Portillo

A jury convicted Coby J. Portillo of first degree murder (Pen. Code, § 187, subd. (a)), forcible rape (§261, subd. (a)(2)), and forcible sodomy (§ 286, subd. (c)(2)). The jury also found true allegations that Portillo had used a deadly weapon, a hammer, in committing the murder (§ 12022, subd. (b)(1)), and that he had committed the murder during the commission or attempted commission of rape and sodomy, both special circumstances (§ 190.2, subd. (a)(17)). The trial court sentenced Portillo to life in prison without the possibility of parole, plus a consecutive one year for the deadly weapon use enhancement.

Portillo appeals, contending the trial court prejudicially erred in expanding the scope of felony-murder sex offenses to include a homicide that occurred after the sex offenses were complete, but before the defendant reached a place of temporary safety. Alternatively, Portillo asserts that if felony-murder rape and sodomy include the “escape rule,” then the felony-murder special circumstances regarding rape and sodomy must be set aside as constitutionally defective because they merely duplicate the crime of felony murder for those underlying offenses. In addition,…