People v. Calderon CA2/5

INTRODUCTION

A jury found defendant and appellant Joe Calderon (defendant) guilty of murder and assault with a deadly weapon. On appeal, defendant contends that the trial court committed a prejudicial error when it refused to instruct the jury on unconsciousness and heat of passion defenses to the murder charge. Defendant also contends that he was entitled to one additional day of actual custody credit. We hold that the claimed error in refusing to instruct on the unconsciousness defense was harmless and that there was insufficient evidence to support an instruction on the heat of passion defense. We also agree that defendant was entitled to one additional day of custody credit and therefore modify the judgment to reflect the correct number of days of custody credit to which defendant was entitled. In all other respects, the judgment is affirmed.

FACTUAL BACKGROUND

A. Prosecution’s Case

1. Defendant’s Relationship with his Family Jose and Maria Calderon had three children: Joe, Leticia, and Jaime. Defendant was their grandson, the son of their oldest son Joe. Defendant came to live with Jose and Maria when he was five years old.1 Defendant’s grandmother loved him like…