People v. Archuleta CA4/2

Filed 9/23/20 P. v. Archuleta CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E072903

v. (Super.Ct.No. INF1700972)

ORLANDO ARCHULETA, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge.

Affirmed as modified.

Kimberly J. Grove, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison V.

Acosta and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and

Respondent.

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 A jury convicted Orlando Archuleta of second degree murder after hearing

evidence the victim was fatally shot when Archuleta and his cohort confronted him in

retaliation for a friend’s death. Though the prosecution argued Archuleta was the shooter

and had committed first degree murder, the jury rejected this theory, finding him not

guilty of first degree murder and finding the allegation he discharged a firearm not true.

The trial court sentenced Archuleta to 30 years to life for the murder plus two years for

two prior prison terms. (Pen. Code, § 667.5, subd. (b); unlabeled statutory citations refer

to this code.)

On appeal, Archuleta argues the trial court erred by instructing the jury on

contrived self-defense (CALCRIM No. 3472) and consciousness of guilt (CALCRIM

Nos. 362, 371, 372). He also argues the prison prior enhancements are unauthorized

under recently enacted Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats 2019, ch. 590,

§ 1) (S.B. 136). On this point he is correct, but we reject his claims of instructional error.

As we explain below, the challenged instructions correctly state the law and did not

prejudice Archuleta’s defense. We therefore modify his sentence to strike the prison prior

enhancements, but affirm the judgment in all other respects.

I

FACTS

Around 8:30 in the evening on March 29, 2017, the police responded to a call

reporting multiple gun shots fired at J.N.’s apartment in Desert Hot Springs. Dispatch

advised the officers that neighbors had heard several gunshots and someone saw a vehicle

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speeding away from the area. Upon their arrival, the officers noticed drops of blood and

several shell casings on the ground near the side of the apartment. The officers found the

victim, later identified as Jose Vargas, dead inside the one-room apartment, surrounded

by more ammunition (both live rounds and shells). An autopsy determined Vargas had

been shot six times and had entry wounds on the front and back of his body. A sample

taken from the blood outside the apartment matched Archuleta’s DNA.

The police interviewed several people who had been hanging out at J.N.’s

apartment that evening. Among those present, in addition to Vargas, were Gilbert,

Sophie, Tiffany, and J.N.’s girlfriend Destiny. Sophie told the police that while they were

hanging out five Hispanic males arrived and three of them “rushed” through the

apartment door, looking “agitated.” Both Sophie and J.N. identified Archuleta (whose

nickname is “Nanos”) from a photographic lineup as one of the men who came into the

apartment, and J.N. identified Danny Noriega (also known as “Danny Boy”) as one of the

men with Archuleta. Sophie said one of the men who had entered told the women to

leave, so she went outside and soon after heard multiple gun shots from inside the

apartment.

J.N. said Archuleta and Noriega were there to ask about guns they claimed

belonged to a man named Freddy Morales, who had been killed two days earlier. J.N.

denied seeing anything concrete, but said he heard someone ask, “What’s up with your

strap?” (meaning gun), after which he saw multiple muzzle flashes from where Archuleta

and Danny were standing, followed by flashes from where Gilbert was standing.

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 Tiffany was outside J.N.’s apartment when the shooting occurred. She told the

police she had arrived just as an argument was starting inside the apartment and heard

some people telling others to get out. While outside she spoke to two of Archuleta’s

brothers, Patrick and Johnny, and heard them yell towards the apartment, “Nanos. Danny

Boy. You guys cool?” She could hear the people inside arguing about Freddy and a gun.

The brothers then walked towards the apartment door, but she didn’t see if they went

inside because her view was blocked. She heard a scuffle and the firing of several gun

shots from what sounded like two different guns. People immediately began fleeing from

the apartment, and she saw Nanos limping away in the crowd as if he’d been injured.

Throughout her interview, she kept telling the police that Vargas had been set up and it

was actually a person who went by the name “Wanted” who had killed Freddy.

During his police interview, Noriega denied being inside J.N.’s apartment at the

time of the shooting but said he had seen Archuleta there and heard gunshots.

Every witness the police interviewed denied seeing any guns that night. The most

anyone could say is that they’d heard gunshots.

Archuleta’s ex-girlfriend, Erica, testified against Archuleta at trial. At the time of

the incident, she had been dating him for about five months and was living with him. On

March 27, two days before Vargas was shot, Noriega came over to Archuleta’s house to

report that Freddy Morales had been murdered. Erica had been close friends with Freddy

and had introduced Archuleta to him. On the day of the incident, Noriega stopped by

Archuleta’s house before going to Freddy’s memorial, and Archuleta and his brother

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Patrick decided to go with him. About 30 minutes later, Erica called Archuleta to check

on him. He said he was still at the memorial and would call her back later. When he

called about 15 minutes later, he said he was in the car with Noriega and had gotten tied

up with something. He said he was on his way to talk to somebody and would call her

later.

After that Erica called Archuleta several times before he finally picked up. When

she asked where he was, he told her to hold on, and she could hear him talking to

someone. She then heard Noriega say, “[H]e doesn’t live there. He lives over here.”

Archuleta told Erica they were going to “E-Man’s” house, but he didn’t hang up the

phone. Erica listened for about 10 minutes before asking what he was doing, at which

point he responded, “Oh, shit,” and hung up the phone. Erica called him several more

times before he eventually picked up and told her he was “trying to handle something

really quick.” He said they had just arrived at J.N.’s apartment and were trying to find out

what had happened to Freddy’s guns after he died. He told her they had thought the guns

were with E-Man, but E-Man just told them he didn’t have them anymore, Vargas did.

Uncomfortable with the situation, Erica called Archuleta again, and when the call

connected, she could hear Vargas (whom she knew) say, “No, fool. I’m not going to give

it to you.” Erica said hello several times, trying to get Archuleta’s attention, then the call

disconnected.

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 About 15 minutes later, Archuleta came back to the house covered in blood and

holding his elbow. His other brother, Derrick, took him and Erica to the emergency room.

When Erica was alone with Archuleta in the treatment room, he told her Vargas’s friend

Gilbert had shot him because he had been arguing with Vargas about Freddy’s guns.

According to Erica, she figured Archuleta was the victim at this point because he

hadn’t mentioned what had happened to Vargas. And so she and Archuleta decided to lie

to the officer who interviewed them at the hospital, to “take the heat off” of them. They

said Archuleta had been shot near a theater in Rancho Mirage, trying to protect Erica

from being robbed of her purse. The police tested Archuleta’s and Erica’s hands for

gunshot residue and both tests came back negative.

Archuleta had surgery the next morning and Erica learned from the news that

Vargas had died. While Archuleta was recovering, she pressed him about what really had

happened at J.N.’s apartment. After some time, he reluctantly divulged details. He told

her they had gone to J.N.’s looking for Vargas because they thought he had murdered

Freddy and taken his guns. Archuleta was armed with a nine-millimeter Ruger

semiautomatic. When he arrived, he asked the others to leave the apartment because he

needed to talk to Vargas. At that point, he received a FaceTime call from Freddy’s older

brother, Jonabeth. He told Jonabeth he was with Vargas trying to solve the mystery of the

guns and Jonabeth asked Archuleta to “let me see.” Archuleta panned his phone across

the room, then told Jonabeth he would call him back. Right after he hung up, Jonabeth

sent him a Facebook message saying, “Finish him.”

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 According to Erica, Archuleta told her that he and Vargas started to “struggle.” He

put Vargas into a headlock then saw him reaching for a gun so he shot him. He told Erica

he shot Vargas twice and he fell to the ground. Then he emptied his clip into Vargas,

shooting him a few more times. He told her, “That fool is not getting up. I dumped on

him.” That evening, Erica contacted the police and reported what Archuleta had told her.

Erica also showed the police the conversation she’d had with Jonabeth, who was

in prison, over Facebook. She told Jonabeth that Vargas had died and Archuleta had been

“busted.” She asked him where he had gotten the idea that Vargas had killed Freddy

because he was wrong. She also said, “Nanos said to let you know not to talk to no one

about this, for you to act like you don’t know [Vargas] is gone.” She said Archuleta was

going to “finish business when he gets out” and was “going after Wanted as soon as he

gets home.” At trial, she explained that Wanted had also been suspected of killing

Freddy.

During closing argument, the prosecution argued the evidence proved beyond a

reasonable doubt that Archuleta had committed first degree murder. He argued the

evidence proved Archuleta had gone to J.N.’s apartment armed with a gun for the

purpose of killing Vargas in retaliation for Freddy’s murder and so he could retrieve

Freddy’s guns. He also argued that Archuleta could not claim he shot Vargas in self-

defense because Archuleta had intentionally created (or contrived) any need on Vargas’s

part to use violence by his act of assaulting him with a gun.

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 Anticipating the defense theory of the case, the prosecutor addressed the issue of

Noriega and Patrick, who by all accounts had accompanied Archuleta to the apartment.

“Now, this is where the defense, I think, is going to focus. There is evidence that shows

another person did this. The evidence shows another person may have been involved in

the commission of the crime as charged against the defendant. There have been many

reasons why someone who appears to [] have been involved might not be a codefendant

in this particular trial. You must not speculate about whether that other person has been

or will be prosecuted. Your sole duty is to decide whether [Archuleta] . . . committed the

crime as charged.”

The prosecutor argued that even if the jury found that Noriega or Patrick had shot

Vargas, Archuleta was guilty as an accomplice. “Even if you believe Danny Noriega or

Patrick Archuleta were shooting, it doesn’t absolve [Archuleta] of his responsibility.

There is an instruction in the law called aiding and abetting.” The prosecutor argued the

jury could convict Archuleta of first or second degree murder under an aiding and

abetting theory because there was evidence Archuleta knew his friends intended to kill

Vargas (because they all suspected him of having killed Freddy and taking his guns) and

there was evidence Archuleta helped them do it. “They three seem to be standing by the

door surrounding [Vargas] based on the sketch of [J.N.]. The defendant’s words or

conduct did, in fact, aid and abet the perpetrator’s commission of the crime. Telling

people to leave—surrounding that seems to be aiding and abetting an execution of

someone who is shot six times.”

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 According to defense counsel’s closing statements, Archuleta’s theory of the case

was indeed that Noriega, Patrick, or someone else had been the shooter. Focusing on the

dearth of eyewitness testimony and the fact no one could say they saw Archuleta carry or

fire a gun, defense counsel argued the People had not proved his client killed Vargas. He

also pointed to what he viewed as holes in the prosecution’s investigation—that videos of

witness interviews had gone missing and the police had failed to perform gunshot residue

tests on Archuleta’s clothes when they had the opportunity at the hospital. Finally, he

argued Erica was “a liar” who had a motive to help the prosecution to protect herself

from liability for giving false statements to the police. He argued her story that Archuleta

told her he shot Vargas in self-defense was fabricated and false. “[My client] is saying I

didn’t bring out a gun. I didn’t shoot. I left. I got shot and ran. So is that self-defense?

Find the guns.”

The Riverside County District Attorney had charged Archuleta with murder

(§ 187, subd. (a)) and being a felon in possession of a firearm (§ 29800, subd. (a)), and

alleged he personally and intentionally discharged a firearm in committing the murder

(§ 12022.53, subd. (d)). The jury acquitted Archuleta of first degree murder, but found

him guilty of second degree murder. They also found not true the allegation that he

personally and intentionally discharged a firearm and hung on the gun possession charge.

The trial court dismissed the possession charge at the People’s request and sentenced

Archuleta to an indeterminate term of 30 years to life plus two years for the prior prison

term enhancements.

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 Archuleta timely appealed.

II

ANALYSIS

Archuleta argues the trial court committed reversible error by instructing the jury

on contrived self-defense (CALCRIM No. 3472) and consciousness of guilt (CALCRIM

Nos. 362, 371, 372). As we explain below, we disagree on both points.

A. Applicable Legal Principles

A trial court is required to instruct the jury on all principles of law relevant to the

issues raised by the evidence, regardless of whether the defendant asks for a particular

instruction. (People v. Blair (2005) 36 Cal.4th 686, 744.) Every instruction must be

complete and correctly state the law. (People v. Fiu (2008) 165 Cal.App.4th 360, 370.)

We independently review whether an instruction correctly states the law (People v. Posey

(2004) 32 Cal.4th 193, 218), and for all other challenges, we “assess the instructions as a

whole, viewing the challenged instruction in context with other instructions, in order to

determine if there was a reasonable likelihood the jury applied the challenged instruction

in an impermissible manner.” (People v. Wilson (2008) 44 Cal.4th 758, 803.)

A defendant challenging a jury instruction “must demonstrate a reasonable

likelihood that the jury understood the instruction in the way [he or she has] asserted.”

(People v. Covarrubias (2016) 1 Cal.5th 838, 905.) “‘[N]ot every ambiguity,

inconsistency, or deficiency in a jury instruction rises to the level of a due process

violation.’ [Citation.] In reviewing an ambiguous instruction, we inquire whether there is

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a reasonable likelihood that the jury misunderstood or misapplied the instruction in a

manner that violates the Constitution. [Citation.] ‘A single instruction is not viewed in

isolation, and the ultimate decision on whether a specific jury instruction is correct and

adequate is determined by consideration of the entire instructions given to the jury.’” (Id.

at p. 906.) We presume the jurors are intelligent and capable of understanding and

applying the court’s instructions. (Id. at p. 905.)

B. CALCRIM No. 3472: Contrived Self-Defense

The trial court instructed the jury on the lesser included offense of voluntary

manslaughter based on an imperfect self-defense theory. Although defense counsel did

not request instructions on the lesser, the trial court gave them based on the evidence

adduced at trial—specifically, Erica’s testimony that Archuleta had told her he shot

Vargas because he thought Vargas was going to shoot him. The court instructed the jury

with CALCRIM No. 571 on imperfect self-defense which says, among other things, that

the theory is inapplicable “when the defendant, through his own wrongful conduct, has

created circumstances that justify his adversary’s use of force.” The court also instructed

the jury with CALCRIM No. 3472, the challenged instruction, which says, “A person

does not have the right to self-defense if he provokes a fight or quarrel with the intent to

create an excuse to use force.”

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 Relying on People v. Ramirez (2015) 233 Cal.App.4th 940 (Ramirez), Archuleta

argues CALCRIM No. 3472 is an incorrect statement of the law and precluded the jury

from considering an imperfect self-defense theory. There are multiple problems with this

argument.

First, Archuleta forfeited his challenge to the contrived self-defense instruction by

failing to raise any objection with the trial court. (People v. Rodrigues (1994) 8 Cal.4th

1060, 1191-1192.) Second, CALCRIM No. 3472 is a correct statement of law. In People

v. Enraca (2012) 53 Cal.4th 735, our Supreme Court addressed the propriety of the

CALJIC analog and predecessor to CALCRIM No. 3472—CALJIC No. 5.55. (Enraca, at

p. 761.) That instruction says, “The right of self-defense is not available to a person who

seeks a quarrel with the intent to create a real or apparent necessity of exercising self-

defense.” (Ibid.) The court explained the instruction was legally accurate because self-

defense “may not be invoked by a defendant who, through his own wrongful conduct

(e.g., the initiation of a physical attack or the commission of a felony), has created

circumstances under which his adversary’s attack or pursuit is legally justified.” (Ibid.)

Our colleagues in the Second District concluded that Enraca’s holding applies equally to

CALCRIM No. 3472 because “the language of the two instructions is materially the

same.” (People v. Eulian (2016) 247 Cal.App.4th 1324, 1333 (Eulian).) We agree.

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 CALCRIM No. 3472 describes a situation where a defendant provokes a fight or

argument for the purpose of creating a larger conflict which would allow them to engage

in further violence in the name of self-defense. In other words, the instruction applies to

circumstances where the defendant intentionally contrives a situation in which they will

have an excuse to use force against the victim. CALCRIM No. 3472 and contrived self-

defense do not apply where the defendant provokes a fight using nondeadly force without

an intent to create a larger conflict to excuse the use of further violence.

Here, the trial court’s use of CALCRIM No. 3472 was appropriate because there

was substantial evidence that Archuleta intentionally created a situation (i.e., an argument

where he brandished his gun) that would give him an excuse to use his gun against

Vargas. Erica told the jury that Archuleta’s purpose in confronting Vargas was to retrieve

Freddy’s guns and retaliate against him for Freddy’s murder. She told the jury Archuleta

and his friends drove around looking for Vargas, and when they found him, Archuleta

went into the apartment armed and told everyone but Vargas to leave. J.N. told the police

that before any gunshots were fired, he heard someone ask, “What’s up with your strap?”

meaning someone had made it known they were carrying a gun. From this evidence, a

reasonable juror could conclude that Archuleta had pulled his gun first, perhaps to show

he was serious about retrieving the guns. And thus, even if Vargas met the demand by

also pulling out a gun, the jury could conclude he did so only in response to Archuleta’s

initial assault. In short, the evidence supports an inference that Archuleta went to J.N.’s

apartment looking for a gunfight.

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 Archuleta’s reliance on Ramirez does not help his case. There, the jury heard

testimony from multiple witnesses that the defendant and his friends had confronted a

group of rival gang members intending to instigate a fistfight only. The defendant

testified that they had agreed not to bring any guns to the confrontation but he secretly

violated the pact by hiding a gun in his sweatshirt—for protection, in case his rivals were

armed. He was right, his rivals were armed, and when the fistfight started and one of

them pulled out a gun, the defendant was quicker and shot first. Over a lengthy dissent by

Justice Fybel, the Ramirez court concluded that in the rare circumstance where the

evidence shows the defendant intended to provoke only a fistfight (or use similar

nondeadly force), it is error to instruct the jury with CALCRIM No. 3472. The court

explained that while the contrived self-defense instruction is generally a correct statement

of law, it prejudiced the defendant because it allowed the jury to conclude he had

forfeited his right to self-defense by using any amount of force. (Ramirez, supra, 233

Cal.App.4th at p. 947.) In other words, the instruction should not have been given on that

record because it “made no allowance for an intent to use only nondeadly force and an

adversary’s sudden escalation to deadly violence.” (Id. at p. 945.)

At least one court has questioned Ramirez’s holding. (See Eulian, supra, 247

Cal.App.4th at p. 1334 [“Although ‘[t]he instruction misstates the law’ according to

Ramirez, . . . we believe the opposite is true. CALCRIM No. 3472 is generally a correct

statement of law, which might require modification in the rare case in which a defendant

intended to provoke only a nondeadly confrontation and the victim responds with deadly

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force”] italics added.) But we need not decide whether we agree with the holding because

our case is distinguishable from Ramirez in a crucial aspect. Unlike the defendant there,

Archuleta did not claim he intended to provoke only a nondeadly fight nor did he claim

he shot Vargas in self-defense. Instead, he affirmatively disclaimed any theory of self-

defense and argued he wasn’t the shooter. But putting aside the defense’s theory of the

case, there simply is no support in the record for a Ramirez-like fistfight. Tiffany heard

the people inside the apartment arguing about Freddy and guns; Erica said Archuleta

believed Vargas killed Freddy and she believed he intended to retaliate against Vargas for

that fact; and Freddy’s brother texted Archuleta during the altercation to “finish” Vargas.

This evidence strongly suggests the group went looking to retaliate with deadly force

against the person they believed had murdered their friend and stolen his guns. As the

Ramirez court acknowledged, “a defendant who assaults his victims with a gun may not

set up a valid self-defense claim with evidence he believed the victims also reached for a

gun, since they would be justified in meeting deadly force with deadly force.” (Ramirez,

supra, 233 Cal.App.4th at p. 948.)

The third and final problem with Archuleta’s challenge to CALCRIM No. 3472 is

that even if he could show the instruction was erroneous, we would conclude the error

was harmless beyond a reasonable doubt based on the jury’s verdict. (Chapman v.

California (1967) 386 U.S. 18, 24.) The jury acquitted Archuleta of first degree murder,

found he did not fire a gun, and hung on whether he was even carrying one that night

(count 2). In other words, by finding Archuleta was an accomplice to the murder, the

15
jurors expressly rejected any theory of self-defense, which could apply only if they found

he was the shooter. The verdict demonstrates the jury disbelieved at least parts of Erica’s

testimony and credited the defense theory that Archuleta had not been the one to shoot

Vargas. On this record, Archuleta cannot show that CALCRIM No. 3472 had any effect

on the outcome of the trial.

C. Consciousness of Guilt Instructions

Archuleta contends the consciousness of guilt instructions given to the jury—

CALCRIM Nos. 362, 371, and 372—were duplicative of the circumstantial evidence

instructions, argumentative, and permitted the jurors to draw irrational inferences of guilt

against him. We disagree. Although he has also forfeited these arguments by failing to

object to any of the consciousness of guilt instructions during trial, we nevertheless

conclude they fail on the merits.

CALCRIM No. 362 applies when a defendant gives false statements. “If the

defendant made a false or misleading statement before this trial relating to the charged

crime, knowing the statement was false or intending to mislead, that conduct may show

he was aware of his guilt of the crime and you may consider it in determining his guilt.

[¶] If you conclude that the defendant made the statement, it is up to you to decide its

meaning and importance. However, evidence that the defendant made such a statement

cannot prove guilt by itself.” CALCRIM No. 371 applies when a defendant attempts to

fabricate false evidence. “If the defendant tried to create false evidence or obtain false

testimony, that conduct may show that he was aware of his guilt. If you conclude that the

16
defendant made such an attempt, it is up to you to decide its meaning and importance.

However, evidence of such an attempt cannot prove guilt by itself.” And CALCRIM No.

372 applies when a defendant flees a crime scene. “If the defendant fled immediately

after the crime was committed, that conduct may show that he was aware of his guilt. If

you conclude that the defendant fled, it is up to you to decide the meaning and

importance of that conduct. However, evidence that the defendant fled cannot prove guilt

by itself.”

The California Supreme Court has repeatedly rejected the arguments against

California’s consciousness of guilt instructions that Archuleta raises here. Specifically,

our high court has held that the CALJIC analogs to the CALCRIM consciousness of guilt

instructions do not duplicate instructions on circumstantial evidence. (People v. Page

(2008) 44 Cal.4th 1, 50 [CALJIC No. 2.03 on giving false statements is not duplicative of

circumstantial evidence instructions]; People v. Cage (2015) 62 Cal.4th 256, 285-286

[same conclusion regarding CALJIC No. 2.52 which covers fleeing a crime scene];

People v. Thornton (2007) 41 Cal.4th 391, 437-438 [concluding CALJIC 2.06 regarding

suppressing evidence is constitutional].) The court has also repeatedly held that the

consciousness of guilt instructions are not argumentative. (See, e.g., Page, at pp. 50-51;

People v. Howard (2008) 42 Cal.4th 1000, 1024-1025; People v. Nakahara (2003) 30

Cal.4th 705, 713.) And finally, the court has also rejected arguments that the

consciousness of guilt instructions invite the jury to draw irrational inferences about a

defendant’s state of mind at the time the offense was committed. (People v. Crandell

17
(1988) 46 Cal.3d 833, 870; Howard, at p. 1021; Nakahara, at p. 713; People v. Jackson

(1996) 13 Cal.4th 1164, 1224; Thornton, at p. 438 [“The cautionary nature of the

instructions . . . benefits the defense, admonishing the jury to circumspection regarding

evidence that might otherwise be considered decisively inculpatory. . . . We have rejected

claims that consciousness-of-guilt instructions permit the trier of fact improperly to draw

inferences about a defendant’s state of mind”].)

We view this precedent as binding on the issues Archuleta raises because the

CALJIC consciousness of guilt instructions are materially the same as the CALCRIM
1
consciousness of guilt instructions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57

Cal.2d 450, 455.) The record amply supports giving the consciousness of guilt

instructions. There was evidence Archuleta fled the scene of Vargas’s shooting, gave

1 CALJIC No. 2.03 on giving false statements says: “If you find that before this
trial the defendant made a willfully false or deliberately misleading statement concerning
the crimes for which he is now being tried, you may consider such statement as a
circumstance tending to prove a consciousness of guilt. However, such conduct is not
sufficient by itself to prove guilt, and its weight and significance, if any, are for you to
decide.” (CALJIC No. 2.03 (7th ed. 2005).)

CALJIC No. 2.06 on suppressing evidence states: “If you find that a defendant
attempted to suppress evidence against himself in any manner, such as by destroying
evidence or by concealing evidence, this attempt may be considered by you as a
circumstance tending to show a consciousness of guilt. However, this conduct is not
sufficient by itself to prove guilt, and its weight and significance, if any, are for you to
decide.” (CALJIC No. 2.06 (7th ed. 2005).)

CALJIC No. 2.52 on flight states: “The flight of a person immediately after the
commission of a crime, or after he is accused of a crime, is not sufficient in itself to
establish his guilt, but is a fact which, if proved, may be considered by you in the light of
all other proved facts in deciding whether a defendant is guilty or not guilty. The weight
to which this circumstance is entitled is a matter for you to decide.” (CALJIC No. 2.52
(7th ed. 2005).)
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false statements about the shooting to Erica, and also lied to the police when they

interviewed him in the hospital before his surgery. We conclude the trial court did not err

by instructing the jury with CALCRIM Nos. 362, 371 and 372.

D. The Prison Prior Enhancements Are Unauthorized

While this appeal was pending, S.B. 136 became effective, amending Penal Code

section 667.5 to eliminate one-year enhancements for all offenses except sexually violent

prior offenses as defined in Welfare and Institutions Code section 6600, subdivision (b).

Archuleta argues, and the People correctly concede, that the new law applies to his case

because it’s ameliorative in nature and his judgment was not final when it became

effective. (See, e.g., People v. Jennings (2019) 42 Cal.App.5th 664, 682.) Because the

trial court imposed the maximum sentence, there is no reason to remand for resentencing,

and instead we will modify Archuleta’s sentence on appeal. (People v. Buycks (2018) 5

Cal.5th 857, 893, 896, fn. 15.)

III

DISPOSITION

We modify the judgment to strike the two prison prior enhancements from

Archuleta’s sentence, but in all other respects affirm the judgment. We direct the trial

court to issue a new abstract of judgment consistent with this disposition and forward a

19
copy of the amended abstract of judgment to the Department of Corrections and

Rehabilitation.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH
J.
We concur:

RAMIREZ
P. J.

MENETREZ
J.

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