Filed 5/18/18
                      CERTIFIED FOR PARTIAL PUBLICATION*

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                      DIVISION TWO


THE PEOPLE,
        Plaintiff and Respondent,
                                                   A147188
v.
MATTHEW ENRIQUE MEZA,                              (Contra Costa County
                                                   Super. Ct. No. 51427079)
        Defendant and Appellant.


        This case raises the question whether, when a driving under the influence (DUI)
suspect is injured in an accident and taken to the hospital, the arresting officer needs to
obtain a warrant before arranging for the suspect’s blood to be drawn for blood alcohol
content (BAC) testing. The trial court answered this question in the negative on the facts
of this case, denying a motion to suppress BAC evidence. We think the trial court was
too quick to find exigent circumstances here, and in the published portion of our opinion
conclude that the blood draw was inconsistent with the Fourth Amendment. However,
we find the error in this case to have been harmless, and in the unpublished portion of the
opinion also reject appellant Matthew Enrique Meza’s other challenges. We affirm
Meza’s convictions for driving under the influence causing injury, and for driving with a
BAC of 0.08 percent or more causing injury, in violation of Vehicle Code section 23153,
subdivisions (a) and (b).




*
  Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of Discussion, Part II.

                                              1
                 FACTUAL AND PROCEDURAL BACKGROUND
       On the afternoon of September 1, 2013, Meza called his girlfriend and told her he
would finish his beer and his golf game and come see her. An hour or more later, about
5:30 p.m., he arrived at her house in Lafayette, driving his own car. After half an hour,
they left in her car. Meza was driving. She asked him to drive because she was feeling
unwell, and after initially declining he agreed. She saw no symptoms that he was under
the influence, and he consumed no alcohol in her presence that evening.
       Attempting to keep up with a fast car in the lane next to them, Meza began to
speed. At one point where the posted speed limit was 45 miles per hour, he was driving
at least twice the speed limit. His girlfriend told him to slow down. As he applied the
brakes, the car began to fishtail and he lost control. The car catapulted across the median
and on-coming traffic, and fell down an embankment. It was about 6:28 p.m. An off-
duty California Highway Patrol sergeant who saw the crash went to check for survivors,
and saw Meza emerge from the driver’s side of the car.
       Concord police officer David Kasid arrived and, with Meza’s help, extracted the
injured passenger, dragging her to safety ahead of a grass fire that had started under the
car. Officer Kasid noticed a slight odor of alcohol on Meza, information that he relayed
to Concord police officer Danielle Cruz when additional officers arrived on scene.
Officer Kasid then continued with the accident investigation, while Officer Cruz pursued
the intoxication investigation. A third police officer helped with traffic control, and a
corporal in the Concord Police Department came to assess the scene.
       Officer Cruz had a brief conversation with Meza while Meza was waiting to be
treated by emergency medical personnel. She asked him what had happened, and
smelled “a moderate odor of alcoholic beverage coming from his mouth” as he
responded. She noticed blood-shot and watery eyes, which she knew could be a
symptom of alcohol consumption, or potentially a head injury. Because Meza was
complaining of neck and back pain, Officer Cruz did not ask him to participate in field
sobriety tests. She concluded, based on the evidence she had, that he should be arrested


                                              2
for driving under the influence. When an ambulance took Meza and his passenger to the
John Muir Medical Center in Walnut Creek, she followed.
         At the hospital, Meza had his blood drawn twice. Brenda Leatham, the hospital’s
lab operations manager, testified that at 7:08 p.m. the hospital drew blood, as they do for
all trauma patients, so that doctors will know how to treat patients appropriately. Half an
hour later, the hospital had test results. They measured Meza’s BAC at 0.148 percent.
Then at 8:25 p.m., a phlebotomist summoned by Officer Cruz drew Meza’s blood.
Joaquin Jimenez, a forensic alcohol expert from the county crime lab, tested this blood
sample and measured its BAC at 0.11 percent.
         Officer Cruz never attempted to get a warrant before directing the phlebotomist to
draw Meza’s blood for forensic purposes. She was aware of the United States Supreme
Court’s decision in Missouri v. McNeely (2013) 569 U.S. 141 (McNeely), which held that
an officer could not dispense with getting a warrant before having a motorist’s blood
drawn on grounds of exigent circumstances if the only exigency was that alcohol in the
driver’s body would dissipate with time. Shortly after this decision came down and
before she investigated this case, Officer Cruz attended a training session where she
learned how to obtain a warrant on short notice from an on-call judge. She learned she
could fill out a simple affidavit (a template of which is posted at the jail), call the
Sheriff’s Department to contact the judge on duty, and then fax the warrant application to
the judge for review. But this is a procedure Officer Cruz thought she needed only “if we
have somebody that refuses to do a blood draw,” and Meza did not refuse to have his
blood drawn. At the hospital, Officer Cruz told Meza that because she had arrested him
for driving under the influence he was subject to a blood draw, and that a phlebotomist
was on his way. Meza responded “Okay,” and allowed the phlebotomist to draw his
blood.
         The district attorney initiated criminal proceedings and, after a preliminary
examination, filed a felony information against Meza. At the preliminary examination,
the court heard evidence and ruled on Meza’s motion to suppress the test results from the
second, police-initiated blood draw. The trial court rejected the prosecutor’s argument


                                               3
that Meza’s actual or implied consent authorized the warrantless blood draw, but
nonetheless denied Meza’s motion. Citing Schmerber v. California (1966) 384 U.S. 757
(Schmerber), the court found that exigent circumstances associated with the need to get
medical care for Meza and his passenger justified having Meza’s blood drawn without a
warrant.
       Jury trial began on October 26, 2015. The People presented the testimony of
officers Kasid and Cruz, of laboratory scientists Leathem and Jimenez, and of Meza’s
passenger and other percipient witnesses to his driving. The defense cross-examined
witnesses but presented no affirmative case.
       The trial testimony of the laboratory scientists delved into several technical
subjects. Leatham explained the procedures followed in drawing and testing Meza’s
blood to ensure accuracy in the hospital’s blood test results, and Jimenez of the crime
laboratory testified similarly regarding the forensic blood draw. Leatham testified that,
although she did not know the extent to which the hospital’s procedures complied with
Title 17 regulations for forensic alcohol analysis, the hospital’s procedures were
sufficiently rigorous that doctors relied on the test results in making treatment decisions.
       Jimenez testified to two factors that explain why the two BAC test results differed.
First, the county crime laboratory tests whole blood, meaning a blood sample that
includes both blood plasma and other cellular material, whereas medical testing is usually
(and was in this case) performed on the blood plasma alone. When other cellular material
is excluded, the test results from blood plasma usually yield slightly higher numbers,
compared to testing from whole blood. Jimenez explained that a test performed from
blood plasma produces a number that is higher by a ratio of about 1.1 to 1, or 1.3 to 1,
relative to a test from whole blood, with the precise ratio depending on the person whose
blood is being tested. Based on what he considered a standard ratio, 1.15 to 1, Jimenez
converted Meza’s 0.148 hospital test result from blood plasma to 0.128 percent, if the test
had been from whole blood as is required for forensic alcohol testing.
       Second, Jimenez explained that the human body eliminates alcohol over time, so
one would expect the forensic test of Meza’s BAC, from a sample taken an hour-and-a-


                                               4
quarter after the hospital’s blood sample, to produce a lower reading. Calculating
backwards from the 0.11 percent result obtained from Meza’s blood drawn at 8:25 p.m.,
Jimenez estimated Meza’s BAC at the time of the accident two hours earlier. He made
some assumptions in performing this calculation: that Meza had consumed no alcohol
since arriving at his girlfriend’s home at 5:30 p.m., and that Meza’s body eliminated
alcohol at the average rate of 0.015 percent per hour. Based on these assumptions, he
calculated Meza’s BAC at the time of the accident as 0.14 percent, with a margin of error
of 0.01 percent. This value is well above the legal limit of 0.08 percent.
       Jimenez also testified that whenever an individual’s BAC is at or above 0.08
percent, he or she is too impaired to drive safely. He testified that this is not only his
personal opinion, but a consensus in the scientific literature that has been endorsed by the
American Medical Association, the National Highway Safety Administration, and the
National Safety Council.
       On November 2, 2015, the jury convicted Meza on both felony counts. In count 1,
he was convicted of driving under the influence causing injury. (Veh. Code, § 23153,
subd. (a).) In count 2, he was convicted of driving with a BAC of 0.08 percent or more
causing injury. (Id., § 23153, subd. (b).) As to both counts, the jury found true the
allegation that he personally inflicted great bodily injury upon the victim (the passenger
in his car), and the court subsequently found true the allegation that he had two prior
convictions for driving under the influence. (See Pen. Code, § 12022.7, subd. (a); id.,
§ 23566.)
       The court sentenced Meza to six years in state prison, and Meza timely appealed.

                                       DISCUSSION
I. Motion to Suppress Blood Test Results
       In reviewing the trial court’s denial of Meza’s motion to suppress, we defer to the
trial court’s factual findings where they are supported by substantial evidence, but
“ ‘ “exercise our independent judgment in determining the legality of a search on the
facts so found.” ’ ” (People v. Tully (2012) 54 Cal.4th 952, 979.) Here, the trial court


                                               5
found exigent circumstances justifying the police-initiated blood draw because Officer
Cruz “had limited information” as to whether Meza was under the influence,1 and had to
choose between taking him into custody and going to the hospital, on the one hand, or
going to the police station to get a warrant, on the other. We think the totality of the
circumstances in this case requires a different result, and that the blood draw Officer Cruz
ordered was a violation of Meza’s Fourth Amendment rights. The error, however, was
harmless under the standards of Chapman v. California (1967) 386 U.S. 18 (Chapman).
        Under the Fourth Amendment to the United States Constitution, a warrantless
search is per se unreasonable unless the People prove that the search comes within a
recognized exception to the warrant requirement. (People v. Laiwa (1983) 34 Cal.3d
711, 725.) A blood draw is a search under the Fourth Amendment. (Birchfield v. North
Dakota (June 23, 2016) __ U.S. __ [136 S.Ct. 2160, 2173] (Birchfield).) Here, the
People argue and the trial court found that the search was authorized by exigent
circumstances, which is a recognized exception. (See Mincey v. Arizona (1978) 437 U.S.
385, 393–394.) “To determine whether a law enforcement officer faced an emergency
that justified acting without a warrant,” we look “to the totality of the circumstances.”
(McNeely, supra, 569 U.S. at p. 149.)
        On grounds of exigent circumstances, the United States Supreme Court more than
50 years ago approved of a warrantless blood draw at the direction of a police officer
investigating a driving under the influence case. (Schmerber, supra, 384 U.S. 757.)
Schmerber had been taken to a hospital after being injured in an automobile accident, and
at the hospital he refused to consent to having his blood drawn. (Id. at pp. 758–759.)
The court held that the blood draw was permissible because the officer “might reasonably
have believed that he was confronted with an emergency, in which the delay necessary to
obtain a warrant, under the circumstances, threatened ‘the destruction of evidence.’ . . .


1
    Evidence from the hospital’s blood test was not before the court at this hearing.

                                               6
Particularly in a case such as this, where time had to be taken to bring the accused to a
hospital and to investigate the scene of the accident, there was no time to seek out a
magistrate and secure a warrant.” (Id. at pp. 770–771.) But the court noted that its
“judgment that there had been no Fourth Amendment violation was strictly based ‘on the
facts of the present record.’ ” (McNeely, supra, 569 U.S. at p. 152 (quoting Schmerber,
at p. 772).)
       Four months before the accident in this case, the United States Supreme Court
revisited Schmerber, in another DUI case where the prosecution argued exigent
circumstances. (McNeely, supra, 569 U.S. at p. 145.) McNeely’s was a fairly standard
DUI arrest, one not involving an automobile accident. The prosecution argued in
McNeely for a per se rule that would have allowed law enforcement to have blood drawn
from anyone arrested for DUI, on the theory that “the natural metabolization of alcohol in
the bloodstream presents a per se exigency.” (Ibid.) In McNeely, the court left
Schmerber in place but declined to adopt such a per se rule. One reason was its concern
that the State’s approach “fails to account for advances in the 47 years since Schmerber
was decided that allow for the more expeditious processing of warrant applications,
particularly in contexts like drunk-driving investigations where the evidence offered to
establish probable cause is simple.” (McNeely, at p. 154.) In weighing the totality of
circumstances, courts must consider such technological advances and not be quick to give
up “the neutral magistrate judge’s essential role as a check on police discretion.” (Id. at
p. 155.) The court also considered significant that BAC evidence disappears only
“gradually and relatively predictably.” (Ibid.) Each case must be decided on its facts, but
McNeely articulates the constitutional standard: “In those drunk-driving investigations
where police officers can reasonably obtain a warrant before a blood sample can be
drawn without significantly undermining the efficacy of the search, the Fourth
Amendment mandates that they do so.” (Id. at p. 152.)



                                             7
       Because Meza’s case and Schmerber both involved drivers injured in an accident
and taken to the hospital for medical care, the trial court saw strong parallels between the
two cases. We think the court overlooked dispositive differences. First, while the
decision in Schmerber mentions only one police officer involved in the arrest and
investigation of that case, in this case there were at least four officers who responded to
the accident scene. (See Schmerber, supra, 384 U.S. at pp. 769–771.) The record
contains no information explaining why one or more of the other officers could not have
assisted Officer Cruz, if interacting with Meza and his passenger at the hospital required
too much of her attention to allow her also to obtain a warrant before Meza’s blood was
drawn. Second, as the high court emphasized in McNeely, advances in technology in the
half century since Schmerber was decided have made it easier for law enforcement
officers to get warrant applications before a judge when court is not in session. Nothing
in the record explains why Officer Cruz could not have used the procedures she had been
trained on to get a warrant application approved by the on-call judge in the two hours
after Meza and his passenger went down the embankment.
       On the record before us, the People have not established that exigent
circumstances prevented the Concord Police Department from obtaining a warrant before
having Meza’s blood drawn. Officer Cruz did not even try to get a warrant, presumably
because she thought Meza’s acquiescence constituted consent.2 Instead of applying for a
warrant, Officer Cruz spent time at the accident scene, after Meza left in an ambulance,

2
  The trial court rejected that theory (see Bumper v. North Carolina (1968) 391 U.S. 543,
548–549 [“acquiescence to a claim of lawful authority” vitiates consent]; People v. Ling
(2017) 15 Cal.App.5th Supp. 1, 8; People v. Mason (2016) 8 Cal.App.5th Supp. 11, 31–
33; compare People v. Vannesse (May 16, 2018, B283857) __ Cal.App.5th __ [2018 WL
2228184, at p. *2] [defendant signed a consent form giving him the option to refuse]),
and we have no occasion to review it here. Nor do we have occasion to consider whether
any other exception to the warrant requirement applies, such as the search-incident-to-
arrest doctrine. (See Birchfield, supra, 136 S.Ct. at p. 2184 [not a valid search incident to
arrest for law enforcement to demand the more intrusive alternative of a blood test, since
the less invasive alternative of breath testing is available].)

                                              8
interviewing a witness. At the hospital, she was communicating with the family of
Meza’s passenger, filling out paperwork, and engaging in casual conversation with Meza
as he awaited medical care. The People offered no evidence to explain why she could not
have sought a warrant during any of that time. Her activities are ones we expect her
colleagues could have undertaken, or she could have put off until later, so that she had
time to prepare an affidavit and use a fax machine at the hospital to submit a warrant
application. But if this was not possible, then Officer Cruz could and should have
enlisted assistance from another police officer. The forensic blood draw in this case did
not occur until two hours after the accident, so if Officer Cruz and her colleagues had
used diligent efforts to prepare and submit a brief warrant application, we have every
reason to believe that they would have procured a warrant without causing any delay in
the blood draw. (Cf. People v. Toure (2015) 232 Cal.App.4th 1096, 1104–1105 (Toure)
[violent defendant requiring physical restraints, and delays in obtaining warrants after
court closings].) Had the officers tried to get a timely warrant but failed, then the People
would have evidence to explain that failure, and our assessment of the totality of the
circumstances would necessarily be different.
       If the court were to conclude on this record that exigent circumstances excuse law
enforcement from getting a warrant, it would be hard to imagine a case requiring a
warrant for a blood draw when a DUI suspect is taken to the hospital. We would be
creating, sub rosa, a rule that exempts accident cases from the totality-of-the-
circumstances inquiry that McNeely requires, and we would be ignoring McNeely’s point
about the availability of electronic warrants. (McNeely, supra, 569 U.S. at pp. 154–156.)
This we decline to do. The People have not proven that the Concord Police Department
could not obtain a warrant to have Meza’s blood drawn for forensic purposes in a time
frame that would not “undermin[e] the efficacy of the search.” (Id. at p. 156.) We
therefore hold that exigent circumstances do not excuse the police from getting a warrant



                                             9
in this case. The evidence of Meza’s BAC from the 8:25 p.m. blood draw should have
been suppressed because it was obtained in violation of his Fourth Amendment rights.
       Where, as here, an error is of constitutional dimension, we excuse it as harmless
only if we are persuaded beyond a reasonable doubt that it did not contribute to the guilty
verdicts. (Chapman, supra, 386 U.S. at p. 24; People v. Neal (2003) 31 Cal.4th 63, 86.)
In this case, because of the evidence from the hospital’s blood draw, we find the error
harmless even under this exacting standard. The hospital’s blood test established that 40
minutes after the accident Meza’s BAC was 0.128 percent, calculated as a proportion of
his whole blood (down from 0.148 percent in blood plasma). This BAC is more than 50
percent above the legal limit of 0.08 percent. Leatham testified extensively about the
hospital’s procedures for drawing and testing blood in a manner designed to ensure
accurate results. Although the hospital is not licensed for forensic testing, it is licensed
by the Department of Public Health and accredited by the College of American
Pathologists as a clinical laboratory, and treating physicians rely on the results of its tests
to be accurate. Meza is correct that a jury could consider the hospital’s failure to follow
Title 17 standards for forensic blood testing as evidence tending to undermine the validity
of the test results (see CALCRIM No. 2101), but in light of Leatham’s testimony as to
why the results were reliable and in the absence of any other reasons to mistrust their
reliability, we conclude that no rational jury would have doubted that Meza’s BAC at the
time of the accident was at least 0.08 percent, even if the forensic blood test evidence had
been suppressed. Meza’s arguments about Title 17 would have more force if his BAC
had been closer to the legal limit, but on this record we conclude the error was harmless
beyond a reasonable doubt.
II. Other Challenges to the Convictions
       Meza argues three additional points on appeal, all unavailing. First, he asserts that
the trial court’s denial of his discovery motion pursuant to Pitchess v. Superior Court
(1974) 11 Cal.3d 531 (Pitchess) was prejudicial error. Second, Meza argues that the jury


                                              10
instruction and verdict form omitted an element of an enhancement for great bodily
injury that the prosecution was required to prove, namely that the victim was not an
accomplice to his crimes. Third, Meza argues that his conviction for driving under the
influence causing injury must be reversed because this crime is a lesser included offense
of driving with a BAC greater than 0.08 percent causing injury.
   A. Pitchess Motion
       At a pre-trial hearing on September 18, 2015, the court heard a Pitchess motion
that Meza had filed seeking discovery from Officer Cruz’s personnel records or other
confidential police department files. Meza sought information that Officer Cruz had
previously been accused of actions casting doubt on her credibility or professional
integrity. The trial court found that Meza had made the initial showing of good cause
necessary to trigger in-chambers review of potentially responsive documents. The court
conducted that review, afterwards announcing that there was no discoverable
information. (See Pitchess, supra, 11 Cal.3d 531.)
       This court takes seriously its obligation to review independently the sealed records
from the Pitchess motion in this case. (People v. Prince (2007) 40 Cal.4th 1179, 1285.)
Because of the confidential nature of those records, however, we state here only the
conclusion of that review. Having read the transcript of the in camera hearing and
reviewed all of the written records the police department brought as potentially relevant,
we conclude the trial court did not abuse its discretion. (See ibid.) We, too, see no
discoverable information in these files.
   B. “Not an Accomplice” Element Missing from Jury Instructions and Verdict
      Forms
       The great bodily injury enhancement that the jury found true as to both counts
applies only where a defendant “personally inflicts great bodily injury on any person
other than an accomplice.” (Pen. Code, § 12022.7, subd. (a).) The verdict forms in this
case omitted the statutory phrase “other than an accomplice.” So, too, did the jury
instructions omit this element. When the court and the parties were reviewing the
proposed verdict forms during trial, defense counsel objected that although he was “not


                                            11
trying to advance an accomplice theory” he thought the verdict forms should include the
phrase “not an accomplice” because the element was part of the statute. Finding no
sufficient evidence that Meza’s passenger was an accomplice, the trial court overruled the
objection.
       On appeal, Meza argues that the omission of this phrase from the jury instructions
and the verdict forms was prejudicial error, a violation of his due process and Sixth
Amendment rights. (See Sullivan v. Louisiana (1993) 508 U.S. 275, 277–278; Carella v.
California (1989) 491 U.S. 263, 265; People v. Flood (1998) 18 Cal.4th 470, 491–492.)
We disagree. Only where there is substantial evidence in the record to support a jury
instruction must the court give it. (See People v. Barton (1995) 12 Cal.4th 186, 201.)
And even if it was error to omit the phrase from the instructions and the verdict forms,
such error was harmless because we conclude beyond a reasonable doubt that the jury
would not have found Meza’s passenger to be an accomplice to his crimes. (See
Chapman, supra, 386 U.S. at p. 24.) An accomplice is a person subject to prosecution for
the identical crime. (Pen. Code, § 1111; People v. Johnson (2016) 243 Cal.App.4th
1247, 1266, fn. 10.) Only if Meza’s passenger knew of Meza’s criminal purpose and
both intended to, and did in fact, aid, facilitate, promote, encourage, or instigate the
commission of the crime is she liable as an accomplice. (Johnson, at pp. 1271–1272.)
       Meza argues that the record reflects his passenger’s “psychological and practical
collusion” in his crimes. He points to evidence that she had heard Meza was drinking a
beer at the golf course yet insisted that he drive, and then said nothing to stop his reckless
speeding until she saw the speedometer approaching 100 miles per hour. But for good
reason the defense did not pursue an accomplice theory at trial. Meza told his girlfriend
he was drinking a beer, but he mentioned only a single beer and this was almost two
hours before she climbed into the passenger seat next to him. She testified that she had
no idea how much he had had to drink, and that she noticed no symptoms of his being
under the influence. Also, she hardly “insisted” on his driving. When she first asked him

                                              12
to drive he turned her down, but only 20 seconds later, with no words exchanged between
them, he changed his mind without explanation and agreed to drive. Finally, we reject
the idea that a passenger’s silence in the face of a driver’s recklessness makes the
passenger culpable for his driving under the influence. Meza characterizes his
passenger’s silence as “a kind of passive provocation that contributed to his behavior as
much as if she had placed a foot on the accelerator.” We conclude that no reasonable
jury would have accepted this theory, nor found that she intended to encourage his
crimes. Thus, there was no prejudicial error in the trial court’s decision not to instruct the
jury on accomplice liability.
   C. Lesser Included Offense Challenge
       Meza argues that his conviction on count one for violating subdivision (a) of Penal
Code section 23153 (the “(a) count”) must be reversed because that crime is a lesser
included offense of the crime for which he was convicted in count two, Penal Code
section 23153, subdivision (b) (the “(b) count”). Meza correctly identifies the two tests
our Supreme Court has supplied for identifying a lesser included offense. These are the
elements test and the accusatory pleading test. (People v. Bailey (2012) 54 Cal.4th 740,
748.) But for purposes of determining whether a defendant may be convicted of multiple
charges, only the elements test is relevant. (People v. Reed (2006) 38 Cal.4th 1224,
1228–1230 (Reed).) Because the (a) count is not a lesser included offense of the (b)
count under the elements test, we reject Meza’s challenge.
       “Under the elements test, if the statutory elements of the greater offense include all
of the statutory elements of the lesser offense, the latter is necessarily included in the
former.” (Reed, supra, 38 Cal.4th at p. 1227.) Meza does not argue that the statutory
elements of the (b) count include all of the statutory elements of the (a) count. Nor could
he. The (a) count requires that the defendant be under the influence of alcohol and/or
drugs, while the (b) count has no such requirement. The (b) count requires instead that
the defendant’s BAC measure at least 0.08 percent. Under the elements test, this means

                                              13
the (b) count does not necessarily include the (a) count. As a sister court held in
dispensing with a similar challenge, “the offense defined by section 23153, subdivision
(b) is separate and distinct from that defined in section 23153, subdivision (a), and neither
is a lesser included offense of the other. [Citation.] Because the charges involve
different offenses entailing different elements of proof, a defendant may be properly
convicted of both.” (Toure, supra, 232 Cal.App.4th at p. 1106; see also People v.
Subramani (1985) 173 Cal.App.3d 1106, 1108–1109.)
       Meza acknowledges that “the actual words of the statutes seem to define a
different ‘element’ in each,” but urges us to adopt the “fact-based approach” of People v.
Rogers (1971) 5 Cal.3d 129. Meza rests his argument on Jiminez’s testimony that
anyone whose BAC is at or above 0.08 percent is under the influence, and that a scientific
consensus supports this view. There are several problems with this argument. First, as
Meza acknowledges, Rogers has been much criticized and its continuing validity is
“dubious.” (Reed, supra, 38 Cal.4th at p. 1228, fn. 2.) Second, Jiminez’s testimony
notwithstanding, a guilty verdict on the (b) count “does not create a conclusive
presumption of intoxication.” (Burg v. Municipal Court (1983) 35 Cal.3d 257, 265
[discussing Veh. Code, § 23152, subd. (b)].) The jury instructions given in this case
recognize as much. Consistent with the pattern instruction, the trial court told the jury
that if “the People have proved beyond a reasonable doubt that the defendant’s blood
alcohol level was 0.08 percent or more at the time of the chemical analysis, you may, but
are not required to, conclude that the defendant was under the influence of an alcoholic
beverage at the time of the alleged offense.” (Italics added.) Because proving the (b)
count beyond a reasonable doubt does not require the jury to conclude that this element
of the (a) count is met, the (a) count is not a lesser included offense of the (b) count.
Meza’s convictions on both counts stand, although Penal Code section 654 ensures that
he is not punished on both counts. (See Toure, supra, 232 Cal.App.4th at p. 1106.)



                                              14
                              DISPOSITION
The judgment of the trial court is affirmed.




                                     15
                                                  _________________________
                                                  Tucher, J.*




We concur:




_________________________
Kline, P.J.




_________________________
Richman, J.




People v. Meza (A147188)
       * Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.



                                             16
Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. Barry Baskin

Counsel:

David Sundelson, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief
Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric
D. Share, Supervising Deputy Attorney General, Elizabeth W. Hereford, Deputy
Attorney General, for Plaintiff and Respondent.




                                          17
