A hammer, a pizza guy, and $60

Pub date April 10, 2007
WriterG.W. Schulz

› gwschulz@sfbg.com

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. 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.


Simms says he never knew Portillo as much by his birth name as he did by a nickname Portillo had given himself: Capone. 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. He says police arrested him because of his background and because he lied to them about being in the garage — "I just panicked. I know how it is. I got priors."

He didn’t bother with a coat of sugar.

"The guy was small. I’m a big boy. I don’t need no fuckin’ hammer to get him. I’m just sayin’. I’m 300 pounds. If I would have used that hammer on that man, he would have been dead."

The pizza driver survived after being transferred to San Francisco General Hospital but suffered a skull fracture and lacerations that took 30 staples in his head to repair. He still gets headaches and can’t remember anything about that night.


Nearly two decades ago the California Supreme Court declared that a lower standard of proof was sufficient to put suspects behind bars for vioutf8g the terms of their probation.

A judge convicted Juan Carlos Rodriguez of vioutf8g his probation in 1988 after a convenience store employee in King City testified that Rodriguez had shoplifted several pairs of utility gloves. The judge relied on a diluted standard of proof known as "a preponderance of the evidence" to revoke his probation rather than the "beyond a reasonable doubt" required from juries at full-blown criminal trials.

Rodriguez appealed and won. But prosecutors took the case to the state’s highest court, and in 1990 the justices decided that state case law already permitted a lower standard of proof known as "clear and convincing evidence." In effect, the court ruled, the state could send a person on probation back to jail on as little proof as it wanted. Besides, the justices argued, a higher standard amounted to retrying a criminal who’d already been granted the court’s grace and would unnecessarily burden the system.

Coincidentally, former San Francisco DA Arlo Smith filed a friend of the court brief in People v. Rodriguez supporting the state’s position.

But at least one concurring judge worried ominously that with a lower threshold for alleged probation violations, "an unfortunate incentive might arise to use the revocation hearing as a substitute for a criminal prosecution."

Former supervisor Matt Gonzalez, who worked as a public defender prior to his time at City Hall, says that’s exactly what’s happened. He recalls a case that surfaced years after Rodriguez involving a woman named Mary Elizabeth Alcoser. Although she had a long history of trouble ranging from severe narcotics abuse to prostitution dating back to the 1970s, according to criminal records, after police charged her with assault in a 1997 case, she was fully acquitted by a jury, citing self-defense.

"Even though she was acquitted," Gonzalez said, "the judge sent her to prison on a probation violation, because he determined that by a lower standard of proof, she was guilty…. The real question is, who benefits when you don’t have the higher standard of proof employed?"

In another case, Gonzalez represented a Hispanic man facing robbery charges following an incident at a Mission bar. A witness described the assailant during testimony as African American. But the judge sent Gonzalez’s client to prison on a probation violation anyway, claiming that a piece of jewelry snatched during the encounter and later found on the suspect implicated him, even though he’d never even been charged with receiving stolen property.

Gonzalez calls it the "innuendo of a case unproven."

Speaking in general terms, longtime local defense attorney Don Bergerson said it’s far from uncommon for the DA’s Office to use an alleged probation violation as leverage for getting tough jail sentences when a case otherwise looks lifeless.

"To hide behind the fact that the standard of proof required to revoke probation is ostensibly less seems to me to be morally and practically dishonest," Bergerson said, "even if one can justify it semantically."

When we reached deputy district attorney Thompson, he refused to talk about the Simms case. But spokesperson Debbie Mesloh said outright that the DA’s Office was seeking to take advantage of the lower standard of proof and added that there was at least enough evidence to hold Simms for trial.

"The charges in this case were dismissed because we await crucial DNA evidence that was not available at the time that the defendant was scheduled to go to trial," Mesloh wrote in a January e-mail. "We currently await the findings of this evidence."

Her office confirmed in a follow-up e-mail, however, that the DNA analysis has so far gone nowhere. To this day, no reasonably good physical evidence from the case has been identified.


Somebody almost killed Maluf, and the two most likely suspects are Portillo and Simms. Neither is a Boy Scout, and both have an obvious incentive to finger the other.

That’s exactly why courts require strong evidence — enough to convince a jury beyond a reasonable doubt — before sending someone to prison. Using shortcuts such as probation revocations leads to slipshod prosecutions and wrongful convictions.

Strong evidence standards are particularly important for a case as muddled as this one.

Portillo told the court he doesn’t do drugs, let alone smoke crack.

While he’s "got no love for Tony" over the stolen rum, Langlais told us he’s certain he heard Simms yelling at Maluf, and he saw Simms standing over him when he entered the garage from upstairs. He’s "enraged" that San Francisco’s "revolving-door" criminal justice system put Simms back on the street.

But defense attorney Dunlap said Portillo’s testimony, which the lawyer described as "inconsistent," wasn’t nearly enough to prove the assault, robbery, and attempted murder charges.

"When Jim Thompson got the case assigned to him upstairs," Dunlap said, "I think he took an honest look at it and realized he was going to have a hard time convincing a jury beyond a reasonable doubt that [Simms] was guilty of the crime. Because [Simms] was on probation, [Thompson] opted to dismiss the trial and proceed on a motion to revoke instead…. It was more or less a practical way to try and salvage something from a sinking ship."

After reluctantly accepting the extended probation deal for Simms at the hearing Dec. 13, 2006, Thompson still complained that Simms deserved more jail time.

"Your honor, this disposition is over the people’s strenuous objection," he indignantly informed Judge Charlotte Woolard. "The defendant has a lengthy criminal history…. And I do believe there is sufficient evidence that the defendant was the culprit in this matter."

But Woolard had a different opinion, based on a reading of Portillo’s testimony from the preliminary hearing, a telling example of how difficult it will always be to turn a real-world criminal prosecution into a fictionalized television drama and why the resolution of this case might actually be the worst possible outcome.

"The people’s main witness," she said, "in this court’s opinion is quite likely the person that committed this offense." *