Monday, April 7, 2003
C.A. Upholds Sailor’s Conviction in Murder of Prostitute
By a MetNews Staff Writer
A defendant who commits rape or sodomy, then kills the victim to conceal the crime, may be convicted of first degree murder under the felony-murder rule, the Fourth District Court of Appeal ruled Friday.
Div. One affirmed Coby J. Portillo’s conviction and life-without-parole sentence for the killing of Natividad “Nancy” Whitsell in August 2000. The panel rejected the defense contention that the felony-murder “escape rule” applies only to theft offenses.
A San Diego Superior Court jury convicted Portillo—a sailor assigned to the U.S.S. Ogden at the time of the killing—of murder, rape and sodomy in June 2001. Jurors rejected his contention that he and Whitsell had consensual, commercial sex and that she died during a struggle when he did not pay her.
Whitsell, 37, was beaten with a hammer and strangled in Portillo’s Rancho San Diego apartment, according to an autopsy report. A medical expert testified she had been forcibly sexually assaulted and sodomized.
Whitsell’s body was found stuffed into a “sea bag”—a Navy-issue green duffel bag—that was in plain view on the living room floor of the apartment Portillo shared with his wife, according to testimony.
Witnesses said Portillo ate lunch with his wife, who was working, then called the escort service. That afternoon, for the first time in over 100 calls she handled for the service, according to testimony, Whitsell failed to call in.
Prosecutors, rejecting Portillo’s consensual sex claim, said he probably attacked her as soon as he arrived. Several Navy shipmates said he would frequently make comments about picking up a prostitute, then raping and killing her, which he said was a joke designed to deal with the tension aboard the ship.
Portillo testified that after he and Whitsell had consensual sex, he could not pay her the $550 he owed. He said she then attacked him, and reached into her purse for what turned out to be a stun gun.
He said he did not intend to kill her, but struck her with a hammer in self-defense because he thought the stun gun was a knife. The defense called several sailors and the defendant’s mother to testify to his non-violent character.
Portillo said he panicked and stuffed the body into the sea bag rather than call 911.
Justice Richard Huffman, writing for the Court of Appeal, said that while the “escape rule” has most often been applied to theft offenses, there is no rationale for not applying it equally to sex crimes. The trial judge, he said, correctly instructed the jury to apply the rule if it found that the murder was committed after the victim was assaulted and before the defendant reached a place of safety.
“Although it may appear illogical to attach such flight or escape language to a crime that is itself considered complete upon penetration, we do not believe the use of such escape principles are unreasonable or unnaturally extend the felony-murder rule beyond its established application of the ‘one continuous transaction’ analysis used to define such theory based on underlying sexual offenses,” the justice wrote.
The case is People v. Portillo, D038761.
Copyright 2003, Metropolitan News Company