Filed 9/29/21 P. v. Perucci CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY ROBERT PERUCCI,

Defendant and Appellant.

 B309174

 (Los Angeles County

 Super. Ct. No. BA109422)

APPEAL from an order of the Superior Court of 

Los Angeles County, Olivia Rosales, Judge. Affirmed.

Maggie Shrout, under appointment by the Court of Appeal, 

for Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Idan Ivri and Rene Judkiewicz, Deputy 

Attorneys General, for Plaintiff and Respondent.

____________________________
2

Defendant and appellant Anthony Robert Perucci

challenges the trial court’s denial of his petition under Penal 

Code1 section 1170.95 for resentencing on his murder conviction. 

He argues that the trial court erred by finding that he was a 

major participant who acted with reckless indifference to human

life in the robbery that was the basis of his felony-murder 

conviction. We affirm, but need not decide whether the court’s 

analysis was correct because the jury’s finding of a felony-murder 

special circumstance (§ 190.2, subd. (a)(17)) makes Perucci

ineligible for relief under section 1170.95 as a matter of law.

FACTUAL AND PROCEDURAL SUMMARY

In 1996, Perucci took part in a robbery in which his 

codefendant Eddie Leiva shot and killed Sheila McMackin. 

A jury convicted him of one count of first degree murder

(§ 187, subd. (a)), one count of robbery (§ 211), and one count 

of attempted robbery (§§ 211, 664). On the murder count, the 

jury found true a felony-murder special circumstance allegation

(§ 190.2, subd. (a)(17)). This finding required the jury to 

conclude, at a minimum, that Perucci acted “with reckless 

indifference to human life and as a major participant” in the 

underlying robbery. (§ 190.2, subd. (d).) The jury also found 

that a principal was armed with a firearm in the commission 

of the offenses (§ 12022, subd. (a)(1)), but rejected allegations

that Perucci personally used a handgun in the commission of 

the crimes. The trial court sentenced Perucci to life in prison 

without the possibility of parole for murder. We affirmed the 

1 Subsequent statutory references are to the Penal Code.
3

convictions on appeal. (People v. Perucci et al. (Feb. 15, 2000, 

B127583) [nonpub. opn.] (Perucci et al.).)

In our prior opinion in Perucci’s direct appeal, we 

described the facts of the case: On August 21, 1996, Leiva’s 

friend Laura Luna overheard Leiva and Perucci discussing a 

robbery, which they referred to as a “ ‘jacking.’ ” Leiva borrowed 

a gun from Luna, telling her that “using a gun makes a ‘jacking’

easier.” (Perucci et al., supra, B127583, at p. 2.) Perucci was 

armed with a lead pipe that he claimed he found while walking 

to the restaurant where the robbery occurred. Outside the 

restaurant, Leiva and Perucci encountered Charles and Sheila 

McMackin. Sheila McMackin was sitting in the passenger seat of 

the couple’s car when Leiva approached her. He put his head and 

shoulders through the window and began struggling with her.

At this point, Perucci approached Charles McMackin, who 

was approximately 12 feet away from the car. “He pointed an 

object Mr. McMackin believed to be a gun at Mr. McMackin’s

face. . . . Perucci·demanded that Charles McMackin give [him] his 

money, threatening to kill him if he did not do so. Mr. McMackin 

emptied his pocket of several dollars in change, which fell to 

the ground, and surrendered his wallet.” (Perucci et al., supra, 

B127583, at p. 3.)

As Perucci stooped to pick up the change, “Mr. McMackin

heard his wife say, ‘No,’ then saw a muzzle flash. . . . [¶] When 

Charles McMackin reached the car, Sheila McMackin said, 

‘He shot me.’ Her purse was still in the car, the strap wrapped 

around her arm.” (Perucci et al., supra, B127583, at p. 3.) 

Perucci and Leiva fled as soon as the shot was fired. Sheila 

McMackin died of the gunshot wound. Leiva later told Luna 
4

that the gun discharged accidentally while he was trying to rob 

Sheila McMackin.

•••

In 2018, the Legislature enacted Senate Bill No. 1437 

(2017–2018 Reg. Sess.) (Senate Bill No. 1437), which abolished 

the natural and probable consequences doctrine in cases of

murder, and limited the application of the felony-murder 

doctrine. (See People v. Gentile (2020) 10 Cal.5th 830, 842–843

(Gentile).) Under the new law, a conviction for felony murder 

requires proof that the defendant was either the actual killer, 

acted with the intent to kill, or “was a major participant in 

the underlying felony and acted with reckless indifference to 

human life.” (§ 189, subd. (e)(3).) The legislation also enacted

section 1170.95, which established a procedure for vacating 

murder convictions for defendants who could no longer be 

convicted of murder because of the changes in the law and 

resentencing those who were so convicted. (Stats. 2018, ch. 1015,

§ 4, pp. 6675–6677.)

Perucci filed a petition for a writ of habeas corpus 

January 10, 2019, in which he alleged that his conviction was 

illegal under Senate Bill No. 1437 and requested resentencing 

under section 1170.95. The trial court treated the petition as a 

petition for resentencing under section 1170.952 and appointed 

counsel to represent Perucci. The court found that Perucci had 

made a prima facie case for resentencing, and issued an order to 

show cause why the petition should not be granted. (§ 1170.95, 

subd. (c).) After a hearing on the order to show cause, the trial 

court denied the petition, finding that Perucci was a major 

2 Perucci also treats his habeas petition as a petition under 

section 1170.95, so we will do the same.
5

participant in the robbery and acted with reckless indifference to 

human life, and was therefore ineligible for resentencing.

DISCUSSION

Perucci contends that the trial court erred by denying his 

petition. He contends that he was not a major participant who 

acted with reckless indifference to human life as those terms 

are understood under the Supreme Court’s case law in People v. 

Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 

63 Cal.4th 522 (Clark), arguing that the robbery was no more 

than “a garden-variety armed robbery, where death might be 

possible but not probable.” (Banks, supra, 61 Cal.4th at p. 802.)

We need not and do not review the correctness of the trial 

court’s analysis because Perucci is ineligible for relief under 

section 1170.95 as a matter of law.

To be eligible for resentencing, Perucci must show that 

he “could not be convicted of first or second degree murder 

because of changes to Section 188 or 189 made effective” in 

Senate Bill No. 1437. (§ 1170.95, subd. (a)(3).) Senate Bill No. 

1437 amended section 189 to require, in all felony-murder cases, 

proof that the defendant was the actual killer, acted with the 

intent to kill, or “was a major participant in the underlying 

felony and acted with reckless indifference to human life.” (§ 189, 

subd. (e)(3); see Gentile, supra, 10 Cal.5th at pp. 842–843.) These 

requirements are identical to those for the felony-murder special 

circumstance that the jury found true in Perucci’s case. (See 

§ 190.2, subds. (b)−(d); People v. Allison (2020) 55 Cal.App.5th 

449, 457 (Allison).) The special circumstance finding thus 

establishes as a matter of law that Perucci could still be convicted 

of murder despite the amendments in Senate Bill No. 1437, and 

that he is ineligible for resentencing.
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Perucci disagrees with this conclusion. He argues that 

the jury’s special circumstance finding does not preclude him

from relief under section 1170.95 because, in the years following 

his conviction, the Supreme Court clarified the definition of major 

participation and reckless indifference to human life in Banks

and Clark. Because no court has considered whether he was 

a major participant who acted with reckless indifference under 

the Banks/Clark standard, he contends that the jury’s special 

circumstance finding does not alone render him ineligible for

resentencing.

We have considered this argument in three separate 

published opinions, and on each occasion, we have held that 

a defendant with a pre-Banks/Clark felony-murder special 

circumstance finding is ineligible for resentencing under 

section 1170.95. (See People v. Galvan (2020) 52 Cal.App.5th 

1134, review granted Oct. 14, 2020, S264284 (Galvan), People v. 

Murillo (2020) 54 Cal.App.5th 160, review granted Nov. 18, 2020,

S264978 & Allison, supra, 55 Cal.App.5th 449.)

3 We stand by 

3 Many other cases have addressed this issue and 

have reached diverging conclusions. Several Court of Appeal 

opinions have agreed with our position, including: People v. 

Nunez (2020) 57 Cal.App.5th 78, review granted January 13, 

2021, S265918; People v. Gomez (2020) 52 Cal.App.5th 1, review 

granted October 14, 2020, S264033; People v. Jones (2020) 56 

Cal.App.5th 474, review granted January 27, 2021, S265854; 

and People v. Simmons (2021) 65 Cal.App.5th 739, review 

granted Sep. 1, 2021, S270048. Other opinions have disagreed, 

including People v. Torres (2020) 46 Cal.App.5th 1168, review 

granted June 24, 2020, S262011; People v. Smith (2020) 49 

Cal.App.5th 85, review granted July 22, 2020, S262835; People v. 
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our reasoning in those opinions, and we see no need to repeat 

the same arguments here.

Our decision does not leave Perucci without any means

of challenging the validity of the special circumstance finding, 

however. As we noted in Galvan, a defendant with a 

pre-Banks/Clark special circumstance finding may challenge 

the sufficiency of the evidence for the special circumstance 

by means of a habeas corpus petition. (Galvan, supra, 52 

Cal.App.5th at p. 1141, review granted; In re Scoggins (2020) 

9 Cal.5th 667, 673−674.)

York (2020) 54 Cal.App.5th 250, review granted November 18, 

2020, S264954; People v. Harris (2021) 60 Cal.App.5th 939, 

review granted April 28, 2021, S267802; People v. Secrease 

(2021) 63 Cal.App.5th 231, review granted June 30, 2021, 

S268862; People v. Gonzalez (2021) 65 Cal.App.5th 420, review 

granted August 18, 2021, S269792; People v. Pineda (2021) 66

Cal.App.5th 792; and People v. Arias (2021) 66 Cal.App.5th 987.
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DISPOSITION

The trial court’s order denying the petition for resentencing 

is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

CRANDALL, J.*

* Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 

of the California Constitution.