Filed 10/7/20 P. v. Laster CA2/7

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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.

B298348

(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 2007 a jury found Michael Julius Laster guilty of felony 

driving under the influence of alcohol. The trial court sentenced 

Laster, who had two prior serious or violent felony convictions 

within the meaning of the three strikes law, to a prison term of

25 years to life. 

In 2013 Laster filed a petition under Proposition 36, the 

Three 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 pose 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 2005 a California Highway Patrol officer pulled 

Laster over after seeing him drive 95 miles per hour on the

freeway, weave between lanes and onto the shoulder, and change

lanes without signaling.2 When the officer approached the car, he

smelled alcohol and noticed 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unpublished opinion in Laster’s direct appeal, People v. Laster 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 the 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. (See former § 192, subd. (3)(a), 

added by Stats. 1945, ch. 1006, § 1).

4 Laster’s initial trial 

resulted in a deadlocked jury, but after a retrial a second jury 

convicted him. The trial court 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 Three Strikes Reform Act of 2012. (See People v. Valencia 

(2017) 3 Cal.5th 347, 350.) “Prior 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 current 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 under the influence (Veh. Code, § 14601.2, subd. (a)), to 

which Laster pleaded no contest.

4 In 1984 the Legislature renumbered the subdivisions 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. 1994, ch. 12, § 1, eff. Mar. 7, 1994; former § 1170.12, 

subd. (c)(2)(A), added 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 applies, 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 law 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.5th 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 resentencing 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 People 
5

admitted Laster was eligible for resentencing under section 

1170.126, subdivision (e),5 but opposed Laster’s petition 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, including 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 convictions for driving with a suspended 

or revoked license;

6 a conviction for possessing a firearm as a 

felon (see former § 12021, subd. (a)(1), as amended by 

Stats. 1995, ch. 178, § 1); a conviction for possessing cocaine 

(Health & Saf. Code, § 11350, subd. (a)); and a conviction for

falsely 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 other 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 1170.12, 

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 driving under the influence (Veh. Code, 

§ 14601.1, subd. (a)).
6

of danger to public safety. This evidence showed that since 2013 

Laster had maintained the lowest possible security classification 

score for an inmate with a life sentence7 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 between 2013 

and 2019 he regularly attended prison group meetings and 

conferences to treat alcohol abuse, that between 2014 and 2016 

he regularly attended group meetings for depression 

management, and that in 2014 and 2016 he completed courses in 

anger management. Laster also submitted evidence that in 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 

between 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 admitted 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 several 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 security 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 danger to 

public safety. Observing that the case was “not clear-cut,” the 

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 convictions, 

“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 [Laster] 

from reoffending.” The court concluded Laster’s prior convictions 

were “predictive of current dangerousness, despite the fact” that 

the prior convictions were “remote in time.” Laster timely

appealed. 

DISCUSSION

A. Standard of Review

Section 1170.126, subdivision (f), provides that, if a 

petitioner is eligible for resentencing under the statute, “the 

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 court 
8

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 evidence the court, within its discretion, 

determines to be relevant . . . .” (§ 1170.126, subd. (g).) 

“‘The 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 themselves 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) (2013) 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 “ultimate 

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 abuse 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 the 
9

court is statutorily required to determine dangerousness ‘in its 

discretion’”].)

B. The Superior Court Did Not Abuse Its Discretion in 

Determining That Resentencing Laster Would Pose an 

Unreasonable Risk of Danger

The superior court’s determination that resentencing 

Laster would pose an unreasonable risk of danger was based on 

the court’s findings that, although Laster had been incarcerated 

multiple times, upon his releases Laster continued to drive 

irresponsibly, including driving under the influence of alcohol.

Substantial evidence supported the superior court’s findings.

Laster was first convicted of driving under the influence in 

1976. In 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 that 

car’s occupants. For this incident Laster was convicted on two 

counts of vehicular manslaughter, a serious felony if the 

defendant personally 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 that his prior convictions for vehicular manslaughter 

were not serious felony convictions for purposes of the three 

strikes law. (People v. Laster, supra, B206489.)
10

months. The following year he was convicted of possession of 

cocaine and sentenced to a prison term of six years. After his 

release, Laster was convicted 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 and 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 that 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 prison.”].) 

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 facts such 

as an inmate’s criminal history . . . only if those facts support the 
11

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).)

Even 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 currently 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 “unusual 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 months 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 incarcerated, from continuing 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 not 
12

incarcerated: 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 

continued 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 participation 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 

determined 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 victims 
13

would not prevent him from continuing to drive dangerously and 

under the influence while not incarcerated and that these 

concerns outweighed Laster’s more recent efforts at 

rehabilitation. In particular, despite that Laster has been 

incarcerated since 2007, Laster only began participating 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 decision 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 of alcohol while 

incarcerated. (Cf. People v. Gaston (1999) 74 Cal.App.4th 310, 

315 [“In 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 evidence suggesting he was unable 

to participate in substance abuse treatment programs before he 

obtained his current security level and classification score. 
14

supra, 44 Cal.4th at p. 1249 [petitioner’s prior criminal history 

and violence supported the Governor’s decision to deny parole, 

even though the petitioner “remained discipline-free throughout 

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

“ha[d] fully participated in all available” drug, alcohol, and

therapy programs].)

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 requires 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 conclusion 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 arguments 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 contends, the superior

court had to find “a rational nexus between [Laster’s] record and 

the court’s conclusion 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.