People v. Wallace CA3 ( 2024 )

Filed 5/16/24 P. v. Wallace 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C096537
Plaintiff and Respondent, (Super. Ct. No. P16CRF0413)
v.
MILO LLOYD WALLACE,
Defendant and Appellant.
A jury found defendant Milo Lloyd Wallace guilty of two counts of first degree
murder, one count of attempted murder, and one count of assault with a semiautomatic
firearm. The jury found true various firearm and great bodily injury enhancements, as
well as special circumstances allegations of lying in wait and multiple murders. The trial
court sentenced defendant to two terms of life without the possibility of parole, plus 50
years to life, plus 17 years.
Defendant appeals, arguing the trial court erred in refusing to instruct the jury on
voluntary intoxication for the two murder charges. Defendant also argues the trial court
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erred in sustaining the prosecutor’s objection to defense counsel’s comments regarding
the absence of logical witnesses in closing argument. Finding no reversible error, we will
affirm.
I. BACKGROUND
Defendant’s parents, Sandra and Leonard, lived in Placerville. Defendant’s
brother, Matthew, lived approximately 30 minutes away with his partner and the mother
of his children, Brook. Defendant lived with Sandra and Leonard.
Leonard died in 2015. Following Leonard’s death, Sandra resolved to leave the
family home entirely to Matthew. Matthew’s name was added to the title of the property.
According to one view of the evidence, this plan did not sit well with defendant.
A. Murders at the Family Home
Sandra and Matthew spoke by phone every day. Matthew called Sandra as usual
on the evening of November 10, 2015. Defendant answered the phone. Defendant told
Matthew that Sandra was sleeping. This was unusual, as defendant never answered the
phone, and it was out of character for Sandra to be asleep at that hour (around 7:00 p.m.).
Matthew decided to check on Sandra the next day.
Matthew left for Sandra’s house the next morning. He told Brook he would be
home by noon. Noon came and went, and Matthew did not return. Brook texted
Matthew at 1:00 p.m., 2:00 p.m., and 3:00 p.m. Matthew did not respond. This was
unusual for him. Brook called Matthew’s cell phone. He still did not respond. Brook
also called Sandra; she did not respond either.
Brook was concerned. She called her brother, Harley, and together they drove to
Sandra’s house. Harley brought along a pistol, just in case. When they arrived, they
noticed the lights were off, and Matthew’s truck was not parked in its usual spot.
Brook approached the house and tried the door. It was locked. She saw someone
through the glass. Defendant opened the door, and Brook said, “Where is Matt?”
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Defendant responded, “Right here.” As he spoke, defendant raised a gun within inches of
Brook’s face.
Brook grabbed for the gun. A struggle ensued, and Harley joined the fray. Brook
and Harley grappled with defendant for several minutes. Eventually, they managed to
subdue and disarm him.
Brook called 911. She told the 911 operator defendant “pulled a gun” on her. She
also told the operator that defendant was “drunk as shit.”
Sheriff’s deputies arrived on the scene at 5:21 p.m. They encountered an active
struggle, with defendant on the ground, and Harley trying to subdue him. Deputies
detained defendant and found a .22-caliber revolver in his pants pocket. As they
attempted to handcuff him, they noticed that defendant stopped breathing. They rolled
defendant to his side, and he started breathing again.
Deputies conducted a protective sweep of the house. They found Sandra’s lifeless
body in her bedroom. The room smelled of decomposing human remains, and Sandra’s
legs were dark blue, indicating she had been dead for some time. Deputies found
Matthew’s body under a comforter on an outside patio. He was also dead.
Deputies found a spent .357-caliber cartridge case near Matthew’s body. They
also found a piece of paper, on which was written, “Back staper [sic].” A similar
sentiment was found on a cabinet door in the garage. There, deputies found the words,
“Never forget, back staper [sic], you back stab for no reason, you’re getting nothing.
Milo.”
A further search of the property yielded many more guns, including multiple
handguns and numerous long guns, some of which were stacked on the sofa and leaning
against the wall. An assortment of ammunition and loaded magazines was also found
around the property. Deputies also found a Ruger .357 revolver and a bottle of Jack
Daniels whiskey.
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B. Charges and Jury Trial
Defendant was arrested and charged by grand jury indictment with murdering
Sandra (Pen. Code, § 187—count 1)1, murdering Matthew (§ 187—count 2), attempting
to murder Brook (§§ 664, 187—count 3), and assaulting Brook with a semiautomatic
firearm (§245, subd. (b)—count 4). For counts 1 and 2, the grand jury alleged that
defendant personally used a firearm (§ 12022.5, subd. (a)(1)) and personally discharged a
firearm causing death or great bodily injury (§ 12022.53, subd. (d)). For count 2, the
special circumstances of lying in wait and multiple murders were also alleged (§ 190.2,
subd. (a)(3) and (15)). And for count 3, the grand jury alleged defendant personally used
and intentionally discharged a firearm (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)).
Defendant pled not guilty and denied the allegations.
Defendant was tried by jury in May 2022. The prosecution’s witnesses testified
substantially as described ante. Additionally, Brook testified that she spoke with Sandra
a couple of days before the events at issue. According to Brook, Sandra reported that
defendant had been violent and verbally abusive and was making her feel unsafe in her
own home. When asked why she told the 911 operator that defendant was “drunk as
shit,” Brook explained that she based her assessment on the fact that he was breathing
heavily, and his pants had fallen down, but he failed to pull them back up. Harley
similarly testified that defendant was acting as though he was intoxicated.
The prosecution also presented evidence from forensic pathologist Jason Tovar,
who conducted an autopsy of Sandra. Tovar testified that Sandra died from a gunshot
wound to the head at very close range. He observed livor mortis (color from blood
settling to the lower portion of the body), marbling of the skin, and skin slippage, all of
1 Undesignated statutory references are to the Penal Code.
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which indicated that decomposition was well underway. He removed a bullet from
Sandra’s head.
The prosecution also presented evidence from forensic pathologist Kelly
Kobylanski, who conducted an autopsy of Matthew. Kobylanski testified that Matthew
was shot in the chin and hip; the shot to the chin was fatal. Kobylanski recovered two
bullets from Matthew’s body.
Criminalist Angela Stroman opined that the bullet recovered from Sandra’s head
was a .22-caliber bullet, which was fired from the revolver found in defendant’s pants’
pocket. Stroman testified that the bullets recovered from Matthew’s body were .22- and
.38-caliber bullets. She compared the .38-caliber bullet to a .357 revolver found in the
family home. She opined that the .38-caliber bullet was likely fired from the .357
revolver; however, she could not say for sure.
Dr. Michael Mirhadi, an emergency room physician, testified for the defense. Dr.
Mirhadi treated defendant on November 11, 2015, for an auricular hematoma sustained in
the fight with Brook and Harley. Dr. Mirhadi observed that defendant appeared
intoxicated and smelled of alcohol. He ordered blood tests, which revealed that
defendant’s blood alcohol level was 0.36. Dr. Mirhadi’s clinical impression was that
defendant was suffering from “acute alcohol intoxication.” However, Dr. Mirhadi could
not say when defendant ingested alcohol, whether the alcohol was absorbed, or whether
defendant’s blood alcohol level was rising or falling.2
C. Verdict and Sentence
The jury found defendant guilty as charged and found true the enhancements and
special circumstances allegations. The trial court sentenced defendant to consecutive
terms of life without the possibility of parole on counts 1 and 2 (the murders of Sandra
2 Another defense witness, a lifelong friend, testified that defendant was planning to
move to Montana.
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and Matthew), plus consecutive terms of 25 years to life for the firearm enhancements.
The trial court imposed a consecutive seven years for count 3 (the attempted murder of
Brook), plus 10 years for the firearm enhancement. The trial court imposed, but stayed,
the term for count 4 (the assault of Brook), as well as the remaining enhancements.
This appeal timely followed.
II. DISCUSSION
A. CALCRIM No. 625
Defendant argues the trial court erred in refusing to provide a voluntary
intoxication jury instruction (CALCRIM No. 625) with respect to the murders of Sandra
and Matthew. We disagree.
1. Additional Background
Defendant asked the trial court to instruct the jury with CALCRIM No. 625 on
voluntary intoxication with respect to the murders of Sandra and Matthew. The
prosecution objected. The trial court observed there was evidence defendant was
intoxicated at the time of the attempted murder of Brook, but no evidence as to
defendant’s level of intoxication at the time of the murders of Sandra and Matthew.
Accordingly, the trial court instructed the jury on voluntary intoxication as applicable to
attempted murder (CALCRIM No. 3426) but refused to instruct the jury with CALCRIM
No. 625.
2. Standard of Review and Applicable Legal Standards
We review a claim of instructional error de novo. (People v. Posey (2004) 32
Cal.4th 193, 218.) “Review of the adequacy of instructions is based on whether the trial
court ‘fully and fairly instructed on the applicable law.’ ” (People v. Ramos (2008) 163
Cal.App.4th 1082, 1088.) In determining whether error has been committed in giving
jury instructions, we consider the instructions as a whole and assume jurors are intelligent
persons, capable of understanding and correlating all jury instructions which are given.
(Ibid.) “ ‘Instructions should be interpreted, if possible, so as to support the judgment
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rather than defeat it if they are reasonably susceptible to such interpretation.’ ” (Ibid.)
“The crucial assumption underlying our constitutional system of trial by jury is that jurors
generally understand and faithfully follow instructions.” (People v. Mickey (1991) 54
Cal.3d 612, 689, fn. 17.)
Generally, the trial court is required to instruct the jury on the general principles of
law that are closely and openly connected with the evidence and that are necessary to the
jury’s understanding of the case. (People v. Barker (2001) 91 Cal.App.4th 1166, 1172.)
It also has a duty to refrain from giving incorrect instructions or instructions on principles
of law that are irrelevant and would have the effect of confusing the jury or relieving it
from making findings on the relevant issues. (Ibid.)
“[A]n instruction on voluntary intoxication, explaining how evidence of a
defendant’s voluntary intoxication affects the determination whether defendant had the
mental states required for the offenses charged, is a form of pinpoint instruction that the
trial court is not required to give in the absence of a request. (People v. Bolden (2002) 29
Cal.4th 515, 559.) A trial court is required to give a requested pinpoint instruction on
voluntary intoxication “only when there is substantial evidence of the defendant’s
intoxication and the intoxication affected the defendant’s ‘actual formation of specific
intent.’ ” (People v. Williams (1997) 16 Cal.4th 635, 677.) “ ‘ “Substantial evidence is
evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence that a
reasonable jury could find persuasive.” ’ ” (People v. Cole (2004) 33 Cal.4th 1158,
1215.) The trial court need not give the instruction if the evidence is “ ‘minimal and
insubstantial.’ ” (People v. Barton (1995) 12 Cal.4th 186, 201.)
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3. Analysis
Defendant asked the trial court to instruct the jury with CALCRIM No. 625.3 The
trial court declined, finding the instruction was not supported by the evidence. The trial
court was correct.
As the trial court observed, there was considerable evidence defendant was
intoxicated at the time of the assault and attempted murder of Brook. During the
encounter, Brook observed that defendant’s pants were falling down, something she
associated with him being intoxicated. Brook told the 911 operator that defendant was
“drunk as shit,” and Harley appears to have shared that view. Sheriff’s deputies observed
that defendant stopped breathing when they tried to detain him and found a bottle of
whiskey in the house.4 Sometime later, Dr. Mirhadi discovered that defendant’s blood
alcohol level was 0.36, a level consistent with “acute alcohol intoxication.” All of this
evidence amply supports an inference that defendant was intoxicated at the time of the
assault and attempted murder of Brook. But the murders of Sandra and Matthew are
another story.
That defendant may have been intoxicated around the time of the assault and
attempted murder of Brook does not constitute substantial evidence he was intoxicated at
3 CALCRIM No. 625 states: “You may consider evidence, if any, of the
defendant’s voluntary intoxication only in a limited way. You may consider that
evidence only in deciding whether the defendant acted with an intent to kill[,] [or]
[the defendant acted with deliberation and premeditation[,]] [[or] the defendant
was unconscious when (he/she) acted[,]] [or the defendant < insert other specific
intent required in a homicide charge or other charged offense >.] [¶] A person is
voluntarily intoxicated if he or she becomes intoxicated by willingly using any
intoxicating drug, drink, or other substance knowing that it could produce an
intoxicating effect, or willingly assuming the risk of that effect. [¶] You may not
consider evidence of defendant’s voluntary intoxication for any other purpose.”
4 The record does not reveal whether the bottle was full or empty or somewhere in
between.
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the time of the murders of Sandra and Matthew hours, or even days before. The
prosecution theorized that Sandra was murdered first, based on the degree of
decomposition of the body. However, neither side made any attempt to fix the exact time
of Sandra’s death, and there was no evidence defendant was intoxicated or likely to have
been intoxicated around that time (whatever it may have been). Nor was there any
evidence that defendant’s intoxication, if any, affected his ability to formulate intent. No
evidence required CALCRIM No. 625, at least as to Sandra.
Defendant argues Matthew presents a closer case. He emphasizes that Matthew
was alive on the morning of November 11, 2015, and presumably died sometime over the
course of the day. That much seems true enough. But the fact that Matthew was
murdered on November 11, 2015, and defendant was intoxicated later that same day, does
not establish that defendant was intoxicated at the time of the murder.
Here, it is helpful to remember the timeline. Matthew left for Sandra’s house on
the morning of November 11, 2015, promising to be home by noon. He did not return by
noon and did not respond to text messages or phone calls from 1:00 p.m. on. Deputies
arrived at Sandra’s house at 5:21 p.m. Substantial evidence supports an inference that
defendant was intoxicated—indeed, very intoxicated—at 5:21 p.m., as we have said.
That inference, in turn, supports an inference that defendant started drinking some time
earlier. But there was no evidence that would have allowed the jury to infer that
defendant started drinking before he shot Matthew, let alone that he was intoxicated at the
time of the shooting, or his intoxication was such that he was unable to formulate intent.
Under the circumstances, the trial court properly refused the instruction.
B. Failure to Call Logical Witnesses
Next, defendant argues the trial court erred in sustaining the prosecutor’s
objections to defense counsel’s comments in closing argument concerning the
prosecution’s failure to call witnesses to testify about DNA or fingerprint evidence on the
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guns and ammunition used in the shootings. The People concede the error, and we accept
the concession. However, we also agree with the People that the error was harmless.
1. Additional Background
Defense counsel’s closing argument focused on the circumstantial nature of the
evidence concerning the murders of Sandra and Matthew, noting there was “no proof as
to how this happened.” Defense counsel urged the jury to consider “the little evidence
that was actually collected and maintained.” He observed that Stroman, the criminalist,
testified at length about the guns found in the home, but offered no evidence that any of
the guns belonged to defendant, or that he fired them.
Turning to Dr. Tovar, defense counsel said: “What about Jason Tovar? He was a
coroner. He was the person who testified concerning Sandra Wallace. He couldn’t say
the manner in which the gun was used. He couldn’t say if the gun discharged
accidentally by suicide or even if it was fired by [defendant]. There’s no evidence to
prove how the gun caused Sandra Wallace’s death. Simply put, we do not know how the
gun was fired or the circumstances. We don’t know why and we don’t know how.”5
Defense counsel continued: “Okay, CSI. Is there any DNA? No. Any
fingerprints on the guns or casings?” The prosecutor objected, and the trial court
sustained the objection, instructing defense counsel to rephrase his argument. Defense
counsel then said: “All right. We know that there was in this case you have no evidence
of DNA. No evidence of fingerprints.” The prosecutor objected again, and the trial court
sustained the objection a second time, noting that none of the witnesses were asked about
“CSI,” DNA, or fingerprints.
5 Defense counsel did not ask Dr. Tovar whether Sandra’s injuries may have been the
result of suicide or accidental discharge. He merely asked whether Dr. Tovar was able to
form any opinion as to the position of the gun or Sandra’s position at the time the gun
was fired. These are not the same things.
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Defense counsel then continued his argument, suggesting Sandra could have
committed suicide or been shot accidentally, and someone other than defendant could
have shot Matthew. Defense counsel concluded: “Just like the District Attorney
indicated, I don’t know why these things happened, he doesn’t know and there’s no proof
as to how these things happened. We don’t know how the gun was fired. Was it self-
inflicted? Accidental discharge? Was it suicide? Someone else in the home? We don’t
know how the gun was fired. For Matthew, we don’t know who shot him. Where he was
shot. How he was shot. Which shot came first.”
2. Analysis
The parties agree, and so do we, that the trial court erred in sustaining the
prosecutor’s objection to defense counsel’s comment on the failure to call witnesses to
testify about possible DNA and fingerprint evidence on the guns and ammunition used in
the murders. (People v. Gonzales (2012) 54 Cal.4th 1234, 1275 [“it is neither unusual
nor improper to comment on the failure to call logical witnesses”]; see also People v.
Alaniz (2017) 16 Cal.App.5th 1, 6 [“It is firmly established that in general both the
defense and, in appropriate circumstances, the prosecution may make arguments to the
jury based on the failure of the opposing party to present evidence”].) We therefore focus
our analysis on the question of prejudice.
Defendant argues the error interfered with defense counsel’s argument that Sandra
shot herself, either accidentally or on purpose. That argument, he says, was buttressed by
evidence that Sandra was shot at very close range. Defendant also notes that Dr. Tovar
was unable to say what position Sandra might have been in when she was shot, and found
alcohol and fentanyl in Sandra’s system, a combination that would have had “depressive
effects” on the user. From this evidence, defendant argues, a reasonable juror could have
inferred that Sandra shot herself, and defendant attempted to hide her body to protect
Matthew.
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We are not convinced defense counsel’s comments regarding the prosecution’s
failure to call logical witnesses to testify about DNA or fingerprint evidence would have
made any difference here. Defendant and Sandra lived in the same house. A great many
guns were found in and around the house, as well as an assortment of ammunition.
Nothing suggests the presence of guns and ammunition was unusual for the family. Nor
was there any evidence they were the exclusive province of one member of the
household, but not the other. If anything, as defense counsel observed in oral argument,
the evidence suggested, “the Wallace family believed in their Second Amendment
federally protected constitutional rights.”
Had defense counsel continued his argument, the jury might have inferred that
another expert would have testified that Sandra’s fingerprints or DNA were found on the
murder weapon or the fatal bullet, but that would not have meant much, given that Sandra
lived in the same house as defendant, and could have handled the weapon or bullet on
any number of occasions, for any number of reasons. Under the circumstances, we
conclude defense counsel’s comments would have added nothing to defendant’s argument
that Sandra shot herself (which defense counsel made anyway) and the absence of logical
witnesses would not have moved the jury either way. Thus, we conclude the error was
harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24; People v.
Watson (1956) 46 Cal.2d 818, 836.)
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III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
HULL, Acting P. J.
/S/
FEINBERG, J.
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