Filed 8/20/26 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, A167694, A168303
v.
(Contra Costa County
ANTHONY FERRANTE Super. Ct. No. 042200199)
HENDERSON,
Defendant and Appellant.

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 contends we must
reverse his convictions due to evidentiary errors. He also argues the 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 Parker driving a black
sedan and involved 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

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with a light-colored four-door car, which slowed down near the man’s truck.
Two people exited the light-colored car and fired over 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 sedan with
an inoperable brake light, improperly tinted windows, and expired
registration. Henderson was driving with the car’s registered owner,
Consuela Lewis, and others in the car. During a search of the car, officers
discovered an unregistered semiautomatic Glock handgun loaded with .40-
caliber rounds tucked 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, since
individuals sometimes post content related to criminal activity. Lewis
immediately stated the gun belonged to her. Officers nonetheless arrested
Henderson.
Henderson’s DNA 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

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subsequently captured on surveillance camera footage leaving his home
located a little over one mile from the scene.
The district attorney charged Henderson 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. They arrested him and 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 noted
someone 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 my self.” He said this
murder occurred two weeks before he was arrested, “Two weeks for I went

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down.” The driver identified in the message was Parker, who officers
arrested.
Before trial, Henderson moved to admit Lewis’s statements claiming
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
were statements against her penal interest and 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

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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
review whether 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 associated with
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.

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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 because possessing 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

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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 [considering the 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
excluding a 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 found the confession insufficiently trustworthy because the declarant

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may have been motivated by familial bonds to protect the defendant. (Id.
at p. 548.) But critically, the court failed to consider that 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 admitting the text
messages exchanged with Maddie because 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 shooting involving only one shooter
who 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,

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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 no witnesses. 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” was a 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 messages went 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

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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 driver based 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 arrested six days after the
shooting — those were issues of weight (for the jury to decide) not
admissibility. 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.)

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 We do not address Henderson’s argument that the trial court failed to
determine the existence of preliminary facts regarding the text messages
under Evidence Code section 405 — an evidentiary rule ensuring 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)
40 Cal.4th 875, 880.) And we reject his attempt to bootstrap this argument to
the one actually 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 to review 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.

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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 6 is
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.

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 _________________________
RODRÍGUEZ, J.

WE CONCUR:

_________________________
FUJISAKI, Acting P. J.

_________________________
PETROU, J.

A167694, A168303; People v. Henderson

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