P. v. Taylor-Ameneyro
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NOT TO BE PUBLISHED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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD
APPELLATE DISTRICT
(El Dorado)
THE
PEOPLE,
Plaintiff and
Respondent,
v.
AMY
DIANNE TAYLOR-AMENEYRO,
Defendant and
Appellant.
C069141
(Super. Ct. No.
P08CRF0429)
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 ADDIN BA xc <@cs> xl 57 s
EAOIYO000001 xhfl Rep l "Chapman
v. California (1967)
xl 7 s EAOIYO000001 xpl 1 Chapman). Therefore we shall affirm, although we must
remand the matter for correction of the abstract of judgment.
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; ADDIN BA xc <@st> xl 30 s
EAOIYO000002 xpl 1 l "Pen. Code, § 182, subd. (a)(1)" Pen.
Code, § 182, subd. (a)(1)),
methamphetamine (count 2; ADDIN BA xc <@st> xl 38 s
EAOIYO000003 xpl 1 l "Health & Saf. Code, § 11379, subd. (a)" Health
& Saf. Code, § 11379, subd. (a)), possession of methamphetamine for
sale (count 3; ADDIN BA xc <@st> xl 27 s
EAOIYO000004 xpl 1 l "Health & Saf. Code, § 11378" Health
& Saf. Code, § 11378), and simple possession of methamphetamine (count
4; ADDIN BA xc <@st> xl
38 s EAOIYO000005 xpl 1 l "Health & Saf. Code, § 11377, subd.
(a)" 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.
name="_ftnref2" title="">[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 ADDIN BA xc <@osdv> xl 11 s
EAOIYO000025 l "section 654" 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.
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.
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 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
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 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 had come from the Camaro, was too big for her.
pocket. Finding a bag in the pocket, she
thought it was hers.
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
instruct the jury with the following version of ADDIN BA xc <@trt> xl 16 s
EAOIYO000006 l "CALCRIM No. 301:" 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.â€
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.â€
The court gave the instruction as
proposed. The court did not instruct on
accomplices.
DISCUSSION
I
give ADDIN BA xc <@$trt>
xl 15 s EAOIYO000007 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 ADDIN BA xc <@con> xl 26 s
EAOIYO000011 l "United States Constitution" United
States Constitution. Alternatively,
defendant contends that even if not reversible per se, the error cannot be
harmless under ADDIN BA xc <@$cs> xl 7 s
EAOIYO000001
to object below did not forfeit the issue because the instruction was a
misstatement of law that affected her substantial rights. ( ADDIN BA xc <@osdv>
xl 6 s EAOIYO000026 xpl 1 l "§ 1259" §
1259.)
The Attorney General replies that
the contention is forfeited because defendant failed to object to the
instruction, and that any error was harmless.
We agree with defendant that the
trial court erred and the contention is not forfeited, but agree with the
Attorney General that the error is harmless.
The Contention Is Not Forfeited Because the Instruction Was
Erroneous and Affected Defendant’s Substantial Rights
defendant, . . . [t]he appellate court may . . . review any instruction given,
refused or modified, even though no objection was made thereto in the lower
court, if the substantial rights of the defendant were affected thereby.†( ADDIN BA xc
<@$osdv> xl 6 s EAOIYO000026 xpl 1 § 1259.)
The Attorney General asserts that ADDIN BA xc <@$osdv> xl 12 s
EAOIYO000026 section 1259 does not apply
because the instruction given was correct in law and responsive to the
evidence, and defendant did not request modification or clarification. (See ADDIN BA xc <@cs> xl 45 s
EAOIYO000012 xhfl Rep xpl 1 l "People
v. Guerra (2006)
1134; ADDIN BA xc <@cs> xl
41 s EAOIYO000013 xhfl Rep xpl 1 l "People v. Hart (1999)
622; ADDIN BA xc <@cs> xl
40 s EAOIYO000014 xhfl Rep xpl 1 l "People v. Hardy (1992)
assessment of the instruction.
“[E]ven in the absence of a request,
a trial court must instruct on general principles of law that are commonly or
closely and openly connected to the facts before the court and that are
necessary for the jury’s understanding of the case. [Citations.]â€
( ADDIN BA xc <@cs> xl 45 s EAOIYO000015 xhfl Rep xpl 1 l
"People v. Montoya (1994)
Cal.4th 1027, 1047" People v. Montoya (1994) 7 Cal.4th 1027, 1047; cf. ADDIN BA xc <@osdv> xl 24 s
EAOIYO000027 xpl 1 l "§§ 1093, subd. (f), 1127" §§
1093, subd. (f), 1127.) The
instruction at issue violated this rule.
Although the court concluded that
defendant’s testimony needed corroboration because she was the codefendant’s
accomplice (cf. ADDIN BA xc <@$st> xl 6 s
EAOIYO000009 xpl 1 §
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.
The Attorney General relies on ADDIN BA xc <@cs> xl 38 s
EAOIYO000016 xhfl Rep l "People v.
Turner (1990)
( ADDIN BA xc <@$cs> xl 6 s EAOIYO000016 xpl 1 Turner) to justify the instruction in our case. But the instruction discussed in ADDIN BA xc <@$cs> xl 6 s
EAOIYO000016 Turner, unlike that given here, did not mysteriously single out the
testimony of a particular witness for distrust.
In ADDIN BA xc <@$cs> xl 6 s
EAOIYO000016 Turner, the trial court instructed the jury with ADDIN BA xc <@trt> xl 15 s
EAOIYO000017 l "CALJIC No. 2.27" CALJIC No.
2.27, the predecessor to ADDIN BA xc <@$trt> xl 15 s
EAOIYO000007 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.’ †( ADDIN BA xc <@$cs>
xl 42 s EAOIYO000016 xhfl Rep xpl 1 Turner, supra, 50 Cal.3d at p. 696, fn. 12.) The defendant, who testified at trial, argued
that the court erred by not adding to the second sentence, after the words “any
fact,†the phrase “ ‘required to be
established by the prosecution’ †because applying the cautionary
principle to a defense witness undercut the prosecution’s burden of proof. ( ADDIN BA xc <@$id>
xl 18 s ID xhfl Rep xpl 1 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.†( ADDIN BA xc <@$id>
xl 13 s ID xhfl Rep xpl 1 Id. at p. 697.)
Thus, the ADDIN BA xc <@$cs> xl 6 s
EAOIYO000016 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
the error is not reversible per se. We
also conclude the error is harmless under the ADDIN BA xc <@$cs> xl 7 s
EAOIYO000001
defendant’s testimony was corroborated, and (2) that which was not, concerning
the circumstances of her detention and arrest, presented a credibility contest
with the arresting officer which defendant could not have won even absent the
erroneous instruction. Thus, we find beyond
a reasonable doubt that the error did not contribute to the jury’s verdict on
counts 2 and 4.
The Error was not Reversible Per Se
instruction unconstitutionally shifted the burden to the defense and undercut
the jury’s duty to find all elements of the charges against her true beyond a
reasonable doubt. But the jury was
properly instructed on the People’s burden of proof and on the elements of all
charges against her, and we presume the jury understood and applied those instructions. ( ADDIN BA xc <@cs>
xl 41 s EAOIYO000018 xhfl Rep xpl 1 l "People v. Holt (1997)
662.) Defendant cites nothing in the
record that rebuts this presumption.
Furthermore, defendant cites no
authority on point to support her assertion, and we have found none. She relies on ADDIN BA xc <@cs> xl 56 s
EAOIYO000019 xhfl Rep l "Sandstrom
v. Montana (1979)
[61 L.Ed.2d 39] ( ADDIN BA xc <@$cs>
xl 9 s EAOIYO000019 xpl 1 Sandstrom)
and ADDIN BA xc <@cs> xl
36 s EAOIYO000020 xhfl Rep l "People
v. Roder (1983)
( ADDIN BA xc <@$cs> xl 5 s EAOIYO000020 xpl 1 Roder), but those cases are distinguishable. In ADDIN BA xc <@$cs> xl 9 s
EAOIYO000019 Sandstrom and ADDIN BA xc <@$cs> xl 5 s
EAOIYO000020 Roder, the juries were instructed to presume conclusively, absent
defense rebuttal, that an element of the offense was true, thus improperly
shifting the burden on that point to the defendant and relieving the
prosecution of its burden to prove all elements of the offense true beyond a
reasonable doubt. ( ADDIN BA xc <@$cs>
xl 67 s EAOIYO000019 xhfl Rep xpl 1
521-524 [61 L.Ed.2d at pp. 49-51]; ADDIN BA xc <@$cs> xl 38 s
EAOIYO000020 xhfl Rep xpl 1 Roder, supra, 33 Cal.3d at pp. 496-504.) The instruction given here did not convey any
such mandatory presumption.
Defendant also asserts that the
instruction deprived her of her constitutional right to present a defense. But the only supporting authority she cites
is ADDIN BA xc <@cs> xl
45 s EAOIYO000021 xhfl Rep l "People
v. Schroeder (1991)
Cal.App.3d 784 ( ADDIN BA xc <@$cs>
xl 9 s EAOIYO000021 xpl 1 Schroeder),
where the trial court improperly pressured and intimidated a material witness
for the defense into abandoning her intent to testify. ( ADDIN BA xc <@$id>
xl 18 s ID xhfl Rep xpl 1 Id.
at pp. 788-794.) Here, defendant was
allowed to testify in full and to present other witnesses on her behalf. ADDIN BA xc <@$cs> xl 9 s
EAOIYO000021 Schroeder is therefore inapposite.
Defendant has shown no violation of
her constitutional rights requiring reversal per se.
The Error was Harmless
EAOIYO000001
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, 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
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 ADDIN BA xc <@st> xl 55 s
EAOIYO000022 l "Health and Safety Code section 11372.5, subdivision
(a)" Health
and Safety Code section 11372.5, subdivision (a) (authorizing a $50 fee for
each conviction of certain enumerated drug offenses), and a $540 drug education
fee pursuant to ADDIN BA xc <@st> xl 55 s
EAOIYO000023 l "Health and Safety Code section 11372.7, subdivision
(a)" 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.â€
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
affirmed. The matter is remanded to the
trial court with directions to prepare a corrected abstract of judgment as set
out in ADDIN BA xc <@osdv>
xl 7 s EAOIYO000028 l "part II" 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.
name="_ftn1" title="">[1] Further undesignated
section references are to the ADDIN BA xc <@ost> xl 10 s
EAOIYO000024 l "Penal Code" Penal Code.
name="_ftn2" title="">[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.
