People v. Portillo CA4/3

Filed 11/28/23 P. v. Portillo CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G061757

v. (Super. Ct. No. 07SF0318)

ANTONIO MENDOZA PORTILLO, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Richard M. King, Judge. Affirmed. Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christine Y. Friedman and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION The addition of section 1170.95, now section 1172.6, to the Penal Code has 1 generated a multitude of appeals since its passage in 2019. Section 1172.6 provides a resentencing procedure for, amongst others, those offenders convicted of attempted murder under a natural and probable consequences theory. (Id., subd. (a).) Such offenders are entitled to resentencing if (1) petitioner makes a prima facie showing of his eligibility for relief under the statute, and (2) after evidentiary hearing, the trial court determines the prosecution has not proven beyond a reasonable doubt that the petitioner is guilty of attempted murder under the updated versions of sections 188 and 189. While this case presents a nebulous factual scenario, we conclude there was sufficient evidence for the trial court to conclude beyond a reasonable doubt that the appellant was guilty of attempted murder under a direct aiding and abetting theory. We thus affirm its denial of appellant’s section 1172.6 petition. FACTS This case first came to us on direct appeal after appellant Antonio Mendoza Portillo was convicted in May 2010 of the attempted murder and assault of Joshua Lowe in front of a San Clemente 7-Eleven store. The incident occurred in March 2007 and Portillo was tried with codefendant Harvey Ulloa. We affirmed Portillo’s conviction, holding there was substantial evidence to indicate Portillo was both present at the scene of, and involved in, the assault. (See People v. Portillo (Oct. 12, 2011, G043918) [nonpub. opn.].) The facts of the underlying crime were laid out in detail in our previous opinion. For purposes of the present appeal, we highlight only the facts relevant to the question of Portillo’s potential culpability in the assault which occurred. On or about March 18, 2007, Ysidro Hernandez was taking out the trash at the Los Patios restaurant in San Clemente when he was confronted by a group of four