People v. Laster CA2/7

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B298348
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA075090)
v.
MICHAEL JULIUS LASTER,
Defendant and Appellant.
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.
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unpublished opinion in Laster’s direct appeal, People v. Laster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.].
2
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).
3
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
4
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)).
5
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).)
6
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
7
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
8
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.)
9
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
10
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
11
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
12
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.
13
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”];
14
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.
15
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.
16