By Kelly Wheeler
SAN DIEGO (CNS) - A man who had 11 shots of whiskey and claimed he fell asleep before driving into the back of a car waiting at a stoplight in Carmel Mountain Ranch, killing a just-retired Rancho Bernardo man, was sentenced Friday to six years in prison.
Anthony Guarino, 57, was convicted Jan. 20 of gross vehicular manslaughter while intoxicated and DUI charges in the death of 65-year-old Marc Durham. The defendant faced a maximum of 13 years behind bars.
Guarino was traveling about 55 mph when his BMW slammed into the back of Durham’s vehicle about 9 p.m. last Aug. 20, killing the father of five. Several other cars collided, injuring six people, including a child.
Guarino, who had no prior criminal record and served 20 years in the Marine Corps before working in the insurance industry, apologized to the victim’s family before he was sentenced.
“I made a terrible mistake. I’m sorry,” he said.
Defense attorney Brad Patton asked Judge John Einhorn to sentence Guarino to probation and jail time, or the low-term of four years in prison.
Einhorn denied a motion for a new trial, ruling there was sufficient evidence to uphold the jury’s verdicts.
In his closing argument, Patton said his client was asleep at the time of the crash and should have been acquitted of all charges, except misdemeanor DUI.
“(Prosecutors) have to prove he (Guarino) didn’t drift into a microsleep moments before the accident,’’ Patton told the jury.
The attorney said Guarino’s severe sleep apnea could have brought on the so-called microsleep as he approached the intersection of Camino del Norte and Paseo Lucido.
Guarino drifted into a lane and never hit the brakes, and when talking to paramedics, he had no memory of the accident, Patton said.
In her closing argument, Deputy District Attorney Chandelle Konstanzer said the defendant admitted he was impaired when he left a bar in National City.
She said Guarino had 11 shots of Jack Daniel’s whiskey at the bar before driving almost 30 miles to North County.
Durham, a movie buff who had retired a week earlier from his security job at General Dynamics, died at the crash scene.
Guarino’s blood-alcohol was measured at .15 percent about 2 1/2 hours after the crash.
By drinking that much and getting behind the wheel of a car, the defendant “in essence was playing a game of Russian roulette with other innocent drivers on the road,’’ the prosecutor told the judge today.
In sentencing Guarino to the middle term of six years in prison, Einhorn said he was giving the defendant credit for his military service and as a good family man with good standing in the community.
“You had so many chances to avoid doing what you did that night,’’ the judge said. “The law will not tolerate drinking and driving and the resulting carnage.’’
Durham’s daughter said her father had many friends.
“He had more friends than anyone I’ve ever known,’’ Melissa Durham said.
She said she would pray for the defendant.
“I pray that he doesn’t have to take a mound of pills to make it through the day,’’ she said. “I pray that he will never have to explain to his children that a loved one was killed by a drunk driver.’’
Elaine Durham, who was married to the victim for 43 years, said her life will never be the same.
“There’s a hole in my heart that will never mend,’’ she said.
She added that her husband volunteered at church to take care of the elderly and the sick.
“He was known as the Great Communicator by everyone who knew him,’’ Elaine Durham said.
Amy Durham, the victim’s daughter-in-law, said her 3-year-old son adored his “papa.’’
She said her son keeps asking why “heaven doesn’t have a phone to call papa.’’