175 Cal.App.4th 7,95 Cal. Rptr. 3d 751
Decision Date22 June 2009
Docket NumberNo. D049268.,No. D047681.,D047681.,D049268.
CourtCalifornia Court of Appeals
PartiesTHE PEOPLE, Plaintiff and Respondent, v. THEODORE E. MILLARD, Defendant and Appellant. THE PEOPLE, Plaintiff and Appellant, v. THEODORE E. MILLARD, Defendant and Appellant.


Theodore E. Millard appeals a judgment following his jury conviction of driving under the influence while committing an act forbidden by law and causing bodily injury to another person (Veh. Code, § 23153, subd. (a)). He also appeals a postjudgment order awarding $386,164 in restitution to the victim (Pen. Code, § 1202.4). On appeal, he contends his conviction must be reversed because (1) the trial court erred in instructing on causation of the victim's injuries; (2) he was denied his constitutional rights to a fair trial and to present a defense when the trial court (a) excluded evidence he was not under the influence of alcohol at the time of the incident, and (b) did not instruct on the Vehicle Code section 23610, subdivision (a)(1), presumption; (3) the trial court erred by denying his motion for new trial; and (4) he was denied his right to due process of law because certain material exculpatory evidence was destroyed or lost. He contends the restitution order must be reversed because (1) the trial court erred by awarding the victim unreasonable attorney fees; (2) the trial court erred by awarding the victim $750,000 in future lost wages; and (3) his constitutional right to findings by a jury beyond a reasonable doubt was violated by the court's findings by a preponderance of the evidence at the restitution hearing.

The People appeal the trial court's restitution order, contending the trial court (1) erred by reducing the amount of restitution by 25 percent because of the victim's comparative negligence; (2) abused its discretion by reducing the amount of restitution because it disagreed with the law; (3) made findings regarding the victim's negligence without sufficient supporting evidence; (4) erred by valuing the victim's medical expenses based on the amount paid by the victim's insurance company rather than the amount billed by the medical providers; and (5) applied two different ratios in apportioning the victim's settlement proceeds between economic and noneconomic losses.

In the published portion of this opinion, we conclude a trial court may apply the doctrine of comparative negligence in awarding victim restitution against a criminally negligent defendant when the court finds the victim's contributory negligence was a substantial factor in causing his or her injuries.


At 10:11 p.m. on December 5, 2003, Billy Frank Payne was driving his motorcycle northbound on Tustin in Orange County. He had regularly driven his motorcycle for two years and it was in excellent condition and well maintained. Its headlight, taillights, and turn indicators were all working properly. He was wearing a helmet with a clear face shield. He had never owned a helmet with a tinted face shield, because it would impair his vision at night. He had not been drinking or using drugs. His motorcycle's speedometer was illuminated. He monitored his speed as he drove. He was going 40 miles per hour.

Payne maintained that speed as he passed through the intersection of Tustin and Fairhaven on a green light. He was in the number one lane, the lane closest to the center of the multilane street. There were no vehicles in front of him going northbound. He saw two vehicles traveling southbound (in the opposite direction) in front of him. The first vehicle passed him without incident. However, the second vehicle suddenly veered directly toward him in the northbound number one lane. That second vehicle was a Ford Explorer driven by Millard, traveling about 40 miles per hour without its turn indicator flashing. Payne had only about one second to react. He engaged his brakes, turned his wheel to the right, and then was struck by Millard's vehicle, which was traveling directly south in the northbound number one lane and did not stop at any time prior to the impact. Payne first felt the impact below his left knee and his femur shattered. His body struck the center of the hood of Millard's vehicle. Payne blacked out. When he regained consciousness, he was lying on the street and had difficulty breathing. He could not use his left hand when he tried to lift his face shield. A person standing over him told him help was on the way. He was later taken to a hospital by paramedics.

Marco Mondragon, an employee of a gas station located on the corner of Tustin and Fairhaven, heard screeching tires and looked to see a white Explorer stopped, facing directly southbound in the northbound number one lane. A motorcycle, totally damaged, was lying on the street directly in front of the Explorer. The hood and front fender of the Explorer were damaged. Mondragon saw a person lying on the ground and told his coworker to call 911. Mondragon then went back outside. The driver of the Explorer (Millard) never got out of his vehicle. Millard backed up his vehicle, drove it to the gas station, and stopped at pump number one. Millard went into the station's store and asked for the restroom key so he could wash his face. Returning from the restroom, he asked for hot coffee. Because the store did not have any hot coffee, Millard bought a bottle of cold coffee and went back outside to his vehicle. Millard did not go to the area where the motorcyclist (Payne) was lying on the street.

City of Orange Police Officer John Mancini was the first officer to arrive at the scene. He saw a motorcyclist lying in the street with about 20 people in the area. Although the bystanders had not seen the accident, they pointed out a white Ford Explorer parked at the gas station. Millard and his wife, Sondra, were standing outside the Explorer. The Explorer had damage to its front bumper, grill, and the center of its hood. Speaking with Millard, Mancini noticed that he smelled of alcohol, had slow speech, and an unsteady gait. Millard's eyes were bloodshot and watery. Millard admitted he had consumed alcohol. Millard stated he was making a left turn into the gas station and was traveling about 10 miles per hour at the time of the collision. Millard told Mancini that he had not seen the motorcycle. Mancini called Officer Martin Suarez, who arrived a few minutes later.

As Suarez spoke with Millard, he noticed his eyes were watery and his posture was sagging, indications he was possibly under the influence of alcohol. Suarez administered a horizontal gaze nystagmus test, which suggested Millard may have had alcohol in his body. Millard told Suarez he had consumed three to four glasses of wine, with about two to three inches of wine in each glass, at the home of some friends. Suarez concluded Millard was impaired for purposes of driving and placed him under arrest for driving under the influence of alcohol. Suarez advised Millard of his obligation to provide a sample of blood, breath, or urine for chemical analysis. Millard agreed to provide a blood sample. At 11:42 p.m., Millard's blood sample was drawn. Two subsequent chemical analyses of that sample showed his blood-alcohol content was 0.110 and 0.112 percent.

An information charged Millard with one count of driving under the influence while committing an act forbidden by law and causing bodily injury to another person (Veh. Code, § 23153, subd. (a)) and one count of driving with a blood-alcohol content of 0.08 percent or greater while committing an act forbidden by law and causing bodily injury to another person (Veh. Code, § 23153, subd. (b)). Each count alleged that in commission of the offense Millard unlawfully failed to yield to another vehicle with the right-of-way as he turned left (Veh. Code, § 21801). The information also alleged that in committing each offense Millard personally inflicted great bodily injury on Payne (Pen. Code, § 12022.7, subd. (a)).

During Millard's jury trial, Payne, Mondragon, Mancini and Suarez testified as described above. The prosecution also presented the testimonies of traffic investigators and reconstruction experts who concluded Millard was at fault in the collision. Mancini concluded the point of impact was in the northbound number one lane of Tustin, 25 feet west of the east curb line of Tustin and 163 feet north of the north curb line of Fairhaven. There were no vehicle defects, weather conditions, or lighting conditions that contributed to the collision. He was unable to determine the motorcycle's speed at the time of the accident. Mancini testified that a driver of a vehicle traveling southbound on Tustin was required to yield to an oncoming motorcycle traveling northbound before turning left across the northbound lanes. The motorcycle had the right-of-way. Furthermore, the driver of the Explorer must anticipate that oncoming vehicles may change lanes and be speeding.

Accident reconstructionist Ernest Phillips reviewed materials and conducted his own investigation of the accident scene. He concluded the motorcycle was sliding on its left side immediately before impact. The Explorer was traveling southbound in the northbound number one lane. The impact occurred between the number one and number two lanes. Payne's testimony that he tried to make a hard right turn to avoid the collision was consistent with the fact that his motorcycle slid onto its left side because of the dynamic of countersteering. Assuming the motorcycle was...

To continue reading

Request your trial
416 cases
  • People v. Shelly
    • United States
    • California Court of Appeals Court of Appeals
    • July 14, 2022
  • People v. Petronella
    • United States
    • California Court of Appeals Court of Appeals
    • October 23, 2013
    ... ... in wanton disregard for their lives ... is close enough to the criminal equivalent of an intentional tort to bar invoking comparative fault principles.” ( Id. at p. 283, 124 Cal.Rptr.3d 521.)         In so ruling, Brunette distinguished People v. Millard (2009) 175 Cal.App.4th 7, 95 Cal.Rptr.3d 751, which held comparative fault applied to a victim restitution award in a felony drunk driving case because that offense required only proof of criminal negligence. ( Id. at p. 41, 95 Cal.Rptr.3d 751.) But civil cases have recognized comparative fault ... ...
  • People v. Selivanov
    • United States
    • California Court of Appeals Court of Appeals
    • November 17, 2016
  • People v. Eroshevich
    • United States
    • California Court of Appeals Court of Appeals
    • July 10, 2013
    ... ... Jackson (1992) 10 Cal.App.4th 13, 22, 12 Cal.Rptr.2d 541.) Or an abuse of discretion can be established if it is entirely premised on a legal error. ( People v. Cannedy (2009) 176 Cal.App.4th 1474, 1483, 98 Cal.Rptr.3d 596; People v. Millard (2009) 175 Cal.App.4th 7, 26, 95 Cal.Rptr.3d 751.) The trial court's sole basis for the dismissal decision was that the evidence was insufficient as a matter of law. Since, as we have explained, that decision was incorrect, the section 1385 dismissal order can be viewed as one beyond the allowable ... ...
  • Request a trial to view additional results
2 books & journal articles
  • Restitution
    • United States
    • James Publishing Practical Law Books California Drunk Driving Law - Volume 1-2 Volume 2
    • March 30, 2022
    ...and the victim or the prosecutor does not have to make the declarant available for cross-examination. People v. Millard (2009) 175 Cal. App.4th 7, 42. Defense counsel who wish to cross-examine a declarant need to subpoena the declarant to the restitution hearing. Hearing Procedures - Both t......
  • Table of cases
    • United States
    • James Publishing Practical Law Books California Drunk Driving Law - Volume 1-2 Appendices
    • March 30, 2022
    ...People v. Milham (1984) 159 Cal.App.3d 487, 205 CR 688, §§2:15.4, 2:61.7, 3:37.1, 8:21, 9:36.4, 9:113.4 People v. Millard (2009) 175 Cal.App.4th 7, §§14:33, 14:34, 14:34.1, 14:34.2, 14:45.1 People v. Miller (1957) 256 Cal.App.2d 348, §§14:40.5, 14:42 People v. Miller (1979) 90 Cal. App.3d S......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT