Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County No. RIF127080, John D. Molloy, Judge.
AARON, J.
I.
INTRODUCTION
A jury found Matthew Thomas Queen guilty of second degree murder (Pen. Code, §§ 187, subd. (a), 189). The jury also found that Queen personally discharged a firearm causing great bodily injury or death, within the meaning of section 12022.53, subdivision (d). The trial court sentenced Queen to an aggregate term of 40 years to life in prison in this case.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
At sentencing, the trial court also imposed a sentence in another case for an offense not at issue in this appeal. The court ordered the four-year sentence imposed in the other case to run concurrently with the sentence imposed in this case.
On appeal, Queen claims that the trial court erred in failing to instruct the jury on the lesser included offense of voluntary manslaughter (§ 192, subd. (a)), based on a theory of sudden quarrel or heat of passion. We reject this claim because the record lacks substantial evidence of provocation, which is necessary to support the giving of this instruction. Queen also claims that his trial counsel provided ineffective assistance by making a damaging concession during closing argument. We reject this claim because trial counsel's argument reflected a reasonable tactical strategy rather than ineffective assistance. Finally, Queen contends that he is entitled to an additional day of presentence custody credit. We agree with this contention, and affirm the judgment as modified to reflect the additional day of presentence custody credit.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The prosecution's evidence
1. Queen's motivefor the murder
A couple of months prior to the murder, Queen, Candice Gonzalez, and the victim, Theo Smith, were together at a mutual friend's house. Smith made a call on his cell phone, and shortly thereafter, three men showed up at the house. The men took an aggressive stance behind Queen as if they intended to assault him. Queen began to run, and the men chased him down the street. According to Gonzalez, one of the men swung at Queen and appeared to hit him in the face. Queen was able to run to a nearby liquor store, and the men fled the scene. Shortly after the incident, Gonzalez heard Queen refer to Smith using a racial slur, and heard Queen state several times that he wanted to kill Smith.
Approximately one week after this incident, Gonzalez moved into Queen's apartment. During the time that Gonzalez was living in the apartment, she heard Queen say that he wanted to kill Smith, and get back at Smith for the assault. On August 30, 2005, Queen, Gonzalez, and a friend of Gonzalez's, went to Queen's brother's house in Hesperia. Queen went into the house, leaving Gonzalez and her friend in the car. Approximately 10 minutes later, Queen returned to the car with two guns. Queen's brother later reported the guns stolen, and told police that he suspected that Queen had taken the guns.
2. The shooting
In the early evening hours of November 13, 2005, Queen was driving his white Geo Metro in Moreno Valley. Gonzalez, Gonzalez's boyfriend, Joshua Salcido, and Reina Ayala were passengers in the car. As they approached a pizza restaurant, Ayala commented, "That's where [Smith] works." Queen parked the car, gave Gonzalez the keys, and said, "If anything happens, just leave." Queen then got out of the car and walked toward the pizza restaurant. Approximately three minutes after Queen got out of the car, Salcido also got out of the car and walked to a nearby house to see if a friend was home. Unable to make contact with anyone, Salcido started walking back to Queen's car.
At approximately the same time, Smith's white Honda passed by Queen's parked car. Smith was driving and Queen was the passenger. The two men were smiling and laughing. Smith stopped his car approximately three car lengths in front of Queen's car. After Smith stopped his car, Queen got out of Smith's car, reached into his pocket, and pulled out a gun. Seconds later, Queen fired three or four shots at Smith, killing him. At the time of the shooting, Deputy Sheriff Brian Herian was responding to a call at a nearby location. Deputy Herian heard the gunshots.
3. The investigation
Immediately after shooting Smith, Queen ran back to his car and drove away from the scene, along with Gonzalez, Ayala, and Salcido, who had gotten back into Queen's car. Deputy Herian saw a white Geo Metro drive past him at a high rate of speed. Herian followed the car, but lost sight of it briefly. Within one to two minutes after Deputy Herian began the chase, police were able to stop Queen's car and detain Queen and his passengers. During the chase, Queen threw a gun out of the car window. Police later found the gun, and determined that it was the same gun that Queen's brother had reported stolen. Police also determined that this gun had been used to kill Smith.
While in jail awaiting trial, Queen spoke with Salcido on a recorded telephone call and asked Salcido not to testify. Queen also told Salcido to contact Ayala and "[t]ell her to remember who the homies are..., and who will come for her if she testifies." Gonzalez also testified that Queen called her from jail and told her not to testify.
B. The defense
An eyewitness, Ramon Ruelas (Ramon), who was 15 years old in November 2005, testified that on the night of the shooting he was working on a car in the garage of his house with his father, Martin Ruelas (Martin). Ramon noticed that a car had parked near his house, and that there were two people in the car. After Ramon looked at the parked car, he resumed working with his father. Shortly thereafter, Ramon heard the sound of gunshots. When he turned in the direction of the sound, he saw a male shooting a gun into the parked car. Ramon stated that he was approximately 40 feet away from the car at the time of the shooting, and that he was unable to see the shooter's facial figures and could not determine the shooter's race. Ramon recalled that on the night of the shooting, he told a police officer that the shooter was Hispanic.
Ayala agreed with the prosecutor that Salcido "looks Hispanic."
During her closing argument, defense counsel contended that Salcido, and not Queen, had committed the murder.
III.
DISCUSSION
A. The trial court did not err in failing to instruct the jury on voluntary manslaughter based on a theory of sudden quarrel or heat of passion
Queen claims that the trial court erred in failing to instruct the jury on the lesser included offense of voluntary manslaughter (§ 192, subd. (a)), based on a theory of sudden quarrel or heat of passion.
1. Factual and procedural background
During a hearing outside the presence of the jury, defense counsel requested that the trial court instruct the jury on voluntary manslaughter (§ 192, subd. (a)) based on the theory that the killing occurred in the heat of passion. In support of this request, defense counsel argued that there was evidence concerning an incident that had taken place prior to the shooting during which Smith arranged to have Queen beaten up. Defense counsel claimed that the record indicated that this incident occurred "between two to three weeks to two to three months prior to the time of this shooting." Defense counsel also argued that Gonzalez had testified that it appeared to her that Smith had said something to Queen immediately before the killing that had angered Queen. Counsel claimed that these two incidents were "sufficient to give rise to the heat of passion, either by a reminder of the episode that had occurred or something being said in anger...."
The trial court denied defense counsel's request to instruct the jury on voluntary manslaughter. The court reasoned in part that the prior incident between Smith and Queen had occurred "two to three months before the shooting, " and that "[t]he evidence before the trier of fact is completely devoid of any inference that a provocative act was engaged in by the victim at the time of the shooting."
2. The law governing whether a trial court must instruct the jury on lesser included offenses and the standard of review applicable on appeal
The law governing a trial court's duty to instruct the jury on a lesser included offense, and the standard of review that this court applies in reviewing a trial court's decision regarding whether to give such an instruction, are well established.
"A trial court must instruct on a lesser included offense if substantial evidence exists indicating that the defendant is guilty only of the lesser offense. [Citation.] ' "Substantial evidence" in this context is " 'evidence from which a jury composed of reasonable [persons] could... conclude [ ]' " that the lesser offense, but not the greater, was committed. [Citations.]' [Citation.] [¶] [O]n appeal we employ a de novo standard of review and independently determine whether an instruction on the lesser included offense of voluntary manslaughter should have been given. [Citation.]" (People v. Manriquez (2005) 37 Cal.4th 547, 584 (Manriquez).)
3. Voluntary manslaughter based upon a sudden quarrel or heat of passion as a lesser included offense to murder
In Manriquez, the California Supreme Court reviewed the distinction between murder and voluntary manslaughter based on a heat of passion defense:
" 'The Penal Code defines manslaughter as "the unlawful killing of a human being without malice." [Citation.] The offense is voluntary manslaughter when the killing is "upon a sudden quarrel or heat of passion." [Citation.]... [M]anslaughter has been considered a lesser, necessarily included, offense of intentional murder. Generally, an intent to unlawfully kill reflects malice. [Citations.] An unlawful killing with malice is murder. [Citation.] Nonetheless, an intentional killing is reduced to voluntary manslaughter if other evidence negates malice. Malice is presumptively absent when the defendant acts upon a sudden quarrel or heat of passion on sufficient provocation [citation]....' " (Manriquez, supra, 37 Cal.4th at p. 583, quoting People v. Lee (1999) 20 Cal.4th 47, 58-59.)
The Manriquez court also explained the requirement that a heat of passion killing be based on "sufficient provocation" as follows:
" '[T]he provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.] "Heat of passion arises when 'at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.' " [Citation.]' [Citation.]" (Manriquez, supra, 37 Cal.4th at pp. 583-584.)
In Manriquez, supra, 37 Cal.4th at page 586, the court concluded that a victim's repeated derogatory insults directed at a defendant in the context of a barroom killing did not constitute substantial evidence of provocation. The court reasoned:
"[The eyewitness] testified that [the victim] called defendant a 'mother fucker' and that he also taunted defendant, repeatedly asserting that if defendant had a weapon, he should take it out and use it. Such declarations, as recounted by [the eyewitness], comprised the only evidence of provocative conduct attributed to the victim, and plainly were insufficient to cause an average person to become so inflamed as to lose reason and judgment."
Accordingly, the Manriquez court held that the trial court had properly denied the defendant's request for an instruction on voluntary manslaughter based on the theory of a sudden quarrel or heat of passion. (Manriquez, supra, 37 Cal.4th at p. 586.)
In addition to substantial evidence of provocative conduct, " ' "if sufficient time has elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter.' " [Citation.]' [Citation.]" (People v. Kanawyer (2003) 113 Cal.App.4th 1233, 1244 (Kanawyer); see also id. at p. 1246 [rejecting defendant's claim that voluntary manslaughter instruction was required because, "even assuming, without deciding, that defendant was actually acting in a heat of passion 'based on years of abuse at the hands of his grandparents, ' as he theorized at trial, this 'abuse, ' i.e., harsh criticism of defendant's hapless lifestyle, could not be sufficient provocation under the objective standard, because of the significant time [more than two weeks] separating any opportunity for the claimed provocation to occur from the homicides"].)
"In sum, where there is no substantial evidence of sufficient provocation that would arouse a passion in an ordinarily reasonable person or evidence of sufficient time for that passion to subside in a reasonable person, the court need not give a requested instruction on voluntary manslaughter." (Kanawyer, supra, 113 Cal.App.4th at p. 1245.)
3. Application
As he did in the trial court, Queen claims on appeal that heat of passion voluntary manslaughter instructions were warranted based on two items of evidence. First, Queen argues there is evidence from which the jury could have found that "[i]n August or September, 2005, [Smith] set up [Queen] to get beaten by three people." Next, Queen notes that there was testimony that he had been "laughing" and "smiling, " while seated in Smith's car immediately before the killing. Queen contends that "something happened" in the few seconds that he was standing outside Smith's car that caused him to become enraged. Specifically, Queen argues:
"The first provocative act of [Smith] having [Queen] jumped by three people, from behind, after two years of friendship clearly ties into the later act of [Queen]. As he is in the car, it appears to Gonzales that the two have reached some type of détente, riding together and laughing. However, something occurs during the course of the conversation that turns [Queen] angry to the point of pulling out his gun and shooting it into the car."
We are not persuaded. To begin with, the incident during which Smith allegedly had Queen "set up" occurred at least two months prior to the shooting. Two months is clearly "sufficient time for... passion to subside in a reasonable person." (Kanawyer, supra, 113 Cal.App.4th at p. 1245.) Thus, the trial court did not err in refusing to instruct on voluntary manslaughter on the basis of this incident. (Ibid.; accord People v. Pride (1992) 3 Cal.4th 195, 213 ["To the extent defendant relies solely on criticism he received about his work performance three days before the crimes, such evidence is insufficient as a matter of law"].) Further, as the trial court noted, there is no evidence in the record as to any provocative conduct committed by Smith on the day of the shooting. Queen's arguments on appeal that "something happened" and that "something [occurred]" immediately before the killing that caused Queen to become enraged clearly does not constitute substantial evidence of provocation sufficient to warrant a voluntary manslaughter instruction. (See Manriquez, supra, 37 Cal.4th at p. 586 [victim's acts in calling the defendant a derogatory name and taunting him are "plainly... insufficient" evidence of provocation].)
Gonzalez testified that the incident occurred "probably two or three months" before the shooting.
B. Defense counsel's comment in closing argument that Queen may have been in Smith's car on the night of the murder did not constitute ineffective assistance
Queen claims his trial counsel provided ineffective assistance by making a damaging concession during closing argument. Specifically, Queen claims that defense counsel conceded that Queen had been in Smith's car on the night of the murder, and that in making this concession, defense counsel essentially conceded that Queen had shot Smith.
1. Factual and procedural background
a. Relevant trial testimony
The People presented considerable evidence that Queen was well acquainted with Smith prior to the murder. Smith's mother testified that Queen had been to Smith's home on several occasions, and Gonzalez testified that Smith and Queen had been together at a mutual friend's house a few months before the murder. Salcido testified that, prior to the shooting, he did not know Smith and that he had never met him.
Gonzales, Ayala, and Salcido all testified that Queen was in Smith's car just prior to the murder. In addition, two other eyewitnesses, Ramon and Martin, both testified that they saw two people in Smith's car just before the shooting. Ramon also testified that he believed that the passenger in Smith's car had committed the shooting, but that he did not actually see a passenger get out Smith's car and commit the shooting.
b. Closing arguments
During his closing argument, the prosecutor repeatedly stated that while Smith would have allowed Queen to come into his car since Smith knew Queen, Smith would not have allowed Salcido to get into his car, because Smith did not know Salcido. The prosecutor argued:
"So ask this question, ... who would [Smith] have picked up leaving that restaurant? Who would [Smith] have stopped to give a ride? There's no evidence of any crime that ever occurred, no evidence of any force being used [just prior to the killing], so who had a relationship with Theo Smith that would have caused Theo Smith to stop and give him a ride? Interesting question. Who could that be? We know it's not Josh Salcido."
During her closing argument, defense counsel argued that, even assuming Queen had been in Smith's car on the evening of the shooting, this did not demonstrate that Queen—and not Salcido—committed the murder. Defense counsel argued:
"[L]et's assume that Matthew Queen is a passenger [in Smith's car]. He has his beer. He hops into the car with [Smith], hey, how ya doing.... [¶].... [¶] [Smith] pulls around the side. Now, we know at that point in time that [Salcido] is standing outside [Queen's] car. Now, we are not too sure exactly where because [Salcido's] been entirely inconsistent on where he is standing outside of the car.... [¶] Now, [Salcido] could well have been over by [Queen's car] because if you remember, if you remember, that car came within 18 inches of him. You figure... that's pretty close for a car to come near you. We know [Salcido] had a short fuse that night.... [¶].... [¶] [W]e know [Salcido] was outside of that car [Queen's car] at the time that the shots were fired."
At trial, Salcido testified that a white car (i.e. Smith's) passed within "a couple feet" of him while he was walking back to Queen's car, just before the shooting.
Although defense counsel referred to Smith at this point in her argument, it is clear from the context that she intended to refer to Salcido.
Similarly, later during her closing argument, defense counsel argued:
"Now, when Matt Queen got out of the car, we know he had the beer bottle in his hands. He had just gone to the liquor store. It was [a] coincidence that he runs into [Smith] at that point in time. Because at the liquor store, [Smith's] leaving, hey, how are you doing. He's getting out of the car. We know that [Smith] almost hit [Salcido]. [Salcido] knows where the gun is. [Salcido] simply goes over around to the front of the car to the side and fires the gun."
2. Governing law
In People v. Gamache (2010) 48 Cal.4th 347, 391, the Supreme Court reviewed the well-established law that governs ineffective assistance of counsel claims, in general:
" 'In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citation.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.]' [Citation.]"
The Gamache court noted further, "These standards apply with particular force at closing argument because, as we have recognized, '[t]he decision of how to argue to the jury after the presentation of evidence is inherently tactical....' [Citation.] [Citation.' " (Gamache, supra, 48 Cal.4th at p. 391.) In addition, the Gamache court stated, "We have, repeatedly recognized that sensible concessions [during defense counsel's closing argument] are an acceptable and often necessary tactic." (Id. at p. 392.) Further, defense counsel does not provide ineffective assistance merely by providing an argument that "is not immune from criticism, " so long as it "falls within the 'wide range of reasonable professional assistance' [citation] that is constitutionally tolerable." (Id. at p. 391; accord People v. Moore (1988) 201 Cal.App.3d 51, 57 ["Reversals for ineffective assistance of counsel during closing argument rarely occur; when they do, it is due to an argument against the client which concedes guilt, withdraws a crucial defense, or relies on an illegal defense"].)
3. Application
Citing only the last portion of defense counsel's closing argument, quoted above, in which counsel stated, "Now, when Matt Queen got out of the car, " Queen contends that "[d]uring the waning moments of her closing argument, appellant's trial counsel made the damaging admission that [Queen] was the person in the car with Smith and was the one who exited it." However, Queen fails to cite the earlier portion of defense counsel's argument in which she stated, "[L]et's assume that Matthew Queen is a passenger [in Smith's car]." (Italics added.) Construed in its entirety, defense counsel's argument was that even if the jury were to find that Queen had been in Smith's car just before the shooting, it should not conclude that Queen committed the murder, rather than Salcido. Even construing defense counsel's argument as conceding that Queen had been in Smith's car on the night of the shooting, it was entirely reasonable for defense counsel to make such a concession, in light of the considerable evidence presented at trial that Queen was in fact in Smith's car that night. (Gamache, supra, 48 Cal.4th at p. 392 [sensible concessions are often a necessary trial tactic during closing argument].)
We also reject Queen's argument that defense counsel provided ineffective assistance by failing to argue both that Salcido had been lying when he testified that he did not know Smith, and that Salcido, rather than Queen, had been in Smith's car just before the shooting. As noted above, there was considerable evidence both that Queen had been inside Smith's car just prior to the shooting and that Salcido was outside of Queen's car near the time of the shooting. In addition, there was considerable evidence that Queen knew Smith prior to the shooting, and no evidence that Salcido knew Smith. In light of this state of the evidence, defense counsel made a reasonable tactical decision to argue that Queen may have been inside Smith's car prior to the shooting, but that Salcido had committed the killing even if he had not been in Smith's car. (See People v. Williams (1997) 16 Cal.4th 153, 219 [defense counsel's closing argument " 'is a matter of trial tactics and strategy that a reviewing court generally may not second-guess' [citation]"].) Finally, we reject Queen's contention that Queen's counsel's closing argument "essentially stated that [Queen] was the shooter in the case, " since it is abundantly clear that counsel was offering an explanation of the evidence that was consistent with Queen's innocence and Salcido's guilt.
Defense counsel expressly stated during closing argument, "I'm not going to tell you that [Salcido] was in [Smith's] car. I'm not going to tell you that [Salcido] was in the car. But the individual that [Ramon] saw doing the shooting, the description that [Ramon] gave the night of the shooting itself when events were fresh in his mind describe Josh Salcido. They do not describe Matthew Queen."
Accordingly, we conclude that defense counsel's concession during closing argument that Queen may have been inside Smith's car on the night of the murder did not constitute ineffective assistance.
C. Queen is entitled to an additional day of custody credit
Queen claims that the trial court miscalculated the amount of actual custody credits to which he was entitled pursuant to section 2900.5. Queen claims that the trial court awarded him 1, 377 days of credit, when he was actually entitled to 1, 378 days of credit. Queen notes that he was arrested on November 13, 2005, and that he was sentenced on August 21, 2009. Queen argues that he was entitled to a day of credit for both the day of his arrest and the day of his sentencing. The People contend that the trial court's calculation was correct, arguing, "Respondent also calculated appellant's time in custody between the dates of November 13, 2005 and [August] 21, 2009 to be 1, 377 days." (Italics added.)
Although the People's brief erroneously states that Queen was sentenced on April 21, 2009, it is clear that the People intended to state that Queen was sentenced on August 21, 2009.
Queen's calculation is correct. Queen is entitled to 1, 378 days of presentence custody pursuant to section 2900.5. The People's calculation of the time between the dates of arrest and sentencing is not a proper method to calculate actual days in custody pursuant to section 2900.5, because a defendant is entitled to credit for the day on which he was arrested and the day on which he was sentenced. (See People v. Browning (1991) 233 Cal.App.3d 1410, 1412.) It appears the People may have omitted either the day of Queen's arrest or the day of Queen's sentencing in their calculation.
Alternatively, the People may have failed to account for the fact that 2008 was a leap year, having 366 days.
IV.
DISPOSITION
The judgment is modified to reflect presentence custody credits of 1, 378 days rather than 1, 377 days. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
WE CONCUR: HUFFMAN, Acting P. J., NARES, J.