LONGER DUI SENTENCE SOUGHT D.A. HOPES TO INCLUDE PRIOR CONVICTIONS.

Byline: Bhavna Mistry Staff Writer

SAN FERNANDO - Johnny Castro had at least 11 DUI convictions on his record when he sped through Castaic drunk one night and killed an aspiring astronaut.

But a prosecutor's failure to establish a special circumstance - the past convictions for driving under the influence - resulted in a 12-year sentence, a fraction of what Castro could get after an unusual court proceeding scheduled next month.

A mid-December date will be set soon for a trial that will be very limited in scope: to verify Castro's 1990 felony drunk driving conviction in Kern County, a piece of evidence that was not allowed during his last trial.

``We don't have to prove the case, only the conviction,'' said Deputy District Attorney John Asari, who served as the lead prosecutor in the previous case. ``We will be proving the conviction through (past criminal) records.''

Allowed in this case by an appellate court, such a trial on a previous conviction is a rare occurrence, Asari said.

``It's unusual to have the conviction affirmed and then go forward with a prior trial,'' Asari said. ``We're trying to see that justice is done.''

Castro, 40, was convicted in March 1999 of vehicular manslaughter in the drunk driving death of Mahdad Koosh, 22, a Westlake Village man who was to start a new job with NASA the following day. He has been jailed since the incident.

Castro had at least 11 DUI convictions - including the one felony - under his name and aliases. He was drunk again in 1998 as he sped down the Golden State Freeway at about 100 mph in his sports car and rear-ended Koosh's Jeep Wrangler a mile south of Hasley Canyon Road, according to court records.

A recent graduate of Renesslaer Polytechnic Institute, Koosh was driving home from New York, where he had worked as a volunteer firefighter paramedic.

After four days of deliberating, the jury rejected a greater charge of second-degree murder 11-1 when one juror believed that someone other than Castro may have been driving.

Castro's attorneys maintained that his client was not driving the night Koosh died. A witness said that Castro had told him his wife was driving but refused to identify her.

Superior Court Judge Meredith C. Taylor sentenced Castro to the maximum penalty under the law, less than would be allowed had the district attorney's office included the previous felony conviction.

In 1999, Asari acknowledged that he failed to properly file a special enhancement based on Castro's prior record. He was given the case after charges had been filed.

``The fact of the prior was filed, but it wasn't under the correct code,'' Asari said.

Taylor rejected Asari's last-minute attempts to file the special motion based on ``Courtney's Law'' that allows judges to sentence drunk drivers with multiple convictions who kill to 15 years to life in prison.

``We should have been allowed at his last trial to enter into evidence that he had a prior felony conviction,'' said Jane Robison, spokeswoman for the Los Angeles County District Attorney's Office. ``At the time, the judge didn't allow us to do it and that's why we are going back.''

The law, 2 years old at the time, was named for a 15-year-old girl killed by a drunk driver.

Dissatisfied with the trial's outcome, the District Attorney's Office appealed the judge's decision. The appellate court ruled that before Castro can be resentenced, the prosecution must prove that the 1990 conviction in question was valid.

``It's a very limited portion that we are allowed to retry him on,'' Robison said. ``If the jury finds that he was convicted, it could add 15 years to life to his sentence.''

If his current sentence stands, Castro, with good behavior, could be released in two to three years. If the prosecution wins, Castro could face at least an additional five years and has the potential to spend his life in prison.

``We're not shooting to add a certain number of years,'' Asari said. ``This is the appropriate charge. The prison system will determine how long he will serve.''

The call for a trial on a previous case is only the latest in a series of twists that have followed the case.

Besides the appeal filed by the district attorney, there were defense motions to have Castro's conviction thrown out. His lawyers contended that the trial court erred in refusing to conduct a full hearing to determine whether the jury had reached a compromise verdict. They also asked for a new trial based on juror misconduct, and maintained that the trial court erred in excluding the out-of-court statement of a witness.

Castro's appeals were rejected by the appellate court.