Filed 6/21/22 P. v. Bonthu CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Appellant Vinodkumarna Bonthu went out drinking with two friends and got behind the wheel of his car. When exiting U.S. Highway 101, Bonthu careened across a road into oncoming traffic and crashed head-on into another vehicle, killing two people and injuring three others. A jury convicted Bonthu of two counts of gross vehicular manslaughter while intoxicated and two counts of driving under the influence of alcohol (DUI) causing injury. The jury also found true several sentence enhancements based on the victims’ injuries. The trial court sentenced Bonthu to eight years and eight months in state prison.

On appeal, Bonthu claims the trial court erred by admitting evidence of an alcohol-content test performed by a hospital on his blood plasma and that his DUI convictions must be stricken as lesser included offenses of gross vehicular manslaughter.

For the reasons explained below, we affirm the judgment.

I. Facts and procedural background

A. Procedural History

In July 2018, the Santa Clara County District Attorney filed an information charging Bonthu with two counts of gross vehicular manslaughter (Pen. Code, § 191.5, subd. (a); counts 1 & 2), driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)[1]; count 3), and driving under the influence of alcohol with a blood alcohol content (BAC) of 0.08 percent or more causing injury (§ 23153, subd. (b); count 4). The information further alleged that Bonthu had personally inflicted great bodily injury on five victims (Pen. Code, §§ 667, 1192.7, 12022.7, subd. (a), 1203, subd. (e)(3)) and proximately caused injury to two of those victims (§ 23558).

In December 2018, the jury found Bonthu guilty on counts 1 through 4 as charged and found true several of the injury-based enhancement allegations.

In March 2019, the trial court sentenced Bonthu to eight years eight months in prison, comprising the midterm on count 1 (six years), consecutive to one third the midterm on counts 2 and 3 (two years and eight months, respectively). The court also stayed the sentence on count 4 (two years concurrent), struck the punishments for the enhancement allegations that the jury had found true, and dismissed two enhancement allegations for which the jury did not reach a verdict.

Bonthu timely appealed.

B. Evidence Presented at Trial

1. Prosecution Evidence

On April 13, 2017, around 6:00 or 6:30 p.m., Bonthu met up with two friends, Naveen Yerragudi and Venkata Patel, in San Jose.[2] Yerragudi testified that Bonthu drove him and Patel to the San Pedro Square Market in downtown San Jose. There, they each had a beer and shared an order of french fries. After 20 or 30 minutes, they walked to a cocktail bar, where everyone had at least one drink and shared another order of french fries. Then they walked around downtown and went to another bar, where they each had a beer but did not eat any more food. Around 11:00 p.m., the group left the bar to go to a restaurant for dinner. Bonthu drove them in his Mercedes C250 from downtown San Jose toward the restaurant.

Around 11:25 p.m., Bonthu exited U.S. Highway 101 to Great America Parkway. Bonthu was driving his Mercedes between 40 and 60 miles per hour. The posted advisory speed near the beginning of the exit ramp was 45 miles per hour; it decreased to 25 miles per hour before a bend in the ramp close to Great America Parkway. At the bend in the ramp, Bonthu hit the curb, crossed multiple lanes of traffic and a concrete median on Great America Parkway, and collided with a Subaru Forester driven by Jeanique D.[3]

Two passengers in the Subaru, Carina Kubow and Angela Bontilao, were killed. Both women suffered broken necks and died almost instantaneously. The driver (Jeanique) and a third passenger, Josefina V., were severely injured. In addition, Bonthu and Patel lost consciousness as a result of the collision. Bonthu’s injuries included a broken femur, trauma to his liver, and a chin laceration.

At the scene, California Highway Patrol (CHP) Officer Brandon Whitebear spoke with Yerragudi and Patel and smelled a strong odor of an alcoholic beverage. Yerragudi and Patel had red and watery eyes and slurred speech. Bonthu and Patel were transported to Santa Clara Valley Medical Center (hospital) for treatment.

At 12:16 a.m. on April 14, a nurse, Emily Layosa, drew a sample of Bonthu’s blood. The hospital’s clinical biochemist, Dr. Philip Sobolesky, testified that the hospital’s lab tested the plasma from Bonthu’s blood sample for alcohol in a Roche cobas c 501 analyzer using an enzymatic reaction. The hospital’s alcohol test result indicated that Bonthu’s plasma alcohol content was 110, plus or minus 3.31.

Dr. Sobolesky explained that blood plasma is a subpart of whole blood that contains “clotting factors” but not the blood cells. The hospital’s analyzer produced an alcohol content result for Bonthu’s plasma by “measuring the enzymatic activity,” i.e., “a conversion of ethanol and [the compound] NAD to NADH acetaldehyde.”[4] Dr. Sobolesky also explained that, according to the manufacturer’s documentation for the analyzer, lactic acid in a trauma patient’s blood sample should not interfere with the alcohol test result. Dr. Sobolesky acknowledged that the hospital’s test was an in-vitro diagnostic test, not a forensic test. According to Dr. Sobolesky, the hospital’s testing methods were generally accepted in the scientific community.

After Dr. Sobolesky’s testimony, expert criminalist Mark Burry testified that if the hospital’s test result (i.e., 110) were “in blood alcohol, [it] would be equivalent to .11 [percent].” But if the result reflected serum alcohol content (as compared to BAC), “you would have to convert it somehow” because “serum alcohol content is not blood alcohol content.” On redirect examination, Burry explained further that a serum alcohol content of 110 reflects a BAC of approximately 0.09 percent.[5] Burry arrived at the 0.09 percent figure by using a median-level 16 percent conversion factor (based on his review of scientific literature) to account for the difference between serum alcohol content and whole-blood alcohol content. Burry also acknowledged on cross-examination that some literature says serum alcohol content is up to 40 percent higher—and in one case 54 percent higher—than whole-blood alcohol content. Burry, however, considered the 40 percent conversion factor as “the extreme case.”

The hospital also had tested Patel’s plasma for alcohol. At 1:52 a.m. on April 14, Patel’s plasma alcohol content was 186. According to Burry, using the same 16 percent conversion factor, Patel’s BAC was approximately 0.15 percent.

At 1:30 a.m. on April 14, CHP Officer Jonas Bleisch spoke to Bonthu at the hospital. Officer Bleisch observed several signs that Bonthu was under the influence of alcohol, including slow speech, red and watery eyes, and a strong odor of an alcoholic beverage. Bonthu told Officer Bleisch that he had been driving his Mercedes at 40 to 50 miles per hour. At 1:45 a.m. and 1:49 a.m., Officer Bleisch administered preliminary alcohol screening tests on Bonthu. The tests returned BAC results of 0.063 percent and 0.060 percent, respectively.

At 3:35 a.m. on April 14, pursuant to a search warrant, a phlebotomist took two blood samples from Bonthu. On April 21, Santa Clara County Crime Lab criminalist Robina Tung analyzed Bonthu’s blood for alcohol using headspace gas chromatography. Bonthu’s BAC result measured 0.053 percent. On August 28, criminalist Rita Desai retested Bonthu’s blood and reported a BAC result of 0.049 percent. The difference between the two test results was likely due to the evaporation of some of the alcohol in Bonthu’s blood when the vials were opened for analysis.

Criminalist Burry testified that at 0.05 percent BAC, “the majority of the population is too impaired to operate a motor vehicle safely,” and at 0.08 percent BAC and above, “virtually everybody is too impaired to operate a motor vehicle safely.” Burry described how alcohol is absorbed into the bloodstream and then eliminated from the liver. Generally, absorption and elimination can be shown on a graph as a “ ‘BAC Curve,’ ” with the blood alcohol level rising as alcohol is absorbed into the bloodstream until alcohol intake stops, at which point there is a plateau or equilibrium, and after which the blood alcohol level eventually falls (called the elimination or post-absorptive phase). People generally eliminate alcohol at about the same rate, 0.01 to 0.02 percent per hour. According to Burry, there is “[n]ot much” that affects a person’s alcohol-elimination rate, but if a person’s liver is injured “in some way, that may slow down [the person’s] elimination rate.” Even a liver injury, however, would generally be covered by the “0.01 to 0.02 percent per hour elimination rate.”

Based on his information about absorption and elimination rates, Burry estimated that a hypothetical person fitting Bonthu’s age and physical characteristics, who was no longer absorbing alcohol and had not ingested alcohol at or after the time of an 11:25 p.m. collision, and had a 0.053 BAC at 3:35 a.m. would have had a BAC of 0.09 to 0.13 percent at the time of the collision. This BAC range would also indicate the person drank between five and nine standard alcoholic drinks between 7:00 p.m. and 11:00 p.m. It would be unlikely that the person had consumed only three alcoholic drinks during that period. Additionally, Burry was asked on direct examination to assume a BAC of 0.11 percent at 12:16 a.m. (i.e., based on the hospital’s test result, unadjusted) and extrapolate a BAC back to 11:25 p.m. The result of this calculation was approximately between 0.12 to 0.13 percent. Burry also calculated an extrapolation from 3:35 a.m. back to 12:16 a.m.; the result was an estimated BAC between 0.08 to 0.12 percent.

Based on a hypothetical set of facts matching Yerragudi’s testimony about Bonthu’s eating and drinking pattern on the night of the collision, Burry testified on redirect examination that only the alcohol from the last beer (consumed between 10:30 p.m. to 11:00 p.m.) would have been undergoing absorption at the time of the collision. If that beer were removed from the extrapolation based on the 3:35 a.m. test result (i.e., 0.053 percent), Burry estimated the BAC at the time of the 11:25 p.m. collision would have been between 0.07 and 0.11 percent. If, instead, 80 percent of the absorption of the alcohol from the last beer occurred in the first 10 minutes after the end of drinking, then the person’s BAC would have been between 0.08 and 0.12 at the time of the collision.

On cross-examination, Burry testified that “[c]omplete absorption tends to occur anytime within 90 minutes after [the] end of drinking” for the majority of people. Further, using a 40 percent conversion factor for serum to whole blood, based on the hospital’s test result, Burry calculated an extrapolated BAC at 11:25 p.m. of approximately between 0.07 and 0.08. Burry acknowledged that if a person consumed two drinks between 10:51 p.m. and 11:15 p.m., there is a “high probability” the person would still be absorbing alcohol at 11:25 p.m., and Burry would not be able to provide a reliable extrapolation result without having details about the person’s drinking pattern and subtracting drinks as necessary. Burry further opined that neither a liver injury nor administration of opiates would affect a person’s absorption of alcohol.

2. Defense Evidence

Bonthu presented two expert witnesses in his defense, Okorie Okorocha and Dr. Rajeev Kelkar.

Okorocha testified as an expert in forensic toxicology and pharmacology. Okorocha opined that alcohol absorption by healthy people with an empty stomach “can range from 15 minutes to three and a half hours” and, in extreme cases, absorption can take up to six hours. Food substantially delays absorption. Physical trauma, a brain injury, and the administration of opioids, including fentanyl (which was administered to Bonthu), also greatly delay the absorption of alcohol. A liver hematoma (which Bonthu sustained from the crash) does not affect absorption but “would slow elimination drastically.”

Okorocha adjusted the hospital’s alcohol test result by 40 percent, yielding approximately a 0.06 percent BAC. Okorocha said that the difference between a serum test result obtained through enzymatic testing and a whole blood result using gas chromatography can be as high as 59 percent. He also estimated that Bonthu was eliminating alcohol at a rate of 0.006 percent per hour after the collision, based on the difference between the hospital test result and the crime lab’s test result from the later-drawn blood sample. Based on these assumptions, and assuming that a person had three drinks (at 7:30, 9:30, and “from 10:51 to 11:10”) and twice ate french fries, Okorocha estimated the hypothetical person’s BAC would have been about 0.05 percent at 11:25 p.m.

Okorocha explained that the hospital’s test, which measures the compound NADH (not alcohol directly) using a “spectrophotometric method,” can produce “a lot of false positives,” “especially when you have liver injury” because of “naturally occurring” NADH in the bloodstream. In addition, Okorocha said “many of the vitamins in human blood” can also produce a false positive result on this test. According to Okorocha, serum tests are “never used for forensic purposes;” a diagnostic in-hospital alcohol test is done to “try[] to get a very quick test done just to get a quick and dirty evaluation.”

Okorocha stated that a person smells strongly of an alcoholic beverage when it is still in his or her stomach and not yet fully absorbed. Okorocha also opined that Burry’s extrapolations/calculations were “based on assumptions that cannot possibly be true, such as the person being fully absorbed,” and that an expert “can’t really do a standard back-calculation” when there is a liver injury. Furthermore, Okorocha stated that “the effects of opiates, alcohol, or brain injury” “cannot be differentiated without specific instruments by a neurologist.”

Dr. Kelkar testified as an expert in accident reconstruction and biomechanics. According to Dr. Kelkar, given the radius of the curve in the U.S. Highway 101 exit ramp at Great America Parkway, a car taking that turn at 50 miles per hour would have a “tremendously high” potential to slide out, due to the “physics of making that turn at th[at] speed” and regardless of the driver’s skill. Dr. Kelkar estimated that Bonthu was driving at approximately 50 miles per hour on the exit ramp. Black tire marks on a curb along the exit ramp showed that other drivers had hit the curb by taking the turn with too much speed.

Dr. Kelkar stated that, after hitting the curb, Bonthu’s car struck the median on Great America Parkway within about 1.5 seconds. In Dr. Kelkar’s opinion, Bonthu hit the curb and then the median “essentially within [a person’s normal] perception-reaction time,” i.e., within “the time it takes for the brain to process and react to an event.” There was “[n]othing [] particularly efficient or effective” that anyone could have done in 1.5 seconds. When Bonthu’s Mercedes collided with the Subaru, the Mercedes was traveling at approximately 45 miles per hour. On cross-examination, Dr. Kelkar agreed that a driver should not have a problem safely negotiating the turn in the exit ramp if he or she drove it at the posted 25-mile-per-hour advisory speed.

3. Prosecution Rebuttal

On rebuttal, criminalist Burry testified that a 40 percent conversion factor for serum to blood alcohol concentration would be the far end of the range, experienced by less than 2.5 percent of the population. Thus, a “very small portion of the population” would be in the “40-to-59[] percent range.” The majority of the scientific studies indicate that “the average person is going to have a serum alcohol concentration that’s 16 percent higher than the equivalent blood alcohol concentration.” Burry explained that when he testifies, he “tr[ies] to capture the majority of the population.” That is why for the “serum-to-blood-alcohol conversion” he provides “a starting point of plus 16 percent but then tell[s] you that the range . . . including 95 percent of the population -- could be as high as 40 or as low as minus 5 percent.”

Burry further opined that even if Bonthu’s BAC at the time of the collision had been 0.05 percent, Bonthu would likely have been too impaired to drive a car safely. “At a 0.05, an individual is approximately 60 percent more likely to get into a car accident than a sober individual.”

II. Discussion

Bonthu raises two claims on appeal. He contends (1) the trial court erred in admitting the alcohol-content result from the hospital’s blood plasma test, and (2) that his two DUI convictions (counts 3 and 4) must be stricken as lesser included offenses of his gross vehicular manslaughter convictions (counts 1 and 2).

We address these claims in turn.

A. Hospital Alcohol Test Result

Bonthu contends the trial court should have excluded under the Kelly rule[6] the hospital’s alcohol test result as not scientifically reliable. He further asserts that the court failed to exercise its gatekeeper function under Evidence Code section 801. Finally, he argues that the erroneously admitted evidence was so prejudicial that it rendered his trial fundamentally unfair, thereby violating his federal due process rights and amounting to prejudicial error under Chapman v. California (1967) 386 U.S. 18 and People v. Watson (1956) 46 Cal.2d 818.

The Attorney General counters that Bonthu’s Kelly claim fails because the hospital’s plasma alcohol analysis and the conversion of the result were not new scientific methods and, thus, were not subject to Kelly. Alternatively, the Attorney General contends that the analysis and conversion satisfied Kelly because they were generally accepted methods in the relevant scientific community. The Attorney General further maintains that even if Bonthu’s Kelly claim were meritorious, Bonthu has not shown prejudice in face of the other strong evidence of his intoxication at the time of the collision. The Attorney General asserts that Bonthu’s remaining challenges to the expert criminalist’s testimony about the hospital’s alcohol test result are forfeited by the failure to raise them in the trial court.

1. Background

The prosecutor moved in limine to admit evidence of Bonthu’s blood alcohol content as measured by the Santa Clara Valley Medical Center. Bonthu cross-moved in limine “to exclude all evidence of alleged hospital medical alcohol results of Defendant Vinod Bonthu” (underlining omitted). Bonthu asserted that “[t]he hospital blood draw is not intended to be used for DUI purposes[,] so no standard forensic legal procedures are undertaken to ensure the reliability of the result.” He argued further that admission of the evidence would violate his federal and state constitutional rights and “basic tests for scientific reliability established under Sargon,^[[7]] Daubert, ^[[8]] or Kelly-Frye.”

Bonthu requested a hearing under Evidence Code section 402 (402 hearing) “where defense expert, Okorie Okorocha will be allowed to testify[,] in addition to witness(es) who can purport to establish who drew the blood, when, using what test, what standards, and what purpose, etc.” Bonthu included with his motion a law review article written by Okorocha opining that “[e]nzymatic assays . . . may be inaccurate due to inconsistent or incorrect assumptions for estimating BAC, false positives from known and unknown sources, instrument random errors, and sampling errors.” (Okorocha, M.S., J.D., Hospital Serum Blood Tests Versus Common DUI-Related Whole Blood Tests (2013) 16 T.M. Cooley J. Prac. & Clinical L. 85, 87.)

Later, in court, Bonthu’s trial counsel again requested a 402 hearing and “a Kelly/Frye hearing,” and objected to “any mention or admission of this particular hospital blood draw.” Counsel preemptively acknowledged the counterargument that his challenge to the evidence “all goes to weight, not to the admissibility,” but asserted “that’s not true under Kelly/Frye . . . [T]he Court must make preliminary foundational assessments of medical tests. And this is not a standard forensic blood test. This is a standard medical blood draw that is not done for the purpose of determining alcohol.”

The trial court stated that it wanted “a more sufficient foundation for the purposes of admitting the [hospital’s alcohol testing] value,” as compared to the fact that the hospital had done a test that “confirmed that there was alcohol detected in Mr. Bonthu’s blood,” which the court found to be admissible. To that end, the court ordered the prosecution to provide “a detailed proffer . . . as to the testing procedure; . . . where on the body was it taken from; how does the hospital test it; what . . . machine do they use; is it similar to the one that’s used in the crime lab; in . . . other words, a detailed proffer as to the process for withdrawal of the blood, storage of the blood, testing of the blood, and how that ends up in a result in the medical records.”

Thereafter, the prosecutor provided additional information about the hospital’s collection and testing of both Bonthu’s blood sample and Patel’s blood sample. The trial court elected to hold a 402 hearing to obtain more details about the collection and analysis of the samples.

At the 402 hearing (held during trial outside the presence of the jury), the prosecution presented three witnesses. Nurse Layosa testified about the standard practice for drawing blood from a patient’s vein through a previously inserted intravenous (IV) line and sending the blood to the hospital’s lab. According to Bonthu’s hospital records, he had an IV line inserted in each arm.

The second witness, Dr. Sobolesky, testified that the hospital’s lab used an automated chemistry analyzer (the Roche cobas c 501 analyzer) to test blood samples for alcohol. The test itself was an enzymatic assay that used a “reagent kit.” The testing method was one in which “ethanol [] and NAD are converted to acetaldehyde and NADH using alcohol dehydrogenase.” The “NADH that’s formed during the reaction is directly proportional to the blood ethanol concentrations, just measured spectrophotometrically.” Regarding the result produced by the alcohol test, the lab’s analyzer had a standard deviation of 3.31, at a defined quality control level. Thus, the test result would be accurate within plus or minus 3.31, 97.5 percent of the time. For quality control purposes, the analyzer was tested daily to make sure the alcohol test results it produced were within known parameters. Bonthu’s blood sample was received by the lab at 12:20 a.m., and the alcohol result was obtained by 12:41 a.m., with no errors. After a sample is analyzed by the hospital’s analyzer, the sample is stored for up to seven days and then discarded. The hospital’s lab was accredited when the testing was performed in this case.

The prosecution’s third witness, Brian Babcock, was a clinical laboratory scientist at the hospital. He approved the alcohol test result for Bonthu’s blood sample, which he would not have done if any errors were apparent from the analyzer’s automated analysis.

At the 402 hearing, Bonthu presented testimony from his expert, Okorocha. Okorocha said he was familiar with the analyzer used to test Bonthu’s blood. He described the analyzer as a “screening test used for diagnostic purposes” in a hospital and said no jurisdiction in California uses that test forensically. Okorocha explained that the analyzer “is testing serum, not whole blood” for alcohol and “the difference between serum and whole blood is up to 40 percent.” Thus, the analyzer “makes the sample read 40 percent higher” than a test conducted on whole blood. He cited a scientific article written by “Rainey” for the 40 percent figure. That 1993 article, titled “Relation between Serum and Whole-Blood Ethanol Concentrations,” was cited by Okorocha in his own law review article, which Bonthu had attached to his in limine motion.

Okorocha further opined that lactate and lactate dehydrogenase—which are released from muscles “whenever there’s an injury”—“convert the NAD to NADH, causing a false positive when there’s trauma.” He explained that “extremely high numbers” for the alcohol result can occur because the analyzer is “not measuring ethanol,” instead its “measuring NADH, and NADH is produced by lactate dehydrogenase reacting with the lactate.” Additionally, clinical chemistry analyzers use spectrophotometry, which can measure certain chemicals in the sample (in addition to NADH) that absorb light at the same wavelength as NADH. By contrast, gas chromatography/mass spectrometry directly measures the ethanol present in (and separated from) a blood sample.

Okorocha testified further that he “h[ad] pulled the reports many, many times for all of the manufacturers” of clinical chemistry analyzers and “[t]here are extensive issues with falsely high ethanol readings.” In Okorocha’s opinion, the Roche cobas c 501 analyzer was not a scientifically reliable test. “It’s a[n] enzymatic assay test” and, based on “textbook forensics,” it “is not to be used in courts to say that something is present.”

At the conclusion of testimony, Bonthu’s trial counsel argued that the hospital’s alcohol test was “way outside the bounds of what is reliable,” required “some conversion ratio” to determine an “actual [BAC] level,” “doesn’t meet the standard Kelly/Frye test,” and would mislead the jury. Counsel further asserted that the prosecution should only be allowed to present “the fact of the test and the fact that it tested positive for ethanol, but not the actual level.” Counsel did not argue that the prosecution’s 402 hearing evidence was insufficient because it had not included expert testimony about how to convert the hospital’s alcohol test result to reflect a BAC.

The trial court ruled that the prosecution could present testimony about the hospital’s alcohol test result. The court stated that the jury would not be misled by evidence akin to that presented at the 402 hearing by the prosecution and the defense. The court reasoned that “this is circumstantial evidence of consumption of . . . alcohol and a level” that “is not so inaccurate as to be inadmissible. It’s routinely admissible. It’s relied on in practice.” The court noted that although it may agree with Bonthu that the evidence was not meant to be forensic, the fact that the alcohol test result was not “a Title 17 reading” did not render it inadmissible.[9] The court explained that “[l]ots of circumstantial evidence as to degrees of intoxication is admissible that is initially not done for the purpose of forensic testing. Gross muscular disability -- falling-down drunk -- is observed. From that, you can circumstantially conclude levels of alcohol intoxication.”

The court ultimately stated, “I think there’s been a sufficient foundation for the . . . appropriate process of the test. . . . I don’t believe there was any error in the analysis. [¶] Whether there is inaccuracy in the result is a disputed issue, and I think [] that’s an issue the jury is capable of listening to the evidence and determining. But I do think it is circumstantial evidence of consumption of alcohol, as well as the level of alcohol.”

As described above (section I.B., ante), the prosecution presented evidence to the jury about the hospital lab’s alcohol test results for Bonthu and Patel, and Okorocha testified in the defense case.

2. Legal Principles

Under the Kelly test, “ ‘when faced with a novel method of [scientific] proof, [the California Supreme Court] ha[s] required a preliminary showing of general acceptance of the new technique in the relevant scientific community’ before the scientific evidence may be admitted at trial.” (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 831.)

Kelly “renders inadmissible evidence derived from a ‘new scientific technique’ unless the proponent shows that (1) ‘the technique is generally accepted as reliable in the relevant scientific community’; (2) ‘the witness testifying about the technique and its application is a properly qualified expert on the subject’; and (3) ‘the person performing the test in the particular case used correct scientific procedures.’ [Citation.] Because our scientific understanding and our understanding of what constitutes ‘science’ is constantly evolving, the term ‘new scientific technique’ resists formal definition.” (People v. Jackson (2016) 1 Cal.5th 269, 315–316 (Jackson); see also Nieves, supra, 11 Cal.5th at p. 444.)

“Not every subject of expert testimony needs to satisfy the Kelly test. Courts determining whether Kelly applies must consider, first, whether the technique at issue is novel, because Kelly ‘ “only applies to that limited class of expert testimony which is based, in whole or part, on a technique, process, or theory which is new to science and, even more so, the law.” ’ [Citation.] Second, courts should consider whether the technique is one whose reliability would be difficult for laypersons to evaluate. A ‘Kelly hearing may be warranted when “the unproven technique or procedure appears in both name and description to provide some definitive truth which the expert need only accurately recognize and relay to the jury.” ’ [Citation.] Conversely, no Kelly hearing is needed when ‘[j]urors are capable of understanding and evaluating’ the reliability of expert testimony based in whole or in part on the novel technique.” (People v. Peterson (2020) 10 Cal.5th 409, 444 (Peterson).)

“Because Kelly is applicable only to ‘ “new scientific techniques” ’ [citation], courts must make ‘the threshold determination of whether to conduct a Kelly hearing in the first instance.’ ” (People v. Lazarus (2015) 238 Cal.App.4th 734, 782–783.) “Appellate courts review de novo the determination that a technique is subject to Kelly.” (Jackson, supra, 1 Cal.5th at p. 316; see also Nieves, supra, 11 Cal.5th at p. 444.) “In conducting our review, we rely primarily on the record below, but may also consider published legal opinions not considered by the trial court when it made its determination.” (Lazarus, at p. 783; see also People v. Reeves (2001) 91 Cal.App.4th 14, 38.)

Additionally, “[t]rial judges have a critical gatekeeping function when it comes to expert testimony beyond merely determining whether the expert may testify at all. Expert evidence that does not require a Kelly analysis must still be admissible under Evidence Code section 801, which mandates it be ‘of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject.’ (Evid. Code, § 801, subd. (b); [citation].) Further, under Evidence Code sections 801, subdivision (b), and 802, the court must act as a gatekeeper to ensure the opinions offered by an expert are not ‘based on reasons unsupported by the material on which the expert relies.’ [Citation.] ‘This means that a court may inquire into, not only the type of material on which an expert relies, but also whether that material actually supports the expert’s reasoning. “A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” ’ [Citation.] A trial court’s decision regarding the permissible scope of an expert’s opinion is reviewed for abuse of discretion.” (People v. Azcona (2020) 58 Cal.App.5th 504, 513, quoting Sargon, supra, 55 Cal.4th at p. 771.)

“[T]he admission of evidence in violation of state law may also violate due process, but only if the error rendered the defendant’s trial fundamentally unfair.” (People v. Merriman (2014) 60 Cal.4th 1, 70 (Merriman).)

3. Analysis

Bonthu challenges the trial court’s admission of evidence about the level of alcohol in his blood from the test conducted at the hospital.[10]

1. Application of the Kelly Rule

Turning first to the Kelly component of Bonthu’s claim, he contends that at the 402 hearing the prosecution failed to present any evidence showing the hospital’s alcohol testing technique was generally accepted as reliable for determining a whole-blood alcohol concentration. He maintains that no witness for the prosecution explained how the hospital’s test measured the amount of alcohol in the blood sample or “articulate[d] a way of converting the indirect, serum-based test results into something useful for the jury.” He further asserts that case law from other jurisdictions shows “that enzymatic assays of serum samples may not be admitted into evidence unless the state has laid a foundation for the appropriate ratio for converting the serum-alcohol concentration into a blood-alcohol concentration.” Finally, he argues that the prosecution failed to present a qualified expert to address “what the hospital blood results meant” for his blood alcohol concentration.

Kelly applies only to “the utilization of a new scientific technique.” (People v. Johnson (2006) 139 Cal.App.4th 1135, 1148.) Bonthu focuses his Kelly claim of novelty on the result of the hospital’s enzymatic test (i.e., 110) “as being ‘equivalent to 0.110 BAC.’ ”

As an initial matter, we reject Bonthu’s framing of the issue. Bonthu’s formulation describes the technique at issue here in a manner that is contrary to the known steps in the analysis of the hospital’s test, the in limine litigation over the admissibility of the evidence, and how the evidence was ultimately presented to the jury. It is true that the prosecutor’s initial in limine motion stated that the hospital’s 110 test result equated directly to a 0.11 percent BAC. But the evidence heard by the trial court and jury did not reflect this assumption. Bonthu’s cross-motion, Okorocha’s 402 hearing testimony, and the argument of Bonthu’s trial counsel at the close of the 402 hearing that the hospital’s test was done on serum and “there is no debate that there’s some conversion ratio” all maintained that the serum result required a numerical conversion to equate to a whole-blood alcohol reading.

Thus, when the trial court ruled at the 402 hearing that both parties could present testimony about the hospital’s alcohol test result, it did so on a record that elucidated the steps in the process from collection, testing, result, and conversion to a whole-blood alcohol content. Furthermore, at trial, Dr. Sobolesky’s testimony established that the 110 figure resulted from a test performed on Bonthu’s plasma. Subsequently, criminalist Burry testified about the 110 figure in a qualified manner, noting the need to convert that figure to obtain a BAC. Burry also testified further on cross and redirect examination about the requisite conversion. Additionally, in his closing argument, the prosecutor acknowledged that the hospital’s test result is “a serum alcohol content [that] needs to be converted into a blood alcohol content level” and is not “a one-to-one conversion.”

Under these circumstances, we are not convinced by Bonthu that the relevant technique for purposes of our determination of whether Kelly applies is “the hospital test as being ‘equivalent to a 0.110 BAC.’ ” Instead, we conclude the technique at issue here is two-fold: (1) the hospital’s enzymatic test of Bonthu’s venous blood plasma and (2) the conversion of the test’s plasma-alcohol content result to an estimate of whole-blood alcohol content.

Beginning with the enzymatic analysis performed by the hospital’s automated chemistry analyzer to produce an alcohol content result from Bonthu’s blood plasma, that portion of the technique was not novel, and Bonthu makes no persuasive argument to the contrary. Before Bonthu’s trial, a few published California appellate cases had mentioned the fact that, there, blood plasma or serum was tested for alcohol. (See Hooper v. City of Chula Vista (1989) 212 Cal.App.3d 442, 446 (Hooper), disapproved of on other grounds by Thomas v. City of Richmond (1995) 9 Cal.4th 1154, 1165 and Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 815, fn. 8; Santos v. Department of Motor Vehicles (1992) 5 Cal.App.4th 537, 542, fn. 1; People v. Meza (2018) 23 Cal.App.5th 604, 608 (Meza).)

Moreover, the analysis of blood for the presence of alcohol using an enzymatic technique dates back many decades (see State v. Graham (2003) 275 Kan. 176, 185 [61 P.3d 662, 668] (Graham)), and courts of other states have concluded that the analysis of alcohol content in blood plasma or serum is admissible. (See, e.g., ibid.; State v. Kirsch (2003) 263 Conn. 390, 403–405 [820 A.2d 236, 247] (Kirsch).) Based on the trial record and precedent, we conclude the evidence regarding the hospital’s analysis of Bonthu’s blood sample and the resultant plasma-alcohol content figure was not based on a technique, process, or theory new to science or the law.

Having decided that Kelly does not apply to the hospital’s enzymatic analysis and its unconverted result, we move to the next step in the technique and the question whether the conversion of a plasma-alcohol content result to an estimated whole-blood alcohol content involved a novel methodology at the time of Bonthu’s trial to trigger application of Kelly. Simply put, the answer is no, and Bonthu essentially concedes as much in his briefing, writing “it’s true that enzymatic assays with various conversion ratios have been approved in courts throughout the country.”

Before Bonthu’s trial, the conversion of a plasma result had been mentioned in California cases (see Hooper, supra, 212 Cal.App.3d at p. 446; Meza, supra, 23 Cal.App.5th at p. 608), and out-of-state courts had endorsed the use of varied conversion ratios. (See, e.g., State v. Cardwell (N.C.Ct.App. 1999) 133 N.C.App. 496, 506–507 [516 S.E.2d 388, 396]; Potter v. State (Ga.Ct.App. 2009) 301 Ga.App. 411, 416–418 [687 S.E.2d 653, 658–659] (Potter); see also Kirsch, 820 A.2d at p. 242, fn. 5.) Years before Bonthu’s trial, Illinois designated a conversion factor for blood serum and plasma in its administrative code. (SeePeople v. Olsen (Ill.App.Ct. 2009) 388 Ill.App.3d 704, 717 [903 N.E.2d 778, 788]; 20 Ill. Adm. Code § 1286.40 [“The blood serum or blood plasma alcohol concentration result will be divided by 1.18 to obtain a whole blood equivalent.”].)

Furthermore, Bonthu’s own expert relied on Rainey’s 1993 article about the ratio between serum and whole-blood alcohol concentrations when discussing how the analysis of serum produces an alcohol content result higher than that of whole blood. Other articles published well before Bonthu’s trial also discussed the use of a conversion factor for blood serum. (See Carol A. Roehrenbeck & Raymond W. Russell, Blood Is Thicker Than Water (1993) 8 Crim. Just. 14, 17; E. John Wherry, Jr., DWI Blood Alcohol Testing: Responding to A Proposal Compelling Medical Personnel to Withdraw Blood (1994) 18 Seton Hall Legis. J. 655, 660.) Thus, the conversion of a plasma-alcohol content result to a BAC estimate was not a novel scientific methodology.

That the scientific research shows there is a range for the ratio of serum alcohol to whole-blood alcohol and experts can disagree about the appropriate conversion ratio does not mean that the methodology itself is novel. (See Potter, supra, 687 S.E.2d at pp. 658–659; Graham, supra, 61 P.3d at p. 668; see also People v. Nelson (2008) 43 Cal.4th 1242, 1263–1264.) There appears to be nothing new about the conversion methodology at issue in this case, and Bonthu has not demonstrated that there has been a change to the acceptance of the methodology as reliable in the relevant scientific community. (See People v. Bolden (2002) 29 Cal.4th 515, 546.) Moreover, the conversion calculation itself and the selection of an appropriate conversion ratio (given the individual variation in blood makeup) are subjects that are readily understandable by laypersons and can be evaluated by jurors when assessing the credibility of expert testimony regarding application of a particular conversion ratio. (See Peterson, supra, 10 Cal.5th at p. 446.) We understand Bonthu’s challenges to the conversion methodology as arguments properly directed to the weight of the hospital’s alcohol test result but not to its admissibility. (See People v. Stevey (2012) 209 Cal.App.4th 1400, 1418.)

On this record, and because the evidence admitted at Bonthu’s trial concerning the hospital’s alcohol test result and its estimated conversion to whole-blood alcohol content did not involve any new scientific technique, we decide that the Kelly analysis does not apply. Given that conclusion, the prosecution was not required to satisfy the first two prongs of Kelly by showing that the hospital’s testing technique and the conversion methodology were generally accepted as reliable and by presenting a qualified expert to testify about the conversion methodology. Accordingly, the trial court did not err under Kelly in admitting evidence about Bonthu’s hospital alcohol test result. (See People v. Stoll (1989) 49 Cal.3d 1136, 1156; see also People v. Turner (2020) 10 Cal.5th 786, 806–807.)

2. Application of Evidence Code section 801

We turn next to Bonthu’s related argument that the trial court erred by failing to properly exercise its gatekeeper function under Evidence Code section 801 and Sargon when it permitted the prosecution to present evidence at trial about the hospital’s alcohol test result without reference to conversion. Specifically, Bonthu faults the trial court for allowing (in Bonthu’s characterization) “the prosecutor to elicit testimony [from criminalist Burry] in front of the jury that the hospital blood results reflected a true BAC of 0.11 percent for Mr. Bonthu” and “permit[ing] that 0.11 percent to be used to determine Mr. Bonthu’s BAC at the time of the crash.”

The Attorney General counters that Bonthu failed to object to Burry’s trial testimony on the grounds he asserts on appeal and that Bonthu’s “passing reference to Sargon” in his in limine motion did not adequately preserve his current claim of error.

We reject the Attorney General’s assertion that Bonthu failed, in the in limine motion context, to adequately litigate the Sargon/Evidence Code section 801 grounds. Nevertheless, we agree with the Attorney General that Bonthu’s current challenge to Burry’s trial testimony is forfeited by Bonthu’s failure to lodge a contemporaneous objection. Further, even if it were not forfeited, Bonthu’s challenge lacks merit.

In his in limine motion, Bonthu cited Sargon and argued against admission of the hospital’s alcohol test result based on its alleged unreliability. Further, at the 402 hearing, the trial court heard testimony by prosecution witness Dr. Sobolesky about the nature of the enzymatic assay performed by the hospital’s automated chemistry analyzer. The court also heard testimony from defense expert Okorocha that further described the enzymatic assay technique and the difference in alcohol-concentration results between serum and whole blood. Additionally, Bonthu had submitted with his motion Okorocha’s law review article, which discussed the conversion of serum alcohol concentration to whole-blood alcohol concentration, cited Rainey’s article, and asserted that “no viable conversion factor can be used and this source of error alone is substantial.” The court also had Rainey’s article on the subject in evidence at the 402 hearing.

Bonthu’s arguments and the 402 hearing evidence adequately apprised the trial court of Bonthu’s desire to exclude the hospital’s alcohol test result under Sargon/Evidence Code section 801. Additionally, the evidence provided sufficient support for the court to reasonably rule that the hospital’s result and testimony about its conversion to an estimated BAC were not unreliable or impermissibly speculative and were reasonably grounded on material and information concerning accepted principles and methodologies. But the trial court’s implicit ruling at the 402 hearing is not what Bonthu challenges on appeal. Rather, Bonthu now claims the trial court erred in permitting the prosecution to present certain evidence to the jury about the hospital’s alcohol test result through Burry’s trial testimony.

Considering the focus of Bonthu’s claim of error, we agree with the Attorney General that Bonthu forfeited his current argument by failing to object during Burry’s testimony. If Bonthu believed that Burry should not have been allowed to mention the .11 percent figure without more clearly discussing the need to convert the hospital’s plasma-alcohol content figure to a whole-blood alcohol content equivalent, Bonthu should have objected on that ground during his testimony. Although the trial court had previously implicitly rejected Bonthu’s Sargon-based arguments when it ruled that the hospital’s test result was admissible, Bonthu did not further ask the court to specify how the prosecution could present the evidence the court had deemed admissible.

By contrast, Bonthu’s current claim is context-specific in that it focuses on how the evidence about the alcohol concentration of the hospital’s test was presented through Burry’s direct examination. Under these circumstances, we conclude that Bonthu was required to object during Burry’s direct testimony in order to apprise the court that it was allegedly failing to further exercise its gatekeeping function under Sargon/Evidence Code section 801 in relation to the prosecutor’s actual questions on direct examination and Burry’s answers. (See People v. Morris (1991) 53 Cal.3d 152, 188–190, disapproved of on other grounds by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; People v. Garlinger (2016) 247 Cal.App.4th 1185, 1193.)

In any event, even assuming that Bonthu had preserved his current claim for our review, we discern no error under Sargon/Evidence Code section 801 with regard to Burry’s testimony. As described ante (see section I.B.1), Burry testified after Dr. Sobolesky had told the jury that the hospital’s alcohol test result derived from an analysis of Bonthu’s plasma. On direct examination, Burry said that the hospital’s test result (i.e., 110) “would be equivalent to .11” if it were “in blood alcohol,” but that “serum alcohol content is not blood alcohol content. So you would have to convert it somehow.” On cross-examination of Burry, Bonthu’s trial counsel questioned him about the need to convert the hospital’s result—a circumstance that Burry readily admitted. Bonthu’s counsel even acknowledged during the cross-examination that Burry had stated “a qualifier” during his direct testimony about the 110 figure translating into .11 percent. On redirect examination, Burry provided his expert opinion on the conversion of the hospital’s test result to an estimated BAC of approximately 0.09 percent.

Viewing the totality of the prosecution’s evidence, we conclude the trial court did not abuse its discretion by permitting Burry to testify as he did about the hospital alcohol test result. That testimony accorded reasonably with the evidence that had been presented by both parties at the 402 hearing about the relevant testing technique and conversion methodology. The testimony also did not include opinions that were divorced from the material on which they assertedly were based. We thus discern no abuse of discretion on the part of the trial court with regard to Burry’s testimony under Sargon/Evidence Code section 801.

Additionally, because the evidence about the hospital’s test result was relevant to the disputed issue of Bonthu’s level of intoxication (see Evid. Code, §§ 210, 351) and was not so unduly prejudicial that it injected an element of unfairness into the trial, we further conclude that admission of that evidence did not violate Bonthu’s constitutional right to due process. (See Merriman, supra, 60 Cal.4th at p. 70; People v. Jones (2013) 57 Cal.4th 899, 949.) Accordingly, we reject Bonthu’s claim of error.

B. Multiple Convictions

Bonthu contends that his convictions on counts 3 and 4 for DUI causing injury (§ 23153, subd. (a)) and DUI with a BAC of 0.08 percent causing injury (§ 23153, subd. (b)), respectively, should be dismissed as lesser included offenses of counts 1 and 2, gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)). He argues that, “[b]ased on the statutory elements, Vehicle Code section 23153 is necessarily included within Penal Code section 191.5, subdivision (a).” He further argues that the fact the charges related to different victims “does not change the conclusion . . . because the actus reus of Vehicle Code section 23153 is the act of driving while intoxicated, not the resulting injury.”

The Attorney General counters that the Vehicle Code offenses are not lesser included offenses of gross vehicular manslaughter under the elements test. The Attorney General further asserts that Bonthu’s multiple convictions are permitted because the counts relate to different victims.

1. Background

Count 1 of the information alleged that Bonthu committed gross vehicular manslaughter regarding the killing of Carina Kubow (Pen. Code, § 191.5, subd. (a); §§ 23153, subd. (a), 22107) and personally inflicted great bodily injury on Kubow (Pen. Code, §§ 667, 1192.7). Count 2 alleged the same crime regarding the killing of Angela Bontilao and that Bonthu personally inflicted great bodily injury on Bontilao.

Counts 3 and 4 alleged DUI under section 23153, subdivision (a), and section 23153, subdivision (b), respectively. Those counts also each alleged that Bonthu’s illegal “act and neglect proximately caused bodily injury to another person, namely, Jeanique [D.].”

Additionally, counts 3 and 4 each included two enhancement allegations that Bonthu proximately caused injury to Josefina and Patel, respectively, within the meaning of section 23558. Counts 3 and 4 also each included three enhancement allegations that Bonthu personally inflicted great bodily injury on Jeanique, Josefina, and Patel, respectively, within the meaning of Penal Code sections 12022.7, subdivision (a), and 1203, subdivision (e)(3) (GBI allegations).

During the jury’s deliberation, the trial court provided the jury a copy of the information. The jury returned the following verdicts against Bonthu: As to counts 1 and 2, the jurors found Bonthu guilty “of vehicular manslaughter with gross negligence and driving in violation of Vehicle Code section 23152 or Vehicle Code section 23153” (some capitalization omitted) in violation of Penal Code section 191.5, subdivision (a), as charged in the information. As to count 3, the jurors found Bonthu guilty as charged (§ 23153, subd. (a)) and found true the two allegations under section 23558 regarding Josefina and Patel and the three GBI allegations regarding Jeanique, Josefina, and Patel. For count 4, the jurors similarly found Bonthu guilty as charged (§ 23153, subd. (b)) and found true the two allegations under section 23558 regarding Josefina and Patel. However, the jury only returned a true finding as to the GBI allegation regarding Jeanique, not the GBI allegations regarding Josefina or Patel (which were subsequently dismissed).

2. Analysis

“[Penal Code] [s]ection 954 generally permits multiple conviction. [Penal Code] [s]ection 654 is its counterpart concerning punishment.” (People v. Correa (2012) 54 Cal.4th 331, 337 (Correa).) A person can generally be convicted of more than one crime arising out of the same act or course of conduct, although not punished for both. (People v. Reed (2006) 38 Cal.4th 1224, 1226; see Pen. Code, §§ 954, 654.) But “[a] judicially created exception to the general rule permitting multiple conviction ‘prohibits multiple convictions based on necessarily included offenses.’ ” (Reed, at p. 1227.) “ ‘ “f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.” ’ ” ([i]Correa, at p. 337.) In determining whether a crime is a lesser included offense, we look only to the statutory elements of the offenses in question. (Reed, at p. 1231.)

If a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed. (People v. Sanders (2012) 55 Cal.4th 731, 736 (Sanders).) We review de novo whether a defendant may lawfully be subject to multiple convictions. (People v. Duffy (2020) 51 Cal.App.5th 257, 261.)

In People v. Miranda (1994) 21 Cal.App.4th 1464 (Miranda), a different panel of this court held that a conviction of section 23153, subdivision (a) is a necessarily included offense of Penal Code section 191.5, subdivision (a) when the same person is the victim of both crimes.[11] This court stated, “One person who injures a person while driving under the influence commits a violation of Vehicle Code section 23153; and if that person dies from that injury—whether immediately or sometime later—a violation of Penal Code section 191.5 has occurred. The People do not suggest how a victim could be killed by a moving vehicle and not incur injury in the process.” (Miranda, at p. 1468, italics added.) The relevant convictions in Miranda involved a single victim; this court ordered the Vehicle Code section 23153 conviction reversed. (Miranda, at p. 1468.)

The Fifth District Court of Appeal in People v. Machuca (2020) 49 Cal.App.5th 393 (Machuca) distinguished Miranda and held that section 23153 is not a necessarily lesser included offense of Penal Code section 191.5, subdivision (a) when the offenses involve different named victims. (Machuca, at pp. 400–401, 404.) The Machuca majority reasoned that “any violation of Vehicle Code section 23153 requires that the defendant caused bodily injury to a person. When someone other than the manslaughter victim is injured, charges for both gross vehicular manslaughter while intoxicated and felony drunk driving are permissible.” (Id. at p. 403.)

The Machuca court also distinguished two other cases on which Bonthu relies, People v. Binkerd (2007) 155 Cal.App.4th 1143 and People v. Givan (2015) 233 Cal.App.4th 335. In Binkerd, like Miranda, the charged crimes involved the injury and death of a single victim. (Machuca, supra, 49 Cal.App.5th at p. 400, citing Binkerd, at pp. 1145–1146.) As for Givan, the Machuca court rejected as unpersuasive Givan’s conclusion that a defendant could not be convicted of both DUI causing bodily injury and gross vehicular manslaughter while intoxicated, despite the incident involving multiple victims, because “the People conceded the issue [in Givan] and the question was not addressed in any substantive detail.” (Machuca, at p. 403.)

Bonthu acknowledges the holding of the majority in Machuca but urges us to reject it. We decline to do so. While we are not bound by an opinion from another district, we respect stare decisis and “ ‘ordinarily follow the decisions of other districts without good reason to disagree.’ ” (People v. The North River Ins. Co. (2019) 41 Cal.App.5th 443, 454–455.) Bonthu’s arguments against Machuca do not persuade us that there is good reason to disagree here.

In deciding whether a defendant may not be convicted of multiple offenses because one is necessarily included in the other, we look to the elements of the offense rather than the facts elicited at trial or the language of the accusatory pleading. (Sanders, supra, 55 Cal.4th at p. 739.) However, the analysis of multiple convictions under Penal Code section 954 also depends upon the specific crimes of conviction. “The doctrine of lesser included offenses is, at its core, a doctrine about legislative intent. It ‘is part of the constitutional guarantee against double jeopardy.’ . . . Importantly, double jeopardy principles do not bar a legislature from authorizing multiple convictions and multiple punishments for necessarily included offenses. [Citations.] Instead, the rule against multiple convictions of necessarily included offenses is a judicially created doctrine premised on the notion that the legislature ‘ordinarily does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the “same offense,” they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent.’ ” (Sanders, at p. 745 (conc. opn. of Liu, J.).) Relevant precedent examining the relationship between the particular crimes at issue supports Machuca’s holding.

In particular, the California Supreme Court examined the relationship between vehicular manslaughter and drunk driving in People v. McFarland (1989) 47 Cal.3d 798 (McFarland). In that case, “The question presented [] [was] whether separate punishment is permissible where a defendant, in a single incident, commits voluntary manslaughter as to one victim, in violation of former [Penal Code] section 192, subdivision (c)(3), and drunk driving resulting in injury to a separate victim, in violation of Vehicle Code section 23153, subdivision (a).” (Id. at p. 803.) In reaching its conclusion that separate punishment was permissible, our high court concluded “the general rule permitting multiple punishments when multiple injuries result from a single act of violence, governs this matter. . . . ‘A defendant may properly be convicted of multiple counts for multiple victims of a single criminal act . . . where the act prohibited by the statute is centrally an “act of violence against the person.” ’ [Citations.] Plainly, vehicular manslaughter with gross negligence constitutes a crime of violence against the person.” (Ibid., italics omitted.)

In deciding that imposing punishment for both convictions was lawful, the California Supreme Court highlighted the distinct harms targeted by the two statutes: “ ‘[T]he Legislature has chosen to draw a line at this point by defining one crime in terms of an act of violence against the person (“unlawful killing”) and placing it in the Penal Code, while defining the other in terms of an act of driving and placing it in the Vehicle Code.’ ” (McFarland, supra, 47 Cal.3d at p. 804.) Based on the legislative history of the statutes and its own precedents, the California Supreme Court held that “[w]here, as here, the defendant is charged with vehicular manslaughter as to one victim and drunk driving with injury as to another, the imposition of separate sentences does not violate [Penal Code] section 654.” (Id. at pp. 804–805.)

We acknowledge that McFarland does not control this case. The court in McFarland analyzed the question of separate punishment under Penal Code section 654, rather than the propriety of separate convictions under Penal Code section 954. But the two statutes are closely related. For example, in its analysis of Penal Code section 654 in Correa, supra, 54 Cal.4th 331, the California Supreme Court examined a number of cases discussing multiple convictions: “While these cases all tangentially refer to punishment, they do so because each held that the defendants were wrongfully convicted of multiple offenses when only a single crime was committed. Naturally, because the convictions failed, any punishment based on them would also be set aside.” (Id. at p. 340, italics omitted.) Similarly, if the defendant in McFarland could not have been convicted of both Penal Code section 192 and section 23153, then the question whether he could have been punished for both offenses under Penal Code section 654 would have been irrelevant. We agree with the court in Machuca that “McFarland necessarily suggests a defendant may properly be convicted under both Penal Code section 191.5, subdivision (a) and Vehicle Code section 23153, subdivision (a) when the offenses involve different victims.” (Machuca, supra, 49 Cal.App.5th at p. 402.)

For these reasons, we decline Bonthu’s invitation to reject Machuca. We conclude that, because counts 3 and 4 named a victim (i.e., Jeanique) different than those named in counts 1 and 2 (i.e., Kubow and Bontilao), Bonthu’s convictions on counts 3 and 4 under section 23153, subdivisions (a) and (b), respectively, were not necessarily included offenses of Penal Code section 191.5, subdivision (a), and there is no error arising from Bonthu’s convictions on all four counts.

III. Disposition

The judgment is affirmed.

______________________________________

Danner, J.

WE CONCUR:

____________________________________

Greenwood, P.J.

____________________________________

Lie, J.

H046951

People v. Bonthu

[1] Unspecified statutory references are to the Vehicle Code.

[2] Unless otherwise indicated, all dates were in 2017.

[3] To protect the privacy of the surviving victims, we refer to their last names by the first initial. (Cal. Rules of Court, rule 8.90(b)(4).)

[4] We use the terms ethanol and alcohol interchangeably in this opinion.

[5] The witnesses in this case generally used the terms plasma and serum interchangeably. We note that according to a 1993 scientific journal article by Petrie M. Rainey (admitted at an Evidence Code section 402 hearing held during trial), “The plasma alcohol concentration is essentially identical to the serum alcohol concentration [], but the alcohol concentrations in the blood cells are lower than in the plasma []. Consequently, the whole-blood alcohol concentration should always be lower than the serum alcohol concentration.” (Rainey, Relation Between Serum and Whole-Blood Ethanol Concentrations (1993) 39 Clinical Chemistry p. 2288, col. 1.)

[6] People v. Kelly (1976) 17 Cal.3d 24 (Kelly). While Bonthu refers to this rule as “Kelly/Frye,” we follow the practice of the California Supreme Court and do not include the latter term. (People v. Nieves (2021) 11 Cal.5th 404, 442, fn. 8 (Nieves) [“Formerly known as the Kelly-Frye rule, based on the rulings of [Kelly] and Frye v. United States (D.C. Cir. 1923) 293 F. 1013, the rule is now the Kelly rule in California after changes to the Federal Rules of Evidence that superseded Frye.”]; see also People v. Leahy (1994) 8 Cal.4th 587, 604 [holding the Kelly test remains the rule in California].)

[7] Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747 (addressing Evidence Code sections 801 and 802).

[8] Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579 (addressing admissibility of scientific evidence).

[9] Title 17 of the California Code of Regulations “establish[es] a standard for the competency of the results of blood alcohol tests.” (Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 142.)

[10] We note Bonthu’s briefing does not make clear whether he challenges only the admission of his own hospital alcohol test result or also that of Patel (his passenger). When asserting to this court that the trial court erred, Bonthu appears to challenge the admission of both the hospital’s alcohol test results derived from his own blood sample and from Patel’s blood sample. However, Bonthu thereafter only argues about the prejudice stemming from admission of his own test result. Additionally, contrary to Bonthu’s statement in his opening brief that his in limine motion sought “to exclude the blood samples taken at the hospital from Mr. Bonthu and Mr. Patel” (italics added), Bonthu’s in limine motion never mentioned Patel’s hospital blood sample or alcohol test result. Further, although the prosecution presented evidence at the 402 hearing and trial about the hospital’s testing of Patel’s blood sample, Bonthu fails otherwise to identify where at trial he specifically objected to the admission of Patel’s alcohol test result. He also does not make any specific argument to this court regarding the cognizablility of his challenge to Patel’s test result (in addition to his own result). Under these circumstances, we construe Bonthu’s current claim as challenging only the admission of the hospital’s alcohol test result derived from his own blood sample, not Patel’s blood sample. Therefore, we do not further address the admission of Patel’s test result.

[11] At the time of the offense at issue in Miranda, “section 23153, subdivision (a) provided: ‘It is unlawful for any person, while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug, to drive a vehicle and, when so driving, do any act forbidden by law or neglect any duty imposed by law in the driving of the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.’ ” (Miranda, supra, 21 Cal.App.4th at pp. 1467–1468.)

At the time of Bonthu’s offense, section 23153, subdivision (a) no longer included reference to “any drug.” Rather, it provided: “It is unlawful for a person, while under the influence of any alcoholic beverage, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.” (§ 23153, subd. (a).) Penal Code section 191.5, subdivision (a) provided: “Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.” (Pen. Code, § 191.5, subd. (a), italics added.) That subdivision is identical to the one at issue in Miranda except for the since-added reference to section 23140. (See Miranda, supra, 21 Cal.App.4th at p. 1468; Stats. 1994, ch. 71, § 1.)