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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

MAURICE DIAUNDRA ROGERS,

Defendant and Appellant.

C089779

(Super. Ct. No. TF16000201)

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. 

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 Undesignated statutory references are to the Penal Code.
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At the end of trial, the court again raised the issue of whether to instruct the jury 

on voluntary manslaughter and invited further discussion from both parties. Counsel 

each submitted the issue based on arguments made off the record. The court ruled: “I do 

not believe that sufficient evidence of provocation has been presented to warrant the 

giving of this jury instruction, so I’m going to deny that jury instruction.” 

During closing arguments, defendant’s counsel argued for defendant’s acquittal. 

Counsel posited defendant and Spruell-Jones were in an argument when the gun 

accidentally went off, killing Spruell-Jones: “That is not second degree murder. That is 

not first degree murder. Might be something else, but it’s not what he’s charged with. 

That might be a hard pill to swallow, but it’s not what he’s charged with.” Counsel 

offered the jury multiple other theories that would result in defendant’s acquittal: “[t]he 

firearm discharged itself. [¶] [f]irearm malfunction. [¶] [i]ntoxication related.” 

“So at this point what I just want to do is implore you folks to look into these 

alternative explanations. Essentially what I have given you are several factors for the 

three main questions to ask why [exit the freeway there]? . . . How did [Spruell-Jones] 

end up dead or what action was it that led to her death? I have essentially given you a 

choose-your-own-adventure map, that any of the factors under these three questions that 

we covered in any mixture leads to a not guilty verdict.” 

Counsel concluded: “The factors that we presented to you this morning swing in 

only one direction and that is a not guilty verdict.” 

The court instructed the jury on murder, including the degrees of murder. “If you 

decide that the Defendant committed murder, it is murder of the second degree unless the 

People have proved beyond a reasonable doubt that it is murder of the first degree as 

defined in CALCRIM Number 521.” The court then instructed the jury on CALCRIM 

No. 521, which requires the People to prove defendant “acted willfully, deliberately[,] 

and with premeditation” when he killed Spruell-Jones. 
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On February 7, 2019, the jury found defendant guilty of first degree murder. The 

jury also found true the allegation that defendant committed the murder with a firearm. 

On May 31, 2019, the trial court sentenced defendant to an aggregate term of 50 years to 

life in state prison. 

Defendant appeals from the judgment.

A. Ineffective Assistance of Counsel

Defendant contends he was denied his constitutional right to the effective 

assistance of counsel at trial because counsel failed to request a CALCRIM No. 522 

pinpoint instruction on subjective provocation. We are not persuaded.

The burden is on defendant to establish ineffective assistance of counsel by a 

preponderance of the evidence. (People v. Ledesma (1987) 43 Cal.3d 171, 218.) To do 

so, a defendant “must show both that trial counsel failed to act in a manner to be expected 

of reasonably competent attorneys acting as diligent advocates, and that it is reasonably 

probable a more favorable determination would have resulted in the absence of counsel’s 

failings.” (People v. Cudjo (1993) 6 Cal.4th 585, 623, citing Strickland v. Washington

(1984) 466 U.S. 668, 687-696 [80 L.Ed.2d 674, 693].)

On direct appeal, as here, this burden is stringent. When the record on appeal 

“ ‘ “sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . 

unless counsel was asked for an explanation and failed to provide one, or unless there 

simply could be no satisfactory explanation,” the claim on appeal must be rejected.’ 

[Citations.] A claim of ineffective assistance in such a case is more appropriately 

decided in a habeas corpus proceeding.” (People v. Mendoza Tello (1997) 15 Cal.4th 

264, 266-267; see People v. Jones (2003) 29 Cal.4th 1229, 1254.)

Decisions about which jury instructions to request is an inherently tactical choice 

to be made by counsel. (People v. Padilla (2002) 98 Cal.App.4th 127, 137.) Here, the 

trial court instructed the jury on general principles of law, including murder and 

premeditation and deliberation. Counsel could have reasonably concluded the 
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instructions given, which correctly stated the law, were adequate to address the issue of 

defendant’s intent. 

Moreover, the trial court refused to instruct the jury on voluntary manslaughter, 

finding insufficient evidence of provocation. After that ruling, defense counsel may have 

made a strategic decision to focus on achieving a complete acquittal rather than leaving 

defendant to face a murder conviction, even one reduced to second degree murder under 

a theory of subjective provocation. 

B. Mental Health Diversion

Effective June 27, 2018, section 1001.36 created a pretrial diversion program for a 

defendant suffering from a “mental disorder [that] was a significant factor in the 

commission of the charged offense” (§ 1001.36, subd. (b)(1)(B)), provided a series of 

requirements are satisfied. (Id., subd. (b)(1)(A)-(F).) Where defendant qualifies for 

diversion, prosecution of the charged offense is postponed while defendant undergoes 

mental health treatment. (Id., subd. (c).) If a defendant performs “satisfactorily in 

diversion, at the end of the period of diversion, the court shall dismiss the defendant’s 

criminal charges that were the subject of the criminal proceedings at the time of the initial 

diversion.” (Id., subd. (e).) Defendant urges us to remand this matter so the trial court 

can determine his eligibility for pretrial diversion under section 1001.36 asserting that 

section 1001.36 applies retroactively.

During the pendency of this appeal, the Supreme Court determined that section 

1001.36 is retroactive in cases that are not final when it went into effect. (People v. 

Frahs (2020) 9 Cal.5th 618, 624-625.) Defendant was charged in December 2016, found 

guilty on February 7, 2019, and sentenced on May 31, 2019. He never requested a 

hearing.

As a general rule, “a party may forfeit [the] right to present a claim of error to the 

appellate court if he did not do enough to ‘prevent[]’ or ‘correct[]’ the claimed error in 

the trial court . . . .” (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) The 
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forfeiture doctrine is not absolute, however, as we are “generally not prohibited from 

reaching a question that has not been preserved for review by a party. [Citations.]” 

(Ibid.) But defendant does not ask us to reach a question that he failed to preserve for 

review or, for that matter, even ask us to correct a claimed error made by the trial court. 

Rather, he seeks remand to allow him to pursue a section 1001.36 pretrial diversion 

program that he did not pursue below, despite the fact that the program was in place 

when he was sentenced. Under these circumstances, we decline to overlook the forfeiture 

rule. (See, e.g., People v. Carmony (2004) 33 Cal.4th 367, 375-376 [where the defendant 

failed to invite the trial court to exercise its discretion, he forfeited his right to raise the 

issue on appeal].)

C. Clerical Error

Defendant notes, and the People agree, the abstract of judgment reflects that an 

enhancement under section 12022.53, subdivision (f) was stayed. This is incorrect. The 

court actually imposed and stayed the enhancement under section 12022.53, subdivision 

(c). The abstract of judgment should be corrected to reflect the judgment of the court.

DISPOSITION

The clerk of the trial court is directed to correct the abstract of judgment consistent 

with this opinion. The judgment is affirmed.

 \s\ , 

BLEASE, Acting P. J.

We concur:

 \s\

HULL, J.

 \s\ ,

KRAUSE, J.