P. v. Henderson
Filed 5/23/13
P. v. Henderson CA1/3
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opinion has not been certified for publication or ordered published for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.
LISA MARIE
HENDERSON,
Defendant and Appellant.
A131646
(Contra Costa County
Super. Ct. No. 5-101013-1)
Lisa
Marie Henderson was convicted by a jury of possession
of methamphetamine for sale (Health & Saf. Code, § 11378),
imposition of sentence was suspended, and she was granted probation,
conditioned on her completion of a 180-day residential drug treatment
program. She contends there was no substantial
evidence to support a conclusion that she possessed methamphetamine, and that
the conviction must be reversed because of instructional
and evidentiary errors. We reject
her arguments and affirm.
FACTS
A. Search of the Residence
On
the morning of December 4, 2009, Concord police officers executed a search
warrant at a home on Atlantic Street looking for methamphetamine and evidence
of methamphetamine sales. Ron August,
who was renting the house, was the target of the investigation. In a total of 24 hours of surveillance over
the previous four months, Henderson had been seen coming and going from the
house at least five times.
When
police knocked on the front door and announced their presence, the door was
ajar and swung open. They entered,
detained Henderson in the kitchen, and detained August leaving the master
bedroom, down the hall from the kitchen.
The other bedrooms in the house were occupied by August’s son and
daughter, who were not at home.
In
an open drawer of a desk in the master bedroom, the police found 5.89 grams of
methamphetamine, a scale, three pay-owe notebooks, and Henderson’s driver’s
license depicting the Atlantic Street address.
letter addressed to Henderson at Atlantic Street, and a marriage certificate
showing that she and August were married in October 2009. Other items in the bedroom included two glass
pipes on the desktop, another scale, baggies for drug packaging, $4,780 in cash
in a safe; $670 in cash on the desktop;
a police scanner, a pistol, two stun guns, and three cell phones, one of
which was used by Henderson.
B.
Henderson’s Police Interview
Henderson
and August were arrested and interviewed.
August admitted that he was selling drugs, that he had regular clients,
and that the stun guns, scales, and baggies in the bedroom were used in
connection with the sales. We hereby
grant Henderson’s motion to augment the appellate record with the transcript of
her interview. Quotations from the
interview are taken from the transcript, and we have viewed the videotape of
the interview to confirm the transcript’s accuracy.
In
her interview, Henderson said that she had known August for about two
years. She stayed at the Atlantic Street
home, and with her father at an address on Willow Pass. She had not made any money since January
2009, and was relying on August and her father for financial help. She was not living with August because of
problems in their relationship, but had clothes and duffel bags at his
house.
Henderson
reported that she used methamphetamine after meeting August, “daily
sometimes.†August gave her
methamphetamine and they smoked it together.
When asked about the methamphetamine and gun recovered in the search,
she responded, “I don’t know nothing about a gun.†When she denied that the drugs were hers, she
was asked, “Well, when you use, does Ron provide you with drugs?
[¶] [A.] Yes. [¶] [Q.] Okay.
So you’re aware that they’re there. [¶] [A.] Yes.â€
When
the questions turned to selling drugs, the following conversation ensued: “[Q.] . . . Basically I found
enough of what I was looking for to lead me to believe that Ron, and/or you, or
both of you are selling drugs, specifically methamphetamine. Uh, so I’m just going to ask you straight up,
are you selling any drugs, are you brokering any deals as the middleman, are
you, um, if someone comes and is making any purchase, even a small amount, or a
large amount, are you, do you have any interaction with that? [¶] [A.] Yeah, some small amounts, yeah,
sometimes. I mean, not very often, but
. . . [¶] [Q.] What is,
like, give me an example of what kind of interaction or involvement you might
have. [¶] [A.] Um, I’ve collected
money before from people . . ., stuff like that. And that’s about it. [¶] [Q.] Okay.
And is that to, as a favor to Ron, or how does it work out so that you
end up dealing with that? [¶] [A.]
Like if he’s not there. [¶] [Q.]
Okay. So you know where his stuff
is, you know how to weigh it out and exchange money for it if, if he’s not
there right? [¶] [A.] I know how,
yes. [¶] [Q.] Okay. Umm . . . [¶] [A.] Well, I don’t know about the weigh it
out. I don’t do . . . .
[¶] [Q.] Okay, um, but if someone
tells you, hey, you know, I mean what kind of . . . .
[¶] [A.] No, usually I just collect
money, usually. [Q.] Oh, so people that
like owe him? [¶] [A.] Yeah.
[¶] [Q.] Okay, so if they come by
because Ron has given out dope— [¶] [A.]
I guess so. [¶] [Q.] —or I
guess the term would be if he’s fronted dope to someone and they owe, they’ll
come by and make a payment? [¶] [A.]
Sometimes, yeah. [¶] [Q.]
Okay, so you know where that money’s coming from or why it’s coming to
the house? [¶] [A.] Yeah.â€
After
discussion of Henderson’s methamphetamine use, the questions returned to
selling drugs: [¶] “[Q.] How much money do you think Ron, um, makes
over the course of a week from selling methamphetamine? [¶] [A.] I wouldn’t know, he wouldn’t let me know, I
wouldn’t know, I don’t have a clue. [¶] [Q.] Well, I mean, just from the money that you
see coming in when he’s gone, like when people pay him, like you know, paying
off debts or whatever. [¶] [A.] Oh,
I mean, I wouldn’t even, maybe, I only see hundreds, I mean, I don’t even know,
I mean, I’m not allowed to know that kind of stuff, too much, you know?
[¶] [Q.] Okay. Um, we found some records, like pay-owes, you
know, documentation, some of it looked like it might have been in, like, female
handwriting? [¶] [A.] Mmm-hmm.
[¶] [Q.] Is that, is that your
handwriting? [¶] [A.] Mmm-hmm.
[¶] [Q.] Is that just you keeping
track so that you can tell him, you know, so that . . . .
[¶] [A.] No, I just transfer it to
a book for him. I just transfer it to,
you know, a . . . book for him. [¶] [Q.] Okay, okay.
Um . . . . [¶] [A.]
Some of [that]’s been here since I’ve known him, since before I’ve known
him. Some of those people I don’t even
know.â€
C.
Defense Case
Henderson
testified at trial in her own defense.
She said that August always had methamphetamine, and she used the drug
with him nearly every time she saw him.
She moved out of Atlantic Street in early November 2009. She had moved out more than 20 times, but
kept returning in the hope that he had stopped selling methamphetamine. She listed Atlantic Street as her address
with the Department of Motor Vehicles because she planned to “[s]ometimes†stay
there. She only received her “driver’s
license and maybe a couple other pieces†of mail at Atlantic Street. She had nothing in the house on the day of
the arrests other than her purse, cell phone, and a scarf. August was paying for the cell phone, and had
taken it away from her when she moved out in November.
She
went to the house a couple of times after Thanksgiving to see August’s son and
daughter. On the morning of December 4,
she went there because August called her.
She talked to his daughter, and gave his son a ride. She did not go into the master bedroom or see
the drugs found by the police. She did
not know where August kept his methamphetamine, and did not know that he was
selling it on that date.
She
testified that she accepted money on August’s behalf only twice, in 2008, after
she moved in with him in June of that year.
When she said in her interview that she saw “hundreds†of dollars coming
in from August’s drug sales, she was referring to the money she received for
him on those two occasions.
She
testified that the pay-owe notebooks recovered in the search did not contain
her handwriting. She said in her interview
and at trial that August had a construction business, and clarified at trial
that when she said in her interview that her handwriting was in his pay-owe
documentation, she was referring to records for the construction business, not
the drug sales. But the interview had
progressed well beyond the subject of August’s construction business when she
was asked about her handwriting in the notebooks, and she acknowledged during
cross-examination that she told the officer about her handwriting when his questions
pertained to selling methamphetamine.
Henderson
said that August kept her only cell phone after she moved out in November 2009,
and she denied sending him a text message on November 25. She also denied that her problems with August
around the time of the arrest involved infidelity rather than drug
selling. She did not send August a text
message on November 25 saying that she loved him and wanted him to be her mate
or nothing at all.
Henderson’s
father testified that she was living with him on the day of her arrest. He admitted that she was staying elsewhere
one or two nights a week. He said “[i]t
varied,†depending on “how they [she and August] were getting along.â€
D.
People’s Rebuttal
In
response to Henderson’s testimony about text messages, the prosecution
presented evidence that August received text messages from “Lisa†on November
25 and December 3, which were read to the jury.
A November 25 message said, “[Y]ou just want a fuck buddy and not a mate. And no marriage is needed for a fuck
buddy. And I love you and want you to be
my mate or nothing at all.†Other
messages later that day said, “[Y]ou have been with someone. I have been with no one,†and “I am with [her
nephew] Cody right now and I have not spent the night with anyone.†A December 3 message said, “I’m back in
town. Do you still want me to come
over?â€
DISCUSSION
A.
Substantial Evidence
Henderson
contends that the jury had no substantial evidence from which to find that she
possessed the methamphetamine police recovered at Atlantic Street. “To determine sufficiency of the evidence, we
must inquire whether a rational trier of fact could find defendant guilty
beyond a reasonable doubt. In this
process we must view the evidence in the light most favorable to the judgment
and presume in favor of the judgment the existence of every fact the trier of
fact could reasonably deduce from the evidence.†(People
v. Johnson (1993) 6 Cal.4th 1, 38.)
“Actual
or constructive possession is the right to exercise dominion and control over
the contraband or the right to exercise dominion and control over the place
where it is found. [Citation.] Exclusive possession is not necessary. A defendant does not avoid conviction if his
right to exercise dominion and control over the place where the contraband was
located is shared with others.
[Citations.]†(
618, 622.) “ ‘The inference of
dominion and control is easily made when the contraband is discovered in a
place over which the defendant has general dominion and control: his residence [citation], his automobile
[citation], or his personal effects [citation].’ †(People
v. Busch (2010) 187 Cal.App.4th 150, 162; see also People v. Redrick (1961) 55 Cal.2d 282, 287 [finding of possession
was supported by “the fact that the drug was found among defendant’s personal
effectsâ€].)
An
inference of possession could be readily drawn here. The methamphetamine was found among
Henderson’s personal effects in a home where she resided, at least part of the
time. Her driver’s license was in the
drawer where the drugs was located. The
drawer was in a desk that contained business correspondence addressed to her. The desk was in a bedroom where her cell
phone was found. The bedroom was
occupied by the man she had married a few weeks earlier. She had clothes and duffel bags in the
house. She was there when the warrant
was executed. Under the circumstances,
whether she had dominion and control over the drugs was a jury question. Her arguments to the contrary are meritless.
Henderson
first disputes whether she had access to the drugs. She relies on People v. Mitchell (1975) 53 Cal.App.3d 21, 25, where “proof
amount[ing] to no more than a speculative possibility that [the defendant] had
an opportunity of access to a place where the amphetamines were kept†was held
“insufficient to support a finding of possession.†She suggests the prosecution had to prove
where August customarily kept the drugs, and presumes he would generally have
kept them locked away from the children who lived in the house. She claims “there is no evidence that August
kept his methamphetamine anywhere other than a locked location in his
bedroom—i.e., a locked desk drawer, or his safe—at any time when others might
have had access to the bedroom.†But
this claim ignores the situation when the warrant was executed. Henderson was home alone with August, and the
drugs were not locked up. She apparently
had easy access to them when the police arrived.
Henderson
next contends that there was no substantial
evidence that she was living with August on the day of the search. “Consequently,†Henderson maintains, she
“would have had no access to his master bedroom unless he granted it, and there
is no evidence he did.†But she had
recently married August, and his address was on her driver’s license. She told police that she stayed at the
Atlantic Street address as well as with her father. When she was asked in the interview whether
it would be “safe to say†that she was living “to an extent†on Atlantic, she
answered: “Well, just, I don’t know if
you noticed but if you noticed my stuff was, there’s like a few clothes hanging
up in the closet and I have some duffel bags.
That was just, I don’t know if I was on my way in or on my way, I don’t
know what I’m doing, if I’m on my way in or out. I really don’t.†She was asked, “And you’ve been quasi living
there [at Atlantic Street], bouncing back and forth between you and your
father’s house for the last two years since you’ve known him?†She answered, “Since I’ve known him,
yeah. Not just my dad’s. I lived in Martinez, I lived, yeah, I went
back to my [former] husband, I’ve been everywhere.†Henderson’s father testified that she stayed
with August when she and August were getting along. The evidence supported a finding that
Henderson was living at least part time with August when the drugs were found.
Henderson
notes that she could not be found in possession of the drugs solely because she
received some of them from August for her personal use. As she puts it in her briefing, “a drug
pusher giving a user a controlled substance in small quantities for personal
use does not create an inference that the user has dominion and control over
the pusher’s sale stash.†But the point
is immaterial because the evidence of her dominion and control over the drugs
did not relate to only her personal use.
Henderson
observes that a person can aid and abet a sale of contraband without having
dominion and control over it. (See,
e.g., People v. Murphy (2007) 154
Cal.App.4th 979, 984 [sale can be brokered of a controlled substance within the
exclusive possession of another; possession is not an essential element of the
sale offense].) She admitted collecting
money for August’s drug sales and, contrary to her argument, effectively
admitted in her interview that she assisted with his pay-owe sheets for the
sales. But while those were the extent
of her specific admissions, she also said in her interview “
additional involvement in the sales, which could have included handling the
drugs themselves. In any event, a
finding of dominion and control did not hinge on proof of her involvement in
drug sales. She could have possessed the
drugs with the expectation that August would sell them for her. She had motives to do so because she used the
drugs, and their sale provided income to someone who was helping her
financially.
To
the extent Henderson can be taken to argue that, even if possession of the
drugs was established, no intent was shown to possess them for sale, that
argument would also fail. Given the
quantity of the methamphetamine and all of the indicia of drug dealing, ample
evidence established that the drugs were possessed for sale.
B.
Jury Instructions
The
court without objection instructed the jury pursuant to CALCRIM No. 207: “It is alleged that the crime occurred on or
about December 2009. The People are not
required to prove that the crime took place exactly on that day but only that
it happened reasonably close to that day.â€
improper in this case. We disagree.
The
instruction should not be given “when the evidence demonstrates that the
offense was committed at a specific time and place and the defendant has
presented a defense of alibi or lack of opportunity.†(Bench Notes to CALCRIM No. 207 (2012) p.
42.) “Ordinarily, the People need not
plead the exact time of commission of an alleged offense. (Pen. Code, § 955.) However, if the defense is alibi or . . .
lack of opportunity to commit the offense, the exact time of commission becomes
critically relevant to the maintenance of the defense. An instruction which deflects the jury’s
attention from temporal detail may unconstitutionally impede the defense. The defendant is entitled as a matter of due
process to have the time of commission of the offense fixed in order to
demonstrate he was elsewhere or otherwise disenabled from its commission.†(People
v. Barney (1983) 143 Cal.App.3d 490, 497.)
We
agree with Henderson that “the potential flaw in an ‘on or about’ instruction
isn’t limited to defenses that technically constitute alibi or lack of
opportunity. It can arise any time the
instruction permits the jury to convict the defendant of an uncharged
offense.†We also agree with her that
she was charged “only with possession for sale of the 5.89 grams of
methamphetamine found in August’s house on December 4, 2009.†Defense counsel told the jury that Henderson
was “charged with the methamphetamine that was found in that photograph, the
baggie on December 4, 2009,†and the prosecutor never suggested otherwise. However, we disagree with Henderson that the
illegal act of possession “either happened or didn’t happen on December 4,
2009.†The drugs she was charged with
possessing did not necessarily arrive at the house on December 4 and, given the
evidence of her comings and goings, she might have been in the home along with
those drugs on some earlier date. Thus,
the jury was properly allowed to consider whether the unlawful possession might
have occurred “reasonably close†to December 4.
CALCRIM No. 207 was properly given and did not expose Henderson to
conviction of an uncharged offense.
Henderson
argues that the court erred by failing sua sponte to give a unanimity
instruction. “When a defendant is
charged with a single offense, but there is proof of several acts, any one of
which could support a conviction, either the prosecution must select the
specific act relied upon to prove the charge, or the jury must be instructed
that all the jurors must agree that the defendant committed the same act or
acts. [Citation.] When the prosecutor does not make an
election, the trial court has a sua sponte duty to instruct the jury on
unanimity.†(People v. Mayer (2003) 108 Cal.App.4th 403, 418.) No unanimity instruction was required here
because a single illegal act was alleged and proven: possession, on or about December 4, 2009, of
the methamphetamine found by the police on that date.
C.
Evidentiary Ruling
Henderson
argues that the court erred when it sustained the prosecution’s hearsay
objection to testimony that August was “very adamant†during his police
interview “that he does not let Miss Henderson know about his enterprise.†Henderson contends that when the prosecution
introduced evidence of statements by August during his interview, it “opened
the door, under Evidence Code section 356, to a fuller exploration of the contents
of those statements.†(
596, 644.) Evidence Code section 356
provides: “Where part of an act,
declaration, conversation, or writing is given in evidence by one party, the
whole on the same subject may be inquired into by an adverse party . . . .â€
The
lead investigating officer, testifying for the prosecution as an expert on the
possession of methamphetamine for sale, opined that the notebooks recovered in
the search were pay-owe sheets used in drug trafficking. His opinion was based in part on amounts
shown on the sheets as owed to someone August identified in his interview as
his supplier. In cross-examination of
the officer, the defense elicited further details August provided in his
interview about his sales operation. But
when the defense asked about August’s denial of Henderson’s involvement, the
prosecution’s hearsay objection was sustained.
“Application
of Evidence Code section 356 hinges on the requirement that the two
portions of a statement be ‘on the same subject.’ †(People
v. Vines (2011) 51 Cal.4th 830, 861.)
While “ ‘ “courts do not draw narrow lines around the exact
subject of inquiry†’ †(ibid.),
the statute “is not applied mechanically to permit the whole of a transaction
to come in without regard to its competency or relevancy.†(1 Witkin, Cal. Evidence (5th ed. 2012)
Circumstantial Evidence, § 39, p. 415.)
August’s statement that he did not let Henderson know about his drug
sales was irrelevant to the portion of his interview the prosecution introduced
regarding his supplier. Since the
statements could reasonably be found to concern different subjects, the court
did not err in excluding August’s exculpatory remark about Henderson’s
involvement.
Any
error in excluding the remark would have been harmless in any event. It is not reasonably probable that the
verdict would have been different because August said that Henderson was
unaware of the drug dealing she admittedly facilitated. (People
v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The
judgment is affirmed.
_________________________
Siggins,
J.
We concur:
_________________________
McGuiness, P.J.
_________________________
Pollak, J.
preliminary hearing, the lead investigator testified that the driver’s license
was found in a purse on the kitchen table.
He had a different recollection at trial, and his police report stated
that the license was found in “the master bedroom top desk drawer.â€
According to the reporter’s transcript, the court misread the first sentence of
the instruction, omitting to state that the crime was alleged to have happened
on or about December 4. However,
the rest of the instruction referred to a particular day, the jury knew from
the court’s reading of the charges that the information alleged a crime
committed “on or about December 4, 2009,†and the prosecutor noted in closing
argument that the “charge date†was on or about December 4, 2009. Thus, the jury would not have been misled
into thinking that the instruction pertained to a month, rather than a day, and
Henderson does not argue otherwise.
