People v. Milonis CA4/1

Filed 12/16/20 P. v. Milonis CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076481
Plaintiff and Respondent,
v. (Super. Ct. No. SCE370896)
ANDREW DORIAN MILONIS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
John M. Thompson, Judge. Affirmed.
Daniel J. Kessler, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance by Plaintiff and Respondent.
An October 2017 consolidated complaint charged defendant Andrew
Dorian Milonis with 13 counts. Counts 1-10, including two murder counts,
stemmed from a driving under the influence collision that occurred on
May 14, 2017. Counts 11-13 related to a separate driving under the influence
incident that occurred on November 6, 2016. After defendant was found
competent to stand trial, the court severed the counts from the May 2017
collision from those of the November 2016 incident, and trial proceeded only
on the May 2017 incident.
During defendant’s July 2019 jury trial, the prosecutor amended the
information as follows to clarify and renumber the counts from the May 2017
collision:
Counts 1 & 2, murder (Pen. Code,1 section 187, subd. (a));
Count 3, gross vehicular manslaughter (§ 191.5, subd. (a)). Count 3
included enhancement allegations that defendant fled the scene of an
accident (Veh. Code, § 20001, subd. (c)); that he proximately caused great
bodily injury or death to more than one person (id., § 23558); and that he
personally inflicted great bodily injury or death (§ 1192.7, subd. (c)(8));
Count 4, driving at an unreasonable speed while under the influence of
alcohol and thereby causing bodily injury to another person (Veh. Code,
§ 23153, subd. (a)). Count 4 included enhancement allegations that
defendant’s actions proximately caused great bodily injury to other people
(§ 1192.7, subd. (c)(8) & Veh. Code, § 23558), and that he personally inflicted
great bodily injury upon two people (§ 12022.7, subd. (a));
Count 5, driving at an unreasonable speed with a measurable amount
of alcohol in his bloodstream (Veh. Code, § 23153, subd. (b)). Count 5
included enhancement allegations that defendant’s actions proximately
caused great bodily injury to other people (§ 1192.7, subd. (c)(8) & Veh. Code,
§ 23558); and that defendant personally inflicted great bodily injury upon two
people (§ 12022.7, subd. (a));
1 All further statutory references are to the Penal Code unless otherwise
noted.
2
Count 6, fleeing the scene of an accident that resulted in death or
serious injury (Veh. Code, § 20001, subd. (b)(2));
Count 7, leaving the scene of an accident (Veh. Code, § 20002, subd.
(a)); and
Count 8, driving with a suspended driver's license (Veh. Code,
§ 14601.1, subd. (a)).
On July 17, 2019, a jury returned a verdict finding defendant guilty of
all counts in the amended information and found all enhancement allegations
true.
On August 26, 2019, defendant was sentenced to 34 years in prison.
Specifically, the court imposed two consecutive terms of 15 years to life for
counts 1 and 2, plus a consecutive term of four years for count 6. The
sentence on count 3 was stayed under section 654, subdivision (a), and he
received credit for time served on counts 7 and 8. Counts 4 and 5 were
dismissed on motion of the prosecutor. The court imposed a restitution fine
of $10,000 (§ 1202.4); a suspended $10,000 matching parole revocation fine
(§ 1202.45); and court fees totaling $574.
Defendant timely appealed.
Appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende) indicating he has not been able to identify any
arguable issues for modification or reversal on appeal. Counsel asks the
court to review the entire record for error as mandated by Wende.2
2 Prior to filing his Wende brief, we granted appellate counsel’s request to
augment the record to include defendant’s mental competency trial held on
April 5, 2019 (case No. MH114406); and copies of all minute orders from that
same case. Our Wende review has included the augmented record.
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We offered defendant the opportunity to file his own brief on appeal.
On November 23, 2020, he filed a supplemental brief, which we have read
and considered. Affirmed.
FACTUAL BACKGROUND
On May 14, 2017, Christian F. and Jessica F. were married. Jessica
was eight months pregnant and had two sons (nine and 10 years old) from a
prior relationship. On that day, Jessica and Christian drove in separate cars
to visit Jessica’s grandmother in Ramona to celebrate Mother’s Day.
Jessica’s sons drove with Christian. On the way to Jessica’s grandmother’s
home, a black SUV hit Jessica’s car. The impact sent her car spinning in the
air and slamming into a tree. She and her unborn baby died at the scene.
Prior to the accident, defendant was observed drinking whiskey and
beer in a bar. The bar’s video surveillance cameras recorded defendant’s
activities. The bartender, Garrett F., gave defendant a business card with
information on how to arrange a rideshare with Lyft. Garrett later closed out
defendant’s tab and informed defendant he would not be served any more
alcohol. During the one hour defendant was in the bar, he drank four 12-
ounce beers and four shots of whiskey, including one shot he spit out.
Garrett believed defendant looked as though he had a mental impairment.
As defendant left the bar’s parking lot in his black SUV, he cut off
another man’s car, drove onto the shoulder of the road, clipped a eucalyptus
tree, and drove back onto Highway 67. The man who was observing
defendant drive erratically saw defendant’s car nearly hit a lamp pole. The
man’s wife called 911 as the man followed behind the SUV.
As the man followed the SUV, he saw the vehicle enter a parking lot.
The SUV spun around and hit a jersey wall and some poles. The bumper of
defendant’s vehicle was torn away as it hit a telephone pole, and defendant
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tore the passenger mirror off his vehicle when it became entangled in a wire
connected to the telephone pole. The SUV then sped off and headed toward
San Diego Country Estates in Ramona. The man followed the SUV until he
was told to stop by the 911 dispatcher. Later, after the man had arrived
home, he learned about a fatal collision.
At the preliminary hearing, the man was able to identify defendant as
the driver of the black SUV. At trial, the man was unable to identify
defendant as the SUV driver. Another witness observed a black SUV driving
erratically at about the same time as the man. She later identified the SUV
in a crashed state on the back of a tow truck.
Defendant made his way to a resort in Ramona, where he acted
erratically. He had a cell phone but was unable to use it. He smelled
strongly of alcohol and appeared drunk. The resort manager offered to call
the local Lyft driver. When the Lyft driver arrived, he believed defendant
looked “wasted.” He drove defendant to a bar in Ramona. As they drove to
town, the Lyft driver questioned defendant about the road being closed
because of an accident and asked defendant what had happened to his car.
Defendant refused to give him a straight answer, then started to cry.
Defendant said he would never see his wife or children again.
Meanwhile, the resort manager called 911. A CHP officer secured the
heavily damaged black SUV, which was still parked at the resort. The CHP
officer found two 12 packs of beer on the floor in the back of the black SUV
and determined the vehicle was registered to defendant. A sheriff’s deputy
entered the bar where the Lyft driver had taken defendant, who was then
detained.
Defendant was arrested for driving under the influence. Because he
refused to take a chemical test, the lead investigator obtained a warrant to
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take a blood sample. A thorough investigation and reconstruction of the
accident determined defendant’s black SUV was the vehicle that crashed into
Jessica’s car, killing her and her unborn baby.
A criminalist estimated that based on the hypothetical facts of the case,
defendant’s blood alcohol level at the time of the crash was between 0.23 and
0.32 percent. That meant defendant was under the influence of alcohol and
impaired for the purpose of driving.
On November 6, 2016, defendant in a separate incident was observed in
his black SUV after his vehicle had struck a fence at a wildlife sanctuary in
Ramona. When confronted, he looked “heavily intoxicated.” Paramedics and
the CHP responded. His blood sample showed a blood alcohol level of .28
percent. It was estimated his blood alcohol level at the time of the November
6 incident was between .27 and .35 percent.3
DISCUSSION
As noted, appellate counsel has filed a Wende brief, and defendant filed
a supplemental brief. To assist the court in the review of the record and in
compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel
has identified the following possible issues he considered in evaluating the
potential merits of this appeal:
1. Whether sufficient evidence supported the court’s finding defendant
was competent to stand trial;
2. Whether the court erred by denying defendant’s motion to suppress
evidence of the November 6, 2016, driving under the influence incident;
3 Defendant was charged with three counts for the November 6, 2016
incident. (Veh. Code §§ 23152, subds. (a) & (b) & 12500, subd. (a).)
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3. Whether the court erred by allowing the prosecutor to admit
evidence of the computer “DVR” (i.e., dashcam) information from defendant’s
vehicle;
4. Whether the court erred by denying defendant’s motion to exclude
evidence under Trombetta v. California (1984) 467 U.S. 479 regarding the tail
light from the victim’s car that was found in the grill of defendant’s vehicle
because law enforcement lost that piece of the tail light, and whether the
court erred by refusing to instruct the jury about the police losing the piece of
the tail light;
5. Whether the court erred by allowing the prosecutor to introduce
evidence of the November 6, 2016 incident to prove knowledge of the danger
of drinking and driving for the murder counts in the May 14, 2017 incident;
6. Whether the court erred by allowing the trial to go forward on July
10, 2019, in defendant’s absence without first obtaining a formal presence
waiver from defendant;
7. Whether the court erred by refusing to instruct the jury on
voluntary intoxication; and
8. Whether the evidence was sufficient to support defendant’s
conviction for two counts of second degree murder.
We have reviewed the record as required by Wende and Anders. We
have not discovered on appeal any arguable issues for modification or
reversal.
Competent counsel has represented defendant on appeal.
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DISPOSITION
The judgment is affirmed.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
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