A hammer, a pizza guy, and $60

A hammer, a pizza guy, and $60: how California's probation system can skew criminal justice


When Darius Simms walked into Department 25 at the Hall of Justice late last year, dressed in the orange cottons inmates wear at the county's downtown jail, he received some good news. He was being released.

The bad news was that he was still going to be punished for something a judge said she was pretty sure he didn't do.

Simms had been on probation when he was arrested for allegedly bashing in the head of a pizza delivery driver for $60. But the District Attorney's Office couldn't make a criminal case against him, and the charges of assault, attempted murder, and robbery were dropped.

Still, on the advice of his lawyer, Simms accepted a deal that extended his probation until 2009 just to escape the hoosegow — essentially on the grounds that the normal rules of the criminal justice system don't count for those on probation, innocent or not.

The way California's probation system works, it doesn't matter if law enforcement proves an ex-con committed a crime. Just getting arrested can mean trouble.

It is, one defense lawyer told us, a "dirty little secret" of criminal prosecutions in the state.

The prosecutors may not have a case to take to a jury, in which a defendant is innocent until proved guilty and the evidence has to be proved beyond a reasonable doubt. But they can send people on probation, such as Simms, to jail anyway, and that requires only a hearing before a judge.

"It's not 12 people agreeing. It's one," Robert Dunlap, the defense attorney for Simms, told the Guardian. "And it's not beyond a reasonable doubt, it's by a preponderance of the evidence. It's a lower standard of proof."

Deputy district attorney Jim Thompson insisted that Simms was guilty even though he lacked proof, and he wanted to railroad the 26-year-old Western Addition native into more jail time.

Sitting behind the prosecutor that day in the gallery of Department 25 was a man named Tony Portillo. If Simms's defense attorney hadn't negotiated an extended probation for his client, Portillo would likely have testified that Simms pounded the pizza driver with what Portillo says was a wood-handled, iron-head hammer — the same testimony Portillo gave during a preliminary hearing for Simms in September 2006.

Portillo was the people's main witness, an auto mechanic who the DA's Office had originally believed would help keep Simms behind bars for what Thompson described as a "heinous" crime.

But case number 194817 reveals just how quickly the roles can alternate in Superior Court and how the probation status of a defendant can make a mess of the legal system.


For several months Portillo had been restoring a 1973 Dodge Challenger for his pal Apollo Pacheco's girlfriend. The car was kept in the garage of Pacheco's home, on 47th Avenue in the Sunset.

The 28-year-old Portillo has an unassuming stature at two inches shy of six feet and boasts an "SF" tattoo on his right arm. On April 4, 2006, he was in Pacheco's garage working on the Challenger's floorboards, wheelhouse, and one of the quarter panels. Portillo says he had seen Simms around the neighborhood, and the day before, Simms stopped by to ask if Portillo was willing to sell his car, which was sitting in Pacheco's driveway. "He seemed like a fine individual," Portillo would later testify.

Simms is heavyset at six-foot-one and at the time had a short moustache and beard. He's no stranger to the Hall of Justice. In fact, the very law enforcement office that would later try to pin him for attempted murder had sent him to the Sunset in the first place.

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