Filed 6/2 9 /21 P. v. Portillo CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

J OSEPH JOHN PORTILLO

,
Defendant and Appellant. B29 8967

(Los Angeles County Super. Ct. No. K

A 030961

- 03 )

APPEAL from a n 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.

________________________2 In 1997

, a jury convicted Joseph J

. Portillo of, among other
crimes , felony murder with true findings on the special circumstance allegations that the murder s w ere committed in the
course of a burglary and a n 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 finding s , Portillo was a major participant in the underlying felony who
acted with reckless indifference to human life . As such, he was ineligible for relief

. Port illo appeals the order denying his petition . W e affirm

. BACKGROUND

1. The murder s, trial, and conviction 2
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. ’ ”

1 All further undesignated statutory references are to the Penal Code.

2 We derive the background from th e prior opinion in this matter, People v. Cory ( June 8 , 199 9, B1180 65 ) [ nonpub. opn. ]

. W e have granted Portillo’s motion to augment the record with the appellate record in that underlying case.3 Over the course of several days, Portillo bought drugs from Reilly. Then, o n 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, a nd 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, wh o 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 Aike n from escaping. The intruders left. Aiken survived, but Reilly and
Johnson died from stab wounds.
At Portillo ’s trial, t he 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 durin g 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 doub t4

that defendant had the intent to kill or was a major parti ci pant
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 premedi t ated murder ( §§ 664, 187 ), attempted robbery ( § § 664, 211 ) , and first degree
residential burglary ( § 459)

. The jury found true the multiple

murder special circumstance allegation s (§ 190.2, subd. (a) (3) )
and the special circumstance allegations that the murder s w ere 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, t he 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 ev idence 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 , B 11806 5

. )

2

. Section 1170.95 petition
In 2019, after passage of Senate Bill No. 1437 (2017

– 2018 Reg. Sess.) (Sen ate Bill 1437) , Portillo filed a petition to vacat e 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 fi rst 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

. At5

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 finding s

. 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 w as present. The trial court said that its file,
which included the appellate opinion, reflected that a jury
convict ed 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 t he Court of Appeal
had affirmed the true f inding on the special circumstance allegation that Portillo was a major participant who acted with
reckless indifference to human life. Accordingly, t he trial court found Portillo ineligible for relief as a matter of law.

DISCUSSION

Portillo contends th at the trial court erred by summarily dismissing his petition based on the jury’s special circumstance finding s

. Further, b y doing so in the absence of Portillo’s appoint ed 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 is6

commensurate with the person’s individual criminal culpability. ( People v. Gentile (2020) 10 Cal.5 th 83 0, 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.5 th 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 bu t, 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 a t 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 defendan t is eligible for relief under section7

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

s econd degree murder, and (3) c ould 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).)
Evaluatin g a section 1170.95 petition requires a multi

- step

process: an initial r eview to determine the petition’ s faci al 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 o f 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 p p

. 898

, 901

–8

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 in eligibility 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 whe ther 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 S upreme C ourt’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 aid er and abett or 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

res entencing as a matter of law

. We agree with the People

.9 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 s ection 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 murd er 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 parti ci pant in the murder who acted with reckless
indifference to human life.
A ppellate 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. J ones (2020) 56 Cal.App.5th 474, 478

– 479 , rev iew granted Jan. 27, 2021, S265854 [collecting cases]

. ) Some courts have concluded
th at such a special circumstance finding do es 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

. )10

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 huma n life as those terms were interpreted at th e 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, 20 20 , S262835 ; People v. York (2020) 54 Cal.App.5th 250, 258, review granted Nov. 18, 2020, S264954 ; Harris

, a t p. 958 ; People
v. Secrease (2021) 63 Cal.App.5th 231 .)
O ther 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 s ection 1170.95 was n ot meant to be an avenue for a collateral attack on the sufficiency of the evidence to support a special circumstance finding ( see, e.g., Pe ople v. Allison (2020) 55 Cal.App.5th 449

, 453, 461 ) , and a
defendant who challenge s 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, rev iew

gr anted Oct. 14, 2020, S264033 ; People v. Galvan (2020) 52 Cal.App.5th 1134, 1 137 , rev iew 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 , rev iew gr anted 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 the11

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, “n o 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 .) T hus, t he argument that a pre

Banks/Clark special circumstance fi nding must be presumed
invalid exagg erates the impact of Banks and Clark

. ( Allison

, at p. 458; Jones

, at p. 484

. ) T here 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 .) T he alleged inability to o btain
such a conviction is not because of change s made by Senate Bill

1437 , but because of the clarification o f the requirements for the special circumstance finding in Banks and Clark. ( People v.
Galvan

, supra , 52 Cal.App.5th at p. 1142, rev.gr. ) “ Nothing12

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, i n concluding that the proper vehicle to challenge

a pre

- Banks and Clark special circumstance finding is a petition for writ of habeas corpus, c ourts 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
findin g 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

. ) A llowing petitioners to challenge a special circumstance finding via a section 1170.9513

petition thus would give them an advantage over similarly situated defendants, based on the date of their convictions. ( Galvan

, at pp. 1142

– 1143.)
S uch 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 c onviction 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 th e 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 because14

he is ineligible for relief as a matter of law based on the special circumstance findings

. Moreover, b ecause 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
den y a petition wi thout 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 correct ly 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 G iven that Portillo had no righ t 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 C ourt 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). ( P eople v. Lewis

, supra , S260598 .)15 DISPOSITION

The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

EDMON, P. J.

I concur:

EGERTON , J

.1

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

- circums tance 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 tria l court’s order and direct it to conduct further proceedings in accordance with section 1170.95, subdivisions (c) and (d).

LAVIN, J.