Filed 5/15/24 P. v. Colon CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

GEORGE COLON,

 Defendant and Appellant.

 G063477

 (Super. Ct. No. RIF2200164)

 O P I N I O N

Appeal from a judgment of the Superior Court of Riverside County, 

Timothy F. Freer, Judge. Affirmed.

Alex Kreit, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal and Andrew 

Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
2

Following a jury trial, George Colon was convicted of driving under the 

influence of marijuana and causing bodily injury to his passenger A.M. (Veh. Code, 

§ 23153, subd. (f)). The jury also found he personally inflicted great bodily injury upon 

A.M., who was not an accomplice to the offense (Pen. Code, §§ 12022.7, subd. (a), 

1192.7, subd. (c)(8)).1 At sentencing, the court selected the midterm sentence of two 

years and doubled it to four years because Colon had a prior strike conviction; the court 

also imposed a consecutive three-year term for the great bodily injury enhancement, for a 

total prison sentence of seven years. 

Colon raises four issues on appeal: (1) the court committed prejudicial 

error by permitting the prosecution’s toxicology expert to give her opinion he was 

impaired at the time of the crash; (2) the great bodily injury enhancement must be 

reversed because the court failed to instruct on one of its elements; (3) the court abused 

its discretion by imposing the midterm sentence; and (4) the court erred by imposing two 

sentencing enhancements. We reject each argument and affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

On January 8, 2022, around 3:00 p.m., C.L. was waiting to turn left at an 

intersection in Corona and noticed a car traveling in the opposite direction at a normal 

rate of speed and in the right-hand lane. The car, driven by Colon, drifted into the right 

curb. From C.L.’s vantage point, it appeared the car’s right front tire caught on the curb. 

After hitting the curb, the car pivoted “violently” to the left and crashed in a spinning 

motion, shearing off the top of a fire hydrant and hitting a light pole.

C.L. and another driver stopped to render aid. Colon got out of the car and 

appeared to be in shock. A.M., the passenger in Colon’s car, was injured and unable to 

1

 All further statutory references are to the Penal Code unless otherwise indicated.
3

get out. Colon, who did not have any visible injuries, walked to the curb, sat down, and 

put his head in his hands. He appeared upset and said he did not know what happened. 

The fire department and police units arrived at the accident scene. There 

was severe damage to the passenger’s side of Colon’s car, and the fire department had to 

use the jaws of life to extract A.M. from the car. A.M. was transported to the hospital. 

The fire department medically assessed Colon and suggested he go to the hospital to be 

checked for injuries, but he declined medical treatment. 

Corporal Michael Brunn watched Colon while Colon talked to members of 

the fire department, and Brunn noticed Colon’s short-term memory and ability to 

concentrate were “extremely impaired.” Colon admitted he was driving the car, but he 

did not remember what happened. Colon told Brunn he had smoked marijuana three

hours prior to the accident and he smokes marijuana daily. When speaking to Colon, 

Officer James Albornoz noticed Colon had slurred speech, an unsteady gait, as well as

bloodshot and watery eyes. Colon told Albornoz he hit his chin in the accident, but 

Colon had no visible injuries. 

Brunn performed standardized field sobriety tests on Colon. There was no 

evidence of horizontal or vertical gaze nystagmus in Colon’s eyes. But there was a very 

pronounced lack of convergence, which was consistent with being under the influence of 

marijuana. Colon did well on the Romberg balance test. However, his performance on 

the one-leg stand and walk-and-turn tests indicated his physical and mental abilities were 

impaired. Based on Colon’s performance on the field sobriety tests and the symptoms of 

marijuana intoxication he exhibited, Brunn concluded Colon’s ability to drive was 

impaired due to marijuana intoxication and his impairment was a contributing factor to 

the collision.
4

Brunn arrested Colon for driving under the influence. In a search of 

Colon’s car, police found two bags of marijuana and various vape pens and cartridges.2 

Albornoz took Colon to the hospital, where a blood draw was performed.

The district attorney charged Colon with driving under the influence of a 

drug and causing bodily injury to A.M. (Veh. Code, § 23153, subd. (f)) and alleged Colon 

personally inflicted great bodily injury upon A.M. in the commission of the offense (Pen. 

Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)(8)). The information also alleged Colon

suffered a prior conviction in 2019 for driving under the influence of a drug (Veh. Code, 

§ 23152, subd. (f)) and was convicted in 2020 of assault with a firearm (Pen. Code, 

§ 245, subd. (a)(2)), which is a strike under the Three Strikes law (§§ 667, subd. (c)(2), 

1170.12, subd. (a)(2)).

Before the jury was empaneled, Colon admitted the alleged prior 

convictions. The jury heard the evidence concerning the single-car accident, Colon’s 

symptoms of marijuana intoxication, and his performance on the field sobriety tests. 

Albornoz also testified he smelled the odor of marijuana on Colon when he spoke to him

after the accident. However, Albornoz had not put this information in his report and did 

not mention it at the preliminary hearing.

A.M. testified at trial. He had known Colon for several years and they were 

good friends. As a result of the accident, A.M. was in a coma and suffered a fractured 

spine. Initially upon awaking from his coma, A.M. was unable to walk; after three 

months, he returned to walking normally. A.M. did not remember much from the month 

of the accident. He did recall that on the day of the accident, he and Colon left work to 

go get lunch. Colon drove. There was preexisting damage to Colon’s car, and it looked 

2

 The court gave a limiting instruction that told the jury it was to consider this evidence 

only for the purpose of determining whether Colon was under the influence of marijuana 

such that it impaired his ability to safely operate a motor vehicle and not for any other 

purpose.
5

“messed up.” Upon picking up lunch, they sat in the car and ate. After eating, they 

smoked about a gram of marijuana. They were headed back to work when the accident 

occurred.

The prosecution also presented the expert testimony of forensic toxicologist 

Kristen Steward from Bio-Tox Laboratories, which tested the sample of Colon’s blood. 

The test Steward performed looks at three different components found within marijuana.

The first component is delta-9-THC, which is the major psychoactive component in 

marijuana and can cause mental impairment. The second component is 11-hydroxydelta-9-THC, which is the main metabolite or breakdown product and is equally capable 

of causing a mental change. This component dissipates below the lab’s cutoff of one 

nanogram per milliliter within 24 hours. The third component is 11-carboxy-delta-9-

THC, an inactive component that does not have any impairment abilities. 

All three components were seen in the test on Colon’s blood sample. The 

amount of delta-9-THC in Colon’s blood indicated he had recently used marijuana. It did 

not necessarily reflect the marijuana had a psychoactive effect on Colon, but the result 

indicated it had the ability to do so. The amount of 11-hydroxy-delta-9-THC in Colon’s 

blood indicated he had used marijuana within 24 hours and there was the possibility of 

mental impairment. Steward admitted she would not be able to tell what Colon’s delta-9-

THC was at the time of the accident because the peak level concentration of THC 

depends on the potency or purity of the marijuana.

Steward testified the results of Colon’s blood test by themselves did not 

provide enough information for her to opine whether he was impaired while driving. She 

explained marijuana does not have a recognized concentration, like alcohol, where every 

person is impaired. The presence of marijuana in a person’s system does not mean the 

person is feeling the drug’s effects. Instead, the presence of marijuana in a person’s 

system is only one factor to consider. To provide an opinion as to whether a person was 

impaired or driving under the influence, Steward considers the individual’s driving 
6

pattern, symptoms, performance on the field sobriety tests, and the toxicology (i.e., 

whether the drug was present in the individual’s system) and considers whether the 

driving patterns, symptoms, and field sobriety tests are consistent with the drug found in 

the toxicology result. After the prosecutor provided a hypothetical based on the 

testimony at trial concerning the accident, the car’s contents, Colon’s symptoms of 

intoxication, his performance on the field sobriety tests, and toxicology, Steward opined 

the “individual was impaired for the purpose of driving.” She explained the presence of 

THC above the lab’s cutoff and the fact the hypothetical individual was showing signs 

and symptoms of intoxication indicates the person recently used, and the person’s driving 

and performance on the field sobriety tests indicates the person was impaired.

Steward testified marijuana levels in a person’s blood system do not 

correlate to impairment. She reiterated the presence or amount of THC in a person’s 

blood alone cannot determine impairment. But she explained any concentration of THC 

can potentially impair someone.

The defense called Colon’s older brother, G.C., as a witness. Prior to the 

accident, the passenger side of Colon’s car was severely damaged in a crash. The car’s 

passenger side window did not go up and Colon used a blanket in the window. The car 

looked “pretty messed up,” but G.C. was unaware of any mechanical problems with the 

car.

The jury convicted Colon of the single charge and found true the great 

bodily injury enhancement. The court imposed a total prison sentence of seven years.

DISCUSSION

I.

ADMISSION OF EXPERT OPINION TESTIMONY

Colon contends the court prejudicially erred by allowing the prosecution’s 

toxicology expert, Steward, to opine he was impaired by marijuana at the time of the 
7

crash because the prosecution did not show the expert’s methodology was accepted or 

reliable for assessing marijuana impairment. We conclude the court properly admitted 

the expert’s testimony. 

A. Background

Prior to trial, the defense moved to exclude evidence of the specific levels 

of THC in Colon’s blood. In the motion, the defense argued “the predicted testimony of 

the criminalist that the marijuana/THC in Mr. Colon’s blood caused his driving to be 

impaired should be barred” because the scientific community is not in agreement on 

whether “marijuana/THC actually effects a person’s ability to drive.” The defense 

asserted the prosecution should be required to prove at an Evidence Code section 402 

hearing that the criminalist was qualified to testify as an expert on THC levels and how 

THC causes driving to be impaired. In arguing the motion before the court, defense 

counsel asserted there is currently “no consensus as to what levels of THC in a person’s 

blood will cause impairment or even being under the influence” and given this lack of 

consensus, the THC levels in Colon’s blood are irrelevant as to the issue of whether he 

was impaired. 

The court held an Evidence Code section 402 hearing on the matter, at 

which Steward testified regarding her professional background and training, how BioTox Laboratories tests for marijuana in a blood sample, the three components of 

marijuana they look for, and what information can be gleaned from their test results. She 

explained any concentration of the first two components they test for (delta-9-THC and 

11-hydroxy-delta-9-THC) above the lab’s limit of quantitation is significant information 

she would use in formulating her opinion the drug is present in the person’s system and 

relevant to the issue of potential cognitive impairment. Steward acknowledged that 

studies looking at the correlation between THC levels and impairment have not found a 

correlation to a certain concentration like there is with alcohol. She testified the 
8

concentration found in Colon’s blood sample indicated recent usage, meaning usage 

within several hours, but she was not able to provide a specific time frame.

The defense argued the evidence of the THC levels in Colon’s system was 

irrelevant because Steward acknowledged the levels do not correlate to impairment and 

while they indicated recent usage, Colon admitted recent usage to the officers. The 

defense also argued the evidence was unduly prejudicial because the jury may place 

improper weight on the evidence of the THC levels in Colon’s system without 

understanding the relevance of this evidence. The court denied the motion, finding the 

testimony was relevant and exclusion was not warranted under Evidence Code section 

352.

At trial, Steward opined a hypothetical driver with Colon’s blood test 

results, driving pattern, intoxication symptoms, and performance on field sobriety tests

would have been impaired for the purpose of driving. 

B. Standard of Review and Governing Legal Principles

“‘The trial court has broad discretion in deciding whether to admit or 

exclude expert testimony . . . and its decision as to whether expert testimony meets the 

standard for admissibility is subject to review for abuse of discretion.’” (People v. Duong

(2020) 10 Cal.5th 36, 60.) Expert opinion testimony “‘“‘will be excluded only when it 

would add nothing at all to the jury’s common fund of information, i.e., when “the 

subject of inquiry is one of such common knowledge that men [and women] of ordinary 

education could reach a conclusion as intelligently as the witness.”’”’” (People v. 

Edwards (2013) 57 Cal.4th 658, 756.) 

Evidence Code section 720, subdivision (a) provides: “A person is 

qualified to testify as an expert if he has special knowledge, skill, experience, training, or 

education sufficient to qualify him as an expert on the subject to which his testimony 

relates.” Expert opinion testimony is generally limited to subjects “sufficiently beyond 
9

common experience that the opinion of an expert would assist the trier of fact.” (Evid. 

Code, § 801, subd. (a).) 

“Trial judges have a critical gatekeeping function when it comes to expert 

testimony beyond merely determining whether the expert may testify at all.” (People v. 

Azcona (2020) 58 Cal.App.5th 504, 513 (Azcona).) Evidence Code section 801, 

subdivision (b) requires the expert’s opinion testimony be based on matter “that is of a 

type that reasonably may be relied upon by an expert in forming an opinion upon the 

subject . . . .” An expert witness offering an opinion may state the reasons for the opinion 

and the matter upon which it is based. (Evid. Code, § 802.) “Testimony in the form of an 

opinion that is otherwise admissible is not objectionable because it embraces the ultimate 

issue to be decided by the trier of fact.” (Evid. Code, § 805.)

C. The Trial Court Did Not Abuse its Discretion by Admitting the Expert Testimony

Colon’s appellate contention is more nuanced than the issue he raised in the 

trial court. On appeal, he does not challenge the admission of Steward’s expert testimony 

concerning his blood test results or that the THC levels in his blood indicated recent use. 

Instead, he asserts the court abused its discretion by allowing Steward to give her opinion 

concerning his impairment at the time of the crash “because there was no showing by the 

prosecution that the methodology [the expert] used—combining blood test results with 

second-hand hypothetical descriptions of a driver’s conduct on the road and performance 

in field sobriety tests—is an accepted or reliable one for assessing marijuana 

impairment.” Colon focuses on Steward’s testimony that in forming her opinion, she 

considers driving patterns, symptoms of intoxication, field sobriety tests, and toxicology. 

He argues the court abused its discretion by admitting Steward’s expert opinion testimony 

because there was no “evidence to support the reliability or acceptance” of her 

methodology and “no explanation of how each factor” was weighed in the analysis. He 

asserts “Steward’s method for forming an opinion had no apparent protocol, and no 
10

evidence that it has gained acceptance or is capable of producing reliable results was 

provided.”

But Colon did not raise this objection below and has therefore forfeited it 

on appeal. (Evid. Code, § 353; People v. Farnam (2002) 28 Cal.4th 107, 159.) Even if 

Colon’s appellate claim was properly preserved, it is without merit. The issues Colon 

raises concerning Steward’s methodology and its acceptance are relevant to the weight of 

her expert opinion, not to its admissibility, and could be raised on cross-examination. As 

our Supreme Court has explained, a defendant is “‘entitled to attack [the expert’s] 

credibility regarding the claimed basis of [her] opinion, but questions regarding the 

validity or credibility of an expert’s knowledge go to the weight of such testimony, not its 

admissibility.’” (People v. Rodriguez (2014) 58 Cal.4th 587, 638.) Colon was entitled to 

attack Steward’s expert opinion testimony regarding the methodology she used and its 

acceptance. He did not. In cross-examining Steward during the Evidence Code section 

402 hearing and before the jury, defense counsel did not ask Steward whether her 

methodology had “gained acceptance or [was] capable of producing reliable results.” 

Colon’s reliance on Azcona, supra, 58 Cal.App.5th 504 to support his 

argument is misplaced as the situation in that case is readily distinguishable. In Azcona, a 

firearms expert testified the marks on the projectiles in different shootings matched and 

indicated the projectiles came from the same gun, “‘to the practical exclusion of all other 

guns.’” (Id. at pp. 513–514.) The Court of Appeal concluded the “trial court abused its 

discretion by failing to limit the expert’s opinion to what was actually supported by the 

material the expert relied on.” (Id. at p. 514.) The appellate court explained: “A trial 

court’s duty to keep unfounded opinions from the jury is particularly important in a 

situation like the one presented here, where significant criticism of the expert’s 

methodology was presented (even if it was not shown to have been rejected by a clear 

majority of the scientific community). The existence of such criticism should prompt a 

trial court to carefully determine what conclusions can reliably be drawn from the 
11

methodology in question. But . . . the trial court abandoned its gatekeeping role, allowing 

unfettered expert testimony that went far beyond what the underlying material 

supported.” (Ibid.) 

Here, there was no evidence Steward’s “methodology” of considering the 

totality of the circumstances had been criticized. Based on the evidence and argument 

before it, the trial court properly evaluated the admissibility of the expert’s opinion 

testimony. Accordingly, we reject Colon’s claim the court abused its discretion by 

admitting this evidence.

II.

INSTRUCTION ON GREAT BODILY INJURY ENHANCEMENT

Section 12022.7, subdivision (a) provides: “Any person who personally 

inflicts great bodily injury on any person other than an accomplice in the commission of a 

felony . . . shall be punished by an additional and consecutive term of imprisonment in 

the state prison for three years.” When instructing the jury on the great bodily injury 

enhancement under section 12022.7, subdivision (a), the court omitted the element the 

prosecution must prove A.M. was not an accomplice to the offense. Colon contends the 

court’s omission of this element and the court’s failure to instruct on general principles of 

accomplice liability (CALCRIM Nos. 400–403) necessitate the reversal of the great 

bodily injury enhancement. We disagree.

A. Background

The information alleged Colon, in the commission of the driving under the 

influence offense, personally inflicted great bodily injury upon A.M., who was not an 
12

accomplice to the offense, within the meaning of sections 12022.7, subdivision (a) and 

1192.7, subdivision (c)(8).3

During discussions on the proposed jury instructions, the court indicated 

the prosecution had requested the court give CALCRIM No. 3160 for the great bodily 

injury enhancement. The defense did not object to the proposed language in the 

instruction nor request additional instructions on accomplice liability.

As given to the jury, CALCRIM No. 3160 provided: “If you find the 

defendant guilty of the crime[ ] charged in Count[ ] 1, you must then decide whether, for 

each crime, the People have proved the additional allegation that the defendant personally 

inflicted great bodily injury on [A.M.] in the commission of that crime. You must decide 

whether the People have proved this allegation for each crime and return a separate

finding for each crime. [¶] Great bodily injury means significant or substantial physical 

injury. It is an injury that is greater than minor or moderate harm. [¶] The People have 

the burden of proving each allegation beyond a reasonable doubt. If the People have not 

met this burden, you must find that the allegation has not been proved.”

The court did not instruct the jury the prosecution must also prove A.M. 

was not an accomplice to the crime, an option contained within brackets in CALCRIM 

No. 3160, the pattern jury instruction for the great bodily injury enhancement under 

section 12022.7.4 In brackets, CALCRIM No. 3160 also offers the option of instructing 

on the definition of an accomplice: “A person is an accomplice if he or she is subject to 

prosecution for the identical crime charged against the defendant. Someone is subject to 

3

Under section 1192.7, subdivision (c)(8), a “‘serious felony’” is “any felony in which 

the defendant personally inflicts great bodily injury on any person, other than an 

accomplice.”

4

 Bracketed portions of a jury instruction “provide optional choices that may be 

necessary or appropriate, depending on the individual circumstances of the case.” 

(Judicial Council of Cal., Crim. Jury Instns. (2023) p. xxii.)
13

prosecution if he or she personally committed the crime or if: [¶] 1. He or she knew of 

the criminal purpose of the person who committed the crime; [¶] AND [¶] 2. He or she 

intended to, and did in fact, (aid, facilitate, promote, encourage, or instigate the 

commission of the crime/ [or] participate in a criminal conspiracy to commit the crime).”

The verdict form returned by the jury on the great bodily injury 

enhancement stated it found Colon “did personally inflict great bodily injury upon the 

person of [A.M.], not an accomplice to the offense, within the meaning of Penal Code 

sections 12022.7, subdivision (a) and 1192.7, subdivision (c)[(8)] . . . .”

B. Applicable Law and Analysis

“‘The trial court has a sua sponte duty to give correct instructions on the 

basic principles of the law applicable to the case that are necessary to the jury’s 

understanding of the case,’ including the elements of a charged enhancement.” (People v. 

Camino (2010) 188 Cal.App.4th 1359, 1380; accord, People v. Enraca (2012) 53 Cal.4th 

735, 759 [“In criminal cases, even in the absence of a request, a trial court must instruct 

on general principles of law relevant to the issues raised by the evidence and necessary 

for the jury’s understanding of the case”].) We review a claim of instructional error de 

novo. (People v. Mitchell (2019) 7 Cal.5th 561, 579.) 

Colon contends the court’s instruction on the great bodily injury 

enhancement was incomplete because it omitted the element the prosecution must prove 

A.M. was not an accomplice to the crime and the error was prejudicial. Assuming, 

without deciding, the court committed instructional error by omitting the non-accomplice 

element, we conclude the error was harmless beyond a reasonable doubt.

“[A] trial court’s failure to instruct the jury on an element of a sentence 

enhancement provision (other than one based on a prior conviction), is federal 

constitutional error if the provision ‘increases the penalty for [the underlying] crime 

beyond the prescribed statutory maximum.’ [Citation.] Such error is reversible under 
14

Chapman [v. California (1967)] 386 U.S. [18] at page 24, unless it can be shown ‘beyond 

a reasonable doubt’ that the error did not contribute to the jury’s verdict.” (People v. 

Sengpadychith (2001) 26 Cal.4th 316, 326; see also Apprendi v. New Jersey (2000) 530 

U.S. 466, 490.) 

When a trial court omits an element of a sentence enhancement provision, a 

reviewing court “‘conduct[s] a thorough examination of the record. If, at the end of that 

examination, the court cannot conclude beyond a reasonable doubt that the jury verdict 

would have been the same absent the error—for example, where the defendant contested 

the omitted element and raised evidence sufficient to support a contrary finding—it 

should not find the error harmless.’ [Citation.] On the other hand, instructional error is 

harmless ‘where a reviewing court concludes beyond a reasonable doubt that the omitted 

element was uncontested and supported by overwhelming evidence.’ [Citations.] Our 

task, then, is to determine ‘whether the record contains evidence that could rationally lead 

to a contrary finding with respect to the omitted element.’” (People v. Mil (2012) 53 

Cal.4th 400, 417, quoting Neder v. United States (1999) 527 U.S. 1.)

“Section 1111 defines an accomplice as a person ‘who is liable to 

prosecution for the identical offense charged against the defendant on trial . . . .’” 

(People v. Stankewitz (1990) 51 Cal.3d 72, 90, abrogated on another ground in People v. 

Diaz (2015) 60 Cal.4th 1176, 1190.) “[A]n accomplice is one who aids or promotes the 

perpetrator’s crime with knowledge of the perpetrator’s unlawful purpose and an intent to 

assist in the commission of the target crime . . . .” (People v. Williams (2008) 43 Cal.4th 

584, 637.) An individual’s presence at the scene of a crime or failure to prevent its 

commission is not sufficient to establish aiding and abetting. (People v. Stankewitz, 

supra, 51 Cal.3d at p. 90.) 

The issue is whether A.M. was an accomplice to Colon’s offense of driving 

under the influence of a drug and causing injury. The jury was instructed on the elements 

of causing injury to another while driving a vehicle under the influence of a drug (Veh. 
15

Code, § 23153, subd. (f)): “1. The defendant drove a vehicle; [¶] 2. When he drove a 

vehicle, the defendant was under the influence of a drug[;] [¶] 3. While driving a vehicle 

under the influence, the defendant also committed an illegal act; [¶] AND [¶] 4. The 

defendant’s illegal act caused bodily injury to another person.” (CALCRIM No. 2100.) 

To be an accomplice, A.M. must have known Colon’s criminal purpose and with the 

intent to do so, encouraged, promoted, aided, or facilitated Colon’s commission of the 

offense of operating a vehicle under the influence and causing injury. Given the evidence 

in this case, no reasonable juror could have concluded A.M. was an accomplice to the 

charged offense.

Colon admits A.M. did not drive the car and there was no evidence A.M. 

encouraged or assisted the accident itself. Nevertheless, he contends there was evidence 

from which a reasonable juror could have concluded A.M. was an accomplice to his 

impaired driving because A.M. admitted to smoking marijuana with him prior to the 

crash. A.M.’s act of smoking marijuana with Colon, his presence in Colon’s car, and his 

failure to prevent Colon from driving does not make A.M. an accomplice to Colon’s 

offense of causing injury while driving under the influence of a drug. (See People v. 

Stankewitz, supra, 51 Cal.3d at p. 90.) A.M. was not liable for the same criminal charge 

as Colon as there was no evidence A.M. drove the car under the influence. Nor was there 

evidence A.M. knew Colon’s mental or physical abilities were so impaired that he was no 

longer able to drive the car with the caution of a sober person, using ordinary care, or that 

A.M. encouraged or facilitated Colon’s driving while under the influence. 

To support his contention the court’s failure to instruct “on the not-anaccomplice element of the enhancement” was prejudicial error, Colon relies on People v. 

Verlinde (2002) 100 Cal.App.4th 1146 (Verlinde), disapproved on other grounds in 

People v. Cook (2015) 60 Cal.4th 922 at page 939. But as he acknowledges, Verlinde is 

distinguishable. Verlinde presented “an unusual factual situation with shared driving by 

two intoxicated individuals.” (Id. at p. 1160.) In Verlinde, near the beginning of the 
16

drive, the defendant operated the car’s stick shift and pedals while another person, 

Vessells, controlled the steering wheel. After Vessells indicated he was unable to 

continue driving, the defendant took over the steering wheel as well. (Id. at p. 1155.) A 

witness saw the defendant steering the vehicle shortly before it crashed. (Id. at p. 1156.) 

One passenger of the defendant’s vehicle died, while Vessells and another passenger 

suffered serious injuries. (Ibid.) The defendant was tried on charges of gross vehicular 

manslaughter while intoxicated and driving under the influence and causing injury, 

among other charges, with enhancements for personal infliction of great bodily injury on 

two victims, within the meaning of section 12022.7, subdivision (a). (Verlinde, at 

p. 1154.) 

On appeal, the defendant in Verlinde argued Vessells was an accomplice as 

a matter of law and therefore the trial court erred by failing to instruct the jury that injury 

to an accomplice could not support the great bodily injury enhancement and by failing to 

give certain instructions concerning accomplice testimony (CALCRIM Nos. 334–335).

(Verlinde, supra, 100 Cal.App.4th at pp. 1157–1158, 1167.) The Court of Appeal found 

the evidence presented a factual question for the jury whether Vessells was an accomplice 

as to the charges of gross vehicular manslaughter while intoxicated and/or felony drunk 

driving. (Id. at p. 1160.) The appellate court therefore found the trial court erred by not 

instructing the jury to determine the question of Vessells’s status as an accomplice and by 

not instructing the jury on accomplice testimony. (Id. at pp. 1162–1163.)

In Verlinde, the Court of Appeal also vacated the great bodily injury 

enhancement imposed for the injuries Vessells sustained because the trial court failed to 

instruct the jury on the not-an-accomplice element of the enhancement. (Verlinde, supra, 

100 Cal.App.4th at pp. 1167–1168.) The appellate court explained: “If Vessells is an 

accomplice, the enhancement, by its own terms, cannot be imposed for injuries inflicted 

upon him. Simply put, an element of the enhancement would not be satisfied. Under 

these circumstances, where the jury did not properly have the opportunity to resolve a 
17

factual issue that could have made the enhancement inapplicable by its own terms, 

imposition of the enhancement cannot stand.” (Id. at p. 1168.)

The evidence in Colon’s case is nothing like the “unusual factual situation” 

in Verlinde. (Verlinde, supra, 100 Cal.App.4th at p. 1160.) There was no evidence A.M. 

jointly drove the car with Colon at any point before or during the collision. Nor was 

there evidence A.M. encouraged Colon to drive while under the influence. As there was 

no evidence A.M. was an accomplice to Colon’s offense, the alleged instructional error 

was harmless beyond a reasonable doubt.

III.

SENTENCING ISSUES

Colon raises two sentencing issues. First, he contends the court abused its 

discretion by imposing the midterm sentence because there were mitigating 

circumstances warranting a low term sentence under section 1170, subdivision (b)(6). 

Second, he asserts the court erred by imposing two sentencing enhancements because it 

was required to strike one under section 1385, subdivision (c)(2)(B). We reject both 

arguments.

A. Section 1170

On January 1, 2022, 10 months prior to Colon’s sentencing, several 

amendments to section 1170 went into effect. (Sen. Bill No. 567 (2021-2022); Stats. 

2021, ch. 731, § 1.3.) One change was the addition of subdivision (b)(6) to the statute. 

While the midterm is the presumptive term of imprisonment (§ 1170, subd. (b)(1)), 

subdivision (b)(6) provides: “[U]nless the court finds that the aggravating circumstances 

outweigh the mitigating circumstances that imposition of the lower term would be 

contrary to the interests of justice, the court shall order imposition of the lower term if 

any of the following was a contributing factor in the commission of the offense:” (1) the 
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offender “has experienced psychological, physical, or childhood trauma, including . . . 

abuse, neglect, exploitation,” or (2) the offender was under the age of 26 when the 

offense was committed. 

In Colon’s sentencing motion and at the sentencing hearing, defense 

counsel argued the court should consider Colon’s youth and abuse he suffered as a youth

when the court made its sentencing decisions. Defense counsel, however, did not 

reference section 1170, subdivision (b)(6) or clearly argue Colon’s age and past trauma 

were contributing factors in the commission of the offense that required imposition of the 

lower term. Instead, defense counsel emphasized Colon’s age and past trauma in arguing 

the court should exercise its discretion to dismiss the prior strike conviction for purposes 

of sentencing (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)) and 

grant probation to Colon.

Colon recognizes his trial counsel did not refer to section 1170, subdivision 

(b)(6) or the applicable legal standard, but he asserts a sufficient showing was made 

nonetheless to require the court to impose a low term sentence because his sentencing 

materials repeatedly referenced his youth and past trauma as mitigating factors. 

Alternatively, he asserts if his trial counsel did not make an adequate showing, his 

counsel failed to provide constitutionally required effective assistance. 

“We review a trial court’s sentencing decisions for an abuse of discretion, 

evaluating whether the court exercised its discretion ‘in a manner that is not arbitrary and 

capricious, that is consistent with the letter and spirit of the law, and that is based upon an 

“individualized consideration of the offense, the offender, and the public interest.”’ 

[Citation.] . . . ‘A failure to exercise discretion may also constitute an abuse of 

discretion.’ [Citation.] ‘“A court which is unaware of the scope of its discretionary 

powers can no more exercise that ‘informed discretion’ than one whose sentence is or 

may have been based on misinformation regarding a material aspect of a defendant’s 

record.”’” (People v. Panozo (2021) 59 Cal.App.5th 825, 837.)
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Colon contends his sentence must be vacated and the matter remanded 

because the court abused its discretion by imposing the midterm or because the record is 

ambiguous as to whether the court was aware of the presumption in section 1170, 

subdivision (b)(6) for the low term sentence. When selecting and imposing the midterm 

sentence, the court did not make an explicit finding “that the aggravating circumstances 

outweigh the mitigating circumstances [such] that imposition of the lower term would be 

contrary to the interests of justice.” (Ibid.) Assuming, without deciding, there was error, 

we conclude the error was harmless. 

Where a court is unaware of the scope of its discretionary powers, “the 

appropriate remedy is to remand for resentencing unless the record ‘clearly indicate[s]’ 

that the trial court would have reached the same conclusion ‘even if it had been aware 

that it had such discretion.’” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) Here, 

assuming the court was unaware of the scope of its discretionary powers based on section 

1170, subdivision (b)(6), the record “‘clearly indicate[s]’” the court would have imposed 

the same midterm sentence. (Gutierrez, at p. 1391.) Here, in considering Colon’s 

Romero motion, the court reviewed Colon’s criminal history, which began as a juvenile, 

in detail. The court indicated there was a “history of criminal conduct that is continued, a 

continued pattern where there’s a violation of probation, he goes back, there’s another 

offense within a very short period of time.” In sentencing Colon, the court considered 

several aggravating factors identified by the probation report, including that Colon’s prior 

convictions are numerous and increasing in seriousness, he served a prior prison term, he 

was on parole when the crime was committed, and his performance on probation or 

parole was unsatisfactory. (Cal. Rules of Court, rule 4.421(b)(2)–(b)(5).) The court 

indicated it “was tempted to join the People’s position in selecting the upper term, but the 

Court, considering [Colon’s] relative youth, [was] going to select the midterm.” Based 

on the record before us, we conclude remand for resentencing is unnecessary and would 

be an idle act. (See People v. Flowers (2022) 81 Cal.App.5th 680, 685–686 [concluding 
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remand unnecessary after amendment to § 1170 because record “‘clearly indicate[s]’” 

court would not have imposed a more favorable sentence upon remand], review granted 

Oct. 12, 2022, S276237.) 

B. Section 1385

Colon contends the court erred under section 1385, subdivision (c) by 

imposing two sentencing enhancements: (1) a Three Strikes sentence on the substantive 

offense, and (2) the great bodily injury enhancement. We reject his claim because the 

court imposed only a single enhancement for great bodily injury. The court doubled the 

sentence for the substantive offense under the Three Strikes law, which is not an 

enhancement but an alternate sentencing scheme. (People v. Burke (2023) 89 

Cal.App.5th 237, 243.)

“Effective January 1, 2022, Senate Bill No. 81 (Stats. 2021, ch. 721, § 1) 

amended section 1385 to add specific mitigating factors the trial court must consider 

when deciding whether to strike enhancements from a defendant’s sentence in the interest 

of justice. [Citations.] Section 1385, subdivision (c) now provides: ‘(1) Notwithstanding 

any other law, the court shall dismiss an enhancement if it is in the furtherance of justice 

to do so, except if dismissal of that enhancement is prohibited by any initiative statute. 

[¶] (2) In exercising its discretion under this subdivision, the court shall consider and 

afford great weight to evidence offered by the defendant to prove that any of the 

[enumerated] mitigating circumstances . . . are present. Proof of the presence of one or 

more of these circumstances weighs greatly in favor of dismissing the enhancement, 

unless the court finds that dismissal of the enhancement would endanger public safety.’” 

(People v. Burke, supra, 89 Cal.App.5th at pp. 242–243.) At issue here is the 

circumstance concerning multiple enhancements alleged in a single case. Section 1385, 

subdivision (c)(2)(B) indicates when multiple enhancements are alleged in a single case,

“all enhancements beyond a single enhancement shall be dismissed.” 
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California’s Courts of Appeal have “rejected the argument that the ‘Three 

Strikes’ law constitutes an enhancement under section 1385[, subdivision] (c), concluding 

it is ‘well established’ that the law is instead ‘an alternative sentencing scheme for the 

current offense.’” (People v. Serrano (2024) 100 Cal.App.5th 1324, 1338; accord, 

People v. Dain (2024) 99 Cal.App.5th 399, 410 [holding § 1385, subd. (c) “applies only 

when a trial court is considering whether to dismiss ‘an enhancement,’ and a sentence 

under the Three Strikes law is not an enhancement”]; People v. Olay (2023) 98 

Cal.App.5th 60, 64–69 [holding § 1385, subd. (c) does not apply to the Three Strikes 

law]; People v. Burke, supra, 89 Cal.App.5th at pp. 242–244 [§ 1385, subd. (c) “applies 

only to an ‘enhancement,’ and the Three Strikes law is not an enhancement” (id. at 

p. 244)]; see also People v. McDowell (2024) 99 Cal.App.5th 1147, 1152, 1154–1156

[Senate Bill No. 81 does not apply to elevated penalty provision in § 236.1, subd. (c)(2), 

which prescribes an alternate punishment for the offense].)

Colon urges this court to reach a conclusion contrary to these holdings. We 

decline his invitation. We find the reasoning of these cases persuasive and agree section 

1385, subdivision (c) does not apply to prior strike convictions under the Three Strikes 

law because the Three Strikes law is an alternate sentencing scheme and not an 

enhancement as the term has been judicially defined. (People v. Dain, supra, 99 

Cal.App.5th at pp. 410–411; People v. Burke, supra, 89 Cal.App.5th at p. 243; see People 

v. Jones (2009) 47 Cal.4th 566, 577 [“‘Unlike an enhancement, which provides for an 

additional term of imprisonment, [a penalty provision] sets forth an alternate penalty for 

the underlying felony itself’”].)
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DISPOSITION

 The judgment is affirmed.

MOTOIKE, J.

WE CONCUR:

GOETHALS, ACTING P. J.

SANCHEZ, J.