Filed 10/6/15 P.v. Rodgers CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

DAVID BENJAMIN RODGERS,

 Defendant and Appellant.

 G050335

 (Super. Ct. No. 02HF1729)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, James A. 

Stotler, Judge. Affirmed.

Marcia R. Clark, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and 

Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

* * *
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After his third trial on a charge of murder, a jury found defendant David 

Benjamin Rogers guilty of voluntary manslaughter. At sentencing, the trial court denied 

defendant’s request to strike one of his two prior strike convictions and sentenced him to 

25 years to life in state prison. 

Defendant appeals contending (1) the court erred in excluding a statement 

defendant made in a phone call to his father shortly after the shooting and (2) the court 

erred in denying his motion to strike the prior conviction. We conclude the trial court did 

not err: exclusion of the statement did not constitute an abuse of discretion and the court 

properly exercised its discretion in denying the request to strike the prior conviction.

FACTS

Defendant and Jeanie Waterson, the victim, lived in the same mobile home 

park. They were friends and would visit each other in their mobile homes. Late in the 

morning of December 22, 2002, they were riding in a car together; defendant the driver. 

Witness Scott Ferrell was stopped at a light when he heard a gunshot. He 

saw defendant’s car diagonally across the intersection with a gunshot in the windshield. 

A passenger in the car seemed to be convulsing, and Ferrell thought she had been shot in 

the head. Ferrell saw the driver with a revolver in his hand. He then noticed that, as the 

car began to coast into the intersection, the driver pointed the gun at his passenger and 

fired a second shot into her head. After Ferrell heard a third shot, he drove to a safe 

position and called the police. 

Defendant’s car came to a stop. He got out, went to the back passenger 

side, and leaned over the window. A black Porsche approached and the driver of that car 

got out and approached defendant, believing there had been an accident. He asked 

defendant if he was okay. Defendant reached for his gun and the Porsche driver ran back 

to his own car. Defendant returned to the driver’s side of his car. 
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Shortly thereafter, a large number of police officers, joined by Highway 

Patrol officers, arrived at the scene. Officer Scott Crones, the first to arrive, saw the 

driver of the Porsche who pointed at defendant and yelled, “he has a gun.” Crones 

ordered defendant to put his hands in the air. Other officers similarly directed defendant 

to put up his hands; defendant failed to comply. One of the officers told Crones defendant 

had been shot. Defendant had a gunshot wound at his right ankle. Anastasia McDermott, 

an F.B.I. agent who was present at the scene, saw defendant waving his arms and holding

something in his hand. She took defendant into custody. 

Franklin Rodgers, defendant’s father, testified in the earlier trials that he

had received a telephone call from defendant around 11:00 a.m. They talked for about 10 

minutes and defendant sounded tearful and panicked during the conversation. 

Anthony Juguilon, a forensic pathologist, testified the cause of Waterson’s

death was a single gunshot wound to the chest. She would have lost consciousness within

about 30 seconds of being shot. He also found several defensive injuries on Waterson’s 

right arm. 

DISCUSSION

1. The trial court did not abuse its discretion in denying admission of testimony by Frank 

Rogers as to the contents of his telephone conversation with defendant.

In what may be characterized as an offer of proof, defendant’s lawyer stated 

Frank Rogers had testified at earlier trials that during the 11:00 a.m. telephone 

conversation defendant had said, “I’ve been shot. Jeanie’s been shot. There was a 

struggle over the gun” and “the police are around me. What do I do? What do I do?” The 

trial court ruled this statement to be inadmissible. Defendant argues this hearsay 

statement should have been admitted under Evidence Code section 1240.
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Section 1240 provides, “[e]vidence of a statement is not made inadmissible 

by the hearsay rule if the statement: [¶] (a) [p]urports to narrate, describe, or explain an 

act, condition, or event perceived by the declarant; and [¶] (b) [w]as made spontaneously 

while the declarant was under the stress of excitement caused by such perception.” This 

exception to the hearsay rule is commonly referred to as the “‘spontaneous declaration 

exception.’” “‘(1) [T]here must be some occurrence startling enough to produce this 

nervous excitement and render the utterance spontaneous and unreflecting; (2) the 

utterance must have been before there has been time to contrive and misrepresent, i.e., 

while the nervous excitement may be supposed still to dominate and the reflective powers 

to be yet in abeyance; and (3) the utterance must relate to the circumstance of the 

occurrence preceding it.’” (People v. Poggi (1988) 45 Cal.3d 306, 318.) We examine the 

ruling of the trial court under an abuse of discretion standard. “‘“[T]he discretion of the 

trial court is at its broadest” when it determines whether an utterance was made while the 

declarant was still in a state of nervous excitement.’” (People v. Gonzales (2012) 54 

Cal.4th 1234, 1271; see People v. Poggi, supra, 45 Cal.3d at pp. 318, 319.)

The trial court here gave substantial consideration to the issue. The parties

were permitted to argue the matter at great length. And when issuing its ruling, the court 

made it clear it had reviewed and analyzed the case law. The court explained its ruling in 

detail, stating in part, “the police are on the scene. There’s evidently helicopters hovering 

above, and rather than surrendering to the police, the defendant makes a phone call to his 

father, and he makes those statements to his father.” 

The court went on: “I don’t mean to stress the time, whether it’s 7 minutes, 

14 minutes or whatever, but time is a factor. It’s not dispositive but the time between the 

event [and] the statement is a factor, and there is a relatively short period of time between 

the actual shooting and the statement. And in my judgment this factor on spontaneous 

declaration law is a problem, and that is [factor] number 2. ‘The utterance may have been 

made before there has been time to contrive and misrepresent while the nervous 
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excitement may be supposed still to dominate and the reflective powers to be yet in 

abeyance.’ That requirement is not met here. There is time to reflect and contrive and 

misrepresent.” The court concluded: “Under the circumstances of this case, [factor] 

number 2 is not complied with. And . . . I’ve read more on this and contemplated more on 

this, and I think those statements are inadmissible.”

“An abuse of discretion occurs ‘“when, after calm and careful reflection 

upon the entire matter, it can fairly be said that no judge would reasonably make the same 

order under the same circumstances.”’” (People v. First Federal Credit Corp. (2002) 104 

Cal.App.4th 721, 733.) Considering the broad discretion governing the trial court’s 

decision on the admissibility of this evidence, we cannot say that such discretion was 

abused here.

2. The trial court did not err in denying defendant’s motion to strike one of his prior 

convictions.

The trial court denied defendant’s motion to strike one of his prior 

convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Defendant

argues he was entitled to have his conviction stricken because he was “only” convicted of 

manslaughter, not murder, the prior offenses were closely related in time, and occurred in 

1990. Defendant acknowledges he committed rule infractions while in custody but he is 

now reformed and devoted to his faith. 

“In Romero, the state Supreme Court ruled that the Three Strikes law did 

not remove a sentencing court’s discretion to dismiss a defendant’s prior strike or strikes 

to achieve a punishment in the furtherance of justice.” (People v. Solis (2015) 232 

Cal.app.4th 1108, 1124.) In People v. Williams (1998) 17 Cal.4th 148, the Supreme Court 

explained that a sentencing court’s exercise of discretion to dismiss a prior strike is to be 

guided by the following standard: may the defendant, “in light of the nature and 

circumstances of his present felonies and prior serious and/or violent felony convictions, 
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and the particulars of his background, character, and prospects, the defendant may be 

deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as 

though he had not previously been convicted of one or more serious and/or violent 

felonies.” (Id. at p. 161.)

Based on the record here, we cannot conclude the trial court abused its 

discretion in denying defendant’s Romero motion. Unlike People v. Vargas (2014) 59 

Cal.4th 635, where the Supreme Court held the trial court could not impose the maximum 

sentence on a defendant who suffered two prior strike convictions that arose from a single 

act involving a single victim, defendant’s prior strike offenses were committed at 

different times and in separate places. The absence of any criminal record since 

defendant’s 1990 strike convictions was largely due to the fact he was in prison for most 

of that time. Further, the crime, which seems to be totally unprovoked, combined with 

defendant’s conduct while in custody, belies his claim of sudden reformation. 

DISPOSITION

The judgment is affirmed.

RYLAARSDAM, J.

WE CONCUR:

O’LEARY, P. J.

ARONSON, J.