People v. Archer CA1/2 ( 2024 )

Filed 10/3/24 P. v. Archer CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
A167050
Plaintiff and Respondent,
v.
(Sonoma County Super. Ct.
STEPHEN JOSEPH ARCHER II, No. SCR7472921)
Defendant and Appellant.
A jury convicted defendant Stephen Joseph Archer II of murdering his
friend Manuel “Manny” Valdez, who allegedly had admitted sleeping with
Archer’s wife. Archer contends the trial court erred by admitting improper
lay opinion testimony, as well as hearsay evidence identifying Archer as the
killer. Archer also challenges aspects of his 52 years to life sentence and
requests correction of the abstract of judgment. The People agree the
abstract must be corrected but otherwise reject Archer’s contentions. We
agree the court did not prejudicially err in its admission of evidence and
therefore affirm the judgment of conviction, but we find the record requires
remand for the trial court to reconsider whether to strike the firearm-use
enhancement and to prepare a new abstract of judgment.
1
BACKGROUND
Evidence at Trial
Valdez was shot in his home at 5:50 a.m. on June 28, 2021.1 In the
weeks before the murder, Archer sent Valdez many texts accusing him of
betraying their friendship by sleeping with Archer’s wife Alexie.2 Two days
before the murder, Archer sent Valdez a string of accusatory, threatening
texts—culminating in, “You fuck every friend you got over and this friend
going to do something about it.” The two then spoke by telephone; according
to Archer, Valdez admitted the affair and apologized.
As seen on surveillance video, Alexie parked outside Valdez’s home
shortly before midnight on June 27 and sat in her truck for about 45 minutes.
For part of that time, Alexie and Archer argued by text message. Archer
texted, “Fuck off alexie edge I am done love u” and claimed to be in bed with
another woman. Alexie sent a text that was partly forensically recovered and
began, “Again think what you want, I am not having sex wit.” Around
12:30 a.m., Valdez walked outside and brought Alexie into the house with
him.
Alexie’s truck was still in front of Valdez’s house at 5:41 the next
morning, when someone drove by in a black Mercedes and honked. Archer
was known to drive a black Mercedes. Records show about 40 seconds later,
Archer’s phone connected to a cell tower near Valdez’s home. Archer called
Alexie, who did not answer. Between 5:43 and 5:44 a.m., Archer texted
Alexie, “Back over to f*** Manny some more sheets and dope”; “So lucky I
don’t feel like going in there with [a] shotgun”; “but one day I might.”
1 All dates referenced herein are in 2021.
2 Because Archer and Alexie Edge-Archer partly share a surname, we
refer to her by her first name for clarity, without intending any disrespect.
2
Seconds later, at 5:44, Archer called Alexie again; this time, his phone
connected to a cell tower closer to Archer’s house. Alexie did not answer.
At 5:47 a.m., a black Mercedes parked around the corner from Valdez’s
house. Video surveillance shows the Mercedes appears similar or identical to
the black Mercedes that had driven by Valdez’s house six minutes earlier.
The driver wore a black jacket with a gray hood, black shoes, and a bandana
obscuring much of his face. After getting out of the car, the driver retrieved a
long gun case from the trunk, walked around the corner to Valdez’s house
and, at 5:48, walked down Valdez’s driveway toward the back of the house.
That took him out of view of the security cameras from which video was
available.
At 5:50 a.m., the security camera in Valdez’s living room, which faced
the street, recorded sounds consistent with a person kicking open a door and
racking and firing a shotgun, followed by Alexie’s distinctively raspy voice
yelling, “Hey! Archer! What the fuck are you doing? What are you doing?
Stop! Stop! What are you doing? What are you doing? Archer!” Seconds
later, the Mercedes driver ran—still carrying the long gun case—back up
Valdez’s driveway and toward where he had parked. At 5:51, the driver put
the case in the car and drove away.
At 5:55 a.m., Archer downloaded an app called Scanner Radio–Fire and
Police Scanner. In the next few minutes, he and Alexie had one or two short
phone calls. The camera in Valdez’s living room recorded Alexie say, “Archer!
What? I didn’t do anything new. I was your wife! Oh my God, I told you,
when we did the one time. I’m not! I am not faithful to him. . . .” At 5:59,
Archer texted Alexie, “4 do what you got to do cuz I love you that’s why.”
At 6:02 a.m., Alexie called Archer from her parked truck; their
conversation lasted 34 minutes as Alexie walked in and out of Valdez’s house.
3
At 6:21, Alexie drove away. Over the next hour, Alexie and Archer had five
more phone conversations.
That evening, Archer and Alexie picked up Valdez’s dog from Valdez’s
house and brought it to their house. At 3:30 a.m. the next morning, someone
rode up to Valdez’s house on a bicycle, walked to the back of the house for
several minutes, then left. At 4:50 a.m., someone else approached on foot,
walked to the back of the house for several minutes, then left. In that period,
Archer’s and Alexie’s phones each connected to a cell tower near Valdez’s
house.
Around 3:00 p.m. on June 29, Valdez’s neighbors Louis Z. and
Lauren B. went to Valdez’s house to check on him. The doors were locked, so
they opened a kitchen window for Lauren to climb in, but she smelled gas
and saw an open flame on the stove. The pilot light was on, ringed by
crumpled paper. Another neighbor called the fire department, leading to the
discovery of Valdez’s body. He appeared to have been shot twice with a
shotgun—once in the face and once in the chest.
The police searched Valdez’s house and found the door from the
laundry room to the kitchen had been kicked open. A spent Winchester
Super-X shotgun shell lay near Valdez’s body, wadding from a Super-X shell
was in his chest wound, and two unexpended shells, one a Super-X, were
found in the room. A neighbor found four Super-X shells lying “scattered” by
the driveway, as if “they had fallen out of somebody’s pocket.” Two security
cameras were mounted at Valdez’s house; the kitchen windowsill had an
empty bracket for a third. Data on Valdez’s phone showed Valdez had had
three cameras; the missing one had recorded the driveway down which the
killer had approached the back door.
4
At 5:00 p.m. on June 29, Archer texted Valdez’s phone, “it’s Archer
where are you man? Look I have your dog I didn’t know what else to do.”
On June 30, police executed a search warrant at Archer’s property and
arrested him. Lying in a pile of junk was a security camera of the same type
as those installed at Valdez’s house—a type different from those mounted on
Archer’s property. Police found an empty box of Winchester Super-X shotgun
shells and two Super-X shells, as well as a black jacket with a gray hood and
black shoes like those worn by the gunman in the video.
Archer’s phone contained evidence suggesting that, within 40 hours of
the murder, Archer had sold a shotgun. On the night of June 28, he texted a
friend, “400 for the Mossberg 500.” The next night, someone else messaged
Archer asking, “Still got Mossberg”; he replied “No.” His phone contained two
photos of a shotgun that a witness opined was a Mossberg 500.
A black Mercedes was parked on Archer’s property during the search,
but the police did not realize its significance. It was a “family car” first
owned by Archer’s mother or father, now registered to Archer’s brother-in-
law, and driven regularly by Archer. While officers were searching the
property, Archer spoke by phone with his sister, who came to the property
and drove the Mercedes away. When later asked by police, Archer’s sister
turned in the Mercedes.
Detective Matthew White interviewed Archer after his arrest; the
recording was played for the jury. Archer explained that one of the dogs on
his property was “my friend Manny’s dog.” Asked if Archer and Alexie were
dogsitting for Manny, Archer replied in a stream of consciousness: “Kind of
. . . Lexie’s been hanging out with him a lot lately and we’ve had a lot of
problems . . . between me and him and her and they’re sleeping together and
he’s been my friend and there’s been like war between him saying they’re not
5
sleeping together and, and [unintelligible] so my wife does and I feel that
that’s just the way it is. And but we’ve been friends . . . . I’ve been angry at
him and shit, but . . . I just heard from my wife that we didn’t know where
Manny was.” Archer explained that Valdez’s neighbors had expressed
concern about Valdez’s dog being “in the backyard barking all day,” so Archer
and Alexie had gone to Valdez’s house and “pounded on the doors” trying to
find Valdez, and they “ended up bringing the dog home.”
After Detective White asked if Alexie and Archer had tried to call or
text Valdez, Archer said, “I personally didn’t try to call him because
[unintelligible] a little situation with everything going on. I mean she’s
sitting there calling him so I didn’t . . . . I didn’t call or text him until
yesterday. I was like dude I have your dog, I don’t know what to do . . . . I
don’t remember the last time I talked to him, we got a lot to talk about, him
and my wife sleeping together.” Archer said he thought Valdez had been
sleeping with Alexie for maybe six months. Asked if he had told Valdez to
stop, Archer replied, “we said a lot of mean stuff, but we had talked, it was
[June 26]. I just asked him hey man can you just tell me the truth? And
that’s, did you leave her alone? And he didn’t want to. He didn’t want to.
And then finally just he told me the truth and I said ‘Okay.’ And the last
thing I text[ed] him was I accept your apology, I accept your reasoning.”
At trial, Archer called three alibi witnesses who claimed to have been
with Archer at his home on June 28: a roommate, a friend who testified he
stayed with Archer during a breakup, and a friend who testified he visited for
the weekend. All three testified Archer was dull or exhausted the weekend of
June 26–27 and mostly lay in bed, detoxing from methamphetamine use; one
described him as nearly “bedridden.” None testified with specificity as to
Archer’s whereabouts at the time of the killing.
6
Verdict and Sentencing
Archer was charged with three counts—first degree murder (Pen. Code,
§ 187, subd. (a)),3 possessing a firearm as a felon (§ 29800, subd. (a)(1)), and
possessing ammunition as a felon (§ 30305, subd. (a)(1))—and proceeded to
jury trial in September 2022. The jury found Archer guilty as charged and
further found true enhancements for personal and intentional discharge of a
firearm, causing death (§ 12022.53, subd. (d)), and lesser included
enhancements (id., subds. (b), (c)). Archer waived jury as to certain other
sentencing enhancements and aggravating factors. In the subsequent bench
trial, the court found true six aggravating factors. Three involved the crime,
namely, that it involved great violence, great bodily harm, or cruelty,
viciousness, or callousness; involved weapon use; and was carried out in a
way indicating planning. (Cal. Rules of Court, rules 4.421(a)(1), (2), (8).) The
other three aggravating factors related to Archer, namely, that he had
engaged in violence indicating a serious danger to society, had numerous or
increasingly serious convictions or sustained delinquency petitions, and had
served a prior prison term. (Id., rules 4.421(b)(1)–(3).). The court found the
other sentencing enhancements unproven.
After declining to strike the gun-use enhancement, the trial court
imposed a total sentence of 52 years to life. The sentence comprised
consecutive terms of 25 years to life for murder, 25 years to life for the gun-
use enhancement (with the lesser-included enhancements stayed), and a
middle term of 2 years for possessing a firearm as a felon. The court also
imposed a concurrent term of 2 years for possessing ammunition as a felon.
3 All undesignated statutory references are to the Penal Code.
7
DISCUSSION
I. There Was No Prejudicial Error in the Admission of Evidence
Archer contends the trial court prejudicially erred in admitting two
forms of evidence: (1) lay opinion testimony by Detective White that the
shotgun depicted in two photos on Archer’s phone was a Mossberg 500, and
(2) hearsay testimony by Louis that, after watching security video of the
gunman walking by Louis’s house, “we assumed that it was [Archer].” (Italics
added.) Archer further contends the cumulative prejudice from the combined
errors requires reversal. We disagree and address each argument in turn.
The application of “ordinary rules of evidence does not implicate the
federal Constitution,” so we review whether state-law evidentiary error was
prejudicial under the “ ‘reasonable probability’ standard of People v. Watson
(1956) 46 Cal.2d 818, 836.” (People v. Harris (2005) 37 Cal.4th 310, 336.)
Under that standard, an error warrants reversal only if, after examining
“ ‘the entire cause, including the evidence,’ ” we find it “reasonably probable
that a result more favorable to [the defendant] would have been reached in
the absence of the error.” (Watson, at p. 836.) Archer notes “criticism” of the
application of the Watson standard to state evidentiary error (People v. Cudjo
(1993) 6 Cal.4th 585, 641 (dis. opn. of Kennard, J.)), but he does not dispute
that Watson binds this court, and he has not shown any additional basis for
error. (See People v. Shah (2023) 96 Cal.App.5th 879, 894, fn. 5 [“ ‘Mere
suggestions of error without supporting argument or authority other than
general abstract principles do not properly present grounds for appellate
review’ ”]; Cal. Rules of Court, rule 8.204(a)(1)(B) [briefs must “support each
point by argument and, if possible, by citation of authority”].)4
4 In his opening brief, Archer argued that the admission of Louis Z.’s
testimony triggered the stricter prejudice standard applicable to errors of
federal constitutional law (Chapman v. California (1967) 386 U.S. 18, 24), as
8
A. Admission of White’s Lay Opinion Testimony Was Neither
Erroneous nor Prejudicial
Matthew White testified several times in the course of the trial as the
detective in charge of the homicide investigation. But in expressing an
opinion that the shotgun shown in photos on Archer’s phone was a
Mossberg 500—i.e., the type of shotgun Archer sent texts about selling—
White testified as a layman who, in his personal capacity, is familiar with
shotguns—he uses them to shoot clay pigeons—and who owns two: a
Mossberg 500 and a Remington 870.
As explained by our colleagues in Division Five, lay opinion testimony
is admissible “ ‘ “as ‘a matter of practical necessity when the matters . . .
observed are too complex or too subtle to enable [the witness] accurately to
convey them . . . in any other manner.’ ” ’ ” (People v. Chapple (2006)
138 Cal.App.4th 540, 547.) A lay opinion must be “rationally based on the
perception of the witness” and “helpful to a clear understanding of [the
witness’s] testimony.” (Evid. Code, § 800, subds. (a), (b).) Examples include
lay opinions that someone was intoxicated or angry or driving at an excessive
speed, each of which “conveys information to the jury more conveniently and
more accurately than would a detailed recital of the underlying facts.”
the error violated his right to confront witnesses (Crawford v. Washington
(2004) 541 U.S. 36, 51). But at trial, as the People noted in their response
brief, Archer objected to Louis Z.’s testimony only on hearsay grounds, not
under the confrontation clause, so he forfeited his constitutional claim.
(People v. Riccardi (2012) 54 Cal.4th 758, 801 [defendant forfeited claim by
objecting “purely on state law grounds” with “no mention of any confrontation
clause . . . violations”], overruled on other ground in People v. Rangel (2016)
62 Cal.4th 1192, 1216.) Archer’s reply brief does not dispute the point, so he
has implicitly conceded it. (Campbell v. Ingram (1918) 37 Cal.App. 728, 732
[appellant “has not deigned to reply” to respondent’s argument, so we may
assume appellant deems argument “unanswerable”].)
9
(Chapple, at p. 547.) Put differently, if the facts underlying an opinion
“ ‘ “ ‘cannot be made palpable to the jurors so that their means of forming
opinions are practically equal to those of the witnesses, [lay] opinions of such
witnesses may be received.’ ” ’ ” (Osborn v. Mission Ready Mix (1990)
224 Cal.App.3d 104, 112–113 (Osborn).) The admissibility of lay opinion is
“ ‘ “a matter resting largely in the discretion of the trial court,” ’ ” the exercise
of which is rarely reversed on appeal. (Id. at p. 112.)
As the owner of two pump-action 12-gauge shotguns—a Mossberg 500
and a Remington 870—White testified that the “popular” and “widely
available” Mossberg 500 has two “distinct features” that distinguish it from
other shotguns, including the Remington 870. The Mossberg 500’s safety
selector switch is located on top of the shotgun, where “you can push it
forward or back with your thumb,” whereas the Remington 870’s selector
switch is a push button “within the trigger well or on the side of it.” In
addition, there are “subtle differences in where the screws holding the frame
together are” on a Mossberg 500 vis a vis a Remington 870. Archer did not
object to this foundational testimony.
Archer did object, however, to White opining as to the type of shotgun
seen in the photos recovered from Archer’s phone. The court overruled
Archer’s “foundation” and “speculation” objections by deeming the testimony
“lay opinion.” White then testified that “Based on my own experience with
my own Mossberg 500,” the shotgun in the photos was a Mossberg 500 with
an aftermarket stock. White identified, in the photos, the two distinctive
parts of the Mossberg 500: the safety selector switch “on the top . . .
manipulated by pushing it either forward or back” and the distinctive set
screws that “although it’s very subtle, . . . are in a different location than [on
10
shotguns from] other manufacturers.” White noted that, on the printout of
the second photograph, “[y]ou can see the dots” where the screws are.
On cross-examination, when asked if he was “100 percent sure it’s a
Mossberg 500” and if “those two features distinguish it from any other
shotgun in the world,” White answered “yes.” Defense counsel then asked
White if he was aware that a “replica” shotgun called the “Maverick” is
“exactly the same as the Mossberg shotgun in terms of rivets and safety.”
White said he was not. On redirect—after lunch—White testified he had
googled the Maverick shotgun and, by reviewing images online, had
determined that the “safety selector switch on the Maverick Model 88 which
was the Mossberg 500 replica model . . . is still located on the trigger well.”
He affirmed that he believed the photos on Archer’s phone were of a
Mossberg 500.
Archer now contends the distinctive features of a Mossberg 500 are “not
so numerous, complex, or subtle” that White could not simply have identified
the facts supporting his opinion and left it to the jury to decide if the shotgun
in the photos was a Mossberg 500. (See People v. Sergill (1982)
138 Cal.App.3d 34, 40 [“ ‘Whenever feasible “concluding” should be left to the
jury’ ”].) We disagree. For example, in Osborn, supra, 224 Cal.App.3d 104,
the plaintiff gave a lay opinion about whether the dangerousness of a
construction site was “ ‘open and obvious.’ ” (Id. at pp. 110–111.) In
affirming, the Court of Appeal stated that “A recitation of the size of the area,
the depth and quality of the dirt, the size of the concrete pieces and whether
and in what proportion they were totally exposed, completely hidden, or
partially embedded in the dirt . . . would not make the obviousness of the risk
involved so palpable to the jury that its means of forming an opinion would be
practically equal to those of the witness.” (Id. at p. 113.) The same is true
11
here: Even if White could have detailed exactly where each screw is on a
Mossberg 500, a recitation of the relevant measurements would only have
confused jurors, not given them the same ability to form an opinion whether
the shotgun in the photos was a Mossberg 500. While the distinctive features
White noted were few in number and not highly complex,5 that did not make
them easy for a jury to understand by itself, such that the court abused its
discretion in deciding lay opinion testimony would be helpful. (Evid. Code,
§ 800.)
Finally, even if admitting White’s opinion about the make and model of
the shotgun in the photos was improper, it is not “reasonably probable” the
trial would have had a different outcome absent that testimony. (Watson,
supra, 46 Cal.2d at p. 836.) The lay opinion’s probative effect on the issues to
which it related—whether Archer possessed and tried to sell a shotgun—was
slight. (As discussed in the cumulative error discussion below, the
contribution of White’s lay opinion to the totality of the evidence of guilt was
trivial.)
It was undisputed at trial that the photos came from Archer’s phone;
that the item they depicted was a shotgun; and that Valdez was killed by
shotgun blasts. The only dispute concerned circumstantial evidence
suggesting Archer had sold a Mossberg 500 shotgun shortly after the
homicide and if the make and model of the shotgun shown in the photos was
a Mossberg 500. But there was no ballistic evidence that the shotgun shells
5 Archer’s claim that White was unable to point out the distinctive
features of the Mossberg 500 in the shown photographs mischaracterizes the
transcript. White explained that the “printed version” of one photograph was
somewhat unclear, but “viewed on a screen this photo appears clearer,”
rendering the identifying marks of the Mossberg 500 visible. This
explanation further supports the value of White’s lay testimony.
12
that killed Valdez were fired by a Mossberg 500. The photographs’ presence
on Archer’s phone was incriminating insofar as it tended to show Archer
possessed the type of firearm that had been used to kill Valdez: a shotgun.
The make or model is insignificant. White’s lay opinion that the photos
depicted a Mossberg 500 served only to bolster the link between the photos
and Archer’s messages about selling a “Mossberg 500.” Because there was no
evidence as to the model of shotgun used in the homicide, it is not reasonably
probable that exclusion of White’s limited testimony could have significantly
affected the jury’s view of the shotgun-related evidence from Archer’s
phone—let alone its verdict based on all the evidence against Archer.
B. Admitting Louis’s Hearsay Testimony Was Harmless Error
Archer contends the trial court abused its discretion by overruling his
hearsay objection to testimony by Valdez’s neighbor Louis concerning the
identity of the person seen on the surveillance videos. In the exchange at
issue, Louis described how he and several others, while watching video from
Louis’s security camera of the gunman walking toward Valdez’s house,
agreed that the gunman walked like Archer. We conclude the challenged
testimony was inadmissible hearsay, but it is not reasonably probable the
jury would have reached a different verdict had the testimony been stricken,
so the error was harmless.
At trial, the district attorney played a video of the gunman walking by
Louis’s house and asked Louis, “When you watched that video, did you
identify the person who was walking in that video?” Over objection, Louis
answered, “No.” The district attorney asked again, “Okay. The subject in the
video that was walking by, you didn’t recognize that person?” Concurrent
with a sustained “asked and answered” objection, Louis repeated, “No.” The
district attorney then asked a series of questions concerning Louis’s
transmission of the surveillance videos to the police and inquired, “[A]nd
13
what did you tell the officer when he asked you if you recognized the person
in the video?” Over hearsay and relevance objections, Louis was permitted to
testify, “I said, by the way the person walked, we assumed that it was the
defendant.” The people referred to as “we” were, “Me, my wife, a few other
people that—[Lauren]—lived at the house. . . . One of my other friends who
knows the defendant longer than I ever did.” The rest of Louis’s direct
examination concerned his personal experience with Archer, Archer’s
“distinct walk,” and Louis’s courtroom identification of Archer.
On appeal, Archer contends that the court should have excluded as
hearsay not within any exception Louis’s statement, “by the way the person
walked, we assumed that it was the defendant” and his listing of the persons
who made up the “we.” In stating “we assumed,” Louis is offering for their
truth the out-of-court statements of others concluding that the person seen in
the videos carrying a long gun case was Archer. (Evid. Code, § 1200,
subd. (a).)
We agree the comments were hearsay. The People do not contend the
comments were admissible under any exception to the hearsay rule. Instead,
they argue “we assumed” does not present an out-of-court statement; since
Louis did not elaborate or provide context, Louis’s “assumption” could have
been his own independent presumption of the opinions of the others without
them having made specific “statements” or “assertions.” But for hearsay
purposes, an out-of-court statement need not be verbal. (People v. Rogers
(2009) 46 Cal.4th 1136, 1161, citing Evid. Code, § 225, subd. (b) [hearsay
“statement” can include nonverbal conduct intended by actor as substitute for
verbal expression].) The People’s argument overextends the plain language
of the record.
14
The People then argue that the challenged statement was uttered in
response to a series of questions intended to elicit Louis’s own conclusion as
to identity and how he reached it, not to elicit hearsay statements of others.
But whether a witness’s answer to a question is hearsay depends on the
content of the answer and any limiting instructions as to its use, not the
original intent of the attorney in asking the question. Moreover, the district
attorney could have clarified, in response to the objection, that they were
offering the statement not for its truth but rather to show how Louis came to
his conclusion—or some other arguably nonhearsay purpose. Or the district
attorney or court could have directed Louis to testify as to his own personal
belief and admonished him not to refer to any statements of others. But
neither of these things happened. Instead, the record remains with the
unqualified “by the way the person walked, we assumed that it was the
defendant.” As such, the statement is inadmissible hearsay.
However, we agree with the People that this error is harmless; it is not
reasonably probable the jury would have reached a different verdict had the
trial court stricken the improper testimony. (Watson, supra, 46 Cal.2d at
p. 836.) Considered in light of the overwhelming totality of the evidence of
guilt, as set forth in the cumulative error discussion below, this limited
testimony was of trivial weight. First, although the improper testimony
bolstered the identification of Archer—suggesting that multiple people
recognized him as the person carrying the long gun case—Louis’s vague and
non-specific identification testimony as a whole was of limited value,
particularly when he acknowledged not having independently recognized
Archer on the surveillance video. Louis’s group assumption was further
undermined during cross-examination: Louis confirmed the sole basis for his
identification was the gunman’s walk, agreed his view was an “assumption”
15
of something he did not “definitely know” and had “no evidence to support,”
and admitted that, by the time he and others watched the video, they had
already come to suspect Archer. Moreover, the district attorney only
minimally relied on the other person’s views to persuade the jury. After the
exchange quoted above, the district attorney questioned Louis only about his
personal basis for identifying Archer. And in his closing argument, the
district attorney referred only twice to Louis’s identification; neither
comment alluded to anyone else’s view.
C. The Overwhelming Evidence of Archer’s Guilt Precludes Any
Finding of Prejudice, Cumulative or Otherwise
Archer contends the cumulative prejudicial effect of the two claimed
evidentiary errors compels reversal. (People v. Hill (1998) 17 Cal.4th 800,
844 [individually harmless errors can “by accretion” make trial unfair],
overruled on other ground in Price v. Superior Court (2001) 25 Cal.4th 1046,
1069, fn. 13.) Because we conclude the trial court made only one error, we
necessarily reject his claim. (People v. Grimes (2016) 1 Cal.5th 698, 737
[court “found only one error” so “there is nothing to cumulate”].) But even if
we agreed that admission of the lay opinion testimony was also error, we
would readily conclude the cumulative effect of the two errors fell far short of
causing prejudice under Watson, supra, 46 Cal.2d at page 836, particularly in
view of the overwhelming evidence of Archer’s guilt.
First, neither asserted error undermines the powerful evidence of
motive—Archer was upset that his “friend” Valdez had slept with his wife—
corroborated by Archer’s own overt, repeated threats, such as: “You made it
this way playing both sides and lying to me now every time it’s on”; “[y]ou can
spit[ ] blood or spill the beans without[ ] your[ ] teeth”; “you des[erv]e whats
coming”; “If she brings m[y] son to your house and you let them in it won’t be
16
pretty”; “Fin[e] homeboy lets play then”; and “You fuck every friend you got
over and this friend going to do something about it.”
Second, Archer’s own conduct demonstrated his consciousness of guilt.
Five minutes after the shooting, Archer downloaded a police scanner app.
Circumstantial evidence further suggested that, after the murder, Archer
stole the security camera that had recorded activity in Valdez’s driveway, had
Alexie set a fire in Valdez’s kitchen, took Valdez’s dog to his house so its
barking would not draw attention, sold a shotgun, and had his sister drive
the incriminating black Mercedes off his property. Finally, when Detective
White interviewed him, Archer repeatedly gave nonresponsive answers
betraying his hostile preoccupation with his deceased rival.
Most significantly, nothing about the asserted errors impacts the
unassailable video evidence independently demonstrating that Archer was
the gunman captured on security cameras, visually or auditorily, just before,
during, and after the killing. Nine minutes before the murder, a black
Mercedes matching Archer’s drove by Valdez’s house and honked; seconds
later, Archer used his cell phone in the immediate vicinity of Valdez’s house.
Two minutes later, Archer texted Alexie, “So lucky I don’t feel like going in
there with [a] shotgun,” “but one day I might.” Seven minutes after that, the
driver of the Mercedes went in Valdez’s house with a shotgun and murdered
Valdez, using shells matching ones found on Archer’s property, as Alexie
yelled, “Hey! Archer! What the fuck are you doing? . . . Stop! . . . Archer!” It
is fanciful to suggest that, but for the two bits of evidence at issue, it is
reasonably probable a juror would have had a reasonable doubt as to who
shot Valdez.
17
II. Remand for the Trial Court to Consider Future Dangerousness
in Imposing or Striking the Firearm-Use Enhancement
Archer claims that at sentencing the trial court erred or abused its
discretion in three ways: (1) imposing separate prison terms for murder and
for possessing the firearm used to commit the murder (§ 654); (2) imposing
the middle term for possessing a firearm as a felon; and (3) declining to strike
the firearm-use enhancement. We disagree with Archer’s first two
arguments but agree that the matter should be remanded for the court to
demonstrate is has considered Archer’s future dangerousness in deciding
whether or not to impose the firearm-use enhancement. (People v. Gonzalez
(2024) 103 Cal.App.5th 215, 229–231 (Gonzalez).)
A. Punishments for Both Possessing a Firearm and Murder
Section 654 bars “ ‘ “multiple punishment for a single act or for a course
of conduct comprising indivisible acts. ‘Whether a course of criminal conduct
is divisible . . . depends on the intent and objective of the actor.’ [Citations.]
‘[I]f all the offenses were merely incidental to, or were the means of
accomplishing or facilitating one objective, defendant may be found to have
harbored a single intent and therefore may be punished only once.’ ” ’ ”
(People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).) But a defendant
with “ ‘multiple or simultaneous objectives, independent of and not merely
incidental to each other, . . . may be punished for each violation committed in
pursuit of each objective even though the violations share common acts or
were parts of an otherwise indivisible course of conduct.’ ” (Ibid.)
Archer concedes the correctness of the trial court’s factual findings that
he possessed the shotgun both before and after the murder. The court
concluded that Archer’s possession of the shotgun was “separate and
independent [of] the murder” for purposes of section 654; Archer disputes
that determination. Whether a defendant harbored multiple criminal
18
objectives is a question of fact, the trial court’s determination of which must
be upheld on appeal if supported by substantial evidence. (People v. Nubla
(1999) 74 Cal.App.4th 719, 730.) We review the determination in the light
most favorable to the People and presume the existence of every fact the
court “could reasonably deduce from the evidence.” (Jones, supra,103 Cal.App.4th at p. 1143.)
Construing a predecessor of section 29800, our Supreme Court held
that whether a violation “ ‘constitutes a divisible transaction from the offense
in which [a felon] employs the weapon’ ” depends on the facts of each case.
(People v. Bradford (1976) 17 Cal.3d 8, 22 (Bradford).) A court may punish
both offenses if the evidence shows “ ‘a possession [of the gun] distinctly
antecedent and separate from the primary offense,’ ” but not if the evidence
shows “ ‘a possession only in conjunction with the primary offense.’ ” (Ibid.,
quoting People v. Venegas (1970) 10 Cal.App.3d 814, 821 (Venegas).)
Bradford addressed the latter: a defendant, stopped for speeding while
fleeing a crime, grabbed an officer’s gun and promptly used it to shoot at the
officer. (Bradford, at p. 13.) The court held the possession of the gun was
indivisible from the assault using the gun. (Id. at p. 22.)
Archer contends that his possession of a shotgun and the murder were
indivisibly incident to one objective: to kill Valdez. Archer notes there was
no evidence of when he obtained the shotgun before he arrived at Valdez’s
house with the gun in his trunk, 9 minutes before the murder, and evidence
showed he got rid of the gun within 48 hours after the murder. Thus, Archer
argues, there was “no evidence of meaningful possession separate from the
course of the murder.” We disagree.
Archer’s reliance on Venegas, supra, 10 Cal.App.3d 814, and People v.
Burnett (1967) 251 Cal.App.2d 651 (Burnett), is not persuasive. In Venegas,
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the defendant and a friend sat in a bar drinking until, suddenly, witnesses
heard shots and saw the defendant with a gun. (Venegas, at pp. 817–819.)
The victim testified a third party produced the gun; no evidence showed how
long before the shots the defendant possessed the gun; and the defendant
dropped the gun as he fled. (Id. at pp. 818–820.) The Court of Appeal held
“the evidence shows a possession only at the time defendant shot [the
victim],” which was not separately punishable. (Id. at p. 821.) In Burnett,
the defendant approached a bar at closing time, spoke to a bartender trying
to lock up, then drew a gun and said, “ ‘This is a stickup.’ ” (Id. at p. 653.)
After a struggle over the gun, he fled. (Ibid.) In its opinion, Division Three
recited no other facts and noted it had raised the section 654 issue itself.
(Burnett, at pp. 653–654.) Its analysis comprised only general principles of
section 654 law and this statement: “The possession and use of the revolver
at the time of the robbery . . . was indivisible from the attempted robbery.”
(Burnett, at p. 658.)
Venegas is distinguishable on its facts, Burnett’s truncated analysis
predated Bradford, supra, 17 Cal.3d 8, and later decisions clarify the
application of section 654 to a case like this. (Jones, supra, 103 Cal.App.4th
at pp. 1144–1149; People v. Ratcliff (1990) 223 Cal.App.3d 1401 (Ratcliff).)
In Ratcliff, the defendant used a gun to commit two robberies an hour
and a half apart; the defendant already had the gun “when he arrived at the
scene of the first robbery,” and he still had it when he was arrested half an
hour after the second. (Ratcliff, supra, 223 Cal.App.3d at p. 1413.) The
Fourth District distinguished Bradford and Venegas as holding only that “if
the evidence demonstrates at most that fortuitous circumstances put the
firearm in the defendant’s hand only at the instant of committing another
offense,” section 654 applies. (Ratcliff, at p. 1412.) After dismissing Burnett
20
because it “simply failed to address the issue of prior or subsequent
possession,” the Ratcliff court upheld the sentence. (Id. at pp. 1412–1413.)
In Jones, supra, 103 Cal.App.4th 1139, a friend drove the defendant by
a house, at which he fired several shots. (Id. at p. 1142.) The Second District
applied and elaborated the rule of Ratcliff: “We conclude that, when an
ex-felon commits a crime using a firearm, and arrives at the crime scene
already in possession of the firearm, it may reasonably be inferred that the
firearm possession is a separate and antecedent offense, carried out with an
independent, distinct intent.” (Jones, at p. 1141.) The court noted that Jones
“necessarily had the firearm in his possession before he shot at [the] house”;
there was no evidence he “mysteriously happened to discover the loaded gun
in the car while driving past the house.” (Id. at pp. 1147, 1148.)
Archer contends that, while he possessed the gun for some minutes
before the killing, he did so with no intent other than to murder Valdez, so
the mere passage of time between possession and murder cannot make the
crimes separately punishable. Recent authority weighs heavily and
consistently against this argument. (See People v. Vang (2010)
184 Cal.App.4th 912, 916 [following Ratcliff and Jones], implicitly overruled
on another point as noted in People v. Washington (2021) 61 Cal.App.5th 776,
791; accord, People v. Wynn (2010) 184 Cal.App.4th 1210, 1217, called into
doubt on another ground by People v. Calderon (2013) 214 Cal.App.4th 656,
666–667); People v. Garcia (2008) 167 Cal.App.4th 1550, 1565.) But we need
not assess Archer’s argument that his possession of the shotgun before the
murder cannot be separated from the murder for purposes of section 654, for
Archer concedes he possessed the shotgun after the murder. If Archer’s sole
objective in possessing the shotgun had been to kill Valdez, he would have
had no need to retain possession once he had done so. The evidence supports
21
implied findings that Archer retained possession with two objectives distinct
from killing Valdez. First, as the People note, Archer’s offer to sell the gun
revealed an objective of using the gun to obtain money. Second, the evidence
supports an inference that, in maintaining possession and trying to sell the
gun, Archer sought to dispose of evidence and avoid prosecution. (See People
v. Rodriguez (2015) 235 Cal.App.4th 1000, 1006 [“the objective of the robbery
was to obtain money from the bank, while the objective of the evading arrest
by reckless driving was to avoid being caught by the police”].)
B. Imposing a Middle Term for Possessing a Firearm as a Felon
In imposing a middle term for possessing a firearm as a felon, the trial
court relied on three aggravating factors: Archer’s numerous or increasingly
serious convictions and sustained delinquency petitions, his service of a prior
term in prison or county jail (§ 1170, subd. h)), and his poor performance on
probation. (Cal. Rules of Court, rule 4.421(b)(2), (3) & (5).) Archer contends
the court abused its discretion in selecting the mid-term because he
submitted evidence he was abused as a child, and a court must impose the
lower term if “psychological, physical, or childhood trauma, including . . .
abuse” was a “contributing factor in the commission of the offense,” unless
the court finds that “aggravating circumstances outweigh the mitigating
circumstances [such] that imposition of the lower term would be contrary to
the interests of justice.” (§ 1170, subd. (b)(6) & (A).) We disagree.
Section 1170 does not create a presumption in favor of a lower term
any time there is a suggestion of childhood abuse or trauma; rather, the
presumption applies “only if the [condition] was ‘a contributing factor’ in [the]
commission of the offense.” (People v. Fredrickson (2023) 90 Cal.App.5th 984,
992 (Fredrickson) [youth].) Thus, “to trigger the presumption, there must be
some initial showing that the [condition] was a contributing factor.” (Ibid.)
Here, after Archer’s lawyer filed a sentencing brief, he received letters from
22
Archer’s sister and stepfather disclosing that Archer’s father had abused him.
The lawyer submitted copies on the day of the hearing and offered, “I wish I
had more time to be able to develop that information further to the court, but
I don’t.” He used the letters to support Archer’s request to strike the firearm
enhancement and to raise abuse as a mitigating factor in sentencing
(Cal. Rules of Court, rule 4.423(b)(3)). He did not contend the letters
triggered a lower-term presumption (§ 1170, subd. (b)(6)).
Archer thus did not make a sufficient initial showing to trigger the
lower-term presumption. (Fredrickson, supra, 90 Cal.App.5th at pp. 992–
993.) Because Archer’s challenges to the mid-term rest on an assumption the
presumption was triggered, they fail. In any case, if Archer meant to contest
the trial court’s exercise of its discretion, without regard for the lower-term
presumption, the record amply supports the court’s decision based on the
aggravating factors it found. Archer has not developed an argument that any
such finding was erroneous.
C. Declining to Strike the Firearm Enhancement
Section 12022.53 creates “a tiered system of sentencing enhancements
for specified felonies involving firearms.” (People v. Tirado (2022) 12 Cal.5th
688, 692 (Tirado).) Section 12022.53, subdivisions (b), (c), and (d) mandate
enhancements of 10 years for personally using a firearm in such a felony,
20 years for personally and intentionally discharging a firearm, and 25 years
to life for doing so in a way causing great bodily injury or death. (Tirado, at
p. 695, citing § 12022.53, subds. (b)–(d).) Courts may strike such
enhancements in the interest of justice. (Tirado, at pp. 695–696; § 12022.53,
subd. (h).)
But in 2021, the Legislature amended section 1385, which generally
governs a trial court’s discretion to strike sentencing enhancements, to
enumerate a list of nine circumstances, “the presence of one or more of
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[which] weighs greatly in favor of dismissing the enhancement, unless the
court finds that dismissal of the enhancement would endanger public safety.”
(§ 1385, subd. (c)(2).) The statute defines “endanger public safety” to mean
“there is a likelihood that the dismissal of the enhancement would result in
physical injury or other serious danger to others.” (Ibid.)
Here, the jury found true allegations supporting all three section
12022.53 enhancements, and Archer urged the trial court to strike all three,
invoking two of the nine enumerated circumstances: the enhancement could
yield a sentence of over 20 years, and his offense was “connected to prior
victimization or childhood trauma.” (Id., subd. (c)(2)(C) & (E).)
Noting that the amendment of section 1385 was “new law to all of us,”
the court expressed doubt that the “sentence over 20 years” factor applied but
found that, even if it did, “dismissal of the enhancement would endanger
public safety.” Given the nature of the crime, the court opined, it is “likely
that Mr. Archer when angered or wronged will take out [his anger by
inflicting] harm on someone else.” While Valdez’s affair with Alexie afforded
some mitigation, Archer had not found the two in bed in his own home; he
made and executed a plan to hunt down Valdez in his home. The court found
the crime caused Valdez a moment of “terrified fear” when he heard his door
kicked in and a shotgun racked, and further terror if he survived the first
shot. Archer did not acknowledge wrongdoing or responsibility until the
sentencing hearing, and the probation report noted he had assaulted an
inmate while being held in custody. The court deemed it “regrettable” that
“Archer’s upbringing was claimed to be less than desirable” but added, “I still
don’t think Mr. Archer has figured out where the actual loss is in this case.”
Thus, the court declined to strike the section 12022.53, subdivision (d),
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enhancement of 25 years to life and stayed sentencing on the lesser included
enhancements. (§ 12022.53, subd. (f).)
We review for abuse of discretion both a decision not to strike an
enhancement and a determination that to do so would endanger public safety.
(People v. Mendoza (2023) 88 Cal.App.5th 287, 298.) Our review is “guided by
two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the
sentence to clearly show that the sentencing decision was irrational or
arbitrary.” ’ [Citations.] . . . Second, a ‘ “decision will not be reversed merely
because reasonable people might disagree. . . .’ ” ’ [Citations.] Taken
together, these precepts establish that a trial court does not abuse its
discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 376–
377.) A trial court also abuses its discretion if it bases a discretionary
decision “on an incorrect legal standard.” (People v. Knoller (2007) 41 Cal.4th
139, 156.)
In his opening and reply briefs, Archer contends the trial court abused
its discretion because the record does not support its asserted view “that
Archer settles disputes with a gun.” Archer represents that none of his
14 convictions or sustained juvenile petitions was for perpetrating or
threatening gun violence. But two of the convictions were for possessing
guns or ammunition, and section 1385 does not require a court to find a
likelihood that dismissing a gun-use enhancement will result in gun violence;
a court need only find a likelihood that dismissal will result in “physical
injury or other serious danger to others.” (§ 1385, subd. (c)(2).) That is what
the court found.
However, prior to oral argument, Archer augmented his position,
notifying this court of the Fourth District’s recent decision in Gonzalez,
25
supra, 103 Cal.App.5th 215—also concerning whether the amendments to
section 1385 warranted striking an enhancement imposed under section
12022.53, subdivision (d)—and its clarification that an assessment of danger
upon release rather than danger at the time of sentencing is required: “ ‘in
determining whether [a defendant] poses an unreasonable risk of danger, the
trial court must look to when he would be released if a modification is
granted.’ ” (Gonzalez, at pp. 222–223, quoting People v. Williams (2018)
19 Cal.App.5th 1057, 1063 [petition under § 1170.126 to resentence third-
strike defendant].)
Here, while the trial court used the predictive verbs “would” and “will,”
it is not clear from the record as a whole that the court considered Archer’s
dangerousness at the time of his earliest potential release date in 27 years
(excluding custodial credits), as compared to 52 years if the enhancement was
imposed. Accordingly, we remand for the trial court to reconsider whether to
exercise its discretion under section 1385, subdivision (c), to strike the section
12022.53, subdivision (d) firearm-use enhancement, taking into account
Archer’s risk of danger in the future, at the alternate potential release dates
with or without the enhancement. If the trial court exercises its discretion to
strike the enhancement, it may conduct a full resentencing, in which event it
may reassess what term to impose for possessing a firearm as a felon (see
part II.B, ante), whether to impose, strike, or stay the lesser included
firearm-use enhancements (§ 12022.53, subds. (b)–(c)), and every other
“aspect of the sentence” (People v. Buycks (2018) 5 Cal.5th 857, 893), subject
to the rule that the court may not impose an aggregate sentence on remand
greater than the one Archer initially received (People v. Henderson (2022)
14 Cal.5th 34, 56). If the trial court declines to strike the section 12022.53,
subdivision (d) enhancement after reconsidering the matter in light of
26
Gonzalez, supra, 103 Cal.App.5th 215, then its original sentence shall remain
intact. (See People v. Walker (2021) 67 Cal.App.5th 198, 204–205 [“If the
appellate court’s order upon remand grants the trial court discretion whether
to resentence and the court elects not to do so and leaves the prior sentence
intact, there is no resentencing at all—and hence no need to address other
possible errors in the sentence”], citing People v. Ramirez (2019)
35 Cal.App.5th 55, 63.) We express no view as to how the trial court should
exercise its discretion on remand under section 1385, subdivision (c).
III. The Abstract of Judgment Must Be Corrected in Any Event.
The parties agree, as do we, that the trial court must on remand correct
the abstract of judgment by deleting the checkmark indicating Archer was
sentenced “pursuant to PC 667(b)–(i) or PC 1170.12”—i.e., as if he had a prior
strike conviction. This checkmark is in error. Accordingly, after the trial
court determines whether to strike or leave in place the section 12022.53,
subdivision (d) enhancement and, whether or not to conduct any further
resentencing it is directed to prepare a new abstract of judgment reflecting
the above correction.
DISPOSITION
The judgment of conviction is affirmed, but the matter is remanded for
the trial court to consider whether to strike the section 12022.53
enhancement or not. In any event, the clerk is directed to prepare an
amended abstract of judgment that does not indicate “Defendant was
sentenced pursuant to PC 667(b)–(i) or PC 1170.12,” and to forward a
certified copy to the Department of Corrections and Rehabilitation.
27
_________________________
DESAUTELS, J.
We concur:
_________________________
RICHMAN, ACTING P. J.
_________________________
MILLER, J.
People v. Archer II (A167050)
28