People v. Portillo CA2/3

Filed 11/23/22 P. v. Portillo CA2/3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B298967
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA030961-03)
v.
JOSEPH JOHN PORTILLO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, David C. Brougham, Judge. Remanded with
direction.
Stephen Temko, 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 Nikhil Cooper, Deputy Attorneys
General, for Plaintiff and Respondent.
________________________
In 1997, a jury convicted Joseph John Portillo of, among
other crimes, felony murder with true findings on the special
circumstance allegations that the murders were committed in the
course of a burglary and an attempted robbery and that Portillo
committed multiple murders. Years later, Portillo petitioned for
vacation of his murder conviction and resentencing under Penal
Code1 section 1172.6.2 The trial court denied the petition,
concluding that, in light of the special circumstance findings,
Portillo was a major participant in the underlying felony who
acted with reckless indifference to human life and, as such, he
was ineligible for relief. Portillo appealed the order denying his
petition, and we affirmed the order. (People v. Portillo (June 29,
2021, B298967) [nonpub. opn.].) Our California Supreme Court
granted review and has now transferred the matter back to us
with the direction to vacate our decision and to reconsider the
cause in light of People v. Strong (2022) 13 Cal.5th 698 (Strong).
Doing so, we conclude that the trial court’s order must be
reversed and the matter remanded for further proceedings.
1 All further undesignated statutory references are to the
Penal Code.
2 Effective June 30, 2022, section 1170.95 was renumbered to
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
2
BACKGROUND
I. The murders, trial, and conviction3
Portillo’s convictions arose out of his and his accomplices’
attempt to steal drugs. In 1996, Portillo asked his girlfriend if a
friend of hers, Curtis Reilly, had security cameras and guns at
his house, because Portillo wanted to steal things from Reilly.
Portillo told his girlfriend that he was going to do something that
might be the “ ‘last thing he did,’ ” that he didn’t know if he was
going to “ ‘make it out alive or not,’ ” and that “ ‘somebody may
die.’ ”
Over the course of several days, Portillo bought drugs from
Reilly. Then, on the day of the murders, Portillo asked his
girlfriend and another woman if they knew where he could get
guns. That evening, Reilly was home with Donnie Aiken, Charlie
Johnson, and three others. Hearing a knock on the door, Aiken
opened the door to Isaac Pereira, Portillo’s accomplice. Pereira
had bought drugs from Reilly previously, and he said he was
there to return something to Reilly. A few minutes later, there
was another knock on the door. Pereira let in Portillo, Ronald
Cory, and Kevin Watkins.
Cory pulled out a shotgun. Watkins had a knife. Reilly
called out to Johnson, who then struggled with Watkins. Aiken
struggled for control of the gun with Cory and Portillo, who hit
Aiken. All of a sudden, Aiken felt as if someone had punched him
in the back; in fact, he had been stabbed. Pereira stood a few
3 The background is from the prior opinion in this matter,
People v. Watkins (June 8, 1999, B118065) [nonpub. opn.]. We
have granted Portillo’s motion to augment the record with the
appellate record in that underlying case.
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steps behind Aiken, wiping blood off a knife. Aiken tried to crawl
away, but Portillo got on top of him to prevent Aiken from
escaping. The intruders left. Aiken survived, but Reilly and
Johnson died from stab wounds.
At Portillo’s trial, the trial court instructed the jury on first
degree felony murder during a robbery or burglary. The trial
court also instructed the jury that to find a defendant guilty of
first degree murder, it had to determine if one or more special
circumstances was true: (1) that defendant committed more than
one murder and (2) the murder was committed during the
commission or attempted commission of a robbery or burglary.
The jury was further instructed that if it found a defendant was
not the actual killer, then the jury could not find the special
circumstances true unless it found beyond a reasonable doubt
that the defendant had the intent to kill or was a major
participant in the murder who acted with reckless indifference to
human life.
A jury convicted Portillo of two counts of first degree
murder (§ 187, subd. (a)), attempted premeditated murder
(§§ 664, 187), attempted robbery (§§ 664, 211), and first degree
residential burglary (§ 459). The jury found true the multiple-
murder special circumstance allegations (§ 190.2, subd. (a)(3))
and the special circumstance allegations that the murders were
committed during the commission of an attempted robbery and a
burglary (§ 190.2, subd. (a)(17)). The jury also found true the
principal armed with a firearm allegations (§ 12022, subd. (a)(1)).
In 1997, the trial court sentenced Portillo to life in prison
without the possibility of parole for the murders, life for the
attempted murder, and seven years for the burglary.
4
Portillo appealed and argued, among other things, that
there was insufficient evidence to support the special
circumstance findings. A different panel of this Division rejected
that contention but remanded for resentencing and otherwise
affirmed the judgment. (People v. Watkins, supra, B118065.)
II. Section 1172.6 petition and post-petition proceedings
In 2019, after passage of Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437), Portillo filed a petition to vacate
his murder conviction and for resentencing. Using a preprinted
form, he checked boxes to indicate that a complaint had been
filed against him that allowed the prosecution to proceed under a
theory of felony murder or murder under the natural and
probable consequences doctrine, he was convicted of first or
second degree murder under one or more of those theories, and he
could not now be convicted of murder because of changes to
sections 188 and 189 effectuated by Senate Bill 1437. At
Portillo’s request, the trial court appointed counsel to represent
him.
The trial court summarily denied the petition, and neither
Portillo nor his attorney nor the prosecutor were present. The
trial court said that its file, which included the appellate opinion,
reflected that a jury convicted Portillo of two counts of first
degree murder and found true multiple murder and felony
murder special circumstance allegations. The trial court also
noted that the Court of Appeal had affirmed the true finding on
the special circumstance allegation that Portillo was a major
participant who acted with reckless indifference to human life.
Accordingly, the trial court found Portillo ineligible for relief as a
matter of law.
5
Portillo appealed the order denying his petition. We
affirmed the order, rejecting his argument that the trial court
erred by summarily dismissing his petition based on the jury’s
special circumstance finding. (People v. Portillo, supra,
B298967.)
Thereafter, our California Supreme Court issued Strong,
supra, 13 Cal.5th 698, which clarified the scope of section 1172.6.
As we now explain and as the People concede, Strong requires
reversal of the order denying Portillo’s petition.
DISCUSSION
Senate Bill 1437, which took effect on January 1, 2019,
limited accomplice liability under the felony-murder rule and
eliminated the natural and probable consequences doctrine as it
relates to murder, to ensure that a person’s sentence is
commensurate with his or her individual criminal culpability.
(People v. Gentile (2020) 10 Cal.5th 830, 842–843.) As relevant
here, Senate Bill 1437 amended the felony-murder rule by adding
section 189, subdivision (e), which provides that a participant in
the perpetration of qualifying felonies is liable for felony murder
only if the person: (1) was the actual killer; (2) was not the actual
killer but, with the intent to kill, acted as a direct aider and
abettor; or (3) the person was a major participant in the
underlying felony and acted with reckless indifference to human
life, as described in section 190.2, subdivision (d). (Gentile, at
p. 842.)
Senate Bill 1437 also added section 1172.6, which created a
procedure whereby persons convicted of murder under a now-
invalid felony-murder theory may petition for vacation of their
convictions and resentencing. A defendant is eligible for relief
under section 1172.6 if the defendant meets three conditions:
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(1) the defendant must have been charged with murder under a
theory of felony murder, (2) must have been convicted of first or
second degree murder, and (3) could no longer be convicted of
first or second degree murder due to changes to sections 188 and
189 effectuated by Senate Bill 1437. (§ 1172.6, subd. (a).) If a
petitioner makes a prima facie showing of entitlement to relief,
the trial court shall issue an order to show cause (§ 1172.6,
subd. (c)) and hold an evidentiary hearing at which the
prosecution bears the burden of proving “beyond a reasonable
doubt, that the petitioner is guilty of murder or attempted
murder” under the law as amended by Senate Bill 1437 (§ 1172.6,
subd. (d)(3)).
Portillo has challenged the trial court’s order denying his
petition on the ground it erred by finding him ineligible for
resentencing based on the jury’s special circumstance findings
that predated our Supreme Court’s decisions in People v. Banks
(2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522.
Banks and Clark substantially clarified what it means for an
aider and abettor defendant like Portillo to be a major participant
in a crime who acted with a reckless indifference to human life
for the purposes of the special circumstance statute, section
190.2, subdivision (d). Then, in Strong, supra, 13 Cal.5th at
pages 719 to 720, the court held that a pre-Banks and Clark
finding that the defendant was a major participant who acted
with reckless indifference to human life does not preclude the
defendant from making a prima facie case for relief under section
1172.6, even if the trial evidence was sufficient to support the
findings under Banks and Clark.
Here, Portillo’s pre-Banks and Clark jury was instructed
that if it found he was not the actual killer, it could only find the
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special circumstances true if it found beyond a reasonable doubt
that Portillo had the intent to kill or was a major participant in
the murder who acted with reckless indifference to human life.
Because the special circumstance finding predated Banks and
Clark, the finding does not preclude Portillo’s eligibility for
possible resentencing. Therefore, Portillo is entitled to
appointment of counsel4 and to an evidentiary hearing under
section 1172.6, subdivision (d)(3).
DISPOSITION
The order denying Joseph Portillo’s petition is reversed,
and the matter is remanded with the direction to the trial court
to appoint new counsel for him, to issue an order to show cause,
and to conduct an evidentiary hearing in accordance with Penal
Code section 1172.6, subdivision (d)(3).
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
I concur:
LAVIN, J. EGERTON, J.
4 Portillo has contended that the counsel appointed for him
had a conflict of interest because counsel represented a
codefendant. Without deciding whether a conflict existed, we
direct the trial court to appoint different counsel for Portillo on
remand.
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