Filed 5/23/13 P. v. Henderson CA1/3
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
          Plaintiff and Respondent,
                                                                     A131646
v.
LISA MARIE HENDERSON,                                                (Contra Costa County
                                                                     Super. Ct. No. 5-101013-1)
          Defendant and Appellant.


          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.
                                                      I. 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.



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       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.1 Other desk drawers contained a business 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

       1
         At the 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.”


                                              2
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.”
       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.”
       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


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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.”
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.


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       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.”
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?”
                                    II. 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


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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.]” (People v. Rushing (1989)
209 Cal.App.3d 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 effects”].)
       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.”


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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


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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 “usually I just collect money.” (Italics added.) Her answer suggests that
sometimes she had 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.”2 Henderson argues that the instruction was improper in
this case. We disagree.

       2
         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

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       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.


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.


                                              9
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.” (People v. Sakarias (2000) 22 Cal.4th 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 . . . .”
       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



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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.)
                                   III. DISPOSITION
       The judgment is affirmed.

                                                  _________________________
                                                  Siggins, J.


We concur:


_________________________
McGuiness, P.J.


_________________________
Pollak, J.




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