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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

A NT HONY ROBERT PERUCCI

,

Defendant and Appellant. B 30 9 174

(Los Angeles County Super. Ct. No. BA109422 )

APPEAL from an order of the Superior Court of
Los Angeles County, Olivia Rosales , Judge. Affirm ed

. 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 G eneral, for Plaintiff and Respondent.

____________________________2 D efendant and appellant Anthony Robert Perucci challenges the trial court ’s denial of h is petition under Penal
Code 1 section 1170.95 for resentencing on his murder conviction

. H e 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 h is 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

.

FACT UAL AND PROCEDURAL SUMMARY

I n 199 6 , Perucci took part in a robbery in which his
codefendant Eddie Leiva shot and killed Sheila McMackin

. A jury con vi cted h im o f one count of first degree murder ( § 187, subd. (a)), one count of robbery (§ 211), and one count of attempted robbery (§§ 211, 6 64)

. On the murder count, t he 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 offense s (§ 12022, subd. (a)(1)), but rejected allegation s that Perucci personally used a handgun i n the commission of
the crimes. The tr ia l court sentenced Perucci to life in prison without the possibility of parole for murder

. W e affirmed the

1 Subsequent statutory references are to the Penal Code.3

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

, B 127583 ) [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 gu n from Luna, tell ing her that “ using a gun makes a ‘ jacking ’
easier. ” ( Perucci et al.

, supra , B 127583, at p. 2.) Perucci was
armed with a lead pipe that he claimed he found while w alking

to the restaurant where the robbery occurred

. Outside the
restaurant, Leiva and Perucci encountered Charles and Sheila
McMackin

. Sheila McMa c kin was sitting in the passenger seat of the couple’s car when Leiva approached her. He put h is head and shoulders through the window and began struggling with her.
A t this point

, Peruc c i 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 Luna4

that the gun discharg ed accidentally while he was trying to rob
Sheila McMackin.

••• I n 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 reck less 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
resentenci ng 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 , 20 19

, 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 petitio n as a petition for resentencing under section 1170.95 2 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 th e trial court erred by denying his petition. He contends tha t 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 wa s 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 in eligible for relief under
section 1170.95 as a matter of law

. T o 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 1 89 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); s ee 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.6 Perucci disagrees with this conclusion. H e argues that
th e jury’s special circumstance finding does not preclude h im
from relie f under section 1170.95 because , in the years following
h is 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 pa rticipant who acted with reckless indifference under
the Banks / Clark standard, he contends that the jury’s special circumstance finding does not alone render h im ineligible for resentencing. We have considered this argument in three separate published opinio ns, 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 grante d 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 Cou rt 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) 5 6 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 2 4, 2020, S262011 ; People v. Smith (2020) 49 Cal.App.5th 85, review granted July 22, 2020, S262835 ; People v.7

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 suffi ciency 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, 202 1, 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

.8 DISPOSITION

The trial court’s order denying the petition for resentencing
is affirmed.
NOT TO BE PUBLISHED

.

R OTHSCHILD, 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.