People v. Portillo

Facts

D was a petty officer in the United States Navy stationed aboard the U.S.S. Ogden in San Diego. Due to the stress level aboard the ship, D often talked with other seamen and petty officers about picking up a prostitute, raping her and then killing her. On August 25, 2000, Portillo said that when he killed a prostitute, he would put her body in a seabag, which is a round, green duffel bag issued to Navy personnel. None of the other men reported his statements because they thought he was joking. Monica, a 36-year-old licensed escort, and mother of two whose real name was Natividad W. (Nancy), was given the assignment. Nancy was 'security conscious,' carried a stun gun, and was known to strictly follow the agency's procedures of collecting money up front and phoning in to verify receiving the funds before rendering any services. In over 100 calls for the agency, Nancy had never failed to phone in at the start of any service. Nancy arrived at the address around 2:00 p.m. The man answering the door told her he was not the person she was looking for. Shortly after she walked away, the man who answered the first door heard muffled voices upstairs and 'a loud thumping sound like somebody running across the floor.' Nancy never called into the agency that day and D failed to pick up his wife from work at 3:15 p.m. as arranged. When his wife entered the apartment, she saw blood on the floor near what appeared to be D's seabag, an unknown pair of women's sandals in the hallway, a purse and cloth bag which did not belong to her near the dining room table, and a hammer with blood-like stains on it. She called 911. Deputy sheriffs arrived, and found Nancy's body covered by two seabags, secured the area, and waited for homicide detectives. D drove up to the apartment complex in his truck. D denied any knowledge of why a body would be in his apartment, claiming he had gone to his ship around 2:00 p.m. to drop off some clothes, had watched some television in the ship's lounge and had fallen asleep. He had failed to pick his wife up at work because he did not wake up until around 7:45 p.m. D could not identify anyone who saw him on the ship and explained that a fresh scratch on his face was caused by his wife's cat. Eventually, D admitted he had called the escort service. When he saw from his apartment that the 'escort' was leaving the address he had given the agency, he called out her name. He then had consensual sex with her, but did not know 'what happened or how she died.' The autopsy revealed Nancy had sustained five blows to her head consistent with being hit by a hammer, and suffered broken bone and cartilage in her neck, petechiae hemorrhages in her eyes and eyelids, which are the 'hallmarks of strangulation,' two black eyes, bruises and lacerations on her lip, an abrasion on her left elbow, and blunt force injuries in her vaginal area and bruising around her anus. The cause of death was manual strangulation and multiple blunt force head injuries. Nancy's blood was all over the apartment. D's DNA was in scrapings and clippings from her fingernails, and his sperm was inside her vagina and around her anus. At trial, D claimed the sex with Nancy was consensual and her killing was committed in self-defense. After having sex, D told Nancy he did not have the money to pay her. she became angry and attacked him. She reached for an object from her bag and lunged at him. Thinking the object was a knife, D grabbed a heavy hammer out of a box and 'hit her like four, five times, just boom, real quick in the head.' D dropped the hammer on the floor nearby as they fell on the floor. Nancy then picked up the hammer to swing at him. D took it and threw it behind him. She was nonresponsive and not breathing. D stuffed her body into two of his seabags and tied them together. He put the hammer back in the box, showered and changed shirts. D argued that felony murder was not present because he had completed the underlying rape and sodomy offenses. The court gave the felony murder instruction. In response to a jury question during deliberation, the court stated: 'the commission of said crime (forcible rape or sodomy by use of force) is not confined to a fixed place or a limited period of time. Such crime is still in progress while a perpetrator is fleeing in an attempt to escape or to avoid detection. The crime is complete when the perpetrator has reached a place of temporary safety. The unlawful killing need not be simultaneous with the act of forcible penetration. However, it must be proven beyond any reasonable doubt that the unlawful killing occurred during the commission or attempted commission of a forcible rape or sodomy by use of force (as defined above), and that the death of the victim did not precede the commission or attempted commission of a forcible rape or sodomy by use of force.' D was convicted and appealed.

Issues

Rule of Law

Holding and Decision

Legal Analysis

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