People v. Perucci CA2/1 ( 2021 )

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B309174
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA109422)
v.
ANTHONY ROBERT PERUCCI,
Defendant and Appellant.
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.
____________________________
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.
2
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
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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.
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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.
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