P. v. Henderson CA1/3 filed 8/20/26

Filed 8/20/26 P. v. Henderson CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,
v.

ANTHONY FERRANTE HENDERSON,
Defendant and Appellant.

A167694, A168303

(Contra Costa County
Super. Ct.No. 042200199)
A jury convicted Anthony Ferrante Henderson of various offenses,including attempted murder and firearm possession, resulting in an aggregate sentence of 50 years to life. On appeal, he contendswe must reverse his convictions due to evidentiary errors. He alsoarguesthe trial court erred by imposing two concurrent sentences for firearm convictions based on the same, single act of possessing a firearm; the Attorney General concedes this point. We remand for resentencing but otherwise affirm.
BACKGROUND
Late in the evening on April 24, 2022, a man was driving his truck home. A city surveillance camera recorded Lewis Parkerdriving a black sedan andinvolved in a road rage incident with the man in the truck. Afterward, the man pulled to the side of the road across from a church and activated his hazard lights. Approximately 90 seconds later, Parker arrived with a light-colored four-door car, which slowed down near the man’s truck. Two people exited the light-colored car and firedover 20 shots at the man and his truck—he was shot six times, including twice near his heart, twice in his stomach, and once in his right arm. Immediately after the shooting, the man accelerated out of the area, passing the shooter’s vehicle. Officers discovered the man, who was conscious but not coherent, a few miles away. They recovered two different caliber bullet casings —.40 and .223 — from the parking lot near the church. There were also 10 bullet holes in the exterior of a nearby house.
Six days after the shooting, officers stopped a gold Honda sedanwith an inoperable brake light, improperlytinted windows, and expired registration. Henderson was driving withthe car’s registered owner, Consuela Lewis, and othersin the car. During a search of the car, officers discovered an unregistered semiautomatic Glock handgun loaded with .40-caliber roundstucked inside the felt lining just above the driver’s seat.The officer who discovered the gun recalled viewing an Instagram video associated with Henderson that appeared to contain the same gun. The officer regularly monitored Instagram accounts, including Henderson’s,sinceindividualssometimes post content related to criminal activity. Lewis immediately stated the gun belonged to her. Officers nonetheless arrested Henderson.
Henderson’sDNA was later found on the gun along with three other unidentified contributors. A firearms examiner concluded that the gun fired some of the casings recovered from the scene of the shooting. And cell phone records linked Henderson’s cell phone location to Parker’s associate, Michael Holbert, Jr., who Parker called just prior to the shooting and who was subsequently captured on surveillance camera footage leaving his home locateda little over one mile from the scene.
The district attorney chargedHenderson with attempted murder (Pen. Code, §§ 187, subd. (a), 664, count 1, undesignated statutory references are to this code); conspiracy to commit murder (§ 182, subd. (a)(1), count 2); assault with a semiautomatic firearm (§ 245, subd. (b), count 3); shooting at an occupied motor vehicle (§ 246, count 4); shooting at an inhabited dwelling (§246, count 5); possession of a firearm by a felon (§29800, subd. (a)(1), count 6); carrying a loaded firearm with a prior conviction (§ 25850, subd. (a), count 7); and carrying a concealed firearm in a vehicle with a prior conviction (§25400, subds. (a)(1), (c)(1), count 8). The complaint also alleged Henderson personally and intentionally discharged a firearm causing great bodily injury for counts 1 and 4 (§12022.53, subd. (d)), and that he personally used a firearm for count 3 (§12022.5, subd. (a)).
About one month after Henderson’s arrest, the trial court temporarily released him on a four-hour funeral pass. He did not return. Officers located him six days later with Lewis. Theyarrested himand seized Lewis’s phone, which contained messages exchanged with an individual named Maddie. Some of the messages were directed to Henderson, including a screenshot of an Instagram post claiming he was a confidential informant. Henderson responded, “everybody in jail think ima [sic] rat”— a snitch — and notedsomeone would stab him if he returned. When asked why people believed he was a snitch, Henderson said, “What they saying I’m telling on is sun [sic] I did”— “A murder[¶] [t]hat I did.” “It was a driver n a shooter I was the shooter they got the driver cause his car and they saying I’m telling how I’m telling if I’m the only shooter what I’m do tell on myself.” He said this murder occurred two weeks before he was arrested, “Two weeks for I went down.” The driver identified in the message was Parker, who officers arrested.
Before trial, Henderson moved to admit Lewis’s statementsclaiming ownership of the gun as a statement against her penal interest. He also sought to exclude the messages to Maddie because they were not admissions regarding the charged offenses and were thus inadmissible character evidence.The trial court ultimately admitted the text messages but excluded Lewis’s statements.
A jury found Henderson guilty of all charges and enhancements. The trial court sentenced him to 50 years to life in prison, including the middle term of four years for being a felon in possession of a firearm (count 6), and a concurrent sentence for both carrying a loaded firearm while having a prior conviction (count 7) and having a concealed firearm in a vehicle (count 8).
DISCUSSION
I.
Henderson contends Lewis’s statements claiming ownership of the gun werestatements against her penal interestand the trial court abused its discretion by excluding them. We disagree.
Hearsay — “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated”— is inadmissible unless it qualifies under an exception, such as a statement made against the declarant’s penal interests. (Evid. Code, §§ 1200, subds. (a)–(b), 1230.) To qualify under this exception, the statement when made must be “so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected” her to“the risk of civil or criminal liability,” that a reasonable person in that position would not have made the statement unless she believed it to be true. (Evid. Code, § 1230.) The proponent must demonstrate “that the declarant is unavailable, that the declaration was against the declarant’s penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.” (People v. Duarte (2000) 24 Cal.4th 603, 610–611.) We reviewwhether a party has established the foundational facts for a hearsay exception for substantial evidence but review the ultimate ruling for an abuse of discretion — that is, whether the ruling was arbitrary, capricious, or patently absurd. (People v. DeHoyos (2013) 57 Cal.4th 79, 132.)
Lewis was subpoenaed to testify at a hearing to determine the admissibility of her statements. She initially refused the assistance of counsel but relented after the trial court explained that her statements could result in admitting to a criminal offense. She subsequently invoked her Fifth Amendment right to not incriminate herself, refused to answer questions regarding her prior statements, and the court accordingly found her unavailable to testify.
An officer testified that Lewis “almost immediately . . . and just spontaneously stated that’s mine” after he discovered the gun in the car.Approximately five minutes later, she again said “[s]omething to the effect of the gun is mine.” She repeated this when the officer placed it in his patrol car. Later, she called dispatch and went to the police station to again claim ownership. The officer did not ask any further questions because the gun appeared to be the same as the one in an Instagram video associatedwith Henderson. He noted that Henderson was affiliated with the “Broad Day Klap Shit” gang, and it was common for members’ girlfriends to claim responsibility for firearms when their partners have prior arrest histories.
The trial court excluded Lewis’s statements after concluding they were not sufficiently reliable to constitute declarations against her penal interest. Referencing Lewis’s limited understanding that her statements could expose her to criminal liability and her initial refusal for the assistance of counsel, the court noted it was not clear whether she understood she was taking responsibility for a criminal act when she made the statements. This, according to the court, was understandable becausepossessing a firearm is not necessarily illegal.
We discern no abuse of discretion in the trial court’s ruling. (People v. DeHoyos, supra,57 Cal.4th at p. 132; People v. Brooks (2017) 3 Cal.5th 1, 39 [reviewing trial court ruling rather than the reasoning and affirming if the ruling is correct on any ground].) First, there is no dispute Lewis was unavailable after invoking her Fifth Amendment right to not testify. (People v. Seijas (2005) 36 Cal.4th 291, 303.) More importantly, Henderson failed to demonstrate Lewis’s statements were sufficiently reliable or trustworthy to warrant admission. (People v. Duarte, supra, 24 Cal.4th at pp. 610–611.)She immediately claimed ownership of the gun after officers discovered it in the car. She repeated her claims to the officers during Henderson’s arrest and again at the police station. The court did not abuse its discretion by concluding these were not the most reliable circumstances. (People v. Greenberger (1997) 58 Cal.App.4th 298, 335 [“the most reliable circumstance is one in which the conversation occurs between friends in a noncoercive setting that fosters uninhibited disclosures”].)
Nor was it clear, considering the surrounding circumstances, that Lewis’s statement was sufficiently against her penal interest such that “ ‘a reasonable person in [her] position would not have made the statement unless believing it to be true.’ ”(People v. Almeda (2018) 19 Cal.App.5th 346, 365; People v. Duarte, supra, 24 Cal.4th at p. 612 [“ ‘whether a statement is self-inculpatory or not can only be determined by viewing it in context’ ”].)As the trial court noted, possessing a firearm is not necessarily an illegal activity. Testimony established that girlfriends of “Broad Day Klap Shit” gang members with prior arrest history often claimed ownership of their partners’ guns because they were not subject to the same ownership restrictions. The court could reasonably conclude the “potential consequences” for Lewis“were too speculative or remote to impinge on penal interest for purposes of Evidence Code section 1230.” (People v. Chhoun (2021) 11 Cal.5th 1, 48.)
Lewis’s relationship with Henderson and her resulting motivation to claim ownership of the gun further diminish the reliability of her statements. (People v. Frierson (1991) 53 Cal.3d 730, 745 [consideringthe declarant’s relationship to the defendant and possible motivation when making the statement when determining whether a statement is sufficiently trustworthy].) She had a close relationship with Henderson — he was arrested after driving her car, and officers found him with Lewis after he absconded from his funeral release. Testimony adduced at the pretrial hearing further demonstrated Lewis’s strong motive to claim possession of the gun. (Ibid.) As the officer testified, it was a “common . . . design of street gang culture for girlfriends . . . to take culpability for firearms.” (Ibid. [assessing trustworthiness requires “ ‘deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception’ ”].)
People v. Reyes (2019) 35 Cal.App.5th 538—which concluded that excludinga statement made by a defendant’s cousin claiming ownership of a firearm recovered from a car was an abuse of discretion — does not assist Henderson, contrary to his assertions. (Id. at pp. 545–547.) There, the trial court foundthe confession insufficiently trustworthy because the declarantmay have been motivated by familial bonds to protect the defendant. (Id. atp. 548.) But critically, the court failed to considerthat the declarant had already been convicted of possessing the same firearm at issue, making the statement trustworthy and admissible as a statement against penal interests. (Ibid.) Here, there is no similar indicia of reliability — Lewis is not a codefendant, nor were there any separate jury verdicts that corroborate her statement. In sum, the trial court’s ruling excluding Lewis’s statements was not an abuse of discretion. In light of this conclusion, we do not address his argument that this exclusion was prejudicial.
II.
Henderson contends the trial court erred by admittingthe text messages exchanged with Maddiebecause they referred to a different, uncharged offense. He argues the court failed to determine the existence of a necessary preliminary fact—that the messages related to his charged offenses — as required under Evidence Code section 405. This argument is unpersuasive.
Before trial, Henderson moved to exclude the text messages, arguing that they were admissions to a different shootinginvolving only one shooterwho committed murder — rather than two shooters committing attempted murder as in the charged offenses — and occurring one week before the April 24, 2022, shooting. Thus, the text messages were irrelevant and impermissible evidence of prior bad acts under Evidence Code section 1101 and unduly prejudicial under Evidence Code section 352. On that basis, Henderson requested a hearing under Evidence Code section 403 to determine whether he committed this alleged uncharged act.
During that hearing, the prosecutor presented evidence that the only other shooting potentially attributable to Henderson occurred on April 24, 2022, at 5:00 a.m.—the morning of the charged shooting. In that incident, officers were dispatched to a “shot spotter”in Oakland where they found one shell casing, no property damage, no injured victims, and nowitnesses. The text messages, however, refer to someone being arrested—“they got the driver cause his car”—and people claimed he was a snitch for “[a] murder” that he did. According to the court, the reference to the “driver” wasa unique detail consistent given the arrest of Parker, whose car was identified in relation to Henderson’s charged offenses. This tended to suggest the text messages described the instant offenses. The court explained that any discrepancies between Henderson’s charged offenses and the one discussed in the text messageswent to weight, not admissibility.
“No evidence is admissible except relevant evidence.”(Evid. Code, §350.)When “ ‘[t]he relevance of the proffered evidence depends on the existence of [a] preliminary fact,’ the proponent of the evidence bears the burden of producing evidence in support of that preliminary fact.” (People v. Barrett (2025) 17 Cal.5th 897, 961; Evid. Code, §403, subd. (a)(1).) The trial court simply determines whether there is sufficient evidence to permit a jury to decide the issue. (Barrett, at p. 961.)This question of admissibility “ ‘ “merges imperceptibly into the weight of the evidence, if admitted.” ’ ” (People v. Lucas (1995) 12 Cal.4th 415, 466–467.) Courts “should exclude the proffered evidence only if the ‘showing of preliminary facts is too weak to support a favorable determination by the jury.’ ” (Id. at p. 466.) “ ‘The determination regarding the sufficiency of the foundational evidence is a matter left to the court’s discretion,’ ” which will not be disturbed absent an abuse of discretion. (Barrett, at p. 961.)
The trial court properly assessed whether there was sufficient evidence to establish that the text messages referred to Henderson’s charged offenses pursuant to Evidence Code section 403 and were thus relevant. (People v. Barrett, supra, 17 Cal.5th at p. 961.) The prosecutor produced a police report detailing an early morning shooting plausibly associated with Henderson. She identified various discrepancies between that morning shooting— involving only one shell casing, no property damage, and no injuries — and Henderson’s charged offenses—involving the arrest of a driverbased on his car and possible murder — thus tending to prove the text messages related to the latter. The text messages did not constitute “evidence that is so factually weak as to undermine its relevance.” (People v. Cottone (2013) 57 Cal.4th 269, 284.) Nor did the court improperly shift the burden to Henderson to demonstrate the text messages described some other crime, as he insists. After the court made its finding, it asked Henderson to identify any other documented case that the text messages might describe—he offered none.
We reject Henderson’s assertion the trial court deferred its duty to determine whether the text messages referred to his charged offenses to the jury. Courts have“the preliminary, but not the final, authority to determine the question of the existence of the preliminary fact.” (People v. Lucas, supra, 12 Cal.4th at p. 466.)Rather, it is “the jury’s function to determine the effect and value of the evidence addressed to it.” (Id. at p.467.) Consistent with that principle, the court acknowledged that to the extent the text messages contained discrepancies with the charged offenses— e.g., referring to “[t]wo weeks for I went down” when Henderson was arrestedsix days after the shooting— those were issues of weight (for the jury to decide) notadmissibility. The court thus “perform[ed] [its] threshold screening function” by determining there was sufficient evidence “ ‘to permit a jury’ ” to weigh the credibility or “ ‘the probative value’ ” of this evidence. (People v. Cottone, supra,57 Cal.4th at pp. 283–284.)
We do not address Henderson’s argument thatthe trial court failed to determine the existence of preliminary facts regarding the text messages under Evidence Code section 405—an evidentiary ruleensuring courts review “the legal basis for admissibility” before submitting evidence to the jury. (People v. Cottone, supra,57 Cal.4th at p. 284.)He did not make this argument below, thus forfeiting it on appeal. (In re Sheena K. (2007) 40Cal.4th 875, 880.) And we reject his attempt to bootstrap this argument to the oneactually made in the trial court — that the text messages evidenced an uncharged crime under Evidence Code section 1101, thus triggering section 405 obligations. He requested an Evidence Code section 403 hearing to establish whether he committed the alleged uncharged act referred to in the text messages, not an Evidence Code section 405 determination. We decline Henderson’s invitation toreview this issue despite his having forfeited it. (Sheena K., at p.887, fn. 7.)
III.
The trial court imposed a middle term of four years for possession of a firearm. It then imposed concurrent sentences for carrying a loaded firearm and carrying a concealed firearm in a vehicle, all committed while having a prior felony conviction. Henderson argues, and the People agree,that this sentence violates section 654’s prohibition of “multiple punishment for a single act or omission, or an indivisible course of conduct.”(People v. Deloza (1998) 18 Cal.4th 585, 591; § 654, subd. (a) [an act “punishable in different ways by different provisions of law” shall not “be punished under more than one provision”].) We agree too.
All three convictions were based on a “single possession or carrying of a single firearm on a single occasion”—following Henderson’s arrest after a traffic stop — and “may be punished only once under section 654.” (People v. Jones (2012) 54 Cal.4th 350, 357.)That the concurrent sentences imposed for counts 7 and 8 are served simultaneously with the sentence for count 6is inconsequential. (People v. Duff (2010) 50 Cal.4th 787, 796.) A concurrent sentence is still a punishment subject to section 654. (Duff, at p. 796.) In these circumstances, the trial court was required to impose one sentence “and to stay the execution of the duplicative sentence.” (People v. Mani (2022) 74 Cal.App.5th 343, 380, italics omitted.) We therefore remand for resentencing to allow the court to impose and execute sentence on one of these counts, and impose and stay execution of sentence on the remaining counts. (Id. at p.381.)
DISPOSITION
The matter is remanded to the trial court to resentence Henderson on counts 6, 7, and 8. The clerk of the superior court is also directed to correct the abstract of judgment to reflect the orally pronounced sentence on count 3. The judgment is otherwise affirmed.

_________________________
RODRÍGUEZ, J.

WE CONCUR:

_________________________
FUJISAKI, Acting P. J.

_________________________
PETROU, J.

A167694, A168303; People v. Henderson