Metropolitan News-Enterprise


Thursday, October 15, 2009


Page 3


Supreme Court Leaves Retired Judge’s Felony DUI Conviction Standing




The California Supreme Court yesterday left standing a Fourth District  Court of Appeal ruling that upheld the conviction of retired Orange Superior Court Judge Theodore E. Millard on a felony drunk driving charge.

Millard, the court’s presiding judge in 1996 and 1997 and now a private judge with Judicate West in Santa Ana,  although under interim suspension from the State Bar as a result of his conviction, was on his way home after having dinner with friends when he hit motorcyclist William Payne, then 52, in Orange in December 2003.

Payne, who said he had to give up his job as a customer service representative for a home construction company as a result of the accident, obtained a $1.1 million settlement from the judge’s insurer.

Office Disqualified

The case was prosecuted by the Attorney General’s Office after Orange County District Attorney Tony Rackauckas, a friend of the judge, disqualified his entire office. The case was tried in Norwalk before Los Angeles Superior Court Judge John Torribio, sitting as an assigned Orange Superior Court judge, and the appeal was heard by Div. One in San Diego.

Forensic tests determined that Millard was driving with a blood-alcohol level of 0.11 at the time of the crash, and he was convicted of driving under the influence and driving with an excessive blood alcohol level, while committing an unlawful act—failure to yield while making a left turn—and causing bodily injury.

Police testified that Millard said he did not see the motorcycle, and that he had been drinking wine—three or four glasses with two to three inches of wine in each glass—at the home of friends prior to the accident.

Torribio sentenced the ex-judge to three years of informal probation, including 75 days in jail and five and one-half months of electronic confinement.

Argument Rejected

In an unpublished portion of the Court of Appeal opinion, Justice Alex McDonald rejected the contention that Torribio erred in barring a defense expert—who testified that Millard’s blood alcohol level was actually under 0.05 percent—from testifying that a driver is presumed unimpaired at that level, and also erred by not instructing on that presumption.

The expert’s testimony was based on a replication test conducted five months after the accident.

The applicable statute, McDonald noted, says the presumption arises if the defendant has a blood alcohol level under 0.05 percent “at the time of the test” for intoxication.

“The phrase ‘at the time of the test’ implicitly means the test taken by or on behalf of police at the time of or shortly after the defendant’s alleged offense,” the justice wrote. “It cannot reasonably be construed to include a replication test conducted on a defendant days, weeks, or even months after the alleged offense.”

In the published portion of the opinion, the court ordered reconsideration of a $390,000 restitution order, saying the trial judge allowed an excessive amount for attorney fees and costs incurred by Payne in his civil action.

Both sides unsuccessfully sought review in the case, People v. Millard (2009) 175 Cal.App.4th 7.

In other conference action, the justices:

•Agreed to resolve a split within the Court of Appeal as to whether a physician-patient arbitration agreement is binding on the patient’s family in a wrongful death suit against the health care provider. The court held in Ruiz v. Podolsky (2009) 175 Cal. App. 4th 227 that it is not.

Left standing a ruling by this district’s Div. Six that the First Amendment protects a political party county central committee’s right to oust a member for reasons specified in the committee’s own bylaws.

The court held in Wilson v. San Luis Obispo County Democratic Cent. Committee (2009) 175 Cal.App.4th 489, that Eu v. San Francisco County Democratic Central Committee (1989) 489 U.S. 214, which held that political parties have a constitutional right to govern their internal affairs, subject to state intervention only to the extent “necessary to ensure that elections are fair and honest,” takes precedence over Election Code sections that limit the grounds on which a member may be removed.

The ruling upholds the removal of Gail Wilson from the San Luis Obispo County Democratic Central Committee for having found that she had disrupted the committee’s work by filing a baseless complaint accusing the committee and its officials of violating election laws. The committee treated Wilson fairly, Justice Kenneth Yegan said, because it gave her fair notice of the charges and allowed her and her supporters to make their arguments before the full committee.

Agreed to decide whether a Riverside Superior Court judge was required to give a sua sponte instruction on the defense of accident in the case of a convicted murderer who claims that he accidentally ran over the woman whose car he had just stolen. The case, which was decided by the Fourth District’s Div. One in an unpublished opinion, is People v. Anderson, D054740.

Denied review of a First District Court of Appeal ruling that upheld an award of nearly $200,000 in damages to a San Francisco woman subjected to debt collection abuses due to a case of mistaken identity.

In Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, Div. One clarified that the litigation privilege did not shield conduct violating the Robbins-Rosenthal Fair Debt Collection Practices Act, but it did bar a cause of action for the intentional infliction of emotional distress and reduced Anastasiya Komarova’s award against National Credit Acceptance Inc. accordingly.

Komarova was originally awarded $197,905 in damages under the statute, plus intentional infliction of emotional distress damages of  $67,905 and $75,000 in punitive damages, but all of the non-statutory damages were eliminated from the award.


Copyright 2009, Metropolitan News Company