People v. Mata CA2/7

Filed 12/21/20 P. v. Mata CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B294526

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA101342)
v.

JOHNNY MATA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Robert M. Martinez, Judge. Affirmed.
Mary Jo Strnad, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill and Steven E. Mercer,
Deputy Attorneys General, for Plaintiff and Respondent.
 INTRODUCTION

In a prior appeal Johnny Mata, whom a jury convicted of
murder and possession of a firearm by a felon, contended his trial
counsel provided ineffective assistance. (People v. Mata (Jan. 2,
2019, B277734) [nonpub. opn.] (Mata II).)1 We affirmed the
convictions, but directed the trial court to exercise its discretion
whether to strike a firearm enhancement under Penal Code
section 12022.53, subdivision (d),2 and an enhancement for a
prior serious felony conviction under section 667, subdivision (a).
In this appeal Mata contends the trial court erred in
denying his motion under People v. Marsden (1970) 2 Cal.3d 118
(Marsden) to replace his appointed counsel. Mata also contends
the trial court “lacked jurisdiction” to double his sentence under
the three strikes law and to impose the five-year enhancement
under section 667, subdivision (a), for his prior serious felony
conviction. We affirm.

1 In People v. Mata (Mar. 26, 2018, B270264 [nonpub. opn.])
(Mata I), Mata appealed after a jury convicted him, in an
unrelated case, of attempted murder and possession of firearm by
a felon. We conditionally reversed the convictions and remanded
for a new hearing on Mata’s motion under Batson v. Kentucky
(1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69] and People v.
Wheeler (1978) 22 Cal.3d 258. Mata has appealed from the
judgment following those proceedings on remand, which is case
number B301044 (Mata IV). This appeal is Mata III.

2 Undesignated statutory references are to the Penal Code.

2
 FACTUAL AND PROCEDURAL BACKGROUND

A. Mata Kills a Rival Gang Member, and the People
File Charges Against Him
On December 23, 2010 Mata, a member of the El Monte
Flores criminal street gang, shot and killed David Deanda, a
member of the rival East Side Bolen gang. In June 2012, while
Mata was awaiting trial in an unrelated case for the attempted
murder of another individual, Timmy Saldana, the detectives
working on the Deanda shooting obtained evidence suggesting
Mata killed Deanda. (Mata II, supra, B277734.)
The People charged Mata with the murder of Deanda and
alleged that he committed the murder for the benefit of, at the
direction of, or in association with a criminal street gang with the
specific intent to promote, further, or assist in criminal conduct
by gang members, within the meaning of section 186.22,
subdivision (b), and that Mata personally and intentionally
discharged a firearm causing great bodily injury or death, within
the meaning of section 12022.53, subdivision (d). The People also
charged Mata with possession of a firearm by a felon (former
§ 12021, subd. (a)(1), now § 29800, subd. (a)(1)). The People also
alleged that Mata had a prior serious or violent felony conviction
within the meaning of the three strikes law (§§ 667, subds. (b)-(j),
1170.12) and that he had a prior serious felony conviction within
the meaning of section 667, subdivision (a)(1). The trial court
consolidated the Deanda murder case with the Saldana
attempted murder case. (Mata II, supra, B277734.)

3
 B. The Jury Convicts Mata of Murder, and the Court
Sentences Him
Following a trial in 2015 the jury found Mata guilty of the
attempted murder of Saldana,3 but could not agree on a verdict
for the murder of Deanda. The trial court declared a mistrial on
the murder charge and set the case for a retrial.
Following a retrial on the murder charge, the jury found
Mata guilty of the first degree murder of Deanda and of
possessing a firearm as a felon. The jury also found true the
gang and firearm allegations. In a bifurcated proceeding, Mata
admitted that in 1997 he was convicted of attempted murder.
The trial court found the conviction was for a serious or violent
felony within the meaning of the three strikes law (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)) and a serious felony within
the meaning of section 667, subdivision (a). (Mata II, supra,
B277734.)
The trial court sentenced Mata to a prison term of 86 years
to life, consisting of 25 years to life for the first degree murder
conviction, doubled under the three strikes law, plus 25 years to
life for the firearm enhancement under section 12022.53,
subdivision (d), five years for the enhancement under section 667,
subdivision (a), and six years for the conviction for possession of a
firearm by a felon. (Mata II, supra, B277734.)

3 The jury also found Mata guilty of possession of a firearm
by a felon (§ 29800, subd. (a)(1)). As discussed, Mata appealed
the convictions in connection with the attempted murder of
Saldana in Mata I, supra, B270264.

4
 C. This Court Affirms the Convictions and Directs the
Trial Court To Exercise Its Discretion Whether To
Strike Two Enhancements
Mata appealed, arguing his trial counsel, Antonio Bestard,
provided ineffective assistance. We affirmed Mata’s convictions,
but vacated Mata’s sentence and directed the trial court to
exercise its discretion whether to strike the firearm and serious
felony enhancements under recent amendments to sections 667,
1385, and 12022.53 that give the court discretion to strike those
enhancements in the interest of justice. (Mata II, supra,
B277734.)

D. The Trial Court Resentences Mata
At the resentencing hearing, Bestard informed the court
Mata wanted to file a motion under Marsden, supra, 2 Cal.3d 118
to replace Bestard as his appointed counsel. The court held a
hearing on Mata’s Marsden motion and denied it. The court,
after declining to strike either enhancement, imposed the same
sentence. Mata timely appealed.

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion in
Denying Mata’s Marsden Motion
Mata argues the trial court abused its discretion in denying
his motion to replace Bestard “without permitting him to explain
his reasons” for “his dissatisfaction with his appointed private
counsel.” Mata also argues the court erred in failing “to exercise
its own discretion and instead deferred to this Court’s ruling . . .
affirming Mata’s conviction against an ineffective assistance of
counsel claim.” The trial court, however, conducted an adequate

5
inquiry and did not abuse its discretion in denying the motion. In
addition, any error was harmless.

1. Relevant Proceedings
The trial court began the hearing on Mata’s Marsden
motion by asking Mata, “What can I do for you?” Mata said he
wanted new counsel because “it won’t make sense to have . . .
Bestard defend [him] again if [he was] only appealing what
happened in [his] trial.” The following exchange occurred:
“The Court: What’s the difficulty with Mr. Bestard?
“[Mata]: Well, like I said, the way he defended me, I don’t
think he did a good job.
“The Court: And then that’s based on matters that you
raised on appeal, is that correct?
“[Mata]: Correct.
“The Court: And the Court of Appeal disagreed with you as
far as his competency. What else is the difficulty?
“[Mata]: Well, that’s just it. I just don’t feel that he should
have represented me because it’s not over. My appeal is not over.
You see, there is another level to it.
“The Court: I understand that. You see, right now, we’re
here on a limited area . . . and that’s for the court to exercise
discretion as far as your priors are concerned, as far as the use
allegation is concerned. That’s it.
“[Mata]: Right.
“The Court: That’s all we’re dealing with. I am not dealing
with other matters on appeal or whatever, you know. And you
raised issues about whether he did a good job or whatever. And
the Court of Appeal said, you know, that he acted properly. So,
what are the differences?”
Mata asked the court to continue the resentencing hearing
until after his “appeal” and “habeas corpus.” The court denied

6
the request for a continuance, and Mata asked again for “another
counsel.” The court told Mata he had not given “any reason” to
appoint new counsel. Mata stated, “I just gave—I just told you
[the] reason.” The court again explained to Mata that this court
held “there was no basis to find [Bestard] incompetent.” The
court asked Mata, “What else is there that’s the conflict between
you and him?”
Mata said Bestard had refused to sign an affidavit “saying
that he messed up [the] trial.” The court asked Mata, “How did
he mess it up?” Mata said “everybody knew” he “was going to
lose.” The court again asked Mata, “And you raised these issues
on appeal?” Mata stated, “I understand,” and again complained
Bestard would not honor his agreement to sign a declaration
stating that he “messed up [the] trial and that things went
wrong.”
Bestard explained that he initially agreed to sign a
declaration about the “procedural aspects or anything that would
help [Mata],” but that he refused to sign it after he received a
“protracted letter” from Mata’s appellate counsel asking him to
attest to “incorrect allegations” and admit to “things that [he]
didn’t do,” including that he “never read the police report,” “never
interviewed witnesses,” and “didn’t investigate the case at all.”
Bestard said he told Mata’s appellate counsel he was “very
uncomfortable signing things that were not true or were not
perceived to be true.” Bestard summarized the obstacles he faced
in presenting the evidence in the trial. Referring to the actions
he took at trial that this court addressed in Mata II, Bestard
stated “they were all strategic moves by me why I didn’t call
certain witnesses.” After Bestard responded to Mata’s
allegations he was incompetent and had a conflict with Mata, the
court asked Mata, “Anything more?” Mata replied, “That’s it.”
The court denied the motion.

7
 2. Applicable Law and Standard of Review
“‘“‘“‘When a defendant seeks to discharge his appointed
counsel and substitute another attorney, and asserts inadequate
representation, the trial court must permit the defendant to
explain the basis of his contention and to relate specific instances
of the attorney’s inadequate performance.’”’”’” (People v. Johnson
(2018) 6 Cal.5th 541, 572; accord, People v. Winn (2020)
44 Cal.App.5th 859, 870.) “‘“A defendant is entitled to relief if the
record clearly shows that the appointed counsel is not providing
adequate representation or that defendant and counsel have
become embroiled in such an irreconcilable conflict that
ineffective representation is likely to result.”’ [Citation.] ‘A trial
court should grant a defendant’s Marsden motion only when the
defendant has made “a substantial showing that failure to order
substitution is likely to result in constitutionally inadequate
representation.”’” (People v. Streeter (2012) 54 Cal.4th 205, 230;
accord, People v. Loya (2016) 1 Cal.App.5th 932, 945.)
‘“It is the very nature of a Marsden motion . . . that the trial
court must determine whether counsel has been providing
competent representation. Whenever the motion is made, the
inquiry is forward-looking in the sense that counsel would be
substituted in order to provide effective assistance in the future.
But the decision must always be based on what has happened in
the past.’” (People v. Sanchez (2011) 53 Cal.4th 80, 88; see People
v. Winn, supra, 44 Cal.App.5th at p. 871 [“if trial counsel’s
performance was deficient at an earlier stage of the trial, [the
defendant] had the right to new counsel for the purposes of
sentencing or moving for a new trial”]; People v. Lucero (2017)
18 Cal.App.5th 532, 537 [“a criminal defendant can move to
discharge his or her current appointed counsel and to appoint
new counsel based on ineffective assistance”]; People v. Dennis
(1986) 177 Cal.App.3d 863, 870 [‘“Ineffective assistance of counsel

8
is the underlying plank which supports the Marsden rule.’”]; see
also People v. Lee (2002) 95 Cal.App.4th 772, 779 [“In seeking
discharge of a court appointed attorney the defendant must show
more than the fact the attorney made a mistake, he must show
lack of competence.”].)
“‘We review the denial of a Marsden motion for abuse of
discretion.’ [Citation.] ‘Denial is not an abuse of discretion
“unless the defendant has shown that a failure to replace counsel
would substantially impair the defendant’s right to assistance of
counsel.”’” (People v. Streeter, supra, 54 Cal.4th at p. 230; accord,
People v. Loya, supra, 1 Cal.App.5th at p. 944.)

3. The Trial Court Conducted an Adequate
Inquiry
The trial court gave Mata ample opportunity to explain his
reasons for seeking to replace his appointed counsel. After Mata
expressed his dissatisfaction with Bestard, the trial court asked
several follow-up questions and gave Mata several chances to
relate any matters beyond those Mata had already raised, and
this court decided, in his appeal (i.e., Mata II). The trial court
asked Mata whether his opinion that Bestard did not do a good
job in the trial was based on matters he raised on appeal, and
Mata admitted it was. When the court asked Mata what other
difficulties he had with Bestard, Mata could only say he did not
“feel” Bestard should represent him because his appeal had not
concluded. After describing this court’s conclusions in Mata II
about Bestard’s competence, the court gave Mata a third
opportunity to describe any “differences” he had with Bestard.
The court also allowed Mata to explain fully why he believed he
had a conflict with Bestard. Finally, before ruling on the motion,
the court asked Mata if there was “anything more” he wanted to
present. The trial court allowed Mata to present all the

9
information the court needed to make a ruling. (See People v.
Gutierrez (2009) 45 Cal.4th 789, 803 [“‘“a Marsden hearing is not
a full-blown adversarial proceeding, but an informal hearing in
which the court ascertains the nature of the defendant’s
allegations regarding the defects in counsel’s representation and
decides whether the allegations have sufficient substance to
warrant counsel’s replacement”’”]; People v. Valdez (2004)
32 Cal.4th 73, 96 [same].)
Nor did the trial court err in limiting its consideration of
Mata’s complaints about Bestard’s representation to instances
Mata did not raise in Mata II. This court decided in Mata II that
none of the alleged instances of Bestard’s incompetence Mata
raised in that appeal amounted to ineffective assistance of
counsel. For example, this court concluded Bestard had tactical
reasons for not impeaching a particular witness the same way
Mata’s trial counsel in the first trial had impeached the witness,
for not asking an eyewitness to identify Mata in court, and for not
calling certain witnesses. (Mata II, supra, B277734.) These
tactical decisions also supported the trial court’s decision at
resentencing not to replace Mata’s appointed counsel. (See
People v. Frederickson (2020) 8 Cal.5th 963, 1001 [“tactical
disagreements . . . do not by themselves constitute an
irreconcilable conflict”]; People v. Streeter, supra, 54 Cal.4th at
pp. 230-231 [“tactical disagreements between a defendant and his
attorney or a defendant’s frustration with counsel are not
sufficient cause for substitution of counsel”].) Allowing Mata to
reargue all the examples of Bestard’s alleged incompetence that
this court considered and rejected in Mata II would not have
yielded any new information or led to a different conclusion about
Bestard’s competence.
Mata argues that a “Marsden motion and ineffective
assistance of counsel serve different purposes” and, citing People

10
v. Dennis, supra, 177 Cal.App.3d at page 871, that ‘“a ruling in
one does not ipso facto support a ruling in the other.’” Mata
reads Dennis too expansively. The court in Dennis held the trial
court erred in granting a motion for new trial based on ineffective
assistance of counsel “simply on the basis of the Marsden motion”
granted earlier in the proceedings. (Dennis, at p. 872.) The court
explained that the “issue in a Marsden hearing is whether the
continued representation by an appointed counsel would
substantially impair or deny the right to effective counsel,”
whereas “when a defendant attacks a verdict on the ground of
inadequate assistance of counsel the focus is not just upon
whether the representation actually received was competent,” but
also “on whether counsel’s challenged acts or omissions were
prejudicial to the defendant.” (Id. at pp. 870-871.) Thus, the
court in Dennis concluded the two motions “should not be
combined in a manner which insulates a defendant from an
adversarial proceeding and unilaterally allows him to circumvent
his burden when attacking a conviction.” (Id. at p. 869.) Here,
the trial court did not avoid making any findings necessary to
determine whether Bestard could continue to effectively
represent Mata. The trial court reasonably concluded that none
of the instances of alleged attorney incompetence that Mata
raised and that this court rejected in Mata II would have
supported replacing Bestard. (Cf. People v. Lucero, supra,
18 Cal.App.5th at p. 539 [where the appellate court held in the
defendant’s prior appeal that appointed counsel “rendered
ineffective assistance,” the ruling “was, in substance, a finding
that defendant’s ‘appointed attorney [was] not providing
adequate representation’; in the Marsden context, this finding
would require [counsel] to be discharged and replaced”].) The
trial court did not err in ruling Mata was only entitled to present
evidence of other instances of incompetence to show that Bestard

11
was “‘“not providing adequate representation”’” or that he and
Bestard “‘“have become embroiled in such an irreconcilable
conflict that ineffective representation [was] likely to result”’”
(People v. Streeter, supra, 54 Cal.4th at p. 230).
The two cases Mata cites to argue he was entitled to
replace his appointed counsel for the resentencing hearing based
on conduct we concluded in Mata II was not ineffective
assistance, People v. Solorzano (2005) 126 Cal.App.4th 1063 and
People v. Mack (1995) 38 Cal.App.4th 1484, do not support his
argument. In Solorzano, which involved a Marsden motion the
defendant made during competency proceedings under section
1368, the court held that the trial court should have held a
hearing on the defendant’s Marsden motion before adjudicating
the defendant’s competency, not after the court reinstated the
criminal proceedings after finding the defendant competent.
(Solorzano, at pp. 1070-1071.) Unlike the trial court in
Solorzano, the trial court here held a Marsden hearing as soon as
Mata asked for it. In Mack the defendant told the trial court,
prior to hearing a motion for new trial, he wanted to be heard
regarding a conflict he had with his attorney, but the court
refused to hear from the defendant. (Mack, at pp. 1486-1487.)
The court in Mack held the trial court erred in failing to give the
defendant an opportunity to “state the reasons for his expressed
dissatisfaction with trial counsel” and in failing to “inquire into
his request for substitution of counsel.” (Id. at p. 1487.) The trial
court here gave Mata many opportunities to state his reasons for
requesting substitute counsel and inquired at length into the
substance of Mata’s dissatisfaction with Bestard.

12
 4. The Trial Court Did Not Abuse Its Discretion in
Denying the Motion
Mata asserts the trial court abused its discretion when,
instead of making “its own finding,” it “deferred” to our ruling in
Mata II that Bestard did not provide ineffective assistance.
Contrary to Mata’s assertion, the trial court did make a finding,
albeit implied, that Mata failed to make “‘“a substantial showing
that failure to order substitution is likely to result in
constitutionally inadequate representation.”’” (People v. Streeter,
supra, 54 Cal.4th at p. 230.) The court reasonably considered our
conclusion that Bestard did not provide ineffective assistance for
the reasons stated in Mata II and, after repeated attempts to
elicit from Mata any additional grounds for claiming Bestard was
ineffective, ruled that Mata’s objections did not have “‘“sufficient
substance to warrant counsel’s replacement”’” (People v.
Gutierrez, supra, 45 Cal.4th at p. 803).
The court also thoroughly probed the one new conflict Mata
identified he had with Bestard: Bestard’s refusal to sign an
affidavit drafted by appellate counsel for Mata that contained
false statements. To the extent the trial court made a credibility
determination, the court “‘was “entitled to accept counsel’s
explanation.”’” (People v. Rices (2017) 4 Cal.5th 49, 69.)
Moreover, Bestard’s decision not to perjure himself was not
relevant to whether he was able to represent Mata effectively
during the resentencing proceedings after Mata II. While Mata
may have disagreed with Bestard’s decision not to sign a false
declaration, Mata did not show that such a conflict was
“‘irreconcilable’” or that ‘“ineffective representation [was] likely to
result.”’ (People v. Sanchez, supra, 53 Cal.4th at p. 89.) The trial
court did not abuse its discretion in ruling that Bestard’s
unwillingness to compromise his integrity and lie under oath to
enable Mata to challenge his convictions was not a ground for

13
replacing Bestard. (See People v. Taylor (2010) 48 Cal.4th 574,
600 [“‘a defendant may not force the substitution of counsel by his
own conduct that manufactures a conflict’”].)

5. Any Error in Limiting the Marsden Hearing or
in Denying the Motion Was Harmless
“The standard for prejudice regarding a denied Marsden
motion is under Chapman v. California (1967) 386 U.S. 18
[87 S.Ct. 824, 17 L.Ed.2d 705].” (People v. Loya, supra,
1 Cal.App.5th at p. 945.) The same standard for prejudice applies
to any errors the court committed in conducting its inquiry. (See
People v. Winn, supra, 44 Cal.App.5th at p. 871 [trial court’s error
in failing to inquire further whether counsel provided
constitutionally adequate representation “‘is reversible unless the
record shows beyond a reasonable doubt that the error did not
prejudice defendant’”].)
Here, even if the trial court erred in limiting the scope of
the inquiry at the hearing on Mata’s Marsden motion, the error
was harmless beyond a reasonable doubt. As discussed, because
this court already resolved the question of Bestard’s competence
in conducting the trial, none of those instances could have
justified replacing him. (See Mack, supra, 38 Cal.App.4th at
pp. 1487-1488 [trial court’s failure to hold a Marsden hearing
“was harmless beyond a reasonable doubt” because “[t]he issue of
trial counsel’s alleged incompetence has been thoroughly
addressed by appellate counsel both in the direct appeal and in a
collateral writ”]; see also id. at p. 1488 [“justice is not expedited
by indulging in appellate and collateral writ review, finding no
merit to the issues raised, and then remanding to the trial court
for review of the apparently identical matters”].) In addition, the
record shows beyond a reasonable doubt Mata would not have
achieved a more favorable result had the trial court appointed

14
new counsel to represent him in the limited proceedings on
remand. (See People v. Henning (2009) 178 Cal.App.4th 388,
404-405 [“the trial court’s failure to substitute counsel was
harmless beyond a reasonable doubt” because, even though
appointed counsel “wrongly refused to allow defendant to enter a
[not guilty by reason of insanity] plea,” “no credible evidence
could be mustered for an insanity defense”]; People v. Washington
(1994) 27 Cal.App.4th 940, 944 [concluding, after reviewing
counsel’s actions, that “no grounds for claiming ineffective
assistance of counsel exist” and that, even though the trial court
failed to hold a hearing on the Marsden motion, the appointment
of a different attorney could not have had “any effect on the
sentence imposed”].)
Any doubt regarding whether a different attorney could
have secured a better outcome for Mata was eliminated by, as we
will discuss, the trial court’s comments at the resentencing
hearing that it could not conceive of “any information” that would
persuade it to strike the firearm enhancement or the prior felony
conviction enhancement, given the circumstances of how Mata
murdered Deanda. (See People v. Winn, supra, 44 Cal.App.5th at
p. 871 [trial court’s error in denying the defendant’s Marsden
motion without conducting a further inquiry was “harmless
beyond a reasonable doubt” because the evidence of the
defendant’s guilt was “overwhelming”].)

B. The Trial Court Did Not Err in Resentencing Mata
Mata contends the trial court “lacked the authority to
sentence him as a second striker” and to reimpose “the same
serious felony enhancement” under section 667, subdivision (a),
because Proposition 57 and Senate Bill No. 1391 precluded the
trial court from using his 1997 attempted murder conviction to

15
sentence him. Neither Proposition 57 nor Senate Bill No. 1391,
however, applies to this case.

1. Relevant Proceedings
After the trial court denied Mata’s Marsden motion,
Bestard asked the court for a continuance to obtain information
for a hearing under People v. Franklin (2016) 63 Cal.4th 261 and
a petition under section “1170.90.”4 Bestard argued that, if the
court denied the motion for continuance and proceeded to
resentence Mata, the court would “not have discretion” to use
Mata’s 1997 felony conviction for purposes of the three strikes
law because, “under the current state of the law, . . . if the
individual was a minor at the time of the prior strikes, it should
be stricken.” The People objected to a continuance and argued
this court had remanded the case “for a very limited purpose”: to
exercise discretion whether to strike two specific enhancements.
Bestard argued that he needed time to obtain a new
probation report and to get Mata’s “C-file”5 and a “social study” to
support his argument the court should “exercise its discretion in

4 Bestard may have been referring to section 1170, because
he raised the issue of a hearing under People v. Franklin, supra,
63 Cal.4th 261 in the same sentence. Section 1170,
subdivision (d)(2), provides a procedure for a defendant “who was
under 18 years of age at the time of the commission of the offense
for which the defendant was sentenced to imprisonment for life
without the possibility of parole” to petition for recall and
resentencing after he or she has been incarcerated for 15 years.
(See People v. Gibson (2016) 2 Cal.App.5th 315, 326.)

5 “C-file” commonly refers to “the confidential correctional
inmate files maintained by the Department of Corrections.”
(People v. Landry (2016) 2 Cal.5th 52, 71; see § 2081.5.)

16
favor of . . . Mata.” Bestard argued that Mata “has matured five
more years since the time of the sentence” and that the court
should take that into consideration in exercising its discretion
whether to impose the “penalties” under section 667,
subdivision (a), and section 12022.53, subdivision (d).
The trial court observed it presided over the trial in this
case, where the jury convicted Mata of first degree murder, and
in Mata’s other case, where the jury convicted Mata of attempted
premeditated murder. The trial court stated that Mata “was a
fugitive from justice” in this case “for a significant period of time,”
that he was “a documented criminal street gang member,” and
(apparently referring to the facts of Mata’s 1997 conviction for
attempted murder) that he “was responsible for the attempted
murder of a black gentleman for walking on the street.” The
court stated that this court directed the trial court to address
only “whether at the time of sentence or today, the court feels
that the use allegation in this murder or the prior serious felony
should be stricken.” The court stated, “I can’t conceive of any
information that . . . Mata can provide that’s going to persuade
this court to strike the personal use of a firearm that resulted in
the death of another human being and reduce his sentence by a
term [of] 30 years to life.”
Turning to the issue of Mata’s prior felony conviction, the
court stated, “The issue of [the] . . . prior conviction as a juvenile
is an issue that’s going to be addressed by the appellate court or
the Supreme Court.” The court commented that, because Mata’s
prior conviction “was long ago finalized,” the court did not believe
Mata was “entitled to the benefits” of “the initiative that changed
and limit[ed] fitness[ ] to persons 16 years or older.” The court
also observed that Mata “has been in custody seven years” and
remarked, “I don’t know if he has matured. I have been
informed, but I have not verified, that yesterday he punched

17
somebody in the face in the lockup. . . . So much for his
maturity.”
The court denied the motion to continue the sentencing
hearing and the motion to strike the firearm enhancement and
the enhancement under section 667, subdivision (a). The court
stated: “The court finds that the interest of justice would not be
enhanced in any sense by the striking of the . . . [firearm] use
discharge that results in death or serious bodily injury. The
murder of Mr. Deanda can only be described as an execution, and
that motion is denied, as is the motion under [section] 667[,
subdivision] (a). Again, the court cannot find any circumstance
that would justify or warrant the reduction or the striking of that
five-year term.”
Referring to the disposition in Mata II, which vacated
Mata’s original sentence, the prosecutor asked the court if the
court “need[ed] to restate the sentence on the record.” The court
replied, “I don’t believe so. The record will remain the same.
That was a 25-to-life [term] doubled to 50 by virtue of his prior,
plus an additional consecutive term of 25 years to life for the
personal use discharge that resulted in a death, plus a five-year”
enhancement under section 667, subdivision (a), and the upper
term of six years for the conviction for possession of a firearm by
a felon. The court stated that the “total sentence remains
86 years to life.”

2. Mata’s 1997 Conviction for Attempted Murder
Was a Serious or Violent Felony Under the
Three Strikes Law and a Serious Felony Under
Section 667, Subdivision (a)
Mata argues that, in light of Proposition 57 and Senate Bill
No. 1391, the trial court “acted in excess of its jurisdiction when
it sentenced Mata as a strike offender and when it imposed a

18
five-year prior serious felony enhancement.” Neither
Proposition 57 nor Senate Bill No. 1391, however, invalidated the
1997 conviction or precluded the trial court from using it in
sentencing Mata.
At the time Mata committed attempted murder in 1996
(when he was 15 years old), a “minor accused of a crime [was]
subject to the juvenile court system, rather than the criminal
court system, unless the minor [was] determined to be unfit for
treatment under the juvenile court law or [was] accused of
certain serious crimes.” (Manduley v. Superior Court (2002)
27 Cal.4th 537, 548; see Welf. & Inst. Code, former § 707,
subd. (a).) “[M]inors who committed one of several enumerated
serious or violent felonies . . . when they were 14 or 15 could be
found unfit by the juvenile court and transferred to criminal
court.” (B.M. v. Superior Court (2019) 40 Cal.App.5th 742, 751,
review granted Jan. 2, 2020, S259030; see Welf. & Inst. Code,
former § 707, subd. (d); Stats. 1994, ch. 453, § 9.5; Hicks v.
Superior Court (1995) 36 Cal.App.4th 1649, 1655-1656.)6 After a
finding of unfitness, the district attorney could “file an accusatory
pleading against the minor in a court of criminal jurisdiction, and
the case then [would] proceed[ ] according to the laws applicable
to a criminal proceeding.” (Manduley, at p. 549; see Welf. & Inst.
Code, § 707.1, subd. (a); People v. Self (1998) 63 Cal.App.4th 58,
61.)

6 Under “[a]mendments to former sections 602 and 707 in
1999 and 2000, . . . in specified circumstances, prosecutors were
permitted, and sometimes required, to file charges against a
juvenile directly in criminal court, where the juvenile would be
treated as an adult.” (Lara, supra, 4 Cal.5th at p. 305.)

19
 Here, not only was Mata convicted in adult court in 1997 of
attempted murder, a serious or violent felony under the three
strikes law and a serious felony under section 667,
subdivision (a),7 Mata admitted he was. (See People v. Cross
(2015) 61 Cal.4th 164, 175 [‘“[t]he admission of the truth of the
allegation of prior convictions . . . allow[s] a determination of a
“status” which can subject an accused to increased
punishment’”].) Thus, the trial court properly sentenced Mata
under the three strikes law and imposed the five-year
enhancement under section 667, subdivision (a). That Mata was
15 years old when he committed attempted murder did not
preclude the court from sentencing him under the three strikes
law or imposing the enhancement under section 667,
subdivision (a). (See People v. Cole (2007) 152 Cal.App.4th 230,
236-237 [“Sections 667 and 1170.12 unambiguously contemplate
that minors will be charged with having committed criminal
offenses that can be strikes,” and “if the minor is found unfit for
handling in the juvenile court and is found in adult court to have
committed a serious or violent felony, that felony is a strike.”];
see also Manduley v. Superior Court, supra, 27 Cal.4th at p. 578
[“juveniles prosecuted in criminal court . . . who commit [violent
or serious felonies] are subject to the increased penalties and
other restrictions imposed by the Three Strikes law”]; People v.
Blankenship (1985) 167 Cal.App.3d 840, 851-852 [trial court
could use the defendant’s prior felony conviction sustained in
another jurisdiction when he was 15 years old to enhance his
sentence under section 667, subdivision (a)]; People v. West (1984)
154 Cal.App.3d 100, 110 [the Victim’s Bill of Rights (Cal. Const.,

7 Attempted murder is a violent felony under section 667.5,
subdivision (c), and a serious felony under section 1192.7,
subdivision (c).

20
art. I, § 28, subd. (f)) “permits the unlimited use of prior felony
convictions for enhancement purposes [under section 667,
subdivision (a)], whether the person convicted was an adult or
juvenile being tried as an adult at the time of the prior
conviction”].)
Neither Proposition 57 nor Senate Bill No. 1391 says
anything about the use of a prior felony conviction for sentencing
purposes where the juvenile offender commits another felony as
an adult, as Mata did in this case. Effective 2016,
‘“Proposition 57 amended the Welfare and Institutions Code so as
to eliminate direct filing by prosecutors. Certain categories of
minors . . . can still be tried in criminal court, but only after a
juvenile court judge conducts a transfer hearing to consider
various factors such as the minor’s maturity, degree of criminal
sophistication, prior delinquent history, and whether the minor
can be rehabilitated.”’ (Lara, supra, 4 Cal.5th at pp. 305-306; see
B.M. v. Superior Court, supra, 40 Cal.App.5th at p. 752 [“Under
Proposition 57, district attorneys could request to transfer only
two categories of minors—(i) 16 and 17 year olds alleged to have
committed a felony and (ii) 14 and 15 year olds alleged to have
committed a specified serious or violent felony.”].)
Effective January 1, 2019, Senate Bill No. 1391 “eliminated
district attorneys’ ability to request transfer hearing[s] for 14 and
15 year olds, thereby returning California’s minimum transfer
age to 16.” (B.M. v. Superior Court, supra, 40 Cal.App.5th at
p. 753; see Welf. & Inst. Code, § 707, subd. (a)(1); Stats. 2018,
ch. 1012, § 1; Legis. Counsel’s Dig., Sen. Bill No. 1391 (2017-2018
Reg. Sess.) [“This bill would repeal the authority of a district
attorney to make a motion to transfer a minor from juvenile court
to a court of criminal jurisdiction in a case in which a minor is
alleged to have committed a specified serious offense when he or
she was 14 or 15 years of age, unless the individual was not

21
apprehended prior to the end of juvenile court jurisdiction,
thereby amending Proposition 57.”].) Nowhere in the text of
Proposition 57, Senate Bill No. 1391, or amendments to Welfare
and Institutions Code section 707 is there any reference to a
juvenile offender’s prior felony conviction. Proposition 57 and
Senate Bill No. 1391 do not say what Mata argues they say.
In addition, Proposition 57 and Senate Bill No. 1391 apply
only to cases that are not final. (See Lara, supra, 4 Cal.5th at
pp. 303-304 [the part of Proposition 57 that prohibits prosecutors
from charging juveniles with crimes directly in adult court
“applies to all juveniles charged directly in adult court whose
judgment was not final at the time it was enacted”]; People v.
Superior Court (I.R.) (2019) 38 Cal.App.5th 383, 393 [Senate Bill
No. 1391, like Proposition 57, applies “retroactively ‘to all
juveniles . . . whose judgment was not final at the time it was
enacted’’’], review granted Nov. 26, 2019, S257773.)
Proposition 57 and Senate Bill No. 1391 do not apply to Mata’s
1997 conviction, which was final long ago. (See People v. Barboza
(2018) 21 Cal.App.5th 1315, 1318-1319 [Proposition 57 did not
apply to the defendant, whose judgment of conviction became
final before Proposition 57 went into effect].)
None of the cases Mata cites holds otherwise. In People v.
Buycks (2018) 5 Cal.5th 857 (Buycks) the Supreme Court
considered “Proposition 47’s effect on felony-based enhancements
in resentencing proceedings under section 1170.18.” (Buycks, at
p. 871.) Proposition 47 “reclassified as misdemeanors certain
offenses that previously were felonies or ‘wobblers’” and added
section 1170.18, “which permits those previously convicted of
felony offenses that Proposition 47 reduced to misdemeanors to
petition to have such felony convictions resentenced or
redesignated as misdemeanors.” (Buycks, at p. 871.) Section
1170.18, subdivision (k), provides, in relevant part, “A felony

22
conviction that is recalled and resentenced . . . or designated as a
misdemeanor . . . shall be considered a misdemeanor for all
purposes.” The Supreme Court in Buycks held that
“Proposition 47’s mandate that the resentenced or redesignated
offense ‘be considered a misdemeanor for all purposes’ [citation]
permits defendants to challenge felony-based section 667.5 and
12022.1 enhancements when the underlying felonies have been
subsequently resentenced or redesignated as misdemeanors.”
(Buycks, at p. 871.)
Neither Proposition 57 nor Senate Bill No. 1391 contains
language approximating the expansive directive of Proposition 47
to treat redesignated offenses as a misdemeanor “for all
purposes.” Moreover, unlike the defendants in Buycks who
successfully petitioned to have their felony offenses “retroactively
reduced to misdemeanors” (Buycks, supra, 5 Cal.5th at p. 878),
Mata did not successfully petition to have his 1997 felony case
transferred to juvenile court because, as discussed, Proposition 57
and Senate Bill No. 1391 do not apply to that final judgment. His
1997 felony conviction remains valid.
Citing People v. Sumstine (1984) 36 Cal.3d 909 at page 918,
Mata argues that he may “collaterally attack the
constitutionality of a long-ago final conviction used presently to
enhance his sentence by [a] motion to strike the prior conviction
in the reviewing court.” Sumstine doesn’t say that. In Sumstine
the defendant argued “a prior conviction must automatically be
stricken if the record of that conviction is silent regarding the
preservation of his Boykin/Tahl rights.”8 (Id. at p. 914.) The

8 In Boykin v. Alabama (1969) 395 U.S. 238 [89 S.Ct. 1709,
23 L.Ed.2d 274] the United States Supreme Court held, “It was
error . . . for the trial judge to accept [the] petitioner’s guilty plea

23
Supreme Court held that, notwithstanding an earlier case that
limited motions to strike a prior conviction to challenges based on
the denial of the right to counsel, “a defendant may move to
strike a prior conviction on Boykin/Tahl grounds,” but “must
allege actual denial of his constitutional rights.” (Id. at pp. 914,
922.) Mata does not argue his 1997 conviction violated his rights
under Boykin/Tahl or any other constitutional right; his
challenge is statutory—a voter initiative and a legislative
enactment that amended section 707 of the Welfare and
Institutions Code.9 (See People v. Level (2002) 97 Cal.App.4th

without an affirmative showing that it was intelligent and
voluntary.” (Id. at p. 242.) In In re Tahl (1969) 1 Cal.3d 122 the
Supreme Court held that “each of the three rights . . . —self-
incrimination, confrontation, and jury trial—must be specifically
and expressly enumerated for the benefit of and waived by the
accused prior to [the court’s] acceptance of his guilty plea.” (Id. at
p. 132.)

9 The provision of Proposition 57 that removed prosecutors’
direct filing authority, which did not involve any changes to the
California Constitution, is distinct from the provision of
Proposition 57 that authorized the early release of nonviolent
adult prisoners, which did amend the California Constitution by
adding article I, section 32. (See Cal. Const., art. I, § 32,
subd. (a)(1) [“Any person convicted of a nonviolent felony offense
and sentenced to state prison shall be eligible for parole
consideration after completing the full term for his or her
primary offense.”]; In re King (2020) 54 Cal.App.5th 814, 818-819,
review granted Dec. 9, 2020, S265247; In re Edwards (2018)
26 Cal.App.5th 1181, 1184.) Mata does not contend the
amendment to the state constitution transforms his motion to
strike into a constitutional challenge to his prior conviction. (See
Garcia v. Superior Court (1997) 14 Cal.4th 953, 963 [“previous

24
1208, 1214 [defendant could not move to strike a conviction for a
serious or violent felony she committed when she was 17 years
old because a motion to strike under Sumstine “is only available
to challenge the constitutionality of a prior conviction that is
alleged for purposes of a sentence enhancement”].)
Mata’s reliance on People v. Trujeque (2015) 61 Cal.4th 227
(Trujeque) is equally misplaced. In Trujeque the prosecution
alleged a special circumstance under section 190.2,
subdivision (a)(2), that the defendant had previously been
convicted of second degree murder for a killing he committed
when he was 16 years old. (Trujeque, at p. 245.) The defendant
argued the United States Supreme Court’s decision in Breed v.
Jones (1975) 421 U.S. 519, 531 [95 S.Ct. 1779, 44 L.Ed.2d 346]
(Breed), “which held that an adult prosecution after a juvenile
adjudication for the same offense violates double jeopardy,
compel[ed] the conclusion that he was placed at least twice in
jeopardy.” (Trujeque, at p. 245.) The California Supreme Court
held that Breed applied retroactively to the defendant’s prior
conviction, relying in part on the test for retroactivity of a new
constitutional rule of criminal procedure under Teague v. Lane
(1989) 489 U.S. 288, 299 [109 S.Ct. 1060, 103 L.Ed.2d 334]
(Teague). (Trujeque, at p. 250.) The California Supreme Court
also held the defendant could bring a motion to strike his prior
conviction because “the collateral challenge here is to a prior
conviction alleged as a basis for a death-qualifying special
circumstance.” (Trujeque, at p. 252; see People v. Horton (1995)
11 Cal.4th 1068, 1135 [allowing “a collateral challenge to a prior
conviction that has been alleged as a special circumstance”
because “the special need for reliability in the death penalty

decisions authorizing . . . motions to strike have not been based
upon state constitutional grounds”].)

25
context is undermined whenever a prior conviction (upon which a
death penalty judgment is based) is tainted by a fatal
fundamental constitutional defect”].)
Trujeque is distinguishable because the test the Supreme
Court used to conclude Breed applied retroactively does not apply
in this case. Neither Proposition 57 nor Senate Bill No. 1391
announced a new constitutional rule of criminal procedure;
rather, they made changes to the statutory law, and the test for
determining their retroactivity is not based on Teague. (See
Lara, supra, 4 Cal.5th at p. 307 [“In order to determine if a law is
meant to apply retroactively, the role of a court is to determine
the intent of the Legislature, or in the case of a ballot measure,
the intent of the electorate.”].) Moreover, none of the
circumstances in Trujeque that supported a motion to strike
exists in this case—Mata’s 1997 conviction does not suffer from a
“fatal fundamental constitutional defect” (People v. Horton,
supra, 11 Cal.4th at p. 1135), and the People did not allege that
prior conviction to support a penalty of death.
Citing In re Harris (1993) 5 Cal.4th 813, Mata argues “the
superior court acted in excess of its jurisdiction when it
substantially increased Mata’s term of imprisonment based on a
prior adult conviction that a change in the law has since
invalidated.” In In re Harris the defendant filed a petition for a
writ of habeas corpus challenging his prior conviction on the
ground the trial court lacked jurisdiction over him because he
was only 15 years old when he committed the offense. (Id. at
p. 824.) Although the defendant had raised the challenge in his
direct appeal, the Supreme Court held that “a claim a court acted
in excess of its jurisdiction, where such issue was raised and
rejected on direct appeal (or could have been raised on appeal),
may be entertained despite the . . . rule” that a defendant cannot
raise in a petition for writ of habeas corpus an issue that was

26
raised and rejected on direct appeal, “provided a redetermination
of the facts underlying the claim is unnecessary.” (Id. at p. 841.)
In re Harris is distinguishable. As discussed, when Mata was
convicted of attempted murder in 1997, the law authorized the
juvenile court to declare 14-year-old and 15-year-old offenders
unfit for treatment in the juvenile court law. The juvenile court
that made that ruling in Mata’s 1997 case did not act in excess of
its jurisdiction in transferring Mata to adult court, and the adult
court did not act in excess of its jurisdiction in entering judgment
on a felony conviction. And, as discussed, the changes in law
(Proposition 57 and Senate Bill No. 1391) did not invalidate
Mata’s 1997 felony conviction.
Finally, Mata urges us to adopt the reasoning in People v.
Padilla (2020) 50 Cal.App.5th 244, review granted Aug. 26, 2020,
S263375, to apply Proposition 57 and Senate Bill No. 1391 to this
case. In Padilla the defendant committed murder when he was
16 years old, and the trial court sentenced him to life without the
possibility of parole. (Padilla, at pp. 246-247.) Following two
direct appeals and a successful petition for a writ of habeas
corpus challenging his sentence, the trial court again imposed the
original sentence. In his third direct appeal, the defendant
argued that “in light of Proposition 57 . . . he [was] entitled to a
transfer hearing in the juvenile court.” (Id. at p. 248.) The court
in Padilla held that, even though the defendant’s conviction was
final, his sentence was not and that therefore Proposition 57
“applie[d] retroactively to [the defendant’s] nonfinal sentence and
require[d] that he receive a transfer hearing.” (Id. at
pp. 254-255.) Padilla does not help Mata because, as discussed,
his 1997 conviction and sentence are final. (Cf. People v. Federico
(2020) 50 Cal.App.5th 318, 327 [“section 1170, subdivision (d),
says nothing about ‘reopening’ a judgment that has been final for

27
years, in order to apply recently enacted laws retroactively”],
review granted, Aug. 26, 2020, S263082.)

DISPOSITION

The judgment is affirmed. Mata’s motion for judicial notice
is denied as unnecessary to our decision. (See People v. Townsel
(2016) 63 Cal.4th 25, 42, fn. 2.)

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.

28