Filed 6/29/21 P. v. Portillo CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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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. Affirmed.
Stephen Temko, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kristen J. Inberg and Michael Katz, Deputy
Attorneys General, for Plaintiff and Respondent.
________________________
In 1997, a jury convicted Joseph J. 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
Code section 1170.95.1 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. As such, he was
ineligible for relief. Portillo appeals the order denying his
petition. We affirm.
BACKGROUND
1. The murders, trial, and conviction2
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.’ ”
1All further undesignated statutory references are to the
Penal Code.
2We derive the background from the prior opinion in this
matter, People v. Cory (June 8, 1999, B118065) [nonpub. opn.].
We have granted Portillo’s motion to augment the record with the
appellate record in that underlying case.
2
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
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
3
that 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.
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. Cory, supra, B118065.)
2. Section 1170.95 petition
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
4
Portillo’s request, the trial court appointed counsel to represent
him. Appointed counsel had represented one of Portillo’s
codefendants at trial.
The People opposed the petition on the grounds the law was
unconstitutional and that Portillo was ineligible based on the
special circumstance findings. Without waiting for Portillo’s
reply, the trial court advanced the hearing on the petition and
summarily denied the petition. Neither Portillo nor his attorney
nor the prosecutor was 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.
DISCUSSION
Portillo contends that the trial court erred by summarily
dismissing his petition based on the jury’s special circumstance
findings. Further, by doing so in the absence of Portillo’s
appointed counsel, the trial court deprived him of his right to
counsel. We disagree.
1. Applicable legal principles
a. Senate Bill 1437
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
5
commensurate with the person’s individual criminal culpability.
(People v. Gentile (2020) 10 Cal.5th 830, 842–843; People v.
Verdugo (2020) 44 Cal.App.5th 320, 323 (Verdugo), review
granted Mar. 18, 2020, S260493; People v. Munoz (2019) 39
Cal.App.5th 738, 749–750, 763, review granted Nov. 26, 2019,
S258234.)
Prior to Senate Bill 1437’s enactment, under the felony-
murder rule “a defendant who intended to commit a specified
felony could be convicted of murder for a killing during the felony,
or attempted felony, without further examination of his or her
mental state.” (People v. Lamoureux (2019) 42 Cal.App.5th 241,
247–248.) “ ‘ “The felony-murder rule impute[d] the requisite
malice for a murder conviction to those who commit[ted] a
homicide during the perpetration of a felony inherently
dangerous to human life.” ’ ” (Id. at p. 248.)
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). (People
v. Gentile, supra, 10 Cal.5th at p. 842.)
b. Section 1170.95’s petitioning procedure
Senate Bill 1437 added section 1170.95, which created a
procedure whereby persons convicted of murder under a now-
invalid felony-murder or natural and probable consequences
theory may petition for vacation of their convictions and
resentencing. A defendant is eligible for relief under section
6
1170.95 if the defendant: (1) had been charged with murder
under a theory of felony murder or murder under the natural and
probable consequences doctrine, (2) was 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. (§ 1170.95, subd. (a).)
Evaluating a section 1170.95 petition requires a multi-step
process: an initial review to determine the petition’s facial
sufficiency; a prebriefing, “ ‘first prima facie review’ ” to
preliminarily determine whether the petitioner is statutorily
eligible for relief as a matter of law; and a second, postbriefing
prima facie review to determine whether the petitioner has made
a prima facie case that he or she is entitled to relief. (People v.
Tarkington (2020) 49 Cal.App.5th 892, 897 (Tarkington), review
granted Aug. 12, 2020, S263219; Verdugo, supra, 44 Cal.App.5th
at pp. 327–330, rev.gr.; but see People v. Cooper (2020) 54
Cal.App.5th 106, review granted Nov. 10, 2020, S264684.)
When conducting the first prima facie review, the trial
court must determine, based upon its review of readily
ascertainable information in the record of conviction and the
court file, whether the petitioner is statutorily eligible for relief
as a matter of law, i.e., whether the petitioner was convicted of a
qualifying crime, based on a charging document that permitted
the prosecution to proceed under the natural and probable
consequences doctrine or a felony-murder theory. (Tarkington,
supra, 49 Cal.App.5th at pp. 897–898, rev.gr.; Verdugo, supra, 44
Cal.App.5th at pp. 329–330, rev.gr.) If it is clear from the record
of conviction that the petitioner cannot establish eligibility as a
matter of law, the trial court may summarily deny the petition
without appointing counsel. (Tarkington, at pp. 898, 901–
7
902; People v. Torres (2020) 46 Cal.App.5th 1168, 1178 (Torres),
review granted June 24, 2020, S262011; Verdugo, at
p. 332; People v. Lewis (2020) 43 Cal.App.5th 1128, 1139–1140,
review granted Mar. 18, 2020, S260598.)
If, however, the petitioner’s ineligibility is not established
as a matter of law, the trial court must appoint counsel and
permit briefing to determine whether the petitioner has made a
prima facie showing he or she is entitled to relief. (Verdugo,
supra, 44 Cal.App.5th at p. 330, rev.gr.; Tarkington, supra, 49
Cal.App.5th at p. 898, rev.gr.) If the petitioner makes such a
showing, the trial court must issue an order to show cause and
conduct a hearing to determine whether to vacate the murder
conviction and resentence the petitioner on any remaining
counts. (§ 1170.95, subds. (c), (d); People v. Nguyen (2020) 53
Cal.App.5th 1154, 1165–1166.) At such a hearing, the
prosecution has the burden to prove, beyond a reasonable doubt,
that the defendant is ineligible for resentencing. (§ 1170.95,
subd. (d)(3).)
2. Application here
Portillo contends that the trial court erred by finding him
ineligible based on the jury’s special circumstance findings
because they predated our Supreme Court’s decisions in People v.
Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark). Banks and Clark 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). The People counter that the
special circumstance findings render him ineligible for
resentencing as a matter of law. We agree with the People.
8
To be eligible for resentencing, Portillo was required to
show that he could not be convicted of first or second degree
murder because of changes to section 188 or 189 made by Senate
Bill 1437. (§ 1170.95, subd. (a)(3).) Under section 189, as
amended, a defendant can be convicted of felony murder if he was
the actual killer; acted as a direct aider and abettor 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).) As we have said, Portillo’s pre-Banks and Clark jury
was instructed that if it found he was not the actual killer, it
could only find the 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.
Appellate courts are split on whether a pre-Banks and
Clark special circumstance finding renders a petitioner ineligible
for section 1170.95 relief as a matter of law.3 (People v. Jones
(2020) 56 Cal.App.5th 474, 478–479, review granted Jan. 27,
2021, S265854 [collecting cases].) Some courts have concluded
that such a special circumstance finding does not, by itself,
render a petitioner ineligible for relief. (Torres, supra, 46
Cal.App.5th at p. 1178, rev.gr.; People v. Harris (2021) 60
Cal.App.5th 939, 944–945, review granted Apr. 28, 2021,
S267802.) Torres, at page 1179, reasoned that Banks and Clark
construed section 190.2, subdivision (d) in a significantly
different and narrower manner than courts had previously done.
“Accordingly, in determining if [petitioner] could be convicted
3 Our Supreme Court is currently considering this issue.
(People v. Strong (Dec. 18, 2020, C091162), review granted Mar.
10, 2021, S266606.)
9
today of first degree murder, we cannot simply defer to the jury’s
pre-Banks and Clark factual findings that [petitioner] was a
major participant who acted with reckless indifference to human
life as those terms were interpreted at the time.” (Torres, at
p. 1179.) When no court has affirmed the special circumstances
findings post-Banks and Clark, there is a possibility the
petitioner was punished for conduct not prohibited by section
190.2 as currently understood, in violation of the petitioner’s
constitutional right to due process. (Torres, at p. 1180; accord,
People v. Smith (2020) 49 Cal.App.5th 85, 93, review granted July
22, 2020, S262835; People v. York (2020) 54 Cal.App.5th 250, 258,
review granted Nov. 18, 2020, S264954; Harris, at p. 958; People
v. Secrease (2021) 63 Cal.App.5th 231.)
Other courts have found to the contrary, that a pre-Banks
and Clark special circumstance finding bars section 1170.95 relief
as a matter of law. They reason that section 1170.95 was not
meant to be an avenue for a collateral attack on the sufficiency of
the evidence to support a special circumstance finding (see, e.g.,
People v. Allison (2020) 55 Cal.App.5th 449, 453, 461), and a
defendant who challenges the sufficiency of the evidence to prove
a pre-Banks and Clark major participant or reckless indifference
finding must do so via a petition for writ of habeas corpus (see,
e.g., People v. Gomez (2020) 52 Cal.App.5th 1, 16–17, review
granted Oct. 14, 2020, S264033; People v. Galvan (2020) 52
Cal.App.5th 1134, 1137, review granted Oct. 14, 2020, S264284;
People v. Jones, supra, 56 Cal.App.5th at p. 483, rev.gr.; People v.
Nunez (2020) 57 Cal.App.5th 78, 96, review granted Jan. 13,
2021, S265918.)
In support of this view, these courts point out that Banks
and Clark did not state a new rule of law but merely clarified the
10
already-existing meaning of “major participant” and “reckless
indifference,” terms that do not have specialized definitions and
are interpreted as used in common parlance. (People v. Jones,
supra, 56 Cal.App.5th at p. 484, rev.gr.; People v. Nunez, supra,
57 Cal.App.5th at p. 92, rev.gr.; People v. Allison, supra, 55
Cal.App.5th at pp. 458–459.) While optional language was added
to the pattern jury instructions after Banks and Clark, “no
mandatory language or material changes were made to the
CALCRIM special circumstances instructions,” and there is no
requirement that juries be instructed on the Banks/Clark
clarifications. (Nunez, at p. 92.) Thus, the argument that a pre-
Banks/Clark special circumstance finding must be presumed
invalid exaggerates the impact of Banks and Clark. (Allison, at
p. 458; Jones, at p. 484.) There is “no basis to conclude as a
general matter that a pre-Banks and Clark jury was instructed
differently than a post-Banks and Clark jury, or resolved
different factual issues, answered different questions, or applied
different standards.” (Nunez, at p. 94).
Additionally, this line of authority reasons that the
Torres/Smith/York approach is inconsistent with the plain
language of section 1170.95, because a defendant claiming
ineligibility based on Banks and Clark does not meet the
statutory requirement in section 1170.95, subdivision (a)(3), that
the defendant cannot be convicted because of changes to sections
188 or 189 made by Senate Bill 1437. (People v. Jones, supra, 56
Cal.App.5th at p. 484, rev.gr.) The alleged inability to obtain
such a conviction is not because of changes made by Senate Bill
1437, but because of the clarification of the requirements for the
special circumstance finding in Banks and Clark. (People v.
Galvan, supra, 52 Cal.App.5th at p. 1142, rev.gr.) “Nothing
11
about those requirements changed as a result of Senate Bill
No. 1437. Just as was the case before that law went into effect,
the special circumstance applies to defendants who were major
participants in an underlying felony and acted with reckless
indifference to human life.” (Ibid.)
Further, in concluding that the proper vehicle to challenge
a pre-Banks and Clark special circumstance finding is a petition
for writ of habeas corpus, courts point to the different burdens
involved in a habeas petition and a section 1170.95 petition. A
defendant challenging a pre-Banks/Clark special circumstance
finding on direct appeal or by means of a writ of habeas corpus
must show that the record contains insufficient evidence to prove
the defendant acted as a major participant or with reckless
indifference. (People v. Jones, supra, 56 Cal.App.5th at p. 485,
rev.gr.; People v. Galvan, supra, 52 Cal.App.5th at pp. 1142–
1143, rev.gr.; People v. Gomez, supra, 52 Cal.App.5th at p. 17,
rev.gr.) In contrast, a petitioner who demonstrates a prima facie
case for section 1170.95 relief has shifted the burden to the
People to prove beyond a reasonable doubt that they are
ineligible for resentencing, that they still could be convicted of
murder despite the change to the felony-murder rule in section
189. The “Torres/Smith/York line of cases would read into section
1170.95 a new procedure allowing petitioners to ignore a special
circumstance finding—no matter how well supported in the
record—as well as the recognized method of challenging it. Such
petitioners would be allowed to relitigate a prior jury finding at
an evidentiary hearing where the prosecution bears the burden of
proving the truth of the finding, beyond a reasonable doubt, a
second time.” (Jones, at p. 485.) Allowing petitioners to
challenge a special circumstance finding via a section 1170.95
12
petition thus would give them an advantage over similarly
situated defendants, based on the date of their convictions.
(Galvan, at pp. 1142–1143.)
Such a procedure is inconsistent with the Legislature’s
intent. “The Legislature made plain that its purpose in enacting
section 1170.95 was to give defendants the benefit of the
amendments to sections 188 and 189 in the absence of a factual
basis for a murder conviction in light of the statutory revisions.
But there is no indication in the statute’s text or history of any
legislative intent to permit defendants to challenge their murder
convictions by attacking prior findings of fact.” (People v. Nunez,
supra, 57 Cal.App.5th at p. 95, rev.gr.) “Nothing in the language
of section 1170.95 suggests it was intended to provide redress for
allegedly erroneous prior factfinding. In particular, subdivision
(a)(3) of section 1170.95 says nothing about erroneous prior
findings or the possibility of proving contrary facts if given a
second chance. Rather, it requires that the petitioner could not
be convicted of murder because of the changes to sections 188 and
189, not because a prior fact finder got the facts wrong. The
purpose of section 1170.95 is to give defendants the benefit of
amended sections 188 and 189 with respect to issues not
previously determined, not to provide a do-over on factual
disputes that have already been resolved.” (People v. Allison,
supra, 55 Cal.App.5th at p. 461.)
While we acknowledge that both of the foregoing lines of
authority are not without force, we agree with those courts
holding that a pre-Banks and Clark special circumstance finding
precludes relief as a matter of law. Accordingly, the trial court
here correctly denied Portillo’s section 1170.95 petition because
13
he is ineligible for relief as a matter of law based on the special
circumstance findings.
Moreover, because Portillo was ineligible for section
1170.95 relief as a matter of law, Portillo was not denied his right
to counsel or to effective representation. We and numerous other
courts have found that a trial court may properly summarily
deny a petition without appointing counsel if the record shows
the defendant is ineligible as a matter of law. (See, e.g.,
Tarkington, supra, 49 Cal.App.5th at pp. 901–902, rev.gr.;
Verdugo, supra, 44 Cal.App.5th at p. 332, rev.gr.; Torres, supra,
46 Cal.App.5th at p. 1178, rev.gr.; People v. Lewis, supra, 43
Cal.App.5th at pp. 1139–1140, rev.gr.; People v. Cornelius (2020)
44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410;
but see People v. Cooper, supra, 54 Cal.App.5th at p. 109, rev.gr.)
Because the trial court here correctly found that the special
circumstance findings precluded relief as a matter of law, it was
not required to appoint counsel before denying the petition, even
though it did so.4 Given that Portillo had no right to counsel at
all and that the record does not show that appointed counsel, who
represented Portillo’s codefendant at trial, performed any
substantive work for Portillo in this matter, we need not reach
Portillo’s contention that appointed counsel had a conflict of
interest.
4 Our California Supreme Court is currently reviewing
whether a trial court may consider the record of conviction in
determining whether a defendant has made a prima facie
showing of eligibility for relief under section 1170.95, and when
the right to counsel arises under section 1170.95, subdivision (c).
(People v. Lewis, supra, S260598.)
14
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
I concur:
EGERTON, J.
15
LAVIN, J., Dissenting:
In this appeal from the denial of a petition for relief under
Penal Code section 1170.95, the majority concludes that Joseph J.
Portillo “had no right to counsel at all” and he is ineligible for
relief as a matter of law based on the jury’s special-circumstance
findings. I disagree. For the reasons set forth in People v. Cooper
(2020) 54 Cal.App.5th 106, review granted November 10, 2020,
S264684, and People v. Harris (2021) 60 Cal.App.5th 939, review
granted April 28, 2021, S267802, I would reverse the trial court’s
order and direct it to conduct further proceedings in accordance
with section 1170.95, subdivisions (c) and (d).
LAVIN, J.
1