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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,

Plaintiff and Respondent,

v.

JOSEPH JOHN PORTILLO,

Defendant and Appellant.

B298967

(Los Angeles County

Super. Ct. No. KA030961-03)

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.

________________________
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 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.’ ”

1 All further undesignated statutory references are to the 

Penal Code.

2 We 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.
3

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 
4

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 multiplemurder 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 
5

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 
6

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 felonymurder 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 nowinvalid 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 
7

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–
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 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. 
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 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.)
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 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 
11

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 preBanks/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
12

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 
13

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 
14

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.)
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-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.