APPEAL from a judgment of the Superior Court of Los Angeles County. (Los Angeles County Super. Ct. No. BA325756) George G. Lomeli, Judge. Affirmed.
The opinion of the court was delivered by: Boren, P.J.
CERTIFIED FOR PUBLICATION
Appellant Stephanie Nordberg was driving while intoxicated when her car struck and killed a motorcyclist on the freeway. A jury convicted her of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)), and found true the special enhancement allegation that she fled the scene of the crime after the vehicular manslaughter. (Veh. Code, § 20001, subd. (c).)*fn1 She was sentenced to a prison term of nine years, consisting of the low term of four years for the offense, plus five years for the enhancement.
Appellant contends that the true finding of the enhancement allegation for leaving the scene of the crime should be reversed because the jury was not instructed that she had to have knowledge that the accident resulted in injury to someone, or had to know that the accident was of such a nature that one would reasonably anticipate that it resulted in injury to another person. We find that although the jury was not instructed on the knowledge requirement, as it should have been, the error was harmless beyond a reasonable doubt. Because both the prosecution's evidence and appellant's own testimony unequivocally established that appellant knew the accident was of such a nature that it was probable another person had been injured, there is no rational basis on which the instructional error could have affected the jury's verdict.
In July of 2007, appellant, a 21-year-old employee at a North Hollywood audio equipment company, met two of her colleagues after work for some drinks at a nearby bar. One of appellant's companions, Stephen Eagle, ordered margaritas with a single shot for himself and for appellant. He then ordered some snacks and a second round of margaritas for himself and for appellant. Approximately an hour later, they left the bar and went to a grocery store to buy some vodka and food for dinner. Appellant drove her car (a Chevy Monte Carlo) to the grocery store and then to Eagle's apartment, arriving at approximately 8:45 p.m.
Once at the apartment, Eagle prepared some food and poured "the first shot of vodka." He had approximately four or five shots of vodka, and appellant ate sausages and salad and had three or four shots of vodka. They did not mix the drinks with any water or juice. After dinner they kissed once, which created some awkwardness because appellant had a boyfriend. While Eagle cleaned up the dishes inside, appellant went to the patio, made a phone call on her cell phone, and then indicated she wanted to leave. It was then approximately 10:00 p.m.
Because Eagle "was feeling tipsy at the time," he told appellant that he "didn't think that she should leave due to the alcohol we had consumed." Appellant replied that she "was okay to drive." Due to the awkwardness after their kiss, he did not want to detain her in his apartment any longer because she wanted to leave. Eagle then escorted appellant to her car. When appellant entered her car, he asked her again if she was "okay to drive and she assured [him] that she was." The two of them had consumed about half the bottle of vodka.
Appellant drove off and then entered the southbound Hollywood Freeway. Meanwhile, Frank Arana was riding a motorcycle on the freeway. On the back of the motorcycle were two distinct lights, a brake or tail light, and a license plate light. While Arana was riding the motorcycle, his brother (Richard Arana) and a friend (Kelly Graval), who owned the motorcycle, followed immediately behind in a white Ford 250 truck. As their truck passed Universal Studios, a car came on the freeway, moved erratically, and "cut across many lanes." Traffic was flowing steadily, but then Graval saw that the same "vehicle came from my left side, cut in front of us rather rapidly, sped up to approach [Arana], looked like it slowed down to travel with the speed of the freeway, steadily, and then accelerated and hit [Arana from behind.]"
Graval saw the car in front of him speed up to "at least" approximately 70 miles per hour and then heard the sound of the car's impact with the motorcycle, even though the windows of the truck were rolled up. Upon impact, as described by Graval, Arana "went like this [indicting] and then up, almost like he was on a motorcross jump, and came down. I was behind him, so I couldn't tell you what happened in front to the car, but I did see [Arana] go up in the air, come down, and I did see [Arana] come, you know, out from under the car and roll in front of me--in front of us." Arana ultimately landed on the ground in front of appellant's car after it hit him. The car thus struck Arana from behind and then ran over him, inflicting fatal injuries.
Appellant's car had made no prior attempts to get into the lane in which the truck and motorcycle were travelling. The lane change by her car was so abrupt the truck had to brake. After hitting Arana on the motorcycle, appellant's car went to the left and struck the center divider. Graval and Arana's brother stopped their truck and ran toward Arana. Appellant's car then "was struggling to leave the scene." The front tires spun, and the back right tire seemed locked and dragged before it unlocked. Graval ran toward the car to try to get a license plate number and screamed, "Stop, stop, stop." The car, however, drove away and exited the offramp at Highland Avenue.
Several other drivers on the freeway also witnessed the erratic driving and the fatal accident. The driver in one of the nearby cars immediately called 911 on her cell phone. Another car was hit by the same car that hit the motorcycle, causing that driver's airbag to deploy.
Another driver, Joseph Garcia, saw a cloud of smoke or dust on the freeway, slowed down to approximately 10 miles per hour, and then saw a motorcycle and a person lying on the ground. On his left side, he saw a car with some minor damage that had stopped. Garcia "heard kind of like a loud rev of an engine," and then saw the damaged car speed off. The car was "peeling out, there was smoke, and at that point I decided to chase the car." He saw the car exit the freeway at Highland Avenue, hit a concrete barrier, and then veer to the right and hit a light pole.
Another driver, Dennis Nusbaum, also noticed that the freeway traffic had slowed down dramatically, and then saw a truck, a motorcycle, and a body on the ground. Nusbaum exited the freeway and saw that a car had crashed on the shoulder near the exit. The car was smoking and appellant was on the side of the road talking to two men who had parked a yellow Hummer nearby. Nusbaum got out of his vehicle and called 911 to report that he had seen a ...