Filed 5/2/13 P. v. Taylor-Ameneyro CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                      (El Dorado)



THE PEOPLE,                                                                                  C069141

                   Plaintiff and Respondent,                                   (Super. Ct. No. P08CRF0429)

         v.

AMY DIANNE TAYLOR-AMENEYRO,

                   Defendant and Appellant.




         In this case the trial court instructed the jury that the testimony of a single witness
can prove any fact -- except for that of defendant Amy Dianne Taylor-Ameneyro, which
required supporting evidence. The court did not explain why the jury should treat
defendant’s testimony differently from that of any other witness. Defendant contends
this instruction was reversible error. We agree that it was error, but find it harmless
under the standard of Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705]
(Chapman). Therefore we shall affirm, although we must remand the matter for
correction of the abstract of judgment.




                                                             1
                  FACTUAL AND PROCEDURAL BACKGROUND
       Defendant and codefendant Jefferey Alan Matthews were jointly charged with
conspiracy to transport, possess for sale, and possess methamphetamine (count 1; Pen.
Code, § 182, subd. (a)(1)),1 transportation of methamphetamine (count 2; Health & Saf.
Code, § 11379, subd. (a)), possession of methamphetamine for sale (count 3; Health &
Saf. Code, § 11378), and simple possession of methamphetamine (count 4; Health & Saf.
Code, § 11377, subd. (a)).
       In the first trial, defendant testified and put on other witnesses; codefendant put on
no evidence. The jury convicted defendant on counts 2 and 4 (transportation and simple
possession), but hung on counts 1 and 3 (conspiracy and possession for sale), and hung
on all counts as to codefendant.
       In the second trial, which encompassed all counts not decided at the first trial,
neither defendant testified nor put on evidence. The jury convicted both defendants on
all counts.2
       The trial court sentenced defendant to a state prison term of two years on count 2,
with a two-year sentence on count 1 to be served concurrently, and the sentence on count
4 to be stayed under section 654.
                                       Trial Evidence
       As the instruction at issue was given only in the first trial, we set out only the
evidence presented in that trial.




1      Further undesignated section references are to the Penal Code.
2       Because the jury was improperly asked to make, and did make, a finding as to
codefendant’s prior conviction (on which no evidence had been presented), the trial court
granted defendant’s motion for new trial on counts 1 and 3. Thereafter, however,
defendant entered a no contest plea to count 1, and count 3 was dismissed in the interest
of justice.

                                              2
                                     Prosecution Case
        At approximately 1:15 a.m. on September 25, 2008 (further dates are in 2008
unless otherwise stated), El Dorado County Sheriff’s Deputy James Peterson saw three
cars traveling on Missouri Flat Road, appearing to be too close together. Running the
license plate of the rear car, a Thunderbird, he learned that the car’s registration had been
suspended.
        Deputy Peterson contacted defendant, the driver of the Thunderbird, and
codefendant, the driver of the second car (a Camaro), at a gas station.3 They eventually
admitted they were traveling together.
        Speaking to defendant first, Deputy Peterson found that she seemed extremely
nervous. She kept touching a bulge in the pocket of her small, tight-fitting sweatshirt
(which she had been wearing from the start of the encounter). Deputy Peterson asked
defendant what was in the pocket; she replied “feminine products.” He ordered her to
remove the object and put it on his patrol car. She took out a zippered cloth pouch.
When she put it on the patrol car, something inside it magnetized it to the car.
        Deputy Peterson suspected from defendant’s mannerisms and behavior that she
was under the influence of a controlled substance, most likely methamphetamine.
Administering field sobriety tests, he confirmed his suspicions to his own satisfaction.
Defendant denied taking methamphetamine and said she had recently taken prescription
medication. As she grabbed her purse, Deputy Peterson saw a marijuana pipe in the car
door.
        Searching the pouch defendant had placed on his patrol car, Deputy Peterson
found three baggies which turned out to contain 45.3 grams of methamphetamine in total.
The magnet in the pouch suggested to him that there might be a hide-a-key under one of




3       The lead car, driven by defense witness Marja Glasser, was not there.

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the cars. Under defendant’s car he found marks on the inside of the wheel wells. Under
codefendant’s Camaro, Deputy Peterson found a large baggie containing a magnet and 18
small empty baggies, attached to the inside of a wheel well. He then searched
codefendant’s wallet and found what appeared to be pay-owe sheets. Defendant had
$240 in her wallet and $265 in her purse; codefendant had $45 in his wallet. An expert
witness opined, based on all the circumstances, that defendant and codefendant possessed
methamphetamine for sale.
       When Deputy Peterson detained defendant and codefendant in his patrol car, he
secretly placed a digital recorder inside with them. According to a transcript of their
conversation, defendant said “it” had been tucked under the wheel; codefendant said he
wished “it” had been under the hood. After they spotted the recorder’s microphone,
defendant said “it” was not hers; she also said her sweatshirt was borrowed. Codefendant
corroborated the latter statement in a subsequent conversation with Deputy Peterson.
                                       Defense Case
       Elizabeth Neubacher, a friend of defendant, testified that around three weeks
before the events described above, she visited defendant’s house in Sacramento with a
friend who wanted to buy a Camaro owned by defendant. They found defendant and
Aaron Gillis jumpstarting the Camaro with jumper cables. Gillis and Richard Lenning
drove off with the car because they intended to buy it.
       Marja Glasser, a friend of defendant who was also the roommate of Gillis’s
girlfriend, testified that the Camaro was dropped off at her residence in El Dorado
County in early September 2008. She knew Gillis and Lenning; they were big men,
much larger than defendant. She never saw either man in possession of the Camaro.
       According to Glasser, defendant’s car sat in Glasser’s driveway until the night of
September 24, when defendant and codefendant came to pick it up. Defendant looked
cold; she was also in great pain and disoriented from a migraine headache, which she



                                             4
suffered from chronically. So far as Glasser could recall, defendant did not have a jacket
or sweatshirt on.
       Glasser saw defendant and codefendant trying to jumpstart the Camaro. While
codefendant was at the other end of the driveway, defendant asked for directions to a gas
station, but the directions were complicated and defendant could not take them in.
Glasser proposed to drive to the nearest station, with defendant following her in the
Thunderbird and codefendant in the Camaro; they agreed to this plan.
       Defendant testified as follows:
       She let Gillis and Lenning drive her Camaro away because they wanted to buy it.
But after they failed to get back to her about the car, and her boyfriend (codefendant)
expressed interest in buying it, she decided to sell it to him instead.
       On the evening of September 24, defendant and codefendant drove to Glasser’s
house in defendant’s Thunderbird to get the Camaro; codefendant sat in the front
passenger seat, which contained no other items. Defendant was wearing jeans and a
T-shirt.
       Defendant had a migraine headache, for which she took prescription medication;
she had also smoked marijuana (recommended orally, but not in writing) earlier in the
day. Another way she treated her migraines was to use a small vibrator, which she kept
along with feminine products in a black pouch in her purse.
       When defendant and codefendant got to Glasser’s house, codefendant could not
start the Camaro. Defendant and codefendant jumpstarted it; codefendant cleaned it out
and moved its contents into defendant’s Thunderbird. After he finished, Glasser led
defendant and codefendant down to a gas station, then left.
       When the officer detained defendant and codefendant, defendant grabbed a
sweatshirt from the passenger seat because it was cold outside. The sweatshirt, which




                                              5
had come from the Camaro, was too big for her.4 She did not know it had anything in the
pocket. Finding a bag in the pocket, she thought it was hers.5 Sick and confused from
her migraine, she gave the officer that bag, but denied him permission to search it
because she feared being embarrassed if the officer saw the vibrator and the other items
she thought he would find. She had no idea the bag contained methamphetamine. She
had not used methamphetamine that day or the previous day.
       After the officer spotted the marijuana pipe in defendant’s car, she feared she
would be arrested for that. When she and codefendant spoke in the officer’s patrol car,
the item codefendant said he wished had been under the hood was the marijuana pipe.
                                     The Instruction
       The trial court proposed to instruct the jury with the following version of
CALCRIM No. 301: “Except for the testimony of Amy Taylor-Ameneyro, which
requires supporting evidence, the testimony of only one witness can prove any fact.
Before you conclude that the testimony of one witness proves a fact, you should carefully
review all of the evidence.”6


4     The sweatshirt was not in evidence at trial. Defense counsel told the trial court in
camera that it had apparently been disposed of along with the car’s other contents.
5     Defendant also testified, however, that the bag was not in the pocket of the
sweatshirt, but was hanging from its front or its zipper.
6       CALCRIM No. 301 (“Single Witness’s Testimony”) reads as follows: “[Except
for the testimony of ______ <insert witness’s name>, which requires supporting evidence
[if you decide (he/she) is an accomplice],] (the/The) testimony of only one witness can
prove any fact. Before you conclude that the testimony of one witness proves a fact, you
should carefully review all the evidence.” (CALCRIM No. 301 (2012) p. 81.)

       The Bench Notes state: “The following constitutional provisions and statutes
require evidence that corroborates a witness’s testimony: Cal. Const., art. I, § 18
[treason]; Pen. Code, §§ 1111 [accomplice testimony]; 653f [solicitation of felony]; 118
[perjury]; 1108 [abortion and seduction of minor]; 532 [obtaining property by false
pretenses]. [¶] Give the bracketed phrase ‘if you decide (he/she) is an accomplice’ and

                                             6
       Defense counsel asked the court whether this instruction was “based on the
coconspirator theory where the coconspirator statement has to be corroborated . . . .” The
court replied: “Accomplice. Testimony of an accomplice or other witness requires
corroboration. So that’s why that’s included in this. Accomplice testimony requires
corroboration. Okay?” Counsel said: “Okay.”
       The court gave the instruction as proposed. The court did not instruct on
accomplices.
                                      DISCUSSION
                                              I
       Defendant contends that to give CALCRIM No. 301 in this form was error
reversible per se because the instruction impermissibly shifted the burden of proof to her,
lightened the prosecution’s burden of proof, and denied her the opportunity to present a
defense, in violation of her rights under the Fifth, Sixth, and Fourteenth Amendments to
the United States Constitution. Alternatively, defendant contends that even if not
reversible per se, the error cannot be harmless under Chapman. Lastly, defendant
contends that her failure to object below did not forfeit the issue because the instruction
was a misstatement of law that affected her substantial rights. (§ 1259.)
       The Attorney General replies that the contention is forfeited because defendant
failed to object to the instruction, and that any error was harmless.
       We agree with defendant that the trial court erred and the contention is not
forfeited, but agree with the Attorney General that the error is harmless.




CALCRIM No. 334 if the jury must determine whether a witness is an accomplice.”
(Bench Note to CALCRIM No. 301 (2012) p. 81.)

                                              7
    The Contention Is Not Forfeited Because the Instruction Was Erroneous and
                            Affected Defendant’s Substantial Rights
       “Upon an appeal taken by the defendant, . . . [t]he appellate court may . . . review
any instruction given, refused or modified, even though no objection was made thereto in
the lower court, if the substantial rights of the defendant were affected thereby.”
(§ 1259.)
       The Attorney General asserts that section 1259 does not apply because the
instruction given was correct in law and responsive to the evidence, and defendant did
not request modification or clarification. (See People v. Guerra (2006) 37 Cal.4th 1067,
1134; People v. Hart (1999) 20 Cal.4th 546, 622; People v. Hardy (1992) 2 Cal.4th 86,
153.) We disagree with the Attorney General’s assessment of the instruction.
       “[E]ven in the absence of a request, a trial court must instruct on general principles
of law that are commonly or closely and openly connected to the facts before the court
and that are necessary for the jury’s understanding of the case. [Citations.]” (People v.
Montoya (1994) 7 Cal.4th 1027, 1047; cf. §§ 1093, subd. (f), 1127.) The instruction at
issue violated this rule.
       Although the court concluded that defendant’s testimony needed corroboration
because she was the codefendant’s accomplice (cf. § 1111 [accomplice is one who is
liable to prosecution for the identical offense charged against the defendant]), it did not
instruct on that principle of law. Instead, the court told the jury it should distrust
defendant’s testimony and hers alone, without explaining why. This was clear error.7




7      The wording of CALCRIM No. 301 points to a further problem. As noted, where
the court gives the instruction because the witness may be an accomplice, it must add the
language “if you decide (he/she) is an accomplice.” But here the court could not so
instruct because the jury was not asked to decide whether defendant was codefendant’s
accomplice. Instead, the court finessed the problem by omitting both the accomplice
language and the underlying legal principle.

                                               8
       The Attorney General relies on People v. Turner (1990) 50 Cal.3d 668 (Turner) to
justify the instruction in our case. But the instruction discussed in Turner, unlike that
given here, did not mysteriously single out the testimony of a particular witness for
distrust.
       In Turner, the trial court instructed the jury with CALJIC No. 2.27, the
predecessor to CALCRIM No. 301, as follows: “ ‘Testimony which you believe given by
one witness is sufficient for the proof of any fact. However, before finding any fact . . .
to be proven solely by the testimony of such a single witness, you should carefully review
all the testimony upon which the proof of such fact depends.’ ” (Turner, supra, 50 Cal.3d
at p. 696, fn. 12.) The defendant, who testified at trial, argued that the court erred by not
adding to the second sentence, after the words “any fact,” the phrase “ ‘required to be
established by the prosecution’ ” because applying the cautionary principle to a defense
witness undercut the prosecution’s burden of proof. (Id. at pp. 696-697, italics added.)
The Supreme Court disagreed: “[A]n accused is not entitled to a false and unique aura of
veracity when his uncorroborated testimony is offered as evidence raising a reasonable
doubt that he is guilty as charged. [Citation.] When the accused offers his
uncorroborated testimony for this purpose, the jury should weigh such evidence with the
same caution it accords similarly uncorroborated testimony by a prosecution witness.”
(Id. at p. 697.)8




8       The high court acknowledged that “the instruction’s wording could [have] be[en]
altered to have a more neutral effect as between prosecution and defense” and
“encourage[d] further effort toward the development of an improved instruction.”
(Turner, supra, 50 Cal.3d at p. 697, fn. omitted.) On the facts of the case, however, the
court concluded the jury could not have been misled about the People’s burden of proof.
(Ibid.)

                                              9
       Thus, the Turner instruction merely told the jury, abstractly and neutrally, to treat
the testimony of all witnesses with equal caution. The fact that that instruction was
upheld as legally correct does nothing to salvage the instruction in our case.
       Because the jury was not told of any legal principle that would justify treating
defendant’s testimony alone as insufficient to prove any fact, the jury could have
concluded it should do so merely because she had been charged with crimes. To the
extent this plausible understanding of the instruction might have improperly biased the
jury against defendant, the instruction affected her substantial rights. Therefore her
failure to object to the instruction does not forfeit her claim of error.
                 The Error was Harmless Beyond a Reasonable Doubt
       We conclude, however, that the error is not reversible per se. We also conclude
the error is harmless under the Chapman standard because (1) most of defendant’s
testimony was corroborated, and (2) that which was not, concerning the circumstances of
her detention and arrest, presented a credibility contest with the arresting officer which
defendant could not have won even absent the erroneous instruction. Thus, we find
beyond a reasonable doubt that the error did not contribute to the jury’s verdict on counts
2 and 4.
                            The Error was not Reversible Per Se
       Defendant asserts that the instruction unconstitutionally shifted the burden to the
defense and undercut the jury’s duty to find all elements of the charges against her true
beyond a reasonable doubt. But the jury was properly instructed on the People’s burden
of proof and on the elements of all charges against her, and we presume the jury
understood and applied those instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.)
Defendant cites nothing in the record that rebuts this presumption.
       Furthermore, defendant cites no authority on point to support her assertion, and we
have found none. She relies on Sandstrom v. Montana (1979) 442 U.S. 510 [61 L.Ed.2d
39] (Sandstrom) and People v. Roder (1983) 33 Cal.3d 491 (Roder), but those cases are

                                              10
distinguishable. In Sandstrom and Roder, the juries were instructed to presume
conclusively, absent defense rebuttal, that an element of the offense was true, thus
improperly shifting the burden on that point to the defendant and relieving the
prosecution of its burden to prove all elements of the offense true beyond a reasonable
doubt. (Sandstrom, supra, 442 U.S. at pp. 521-524 [61 L.Ed.2d at pp. 49-51]; Roder,
supra, 33 Cal.3d at pp. 496-504.) The instruction given here did not convey any such
mandatory presumption.
          Defendant also asserts that the instruction deprived her of her constitutional right
to present a defense. But the only supporting authority she cites is People v. Schroeder
(1991) 227 Cal.App.3d 784 (Schroeder), where the trial court improperly pressured and
intimidated a material witness for the defense into abandoning her intent to testify. (Id. at
pp. 788-794.) Here, defendant was allowed to testify in full and to present other
witnesses on her behalf. Schroeder is therefore inapposite.
          Defendant has shown no violation of her constitutional rights requiring reversal
per se.
                                    The Error was Harmless
          Even assuming the Chapman standard of harmless error applies, defendant cannot
show grounds for reversal.
          First, as shown in our statement of facts, most of defendant’s testimony was
corroborated. Her first witness, Elizabeth Neubacher, testified that defendant planned to
sell her Camaro to Gillis and Lenning, who drove it away. Her second witness, Marja
Glasser, testified: (1) Gillis and Lenning left the car on her property in El Dorado County;
(2) both men were much larger than defendant; (2) defendant and codefendant came to
Glasser’s house on September 24 to reclaim the car; (3) defendant was not wearing a
jacket or sweatshirt and looked cold; (4) defendant was in pain and confusion due to a
migraine; (5) Glasser proposed that she lead defendant and codefendant to a gas station
because defendant was unable to grasp Glasser’s directions. Collectively, this evidence,

                                                11
directly or by reasonable inference, supported the essentials of defendant’s story,
including her most important claim: that the sweatshirt and the pouch which she
produced from it were not hers, but came from the Camaro (left there by Gillis or
Lenning, whose sweatshirts would have been too big for her) and were transferred to
defendant’s passenger seat by codefendant when he moved the Camaro’s contents into
her car.
       Second, the parts of defendant’s story which were not corroborated pitted her
testimony against that of the officer’s, posing a credibility contest for the jury in which
defendant would have been extremely unlikely to prevail even had the objectionable
instruction not been given. Her claim that she did not know there was methamphetamine
in the pouch she gave Deputy Peterson was controverted by Peterson’s testimony that she
continuously touched the bulge in the sweatshirt which turned out to hold the pouch
(suggesting guilty knowledge), the magnets in the pouch and the large baggie found in
codefendant’s car (placed there to facilitate transporting contraband in concealed
locations), the marks found on the wheel wells of defendant’s car, and the reasonable
inferences to be drawn from the recorded conversation between defendant and
codefendant about where “it” had been or should have been stored. Given all this
evidence, together with defendant’s obvious motive for fabrication and the patently
contrived character of her entire story, we see no possibility that the jury would have
resolved the credibility contest in defendant’s favor even absent the instruction at issue.
       For all the above reasons, we conclude that defendant has not shown prejudice
from the instruction.
                                              II
       Defendant contends, and the Attorney General agrees, that the abstract of
judgment requires correction as to certain fines and fees.
       The trial court orally imposed a $180 drug laboratory fee pursuant to Health and
Safety Code section 11372.5, subdivision (a) (authorizing a $50 fee for each conviction

                                             12
of certain enumerated drug offenses), and a $540 drug education fee pursuant to Health
and Safety Code section 11372.7, subdivision (a) (authorizing a $150 fee for each such
conviction). The abstract of judgment, however, states that the drug laboratory fee is
$190 and the drug education fee is $570; it also miscites the statutes as “11372.5(a) PC”
and “11372.7(a) PC.”
       Because no basis in the record appears for the higher amounts stated in the abstract
of judgment, we remand the matter for the preparation of a corrected abstract of judgment
that reflects the amounts of the fines stated by the trial court and sets them out under the
correct statutes.
                                       DISPOSITION
       The judgment is affirmed. The matter is remanded to the trial court with
directions to prepare a corrected abstract of judgment as set out in part II of the
Discussion and to forward a certified copy of the corrected abstract to the Department of
Corrections and Rehabilitation.

                                              BLEASE                    , J.


We concur:


          RAYE                      , P. J.


          HULL                      , J.




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