Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F08322
ROBIE, J.
A jury found defendant Michealle Marie King guilty of driving under the influence of alcohol (DUI), driving with a blood-alcohol content of.08 percent or more, and hit and run causing property damage. It also found true allegations her blood-alcohol content was.20 percent or more. The court placed her on five years’ probation.
Defendant appeals, raising issues relating to the search of her home, the removal of a juror, the admissibility of evidence relating to one of her prior DUI arrests, instructional error, and the sufficiency of evidence. Finding no reversible error, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A
The Prosecution’s Case
About 4:00 p.m. on August 2, 2005, Patricia Kelly was driving with her three children westbound on Laguna Boulevard when she saw a person “driving erratically.” The car, defendant’s dark green Saturn, was swerving in and out of the lane and then it “jumped up on the center divide,” onto the grass and then went “into other lanes.”
About the same time, Laura Miller was stopped at a light on Laguna Boulevard, waiting to make a left turn. Defendant’s car “gently” hit her from behind. Defendant then “rolled her vehicle back” and hit Miller’s car a second time “twice as hard.”
Miller, Kelly, and defendant drove their cars to the side of the road. As Miller approached defendant who was still in her car, Miller noticed that defendant’s car “reeked” of alcohol and defendant’s eyes were “glazed over.” Miller told defendant she had hit her car. When defendant denied it, Miller told her, “‘Well, marks on my bumper are indicating differently.’” Defendant said, “‘Okay.’” Miller thought that defendant was “heavily intoxicated.”
Miller then asked for defendant’s “information.” Defendant “was taking awhile to get it out, so [Miller] walked back to [her] car.” Defendant “finally” got out of her car, but was stumbling, could barely stand up, and was leaning on her car. Kelly similarly described defendant as stumbling, unable to balance, and holding herself up by leaning on her car. Kelly called 911.
Defendant gave Miller her registration, insurance information, and license plate number. While Miller was writing down defendant’s information on a napkin, defendant kept saying she wanted to leave. Miller told defendant an officer had been dispatched and she wanted to file a police report. Defendant then “snatched the paperwork” from Miller and ran back inside her car.
In an attempt to prevent defendant from leaving, Miller and Kelly boxed in defendant’s car with their own cars. Defendant, however, slammed into Miller’s car, put her car in reverse, and then slammed her car into Kelly’s car, continuing until she was able to get out. Miller had “scuff marks” all along the left side of her bumper. Defendant “peeled off past [them].”
Sacramento County Sheriff’s Deputy Kimberly Mojica was en route to the accident scene when she learned that defendant had left the scene and lived nearby. She went to defendant’s house, where she was met by Deputy James Collentine. The deputies eventually made their way inside the house by following defendant’s roommate, who had just come home. Inside one of the bedrooms, they found defendant. She smelled of alcohol, her eyes were “bloodshot and glassy,” she talked slowly and slurred her speech, and she could not stand upright. In the bathroom attached to the bedroom was a 750 milliliter bottle of raspberry vodka that was two-thirds empty. Defendant, who was “combative and belligerent,” was arrested.
About 6:30 p.m., a phlebotomist drew defendant’s blood, which contained.28 percent alcohol.
B
The Defense
On the day of the accident, defendant was not feeling well. She had slept for only one hour, had diarrhea, was feeling dehydrated, and was sick to her stomach. She had eaten only a few bites of salad and was dizzy. She had not consumed any alcohol before driving that day, but she smelled like alcohol because of her mouthwash.
Defendant left work a few minutes after 3:00 p.m. and was on her way home when she was involved in the accident. She remembered “the bump” and looking at the cars. She did not see damage to either her car or Miller’s car. She could not recall the details of the actual impact because she had “do[z]ed off a little bit.”
Defendant gave all her information to Miller but was starting to “feel real dizzy.” She needed to use the bathroom, so she told Kelly and Miller she needed to get to her house that was three blocks away.
When defendant got home, she used the bathroom, changed clothes, and tried to relax. She drank two-thirds of the bottle of vodka because she wanted to go to sleep and was “really upset” that she might have fallen asleep at the wheel. She then smoked marijuana to “calm[] [her] stomach.”
Defendant was arrested in August 2001 for DUI. A chemical test was performed to determine her blood-alcohol content. She had the assistance of an attorney in “dealing with that incident,” but they did not discuss “possible defenses.”
DISCUSSION
I
The Court Did Not Err In Denying Defendant’s Suppression Motion
Defendant filed a motion to suppress the evidence found in the warrantless search of her house. The magistrate denied the motion based on the community caretaking and exigent circumstances exceptions to the warrant requirement. The trial judge denied the renewed motion. On appeal, defendant contends neither exception applied, so the evidence against her found in the search should have been suppressed. As we will explain, the exigent circumstances exception applied, and therefore the magistrate did not err in denying the motion to suppress.
Judge Alan Perkins was sitting as the magistrate.
Judge Peter Mering was sitting as the trial judge.
A
Facts From The Preliminary Hearing
In the afternoon of August 2, 2005, Laura Miller was driving on Laguna Boulevard when she stopped at a red light. While stopped, defendant’s car hit her twice from behind.
Miller, defendant, and the driver of the car behind defendant, Patricia Kelly, pulled over. Miller approached defendant’s car, and defendant rolled down her window. Defendant “reeked of alcohol,” “[h]er face was very drawn, and her eyes were kind of going everywhere, floating around everywhere.” When she got out of her car, she “could barely stand.” Miller thought defendant was “very heavily intoxicated.”
Defendant gave Miller her car’s registration and insurance information, which Miller copied down. Kelly called 911, and the dispatcher asked if there were children in the vehicles. Kelly responded there were children in her own car (she had three) and there might be children in the other two cars.
When Miller told defendant that officers had been dispatched and she wanted to file a report, defendant grabbed her insurance information back and jumped into her car. All the while, defendant kept saying she had to leave, “she was going to come home, but she’ll be right back, and then offered to give [Miller] her telephone number.” Miller then wrote down defendant’s phone number.
When Deputy James Collentine arrived on scene after being “waved down” by Miller and Kelly, they told him they had been involved in a “hit and run” and gave him a description of defendant and her car’s license plate number. Collentine transmitted that information through his police radio so “the dispatcher could update the call.”
Deputy Kimberly Mojica was en route to the traffic accident when she received from dispatch the license plate number of defendant’s car. Mojica “ran the license plate through a DMV records check and found that... the registered owner’s address was close to the scene of the accident, so [Mojica] chose to go to the registered owner’s address.” Defendant “was the registered owner at that residence.” While en route, she also received information from dispatch that the accident was a “non-injury collision” with an “intoxicated female” and “three children in the vehicle with the driver [who] left the scene.”
Deputy Collentine also headed to defendant’s house that “was a couple blocks away” from the collision “to try to make contact with the driver of the vehicle.”
Deputies Mojica and Collentine arrived at the house about the same time. Defendant’s car was not parked outside the house, so the deputies knocked on the front door. According to Mojica, they were “investigating a possible driving under the influence and possibly three children who had been hurt in the wreck.” Similarly, in Collentine’s view, they “were trying to locate the vehicle to see if the person was there, and also to check on the welfare of the kids.” After receiving no response, they went to the south side of the house “to see if [they] could see anything.” Mojica then noticed “the side garage door had a window that would allow a view into the garage.”
Deputy Collentine pushed on the locked side gate two to four times, and “[t]he fence post actually broke away from the side of the house.” The deputies went through the gate, looked in the side window of the garage door, and saw a car that “matched the description.”
About the time they saw defendant’s car parked in the garage, another car came up the driveway. The driver identified himself as Joseph Debbs and said he was defendant’s roommate. Debbs said he would check if defendant was home, “so [the officers] followed him into the house.” Defendant was inside the master bedroom.
The magistrate denied the suppression motion. He reasoned that the community caretaking exception to the warrant requirement applied “up through the time where the officers peeked into the garage.” The exigent circumstances exception also applied because “there was probable cause to arrest” defendant.
B
Exigent Circumstances Justified The Warrantless Entry And Search Of Defendant’s House
One of the exceptions justifying a warrantless entry into a residence is the presence of exigent circumstances. (People v. Celis (2004) 33 Cal.4th 667, 676.) The imminent destruction of evidence qualifies as an exigent circumstance. (People v. Thompson (2006) 38 Cal.4th 811, 820.) However, for officers to enter a home based on exigent circumstances, they need “probable cause to believe that the entry is justified....” (Celis, at p. 676.)
Here, the People contend “the facts support a finding that the officers had probable cause to believe [defendant] was at the residence prior to entering the side yard of the home.” Defendant, on the other hand, contends there was only one fact that “implied” she was at the residence prior to the deputies’ entry into her backyard -- the house was the address of the registered owner of the car involved in the collision. We disagree with defendant and agree with the People that probable cause and exigent circumstances justified the search.
The reason the People focus on the need for probable cause before the deputies entered the side yard is clear. It is well-established that officers cannot use information they obtain from observations made while standing in a place they have no legal right to be. (People v. Camacho (2000) 23 Cal.4th 824, 827-828.) Here, it is beyond dispute the deputies had no right to be in a portion of the yard where they needed to knock down a locked fence in order to gain access unless they had probable cause.
Probable cause is a “‘fluid concept’” and, at its heart, a reasonableness determination. (People v. Thompson, supra, 38 Cal.4th at p. 818.) Here, based on the information the deputies had before they forcibly entered the backyard, it was reasonable for them to believe that defendant was at her house. They knew she had just hit two cars while highly intoxicated and sped off in her own car, and that car was registered to her at her home address that was a couple of blocks away from the accident. It does not strain credulity to believe that the most likely place defendant would be found would be her house.
Given these facts, there were also exigent circumstances to justify the warrantless entry into the house. A warrantless police entry into a home to arrest a person for driving under the influence of alcohol is constitutionally permissible to prevent the imminent destruction or dissipation of blood-alcohol evidence through the body’s normal metabolic processes. (People v. Thompson, supra, 38 Cal.4th at pp. 825-827.) Thompson controls here. Defendant’s blood-alcohol level either would have decreased if police had sought a search warrant or would have been masked had she consumed more alcohol while police sought a warrant. (Id. at p. 824.) The magistrate therefore did not err in finding that exigent circumstances justified the search. Because the search was justified on this basis, we need not consider whether it was also justified under the community caretaking exception.
II
The Court Did Not Err In Removing Juror No. 1
On the second day of jury deliberations, the court removed Juror No. 1 for failing to deliberate and considering matters outside the evidence presented at trial. Defendant claims the court erred in removing Juror No. 1. We disagree, based on Juror No. 1’s failure to deliberate.
A
Facts Relating To Removal Of Juror No. 1
About 2:30 p.m., on May 2, 2007, the jurors began deliberating. They continued deliberating until about 4:00 p.m., at which time they left a note for the court requesting a read back of testimony and copies of any police reports. Then they went home.
About 9:00 a.m. the next day, the jurors returned and “at some time after 9:00,” the court reporter spent “[u]nder two hours” reading back the requested testimony. The jurors recessed for lunch from 11:45 a.m. to 1:30 p.m. and then deliberated from 1:30 p.m. to about 3:00 p.m.
At 3:05 p.m., the jurors sent the following note: “We have a juror member who is unwilling to deliberate and being uncooperative. Please advise.” The court then called each juror in “one at a time [to] see what [it] c[ould] learn.”
Juror No. 2, the foreperson who wrote the note, said that Juror No. 1’s “lack of participation or uncooperation” “first show[ed] itself” “[p]robably the first thing this morning.” Juror No. 2 explained that by midday, 11 of the jurors “had come to a strong conclusion” and Juror No. 1 “now refuse[d] to discuss why he -- he’s choosing the other side.” Even before the read back, Juror No. 1 “had taken a strong position.” This afternoon, Juror No. 1 was acting “very defensively” and would not give the other jurors “much feedback at all.” Juror No. 2 also thought Juror No. 1 “saw some witnesses talk outside” and believed that “that’s kind of affected [Juror No. 1’s] opinion.” “[Juror No. 1] saw two witnesses act friendly outside. To the rest of us, it’s casual greetings, but, to him, he felt that they were, I guess, joining as a team against another person or another party. And I actually do think it’s kind of prevented him from making a reasonable decision -- or reasonable, I guess, decision. And I don’t think he can take that out even though we have talked a lot about it.”
Juror No. 3 stated that the other jurors had “tried various different ways of trying to show [Juror No. 1] why [they] felt differently, and he was not willing to listen.” It was “by the end of yesterday” that Juror No. 1 “had finally decided he wasn’t going to listen to anything else.”
Juror No. 4 agreed that Juror No. 1 was unwilling to deliberate and being uncooperative. When asked to pinpoint when he first noticed that Juror No. 1 did not want to talk anymore, Juror No. 4 responded, “[r]ight before break -- before this last break.”
According to Juror No. 5, Juror No. 1 said “his mind was made up and nothing [wa]s going to change it.” He took that position “start[ing] yesterday, but... it came to a head today, and he said that’s it, he’s not going to change his mind.” The other jurors asked him to explain his position and “he did for a while, and then finally he said he’s done, he wasn’t going to say anymore.” And that was this afternoon.
Juror No. 6 stated that “[o]nce it reached a point,” Juror No. 1 stopped deliberating. “He said he already gave his opinion and he’s not going to give it no more, so he already stated his case.”
Juror No. 7 said that Juror No. 1 “just clammed up,” and it “seemed like he already had his [mind] made up before... he left court.” When asked whether “[a]t any point,” Juror No. 1 “openly and freely enter[ed] into discussions,” Juror No. 7 said, “No, just a couple conversation pieces, not really into a deep conversation, no.”
It was Juror No. 8’s “perception” that Juror No. 1 “shut down at a certain point. He did give [them] his opinion... about how he feels about certain issues, but then... at one point, he said, ‘I absolutely will listen to no more reason. I am absolutely through discussing it, and that’s it.’” This occurred after they came back from lunch.
Juror No. 9 said it was “true” that Juror No. 1 was unwilling to deliberate and being uncooperative, “[b]ut not the whole time. He was okay in the beginning and then, as time went on, he kind of clammed up.”
According to Juror No. 10, Juror No. 1 “said what he was going to say and wasn’t going to say anymore.” “He said he doesn’t care if it takes until next week, he’s not going to change his mind.”
Juror No. 11 felt Juror No. 1 “made up his mind fairly early.” He wanted Juror No. 1 “to convince [him] because that’s what [they] have to do, [they] have to deliberate. He doesn’t want to do it anymore. He says, ‘I don't care if it goes three weeks, I’m not going to change my mind.’”
Juror No. 12 stated that he and the other jurors “just wanted to have [Juror No. 1’s] opinion, and he just refused to discuss anything and he said, ‘I made up my mind,’ and there we stopped.”
The court then asked Juror No. 1 whether it was true he was “really not willing to deliberate or discuss this case any further.” He said he “was one of the most talkative ones.” When the court asked “[b]ut what about recently,” Juror No. 1 said that he kept getting interrupted when he was speaking, so he raised his voice and said “‘enough.’” He explained “again and again” to the other jurors the reasons for his position. As to the hallway incident, he did notice the people “standing... together” until they came in to testify as witnesses, but that did not seem suspicious to him.
After this questioning, the court removed Juror No. 1, explaining as follows:
“I recognize a hold out, after a day or two or three of being pressured, may become defensive and adamant and refuse. But this is -- this jury has deliberated for a couple of hours. A couple of hours. And [Juror No. 1 is] refusing to discuss it any further or give his views any further. There just has been so little time to treat this as somebody who has entered into this process.
“Well, I am going to excuse him for two reasons. I think he has decided not to deliberate after a very brief process, and he has further placed emphasis on things he observed in the hallway, which he disclaims now, but all the other jurors -- virtually all the others recall him pointing that out and concluding from it, irrationally, that, because they greeted each other or spoke to each other in the hallway, that they were buddies and weren’t to be trusted. He’s considering things occurring outside of court, attaching significance to them, and effecting his deliberations in this case, so I am going to excuse him in this case.”
Later, the court further explained its rationale behind removing Juror No. 1. As to the failure to deliberate, the court noted that “if somebody, after two hours of deliberation, actual discussion of a case” “that easily, gets to say, ‘It’s over, folks,’ the system is going to break down.”
B
The Court Did Not Err In Removing Juror No. 1 For Failing To Deliberate
“If... a juror... upon... good cause shown to the court is found to be unable to perform his or her duty... and good cause appears therefor, the court may order the juror to be discharged and draw the name of an alternate.” (Pen. Code, § 1089.)
Good cause includes a juror’s refusal to deliberate. “A refusal to deliberate consists of a juror’s unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views.... A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views.” (People v. Cleveland (2001) 25 Cal.4th 466, 485.)
We review the court’s discharge of a juror for refusal to deliberate under the “demonstrable reality test,” which “entails a more comprehensive and less deferential review.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) “It requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion.... [A] reviewing court does not reweigh the evidence.... [H]owever, the reviewing court must be confident that the trial court’s conclusion is manifestly supported by evidence on which the court actually relied.” (Id. at pp. 1052-1053.)
Here, the court found that Juror No. 1 had failed to deliberate, which was based on the examination of jurors it conducted just before making its decision. Specifically, the court found that Juror No. 1 had deliberated only a couple of hours, which the court termed “a very brief process” and was refusing to discuss the case any further.
This conclusion is supported by the evidence. On the first day of deliberations, there was about one and one-half hours of discussion between the jurors, at which time they asked for a read back of testimony and copies of police reports and then went home. According to Juror No. 3, it was at this point Juror No. 1 had decided he was not going to listen to anything else. Similarly, Juror No. 5 said that Juror No. 1 made up his mind on the first day and said nothing was going to change it. On the second day of deliberations, the morning was consumed by a read back of testimony. According to Juror No. 2, even before the read back, Juror No. 1 had taken a strong position, and first thing the next morning, he noticed Juror No. 1’s lack of participation and cooperation. Notably, while this evidence showed that Juror No. 1 had made up his mind in only a couple of hours, the evidence also showed that the other 11 jurors had not made up their minds until after the read back and at a time when Juror No. 1 would no longer participate in the discussions. Taken as a whole, therefore, it was a demonstrable reality that Juror No. 1 had not participated in discussions for a reasonable amount of time. Because this was a sufficient basis on which to remove Juror No. 1, we need not consider defendant’s other argument that the court erred in discharging Juror No. 1 based on an improper examination into the hallway incident.
III
The Court Did Not Prejudicially Err In Allowing Questioning About Defendant’s Prior DUI Arrest And Giving The Related Jury Instruction
Defendant contends the court prejudicially erred in allowing the prosecutor to question her about an August 2001 DUI arrest to elicit her knowledge from a previous attorney that drinking after a DUI arrest could alter blood-alcohol tests. She claims the questioning was improper because it violated the attorney-client privilege and there was no evidence she ever received advice that drinking after driving would provide a defense to DUI. She further contends the court’s instruction relating to this issue was error. As we explain below, we find error in the questioning and the instruction but find no prejudice.
A
Facts Relating To Defendant’s Prior DUI And The Accompanying Jury Instruction
The prosecutor sought to question defendant about “her motivation for leaving the scene... being primarily she knew the consequences... given that she had prior DUI’s.” The court “s[a]w this differently” and said that “the jury needs some awareness... that she has previously been arrested and tested for blood alcohol levels” so she “has, at some point, conferred with a lawyer and likely learned something about the way alcohol is processed in the body, and that she may have an awareness that drinking after an incident will mask, conceal or explain a blood alcohol taken at a later time.”
Defense counsel objected that this was “speculat[ive]” because there was no “good faith basis” on which to ask these questions and, in any event, was “hugely prejudicial.” She also objected that such questioning violated the attorney-client privilege.
The court ruled it would allow questioning on only one of defendant’s three prior DUI arrests “to spare the excess prejudice.”
At trial, the prosecutor asked defendant whether she was arrested for DUI in August 2001. Defendant responded, “Correct.” In response to further questioning, defendant testified she “[b]riefly” met with an attorney, but the attorney did not discuss “possible defenses” with her because “[t]here was no defense for what [she] did.”
When asked whether she “had in [her] knowledge, on August 2nd, 2005, things that were discussed to [her] from [her] attorney from 2001,” defendant responded, she “couldn’t remember what was discussed and [she] didn’t think that had anything to do with, uhm, that day because [she] hadn’t been drinking and [she] went home and [she] went to bed.... So [she] couldn’t see a correlation there.”
When asked, “based on what happened in 2001” and her “discussions with [her] attorney,” whether she “knew that drinking after [she] went home, and going back to 2005, that that could affect a subsequent chemical test,” defendant responded, “[t]hat was not on my mind at all.”
When asked whether she “had the knowledge that it could affect the chemical test in the way that it might -- it could make unclear what [her] blood alcohol concentration was at 4:00 o’clock,” defendant responded, “[a]n attorney had never said anything like that to [her]. It was not in [her] mind, no.”
As to this line of questions and defendant’s responses, the court instructed the jury as follows:
“[D]uring this trial, evidence was presented that the defendant had previously been arrested for the offense of driving under the influence of alcohol and had submitted a chemical test to measure her blood alcohol level. Further, that, in the court proceeding that followed from that arrest, she was represented by an attorney and had the opportunity to discuss with said attorney the significance of the blood alcohol level in prosecution for driving under the influence and that such tests are admissible in court proceedings.
“Now, this evidence is admitted for a limited purpose. That means that you must consider it only in limited -- for limited purposes.
“You may, but are not required to, consider this evidence for the limited purpose of deciding whether or not the defendant had the knowledge that, upon being arrested for driving under the influence, that police will obtain a sample of blood or breath of the person so arrested, that the results of such test will be admissible in court against said person, and, if the result is over the level of.08, said evidence can be a significant indicator of guilt. So you may, but are not required to, consider this evidence for these purposes. But these are the limited purposes for which you are to consider such evidence.
“Do not conclude from this evidence that the defendant has a bad character or has a disposition to commit crimes.
“If you conclude that the defendant did suffer the previous arrest and did suffer and did have a -- the test taken and did proceed through the court process, represented by counsel, these facts are not sufficient, by itself, to prove that the defendant is guilty of driving under the influence. The People must still prove each element of every crime beyond a reasonable doubt.”
B
Defendant Was Not Prejudiced By The Prosecutor’s Questions, Elicitation Of The DUI Arrest, Or The Related Jury Instruction
Over defense objection, the court invited the prosecutor to question defendant on advice she may have received from her previous attorney when she was arrested and charged with DUI. The court erred in allowing such questioning for two reasons.
One, the prosecutor’s questions must be based in fact. (In re Marriage of S. (1985) 171 Cal.App.3d 738, 750.) Here, there was no evidence or offer of proof that defendant received advice from counsel that if she left the scene and drank thereafter, she would alter her blood-alcohol level, thus creating a defense.
Two, even if there had been such evidence, eliciting that evidence from defendant without a waiver of the attorney-client privilege was error. (People v. Hayes (1999) 21 Cal.4th 1211, 1264-1265.) That privilege allows the holder, i.e., the client, to refuse to disclose and prevent another from disclosing a confidential communication between the client and her lawyer. (Evid. Code, § 954.) Here, the record demonstrates (by way of defense counsel’s objection to the questioning) that defendant did not want to disclose any communications she may have had with her prior attorney.
For these two reasons, the court erred in inviting the prosecutor to question defendant about her prior DUI arrest and any advice she received from counsel after such arrest.
We turn then to the instruction that advised the jury on how to treat such questions and alleged evidence.
One problem with this instruction was that it stated there was “evidence” that defendant had discussed the chemical tests with prior counsel. As we have explained, there was no evidence to support these questions and, in any event, these questions violated the attorney-client privilege. For purposes of our analysis, it is sufficient to say that the court erred in giving this instruction because it had no basis in evidence.
This leaves the question of prejudice. Through the prosecutor’s improper questions, the jury learned that defendant was arrested in August 2001 of DUI. It also heard the prosecutor’s insinuations and the court’s instruction that defendant’s previous lawyer had advised her that drinking after she drove could alter her blood-alcohol level, thereby creating a defense.
We must therefore ask whether it is reasonably probable the jury would have reached a different result had it not learned of defendant’s prior DUI arrest and the insinuations that she was counseled by her former lawyer that drinking after driving could alter her blood-alcohol level. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
We apply the state prejudice standard of Watson despite defendant’s claim that the error violated her federal constitutional rights. Defendant does not explain in her opening brief that she objected to the evidence or the instruction on state constitutional grounds. Moreover, in the body of the argument on improper admission of the evidence, she acknowledges the Watson standard applies.
We find no prejudice. Leaving aside the evidence defendant had a prior DUI arrest and the insinuation that defendant knew from her previous attorney that drinking after driving could alter the validity of blood-alcohol tests, the jury had overwhelming evidence that defendant was severely drunk, caused an accident, and fled the scene. Kelly testified that when she first saw defendant’s car, it was swerving in and out of the lane on Laguna Boulevard. As she continued looking at defendant’s car, the car “jumped up on the center divide,” on to the grass and then went “into other lanes.” Then, defendant’s car hit Miller’s car twice from behind. After they all pulled to the side of the road and Miller was talking to defendant, Miller noted that defendant’s car “reeked” of alcohol, defendant’s eyes were “glazed over,” she was stumbling, could barely stand up, and was leaning on her car. Miller thought that defendant was “heavily intoxicated.” Similarly, Kelly described defendant as stumbling, unable to balance, and needing to hold herself up by leaning on her car. Defendant then proceeded to leave the scene of the accident (after she saw Kelly calling the police) by repeatedly ramming her car into Kelly’s and Miller’s cars until she could drive away.
Despite the overwhelming evidence against her, defendant asked the jury to believe an improbable defense that although she had only one hour of sleep, had diarrhea, felt dehydrated, and was sick to her stomach, she consumed two-thirds of a bottle of vodka and smoked marijuana right after she drove home.
Given the state of the properly-admitted evidence, we find the error in admitting the prior DUI evidence and giving the related instruction harmless.
IV
There Was Sufficient Evidence To Support Defendant’s Conviction For Hit And Run Causing Property Damage
One of the elements of hit and run causing property damage is the defendant knew that damage resulted from the accident in which she was involved. (People v. Carbajal (1995) 10 Cal.4th 1114, 1123, fn. 10.) Here, defendant contends there was insufficient evidence to support her conviction because there was “no evidence... that [she] knew there was damage to any car.”
Viewing the evidence in the light most favorable to the judgment as we must do on a challenge to the sufficiency of evidence (People v. Bolden (2002) 29 Cal.4th 515, 553), defendant’s argument fails. According to Miller, after the three cars pulled to the side of the road, Miller told defendant she had hit her car. When defendant denied it, Miller told her, “‘Well, marks on my bumper are indicating differently.’” Defendant said, “‘Okay.’” Thereafter, when defendant hit both Miller’s and Kelly’s cars when she was attempting to flee, Miller again testified she had “scuff marks” all along the left side of her bumper. This evidence was sufficient to show that defendant knew she caused damage to Miller’s car when she fled the scene of the accident.
Defendant asserts that “marks” do not amount to damage, but she fails to provide any authority for that proposition.
V.
The Court Did Not Err In Omitting One Instruction From The Written Jury Instructions
The court orally instructed the jury on the elements of the allegation that defendant’s blood-alcohol level was.20 percent or higher at the time she was driving. The court omitted this instruction from the written set that the jury was given. Defendant contends this was “reversible federal constitutional error.” She is wrong.
In the body of her argument, defendant also claims this was error under state law.
“Although providing written instructions is ‘generally beneficial and to be encouraged,’ defendant has no federal or state constitutional right to instructions in writing [citation], and the statutory right depends on an express request. [Citation.]” (People v. Ochoa (2001) 26 Cal.4th 398, 447.) As defendant had no federal right to the written instruction and has not shown us where in the record she expressly requested the omitted written instruction, defendant’s claim fails.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J., BUTZ, J.
In any event, our conclusion of no prejudice would be the same even under the more stringent test for federal constitutional error. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710] [error must be shown to be harmless beyond a reasonable doubt].)