People v. Calderon CA4/1

Filed 7/20/22 P. v. Calderon CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078988

Plaintiff and Respondent,

v. (Super. Ct. Nos. FSB19003784,
FSB19003785)
DAVID R. CALDERON et al.,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of San Bernardino
County, Michael A. Smith, Judge. Affirmed, with corrections.
Daniel J. Kessler, under appointment by the Court of Appeal, for
Defendant and Appellant David Calderon.
Rex Adam Williams, under appointment by the Court of Appeal, for
Defendant and Appellant Nick Simon Calderon.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Robin
Urbanski and Meredith S. White, Deputy Attorneys General, for the Plaintiff
and Respondent.
 A jury convicted David R. Calderon and Nick Simon Calderon1 of
second degree murder in the death of Michael R. The trial court reduced the
count to manslaughter and sentenced the defendants to 25 years to life and
11 years, respectively. It did not award presentence custody credits to David.
David and Nick contend there was not sufficient evidence to find them
guilty of manslaughter. David also contends the court erred in refusing to
calculate presentence good conduct credits.
We conclude substantial evidence supports the convictions in this
matter, and we accordingly affirm. However, the trial court erred in its
calculation of presentence custody credits for David, and we will correct that
error.
I.
BACKGROUND AND PROCEDURAL FACTS
On April 2, 2016, at around 2:07 a.m., video footage from an AM/PM
market captured Michael R. entering with Tyria K. Michael and Tyria had a
short conversation at the cash register, after which Tyria left, and Michael
followed. Tyria got into a white Chevrolet Suburban with a broken front
driver’s window and left with the driver. Michael returned to the store, then
left and walked through the lot. He was seen on video carrying a small
folding knife with a brass knuckle.
Tyria later told police she was at the AM/PM with Michael because he
was supposed to withdraw $20 to pay an outstanding drug debt, but he did
not withdraw the money, so she left.

1 Because the co-defendants share a surname, we use their first names
for clarity.
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 Tyria and the driver went to the Terrace Motel, where she was staying
with Karla A. When Tyria arrived at the Terrace Motel, she told Karla that
Michael had pulled a knife on her; he had never done anything like that
before.
Michael arrived at the Terrace Motel on foot, between 12 and 20
minutes after Tyria. Karla and Tyria let him in their room on the condition
that he would give up his knife; he had already given his phone to Tyria.
Michael used some drugs while he was in the motel room. When he left about
30 minutes after arriving, he took his knife, but Tyria kept his phone, which
she was holding until he paid the money he owed her.
Michael was next seen on video footage around 4:30 a.m. at an Arco on
the corner of Foothill and Meridian, about a quarter to a third of a mile away
from where he was eventually found. Video from the Arco (the Arco video)
showed a white sedan missing a left rear hubcap, with a trunk that did not
close well, and tinted back windows pull up around 4:15 a.m. Two men exited
the white sedan. One was wearing a gray shirt and a blue baseball cap, and
he appeared to have something in his hands.
Michael walked up to the store counter carrying his knife. Michael
exchanged looks or comments with the man in the gray shirt. The man in the
gray shirt walked away, then returned a few seconds later with the taller
man wearing all black, who made a hand motion and punched Michael to the
ground. Michael got up and ran from the two men, losing a shoe as he
retreated. The two men followed Michael as Michael backed away. At one
point, Michael turned and ran around the gas pumps, then faced the two men
and threw his arms out as if challenging them.
After Michael’s exchange with the men, Michael ran eastbound on
Foothill Boulevard from Arco around 4:16 a.m. The direction he ran would

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allow someone to travel north on Meridian to Sixth Street, where a fight
occurred a few minutes later. One of the men threw the shoe on the roof of
the store, where it was later recovered by police. It matched a shoe later
found near Michael’s body.
San Bernardino Police Officer Manuel Valenzuela, who watched the
Arco video, testified that he noticed something on the taller man’s face, but
he was not sure if it was a tattoo, birthmark, or some sort of facial hair. He
also noted the second man had a tattoo of a woman’s face on the left forearm.
Sergeant Nick Oldendorf, who was a detective at the time of the crime,
testified that the exchange in the parking lot between Michael and the two
men in the Arco video led police to believe the two men in the Arco video were
suspects.
Around 4:25 a.m. Maria V. was asleep when shouting and the sounds of
a fight awakened her. She heard someone calling for help, saying, “Mom,”
and “Help me.” She looked out her window, which faced a neighbor’s home,
and she observed two Hispanic men hitting a third male, who was on the
ground covering himself, in a fetal position. The fight happened to the right
side of her driveway, under a street light, about four houses down from the
intersection of Meridian and Sixth Street. She watched the two men punch
and kick Michael. At one point, the taller man in black leaned against a
truck parked to the left side of her driveway. He did nothing to stop the
shorter man. Eventually, the shorter man walked over to the taller one, and
they left on foot.
Maria described the taller perpetrator as wearing black pants and a
black sweater. He had long, wavy hair and appeared to have a mustache.
The day of the incident, she told police she estimated he was 18 to 25 years
old and about 200 pounds. She believed he was around five feet eight inches

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tall. The shorter perpetrator had on lighter clothes, shorts and a lighter gray
T-shirt, with a baseball cap. He was chubbier than the taller man. She told
police he was between five feet five inches and five feet eight inches tall,
weighing around 230 pounds. She believed he was between 18 and 25 years
old, and he had short hair. She compared his weight and height to the
officer’s.
On April 2, 2016, Maria told Officer Valenzuela that she did not
recognize the suspects and would not recognize them if she saw them in the
future. At trial, she testified that she saw the perpetrators’ faces because the
streetlight shone on their faces when they walked away from hitting

Michael.2
Maria grabbed her phone to call 9-1-1, but she did not make the call
because she saw a woman had gone outside to help Michael, and the fire

department and paramedics arrived thereafter.3
Marilu G. lived with Maria and was in a bedroom with a window facing
the street when she heard yelling around 4:25 a.m. and looked out her
window. She saw two Hispanic males walking westbound from the area, and
one looked down like he had dropped something before walking away. She
told police the taller man was around six feet or six feet two inches tall and

2 The defense moved in limine to exclude any in-court identification of
the defendants by Maria, and the prosecution conceded. The court directed
the prosecution to instruct Maria not to make any in-court identification.

3 Maria testified at an earlier trial that she had watched the fight for
just seconds. She also testified that the fire department showed up
immediately after the woman appeared. At this retrial, she testified she
watched the fight for about 20 minutes, and the fire department and
paramedics arrived 10 to 15 minutes after the person appeared to help the
victim.
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200 pounds, wearing a dark shirt and dark pants. She described the shorter
man as five feet six inches to five feet eight inches and 230 pounds, with a
white hooded sweatshirt and dark pants. She placed both men around 18 to
25 years old.
Fernando R. testified he saw Michael in Karla’s room at the Terrace
Motel when he was delivering drugs. Later, he went to his friend Sergio M.’s
house, where he smoked methamphetamine in the garage. Around 4:30 a.m.,
he sat in his car outside his friend’s home, smoking marijuana. He noticed an
old, white, square car leaving the street in front of Sergio’s home, heading in
the direction of Meridian. Paramedics arrived a few minutes after the white
car left.
Sergio testified at trial that Fernando was at his house on April 2 for
about five minutes, and the two smoked marijuana.
Officer Valenzuela arrived on scene after the fire department, at
4:44 a.m. He observed Michael on the ground, bleeding profusely, with
several lacerations to his neck area, upper back, and shoulders. Officer
Valenzuela tried to talk to Michael, but Michael could only gasp for air.
Michael died at the hospital. The cause of death was homicide resulting from
multiple sharp force injuries and loss of blood.
There was a large knife next to Michael, laying on the ground in blood,
as well as a shoe. A forensic specialist processed the crime scene, analyzing
the knife for prints and collecting blood from the knife blade. No usable
latent impressions were recovered; no DNA evidence was introduced at trial.
On August 25, 2016, police distributed still images from the Arco video.
They received anonymous tips, including one which directed police to a
location where the vehicle was kept. Police also received anonymous tips

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about who the assailants were, and they were at the same location as the
vehicle.
Based on the tips, police surveilled 940 East Olive, in Colton. Around
4:00 p.m. on August 26, 2016, police officers observed a white sedan with
tinted windows, a missing rear hubcap, and some trunk damage. Detective
Albert Tello, who was participating in the surveillance, noted the vehicle
matched the pictures captured from the video. A large Hispanic male exited
the driver’s seat and entered the residence with his wife, who had been in the
passenger seat. When they exited the residence and drove off, police followed
the vehicle and conducted a traffic stop. Police identified the driver as David.
They executed a search warrant at the residence, where they recovered black
Air Jordan shoes that appeared to match those worn by the suspect in the
video footage from April 2.
In the picture of David taken on August 26, 2016, he had longer hair
that was curlier at the ends, a small beard, and a mustache. He also had a
large, visible face tattoo, which was covered by his mask at trial. When
David was arrested, he was 33 years old, six feet tall, and he weighed 250
pounds.
On August 26, 2016, police showed Maria photographs of the two men
who had been captured on the Arco video. Maria told them her daughter had
shown her the pictures, and she had also seen them on the news. Maria told
police the men in the video photographs were the two men she saw hitting
Michael.
Police contacted Nick on September 6, 2016. Nick was between five-
feet-eight and five feet nine inches tall and weighed around 200 to 215
pounds. He had a tattoo on his left forearm of a woman’s face that Sergeant

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Oldendorf said looked similar to the one he had seen on the shorter man in
the Arco video.
The People initially charged David and Nick with first degree murder

(Pen. Code,4 § 187, subd. (a)). The matter proceeded to trial in August 2020,
but the jury was unable to reach a unanimous verdict, and the trial court
declared a mistrial. Fernando testified for the defense in court at the August
2020 trial.
The People retried the case three months later on a second degree
murder theory. On November 2, 2020, Fernando was in custody on an
unrelated case. While he was waiting to be transported, Fernando was
placed in a waiting room with David. When Fernando moved to sit down
next to David, David began swinging at him, saying, “You’re a rat.” Video of
this incident was played at the retrial.
David’s and Nick’s attorneys focused on an identity defense. Among
other things, they questioned Maria’s testimony and pointed out
inconsistencies in her testimony over time, as well as changes in other
witnesses’ testimony.
Following the retrial, the jury convicted both David and Nick of second
degree murder.
David moved to set aside the verdict and grant a new trial. Nick moved
to set aside the verdict and grant a new trial or, in the alternative, for
modification of the verdict from murder to voluntary manslaughter.
The court explained there was sufficient evidence to demonstrate David
and Nick were the individuals involved in the altercation at the Arco and
that they were the men who attacked Michael a short distance away. It said
it was “simply not reasonable” to “believe that [Michael] was involved in a

4 Further section references are to the Penal Code.
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confrontation with the defendants at the [Arco], . . . but then two totally
unrelated individuals, similar clothing, similar description, then met up with
[Michael] and attacked him.” Thus, it denied the motion for a new trial.
However, the court explained that Michael had acted in a belligerent
and threatening manner at the Arco, that Michael did or said something to
Nick in a threatening manner with the knife in his hands, and that conduct
precipitated the initial confrontation with David and Nick. It concluded that
David and Nick were acting under the influence of provocation and reduced
the murder convictions to voluntary manslaughter (§ 192, subd. (a)).
At a bifurcated court trial, the court found true allegations that David
had prior convictions for robbery (§ 211) and assault with a deadly weapon
(§ 245, subd. (a)(1)). It sentenced David to 25 years to life, and it sentenced
Nick to 11 years for manslaughter.
David and Nick timely appealed.
II.
DISCUSSION
A. Sufficiency of the Evidence
David and Nick argue that there was insufficient evidence to prove that
they are the two men in the Arco video, or that they are the men who
attacked Michael in the street.
“The proper test to determine a claim of insufficient evidence in a
criminal case is whether, on the entire record, a rational trier of fact could
find [defendant] guilty beyond a reasonable doubt.” (People v. Barnes (1986)
42 Cal.3d 284, 303.) “In determining whether a reasonable trier of fact could
have found defendant guilty beyond a reasonable doubt, the appellate court
‘must view the evidence in a light most favorable to respondent and presume
in support of the judgment the existence of every fact the trier could

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reasonably deduce from the evidence.’ [Citations.] . . . . ‘[O]ur task . . . is
twofold. First, we must resolve the issue in the light of the whole record . . . .
Second, we must judge whether the evidence of each of the essential
elements . . . is substantial . . . .’ ” (People v. Johnson (1980) 26 Cal.3d 557,
576-577.) Substantial evidence in the criminal context is evidence that is
“reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” (Id. at p. 578.)
The testimony of a single eye witness can be sufficient to support a verdict.
(Evid. Code, § 411; People v. Keltie (1983) 148 Cal.App.3d 773, 781-782.) It is
immaterial whether we would have drawn those same inferences (People v.
Solomon (2010) 49 Cal.4th 792, 811-812); our job is not to reweigh the
evidence or reevaluate witness credibility (People v. Jones (1990) 51 Cal.3d
294, 314). “A reversal for insufficient evidence ‘is unwarranted unless it
appears “that upon no hypothesis whatever is there sufficient substantial
evidence to support” ’ the jury’s verdict. [Citation.]” (People v. Zamudio
(2008) 43 Cal.4th 327, 357.)
B. Identity of Men in the Arco Video
David and Nick note the prosecution did not establish who owned the
vehicle seen in the Arco video or the one David was driving in August. They
assert that absent that proof, a conclusion that David was the driver of the
vehicle in the video would be pure speculation. And therefore, they claim,
there is insufficient evidence to demonstrate David and his brother Nick were
the two men in the Arco video.
The prosecution was not required to show vehicle ownership in order to
establish the vehicle that appeared in the Arco video was the same one they
pulled over while David was driving it. There was other, reasonable, credible

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evidence from which a rational trier of fact could have concluded David and
Nick were the two men in the Arco video.
The white sedan in the Arco video was missing a left rear hubcap, and
it had a trunk that did not close well and tinted back windows. An
anonymous caller who had seen the still images alerted police to the location
of the white sedan. An anonymous caller also directed police to the address
in Colton as belonging to at least one of the men seen in the video stills. The
vehicle David was driving in August was, like the one in the Arco video, a
white sedan with tinted windows that was missing a rear hubcap and had
trunk damage. Police pulled over David only after they observed him enter
and exit the address they were surveilling, and they noted the vehicle
matched the images in the Arco video. Given this information, it is
reasonable to infer that the person living at the address in Colton, who the
caller told police was the person in the Arco video, was the same person as
the one driving the similar white sedan to the same address.
Not only was there evidence connecting David to the person in the
video and a vehicle matching the one seen in the video, but the search
warrant executed on David’s residence also uncovered a pair of shoes that
matched those worn by one of the suspects in the video, and David—like the
man in the video—had something visible on his face, a tattoo. Nick, likewise,
matched the description of the person in the video; both had tattoos of a
woman’s face on their forearm, which Detective Oldendorf testified looked
similar. Finally, we note that the jury could view David and Nick in person
in the courtroom and draw its own comparisons between the defendants and
the men in the Arco video to draw a conclusion.
Taken together and considered in the light most favorable to the
judgment, a reasonable juror could conclude the similarities between the men

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and the white sedan in the Arco video and David and Nick and the white
sedan David was driving in August meant they were one and the same.
C. Identification of Assailants at the Fight
David and Nick also contend there is insufficient evidence to prove the
two people in the Arco video are the same people Maria saw attacking
Michael in the street. David contends this identification relied entirely on
Maria’s testimony, and he maintains she was unreliable due to
inconsistencies in her statements over time. Nick likewise contends Maria’s
testimony at trial lacked credibility, arguing her identification of the
assailants was tainted by having seen the still photos from the Arco video
before police shared them with her.
Maria initially told police she would not recognize the two assailants if
she saw them again. But she gave descriptions of the men. She described a
taller man in all black, with long, wavy hair, and a mustache. He seemed
between 18 and 25 years old, about 200 pounds, and around five feet eight
inches tall. This description was similar to the one Marilu gave of the two
men walking away from the area after she had been awakened by yelling.
Like Maria, Marilu identified one of the assailants as taller, around six feet
or six feet two inches tall, wearing a dark shirt and dark pants. The
witnesses’ descriptions were consistent with the person in the Arco video and
with David’s appearance in August 2016. In August, David had longer hair
that was curlier at the ends, a small beard and mustache, and he was six feet
tall and weighed 250 pounds.
The description of the second assailant also matched the video images
of the second assailant, Nick. Maria described him as shorter and wearing
lighter clothes—shorts and a lighter gray T-shirt—with short hair and a
baseball cap. She noted he was chubbier than the taller man, weighing

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around 230 pounds, and he was between five foot five and five foot eight
inches tall, around 18 to 25 years old. Marilu described the second assailant
as shorter than the first, around five feet six inches to five feet eight inches.
She thought he weighed about 230 pounds, and he was wearing a white
hooded sweatshirt and dark pants. Although there are some small
differences regarding height and weight and the color of the shorter
assailant’s shirt, which Maria said was lighter gray and Marilu said was
white, those differences are minor. Their descriptions of the second assailant
are broadly consistent with each other and similar to the images captured in
the Arco video. The second man in the Arco video was shorter and appeared
chubbier than the man in black, and he wore a gray shirt, like the man in the
fight. Maria and Marilu’s descriptions also bear strong similarities to Nick.
Nick was between five foot eight and five foot nine inches tall at the time of
his arrest. He weighed between 200 and 215 pounds, but because he was
shorter than David, he appeared chubbier. Again, this is credible evidence
that supports the verdict.
Maria’s initial concern that she would not recognize the assailants if
she saw them again does not make her identification speculative. Though
she may initially have believed she would not recognize them if she saw them
again, she also explained at trial that she saw the assailants’ faces because
the streetlight shone on them as they walked away from Michael. After
police showed her the video stills, she told them the pictures were of the two
men she saw hitting Michael. David and Nick suggest that Maria’s initial
comments and her viewing of the video stills before police shared them with
her tainted her identification. But the jury was presented with information
that Maria saw the still photos on the news, and that Maria’s daughter
showed her the photos before the police did. It was also presented with

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information about Maria’s statements to police. It was up to the jury to
assess Maria’s credibility and to determine what weight, if any, it should
award her identification of David and Nick as the assailants. (In re
Gustavo M. (1989) 214 Cal.App.3d 1485, 1497; People v. Allen (1985) 165
Cal.App.3d 616, 623.)
The video showed David and Nick leaving the Arco parking lot at
4:25 a.m., moments before Maria and Marilu were awakened by the noise of
the fight, right around the same time. There was testimony that a white,
square vehicle sped away from the scene of the fight shortly before the
paramedics arrived. As the trial court explained, it was reasonable to infer
that the two men at the Arco, who matched the description of the assailants
provided by Maria and Marilu and were seen in the vicinity near the time of
the fight, were the same two men in the fight. Finally, David’s reaction to
Fernando after the first trial, attacking him as a “rat” was additional
evidence to support the claim that David was one of the assailants. Taking
this evidence in the light most favorable to the judgment, we conclude
substantial evidence supports the judgments.
D. Presentence Credits
David contends the court erred by failing to award presentence credits,
and the Attorney General agrees.
At sentencing, the trial court determined David had earned 1,605
credits, but it concluded he was not entitled to any conduct credits. David
moved to correct the error, and the trial court denied the request, citing
section 2933.5.
Section 2933.5 provides that a person convicted of certain felony
offenses who has previously been convicted twice or more and served two or
more separate prior prison terms for offenses also listed within the provision

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is ineligible to earn credit on the current term of imprisonment. (§ 2933.5,
subd. (a).) Although David’s current offense, manslaughter (§ 192, subd. (a)),
is among the offenses ineligible to earn credit, his prior offenses of robbery
(§ 211) and assault with a deadly weapon (§ 245, subd. (a)(1)) are not. (See
§ 2933.5, subds. (a)(1) & (2).) Thus, section 2933.5’s limitations do not apply
to David, and he should have been awarded presentence conduct credit.
When the current conviction is a violent felony as defined in
section 667.5, presentence conduct credits are limited to 15 percent of the
actual time. (See People v. Thomas (1999) 21 Cal.4th 1122, 1130; see also
People v. Philpot (2004) 122 Cal.App.4th 893, 908.) Voluntary manslaughter
is a violent felony. (See § 667.5, subd. (c)(1).) Accordingly, David’s conduct
credits cannot exceed 15 percent of his actual time in custody, pursuant to
section 2933.1.
David was awarded 1,605 days of custody; thus, he is entitled to 240
days of conduct credit, or 1,845 days of credit. (See, e.g., People v. Ramos
(1996) 50 Cal.App.4th 810, 815-816.) We are authorized to correct this error
on appeal, and we will order the correction. (See People v. Duran (1998) 67
Cal.App.4th 267, 270.)
DISPOSITION
The judgment against David Calderon is modified to reflect an award of
1,845 days of credit, comprised of 1,605 days of actual credit and 240 days of
good conduct credit. The superior court is directed to prepare an amended
abstract of judgment, which reflects the corrected award and to forward a

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certified copy of the amended abstract to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

O’ROURKE, J.

DO, J.

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