People v. Rogers CA3

Filed 11/18/21 P. v. Rogers CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Nevada) ----

THE PEOPLE, C089779

Plaintiff and Respondent, (Super. Ct. No. TF16000201)

v.

MAURICE DIAUNDRA ROGERS,

Defendant and Appellant.

A jury found defendant Maurice Diaundra Rogers guilty of first degree murder and the trial court sentenced him to 25 years to life, plus an additional 25 years for the special allegation that defendant used a firearm in the commission of the murder. On appeal, defendant contends he received ineffective assistance of counsel because trial counsel did not ask the court to instruct the jury on the defense of subjective provocation, which could have reduced the murder charge from first degree to second. We find counsel was not ineffective.

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Defendant also contends the matter should be remanded to allow the trial court to consider whether to grant defendant mental health diversion pursuant to Penal Code section 1001.36. 1 We conclude defendant forfeited the issue by failing to raise it prior to sentencing. Defendant also notes a clerical error in the abstract of judgment. We will direct the trial court to correct the abstract of judgment and affirm the judgment. BACKGROUND In April 2016, defendant and his girlfriend Felicia Spruell-Jones were evicted from their home. Days after they were evicted, Spruell-Jones’s dead body was found underneath a highway exit overpass, a gunshot wound in her face, and a shell casing several feet away. She also had injuries on her face and arm that were consistent with a car driving over her. It was later determined that the gunshot to her face was the primary cause of Spruell-Jones’s death, but the blunt head injury was a contributing cause as well. In December 2016, following an investigation, the People charged defendant with Spruell-Jones’s murder. (§ 187.) In committing that murder, the People alleged defendant personally used a firearm, discharged a firearm, and discharged a firearm causing great bodily injury or death. (§ 12022.53, subds. (b), (c), & (d).) Defendant pleaded not guilty. During trial, counsel discussed with the trial court whether there was sufficient evidence to warrant an instruction on voluntary manslaughter. The prosecutor argued there was no evidence the victim was killed during a fight and thus, no evidence to support a voluntary manslaughter instruction. Defense counsel argued to the contrary. The court deferred on the ruling until the end of trial.