Filed 9/13/24 P. v. Portillo CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

ORLANDO PORTILLO,

 Defendant and Appellant.

 G063878

 (Super. Ct. No. FWV22000639)

 O P I N I O N

Appeal from a judgment of the Superior Court of San Bernardino

County, Michael A. Camber, Judge. Affirmed.

Reed Webb, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, 

Christopher P. Beesley and Warren J. Williams, Deputy Attorneys General, 

for Plaintiff and Respondent.
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After a jury convicted Orlando Portillo of taking a vehicle without 

the owner’s consent, the court imposed a suspended middle term sentence of 

three years and placed him on mandatory supervision. Portillo argues the 

trial court abused its discretion in imposing the middle term based on its 

conclusion his trial testimony was not credible.

Portillo forfeited this argument by failing to object at the time of 

sentencing. Even if Portillo did not forfeit his argument, it fails on the merits 

because the trial court did not abuse its discretion in sentencing Portillo to a 

suspended middle term of three years with mandatory supervision. We 

therefore affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

On the night of February 18, 2022, J.L. parked his 2016 box truck 

at the business he owned. The next day, he discovered the truck was missing 

and reported it stolen to police. 

On February 20, 2022, a police officer conducted a traffic stop of 

J.L.’s truck, which Portillo was driving. The officer observed the locking 

mechanism on the outside passenger door and the ignition mechanism had 

been punched out. There were no keys in the ignition. The officer saw two 

screwdrivers with fresh metal shavings on the tips in the front compartment 

of the truck, suggesting the screwdrivers were used to open the door and 

start the truck. Portillo told the officer he was driving the truck home after 

the owner asked him to repair it. J.L. did not know Portillo and did not give

him permission to drive or repair his truck. 

Portillo was charged with taking a vehicle without the owner’s 

consent (Veh. Code, § 10851, subd. (a); count 1) and receipt of stolen property 
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(Pen. Code, § 496, subd. (d); count 2).1 The information also alleged a 

sentencing enhancement, pursuant to section 666.5, based on a prior Vehicle 

Code section 10851, subd. (a) conviction, and alleged aggravating sentencing 

factors.

During his jury trial, Portillo testified in his own defense and 

denied knowing the truck was stolen. He acknowledged he had been 

convicted of a felony theft offense in 2021, which was on appeal at the time of 

trial. 

Portillo testified an unnamed friend came to his house and asked 

him to provide an estimate to repair a truck. Portillo stated another friend, 

Raymundo Rios, drove Portillo to a warehouse in Chino where the truck was 

parked. At the warehouse, another unnamed person, who claimed to be the 

owner of the truck, told Portillo the ignition cylinder had been damaged when 

someone tried to steal the truck. Portillo told this person he could repair the 

truck for $250. Portillo stated he intended to drive the truck to his home 

where he kept his tools, and the owner would bring him a new ignition 

cylinder the next day. Portillo also testified he decided to drive the truck to 

his friend’s house instead because he would be unable to park it at home due 

to street sweeping restrictions. 

In April 2023, the jury convicted Portillo of taking a vehicle 

without the owner’s consent (count 1) and found him not guilty of receiving 

1 All further statutory references are to the Penal Code unless 

otherwise indicated.
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stolen property (count 2).

2 From the record, it appears the trial court found 

the Penal Code section 666.5 sentencing enhancement to be true on June 16, 

2023. 

At the sentencing hearing, the probation officer’s report

recommended the court deny probation and sentence Portillo to the middle 

term of two years, with the balance of his time to be served on mandatory 

supervision. The prosecution objected to the probation report and requested 

Portillo be remanded to custody for lying while testifying at trial. Defense 

counsel replied she did not “think that lying was, in fact, substantiated.” 

Defense counsel then submitted on the probation report.

The trial court stated: “The Court’s going to pick a path between 

both sides. [¶] Sir, I’m going to give you three years, but I’m going to put you 

on mandatory supervision on that. Three years is the midterm based on the 

People demonstrating that you had a prior conviction. The Court didn’t 

believe you when you testified. That’s why I’m giving you three instead of 

two.” The court further stated, “I think the probation department was fairly 

lenient, but it also sounds to me like you have a family to support. And you’re 

working, and I appreciate that. It also sounds like you have a meth problem, 

and I appreciate that as well. So I hope you deal with it.” Defense counsel did 

not object. The court then imposed and suspended a middle term of three 

years, and placed Portillo on mandatory supervision.

2 Before his jury trial commenced, the trial court granted 

Portillo’s birfurcation request as to the section 666.5 sentencing enhancement 

and aggravating factors. Portillo later waived his right to a jury trial as to the 

enhancement and factors in aggravation.
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DISCUSSION

I.

PORTILLO HAS FORFEITED HIS CLAIM OF SENTENCING ERROR 

Portillo contends the sentencing court improperly considered his 

credibility when imposing and suspending the middle term of three years. 

The Attorney General asserts Portillo forfeited this argument by failing to 

object on this ground at the time of sentencing. We agree with the Attorney 

General. 

“A party in a criminal case may not, on appeal, raise ‘claims 

involving the trial court’s failure to properly make or articulate its 

discretionary sentencing choices’ if the party did not object to the sentence at 

trial.” (People v. Gonzalez (2003) 31 Cal.4th 745, 751, citing People v. Scott

(1994) 9 Cal.4th 331, 353 (Scott).) This rule exists to correct errors at trial, 

obviating the need for appeal: “[C]ounsel is charged with understanding, 

advocating, and clarifying permissible sentencing choices at the hearing” and 

“[r]outine defects in the court’s statement of reasons are easily prevented and 

corrected if called to the court’s attention.” (Scott, at p. 353.) If there is a 

meaningful opportunity for counsel to object to purported deficiencies in the 

trial court’s statement of reasons for its sentence choices during the 

sentencing hearing, counsel’s failure to object forfeits any appellate claim of 

error. (Id. at p. 356.) Here, Portillo’s trial counsel was provided the 

opportunity to object to the court’s reliance on Portillo’s crediblity but failed 

to do so. It is only for the first time on appeal that Portillo makes such a 

challenge. Therefore, any such claim is forfeited by failure to object at the 

time of sentencing.
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II.

PORTILLO’S ARGUMENT IS WITHOUT MERIT

Even if Portillo did not forfeit this argument, it fails on the 

merits. A trial court enjoys broad discretion in matters involving probation 

and sentencing, and the party challenging a decision to grant or deny 

probation bears the burden of establishing the court abused its discretion. 

(People v. Catalan (2014) 228 Cal.App.4th 173, 179.) “The trial court’s 

sentencing discretion must be exercised in a manner that is not arbitrary and 

capricious, that is consistent with the letter and spirit of the law, and that is 

based upon an ‘individualized consideration of the offense, the offender, and 

the public interest.’” (People v. Sandoval (2007) 41 Cal.4th 825, 847.)

Portillo failed to meet his burden of demonstrating the trial court 

abused its discretion in sentencing him to a suspended middle term of three 

years with mandatory supervision. Because Portillo had a prior felony 

conviction for vehicle theft, he was subject to an enhanced sentencing scheme

under section 666.5, which mandated a sentence of either two, three, or four 

years. Although the trial court did comment on Portillo’s credibility when 

considering an appropriate sentence, the record shows the court considered 

the probation department’s sentencing report and weighed various other 

factors in deciding to impose and suspend the middle term. These factors 

included the circumstances of the crime, Portillo’s background, the fact 

Portillo was working, had a family to support, and had an ongoing 

methamphetamine addiction that needed to be addressed. The reasons the 

court gave for its decision to impose a suspended middle term were neither 

arbitrary nor capricious. 
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DISPOSITION

The judgment is affirmed.

MOTOIKE, J.

WE CONCUR:

GOETHALS, ACTING P. J.

SANCHEZ, J.