P. v. Queen
A jury found Matthew Thomas Queen guilty of second degree murder (Pen. Code, §§ 187, subd. (a), 189).[1] 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.[2]
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.
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