Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. SWF027168 Frederick A. Mandabach, Judge. Super. Ct.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lynne McGinnis, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Codrington J.
I
INTRODUCTION
Defendant and appellant, Maged Labib Karas, was speeding while intoxicated and rear-ended another vehicle, injuring four people, including his passenger, his twin brother, Hani Karas (Hani).
A jury convicted defendant of three offenses: failure to stop at the scene of an accident; causing bodily injury while driving intoxicated; and having a blood alcohol percentage of 0.08 or more. (Veh. Code, §§ 20001, subd. (a), 23153, subds. (a) & (b).)
The court sentenced defendant to a total indeterminate prison term of 36 years to life: a Three Strikes sentence of 25 years to life (Pen. Code, §§ 667.5, subds. (c), (e)(2)(A), 1170, subd. (c)(2)(A)), plus an additional three years for personally causing great bodily injury (Pen. Code, §§ 1192.7, subd. (c)(8), 12022.7, subd. (a)), three one-year terms for bodily injury (Veh. Code, § 23558), and a five-year term for a serious felony prior. (Pen. Code, § 667, subd. (a).) The court also imposed but stayed five one-year terms under Penal Code section 667.5, subdivision (b).
On appeal, defendant objects to the court’s omission of a jury instruction on the meaning of “accomplice.” Defendant also contends the court abused its discretion when it denied defendant’s Romero motion. The parties agree the trial court erred when it imposed and then stayed five 1-year enhancements for defendant’s five prison priors. (People v. Garcia (2008) 167 Cal.App.4th 1550, 1561, citing People v. McCray (2006) 144 Cal.App.4th 258, 267.)
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
We remand to the trial court to strike the five prison priors. Otherwise, we affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
Hani testified about the circumstances preceding the accident and the accident.
At 6:00 p.m. on December 5, 2008, defendant and Hani ate a pizza at home in Inglewood and had one alcoholic drink each. They were test driving a Nissan Pathfinder defendant had just purchased and defendant drove them from Inglewood to the Pechanga Casino in Riverside County, arriving at 10:00 p.m. Hani drank three more drinks at the casino. The brothers left the casino about midnight.
Hani was supposed to drive them home but defendant decided to drive back instead. While defendant drove, Hani argued with him, yelling and insisting that he was capable of driving. Defendant was distracted, trying to calm Hani. Road construction was occurring along the route. When both men looked ahead, they saw a gray car braking in front of them to avoid a truck that was dumping gravel on the side of the road. The gray car was traveling about 20 miles per hour. Defendant was traveling about 40 to 45 miles per hour. Defendant slammed on the brakes but hit the gray car, causing it to spin several times. The Pathfinder also spun and landed in a ditch. Hani thought the gravel caused the car to spin. Hani saw two women exit the car they had hit. When five or seven men came running toward them, Hani was afraid he and defendant were going to be attacked.
Hani’s leg and ankle were broken. His ankle was cut and his head was bleeding after striking the windshield. Because Hani wanted to escape the approaching men and find a hospital, he urged defendant to drive away. Defendant headed north on Pechanga Parkway.
A deputy sheriff followed defendant’s damaged car about a half mile from the accident and effected a traffic stop. Defendant finally stopped at a gas station and waited.
Defendant told a responding officer he had been driving about 35 to 40 miles per hour before hitting a car in front of him. He claimed he did not intend to leave the scene of the collision but he became lost while trying to return to it. He denied drinking any alcohol.
In the hospital, Hani told an officer that he and defendant had each had a drink. Hani disputed that defendant had left the scene. Hani claimed instead that defendant was drunk and lost. At trial, he said that defendant was not drunk.
One witness, Juan Villalobos, testified that he was driving about 45 miles per hour in an area where there was construction. He was passed by defendant weaving and traveling “real fast, ” 50 or 60 miles per hour, before he collided with another car. When defendant’s vehicle stopped, an occupant began throwing out bottles before leaving the area. Two women emerged from their car. A third woman was trapped in the back seat. Another witness followed defendant’s car after the accident and wrote down the license plate number.
Nancy Barreto (Barreto) testified that she and two friends, Nicole Hush (Hush) and Jessica Rigdon (Rigdon), had attended a holiday party at the casino. Barreto had one beer. She began driving the other two women home. The traffic was bumper to bumper because of construction. All the women suddenly felt an impact and their car began spinning. After they stopped, people came to assist them. Barreto saw defendant’s car had stopped and someone was throwing bottles out of the car before driving away.
A toxicologist testified that a blood alcohol level of 0.08 or greater causes impaired driving. Two hours after the accident, defendant’s blood alcohol content (BAC) was 0.12, making him an unsafe driver. At the time of the accident, his BAC may have been 0.15.
Barreto experienced pain in her neck and jaw for about five months. Hush suffered injuries to her head and arm. Her pain continued. Rigdon was trapped in the back seat and her neck, spine, and right shoulder were injured. She had two bulging discs and had to wear a neck brace and have surgery for her collar bone and rotator cuff.
III
JURY INSTRUCTION ON “ACCOMPLICE”
Penal Code section 12022.7, subdivision (a) provides: “(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.” Defendant asserts the court should have instructed the jury on the meaning of “accomplice” as it pertained to defendant’s personal infliction of great bodily injury on Hani.
The legal definition of accomplice, as set forth in CALCRIM No. 3160, is a person “subject to prosecution for the identical crime charged against the defendant” because he personally committed the crime or knew of the criminal purpose of the person who committed the crime and he intended to and facilitated the commission of the crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259.)
One obstacle to defendant’s argument is that there was never any contention made to the jury that Hani could conceivably have been characterized as an accomplice to defendant causing great bodily injury while intoxicated against Hani. Instead, defendant improbably argues that the jury could have regarded Hani as an accomplice to his own injury because he encouraged defendant to drive when drunk. In fact, the opposite was true. Hani wanted to drive and argued vigorously with defendant about not being allowed to do so.
Furthermore, any error in not giving the instruction must be deemed harmless. The legal meaning of “accomplice” is specific and limited. Whether a victim is an accomplice is a question of fact unless the facts and inferences are undisputed. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103.) Here no substantial evidence shows that Hani knew of defendant’s criminal purpose and intended and facilitated the commission of great bodily injury-the near amputation of his ankle-against himself. Had the jury been so instructed, it could not reasonably have found Hani to have been defendant’s accomplice in causing great bodily injury to Hani. Defendant cannot maintain it was reasonably probable he would have received a more favorable outcome if the jury had been instructed on the specific legal meaning of “accomplice.” (People v. Valerio (1970) 13 Cal.App.3d 912, 925, applying People v. Watson (1956) 46 Cal.2d 818, 826.) For the same reason, any error was also harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)
IV
Romero Motion
The court found defendant guilty of three strike prior offenses, involving robbery (Pen. Code, § 211) which incurred in 1982. (Pen. Code, §§ 667, subds. (c), (e)(2)(A), 1170, subd. (e)(2)(A). Defendant made a Romero motion asking the court to exercise its discretion to dismiss his strike priors. (Pen. Code, § 1385.) The court denied the motion, expressly finding that defendant was subject to the Three Strikes law. On appeal, defendant argues the trial court abused its discretion in not striking some of his strike priors.
Based on the record presented, appellant makes no showing that the trial court acted arbitrarily or abused its discretion: “‘[A] trial court’s failure to dismiss or strike a prior serious and/or violent felony conviction allegation under [Penal Code] section 1385 should be reviewed for abuse of discretion.’ (People v. Carmony (2004) 33 Cal.4th 367, 376.) A trial court abuses its discretion when it dismisses a prior conviction solely to accommodate judicial convenience, due to court congestion, because a defendant pleads guilty, or conversely refuses to dismiss because of personal antipathy for the defendant while ‘ignoring “defendant’s background, ” “the nature of his present offenses, ” and other “individualized considerations.”’ (People v. Superior Court (Romero)[, supra, 13 Cal.4th at pp.] 530-531.) In determining whether to dismiss a prior felony conviction, the trial court must ‘consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ (People v. Williams (1998) 17 Cal.4th 148, 161.)” (People v. Carrasco (2008) 163 Cal.App.4th 978, 992-993.)
Defendant asked the court, in exercising its discretion, to consider that defendant is as an Egyptian immigrant and a member of the Christian Coptic Orthodox church. His family faced persecution in Egypt until seeking asylum in the United States in 1971 when defendant was 10 years old. Defendant pleaded guilty in 1982 to his three strike offenses for robbery, which actually involved robbery of six gas stations. Between 1985 and 2005, defendant committed 10 more felonies-burglary, theft, and narcotics possession-and two misdemeanors-solicitation and driving while unlicensed. He served various jail and prison terms and was unsuccessful in completing probation or parole. In July 2007, a psychologist diagnosed defendant as having a posttraumatic stress disorder and depression, stemming in part from his turbulent childhood.
Defendant blames his long criminal history and the current set of offenses on his personal history, his psychological condition, and his lifetime abuse of drugs and alcohol. Defendant argues that, if the court had exercised its discretion to sentence him as a Two-Strike offender, he would still be subject to a lengthy sentence of 17 years.
The record reflects the trial court considered a wide range of appropriate factors in sentencing defendant, particularly the nature and circumstances of defendant’s present and past convictions. The court read the Romero motion and the psychological report, the district attorney’s opposition and sentencing brief, the probation report, and the supporting letters filed on behalf of defendant. Defendant’s prior convictions were serious felonies. The argument that the robbery convictions were remote in time is without merit where, as here, the defendant has led a continuous life of crime. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813, [20-year-old felony conviction not remote given defendant’s criminal recidivism].) Defendant has a decades-long criminal history; he was never free of imprisonment for at least five years: “[H]e is the kind of revolving-door career criminal for whom the Three Strikes law was devised.” (People v. Gaston (1999) 74 Cal.App.4th 310, 320.) Based on the foregoing, we find no abuse of discretion by the trial court in declining to dismiss defendant’s strike priors.
V
DISPOSITION
We remand and direct the trial court to amend the abstract of judgment to strike the five Penal Code section 667.5, subdivision (b) prison terms that were erroneously stayed by the court and to forward the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Ramirez P.J., King J.