Opinion
G052388
11-30-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERT WAYNE PERRONE, Defendant and Appellant.
Ron Boyer, 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.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 96NF0160) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Kazuharu Makino, Judge. (Retired judge of the Orange County Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Ron Boyer, 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 under Proposition 47 to redesignate as misdemeanors his felony convictions for check possession with intent to defraud, receiving stolen property, and commercial burglary, which as third strike convictions led in 1997 to imposition of a 25-years-to-life sentence under the Three Strikes Law. The same judge who imposed the Three Strikes sentence heard Perrone's redesignation petition. Acknowledging it was "a close case," the court commended Perrone on his rehabilitation progress, but concluded that with his extensive history of violence in prison, it would be too dangerous to release him under Proposition 47 "without the . . . type of controls" available if he gained release when he became eligible for parole within "two, three, or four" years. We recently upheld a different trial judge's denial of Perrone's petition under Proposition 36 to recall his Three Strikes sentence. (People v. Perrone (Aug. 31, 2017, G050653) [nonpub. opn.] (Perrone II).) We agree the trial court faced a close issue here. But on appeal, the same result is required: while Perrone may soon earn a supervised parole term based on his demonstrated progress in prison, especially in the last third of his sentence, the court did not abuse its discretion in denying his redesignation petition.
I
FACTUAL AND PROCEDURAL BACKGROUND
Perrone committed his Third Strike offenses 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.] (Perrone I).)
In Perrone I, we noted Perrone suffered four prior strike convictions and served four prior prison terms. Perrone also admitted an unspecified juvenile history that included 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.
We draw the following further background information from Perrone II: "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. [¶] . . . [¶]
"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 II, supra, pp. 4-8.)
The trial judge who heard the Proposition 36 petition had not been the sentencing judge who imposed Perrone's Three Strikes sentence, but observed based on the petition that it presented a close case. The court ultimately denied the petition and, as noted above, we upheld that determination in Perrone II.
Perrone filed a petition to redesignate his Third Strike offenses as misdemeanors under newly-enacted Proposition 47 in November 2014. He presented evidence he had not used drugs in prison since 2001, nor consumed alcohol since 2008. He emphasized his participation in the Project Protect program to warn at-risk youth to stay out of prison. The program screening process scrutinized his record to ensure he could work with the children safely, and included a final review by the Director of Corrections. He participated in the program for four or five years, beginning in 2004 or 2005, and received a certificate of commendation "for his change in social conscience, responding to the needs of youth in an effort to give back. This change in behavior is commendable for the simple fact that a person who has formerly dedicated his life to crime and social dysfunction, now comes forward with the offer of no reward other than that of social responsibility."
Perrone also participated in a church-sponsored program called Prisoners Reaching Out to Prisoners, which included courses in conflict resolution, anger management, substance abuse, and victim awareness. Perrone earned numerous certificates for participation in Alcoholics Anonymous (AA), Narcotics Anonymous (NA), anger management training, employment training, and peer education. In the AA and NA programs in particular, Perrone received commendations stating he "enhanced the program through participation," "shar[ed] his ideas in a positive and productive manner," and "presented a positive influence towards other inmates."
As evidence of his reform, Perrone worked to better himself through education, gaining commendations for his interest, effort, and participation in classes while completing his GED and enrolling in continuing education correspondence courses from Ohio State University. He also sought employable skills, gaining certification as a barber, a forklift operator, and drywall installer.
Perrone also earned consistent praise from correctional officials. In December of 2012, a correctional officer who had observed him on a daily basis for two years wrote a commendation stating, "I can easily say that he has demonstrated exemplary behavior in both his ability to follow directions (program) and in interacting with staff members or other inmates. He has never caused me any problems in the past two years I've known him and is in my opinion a model inmate." Another correctional officer commended Perrone's work as a barber for mentally ill inmates: "He is always very respectful towards staff and always courteous, compassionate, and understanding when dealing with the mentally ill inmates in the Enhanced Out-Patient (EOP) Program. I believe if Mr. Perrone is released he could become a productive member of society."
A third officer noted that Perrone"is a respectful person towards staff and his fellow inmates. He follows directions is very approachable and has a good attitude. I also have noticed that he is a very good barber and if he continues in his positive manner he can apply skills and become a successful person in life." A fourth believed that when Perrone eventually gained his release, he "would 'never want to come back here'. [He] has taken a lot of professional courses and [the officer] believes [he] will take advantage of being out of prison and living his life. [He] realizes he has a narrow window of time left in his life." The officer characterized Perrone as "'one of your better candidates'" for release.
Perrone also included in his petition a report by Dr. Melvin Macomber, a contract psychologist in California State Prison Secure Housing Units who had worked with inmates for 40 years. Macomber reported that Perrone had volunteered for mental health treatment in the prison system for a year in 1999, but had never been on medication and had no current mental health issues. He noted that because Perrone had been addicted to methamphetamine at the time of the commitment offense, relapse prevention remained important and, to that end, observed Perrone's demonstrated admirable commitment by participating in multiple program and instruction opportunities, including AA, NA, anger management, victim awareness, conflict resolution and "the PEP Program which reaches out to troubled youth." Macomber also highlighted Perrone's religious conversion in 2011 as a bulwark against returning to his previous lifestyle.
In an interview, Perrone impressed Macomber "as being a sincere individual, who was open and honest, and who accepted responsibility fully for his past irresponsible behavior." Macomber recognized that while impulsivity and behavioral control had been a serious issue when Perrone was an addict and involved in criminal behavior, at age of 53, he now presented a different picture: "mature, responsible, very concerned about right behavior and there are no longer problems with impulsiveness or behavior."
Based on "psychological testing as well as ... the interview," Macomber opined that Perrone "has changed and matured. He has grown mentally and emotionally over the years. His values are now prosocial and his psychological testing does not show evidence of a personality disorder or Antisocial Personality Disorder." Macomber also observed that based on his age, "Mr. Perrone poses a low risk for re-offense." He also noted that living with Hepatitis C, as Perrone does, "changes a person's thinking and values" and that "[c]riminal behavior or thinking is diminished with this kind of ... life experience." Macomber concluded Perrone "currently does not pose an unreasonable risk of danger."
Perrone testified at the hearing, and his record of reform impressed the trial court in some respects, but not others. In a detailed ruling at the hearing, the court stated: "I will indicate I think it's a close case. I think there are matters that are raised that are certainly indications of the defendant's having changed his lifestyle. [¶] But on the other hand, he has — he has an extensive, unfortunately for him, a very extensive history of violence and from the records of the prison . . . violent conduct in prison. His membership in this [Aryan Brotherhood] gang I don't think is disputed. [¶] And I don't know why, but he seemed to want to minimize what occurs in this gang when he testified, such as basically saying the idea [behind the gang] is to keep the peace. [¶] Well, I don't know why he would testify in that manner."
As the trial court observed regarding the Aryan Brotherhood, "These individuals are intending to place themselves in a position of dominance in this prison community and engage in conduct for their benefit. And that conduct would include violent acts against those individuals who are either enemies of that group or who are failing to comply with what the leadership of that group would like them to do. So it obviously is far more than just keeping the peace." In particular, the court noted Perrone's "testimony about going to other individuals and collecting basically a tax on them for drugs or other things" made it seem "from the way he puts it, no more than going to a tenant and asking for rent," which the court found unconvincing, stating "that would be a bit naïve, to say the least, for me to believe that that's how it works in prison."
The trial court recognized that "later in life, his conduct changed. But part of what I see is that — and maybe it's due to him being institutionalized for so long — that even if you look at the last incident, 2010, as far as the assault [in the prison day room], you see that this is a person who still conducts himself in that setting by basically what are the [violent inmates'] prison rules. And there's no doubt he lives in a violent environment; so to some extent, he can't simply ignore the violence. [¶] But that's not to say he is an unwitting or a surprised participant in this violence. From what I see, he is a participant in this violence by his own choice. And to me, that's the problem, that for him to be out without the — any type of controls, with no controls on his violence, I think he is a significant threat." Accordingly, the court denied Perrone's petition, and he now appeals.
II
DISCUSSION
Enacted in 2014 as the Safe Neighborhoods and School Act, Proposition 47 reclassified several theft and drug possession offenses as misdemeanors (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089 (Rivera)), and provided a mechanism to redesignate existing felony convictions for those offenses as misdemeanors (Pen. Code, § 1170.18; all further statutory references are to this code). Perrone contends the trial court erred in denying his petition to recall his sentence, redesignate his Third Strike theft-related felony convictions as misdemeanors, and resentence him accordingly. We review the trial court's ruling on a Proposition 47 petition under the deferential abuse of discretion standard. (People v. Hall (2016) 247 Cal.App.4th 1255, 1263-1264 (Hall) [observing that § 1170.18 "repeatedly refers to the trial court's discretion to determine that resentencing a petitioner would pose an unreasonable risk of danger to public safety"].)
"Under section 1170.18, a person 'currently serving' a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the criteria in section 1170.18 shall have his or her sentence recalled and be 'resentenced to a misdemeanor . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' (§ 1170.18, subd. (b).)" (Rivera, supra, 233 Cal.App.4th at p. 1092.)
"Subdivision (c) of section 1170.18 defines the term 'unreasonable risk of danger to public safety,' and subdivision (b) of the statute lists factors the court must consider in determining 'whether a new sentence would result in an unreasonable risk of danger to public safety.' (§ 1170.18, subds. (b), (c).)" (Rivera, supra, 233 Cal.App.4th at p. 1092.) "'[U]nreasonable risk of danger to public safety' means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of [section 667, subdivision (e)(2)(C)(iv)]." (§ 1170.18, subd. (c).) For a habitual offender, the disqualifying risk includes the danger the person will commit a new felony in which he or she inflicts great bodily injury or uses forces likely to inflict great bodily injury (§ 667.7, subd.(a)) because as a Third Strike it requires a life sentence (id., subd. (a)(1)), and therefore falls within Proposition 47's definition of an "unreasonable risk of danger to public safety." (§§ 1170.18, subd. (c); 667, subd. (e)(2)(C)(iv)(VIII).)
"The critical inquiry . . . is not whether the risk is quantifiable, but rather, whether the risk would be 'unreasonable.'" (People v. Garcia (2014) 230 Cal.App.4th 763, 769.) "'In exercising its discretion, the court may consider all of the following: [¶] (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. [¶] (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." (Hall, supra, 247 Cal.App.4th at p. 1262, quoting § 1170.18, subd. (b).)
Perrone contends his history of violence was too stale for the trial court to conclude he posed the requisite risk of danger. 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. (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.) The same substantial evidence standard applies to the trial court's express and implied findings. (People v. Robinson (2010) 47 Cal.4th 1104, 1126.)
Specifically, Perrone argues that his youthful violent offenses, serious or violent strike offenses predating his third strike commitment, prior membership or leadership role in a violent prison gang, his new offenses returning him to prison after his earlier parole release, and his history of violence in prison were all too old to support a reasonable inference he posed a current danger if released. But even to list these many different categories of violent and antisocial behavior demonstrates a reasonable factfinder could conclude violence and rulebreaking were not anomalous for Perrone, and therefore presented a serious concern. Moreover, the asserted "staleness" of past conduct is generally relevant only when the defendant has led a legally blameless life in the interim. (People v. Harris (1998) 60 Cal.App.4th 727, 739.) That was far from the case here. Even discounting one or more violent incidents as Perrone attempted to do in explaining his version of events still left a plethora of violent episodes. Repeated conduct naturally increases its probity and relevance in gauging the risk of similar conduct. Consequently, the court reasonably could conclude the fact Perrone often ended up embroiled in violent prison conduct was no coincidence.
Additionally, the severity of Perrone's violent conduct within the prison's structured confines also reasonably gave the trial court pause about releasing him under Proposition 47, rather than under extended parole supervision if he continued to rehabilitate. At the time of the June 2015 hearing, Perrone's lack of foresight or unwillingness to avoid participating in a 2010 group fight was not particularly remote, nor was his 1999 altercation too remote to have probative value, especially given the level of violence in which he bit off part of another inmate's ear. In sum, because the electorate specifically instructed the trial court to consider the petitioner's "conviction history," "type of crimes committed," "extent of injury to victims," "length of prior prison commitments," "disciplinary record . . . while incarcerated," and the "remoteness of the crimes" (§1170.18, subd. (b)(1)-(3)), the court did not err in weighing all these factors instead of just the passage of time, as Perrone would have it. Perrone's exclusive reliance on a single factor is without merit.
Perrone's other claims of error similarly fail in light of section 1170.18, subdivision (b)'s express direction to the trial court to consider "[a]ny 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." Disregarding this wide latitude, Perrone asserts the court abused its discretion in several ways, including "by allowing its decision to be influenced by whether [his] reduced likelihood of committing crimes was based upon the physical effects of aging as opposed to a change of heart." The court noted a life of crime or violence is "just not as easy . . . at 60 as it is at 30," accounting in part for "why . . . you don't see people at that age engaging as much in violent crimes." But Perrone takes issue with the court's further observation that the reduced criminality may not "indicat[e] that the person has changed their life because of a desire to live a different type of life."
Perrone seems to assume that the reason for a reduced frequency of violence should not matter. But the reason can make all the difference. The common observation that "the spirit is willing, but the flesh is weak" illustrates the point. If a person has had a change of spirit, and not just a decline in physical capacity, one may be more confident the person will not act violently when an opportunity within his or her reduced capacity arises. In this vein, the court reasonably could remain concerned that the fight in the day room in 2010 showed that, even at or near age 50, Perrone still had an appetite or inclination to engage in violence, rather than taking pains to avoid any potential confrontation.
Perrone likewise founders in asserting the trial court "abused its discretion by allowing its decision to be influenced by whether [his] use of drugs and alcohol prior to 2008 showed a rule-breaking attitude." Perrone oddly assumes "a rule-breaking attitude" has no bearing on the court's evaluation whether a person poses an unreasonable risk of danger to the community. But as we just discussed, his own invocation of intangible factors like a "change of heart" are important. Moreover, section 1170.18 expressly directs the court to consider the petitioner's disciplinary record. The court did not err.
Perrone insists the trial court abused its discretion by noting that "what brought him here were nonviolent offenses," i.e., his Third Strike commitment offenses. Perrone characterizes the court's observation as improper consideration of "whether [he] might commit crimes other than those specified in subdivision (e)(2)(C)(iv) of section 667." But in context, the court stated resentencing and release under Proposition 47 would be inappropriate because Perrone "needs strict controls in place because once he's not in that kind of environment, he would be much more tempted to revert to the lifestyle that he has known and has, well, to a certain extent worked for him." The court reasonably could express doubt about Perrone's prospects for self-control outside the prison walls, at least without the extended close supervision that would come with a grant of parole. Perrone admitted in his testimony he never yet has been able to lead a crime-free life in society. Substantial evidence supports the court's decision that parole, if Perrone maintained his progress, was a better option for protecting the public, precisely because Perrone had demonstrated at the time of the hearing a fairly recent propensity to engage in violence.
Perrone argues the trial court "abused its discretion by allowing its decision to be influenced by whether [he] in 1996 lacked the self-restraint to avoid being sent back to prison." Specifically, Perrone cites the court's remarks concerning his inability to avoid committing new offenses when he was released from prison in 1996, even though returning to prison entailed great risk after he left the Aryan Brotherhood. The court noted, "[O]ne of the things you would think is[:] what person in his right mind would want to place himself in a position where he may have to go back to that kind of environment where he supposedly is now an outcast from this group and he's now a target of this group to be killed. [¶] . . . [¶] [I]t certainly shows that his process of decision-making as far as what to do or what not to do, at least at that point, was . . . either [not] very well developed or it was very impaired." The court expressed concern that, if released without controls under Proposition 47, Perrone "could go back to that same situation now . . . ."
Perrone complains that "getting a few dollars from a bad check or from a fraud," as the trial court characterized his Third Strike offense, is not itself violent conduct, nor "the kind of crime that is specified in subdivision (e)(2)(C)(iv) of section 667." But we interpret the court's remarks simply to illustrate Perrone's lack of impulse control and, correspondingly, how great a task Perrone set for himself to demonstrate he had regained control. As discussed, the court reasonably could conclude that while Perrone had made progress, he was not quite there yet at the time of the hearing. There was no error.
Finally, Perrone contends the trial court erred by admitting confidential prison records that his attorney had access to, while barring Perrone from reviewing the records. He complains that hearsay statements of confidential prison informants in those records violated his right to due process, and he asserts the rules of evidence concerning hearsay must apply to his resentencing petition. But hearsay may be admissible in probation revocation hearings and similar postconviction proceedings (see, e.g., People v. O'Connell (2003) 107 Cal.App.4th 1062, 1066), and Perrone cites no authority to the contrary. Moreover, we addressed Perrone's claims in Perrone II concerning his Proposition 36 hearing, and we see no basis for a different result here.
There we observed: "[T]he 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 II, supra, pp. 14-15.)
These observations remain true here. Moreover, any error in admitting the confidential prison records is harmless because the trial court explained it put little stock in statements made by other inmates, instead reviewing the records for Perrone's own admissions, which "would be admissible." Perrone also raises a claim of cumulative error, but because each of his individual challenges lacks merit, there is no error to cumulate.
III
DISPOSITION
The trial court's order denying Perrone's petition under Proposition 47 is affirmed.
ARONSON, J. WE CONCUR: O'LEARY, P. J. THOMPSON, J.