P. v. McElfresh

Filed 3/3/06 P. v. McElfresh CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge.

Alister McAlister, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna and Kelly C. Fincher, Deputy Attorneys General, for Plaintiff and Respondent.

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A roll-over car accident occurred on Interstate 5 on April 7, 2001. The two occupants of the car, defendant James Keith McElfresh and Stuart Woods, were ejected from the car and injured. Defendant was prosecuted as the driver of the vehicle. A jury convicted defendant of driving under the influence and causing injury (Veh. Code, § 23153, subd. (a); count 1) and driving with a blood alcohol level of .08 percent or more and causing injury (Veh. Code, § 23153, subd. (b); count 2). In connection with both counts, the jury found that defendant personally inflicted great bodily injury on Stuart Woods within the meaning of Penal Code^[1] section 12022.7, subdivision (a). In addition, the court found defendant had two prior convictions under the three strikes law, striking one of them pursuant to Romero^[2]. The court sentenced defendant to a total prison term of seven years: the middle term of two years on count 1, doubled to four years as a second strike sentence, plus three years for the great bodily injury enhancement. The court ordered count 2, a four-year middle term, to run concurrently, yet it stayed the sentence under section 654.

On appeal, defendant contends (1) the great bodily injury enhancement should be stricken because Woods was an accomplice; (2) the stayed term on count 2 should be reduced to one-third the middle term as a subordinate term under section 1170.1, subdivision (a); and (3) the court abused its discretion by striking only one of defendant's two prior convictions when ruling on defendant's Romero motion to strike his prior convictions. We reject defendant's contentions and affirm the judgment.

FACTS

On April 7, 2001, sometime after 6 p.m., Clinton Wenter, an off-duty police sergeant, was driving south on Interstate 5. The weather was sunny, warm, and windy. Wenter was traveling at 75 miles per hour in the â€