Prosecutors’ Error Adds to Father’s Grief

An eight-time drunk driver convicted of killing a 22-year-old engineer in a traffic accident could receive a lighter sentence than the law allows because prosecutors failed to file the proper allegations against him.

In an 11th hour bid to fix the error, Deputy Dist. Atty. John Asari filed a motion Tuesday asking a San Fernando judge to allow him to amend the original criminal complaint against Johnny Castro at a sentencing hearing today, saying the omission was unintentional.

Because the judge would be required to set in motion a number of unusual legal steps, such a request is difficult to obtain, say legal experts.

Castro, 38, killed Mahdad Koosh in a January 1998 accident on the Golden State Freeway. He was convicted in March of gross vehicular manslaughter while intoxicated.

That crime carries a sentence of four to six years in prison. However, a sentencing enhancement that works like the three strikes law, and has been in effect since 1997, mandates a sentence of 15 years to life in prison for repeat drunk drivers who commit gross vehicular manslaughter while intoxicated.

Because prosecutors did not mention Castro’s eight prior convictions for driving drunk in the complaint and did not claim the charges for Koosh’s death were punishable under a state statute called Courtney’s Law, the enhanced sentence does not now apply to Castro’s case.

Asari acknowledges that he was unaware of the statute. It was highlighted, however, in a December 1996 office-wide memorandum on new laws, covered in an annual seminar on new laws and included in the office manual on the filing of criminal charges, according to internal district attorney documents obtained by The Times.

Deputy Dist. Atty. Sue Lasicka, who filed the case in the Valencia office, said she does not remember the details of the case and cannot explain why Courtney’s Law was not invoked.

Asari said he takes full responsibility, because he should have caught it in preparing for trial. Instead, he focused on trying to convict Castro of the more serious crime of second-degree murder.

“We were trying to prosecute the murder, which we believe was the correct charge,” Asari said. “Obviously, in hindsight we recognize that we overlooked something.”

The conviction he sought, second-degree murder, carries the same penalty as Courtney’s Law doles out to repeat drunk drivers convicted of gross vehicular manslaughter. But murder, which requires proof of malice, is harder to prove than manslaughter, which does not.

To prove murder, Asari tried to persuade a jury that Castro should have known that driving drunk was dangerous because of his multiple prior DUI convictions, making his actions so reckless that malice is implied.

During the monthlong trial, one juror would not vote to convict Castro of murder, leading to a compromise conviction on a charge of gross vehicular manslaughter.

After the verdict, Dan Koosh, the victim’s father, said he learned about Courtney’s Law and brought it to Asari’s attention. He accuses the prosecution of an “unforgivable error” that could result in Castro being released on parole as early as 2003 because of credits for time served and good behavior in prison.

“I lost my only son and the system is not working,” said Koosh, whose son died as he returned home to Westlake Village after a cross-country trip before beginning a job with NASA. “I’m hurting.”

Koosh has written letters of complaint to Asari, his supervisors, Dist. Atty. Gil Garcetti, U.S. Atty. Gen. Janet Reno and state Sen. Jackie Speier (D-Daly City), who wrote Courtney’s Law, which is named in memory of a 15-year-old Northern California girl killed by a repeat drunk driver.

Koosh also wrote to San Fernando Superior Court Judge Meredith Taylor, who is presiding over the case, and sent her a petition with 800 signatures requesting that she sentence Castro under Courtney’s Law.

Asari contends that Taylor has the discretion of allowing the prosecutor to amend the criminal complaint and then impaneling a new jury to decide only whether Castro did in fact have prior DUI convictions. If the jury were to find that he did, the judge would then be mandated to sentence Castro to the tougher prison term.

Castro’s lawyer, Larry Boyle, could not be reached for comment and has not yet responded to Asari’s motion.

Laurie Levenson, a law professor at Loyola Marymount University, said the state Supreme Court is reviewing a case in which a judge allowed prosecutors to amend a complaint after a conviction when probation officials uncovered a lengthy criminal record.

She said that the appeals cases suggest prosecutors have a “fighting chance,” but that the judge will have to weigh why prosecutors did not use Courtney’s Law to begin with and the effect of having two juries involved in the case.

Castro is just the kind of person Courtney’s Law was aimed at, a repeat drunk driver who “doesn’t get it” and keeps driving while intoxicated despite numerous convictions, said a consultant for Speier.

According to court records and authorities, Castro’s criminal record dates back two decades. It includes convictions for receiving stolen property and driving while intoxicated.

Castro’s most recent drunk driving arrest in 1994 ended in a misdemeanor conviction for public drunkenness, but no jail time. The charge had to be reduced because the Kern County Sheriff’s Department lacks the resources to conduct regular field sobriety and Breathalyzer tests, authorities said.

The man killed by Castro, Mahdad Koosh, graduated from Rensselaer Polytechnic Institute in Troy, N.Y., in 1996. After graduation, he embarked on a solo cross-country trip back home to Southern California, where he was to begin working for NASA in Huntington Beach.

Koosh’s father proudly noted that his son was a volunteer firefighter and commercial helicopter pilot, impressive feats considering that he was burned over 80% of his body as a child when he and a friend were playing with matches near a can of kerosene.

About 6:30 p.m. on Jan. 11, 1998, Castro drove his car into the U-Haul trailer Koosh was towing on the last leg of his cross-country trip, headed south on the Golden State Freeway near Santa Clarita. Castro’s blood-alcohol content was 0.17%, more than double the 0.08% legal limit, according to court papers. He had been drinking at a Bakersfield bar.

Castro’s defense was that another man whom he met at a bar was behind the wheel and fled after the accident.