A hammer, a pizza guy, and $60 - Page 2

A hammer, a pizza guy, and $60: how California's probation system can skew criminal justice
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He was supposed to be living quietly with his mother by the beach in a witness protection program, poised to testify against a man who'd allegedly shot him five times.

When the Guardian reached Portillo in person, he declined to speak on the record, but he did tell police inspectors that Simms lied at the time of their meeting by telling him he was 22. Simms, who is now 27, was also on probation for a handful of robbery and battery cases stemming from 2001.

The sale of Portillo's junker never happened, but Simms returned the next day, and Portillo asked for help removing the Challenger's rear window. "He was there basically for company," Portillo told the court. Throughout that second day the two talked over cans of Olde English, at which point the story began to turn.

According to court records, at some time during the afternoon, Portillo slunk into the house and stole from the fridge a rum drink prepared by Pacheco's roommate, Ted Langlais. Langlais discovered the theft later, and the two would clash over it.

After sharing the rum, Portillo realized he needed to run to the Kragen Auto Parts store on Taraval and buy a new piece for his welder. On his way out, he asked Langlais for money, who testified that he said no.

Two young women who were visiting stayed behind at Pacheco's house, where Langlais was painting their nails. (One of the two girls is a witness in the case, but we are concealing her name because she's a minor. Portillo testified he believed she was Simms's girlfriend.)

Simms, Portillo, and the girl congregated back at the garage around 7 or 8 p.m. Simms and the girl wanted to order pizza. Portillo promised to pitch in five dollars. After a period during which Portillo stated he was gathering his tools and cleaning up, the pizza arrived.

"I was washing my hands to get ready to eat," Portillo later testified. "I heard a knock on the garage. The garage was slightly open. I looked up. I saw [Simms]. I heard a thump. I looked over. I saw him striking the pizza delivery person with the blunt object."

The pizza guy, Marco Maluf, was screaming, and Simms was telling him to shut up, Portillo told inspectors the night it happened. Maluf had $60 cash on him, which he would later testify was taken.

Simms and his friend left on foot down 47th Avenue. Portillo was in shock and didn't know what to do. He reported that he collected his tools and threw them into his car.

"Ted came down, and he said, 'Dude, why is this guy bleeding all over my floor?' " Portillo told the inspectors. "And I go, 'I don't know, Ted. Ask, ask them,' " pointing toward the couple walking away. He didn't call 911 but drove back toward his home in the Portola District. He called a childhood friend, a firefighter at Station 42 on San Bruno Avenue named Michael Guajardo, to ask for help. Guajardo encouraged him to go to the Taraval police station, where inspectors recorded Portillo's version of the story.

He told the inspectors Simms called him afterward to tell him about the $60. "Dude, don't call me again, dude," Portillo said he told Simms. "We're done. Don't ever — we're done. You fucked up."

Five days later Simms was arrested for the attack. He told police interrogators that he wasn't in the garage when the pizza arrived. Portillo, he said then, had given him and the remaining girl a ride to his house up the street. But Simms eventually admitted to police he'd returned to the garage with the girl. The girl ultimately admitted the same thing during her interview with the inspectors.

This story is far from complete, however. While Simms waited in jail, defense attorney Robert Dunlap pursued a different narrative for what happened on April 4.

FOR THE DEFENSE

Simms says he never knew Portillo as much by his birth name as he did by a nickname Portillo had given himself: Capone.

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