Filed 10/7/20 P. v. Laster CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent

,

v.

MICHAEL JULIUS LASTER

,

Defendant and Appellant

. B 29 8 348

(Los Angeles County Super. Ct. No. KA075090 )

APPEAL from an order of the Superior Court of
Los Angeles County, William C. Ryan , Judge

. Affirmed

. Nancy L. Tetreault , under appointment by the Court of Appeal, for Defendant and Appellant

. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General , Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and David A. Voet, Deputy Attorney General

, for Plaintiff and Respondent

.2 INTRODUCTION

In 200 7 a jury found Michael Julius Laster guilty of felony driving under the influence of alcohol . T he trial court sentenced
Laster , who had two prior serious or violen t felony convictions within the meaning of the t hree s trikes law, to a prison term of
25 years to life.
In 2013 Laster filed a petition under Proposition 36, the
T hree Strikes Reform Act of 2012, to recall his sentence and for resentencing as a second

- strike offender

. (See Pen. Code, § 1170.126.) 1 The superior court denied the petition, ruling that resentencing Laster would p ose an unreasonable risk of danger to public safety. Laster appeals, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. A Jury Convicts Laster of Driving Under the Influence , and the Trial Court Sentences Him to
25 Years to Life
In October 20 0 5 a California Highway Patrol officer pulled
Laster over after seeing him d riv e 95 miles per hour on the freeway, w eave between lanes and onto the shoulder, and chang e lanes without signaling. 2 When t he officer approached the car

, he
smelled alcohol and not iced Laster’s eyes were bloodshot and watery. The officer administered several field sobriety tests

,

1 Undesignated statutory references are to the Penal Code.

2 The facts related to Laster’s conviction are from this court’s unpublished opinion in Laster’s direct appeal, People v. Laster (Oct. 19, 2009, B206489) [nonpub. opn.].3

which Laster failed . The officer determined Laster was
intoxicated and arrested him

. The People charged Laster with a felony count of driving
under th e influence of alcohol

. (Veh. Code, § 23152, subd. (a) )

. 3 The People alleged Laster had two prior convictions for vehicular manslaughter, each of which arose from the same incident in 1983, that were serious or violent felony convictions within the meaning of the three strikes law

. ( S ee former § 192, subd. ( 3 ) (a)

, added by S tats. 1945, ch. 1006, § 1 )

. 4 Laster’s initial trial resulted in a deadlocked jury, b ut after a retrial a second jury
convicted him

. The trial cou rt sentenced Laster to a prison term of 25 years to life

.

B

. Laster Files a Petition for Resentencing Under Proposition 36 On November 6, 2012 the voters approved Proposition 36

, the T hree Strikes Reform Act of 2012

. ( See People v. Valencia ( 2017 ) 3 Cal.5th 347, 350 .) “ P rior to its amendment by [ Proposition 36] , the Three Strikes law required that a defendant who had two or more prior convictions of violent or serious
felonies receive a third strike sentence of a minimum of 25 years to life for any c urrent felony conviction, even if the current

3 The People also charged Laster with a misdemeanor count of driving with a license that was suspended for a prior conviction of driving unde r the i nfluence ( Veh. Code, § 14601.2, subd. (a)) , to which Laster pleaded no contest

.

4 In 1984 t he Legislature renumbered the subdivision s of section 192 . (Stats. 1984, ch. 742 , § 1, eff. Aug

. 24, 1984.) The current version of subdivision (c)(1) is similar to former subdivision (3)(a).4

offense was neither serious nor violent. ” ( Valencia , at

pp. 353

- 354; see former § 667, subd. (e)(2)(A), as amended by
Stats. 199 4, ch. 12, § 1, eff. Mar. 7, 1994; former § 1170.12,
subd. (c)(2)(A), add ed by Prop. 184, § 1

, as approved by voters

, Gen. Elec. (Nov. 8, 1994) .) “ Proposition 36 ‘ amended the Three Strikes law with respect to defendants whose current conviction is for a felony that is neither serious nor violent ’” so that

, “‘ unless an exception appl ies, the defendant is to receive a second strike sentence of twice the term otherwise provided for the current felony, pursuant to the provisions that apply when a defendant has one prior conviction for a serious or violent felony. ’ ” ( Valencia

, at p. 354; see § § 667, subd. (e)(2)(C ), 1170.12,
subd. (c)(2)(C), amended by Prop. 36, § 4, as approved by voters,
Gen. Elec. (Nov. 6, 2012), eff. Nov. 7, 2012

. ) Proposition 36 “ also enacted a procedure governing inmates
sentenced under the former Three Strikes l aw whose third strike was neither serious nor violent, permitting them to petition for resentencing in accordance with Proposition 36’s new sentencing provisions. ” ( Valencia

, supra , 3 Cal.5 th at p. 350; see § 1170.126.) In particular, “[a] n inmate who is serving a third strike sentence that would have yielded a second strike sentence under Proposition 36’s new sentencing rules ‘ shall be
resentenced ’ as a second strike offender ‘ unless the court, in its discretion, determines that resentenci ng the petitioner would pose an unreasonable risk of danger to public safety. ’ ” ( Valencia

, at p. 354; see § 1170.126, subd. (f).) In January 2013 Laster filed a petition for resentencing under Proposition 36, contending he qualified for resentencing as

a second

- strike offender because his conviction for driving under
the influence was not for a serious or violent felony. The People5

admitted Laster was eligible for resentencing under section 1170.126, subdivision (e), 5 but opposed Laster’s petitio n on the ground that resentencing Laster would pose an unreasonable risk of danger to public safety. The People submitted evidence Laster
had numerous convictions between 1976 and 2005

, in addition to
his two manslaughter convictions

, includ ing four convictions for driving under the influence (not including the commitment
offense ). Laster also had a conviction for reckless driving (see Veh. Code, § 23103); two conviction s for driving with a suspended
or revoked license ; 6 a conviction for posse ss ing a firearm as a felon (see former § 12021, subd. (a)(1), as amended by
Stats. 1995, ch. 178, § 1) ; a conviction for possessi ng cocaine (Health & Saf. Code, § 11350, subd. (a)); and a conviction for
false ly personating another (§ 529, subd. (a))

. In his reply, Laster submitted evidence of his conduct in prison, which Laster argued demonstrated he did not pose a risk

5 An inmate is eligible for resentencing if the inmate’s current sentence was not for a serious or violent felony conviction

or a conviction for one of the ot her crimes described in section 667, subdivision (e)(2)(C), or section 1170 .12
, subdivision (c)(2)(C), and the inmate’s prior convictions were not for one of the serious or violent felonies described in section 667, subdivision (e) (2)(C )(iv), or section 11 70.12, subdivision (c)(2)(C )(iv). (§ 1170.126, subd. (e); see People v. Estrada (2017) 3 Cal.5th 661, 667.)

6 One conviction was for driving with a license that was suspended or revoked for a conviction for driving under the influence (Veh. Code, § 14601.2, subd. (a)), and the other was for driving with a license that was suspended or revoked for reasons other than a conviction of driv ing under the influence ( Veh. Code, § 14601.1, subd. (a))

.6

of danger to public safety. This evidence showed that s ince 2013
Laster had maintained the lowest possible secu rity classification

score for an inmate with a life sentence 7 and that he committed only one serious rule violation while incarcerated

, disobeying a guard’s order , which was classified as a “Division F” offense, the least serious type of serious rule violation. (See Cal. Code Regs., tit. 15, § 3323

. ) Laster submitted evidence that b etween 2013
and 2019 he regularly attende d prison group meetings and
conferences to treat alcohol abuse

, that b etween 20 14 and 2016
h e regularly attended group meetings for depression management, and that in 2014 and 2016 he completed courses in anger management. Laster also submitted evidence that i n 2010
and 2011 he took some educational courses , that in 2013 he
earned a high school diploma , and that in 2016 he completed a course in bible study. Laster also submitted evidence that
b etween 2013 and 2017 he worked in the prison and received positive feedback from his supervisors.
Laster also submitted evidence of his plans if he were released from prison, including that he had been a dmitted to and planned to attend a residential treatment center for substance
abuse

. Laster’s mother stated she had a place for Laster to live

, and se veral family members submitted letters offering financial and emotional support.

7 “ As a general rule, a prisoner ’ s classification score is directly proportional to the level of secur ity needed to house the inmate. For example, prisoners with high classification scores will be sent to the prisons with higher levels of security. ” ( In re Jenkins (2010) 50 Cal.4th 1167, 1174; see Cal. Code Regs., tit. 15, § 3375, subd. (d).)7 C. The Superior Court Denies the Petition
The superior court denied Laster’s petition, ruling that resentencing Laster would pose an unreasonable risk of dan ger to public safety. Observing that the case was “not clear

- cut,” t he

court stated that

, although Laster “appears to have stayed away from alcohol in prison, and has engaged in some rehabilitative programming to address his problems with substance abuse, ” he “has shown time and again that after being released from incarceration, he drinks alcohol and drives, never remaining in the free community from more than three or four years before reoffending.” The court ruled that Laster’s prior conviction s , “which occurred over the course of approximately 30 years
, ” showed an “inability on the part of [Laster] to refrain from driving irresponsibly and under the influence” and that “[n]o amount of punishment in the past has appeared to deter [Last er] from reoffending .” T he court concluded Laster’s prior co nvictions were “predictive of current dangerousness, despite the fact” that
the prior convictions were “remote in time.” Laster timely appeal ed

.

DISCUSSION

A. Standard of Review
Section 1170. 126, subdivision (f), provides that

, if a petitioner is eligible for resentencing under the statute, “t he petitioner shall be resentenced

. . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety. ” “ In exercising its discretion ” to determine whether resentencing the petitioner would pose an unreasonable risk of danger

, “ the court8

may consider: [¶] (1) [t] he petitioner ’ s criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes; [¶] (2) [t] he petitioner ’ s disciplinary record and record of rehabilitation while incarcerated; and [¶] ( 3 ) [a] ny other evi dence the court, within its discretion,
determines to be relevant .

. . . ” (§ 1170.126, subd. (g).)
“‘T he facts upon which the court’s finding of unreasonable risk is based must be proven by the People by a preponderance of
the evidence

. . . and are th emselves subject to [appellate] review
for substantial evidence. ’ ” ( People v. Frierson (2017) 4 Cal.5th 225, 239 ; see People v. Piper (2018) 25 Cal.App.5th 1007, 1016; People v. Buford (2016) 4 Cal.App.5th 886, 899

- 900 ; People v. Superior Court (Kaulick) (2 013) 215 Cal.App.4th 1279,
1301

- 1305.) However, “[t] he reasons a trial court finds resentencing would pose an unreasonable risk of danger, [and] its weighing of evidence showing dangerousness versus evidence showing rehabilitation, lie within the court ’ s discretion .” ( Buford

, at p. 899 .) Therefore , we review the superior court’s “ul timate determination that resentencing would pose an unreasonable risk of danger ” for an abuse of discretion. ( Id. at pp. 899, 901 ; see People v. Williams (2018) 19 Cal.App.5th 1057, 1062 [“ Since section 1170.126 vests the trial court with discretion to determine whether resentencing defendant poses an unreasonable risk to public safety, we review the court’s decision
under the familiar ab use of discretion standard. ”] ; cf. People v. Jefferson (2016) 1 Cal.App.5th 235 [ when reviewing a court’s decision to deny resentencing under Proposition 47, “ [w] e review

a dangerousness finding for an abuse of discretion , given that the9

court is statutori ly required to determine dangerousness ‘ in its
discretion ’”].)

B. The Superior Court Did Not Abuse Its Discretion in Determining T

hat Resentencing Laster Would Pose an Unreasonable Risk of Dange r The superior court’s determination that resentencing
Laster would pose an unreasonable risk of danger was based on
the court’s finding s that , although Laster had been incarcerated multiple times, upon his release s Laster continued to dr i ve irresponsibly , including dri ving under the influence of alcohol

. Substantial evidence supported the superior court ’ s finding s

. Laster was first convicted of driving under the influence in
1976. I n 1983 Laster was involved in a rear

- end car accident. While fleeing the scene of that accident, he drove at a speed of
almost 90 miles per hour , hit a second car , and killed two of th at car’s occupants

. For this incident Laster was convicted on two
counts of vehicular manslaughter, a serious felony if the defendant personall y inflicts great bodily injury on a person other than an accomplice ( People v. Marin (2015) 240 Cal.App.4th 1344,
1350 ), 8 and the trial court in that case sentenced Laster to a prison term of three years eight months.
In 1990 Laster was convicted of reckless driving. One year later, he was convicted of driving with a suspended or revoked
license . In 1996 Laster was convicted of possession of a firearm by a felon and sentenced to a prison term of one year four

8 In Laster’s direct appeal, this court rejected Laster’s argument tha t his prior convictions for vehicular manslaughter were not serious felony convictions for purposes of the th ree

s trikes l aw. ( People v. Laster

, supra , B206489 .)10

months . The following year he was convict ed of possession of
cocaine and sentenced to a prison term of six years

. After his release, Laster was convict ed of driving under the influence three separate times between 1999 and 2001

. In 2007 Laster was again convicted of driving with a license that had been suspended
or revoked an d convicted once more for driving under the
influence. As the superior court commented

, Laster never went more than a few years without obtaining a conviction for some type of driving

- related offense while out of custody

. Relying on the California Supreme Court’s decision in In re
Lawrence (2008) 44 Cal.4th 1181 ( Lawrence )

, Laster argues the superior court could not rely solely on immutable factors

— namely

, his prior criminal history

— to find th at resentencing him would pose an unreasonable risk of danger unless the court found
a nexus between the immutable factors and Laster’s current risk. Laster argues the superior court abused its discretion in denying his petition because the court did not cite “present circumstances” suggesting Laster is currently a danger to public safety.
In Lawrence the Supreme Court reviewed the Governor’s
decision to deny an inmate parole on the ground the inmate represented an unreasonable risk of danger to society

. ( Lawrence

, supra , 44 Cal.4th at pp. 1199

- 1201 ; see Cal. Code Regs, tit. 15, § 2281, subd. (a) [“ Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from priso n

. ”]. ) The Supreme Court held that the “Board [of Parole Hearings] or the Governor may base a denial

- of

- parole decision upon the circumstances of the offense, or upon other immutable fac ts such
as an inmate ’ s criminal history

. . . only if those facts support the11

ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. ” ( Lawrence , at p. 1221; see In re Shaputis (2008) 44 Cal.4th 1241, 1255 ( Shaputis ) .)
E ven assuming a similar standard governs the extent to
which the superior court may rely on immutable facts when considering a petition under Proposition 36 (see People v. Buford

, supra , 4 Cal.App.5th at p. 913 [“ [a] lthough we decline to decide how and to what extent parole cases inform the decision whether to resentence a petitioner under [Proposition 36] or our review of such a decision, we agree with defendant that the proper focus is on whether the petitioner curr ently poses an unreasonable risk of danger to public safety ”]), the superior court did not abuse its discretion. Laster’s commitment conviction for driving under the
influence was not “ an isolated incident ” that Laster committed under circumstances “ unusu al or unlikely to recur .” ( Shaputis

, supra , 44 Cal.4th at p. 1259.) Laster’s commitment conviction was his fifth for driving under the influence of alcohol

, and eighth overall (including his convictions for reckless driving and driving with a suspended or revoked license) related to driving. Moreover, Laster ’s prior convictions did not deter him from continuing to drive dangerously

. Laster served a prison term of two years, eight month s because he killed two people while fleeing the scene of an accident

. (See § 1170.126, subd. (g)(1) [court may consider “ the extent of injury to victims ” in determining whether resentencing petitioner would pose and unreasonable risk of danger] .) But this did not stop Laster, when
not inca rcerated

, from continu ing to drive dangerously and under
the influence of alcohol. It was a reasonable inference from evidence of Laster’s criminal history and his life outside of prison that, if released, he would do what he always did when not12

incarcera ted: drink alcohol and drive. (See People v. Brooks (2017) 3 Cal.5th 1, 57 [“ ‘ Substantial evidence includes circumstantial evidence and any reasonable inferences drawn
from that evidence. ’ ” ] .) The superior court acted within its
discretion in ruling Laster’s prior history demonstrated he
continue d to pose an unreasonable risk to public safety. ( See
Lawrence

, supra , 44 Cal.4th at p. 1221 .) Laster argues the superior court abused its discretion by failing to give sufficient weight to Laster’s participa tion in substance abuse treatment programs, Laster’s low security classification score, and the willingness of Laster’s family to support him if he were resentenced. But the superior court did consider the factors suggesting resentencing Laster might not pose a danger to public safety, stating that the case was not
“clear

- cut.” Laster is essentially asking us to reweigh those factors, something we do not do. ( People v. Buford

, supra , 4 Cal.App.5th at p. 899 ; see People v. JTH Tax, Inc. (2013)

212 Cal.App .4th 1219, 1250 [“under an abuse of discretion
standard .

. . “‘ [ w]e do not reweigh the evidence or substitute our
notions of fairness for the trial court’s ” ’” ] .) The standard is not whether a different superior court, or even this court, may have
determi ned the evidence of rehabilitation outweighed the
evidence of dangerousness, but whether the superior court in this case abused its discretion. (See People v. Erickson (2018) 30 Cal.App.5th 243, 246 [“ The trial court may have decided this

case differently

. But the court did not abuse its discretion in deciding as it did .”].) In any event, the superior court did not abuse its discretion in ruling that Laster’s prior convictions, his prior prison terms, and the devastating impact of his conduct on innocent victims13

would not prevent him from continuing to drive dangerously and
under the influence while not incarcerated and that these

concerns outweighed L aster’s more recent efforts at
rehabilitation. In particular, d espite that Laster has been incarcerated since 2007, Laster only began participat ing in
substance abuse treatment programs after he filed his petition for resentencing under Proposition 36 in 2013 , suggesting Laster may have been more motivated by the opportunity to obtain a reduced sentence than interested in meaningful rehabilitation

. 9 (See In re Stevenson (2013) 213 Cal.App.4th 841, 870 [ evidence supported the Board of Parole Hearing ’s dec ision to deny parole where inmate “had only relatively recently completed a number
of self

- help programs” even though he had been imprisoned for several years] .) In addition

, Laster has not had the opportunity to drive dangerously or under the influence o f alcohol while
incarcerated

. ( Cf. People v. Gaston (1999) 74 Cal.App.4th 310,
315 [“ I n deciding a defendant ’ s ‘prospects’ for committing future crimes, the sentence imposed by the trial court is itself a factor, since the defendant presumably will have fewer opportunities to commit crime while in prison ”].) While Laster’s rehabilitative
efforts in prison are relevant, their significance is diminished
because there is no indication they would prevent him from continuing past habits once he is in an environment free from
restraint. They certainly didn’t in the past. (See Shaputis

,

9 Laster argues that he did not obtain his current security level and classification score until 2012 and 2013, respectively, after which he was “more able to take prison classes

. ” Laster

, however, did not present any evidenc e suggesting he was unable
to participate in substa nce abuse treatment programs before he obtained his current security level and classification score

.14

supra, 44 Cal.4th at p. 124 9 [petitioner’s prior criminal history and violence supported the Governor’s decision to deny parole, even though the petitioner “re mained disci pline

- free throughout
his incarceration ,” had “ a long and positive work record, ” and

“ ha [d] fully participated in all available ” drug, alcohol, and therapy program s].)

C. The Superior Court Did Not Violate Laster’s Due Process Rights Laster argues that

, because section 1170.126,
subdivision (f)

, states the court “shall” resentence an eligible petitioner unless the court determines he or she poses an unreasonable risk of danger, Laster has a liberty interest in resentencing as a second

- strike offender. Laster argues due

process require s that, before the court denies a petition under Proposition 36 based on a finding the petitioner poses an unreasonable risk of danger, there must be “a rational nexus
between the inmate ’s record and the court’s conc lusion of dangerousness .

. . based on a balancing of all of the factors in the petitioner’s record.”
Numerous courts , including the Supreme Court, have rejected similar argument s that section 1170.126 gives inmates

an entitlement to
, or presumption in favor of

, resentencing

. ( See People v. Perez (2018) 4 Cal.5th 1055, 1064 [“ [ b ] y its terms, [section 1170.126] does not create an entitlement to resentencing ,” nor does it “ automatically reduce, recall, or vacate any sentence by operation of law ”]; People v. Buford

, supra , 4 Cal.App.5th at p. 902 [“ we reject the notion voters must have intended there to be a presumption in favor of resentencing or that courts have only limited discretion to deny resentencing ”] ;15

People v. Superior Court (Kaulick)

, supra , 215 Cal.App.4th at

p. 1304 [“ The retrospective part of [Proposition 36] is not constitutionally required, but an act of lenity on the part of the
electorate. It does not provide for wholesale resentencing of eligible petitioners. ”]. ) In any event, even assuming Laster has a liberty interest in resentencing under Proposition 36, he has not
shown the superior court violated his due process rights by denying his petition

. Even if, as Laster con tends, the superior

court had to find “a rational nexus between [Laster’s] record and
the court’s conc lusion of dangerousness” to satisfy due process,
the superior court made such a finding

.16 DISPOSITION

The order is affirmed

.

SEGAL, J.

We concur:

PERLUSS, P. J.

DILLON , J

. *

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.