People v. Perucci CA2/1

Filed 9/29/21 P. v. Perucci CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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