Filed 8/31/17 P. v. Perrone CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a postjudgment order of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed.

Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.

Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Seth Friedman and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Robert Wayne Perrone appeals from the trial court’s denial of his petition to recall under Proposition 36 his Three Strikes 25-years-to-life sentence imposed in 1997 and to resentence him to time served. Perrone argues the unambiguous statutory definition of “unreasonable risk of danger to public safety” as “used throughout this code” (Pen. Code, § 1170.18, subd. (c); all further statutory references are to this code) limited the trial court’s discretion to deny recall and resentencing unless he posed a risk of committing certain enumerated serious or violent felonies (see ibid.), colloquially known as “super strike” offenses. He contends that applying a broader standard for the risk of dangerousness, i.e., one in which the court could find Perrone posed an unreasonable risk of danger even if it was unlikely he posed the precise danger of committing a super strike offense, violates equal protection principles and the electorate’s command at the ballot box. Specifically, the electorate added the more restrictive definition of “unreasonable risk of danger” in 2014 with express directions for the new definition to apply “throughout this code” — which in the entire Penal Code consisted of just two uses of the phrase “unreasonable risk of danger to public safety,” including one in Proposition 36’s mechanism for recall and resentencing (§ 1170.126).

Perrone acknowledges the August 2014 hearing on his petition predated the new definition of the applicable risk of danger enacted by the electorate in approving Proposition 47 in November 2014, but he insists the new standard should apply retroactively. While new enactments are generally prospective only, even assuming Perrone could establish retroactivity, his arguments fail under People v. Valencia (July 3, 2017, S223825 & S223676) __ Cal.4th __ [2017 LEXIS 5628]. There, the Supreme Court recently held the broad standard for unreasonable risk of dangerousness originally enacted with the passage of Proposition 36 in 2012 still applies and does not violate equal protection. We are bound by these conclusions (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and therefore do not address them further.

Perrone contends the trial court abused its discretion in concluding he posed an unwarranted risk of danger if released. More specifically, he challenges the sufficiency of the evidence to support the court’s conclusion his two most recent prison fights weighed against his release, while he justifies his conduct in both incidents based on self-defense. He also argues the court erred in allowing only his attorney to review confidential prison disciplinary files, while precluding him from reading the material personally. As we discuss, these challenges lack merit, and we therefore affirm the trial court’s order denying his petition for recall and resentencing.

I

FACTUAL AND PROCEDURAL BACKGROUND

Perrone committed his Third Strike offense in January 1996. After his female companion stole a check from a residential mailbox near their motel, Perrone tried to cash the check at a bank, but when the teller questioned his identification, Perrone abruptly departed, leaving behind his identification and the check. The jury convicted Perrone of receiving stolen property, commercial burglary, and check fraud.

The trial court sentenced Perrone under the Three Strikes law and, as a panel of this court observed in affirming his 25-years-to-life sentence, “Perrone has been a habitual criminal for nearly two decades. In 1978, he stole money from his boss and was placed on informal probation. The following year, he tried to escape from jail. In 1980, he was convicted of burglary and sentenced to 16 months in prison. In 1982, he was convicted of two burglaries, armed robbery and assault with a deadly weapon [ADW]. While in custody, he attempted to escape, injuring a correctional officer. Between 1991 and 1994, Perrone was convicted of car theft, second degree burglary and drug possession.” (People v. Perrone (April 20, 1999, G022241) [nonpub. opn.].)

Our prior opinion noted Perrone suffered four prior strike convictions and served four prior prison terms. Perrone also admitted an unspecified juvenile history including a commitment to the California Youth Authority. His adult criminal history included violent assaults. His 1982 ADW conviction stemmed from a home invasion robbery for which he received a 9-year prison term. He committed the offense while on parole for an earlier burglary conviction. As during a previous incarceration, he again attempted to escape, this time attacking, incapacitating, binding, and gagging a correctional officer.

Even before his Three Strikes sentence, Perrone’s prison records showed a lengthy history of violent conduct, culminating in murder for the Aryan Brotherhood prison gang. He was suspected in a 1981 stabbing of a fellow inmate, but once paroled, the victim would not identify any of his attackers. Jail records showed his role in inmate “pressure groups” targeting “weaker Whites” to have their visitors smuggle in money and drugs. In 1983, the same year Perrone attempted to escape by “jumping” a guard during a recreation session, jail records noted his destructiveness, cruelty, stubbornness, tendency to lie, and his temper, along with specific incidents, including gaining possession of and hiding in his cell a handcuff key, assaults against other inmates, displays of racial hatred against minority inmates, and suspected participation in throwing jail-made bombs between cells in racial attacks. In 1984, he mailed threats to at least one victim outside the prison, circumventing the prison mail system.

By 1985, Perrone’s documented affiliation with the Aryan Brotherhood ripened into stabbing and killing a fellow inmate for the gang at Folsom prison. Based on statements from confidential informants, he was found guilty of the slaying in a third prison disciplinary hearing concerning the murder, which resulted in a referral to the district attorney’s office, but apparently no further prosecution. Perrone did not appeal the administrative finding he killed the inmate, later telling a psychologist that he declined to appeal because he believed he would be paroled soon. But he was not paroled for several years and, in the meantime, bragged to other inmates that he “made his bones” in the gang with the killing, boasting that the stab wounds to the victim’s chest looked like a professional hit. Perrone’s prison records are replete with confidential information regarding his activities on behalf of the Aryan Brotherhood gang, from recruiting new members to running drug activities within the prison and, by 1986 and 1987, he was responsible for the gang’s weapons distribution schemes. Prison records described him as a “shot caller” for the gang. He issued orders for assaults on other inmates and allegedly authorized an attempt on a corrections staff member’s life.

Perrone continued to direct attacks on rival Hispanic gang members “on sight” in 1988, but he fell out of favor with the Aryan Brotherhood by ordering a stabbing and then calling it off. He engaged in an unprovoked attack on another inmate in 1989, battering the inmate with his closed fists and ignoring guard instructions to “break it up.” Fellow gang members made an attempt on his life in August 1989, trying to strangle him with a nylon rope while he was being transported in a secure van, but the deputy driving the van made evasive maneuvers to thwart the attack. Perrone left the Aryan Brotherhood and testified against the gang in a Sacramento prosecution, receiving the district attorney’s recommendation for early parole for his safety.

Nevertheless, once paroled and despite the danger in returning to prison after testifying against the Aryan Brotherhood, Perrone failed to remain crime-free, never avoiding prison for more than 18 months at a time. Paroled in early 1991, he promptly violated his parole terms by unlawfully taking a vehicle, but received probation and then again violated his release terms with another burglary conviction in June 1992. He continued resorting to violence in prison, earning further discipline for a March 1995 fist fight in which he claimed he was only assisting a fellow inmate suffering seizures. Out on parole, he was acquitted of receiving stolen property in June 1995, but within six months committed his Third Strike offense.

He completed an inmate peer education health program in June 1998, but his programming success was brief. He bit the flesh off another inmate’s ear, exposing the cartilage, in a January 1999 fight. The other inmate admitted attacking Perrone, but Perrone ignored guard orders to cease fighting; the guards had to pull the other inmate from a fetal position underneath Perrone, who continued to throw closed fist punches to the inmate’s head despite commands to stop.

Later in 1999, prison staff discovered makeshift hypodermic needles Perrone hid inside the mattress cover in his cell. The year 2000 saw Perrone draw repeated disciplinary violations for manufacturing alcohol in his cell, and he tested positive for morphine after he was found with another homemade needle.

In 2001, Perrone continued using drugs in prison and prison records suggested he may only have dropped out of the Aryan Brotherhood in April that year. In April 2002, Perrone again was found guilty in administrative proceedings of manufacturing alcohol in his cell.

In a December 2002 incident in which another inmate lunged at officers, Perrone and a third inmate stood up rapidly, also advanced toward the officers and, despite an officer pointing a weapon at them, ignored thrice-repeated commands to get down, causing the officer to discharge a 40-millimeter block gun to gain control of Perrone and the other inmates. Perrone was deemed a safety threat, placed in “Ad/Seg” segregated housing, and found guilty in an administrative hearing of obstructing a peace officer for ignoring his commands.

Perrone completed an inmate instructional program in drywall installation in July 2003, and in June 2005 participated in a “scared straight” program for at-risk youth “to get a taste of how horrible prison life is,” for which he received a laudatory “chrono” or note in his prison file. Perrone returned to administrative segregation in August 2005 on suspicion he conspired to commit battery on another inmate, but he was released for lack of evidence. The inmate, however, refused to return to the same housing unit as Perrone and was assigned elsewhere.

In 2006 and again in 2008, correctional officers found inmate-manufactured alcohol in Perrone’s cell, and he admitted it was his.

In February 2010, Perrone was at the center of another inmate fight, this time when guards found him and four others fighting in the day room, striking each other with closed fist blows to the head and upper body. Several of the inmates suffered cuts from a blade, Perrone’s cellmate Frederick admitted he (Frederick) had a weapon, a confidential informant reported Perrone had a second weapon, and guards found in Frederick and Perrone’s cell materials for assembling Frederick’s knife by attaching a utility blade to popsicle sticks. Perrone ignored guard orders to cease fighting; he and the other inmates stopped only when a guard discharged an impact round. Perrone initially faced an attempted murder charge in prison disciplinary hearings, but the hearing officer found the confidential informant was not credible in reporting Perrone used a weapon during the fight because two of his adversaries in the fight denied he had one, Frederick admitted the weapon was his, it was not recovered near Perrone, no second weapon was found, and a third party inmate overheard and disclosed a plan after the fight to frame Perrone for having a weapon.

But Perrone skirted the hearing officer’s direct question whether he (Perrone) knew Frederick had a weapon before the fight began, stating only, “There was no reason for him to have one. It wasn’t that serious.” According to Perrone, Frederick instigated the fight when he became frustrated with an inmate in a nearby cell who first ignored and then insulted him, and when the cell doors open, the pair carried their dispute to the day room. There, the responding officers found Perrone “in the center of the group” that was fighting, and he would not stop. The hearing officer found Perrone guilty of the lesser charge of participating in a riot by engaging in a multi-inmate fight, which Perrone admitted at the time.

In June 2011, prison authorities placed Perrone in administrative segregation out of concern that he was a threat, for unspecified reasons, to the safety and security of the prison and other inmates, including those on his designated “enemies” list. And in October 2011, he refused a new housing assignment, apparently out of concern about placement among enemies.

In December 2012, Perrone petitioned the trial court to recall his Third Strike sentence under newly-enacted Proposition 36 and to order his release for time served on his fraudulent check, receiving stolen property, and commercial burglary convictions. The prosecutor opposed Perrone’s petition based on Proposition 36’s exclusion where “resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).)

Perrone filed a supplemental sentencing brief in which he noted his successful participation in some prison education and outreach programs, including the 1998 and 2000 health awareness programs, the 2003 drywall installation training, and the 2005 at-risk youth outreach program. He also pointed to more recent certificates in 2009 for participating in Narcotics Anonymous (NA) and Alcoholics Anonymous (AA) programs and completing courses in life skills, workplace skills, and anger management. In 2010, he earned certificates for forklift training and participating in a Gang Members Anonymous program, and in 2012 he earned chronos for continuing to participate in NA and AA meetings, as well as a life skills certificate for completing workshops in anger management, conflict resolution, substance abuse awareness and victim awareness.

A correctional officer who had observed Perrone for the last two years complimented him as “a model inmate” in a December 2012 note to his prison file. Around the same time, three other correctional officers similarly noted Perrone’s positive behavior, especially as a barber for mentally ill inmates, and the officers observed, respectively, that Perrone “could become a productive member of society,” “a successful person in life” “if he continues in his positive manner,” and “could very well become rehabilitated.” Other correctional officers interviewed by a public defender investigator similarly viewed Perrone as “one of your better candidates” for release, with one noting Perrone stopped a fight between two other inmates before it started. Perrone’s education progress reports in May, July, and October 2012 showed satisfactory performance and, in January 2013, he completed his high school education requirements and passed the GED.

In a supplemental opposition, the prosecutor emphasized that Perrone’s most recent classification score by prison authorities remained at 200, as an estimate of the level of danger an inmate presents in a secure facility. Between 2012 and 2013, Perrone’s score declined from 206 to 200, but the prosecutor asserted that “[n]ineteen is the lowest score a life prisoner can get, and frequently they have scores of 19 or close to it at the dozen parole hearings I have attended.” The prosecutor acknowledged, as Perrone’s sentencing brief explained, that his “several escapes” played a role in his high score, but the prosecutor also noted, “I personally have never seen a score as high as the defendant’s.” She stressed that after Perrone’s 1983 escape, his classification score “in 1985 was 137,” then “in 1986 as a result of the murder from 1985, it jumped to 191,” but by 1990, “it was down to 152.” The prosecutor emphasized, “This is still a very high classification score, but I want to point out . . . that it is currently 200 which means it kept going up, not down,” and therefore was not due solely to the escape attempts.

Perrone testified at the hearing on his petition in August 2014. He largely accepted responsibility for his criminal offenses, but excused or minimized his prison misconduct. Perrone also submitted a psychologist’s report concluding that at age 53 he posed a low or low moderate risk of reoffending based on his age, the passage of time since his offenses, his interview answers and performance on a battery of risk assessment tests, and his reform in prison, including his conversion in 2011 to Christianity. After stating the factors specified in Proposition 36 to evaluate the risk an inmate may pose to public safety if released, the trial court observed that, “[t]o his credit, Mr. Perrone . . . has left the Aryan Brotherhood and has successfully completed a number of courses in the state prison system; however, [he] has not been a model prisoner.” The court noted two among many instances spread over his long incarceration in which Perrone continued to engage in violence, including fights in which he ignored direct orders of correctional officers to stop. Despite Perrone’s denials in his testimony, the court concluded he “stabbed and killed another inmate” in the 1985 incident. Noting also that Perrone’s “criminal history is extensive and violent,” the court denied his petition for recall of his sentence and resentencing, finding the prosecution had met its burden to show by a preponderance of evidence that his release under Proposition 36 would pose an unreasonable risk of danger to public safety. He now appeals.

II
DISCUSSION

Perrone contends the trial court erred in denying his petition. We review the trial court’s ruling on a Proposition 36 petition for recall and resentencing under the deferential abuse of discretion standard. (People v. Buford (2016) 4 Cal.App.5th 886, 894-895.) Proposition 36’s resentencing mechanism, codified in section 1170.126, expressly vests with the trial court the discretion to deny a motion to recall a third strike sentence and to reject resentencing the inmate as a second strike offender when “the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).) Section 1170.126 further provides that “n exercising its discretion . . . the court may consider: [¶] (1) The 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) The petitioner’s disciplinary record and record of rehabilitation while incarcerated; and [¶] (3) Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.” (§ 1170.126, subd. (g).)

The standard of review does not aid Perrone. We must view the evidence, both direct and circumstantial, in the light most favorable to the judgment below, indulging in all presumptions and every logical inference that the court could have drawn from the evidence. ([i]People v. Carter (2005) 36 Cal.4th 1114, 1156; People v. Maury (2003) 30 Cal.4th 342, 396.) The test is whether substantial evidence supports the trier of fact’s conclusion (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Johnson (1980) 26 Cal.3d 557, 576-578), not whether the appellate panel would make the same determination. (People v. Crittenden (1994) 9 Cal.4th 83, 139.) Because an appellate court must “give due deference to the trier of fact and not retry the case ourselves,” an appellant challenging the sufficiency of the evidence “bears an enormous burden.” (People v. Sanchez (2003) 113 Cal.App.4th 325, 330 (Sanchez).) The same substantial evidence standard applies to the trial court’s express and implied findings. (People v. Robinson (2010) 47 Cal.4th 1104, 1126.)

Perrone contends reversal is required because no reasonable trier of fact could characterize his 1999 altercation with another inmate as a “mutual fight,” rather than solely as an act of self-defense. Specifically, in finding “Mr. Perrone has not been a model prisoner,” the trial court cited among his violent acts in prison the fact that “n 1999 he was involved in a mutual fight with another inmate. I believe that’s the incident where the inmate’s ear was — at least a portion of it may have been bitten off.” Perrone relies on his statutory right to self-defense as complete justification for his conduct. (§ 694.)

Perrone argues “the demands of maintaining order in prison may justify the hearing officer’s” guilty finding, but “no similar demands constrained the trial court’s factual finding.” The trial court, however, reasonably could conclude maintaining civic order, both inside and outside prison, was precisely the point: even in the closely controlled prison environment, Perrone “would not comply” with the correctional officer’s repeated orders to cease fighting, traversing the line between self-defense and mutual combat though he (literally) had gained the upper hand on the other inmate. Perrone justified himself at the hearing, suggesting “it happen[ed] so fast,” but the court reasonably could credit the correctional officer’s statement that he twice ordered Perrone to stop, to no avail. We may not second-guess the trial court’s factual findings ([i]Sanchez, supra, 113 Cal.App.4th at p. 330), and the court reasonably could view Perrone’s conduct in continuing the fight and his subsequent self-justification as probative of his potential dangerousness outside prison.

The trial court reasonably could remain similarly concerned about a 2010 incident — just two years before Perrone filed his Proposition 36 petition — in which Perrone again ignored a guard’s command to stop fighting. Perrone does not dispute the incident occurred, but again argues it must be viewed solely in his favor through the lens of self-defense principles, this time in defense of his cellmate.

Specifically, Perrone argues the incident has no conceivable bearing on his potential dangerousness, and therefore does not support the trial court’s ruling on his petition. Indeed, he claims reversal is required and the incident must be disregarded altogether on remand. In particular, he takes issue with the trial court’s statement at the hearing that “[t]here is an argument that Mr. Perrone attempted to murder another inmate.” The trial court briefly mentioned the 2010 incident as another example of Perrone’s violent history in prison, as follows: “In 2010[,] Mr. Perrone was found guilty in a prison proceeding for participation in a riot. In Mr. Perrone’s confidential file on pages 17, 18, 19, and 20[,] it describes the incident in more detail. There is an argument that Mr. Perrone attempted to murder another inmate. The court read the prison [records] — and the court noted that in the ‘C[onfidential]’ file that the prison [hearing officer] had indicated that the witness might be unreliable. But the court also notes that in that incident, the weapons — that was a popsicle stick [with a] razor [attached], and those items were found in the cell that Mr. Perrone shared with his cellmate.”

The trial court reasonably could conclude this then-recent incident bolstered the conclusion Perrone posed an unwarranted risk of danger if released. Perrone claimed he only became involved in the fight because he was “sucker punched,” but the court could conclude a model prisoner and, more importantly, a prudent person outside the jail setting, would have recognized the danger brewing in the escalating confrontation that began at his cell. The fight did not erupt instantly outside the cell, but later once the inmates proceeded to the day room, still arguing. Instead of distancing himself from the growing conflict his cellmate pursued with an inmate also headed to the day room, Perrone again ended up “at the center” of another violent prison episode and again ignored a direct law enforcement order to cease fighting.

Moreover, while the charge against Perrone was reduced, we must view the court’s comment about attempted murder in the light most favorable to its ruling. After all, Perrone was charged with attempted murder and the court was not required to credit his claim he only participated because he was punched. To the contrary, the court could infer he willfully engaged in and supported his cellmate’s attack, where guards discovered him in the thick of the fight and where he did not deny knowing his cellmate had been manufacturing a weapon using sandpaper, a gluestick, a razor, and other items found in their cell. More importantly, the court reasonably could conclude that even if Perrone did not attempt to commit murder, the incident showed he still posed an unreasonable risk of danger for the reasons discussed. Perrone only challenges the denial of his resentencing petition based on his claim the 1999 and 2010 incidents had no bearing on his risk of dangerousness. He does not otherwise challenge the sufficiency of the evidence to support the trial court’s ruling. Because those incidents support the court’s finding Perrone continued to pose a risk of danger if released, Perrone’s bid for reversal therefore fails.

Perrone also contends the trial court erred in relying on confidential prison records that he was unable to review. While his attorney had full access to the documents, Perrone objected below that the trial court’s order precluding him from reading the documents infringed his right to due process and effective confrontation. But the high court has explained that due process does not prohibit the use of confidential information or require cross-examination of confidential informants in prison disciplinary hearings, nor require the hearing officer to hold an in-camera hearing with the informant to determine the person’s reliability or truthfulness. (Wolff v. McDonnell (1974) 418 U.S. 539, 566-568; In re Jackson (1987) 43 Cal.3d 501, 511-516.) Similarly, unsworn or hearsay information at sentencing and parole revocation procedures does not offend due process or furnish a confrontation claim, and we see no reason why it would do so in Perrone’s petition to be relieved from his sentence. (See, e.g., People v. Abrams (2007) 158 Cal.App.4th 396, 400, quoting Morrissey v. Brewer (1972) 408 U.S. 471, 489 [“the parole revocation ‘process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial’”]; People v. Lamb (1999) 76 Cal.App.4th 664, 682-683 [“a sentencing court may consider a broad range of information in deciding whether to grant probation in a particular case. Due process does not require that a criminal defendant be afforded the same evidentiary protections at sentencing proceedings as exist at trial. . . . A sentencing judge may consider responsible unsworn or out-of-court statements concerning the convicted person’s life and characteristics”].)

Perrone’s challenge to the confidential information also fails because the only prejudice he claims is his bare assertion that the seven informants in his prison disciplinary hearing for the 1985 murder were “unreliable.” Specifically, he observes that “notes from the [hearing indicate that] only . . . five of the seven informants had been a reliable source in the past on more than one occasion.” (Italics added.) But it is not our prerogative to reassess witness credibility; rather, the trier of fact reasonably could conclude five of seven is a passing score, particularly where the metric was multiple prior instances in which those five informants had proven credible. The hearing officer furthermore observed that all of the informants were reliable “[b]ecause of specific details provided . . . .” (See Cal. Code Regs., tit. 15, § 3321(b)(3) [accused inmate must be told confidential information is being used, and the information must be deemed reliable on objective criteria].) Notably, Perrone declined to appeal or otherwise challenge the disciplinary hearing outcome at the time it was rendered. (Cf. id., § 3084.1.) Consequently, the trial court reasonably could find Perrone’s self-serving and belated claims of a lack of reliability carried little weight.

III
DISPOSITION

The trial court’s order denying Perrone’s petition for recall of his Three Strikes sentence and resentencing is affirmed.

ARONSON, J.

WE CONCUR:

O’LEARY, P. J.

THOMPSON, J.