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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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,

v.

ORLANDO ARCHULETA,

Defendant and Appellant.

E072903

(Super.Ct.No. INF1700972)

OPINION

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 
3

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.
4

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 
5

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 selfdefense 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 selfdefense.” (Ibid.) The court explained the instruction was legally accurate because selfdefense “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 selfdefense 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 selfdefense 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 
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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 
17

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
18

(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 

consciousness of guilt instructions.

1

(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 
20

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.