(Super. Ct. No. P08CRF0429)
The opinion of the court was delivered by: Blease , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and co-defendant Jefferey Alan Matthews were jointly charged with conspiracy to transport, possess for sale, and possess methamphetamine (count 1; Pen. Code, § 182, subd. (a)(1)),*fn1 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; co-defendant 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 co-defendant.
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.*fn2
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.
As the instruction at issue was given only in the first trial, we set out only the evidence presented in that trial.
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 co-defendant, the driver of the second car (a Camaro), at a gas station.*fn3 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 the cars. Under defendant's car he found marks on the inside of the wheel wells. Under co-defendant'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 co-defendant's wallet and found what appeared to be pay-owe sheets. Defendant had $240 in her wallet and $265 in her purse; co-defendant had $45 in his wallet. An expert witness opined, based on all the circumstances, that defendant and co-defendant possessed methamphetamine for sale.
When Deputy Peterson detained defendant and co-defendant 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; co-defendant 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 ...