Opinion
B297513
08-07-2020
THE PEOPLE, Plaintiff and Respondent, v. JACKIE JEROME ROGERS, Defendant and Appellant.
Marks and Brooklier and Donald B. Marks for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Joseph P. Lee and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. No. YA095374 APPEAL from a judgment of the Superior Court of Los Angeles County, Hector M. Guzman, Judge. Affirmed. Marks and Brooklier and Donald B. Marks for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Joseph P. Lee and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Jackie Jerome Rogers of first degree murder and found true he personally used a dangerous weapon. He appeals, and we affirm.
BACKGROUND
An information charged Rogers with the murder of Lisa Marie Naegle on or about December 18, 2016 (Pen. Code, § 187, subd. (a)), and alleged Rogers used a deadly weapon, a hammer (§ 12022, subd. (b)(1)). At trial, Rogers admitted he and Naegle had been having an affair for six months when he killed her by hitting her repeatedly with the hammer.
All subsequent statutory references are to the Penal Code.
1. The prosecution case
Derek Harryman, Naegle's husband, testified she worked as a nurse practitioner at Kaiser Permanente, and taught a nursing assistant class at West Los Angeles College.
On Friday, December 16, 2016, Harryman, Naegle, and her cousin Carlos Gonzalez went to a Kaiser holiday party. Harryman left around 10:30 p.m., and Naegle and Gonzalez stayed to go to an after-party. When Harryman woke up on Saturday, December 17, Naegle was asleep, and she was still sleeping when he left for work around 3:45 p.m. They spoke on the phone at 6:00 p.m., and Naegle told him she was going to a birthday party at Alpine Village with her brother Rafael. When Harryman got home from work around 1:30 a.m. on December 18, Naegle was not home, so he called and texted her to remind her she had to go to work at 7:00 a.m. Naegle called back at 2:30 a.m., sounding happy and intoxicated, and said she was on her way home but first wanted to get some food. Harryman went to bed.
When Harryman woke up around 10:00 a.m., Naegle wasn't home and he thought she was at work. At 5:30 p.m., her coworker Belinda Adkins called to say Naegle never made it in. Harryman immediately called Rafael, who said he had not gone to the party with Naegle. Worried, Harryman and Rafael went to the police station and filled out a missing persons report.
In a phone call the next day, Rogers told Harryman he was at the birthday party with Naegle. She wanted to go to an after-party, and he went home not feeling well. Harryman wasn't surprised because Naegle often partied all night. He had met Rogers five or six months earlier, when he came home from work at 3:20 a.m. and Rogers was on the dark front porch. Rogers said he was Naegle's student, and Naegle explained he was a gay friend she was tutoring for an exam. Afterwards, Naegle would tell Harryman that Rogers was coming over to help her clean up or organize. Harryman had no idea they were having an affair.
Belinda Adkins taught with Naegle. Rogers was a student in the nursing assistant program in 2010 and again in 2016, when he passed the state competency exam. Rogers often came to the classroom at Naegle's request to clean up, fold towels, and move chairs. Adkins, Naegle, and Rogers went to lunch together about eight times in October, November, and December 2016. Rogers always drove them in his car and Adkins sat in the back seat. Twice in November 2016, she saw a large silver hammer with a black handle in Rogers's spotless car. The first time, the hammer was sitting on top of a pillow on the bench seat behind the driver's seat. Adkins thought it seemed out of place because there was no tool box in the car and she had never known Rogers to use a hammer or work with tools. She asked Rogers, "What's up with the tools in the back seat?", and said she was worried the hammer might fly forward if he hit the brakes. Rogers got ruffled, apologized profusely, and put the hammer in the back cab. He explained he had the hammer in case he had road rage and needed it for self-defense, unconvincingly explaining he could jump out of the car with the hammer in his hand and hide behind his open doors to duck around. The second time Adkins saw the hammer, a friend in the back seat had seen the hammer on the floor and asked if she could move it. Rogers apologized, and the friend moved it.
On December 4, 2016, Rogers was in the classroom alone with Adkins and asked her if she thought Naegle would ever leave Harryman to be with him. She told him that was between him and Naegle. Rogers showed her a video on his phone of him and Naegle French kissing, and told her they were sleeping together. When Adkins said Naegle had denied any affair, Rogers replied, " '[Y]our girl has been lying to you.' " Adkins had seen flirty emails, and sometimes Naegle came back to the classroom looking disheveled.
Rogers admired and complimented Naegle, who said nice things to him, helped him with his schoolwork, and was trying to help him get a job. But Naegle also made fun of him, told him to get his teeth fixed and his eyebrows waxed, and to stop drinking soy milk because he had " 'soy tits.' " Rogers would roll his eyes, say, " 'See what I've got to put up with,' " and sometimes pop Naegle in the abdomen and tell her to get rid of that belly. Adkins found it distasteful, but the teasing was mutual. Sometimes Naegle would say in front of Rogers that she wanted to leave her husband, adding: " 'But I'm not going to.' "
On December 15, Adkins, Naegle, and Rogers were cleaning up the skill lab for the state exam. Rogers was upset, scowling, and short in his words, which was unusual. Naegle looked unnerved and a little sheepish. Adkins asked, " 'So what's up? Where did you find Mr. Jack today?' " He answered: " 'She didn't find me anywhere. We've been together all day.' " Naegle shrugged her shoulders and sighed deeply.
On Sunday, December 18, Naegle was scheduled to open the classroom for the state exam. A coworker called Adkins to tell her Naegle had not shown up. Adkins texted Naegle, called campus security to open the classroom, and headed into work. She called Harryman but got no information, and got no response when she called and texted Rogers.
At 12:43 a.m. on Monday, December 19, Rogers texted Adkins that he had been feeling sick all day and had not heard from Naegle. When Adkins called Rogers he confirmed he had been with Naegle Saturday night. They had gone to a party at Alpine Village, and early Sunday morning he left her on the sidewalk in front of the club because she wanted to go to an after-party, and he didn't. Rogers repeatedly said: " 'I don't have anything to lie about.' " He also said: " 'I think you think I'm guilty.' "
Adkins texted Harryman's phone number to Rogers. Rogers texted back that he had just talked to Naegle's brother and was on the way to her parents' home, and he forwarded a "missing" poster of Naegle.
Rogers wanted Naegle to like him and would volunteer to straighten up around the classroom. Naegle sometimes demeaned Rogers and tried to embarrass him. She showed Adkins a video of him cleaning her home. Adkins did not believe Naegle was genuinely interested in Rogers. Naegle called him her "gay friend," and said she would not leave her husband. Adkins had urged her to stop leading Rogers on.
When Naegle's cousin Carlos Gonzalez first met Rogers in June 2016, Naegle said Rogers was her gay assistant. But when Naegle invited Gonzalez to spend the Labor Day weekend in Palm Springs, he was surprised that Rogers was going and not Naegle's husband. In Palm Springs, Naegle and Rogers danced close together. When Naegle said she couldn't wait to fix Rogers's teeth, buy him some clothes, and change his appearance, Rogers said: " 'You better be nice to me or I'm going to tell your cousin the truth.' " Gonzalez thought they were involved, and the next day he saw them dancing in the pool holding hands. When Gonzalez came back to the room with breakfast, Naegle opened the door in a robe, and Rogers was naked in the bathroom. When Naegle did cocaine, Rogers got upset and said, " 'You told me you weren't going to do this anymore.' "
On December 16, Naegle invited Gonzalez to attend the Kaiser holiday party with her and Harryman, who left between 11:00 and 11:30 p.m. Gonzalez and Naegle then rode with friends of hers to another party. After two hours, they took an Uber back to Naegle's house, where Harryman was sleeping. Rogers texted Naegle he was parked outside, and she went out and talked to him for 20 minutes.
When Naegle was still missing on December 19 after the December 17 birthday party at Alpine Village, Gonzalez gathered with her worried family. They called Rogers and he came right over. Rogers said he went to the party with Naegle, but he left her there because she wanted to go to an after-party and he was too tired. He admitted he was having an affair with Naegle. The family then watched Alpine Village surveillance videos showing Naegle and Rogers walking out of the club around 1:16 a.m. on December 18, Naegle getting into Rogers's black SUV, and the SUV driving out of the parking lot. Because the videos contradicted Rogers's story, the family called the police, blocking his car until they arrived.
LAPD officer Robert Garcia responded to the call and searched Rogers's black 1997 Toyota 4Runner with his permission. The front passenger seat was extremely clean, and wet all over. A red stain was inside the emergency brake housing.
Detective David Cortez interviewed Rogers the next day, December 20. Rogers said he had not heard from Naegle at all on December 16, he felt jealous and worried, and so he went to her house around midnight. She came home at 1:30 or 2:00 a.m., they talked in his car, and he left. He asked the detective what should happen to him, and Detective Cortez asked for what. Rogers replied kidnapping, or something worse. He then confessed he killed Naegle and buried her in his backyard.
Police executed a search warrant at the home where Rogers lived with his parents. The property was huge, with a large house, a garage and attached carport and laundry room, and farther back, a big shed. Behind the shed was a pile of cinder blocks, and between the cinder blocks and the back fence was a shallow grave one foot deep, two feet wide, and five feet seven inches long. Naegle's naked body lay facedown in the grave, covered with dirt and manure. Coagulated blood mixed with dirt on the back of her head. Sequins in the grave matched the skirt Naegle wore in the surveillance video, but her clothing, earrings, bracelets, and ring were never found.
Nearby were a shovel, a wheelbarrow, and a rake. Black floor mats were lying near a kiddie pool. A hammer lay on a shelf in the laundry. Upstairs, in Rogers's combined bedroom and office, photos of Naegle and Rogers were on the desk. On the bed was a suitcase with folded clothing inside, along with Rogers's passport and Social Security card.
The floor mats had been removed from the passenger seat and back seat of Rogers's car. No hammer, tools, or toolbox were in the car. Red stains were on the front passenger floorboard, the gear box, the front passenger seat, and the front passenger headrest and ceiling. Rogers led police officers to a trash can where he said he had discarded Naegle's clothing, cell phone, and purse. The officers found only a black purse, which was slashed.
Naegle's blood and DNA, and an unknown male's DNA, were on the handle of the wheelbarrow near the grave. Her blood and DNA were on the 4Runner's floor mats, the right running board, the front passenger ceiling, and the front passenger headrest. No blood was on the hammer, but Naegle's DNA was on the tip of the handle. Blood (not enough to test for DNA) was on the dial of the washing machine in the laundry room.
The coroner found blunt force trauma on the left side, the back, and the right side of Naegle's head, consistent with blows from a hammer. The injuries to the back of her head were the most severe and could result in rapid death. Naegle had bleeding on her brain and bruising around her eyes. The injuries were consistent with at least eight blows with a blunt object inflicted while Naegle was alive. The cause of death was blunt force trauma, and the manner of death was homicide. Rogers's only visible injury was a small scratch on his left bicep.
A December 18 surveillance video from a Jack in the Box 10 miles away from Alpine Village and about a mile away from Rogers's home showed Rogers's 4Runner in the drive-thru lane at around 2:30 a.m. Rogers and Naegle were talking and picking up food. The 4Runner then drove through the parking lot, turned left into a driveway, made a three-point turn, and parked against the curb in the dark. The headlights went off at 2:46 a.m. At around 3:00 a.m., a white light moved in the darkness. Then the headlights came on, and the car backed up and drove toward Imperial Highway.
2. The defense case
A childhood friend who worked as a handyman testified Rogers helped him clean up now and then, and sometimes brought his own hammer. Rogers complained that Naegle was controlling, and he didn't like her drug use. Rogers was laid back and did not take the bait when teased.
Rogers testified he met Naegle when he took the nursing assistant course in 2010, and again when he reenrolled in 2016. Their relationship was friendly, and he told her he was serious about nursing. Unlike most people, she did not brush him off, and told him she would help him any way she could. They began to flirt, although he knew she was married because she always wore her wedding ring. He started to have meals with her and meet her at the mall, her house, and her job. A few days before the state exam, they were setting up the classroom when Adkins was in the other room. Naegle mimed oral sex with a mannequin's penis, and then they kissed.
After the class was over, they talked on the phone and saw each other often. Three weeks later, Naegle invited him to go on a trip to Las Vegas with some of her friends, and they had sex for the first time. He was in love with Naegle and thought the feeling was reciprocated. It surprised and bothered him that Naegle did drugs with her friends.
After Las Vegas, Naegle called him every day to meet up and hang out. They had sex all the time, at her house, at his house, and in their cars. They talked about having children and moving in together. Naegle said she could help him get a job at Kaiser. She told Rogers Harryman was an alcoholic and had a temper, and they were no longer intimate.
When Rogers went over to Naegle's house, he often cleaned and organized, and he helped her clean up at the school. He began to feel this was sidetracking him, and she suggested he become a cop. She often made fun of his "soy tits," his hair, his eyebrows, and the way he smiled. When they were out with her friends, she kept him off to the side, and sometimes called him "Lennie," the character in Of Mice and Men, or " 'my gay friend.' " He didn't like that side of her, and she just made excuses, like saying she was drunk. He also didn't like her frequent drug use. Naegle was sometimes physically abusive. She hit Rogers in the face four or five times when they were arguing.
On December 16, Naegle came over to Rogers's house, and he expected to spend the day relaxing. But after they ate breakfast and had sex, Naegle received a text asking her to go to campus to set up for the state exam. Rogers said he didn't want to help, which upset Naegle. They ended up driving to campus in their separate cars. He was a little mean to Adkins, and then he left and Naegle stayed behind.
The next day, December 17, he texted and called Naegle with no response. He drove to her house to check on her and parked out in front. Naegle came out and told him she went to the Kaiser holiday party with her husband, which upset him. She brushed him off when he asked what was the matter. The conversation was calm, and they made up, kissing in the back of the car.
In the evening on December 17, Naegle called or texted to remind him they had plans to go to a party. He picked her up around 9:00 p.m. They fought over a speeding ticket he got on the way over, and she criticized what he was wearing. At Alpine Village, he felt left out, and Naegle kissed two women in front of him. They argued, and she brushed him off as "her little gay friend."
Naegle sent him out to get the car, and he drove into the parking lot to pick her up. She wanted to wait and see whether there was another party, and he just wanted to go home. They argued, and then decided to get food at the Jack in the Box. After they picked up the food, he parked on the street next to the restaurant, where they continued to argue.
Naegle slapped him, and Rogers went into shock and started to cry. ("I kind of lost it.") He became emotional and asked where the relationship was going. He didn't feel like himself, something came over him, and he "just snapped."
Rogers hit Naegle in the head with the hammer over and over, feeling he was possessed by "an evil demon or spirit." Then he panicked. He backed up the car and drove home and buried Naegle in the back yard, "because I wasn't going to leave her out in the street or dump her in a dumpster." He wanted to cover up what he had done. He threw her purse and belongings away, and took off her clothes and jewelry, which he discarded later. He had not planned to harm Naegle, had not weighed the consequences, and had not prepared to bury her in his backyard.
Rogers lied to Naegle's family because he was ashamed. He lied to the detectives at first, until he couldn't hold it in anymore. He waved the deputies over while he was in the holding tank and told them everything, including where he buried Naegle's body.
On cross-examination, Rogers testified he knew it was wrong to have the affair with Naegle, and he knew it was wrong to kill her. He undressed her before burying her so she would decompose faster and decrease the chances he would be caught. He smashed her cellphone with the same hammer he used to kill her, also to avoid discovery.
He loved Naegle, and she told him she loved him on the night he killed her. Naegle helped him with career advice and tried to help him get a job at Kaiser. He appreciated that Naegle took him seriously. Naegle criticized him but they also teased each other back and forth. He would get upset when she used drugs, but kept control of his emotions. He was frustrated that Naegle wouldn't leave her husband, but never gave her an ultimatum, although he wanted her all to himself. He did not recall Adkins remarking on a hammer in his car. He also did not remember telling the detectives that Naegle's refusal to make a decision to end her marriage made him mad, and that he said " 'hell with this,' " grabbed the hammer from behind his seat, and hit her over the head. He couldn't remember why he put the hammer in the car; it was unusual that it was there.
Naegle didn't see it coming when he first hit her with the hammer. She seemed dazed. He did not remember telling the detectives that he stopped and hit her again when she seemed to recover. After he hit her at least eight times, she slumped forward. He drove home to bury her in the back yard, feeling guilty and no longer in a rage. Once inside the driveway gate, he checked and saw that Naegle was still breathing. He put her into a wheelbarrow and dug her grave in the dark, burying her in the most secluded part of the back yard so he wouldn't get caught. He didn't remember telling the detectives that she was still breathing and moving a little bit.
Rogers wheeled the wheelbarrow over to the grave and dumped Naegle in, pulling her by the ankles to straighten her out. He was no longer in a rage; he felt guilty. He stripped Naegle of her clothes and jewelry, including her wedding ring. He did not remember telling the detectives or his parents she was still breathing and moving, or that he hit her two more times while she was in the grave just to make sure " 'it was like a done deal.' " He agreed there would be no reason to hit her two more times unless he intended to kill her. He did know he had hit her eight to 11 times, resuming when he saw she was dazed.
Rogers covered Naegle's body with dirt and manure, washed the hammer with soap and water to remove her blood and hair, and left the hammer on the laundry room shelf. He washed his clothes and shoes. He drove off and disposed of her clothing and purse, feeling like a criminal. He went to sleep, and when he woke up he tried to clean Naegle's blood off his car's passenger seat, headrest, floormats, and ceiling.
Rogers said his suitcase was packed for an acting job, with his identification to get him into the parking lot.
The defense retained forensic psychologist Dr. Timothy Collister to evaluate Rogers, based on two interviews (during which Rogers was calm and collected) and additional documentation. Rogers had intellectual difficulties in middle and high school, and his IQ was high borderline. His cognitive ability was lower than average, but he had a strong work ethic. Dr. Collister diagnosed Rogers with ADHD and mild paranoid personality disorder, which would make him doubt the loyalty of others and distrust their motives. Rogers said his relationship with Naegle was initially positive, but he felt put off and disappointed toward the end. Although Rogers was capable of premeditating, his cognitive impairment could affect his ability to plan.
On cross-examination, Dr. Collister admitted that Rogers's description of killing Naegle as an "overwhelmingly emotional" event was appropriate regardless of his intellectual capacity or psychiatric conditions. He agreed that Rogers's behavior when he hit Naegle with the hammer, took her home, dug her grave, put her in it, finished her off with the hammer, buried her, and then covered his tracks by discarding evidence and cleaning the hammer and his car, showed the intellectual ability to premeditate and plan the crime.
Rogers's medical records during his incarceration supported the diagnosis of paranoid personality disorder, but he first mentioned paranoia a month after his arrest. Before that Rogers reported no history of mental illness, and his psychiatric evaluations were normal.
On redirect, Dr. Collister testified Rogers was prescribed an antidepressant in March 2017, after he reported auditory hallucinations and then admitted they were "bad thoughts" about the charges against him. In May 2017, prison records showed Rogers reported paranoia and trouble sleeping. His diagnosis then changed to "psychotic disorder not otherwise specified" related to hearing voices and feeling paranoia, and Rogers was prescribed an antipsychotic.
3. Rebuttal case
Adkins testified she twice saw Rogers respond to teasing by jokingly raising his hand as if to backslap Naegle.
Detective Cortez testified Rogers flagged him down from the holding cell the day after his arrest, and told him he had killed Naegle and buried her in the backyard. A formal interview followed shortly thereafter, and Detective Cortez interviewed him again the next day, December 21, followed by a conversation with Rogers and his parents. All the interviews were recorded. Detective Cortez confirmed that Rogers made the statements he claimed not to recall, and the jury received transcripts of the relevant portions of the interviews. The transcripts included Rogers's statement that Naegle initially seemed dazed, he thought she'd recovered, and he hit her again; that he waited between separate hits with the hammer; and that he hit Naegle eight times, and then two more times when she was in the grave, because she was moving slightly and he wanted to make sure she was dead: " 'Like to bury her alive, I think that would probably have been too much.' "
In closing, the prosecutor argued Rogers murdered Naegle with premeditation, especially when he hit her twice in the head because she was still moving as she lay facedown in her grave, and he should be found guilty of first degree murder. Defense counsel admitted Rogers was guilty of an unlawful killing, but he acted rashly and under intense emotion provoked by Naegle's treatment of him, so he was guilty only of voluntary manslaughter.
The court instructed the jury on voluntary manslaughter. --------
The jury found Rogers guilty of first degree murder and found the deadly weapon allegation true.
4. Motion for new trial
Rogers had private counsel throughout the trial, and he substituted in new retained counsel after the verdict. The trial court continued sentencing so Rogers could file a motion for new trial.
The new trial motion argued Rogers's former counsel provided ineffective assistance by failing to raise Rogers's mental competence with the court, and insufficient evidence supported the jury's first degree murder verdict. The prosecutor filed an opposition. After a hearing, the trial court denied the motion. The court sentenced Rogers to 26 years to life in prison, with custody credit, restitution, fines, and fees.
DISCUSSION
1. The trial court did not abuse its discretion when it denied Rogers's claim of ineffective assistance
Rogers's new trial motion argued his trial counsel was ineffective because he did not raise a section 1368 issue in the trial court. The trial court's denial of the motion was within its broad discretion.
" 'In reviewing a motion for new trial, the trial court must weigh the evidence independently. [Citation.] It is, however, guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. [Citation.] The trial court "should [not] disregard the verdict . . . but instead . . . should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict." [¶] A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. " 'The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.' " ' " (People v. Fuiava (2012) 53 Cal.4th 622, 729-730.)
While ineffective assistance is usually most appropriately decided in a habeas corpus proceeding, a defendant may raise the issue as a basis for a new trial, and if the court can determine the effectiveness issue on a new trial motion, it should rule to expedite justice. (People v. Hoyt (2020) 8 Cal.5th 892, 958.) "To make out a claim that counsel rendered constitutionally ineffective assistance, 'the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different.' [Citation.] To make out an ineffective assistance claim on the basis of the trial record, the defendant must show '(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.' " (Ibid.)
Rogers's brief contends "[t]he state of the record is that the defendant after his arrest and while in custody, started hearing voices" in mid-January 2017, and his medication did not reduce or eliminate the voices. Rogers provides no record citations, and his description of the record is inaccurate. Dr. Collister testified Rogers was prescribed an antidepressant in March 2017, after he reported auditory hallucinations which he described as "bad thoughts" about the charges. In May 2017, Rogers reported paranoia and trouble sleeping, and was then diagnosed with an unspecified psychotic disorder involving paranoia and hearing voices, and was prescribed an antipsychotic.
Rogers's new trial motion argued trial counsel was ineffective for failing to request a hearing under section 1368, which states in subdivision (b): "If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369." Rogers claimed that declarations he attached showed trial counsel knew he was hearing voices during trial. A declaration by Rogers's father stated Rogers told him a few weeks after his arrest he was hearing voices, and at least five or six times he told Rogers's trial counsel about this and expressed concern about his son's mental state. Rogers's new counsel filed a declaration stating when he visited Rogers in jail on February 5, 2019, Rogers told him he started hearing voices in mid-January 2017, and the antipsychotic medication he was prescribed a few months later did not work "because to this day Mr. Rogers continues to hear voices." Before the trial, Rogers told his prior counsel this information several times. Rogers told his new counsel that, despite his medication, he heard voices during trial. When he was on the witness stand, the voices would ask him why he was here and why he was talking, and tell him there was no point because he already had told them everything. Rogers said he still heard voices.
Even including the hearsay statements in the declarations, the only statement about what Rogers's trial attorney knew during the trial (which began in September 2018, a year and a half after Rogers told prison doctors he was hearing voices and was prescribed an antipsychotic) was that Rogers said he heard voices "to this day," and he had so informed trial counsel. At the hearing, Rogers's counsel argued that no matter whether the evidence was strong, there would have been no "downside" if counsel had raised the issue, and counsel had an obligation to bring Rogers's competence to the court's attention. The prosecutor responded there was no declaration from trial counsel, who might well have had Rogers evaluated for the purposes of section 1368, and even if he was hearing voices, that did not mean Rogers was incompetent to communicate with his lawyers, understand the proceedings, and help in his defense. The trial court had observed Rogers during trial, and nothing in his conduct indicated he was unable to understand the proceeding and work with his lawyers, including during his calm and coherent testimony in his own defense. Even if he had a mental illness, that was not the test, and Dr. Collister evaluated Rogers and did not flag a section 1368 concern.
The trial court read aloud Dr. Collister's statement that he did not fully evaluate Rogers for competency. The court then explained new counsel was at "a major disadvantage" because unlike the court, counsel had not been present during the entire trial. Trial counsel "was leaving no stone unturned," and had been very effective, persistent, and persuasive. Rogers had conducted himself at trial very much as he appeared in videotapes shown after his arrest. He was just as calm and responsive, had the same demeanor, and made similar attempts at manipulation and deception. Rogers was never not alert, his mannerisms never changed, and he always appeared well-rested. On the witness stand he listened very carefully and answered as if playing a game of chess and trying to stay out of checkmate. He always seemed to be in control, even when the jury was out of the courtroom. "You weren't privy to those observations. The cold record does not bring that out." Even at this very moment, Rogers was alert, paying attention, and engaged. If the section 1368 issue existed, the court had no doubt trial counsel would have raised it, and the court's own observations demonstrated there was no basis for it. Rogers was helpful to his trial counsel and alert, and always seemed in control of his mental faculties. The court denied the motion for new trial.
When we review the denial of a motion for new trial, we "will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission. In all other cases the conviction will be affirmed and the defendant relegated to habeas corpus proceedings," in which the record may be expanded to determine the basis for counsel's conduct or omission. (People v. Fosselman (1983) 33 Cal.3d 572, 581.) Here, there is no affirmative showing trial counsel had no rational tactical purpose not to request a hearing to evaluate Rogers's competency. And certainly Rogers has not shown that requesting a section 1368 hearing would likely have changed the outcome of his trial. The trial record does not establish that trial counsel's performance fell below professional norms, much less that deficient performance affected the result.
The trial court did not abuse its discretion in denying the motion for new trial.
2. Sufficient evidence supported the verdict
Rogers states he fell in love with Naegle, and for six months she abused and ridiculed him; she flirted with others at the Alpine Village party; and then she hit him in the car. This provocation caused him to cry, "snap," and hit her with a hammer, so that "this is a case of [voluntary] manslaughter, and not murder."
Rogers misunderstands the substantial evidence standard and omits significant portions of the evidence at trial, including his own testimony. We review the entire record, view the evidence in the light most favorable to the verdict, and must affirm if any rational trier of fact could have found him guilty of first degree murder. (People v. Avila (2009) 46 Cal.4th 680, 701.) We presume the existence of every fact the jury could reasonably deduce from the evidence, direct or circumstantial, and we will not reverse the judgment even if the circumstances could reasonably support a contrary finding. (Id. at pp. 702-703.) In this case, the evidence overwhelmingly supports the jury's verdict.
First degree murder requires that the defendant deliberate (think carefully about the pros and cons of the proposed course of action) and premeditate (consider beforehand). (People v. Perez (1992) 2 Cal.4th 1117, 1123.) "Premeditation and deliberation do not require an extended period of time, merely an opportunity for reflection" (People v. Cook (2006) 39 Cal.4th 566, 603), and cold and calculated judgment may result from thoughts occurring in rapid succession. (People v. Solomon (2010) 49 Cal.4th 792, 812.) "An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse." (People v. Stitely (2005) 35 Cal.4th 514, 543.)
Rogers himself testified he intended to kill Naegle when he hit her twice in the back of her head with the hammer, after she moved while she lay facedown in the grave he dug for her in his parents' backyard. He also testified he was no longer in a rage. By that time, he was deep into his attempts to cover up his vicious attack on Naegle, with ample time to deliberate and premeditate. After Rogers hit Naegle with the hammer in the car over and over until she could no longer recover, he drove her to his backyard. He put her in a wheelbarrow, dug a grave to fit her, dumped her in it, and then coolly hit her twice in the back of the head when she moved, to make sure she was dead. The injuries to the back of Naegle's head were the most severe. We need not rely on other evidence of Rogers's premeditation and intent (such as putting the hammer in his car, parking on the darkened street after picking up the food, and striking Naegle repeatedly in the car each time she seemed to recover). Rogers's own testimony about the final hammer blows is substantial evidence supporting his conviction of first degree murder.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. We concur:
EDMON, P.J.
LAVIN, J.