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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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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,

v.

ANTONIO MENDOZA PORTILLO,

 Defendant and Appellant.

 G061757

 (Super. Ct. No. 07SF0318)

 O P I N I O N

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.
2

INTRODUCTION

The addition of section 1170.95, now section 1172.6, to the Penal Code has 

generated a multitude of appeals since its passage in 2019.1 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 

1

All further statutory references are to the Penal Code.
3

Hispanic men who exited a white Honda. The men asked him where he was from and 

made hand gestures at him. When he replied that he was from Mexico, they called him a 

“faggot” and knocked the cigarette out of his mouth. At that point, Hernandez’s boss, 

Juan Frutos, appeared and told the men he didn’t want any trouble. He asked them to 

leave. The males responded with “Shut the fuck up, asshole,” and one of them threw a 

scooter in Frutos’ direction. They then began running toward the 7-Eleven down the 

street. One of them threw a tiki torch at the restaurant as they left. After going inside 

briefly, Hernandez noticed that there was a commotion going on in front of the 7-Eleven. 

The commotion involved a pedestrian named Joshua Lowe. Lowe testified 

he was approached by a group of men as he was walking from his girlfriend’s house to 

the 7-Eleven around 9:45 p.m. to meet his brother. They asked him who he “represented” 

and if he “banged.” The men were making hand gestures which Lowe did not 

understand. He told them he was from San Clemente and he did not bang. He walked 

away, but a few minutes later was rushed by the group of men and assaulted. At first, he 

could not be sure how many people were assaulting him, but he knew he was being 

punched and kicked by several people at the same time. As the fight moved towards the 

front of the 7-Eleven, Lowe recalled being thrown to the ground and noticing a total of 

seven people standing over him. 

Lowe testified he was stabbed three times in the torso area. At least three 

different individuals in the group were wielding knives against him. He was trying to 

fight back and get the knives, and he could feel other people trying to restrain him and 

grab his arms. He managed to swing one of his arms and received a laceration on his arm

for his trouble. At this point, the fight began to wind down, and Lowe saw the men run to 

the alley where two cars were parked. Four of them jumped into a white Honda. Three 

jumped into a green car. When the green car stopped at a red light, a man jumped out, 

ran back over to Lowe, kicked him and told him he should have died. 
4

Only a few hours later, Hernandez was taken by police to a field lineup to 

try and identify some suspects who had been detained in a San Juan Capistrano garage. 

He recognized Portillo as one of the men who accosted and threatened to hit him in front 

of Los Patios restaurant, telling the officers, “Yeah, that’s him.” At the location of the 

field lineup, Hernandez was able to positively identify a white Honda as the one he had 

seen in front of the restaurant earlier that evening. A crime scene technician later 

discovered a crumpled beer can on the floor underneath the driver’s seat. The beer can 

contained Portillo’s DNA. Hernandez testified the same men who had harassed him, 

about three or four in number, were the ones he observed beating and assaulting Lowe. 

As we noted in our previous opinion in this case, the prosecution had two 

alternative theories of liability against appellant and Ulloa. The first was that they 

willfully participated as gang members in the confrontation with Hernandez and Frutos at 

the restaurant and the attack on Lowe which followed. Either they directly perpetrated 

the assault and attempted murder, or they directly aided and abetted it. Alternatively, the 

prosecution posited Portillo and Ulloa were guilty of attempted murder based on it being 

a natural and probable consequence of their group fight with Lowe. (People v. Portillo, 

supra, G043918.) The jury found both defendants guilty of attempted murder. Portillo 

was sentenced to a total of 33 years in state prison. 

On January 5, 2022, he filed a petition to vacate and for resentencing under 

then-section 1170.95. The prosecution conceded Portillo had made the requisite prima 

facie showing of eligibility for relief, and so the trial court set an order to show cause 

hearing for May 20, 2022. After hearing argument and taking briefing, the court issued a 

minute order denying the petition: “After considering the facts in the trial transcript and 

the argument by counsel, the Court concludes beyond a reasonable doubt the defendant 

harbored express malice while aiding and abetting the attempted killing of the victim, 

Joshua Lowe.” 
5

DISCUSSION

On appeal, Portillo contends there was insufficient evidence to prove 

beyond a reasonable doubt that he was guilty of aiding and abetting attempted murder. 

He also argues the trial court considered inadmissible testimony from the prosecution’s 

gang expert which was given at trial prior to certain updates to the gang statute. Before 

we get to these questions, we must first address his first argument: our standard of 

review.

I. Standard of Review for Section 1172.6 Petitions

Citing People v. Vivar (2021) 11 Cal.5th 510 (Vivar), Portillo argues we 

should apply our independent judgment to the trial court’s section 1172.6 ruling, rather 

than the substantial evidence standard which has been adopted by the majority of the 

courts who have considered the issue thus far. (See People v. Sifuentes (2022) 83 

Cal.App.5th 217, 232; People v. Mitchell (2022) 81 Cal.App.5th 575, 590-591; People v. 

Oliver (2023) 90 Cal.App.5th 466, 479 (Oliver); People v. Njoku (2023) 95 Cal.App.5th 

27, 41 (Njoku).) Like the appellants in these cases, Portillo urges the adoption of a less 

deferential standard “because the trial court’s inquiry was limited to a ‘cold record’” 

consisting solely of documentary evidence with no live testimony. (See Njoku, supra, 95 

Cal.App.5th at p. 41.)

In Vivar, the California Supreme Court held that an independent review 

standard applies to rulings on a motion to withdraw a plea due to adverse immigration 

consequences under section 1473.7. (Vivar, supra, 11 Cal.5th at pp. 524-525.) “A 

successful section 1473.7 motion requires a showing, by a preponderance of the 

evidence, of a prejudicial error that affected the defendant’s ability to meaningfully 

understand the actual or potential immigration consequences of a plea.” (Id. at p. 517.) 

“In choosing independent review in this context, the Supreme Court reasoned that 

analogous prejudice determinations in ineffective assistance of counsel claims were 

reviewed independently as predominantly legal questions; that the interests at stake 
6

supported independent review where the determination was likely to be made from a cold 

record; and that prior appellate decisions had reviewed such prejudice determinations 

independently, but the Legislature, aware of this standard, did not alter it when amending 

the statute. ([Vivar, supra, 11 Cal.5th] at pp. 524–527.) The Supreme Court went on to 

emphasize that its holding was ‘a product of multiple factors with special relevance’ in 

that context ([Vivar, supra, 11 Cal.5th] at p. 527) and reaffirmed the ‘familiar postulate’

that ‘“an appellate court should defer to the factual determinations made by the trial 

court,”’ regardless of ‘“whether the trial court’s ruling[s are based] on oral testimony or 

declarations”’ ([Vivar, supra, 11 Cal.5th] at p. 528, fn. 7).” (Oliver, supra, 90 

Cal.App.5th at pp. 479-480.)

We do not find Vivar’s reasoning salient here, and we join the other courts 

who have chosen a substantial evidence standard for reviewing section 1172.6 petitions. 

Unlike a section 1473.7 prejudice determination, the trial court’s inquiry during the 

second stage of a section 1172.6 petition is predominantly factual in nature. Indeed, the 

trial court sits as an “independent factfinder” in the proceeding. (See People v. Garrison

(2021) 73 Cal.App.5th 735, 745.) 

Perhaps more importantly, the Vivar court’s concerns about a cold record 

do not ring true in this case. The Vivar court lamented that “[y]ears later, the judge 

adjudicating the resulting motion may never have participated in any of the underlying 

proceedings and must rely entirely on a cold record.” (Vivar, supra, 11 Cal.5th at pp. 

526-527.) We have no such worries in this case. The judge hearing the section 1172.6 

petition was the same judge who sat through Portillo’s 11-day trial. As such, the judge in 

this case had the opportunity to observe the demeanor and testimony of witnesses. This

cold record here was warmer than most, and more like a recollection refresher for this 

experienced judge. We will not stray from the substantial evidence standard of review.
7

II. Substantial Evidence Supports Aiding and Abetting Liability

The trial court was presented with no evidence indicating that Portillo 

himself stabbed Lowe. The prosecution all but acknowledged this. Thus, Portillo’s fate 

rested on whether his participation in the assault was enough for him to be held liable for 

attempted murder.

The crime of attempted murder requires a specific intent to kill. (See 

People v. Guerra (1985) 40 Cal.3d 377, 386.) In order for Portillo to have been liable as 

an aider and abettor of attempted murder, he must have shared the specific intent of those

who actually stabbed Lowe. Intent is shared “when [the defendant] knows the full extent 

of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or 

purpose of facilitating the perpetrator’s commission of the crime.” (See People v. 

Beeman (1984) 35 Cal.3d 547, 560.)

The trial court here started with the premise that Portillo was present at the 

scene of the assault on Lowe and could see that members of the group had knives: “What 

I hear in this case is a violent group assault involving knives and the defendant. It’s 

unreasonable to conclude that the defendant did not know that the others were stabbing 

the victim.” 

We must stop there and examine whether there was substantial evidence for 

the trial court’s premise. There is. Ysidro Hernandez identified Portillo as one of the 

men who was acting aggressively toward him in front of Los Patios restaurant. And 

Hernandez also confirmed that the same men who accosted him were the ones he saw 

running down the street towards 7-Eleven and assaulting Lowe.2 These two pieces of 

2

For this reason, we reject Portillo’s contention that there was any reasonable inference he could 

have been driving the white Honda rather than participating in the assault on Lowe. If the same group of men 

walked from Los Patios to the 7-Eleven, and Portillo was among them, he could not have been driving the car. Our 

conclusion is further bolstered by the fact that Hernandez observed only three doors of the white Honda open when 

it pulled up to Los Patios. The driver’s side door did not open. Portillo could not have gotten into the driver’s seat 

of the car if someone was already sitting there. Indeed, the presence of Portillo’s DNA on the beer can under the 

driver’s seat is a good indication that he was in the back seat directly behind the driver.
8

evidence firmly establish two facts. First, Portillo was part of a group of men who 

accosted Hernandez at Los Patios and then proceeded to the 7-Eleven where they 

assaulted Lowe. Second, around the time of the crime, Portillo’s demeanor towards 

others was aggressive and belligerent.

There was no evidence to indicate Portillo removed himself from the 

assault at the 7-Eleven. Rather, Hernandez said all four men he had encountered earlier 

were fighting with Lowe. Lowe, for his part, testified that all seven of the men who were 

fighting him were taking and landing blows. The only logical conclusion from this 

evidence is Portillo was engaged in the fight and saw what was occurring in real time. 

Having arrived at the reasonable conclusion that Portillo was present and 

aware that stabbing was going on, the trial court then asked the following question: “. . .

[U]nder those circumstances, is the only reasonable interpretation that the defendant 

harbored the intent to kill as opposed to is this a reasonable interpretation? This is what I 

want you to inform the Court. Is there also a reasonable interpretation that it was not 

intent to kill but rather to inflict serious GBI?”

3

 

The evidence would lead us to answer that question in the negative. As the 

prosecutor said in response, Lowe’s injuries were mostly in his chest area. The trauma 

surgeon who treated Lowe after the stabbing testified that Lowe suffered a partially 

collapsed lung. It is not reasonable to think someone could participate in an assault in 

which multiple assailants were stabbing the victim in the chest – in the vicinity of vital 

organs – and not have anything other than an intent to kill the victim. 

Portillo’s main criticism of the People’s case is that he believes there was 

insufficient evidence of his actual role in the incident. We agree the evidence never 

crystallizes his specific conduct with respect to the assault on Lowe. But it does 

crystallize his presence at the scene, and his actions as part of the group of four around 

3 We presume the trial court was referring to “great bodily injury” pursuant to section 245, 

subdivision (a)(4).
9

the time it occurred. The men who approached Lowe were making hand gestures and 

asking him where he was from, just as they had done to Hernandez. They then jumped 

Lowe. Given the lack of any evidence that any of the assailants abstained from the fight, 

Portillo – identified by Hernandez as part of the group – could only have been doing one 

of three things: restraining Lowe, landing punches or kicks (or attempting to land them), 

or stabbing him (or trying to stab him). Portillo would concede specific intent is implicit 

in the third. But the specific intent to assist the actual stabbers is also implicit in the other 

two possible actions. By restraining the victim, the assailant intends to make it 

impossible for him to fight off the other attackers or escape. By kicking and punching, 

the assailant intends to not only hurt the victim, but also compromise his strength so as to 

make him an easier target for the knife. Any of these actions are sufficient to establish 

aiding and abetting liability for attempted murder. As such, it was not necessary for the 

prosecution to prove Portillo’s actual role. 

III. Admissibility of Gang Testimony

Finally, Portillo argues the trial court may have improperly relied on the 

testimony of the prosecution’s gang expert at trial, Detective Patrick Rich, even though 

the testimony pre-dated the passage of Assembly Bill 333 which changed some aspects of 

section 186.22, the gang enhancement statute. The record suggests otherwise. At the 

evidentiary hearing, the trial court said as follows: “The inference that needs to be drawn 

in this case for the People to make your burden is a reasonable inference that the 

defendant harbored the intent to kill. If there are two – if there’s another reasonable 

inference – I’m sure you have heard it a lot – all ties go to the defense. Keeping that in 

mind, from your summary here, which the Court appreciates, you did put significance to 

the testimony of the gang expert. The gang expert, as I reviewed it, did tell the jury – and 

he was qualified to do that – about gang culture in general. He told the jury about what a 

hit-up is. I don’t recall, nor do I think it would have been proper for Detective Rich, who 

was eminently qualified, to tell the jury – and by this process tell me – that the defendant 
10

harbored the intent to kill. I know that’s clear.” From this statement, it is evident that the 

trial court was not going to rely on Detective Rich’s testimony regarding gang culture in 

determining the central issue: whether Portillo had a specific intent to kill.

In any event, there was sufficient evidence separate and apart from 

Detective Rich’s testimony to conclude the attack was, if not gang motivated, at least a 

group assault. Hernandez, Frutos, and Lowe all heard and saw the men who approached 

them showing hand gestures and shouting things like “San Juan” and “Varrio Viejo.” 

The men asked both Hernandez and Lowe where they were from and responded angrily 

when answered. The evidence regarding gang culture was not crucial to understand that 

there was a group dynamic to this crime. 

DISPOSITION

The order of the trial court denying appellant’s section 1172.6 petition is 

affirmed. 

BEDSWORTH, J.

WE CONCUR:

O’LEARY, P. J.

SANCHEZ, J.