## Facts

- Coby J. Portillo, a U.S. Navy petty officer in San Diego, had discussed with others the idea of raping and killing a prostitute.
- Portillo contacted an escort service requesting a petite Asian woman; the victim, Natividad “Nancy” W., a licensed escort, was sent.
- Evidence indicated Portillo brought the victim to his apartment, and she did not make the escort service’s customary check-in call.
- Portillo’s wife later returned home, saw blood and unfamiliar women’s items, and found a hammer with apparent blood stains; she called 911.
- Deputies found the victim’s body in the apartment, covered by seabags.
- The autopsy showed multiple blunt-force head injuries consistent with hammer blows and strangulation; the prosecution presented physical and DNA evidence consistent with forcible rape and sodomy and a struggle.
- Portillo first denied involvement and claimed he was asleep on ship; he later admitted calling the escort service, claimed any sex was consensual, and asserted the death occurred during a struggle.
- A jury convicted Portillo of first degree murder, forcible rape, and forcible sodomy, found a deadly-weapon-use enhancement true, and found true special circumstances that the murder occurred during rape and sodomy; he was sentenced to life without parole plus one year.

## Issues

1. Whether the trial court erred by instructing that, for felony-murder purposes, rape and sodomy can continue during the perpetrator’s escape or efforts to avoid detection (the “escape rule”/continuous-transaction theory).
2. Whether, if the escape rule applies to the sex felonies, the rape and sodomy special circumstances are unconstitutional because they overlap with felony-murder liability and fail to narrow eligibility for the harshest punishment.
3. Whether giving CALJIC No. 17.41.1 (juror misconduct reporting instruction) violated constitutional rights and required reversal.

## Decision

- The Court of Appeal affirmed the convictions and sentence.
- The court held the escape rule/continuous-transaction theory may apply to rape and sodomy for felony-murder purposes, not only to theft-related felonies.
- The court held the instruction did not remove fact questions from the jury because jurors still had to decide whether the underlying felonies had ended (including whether the defendant had reached a place of temporary safety) before the killing.
- The court rejected the constitutional challenge to the rape and sodomy special circumstances.
- The court held giving CALJIC No. 17.41.1 was not reversible error on this record absent a showing of prejudice affecting deliberations.

## Legal Principles

- A killing is “in the perpetration of” a felony for felony-murder purposes when the felony and homicide are part of one continuous transaction, which can include flight and efforts to avoid detection until the perpetrator reaches a place of temporary safety.
- The escape rule is not categorically limited to robbery or burglary; it may apply to other predicate felonies, including rape and sodomy, when the facts support a continuous-transaction finding.
- A properly framed escape-rule instruction may be permissible where it leaves the jury to decide whether the predicate felony had concluded before the killing.
- Special-circumstance findings for felony-related murder are not unconstitutional solely because they substantially overlap with felony-murder liability.
- CALJIC No. 17.41.1 does not require reversal absent evidence it actually interfered with deliberations or caused prejudice.

## Conclusion

The court affirmed a life-without-parole judgment, holding that felony-murder liability and rape/sodomy special circumstances may rest on a continuous-transaction theory that includes escape or concealment efforts before reaching temporary safety, and finding no reversible error from the juror-reporting instruction without a showing of prejudice.


People v. Portillo, 107 Cal. App. 4th 834 (Ct. App. 2003)