P. v. Luster

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Filed 3/9/21 P. v. Luster CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publi-
cation or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or-
dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
DAPHNYE SUPPORA LUSTER,
Defendant and Appellant.
A157997
(Contra Costa County
Super. Ct. No. 5-934503-4)
Daphnye Suppora Luster appeals the denial of a petition under Penal
Code section 1170.95.1 This ameliorative statute authorizes resentencing of
persons convicted of murder on a theory of natural and probable consequences,
or convicted of felony murder, under circumstances that no longer support a
murder conviction under sections 188 and 189 as modified by Senate Bill
No. 1437 (2017–2018 Reg. Sess.). Appellant was convicted of second degree
murder in 1994 after she admittedly shot the victim in the head following a
verbal dispute. Appellant contends the trial court erred by relying on her
record of conviction to deny the petition without holding an evidentiary
hearing. We shall affirm the order denying the petition.
1 All statutory references are to the Penal Code.

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Factual and Procedural History
This court affirmed appellant’s conviction in People v. Luster (Dec. 13,
1995, A066866 [nonpub. opn.]). The opinion describes an escalating series of
confrontations between appellant and a group of five women, including
Rachell Houston, around 2:00 a.m. in a Denny’s restaurant and its parking
lot. The five women had come to the restaurant in three cars.
In the restaurant, Rachell’s friend Paulette2 complained that appellant
was smoking in the nonsmoking section. Staff spoke to appellant, and she left
the restaurant, exchanging words with Paulette as she did so. Appellant
went home and retrieved a crossbow and a shotgun because, she later told
police, she wanted to scare the women.
Appellant returned to the restaurant as Rachell’s group was leaving.
She re-entered the restaurant but observed Paulette near her car and feared
she was tampering with it. Appellant went outside to confront her as
Paulette began to pull out of the lot in her own car. They exchanged words.
Appellant got the crossbow from her trunk and walked toward Paulette.
Another one of the women, LaDonna, warned Paulette that appellant had
something under her coat, and Paulette then drove away.
Appellant then retrieved the shotgun from the trunk of her car and
walked toward the other cars belonging to the women. Paulette drove back
into the lot but when told that appellant had a gun, drove off again. Rachell
waited in her car for LaDonna. As LaDonna reached the car, appellant
approached, asking, “Do you got a problem with me?” LaDonna got in the car
and Rachell began to drive away, but appellant fired the shotgun, fatally
striking Rachell and injuring LaDonna.
2 Because three of the five women share a last name, this court’s 1995
opinion refers to them all by first name. For consistency, and without
intending any disrespect, the present opinion will follow that usage.

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Appellant testified at trial, admitting the shooting but claiming it was
an accident. When Paulette drove back into the lot, appellant testified, she
inferred that Paulette must have had a gun, since Paulette knew that
appellant was armed. This court’s opinion summarizes appellant’s account of
the shooting as follows: “Appellant walked towards Paulette. She was angry,
scared, and nervous. She had the shotgun under her coat and was talking
loudly to Paulette. When she was about ten feet from Paulette’s car, she
unconsciously pulled the gun out and fired it.”
A jury found appellant not guilty of first degree murder (§ 189, subd. (a))
but guilty of second degree murder (id., subd. (b)), assault with a deadly
weapon (§ 245, subd. (a)(2)), and being a felon in possession of a firearm
(former § 12021, subd. (a)(1)).
In January 2019, appellant filled out a form petition based on the newly
enacted section 1170.95 by checking boxes next to statements that paraphrase
the statutory prerequisites for relief: “1. A complaint, information, or
indictment was filed against me that allowed the prosecution to proceed
under a theory of felony murder or murder under the natural and probable
consequences doctrine. 2a. At trial, I was convicted of 1st degree or 2nd
degree murder pursuant to the felony murder rule or the natural and
probable consequences doctrine[.] 3. I could not be convicted of 1st or 2nd
degree murder because of changes made to [sections] 188 and 189, effective
January 1, 2019.” (See § 1170.95, subd. (a).)3 Appellant also checked the box
by the sentence, “I was convicted of 2nd degree murder under the natural and
probable consequences doctrine or under the 2nd degree felony murder
3 People v. Cooper (2020) 54 Cal.App.5th 106, 114, review granted
Nov. 10, 2020, No. S264684 (Cooper) defines a petition making those three
assertions, and providing certain other required information, as “facially
sufficient.”

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doctrine and I could not now be convicted of murder because of changes to
[section 188], effective January 1, 2019.”
The trial court appointed counsel for appellant, as she requested. The
district attorney’s office filed an opposition, attaching a copy of this court’s
1995 opinion affirming appellant’s conviction. Appellant, through her
appointed counsel, declined to file a reply.
The court took judicial notice of “the underlying docket” and of this
court’s opinion affirming the conviction. It stated that, “as part of the record of
conviction,” it had considered the information, abstract of judgment, minute
orders, jury instructions, verdict sheets, and jury notes.4 The court quoted a
primer on the newly enacted Senate Bill No. 1437 opining that it would be
proper to summarily deny a facially sufficient petition if a cursory review of
the court file would show as a matter of law that the petitioner is not eligible
for relief and held that appellant’s record of conviction establishes facts
making her ineligible for relief as a matter of law. The court held that the
4 The order quotes several parts of the record of conviction: “[A]t trial,
among the instructions the jury received, were: [¶] • ‘First degree murder,
second degree murder with express malice, and voluntary manslaughter, all
require an intent to kill. Second degree murder with implied malice, and
involuntary manslaughter, do not require an intent to kill, but do require an
intentional act. . . .’ [Citation.] [¶] • ‘Murder of the second degree is the
unlawful killing of a human being when: [¶] 1. The killing resulted from an
intentional act, [¶] 2. The natural consequences of the act are dangerous to
human life, and [¶] 3. The act was deliberately performed with knowledge of
the danger to, and with conscious disregard for, human life. [¶] When the
killing is the direct result of such an act, it is not necessary to establish that
the defendant intended that his act would result in the death of a human
being.’ [Citations.] [¶] . . . [¶] [The day after the jury began deliberations, it]
sent a note to the court requesting ‘clarification’ on the term ‘intentional act,’
asking: ‘does it mean intentional act — to kill [] or intentional act to pull the
trigger[?]’ [¶] [The next day], the jury found defendant guilty of second degree
murder, and not guilty of first degree murder.” (Underscoring omitted.)

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petition did not make a prima facie showing that appellant was convicted of
felony murder or of murder on a theory of natural and probable
consequences. Rather, viewed in the light most favorable to appellant, the
record made “clear that [she] was convicted of implied malice second degree
murder,” a “theory of culpability [that] remains fully viable after [Senate Bill
No.] 1437.” The court rejected appellant’s attempt to “re-characterize her
conviction as based on a ‘natural and probable consequences’ theory,” noting
that “[t]he ‘natural consequences’ language of the second degree murder
instruction [used at trial] did not implicate the ‘natural and probable
consequences’ doctrine that [Senate Bill No.] 1437 makes invalid.”
Appellant timely appealed the order denying her petition.
Discussion
Senate Bill No. 1437 “significantly modif[ied] the law relating to
accomplice liability for murder.” (People v. Verdugo (2020) 44 Cal.App.5th
320, 325, review granted Mar. 18, 2020, S260493.) The legislation
“ ‘amend[ed] the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that murder liability
is not imposed on a person who is not the actual killer, did not act with the
intent to kill, or was not a major participant in the underlying felony who
acted with reckless indifference to human life.’ (Stats. 2018, ch. 1015, § 1,
subd. (f).)” (People v. Gentile (2020) 10 Cal.5th 830, 842.)
Appellant’s record of conviction makes clear that the abolition of
natural-and-probable-consequences liability for murder and the narrowing of
the felony-murder rule have no effect on her conviction. She was not charged
with or convicted of a felony that could serve as a predicate for a felony-
murder conviction, nor was she alleged or shown to be an aider and abettor
who could be convicted of murder despite not having personally harbored

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malice. Appellant admittedly is the person who killed Houston, rather than
one who aided and abetted another person to do so. As the trial court noted,
the reference to “natural consequences” in the instruction defining second
degree implied-malice murder given to the jury was unrelated to the doctrine
of natural and probable consequences. The doctrine modified by the new
legislation formerly permitted an aider and abettor to be found guilty of
murder, despite not having personally harbored malice, so long as the direct
perpetrator possessed malice (People v. Gentile, supra, 10 Cal.5th at p. 845),
but appellant admittedly was herself the “direct perpetrator,” not an aider
and abettor, so the modification has no effect on her conviction. Appellant
does not challenge the substance of the trial court’s analysis as to why the
new statute does not apply to her conviction.
Appellant does contend that the trial court committed procedural error
by resolving her facially sufficient petition based on her record of conviction
without issuing an order to show cause and holding an evidentiary hearing.
Subdivision (c) of section 1170.95 sets forth the procedure to resolve petitions
for resentencing: “The court shall review the petition and determine if the
petitioner has made a prima facie showing that the petitioner falls within the
provisions of this section.” The court appoints counsel if requested,5 the
prosecutor files a response, and the petitioner may file a reply. (Ibid.) “If the
5 We need not address the conflict between decisions holding that
section 1170.95 requires two distinct reviews of a petition’s prima facie
sufficiency—one before a court appoints counsel, and another before it orders
an evidentiary hearing (e.g., People v. Verdugo, supra, 44 Cal.App.5th at
pp. 327–328)—and the decision in People v. Cooper, supra, 54 Cal.App.5th at
page 118 holding that the statute requires only one prima facie review,
conducted after appointing counsel (if requested). The trial court in this case
appointed counsel and declined to order an evidentiary hearing only after the
district attorney filed an opposition and appointed counsel declined to file a
reply.

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petitioner makes a prima facie showing that he or she is entitled to relief, the
court shall issue an order to show cause.” (Ibid.) Thus, a court will not hold an
evidentiary hearing unless it first finds a prima facie showing of entitlement
to relief. (People v. Edwards (2020) 48 Cal.App.5th 666, 673, review granted
July 8, 2020, No. S262481.)
As appellant recognizes, since People v. Lewis (2020) 43 Cal.App.5th
1128, review granted March 18, 2020, S260598, several courts of appeal have
held that section 1170.95 authorizes a trial court to consider a petitioner’s
record of conviction, including an opinion affirming the conviction, when
deciding whether the petitioner has made a prima facie showing of
entitlement to relief warranting the issuance of an order to show cause. (See,
e.g., People v. Edwards, supra, 48 Cal.App.5th at pp. 673–674; People v.
Verdugo, supra, 44 Cal.App.5th at pp. 329–330.) The grant of review in Lewis
includes the issue, “May superior courts consider the record of conviction in
determining whether a defendant has made a prima facie showing of eligibility
for relief under . . . section 1170.95?” (460 P.3d 262.) Pending further
guidance from the Supreme Court, we agree with the other courts of appeal
and other divisions of this court that have held that a trial court may
consider the record of conviction in determining whether to issue an order to
show cause regarding a section 1170.95 petition.
Appellant further contends that the trial court made improper use of her
record of conviction. She cites Cooper, supra, 54 Cal.App.5th 106 for the
proposition that subdivision (c) “requires a trial court to issue an order to
show cause and order an evidentiary hearing upon the filing of a facially
sufficient petition—without investigating and engaging in a substantive
review of the record and making findings of fact before doing so.” Cooper held
that a trial court engaged in improper factfinding by relying on the assumed

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truth of preliminary hearing testimony even though the defendant had been
convicted of murder after a plea of no contest, and his record of conviction
included neither a factual basis for his plea nor a stipulation to the
truthfulness of the preliminary hearing testimony. (Cooper, supra, at
pp. 109–112.) Appellant’s record of conviction is nothing like that in Cooper.
Appellant was convicted after a trial in which she was not charged with a
felony that can serve as the predicate for a felony-murder conviction
and admitted having personally killed the victim. Thus, unlike the situation
in Cooper, the record of conviction establishes as a matter of law that neither
the abolition of natural-and-probable-consequences liability for murder nor the
narrowing of the felony-murder doctrine could possibly affect the validity of
her conviction.
Disposition
The order denying the petition is affirmed.
POLLAK, P. J.
WE CONCUR:
TUCHER, J.
BROWN, J.

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