A hammer, a pizza guy, and $60 - Page 3

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

He says Portillo introduced him to Langlais as a "friend from high school."

"He called me his window man," Simms told the Guardian. Simms had never taken a window out in his life, he admitted, nor had he known Portillo extensively, but he played along. "I said, 'Cool, it's a place to hang and drink and everything.' "

Portillo denied in court that he ever went by the name Capone. But his close friend, Guajardo, testified during a September 2006 preliminary hearing that in recent months Portillo had, in fact, been calling himself by that name. Simms was calling Portillo by that name to police interrogators five days after Maluf was beaten. So was the girl who remained at the home that night.

Simms never testified in court, because the primary charges against him were dropped. But if Simms had testified before a jury, he likely would have told them he and Portillo had dropped by the home of Portillo's grandfather to get some money for crack during their trip to the Kragen Auto Parts store. That's how Simms says he knew Portillo's grandfather had a breathing problem.

Guajardo also told the court that Portillo's grandfather relied on a breathing apparatus for oxygen. He noted that his fire station had made medical calls to the man's Portola home to assist him. But when defense attorney Dunlap asked Portillo about it, he denied to the court that his grandfather had any breathing problem.

Portillo also couldn't clearly recall for the court if he'd ever been convicted of a felony. But in 2000, records show, police did arrest Portillo for cocaine and marijuana possession, and at the time, he had a suspended driver's license. The day before Maluf was attacked, Portillo had also received a ticket for running a stop sign while taking Simms for a spin in his car along the Sunset's Great Highway. At that time, he had a 30-day restricted license, the result of a DUI case.

After returning from the trip to Kragen and drinking a couple more beers, Portillo took Simms and the girl to Simms's house for a change of clothes, and Portillo left alone, Simms told us.

Langlais was livid by then, having realized Portillo took his rum from the fridge. On Portillo's way back to the house, he and Langlais argued over the phone. When he arrived, Langlais was armed with a baseball bat, according to Portillo's court statements.

"I called Tony," Langlais testified last September, "and basically was just yelling at him on the phone for a little while.... He apologized profusely, broke down, and started crying, and I just didn't expect that."

"I go, 'Hey, look,' " Portillo told the court. "'I'm not here to fight with you over this rum.' ... And he was pretty mad, so I got a little emotional."

Much of April 4 seemed charged with anxiety. Portillo by then sounded drunk, according to the testimony of Pacheco, who also argued on the phone with Portillo about the stolen rum.

The rum fiasco was resolved delicately. Simms and the girl returned to the garage with more beers. They ordered pizza. Portillo promised to pitch in. Simms says that he stepped outside for fresh air, his head spinning from the drink. The pizza man arrived.

"As soon as I step outside, I hear, 'Uh! Uh!' He just cavin' this guy's head in," Simms says. "Kickin' him. Hittin' him with the hammer. Just blowin' him out of the water with it. This guy is cryin', sayin' some shit in some other language [Portuguese]. And [Portillo's] yellin', kickin' him, sayin', 'Shut up! Shut the fuck up now!' Ted comes down. He looks. 'What the fuck is goin' on?' [Portillo's], like, 'We gotta get up outta here. I'm goin' to Mexico.' "

Simms says it was the start of the month and he had just cashed a Supplemental Security Income check. He didn't need to rob the pizza man.

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