People v. Mata CA2/7

Filed 2/16/21 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, B301044

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 with
directions.
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, Supervising Deputy
Attorney General, and Steven E. Mercer, Deputy Attorney
General, for Plaintiff and Respondent.
 INTRODUCTION

A jury convicted Johnny Mata of attempted murder and
possession of a firearm by a felon. Mata appealed, arguing the
trial court erred in denying his 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, commonly referred to as a
Batson/Wheeler motion. (People v. Mata (Mar. 26, 2018,
B270264) [nonpub. opn.] (Mata I).) In that appeal we held the
trial court erred in failing to complete the three-step inquiry
required to rule on a Batson/Wheeler motion, conditionally
reversed the judgment, and directed the trial court to complete
steps two and three of the Batson/Wheeler analysis. On remand
the trial court ruled Mata failed to demonstrate the prosecutor
exercised any peremptory challenges in a discriminatory manner.
Mata appealed again. He argues the trial court failed to
comply with this court’s directions and erred in denying his
Batson/Wheeler motion. Mata also argues the trial court lacked
jurisdiction to sentence him under the three strikes law
(Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d))1 or to
impose a five-year enhancement for a prior serious felony
conviction under section 667, subdivision (a). Finally, Mata
argues that, even if the court had jurisdiction to impose the five-
year enhancement, we should remand the matter to allow the
trial court to exercise its discretion whether to strike it. We
agree with the last argument, and otherwise affirm.

1 Undesignated statutory references are to the Penal Code.

2
 FACTUAL AND PROCEDURAL BACKGROUND

A. Mata I
Because this is Mata’s fourth appeal,2 we have recounted
the facts of this case several times. Briefly: In 2012 Mata fired a
gun at his girlfriend’s former boyfriend, but missed.
The jury convicted Mata of attempted murder and
possession of a firearm by a felon. In a bifurcated proceeding, the
trial court found Mata had a 1997 conviction for attempted
murder, a serious or violent felony conviction within the meaning
of the three strikes law and a serious felony within the meaning
of section 667, subdivision (a)(1).3 The court sentenced Mata to a
prison term of life with a minimum parole eligibility of 14 years,
plus 20 years for the firearm enhancement under section
12022.53, subdivision (c), and five years for the prior serious
felony conviction under section 667, subdivision (a). The court

2 The trial court consolidated this case with an unrelated
case in which the People charged Mata with the murder of a rival
gang member. (Mata I, supra, B270264.) The jury could not
reach a verdict on the murder charge. After a retrial in the other
case, the jury found Mata guilty of first degree murder and
possession of a firearm by a felon, and Mata appealed. We
affirmed the convictions but directed the trial court to exercise its
discretion whether to strike two enhancements in Mata’s
sentence. (People v. Mata (Jan. 2, 2019, B277734) [nonpub. opn.]
(Mata II).) The trial court reimposed Mata’s original sentence,
Mata appealed, and we affirmed. (People v. Mata (Dec. 21, 2020,
B294526) [nonpub. opn.] (Mata III).) This appeal is Mata IV.

3 Mata committed the attempted murder on October 23,
1996, when he was 15 years old. The juvenile court found him
unfit to remain in the juvenile court system and transferred his
case to adult court, where he was convicted.

3
also imposed but stayed execution of a term of six years for the
conviction of possession of a firearm by a felon.
Mata appealed, contending the trial court erred in denying
his Batson/Wheeler motion. The basis of the motion was that,
during voir dire, counsel for Mata argued the prosecutor
impermissibly challenged Prospective Juror Nos. 7, 11, and 15
because they were “younger Hispanics.” The court found these
three challenges, along with a peremptory challenge the
prosecutor had previously exercised against Prospective Juror
No. 9, established a prima facie case.4 The prosecutor stated his
reasons for exercising a peremptory challenge against
Prospective Juror Nos. 7, 11, and 15, which we will discuss in
detail later. The prosecutor did not state his reasons for
challenging Prospective Juror No. 9. The court denied Mata’s
Batson/Wheeler motion, stating, “The court doesn’t find that
young persons of any ethnicity are a protected class.”
This court held in Mata I the trial court erred in failing to
elicit the prosecutor’s reasons for challenging Prospective Juror
No. 9 (step two of the Batson/Wheeler inquiry) and in failing to
assess the credibility of the prosecutor’s reasons for challenging
each of the four prospective jurors (step three of the
Batson/Wheeler inquiry). We conditionally reversed the judgment
and directed the trial court to complete steps two and three of the
Batson/Wheeler inquiry. (Mata I, supra, B270264.)
B. Remand

4 The court found Prospective Juror No. 9 “had Latino
features,” and the court included her in its finding Mata had
made a prima facie showing of discrimination, even though both
the prosecutor and counsel for Mata agreed Prospective Juror
No. 9, who had an Asian last name, was Asian. The People did
not challenge the court’s prima facie finding in Mata I, nor do
they in this appeal.

4
 On remand the court summarized its understanding of this
court’s directions in Mata I: “To have the People explain . . . the
reasons for their excusal of [Prospective] Juror No. 9” and “to
balance and evaluate the reasons given by the People and
whether the strikes had been proved to be racially
discriminatory.” The prosecutor gave three reasons for
challenging Prospective Juror No. 9, which we will discuss in
detail later. Without specifically responding to the prosecutor’s
reasons for challenging this prospective juror, counsel for Mata
stated that, in “the moving papers,” “it was referenced” that the
prosecutor allowed Juror No. 5 and Juror No. 9 (not to be
confused with Prospective Juror No. 9) to remain on the jury and
that those jurors were “younger” but “non-Hispanic.”5 The
prosecutor reiterated that “youth” or “lack of life experience” was
“one of the reasons for some of the peremptory challenges,” and
the prosecutor described a seated juror, Juror No. 7, as someone
with “tremendous life experience.”
After further discussion about what had occurred at the
first Batson/Wheeler hearing, Prospective Juror No. 7 suddenly
appeared in the courtroom. Unbeknownst to counsel, the trial
court had called Prospective Juror No. 7’s father, who relayed a

5 Counsel for Mata also referred to a “brief” where “it was
referenced” that Juror No. 5 and Juror No. 9 “had the same
demographics” as the excused prospective jurors at issue here.
The record on appeal does not contain any motion or brief filed by
counsel for Mata regarding the prosecutor’s peremptory
challenges, and Mata does not refer to such a document in his
opening brief in this appeal. Counsel for Mata may have been
referring to the opening brief appellate counsel filed in Mata I, in
which Mata argued that a comparative juror analysis showed
“life experience” was not the “actual motive in removing Hispanic
panelists.”

5
message to the former prospective juror to contact the court.
When Prospective Juror No. 7 called the court, he was instructed
to come to the courtroom on the day of the hearing. The court
confirmed Prospective Juror No. 7’s identity, and the clerk put
him under oath. The court asked Prospective Juror No. 7 to state
his ethnicity, and Prospective Juror No. 7 said he was “half
Filipino and half White.” Counsel for Mata asked the prospective
juror how he identified himself on forms or applications, and
Prospective Juror No. 7 said, “White and Asian.”
After the court excused Prospective Juror No. 7 and
thanked him for coming in, counsel for Mata asked whether the
court “made any efforts” to contact the other “subject jurors who
were part of the Court of Appeal’s opinion.” The court stated it
had not. Counsel for Mata argued that the court should have
informed the attorneys it was going to bring in a prospective
juror to testify at the proceeding and that, had counsel known the
court was going to do that, he would have asked the court to call
in the three other prospective jurors. The court explained it had
summoned only Prospective Juror No. 7 because counsel for Mata
had agreed Prospective Juror No. 9 was Asian, there did not
“seem to be any argument” about whether Prospective Juror
No. 11 and Prospective Juror No. 15 were Hispanic, and “it would
be in everyone’s interest to have [Prospective Juror No. 7] come
in . . . so it could be resolved if, in fact, he is a member of a
suspect classification that we characterize as Hispanic.”
The court stated that, because it had found a prima facie
case at the first Batson/Wheeler hearing, it intended to include all
four challenged prospective jurors in its analysis. Before doing
so, the court stated that, “if given the second opportunity,” the
court “would have modified . . . [its] prima facie finding” with
respect to Prospective Juror Nos. 7 and 9. The court stated:
“Having made the prima facie finding, I will move on to

6
addressing the second and third [steps].” Assessing the
prosecutor’s stated reasons for challenging each of the four
prospective jurors, the court concluded that, “following the
explanations given, the court finds that the defense has failed to
prove racial discrimination in the striking of the four prospective
jurors.”
The trial court denied the motion and reinstated the
judgment. Mata timely appealed.

DISCUSSION

A. The Trial Court Did Not Prejudicially Err in Denying
Mata’s Batson/Wheeler Motion

1. Applicable Law and Standard of Review
“‘[A] prosecutor, like any party, may exercise a peremptory
challenge against anyone, including members of cognizable
groups. All that is prohibited is challenging a person because the
person is a member of that group.’” (People v. Hardy (2018)
5 Cal.5th 56, 78; see People v. Smith (2018) 4 Cal.5th 1134, 1146
[“‘a party may exercise a peremptory challenge for any
permissible reason or no reason at all’”].) “Both the United
States and California Constitutions prohibit discriminatory use
of peremptory strikes.” (People v. Reed (2018) 4 Cal.5th 989,
999.) “To assess whether such prohibited discrimination has
occurred, our inquiry under Batson/Wheeler follows three distinct,
familiar steps.” (Ibid.) “When a party opposing a peremptory
strike makes a prima facie case that the strike was motivated by
impermissible discrimination (step 1), the proponent of the strike
must offer a nondiscriminatory reason for that challenge (step 2).
[Citation.] The question then becomes (step 3) whether the
opponent of the peremptory challenge has shown it ‘“more likely

7
than not that the challenge was improperly motivated.”’” (People
v. Baker (Feb. 1, 2021, S170280) ___ Cal.5th ___, ___ [2021
WL 318247, p. 14]; see Reed, at p. 999.)
“‘“The proper focus of a Batson/Wheeler inquiry . . . is on the
subjective genuineness of the race-neutral reasons given for the
peremptory challenge, not on the objective reasonableness of
those reasons. . . . All that matters is that the prosecutor’s
reason for exercising the peremptory challenge is sincere and
legitimate, legitimate in the sense of being nondiscriminatory.”’
[Citation.] ‘“At the third stage of the Wheeler/Batson inquiry, ‘the
issue comes down to whether the trial court finds the prosecutor’s
race-neutral explanations to be credible. Credibility can be
measured by, among other factors, the prosecutor’s demeanor; by
how reasonable, or how improbable, the explanations are; and by
whether the proffered rationale has some basis in accepted trial
strategy.’”’” (People v. Miles (2020) 9 Cal.5th 513, 539.) “‘“‘“[T]he
trial court is not required to make specific or detailed comments
for the record to justify every instance in which a prosecutor’s
race-neutral reason for exercising a peremptory challenge is
being accepted by the court as genuine.”’”’ [Citation.] However,
‘“[w]hen the prosecutor’s stated reasons are either unsupported
by the record, inherently implausible, or both, more is required of
the trial court than a global finding that the reasons appear
sufficient.”’” (Ibid.) “The defendant has the ultimate burden of
persuasion regarding the prosecutor’s motivation.” (People v.
Hardy, supra, 5 Cal.5th at p. 81; see People v. Gutierrez (2017)
2 Cal.5th 1150, 1158 (Gutierrez) [“In order to prevail, the movant
must show it was “‘more likely than not that the challenge was
improperly motivated.”’”].)
“‘Review of a trial court’s denial of a Wheeler/Batson motion
is deferential, examining only whether substantial evidence
supports its conclusions. [Citation.] “We review a trial court’s

8
determination regarding the sufficiency of a prosecutor’s
justifications for exercising peremptory challenges ‘“with great
restraint.”’ [Citation.] We presume that a prosecutor uses
peremptory challenges in a constitutional manner and give great
deference to the trial court’s ability to distinguish bona fide
reasons from sham excuses. [Citation.] So long as the trial court
makes a sincere and reasoned effort to evaluate the
nondiscriminatory justifications offered, its conclusions are
entitled to deference on appeal.”’” (People v. Miles, supra,
9 Cal.5th at p. 539.)

2. The Trial Court’s Error in Recalling Prospective
Juror No. 7 Sua Sponte To Verify His Ethnicity
Was Harmless
Before reviewing the merits of the trial court’s ruling on
Mata’s Batson/Wheeler motion, we address a procedural error the
trial court committed. Mata contends “the trial court erred when
it conducted an evidentiary hearing, at which it received evidence
pertaining only to its previous step one Batson/Wheeler rulings,
which . . . this Court . . . had not . . . re-opened.”
We agree the trial court erred in unilaterally calling in
Prospective Juror No. 7 to come to court and state his ethnicity:
The disposition in Mata I did not direct the court to conduct such
an inquiry. As Mata correctly points out, the disposition in
Mata I only directed the trial court to conduct steps two and
three of the Batson/Wheeler inquiry. (See People v. Vizcarra
(2015) 236 Cal.App.4th 422, 441 [“‘On remand with directions,
after a judgment on appeal, the trial court has jurisdiction only to
follow the directions of the appellate court; it cannot modify, or
add to, those directions.’”]; see also People v. Ramirez (2019)
35 Cal.App.5th 55, 64 [“‘[t]he order of the reviewing court is
contained in its remittitur, which defines the scope of the

9
jurisdiction of the court to which the matter is returned’”]; Ayyad
v. Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851, 860 [“if the
reviewing court does not direct the trial court to take a particular
action or make a particular determination, the trial court is not
authorized to do so”].)
The trial court’s procedural error, however, was harmless.
(See People v. Hardy, supra, 5 Cal.5th at p. 77.) The trial court
stated that it had found Mata made a prima facie showing and
that the court would proceed to the remaining steps of the
Batson/Wheeler analysis. The trial court made clear that,
“separate and apart” from the ethnicity of Prospective Juror
No. 7, the court would proceed based on its previous prima facie
finding, and the court in fact assessed the prosecutor’s reasons for
exercising peremptory challenges against all four prospective
jurors “without the consideration of [Prospective Juror No. 7’s]
appearance and [ethnic identity].” The court stated it would
“disregard[ ]” Prospective Juror No. 7’s ethnicity when evaluating
the prosecutor’s justifications for challenging him, and nothing in
the record indicates the court considered its recently-acquired
knowledge that Prospective Juror No. 7 was not, in fact,
Hispanic. The record does not support Mata’s assertion the “trial
court’s alternative step-one findings tainted the trial court’s
subsequent step-three Batson/Wheeler rulings.”

3. The Court’s Evaluation of the Prosecutor’s
Reasons for the Peremptory Challenges, Though
Not Exemplary, Was Sufficient
Mata argues the trial court failed to conduct a sincere and
reasoned evaluation of each of the four prospective jurors, as
evidenced by the court’s failure to question the prosecutor or “to
evaluate or to make a credibility finding.” Although the trial

10
court’s inquiry was certainly not a textbook example of how to
conduct step three of the Batson/Wheeler analysis, the court, in
the end, made a sufficiently “‘sincere and reasoned attempt’”
(Gutierrez, supra, 2 Cal.5th at p. 1159) to evaluate the
prosecutor’s reasons for exercising each peremptory challenge.
(See People v. Baker, supra, ___ Cal.5th at p. ___ [p. 19] [while
“the trial court certainly ‘could have done more to make a fuller
record,’” the law “does not require a court in all circumstances to
articulate and dissect at length the proffered nondiscriminatory
reasons for a strike,” and “deference is appropriate” where the
trial court makes “a sincere and reasoned effort to evaluate the
justifications proffered”].)

a. Prospective Juror No. 7
Prospective Juror No. 7 was a sixth-year business
administration student who lived with his father and stepmother.
At the first Batson/Wheeler hearing, the prosecutor said he
challenged this prospective juror because “it just seemed a little
weird that he’s in his sixth year of school” and because “he
seemed very young and inexperienced.” The prosecutor explained
he was seeking jurors “with life experiences.” On remand the
trial court correctly recalled the prosecutor had challenged
Prospective Juror No. 7 because “he had concern about [the
prospective juror] being . . . a college student of six years” and
because the prospective juror looked young. The court agreed the
prospective juror in fact looked young, as “verified” by his
appearance in court. Thus, the court found the prosecutor’s
justification for challenging Prospective Juror No. 7 was credible
and genuine.
Substantial evidence supported the court’s credibility
finding. Prospective Juror No. 7 stated he was in his sixth year

11
of college, and counsel for Mata corroborated the youthful
appearance of Prospective Juror No. 7 when he described the
prospective juror (along with Prospective Juror Nos. 11 and 15)
as “younger Hispanics” in their “20’s to early 30’s.” The court
similarly found at the first Batson/Wheeler hearing that
Prospective Juror No. 7 “appeared young.” The court did not err
in accepting the prosecutor’s reasons as a legitimate basis for
challenging this prospective juror. (See People v. DeHoyos (2013)
57 Cal.4th 79, 108 [a prospective juror’s “limited life experience”
“constitutes a race-neutral explanation for a peremptory
challenge”]; People v. Lomax (2010) 49 Cal.4th 530, 575 [“A
potential juror’s youth and apparent immaturity are race-neutral
reasons that can support a peremptory challenge.”].) And by
finding that “the race-neutral explanations tendered by the
prosecution have overcome any suggestion of racial
discrimination,” the court determined Mata had failed to show “it
was ‘“more likely than not that the challenge was improperly
motivated.”’” (Gutierrez, supra, 2 Cal.5th at p. 1158; see People v.
Mai (2013) 57 Cal.4th 986, 1054 [“[t]he court’s assertion that no
discriminatory intent was ‘inherent’ in the prosecutor’s
explanations is reasonably read as a determination that the court
believed them to be true”].)
We acknowledge that, after finding “the reasons given
rebut any racial discrimination,” the court stated that “the
circumstances of the case itself, that all the major parties are
Hispanic, does not leave one to believe that the excusal of this
juror was for discriminatory purposes.” The court summarized
its experience presiding in the East District of the Los Angeles
County Superior Court for over 32 years and commented on the
“dramatic increase over those years of Hispanics in the East
District” and “a substantial increase of [Hispanic] jurors.” The
court stated, “When you have a trial where all civilian witnesses

12
[and] victims are Hispanic, it makes very little sense to exclude
jurors because of that ethnicity.” Contrary to Mata’s suggestion,
however, this commentary was not an effort by the court to
supply a reason “the prosecution had not proffered” to deny
Mata’s Batson/Wheeler motion. Rather, in context, it was an
attempt to evaluate the prosecutor’s explanation in light of “the
circumstances of the case known at that time” (Gutierrez, supra,
2 Cal.5th at p. 1159) and the court’s “‘experiences as a lawyer and
bench officer in the community’” (People v. Winbush (2017)
2 Cal.5th 402, 434). (See People v. DeHoyos, supra, 57 Cal.4th at
p. 115 [the “casewide factors [including that the defendant and
the victim were both Hispanic] were appropriately considered by
the trial court and further support[ed] its denial of defendant’s
motion”].)
Mata faults the trial court for failing to “confront” the
prosecutor or ask him questions. But because the prosecutor’s
reasons for challenging Prospective Juror No. 7 were not
“‘“unsupported by the record”’” or “‘“inherently implausible”’”
(People v. Miles, supra, 9 Cal.5th at p. 539), the trial court did not
have to question the prosecutor or make more detailed findings.
(See People v. Mai, supra, 57 Cal.4th at p. 1054 [trial court did
not need to “‘explain on the record its ruling on a Batson/Wheeler
motion’” because “the prosecutor’s reasons were plausible and, in
all essential respects, supported”].)

b. Prospective Juror No. 9
Prospective Juror No. 9 worked as a legal secretary in the
Los Angeles City Attorney’s Office and was divorced with two
adult children. The prosecutor gave three reasons for challenging
this prospective juror: (1) she “personally had a negative
experience with [the] police involving her . . . ex-husband” and
expressed “doubts” about younger police officers; (2) she “might

13
have some feelings” from watching television shows about police
officers that could affect her judgment in this case; and (3) she
hoped the case would be “as simple as . . . one plus one equals
two.”
The court evaluated the prosecutor’s reasons by checking
them against the court’s recollection of the responses Prospective
Juror No. 9 gave during voir dire. The court also stated that the
prosecutor’s reasons for exercising the peremptory challenge were
consistent with the prosecutor’s reasons for challenging the same
prospective juror for cause. The court found the prosecutor’s
reasons were credible: “The reasons given today are not belated
or fabricated but ones that are supported by the record.”
Substantial evidence supported the court’s finding. During
jury selection, Prospective Juror No. 9 described a negative
experience she had with law enforcement, criticized younger
police officers, admitted television shows she had seen about
police officers might affect her judgment, and said she hoped the
case would be a simple one. The court did not err in accepting
these reasons as legitimate. (See People v. Hardy, supra,
5 Cal.5th at p. 82 [“‘A “negative experience with law enforcement”
is a valid basis for a peremptory challenge.’”]; People v. Winbush,
supra, 2 Cal.5th at p. 439 [“‘A prospective juror’s distrust of the
criminal justice system is a race-neutral basis for excusal.’”];
People v. Lomax, supra, 49 Cal.4th at p. 573 [“The arrest of a
juror or a close relative is an accepted race-neutral reason for
exclusion.”].)6 And by finding that the concerns of the prosecutor

6 Code of Civil Procedure section 231.7, subdivision (e)(1),
which applies to criminal jury trials on or after January 1, 2022,
provides that “[e]xpressing a distrust of or having a negative
experience with law enforcement or the criminal legal system” is

14
were “reasonable,” that “the proffered rationale” was “accepted
trial strategy,” and that “the defense has failed to prove . . . racial
discrimination, the court determined the prosecutor did not
challenge Prospective Juror No. 9 “on account of bias against an
identifiable group distinguished on . . . ethnic, or similar
grounds” (Gutierrez, supra, 2 Cal.5th at p. 1158).
Mata suggests Prospective Juror No. 9 “misunderstood” or
“misrepresented” the incident involving the arrest of her ex-
husband because the police released her ex-husband the next
day. The record, however, supports the prosecutor’s concern the
prospective juror “formed quick opinions” because she had
concluded the arresting officer did not know “all the law” and
because she had a one-sided view of the arrest. The record also
supports the prosecutor’s characterization of Prospective Juror
No. 9’s prior experience with law enforcement as negative:
Referring to her ex-husband’s allegedly wrongful arrest, the
prospective juror stated she “didn’t think that [was] right.”
Nothing in the record suggests Prospective Juror No. 9
considered her ex-husband’s encounter with the police a positive
experience. Prospective Juror No. 9’s statement she could set
aside her perceptions of the police does not detract from the
legitimacy of the prosecutor’s concern. (See People v. Bryant

a presumptively invalid reason for a peremptory challenge,
“unless the party exercising the peremptory challenge can show
by clear and convincing evidence that an objectively reasonable
person would view the rationale as unrelated to a prospective
juror’s race, ethnicity, gender, gender identity, sexual orientation,
national origin, or religious affiliation, or perceived membership
in any of those groups, and that the reasons articulated bear on
the prospective juror’s ability to be fair and impartial in the
case.” The new law does not apply to Mata’s trial, which occurred
in 2015.

15
(2019) 40 Cal.App.5th 525, 537-538 [“whether [the prospective
juror] could be fair is irrelevant, because we are addressing
peremptory challenges, not challenges for cause”].)
Mata speculates that Prospective Juror No. 9’s avid
consumption of television police drama may have influenced her
to view the prosecution’s case favorably and that the prosecutor’s
concern the prospective juror would bring her “life experience
[from watching police shows] into deliberations” was
“incongruent” with the prosecutor’s interest in selecting jurors
“with life experience.” The prosecutor’s concern with a
prospective juror who indicated she might view the evidence
through the lens of television police shows, however, was self-
evident and did not require further inquiry. (See Gutierrez,
supra, 2 Cal.5th at p. 1171 [“Some neutral reasons for a challenge
are sufficiently self-evident, if honestly held, such that they
require little additional explication”].) The prosecutor’s desire to
select jurors with sufficient life experience to inform their
judgment was not inconsistent with his desire to avoid jurors who
might use fictitious cases on television to decide cases.
Finally, Mata criticizes the prosecutor for presenting a
“laundry list” of reasons and the trial court for finding “one
justification among several that could be corroborated” and
failing to “subject any other proffered justification for scrutiny.”
The record contradicts this characterization. The court evaluated
the three reasons (“negative experience with law enforcement,”
“TV influencing her judgment,” and desire for the case to be
“simple”) and found they were credible.

c. Prospective Juror No. 11

16
 Prospective Juror No. 11 had two jobs, one in customer
service at a transportation agency and one as a production
assistant for a cable company. He stated that, once or twice a
month at family gatherings, he socialized with family members
who were affiliated with criminal street gangs. The prosecutor
gave two reasons for challenging this prospective juror: “He was
young” and “he associates with gang member family members.”
The court evaluated the prosecutor’s justifications by recalling
the prosecutor’s concerns and stating that “gang membership was
a substantial part of the prosecution’s case.” The court found the
prosecutor’s justifications credible: “The court . . . finds a race-
neutral reason for the exercise of that peremptory and that it was
without any racial consideration.” Substantial evidence
supported the court’s findings. Counsel for Mata corroborated
Prospective Juror No. 11’s youth, and the record accurately
reflects the prospective juror socialized with family members
with ties to gangs.
Mata argues the prosecution’s acceptance of Juror No. 7, an
African American man who had been involved with gangs,
demonstrated the challenge against Prospective Juror No. 11
“was based on Hispanic ethnicity.” The prosecutor, however,
gave a plausible explanation for why Juror No. 7, who was “in his
mid to late 50’s” and “viewed gangs today very differently from
his experiences back when he was 13 years old,” did not raise the
kinds of concerns the prosecutor had with Prospective Juror
No. 11. (See People v. Chism (2014) 58 Cal.4th 1266, 1319 [“a
party legitimately may challenge one prospective juror but not
another to whom the same particular concern applies”].) Nor did
the statement by Prospective Juror No. 11 that he could be a fair
juror require the trial court to discredit the prosecutor’s
justification. The prosecutor was legitimately concerned about
the prospective juror’s association with family members who

17
belonged to gangs, not what the prospective juror stated in voir
dire about his ability to be fair. (See People v. Bryant, supra,
40 Cal.App.5th at pp. 537-538 [“whether [the prospective juror]
was ‘affected’ by her nephew’s experience and whether she felt
she could be a fair and unbiased juror are two different things”].)

d. Prospective Juror No. 15
Prospective Juror No. 15 worked as a supervisor in the
customer service department of a car manufacturer. She was
single, “never married,” and was the mother of five children, one
of whom was in the United States Marines. The prosecutor said
he challenged this prospective juror because she “appear[ed] very
young.” In addition, the prosecutor stated: “Frankly, the fact
that she also had five kids, never been married, was something
that occurred to me.” The court stated that, in the first
Batson/Wheeler hearing, counsel for Mata had described this
prospective juror as “being young,” and the court had described
her as “not young but not middle aged.” The court commented
that “there are differences of opinion in terms of how young or
how old.” Evaluating the prosecutor’s second reason, the court
stated that Prospective Juror No. 15’s status as an unwed mother
of five children could be viewed as “odd” or “untraditional” and
that the prosecutor’s use of the word “frankly” indicated his
“concern . . . for what others might perceive as an unconventional
lifestyle.”
Although the record does not reflect that the prosecutor
was worried about the opinion other people might have about the
nontraditional structure of Prospective Juror No. 15’s family, the
record does support the court’s assessment that the prosecutor
viewed the prospective juror’s status as a single parent of five
children as undesirable. Thus, in all essential respects, the trial
court credited the prosecutor’s unease with Prospective Juror

18
No. 15 by stating that the court had “no concerns as to the
veracity of the prosecution’s explanation.”
Mata argues the trial court’s observation that Prospective
Juror No. 15 was “not young but not middle age” “directly
contradict[ed] the prosecution’s proffered explanation.” It did
not. The court did not disbelieve the age factor, but simply
acknowledged that youthful appearance was not something the
court could verify in the case of this prospective juror because her
age was a matter of opinion. Contrary to Mata’s argument, the
record actually supports the court’s finding that Prospective
Juror No. 15 had a youthful appearance. Counsel for Mata
described her as “younger” and confirmed at the conclusion of
voir dire his view that she “fit [into] the category of younger
Hispanics.”7
Citing Gutierrez, supra, 2 Cal.5th at page 1172, Mata
argues the trial court should have questioned the prosecutor
about his concern with Prospective Juror No. 15’s marital status
because “the objection [was] not obvious.” In Gutierrez the
Supreme Court cautioned that, “when it is not self-evident why
an advocate would harbor a concern, the question of whether a
neutral explanation is genuine and made in good faith becomes
more pressing.” (Id. at p. 1171.) However, the Supreme Court in
Gutierrez also recognized that “a peremptory challenge may be
based on a broad range of factors indicative of juror partiality,
even those which are ‘“apparently trivial”’ or ‘“highly
speculative.”’” (Ibid.; see People v. O’Malley (2016) 62 Cal.4th

7 Mata’s assertion that the prosecutor “stated that
Prospective Juror No. 15 ‘appeared to be in her 50’s’” is incorrect.
The prosecutor was referring to Prospective Juror No. 9 when he
observed the woman “who appeared to be in her 50’s . . . worked
for the City Attorney’s Office.”

19
944, 982 [“‘“‘[H]unches[,]’ and even ‘arbitrary’ exclusion is
permissible, so long as the reasons are not based on
impermissible group bias.”’”].)
While the prosecutor could have better explained (or the
trial court could have asked him) why Prospective Juror No. 15’s
unmarried status, coupled with having five children, motivated
him to exercise a peremptory challenge, the absence of a more
detailed record does not mean the court failed to conduct a
sufficient inquiry. The trial court listened to the prosecutor’s
explanation, observed his demeanor, stated the prosecutor
prefaced his explanation with the word “frankly,” and concluded
the comment evidenced a legitimate concern with having a juror
who has led an “unconventional” life. It was not unreasonable for
the trial court to decide that a challenge based on marital status
did not require additional explanation. (See People v. Trinh
(2014) 59 Cal.4th 216, 242 [trial court did not err in ruling that
the prosecutor’s reason for challenging a prospective juror, “who
was 45 and single and had never been married or had children,”
was “bona fide”]; United States v. Omoruyi (9th Cir. 1993) 7 F.3d
880, 881 [“[p]eremptory challenges based on marital status do not
violate Batson”].)8
Because the prosecutor’s reasons were plausible and
supported by the record, the trial court’s inquiry was adequate.
(See People v. Miles, supra, 9 Cal.5th at pp. 540-541 [“the trial
court could have done more to make a fuller record,” but because
“the record show[ed] that the court considered the prosecutor’s
reasons,” and “those reasons were plausible and supported by the

8 Code of Civil Procedure section 231.7, subdivision (e)(5),
provides that “[h]aving a child outside of marriage” is also a
presumptively invalid reason for a peremptory challenge. Again,
this new law does not apply to Mata’s trial.

20
record,” “the trial court’s findings [were] entitled to deference”];
People v. Hamilton (2009) 45 Cal.4th 863, 907-908 [trial court
conducted a “sincere and reasoned evaluation” where the court
“listened to the arguments and weighed the facts known about” a
challenged prospective juror who “was a young, single mother”
against “the prosecutor’s desires to have a mature jury, and
decided that, although it was a close call, the prosecutor’s reasons
were legitimate”].) Therefore, we defer to the court’s credibility
findings. (People v. Smith, supra, 4 Cal.5th at p. 1158; see, e.g.,
People v. O’Malley, supra, 62 Cal.4th at p. 982 [“[w]hile certainly
‘idiosyncratic’ and even ‘arbitrary’ [citation], the prosecutor’s
mention of his aversion to having an amateur magician on his
jury does not establish that he acted with discriminatory intent,
particularly in light of his other, concededly legitimate, reasons
for exercising the challenge”].)

4. A Comparative Juror Analysis Does Not
Suggest Pretext
“‘“[C]omparative juror analysis is but one form of
circumstantial evidence that is relevant, but not necessarily
dispositive, on the issue of intentional discrimination.”’
[Citation.] Comparative juror analysis is appropriately confined
to the jurors defendant has specifically discussed in his appellate
briefing. [Citation.] [¶] ‘Where . . . the comparative analysis was
not made at trial, “the prosecutor generally has not provided, and
was not asked to provide, an explanation for nonchallenges.”
[Citation.] Therefore, “an appellate court must be mindful that
an exploration of the alleged similarities at the time of trial
might have shown that the jurors in question were not really
comparable.” [Citation.] When a defendant asks for comparative
juror analysis for the first time on appeal, we have held that
“such evidence will be considered in view of the deference

21
accorded the trial court’s ultimate finding of no discriminatory
intent.”’” (People v. Miles, supra, 9 Cal.5th at p. 541; see People v.
Krebs (2019) 8 Cal.5th 265, 293 [‘“Comparative juror analysis . . .
while subject to inherent limitations, must be considered when
reviewing claims of error at Wheeler/Batson’s third stage when
the defendant relies on such evidence and the record is adequate
to permit the comparisons.’”].)
“‘“Two panelists might give a similar answer on a given
point. Yet the risk posed by one panelist might be offset by other
answers, behavior, attitudes or experiences that make one juror,
on balance, more or less desirable. These realities, and the
complexity of human nature, make a formulaic comparison of
isolated responses an exceptionally poor medium to overturn a
trial court’s factual finding.”’” (People v. Miles, supra, 9 Cal.5th
at pp. 543-544.) “‘[B]ecause the ultimate question before us
concerns the prosecutor’s motivations in exercising the challenge
in question, we must ask whether there were any material
differences among the jurors–that is, differences, other than race,
that we can reasonably infer motivated the prosecutor’s pattern
of challenges.’” (Id. at p. 544; see People v. Winbush, supra,
2 Cal.5th at p. 443 [“[p]retext is established . . . when the
compared jurors have expressed ‘a substantially similar
combination of responses,’ in all material respects, to the jurors
excused”]; People v. Henderson (2020) 46 Cal.App.5th 533, 559
[same].)
Mata asserts the trial court “ignored defense counsel’s
request to conduct a comparative juror analysis.” But trial
counsel for Mata did not directly ask the trial court to compare
Prospective Juror Nos. 7, 9, 11, or 15 to any specific seated juror.
Rather, counsel referred to “moving papers” and a “brief” that
“argued” Juror No. 5 and Juror No. 9 (again, not to be confused
with Prospective Juror No. 9) “had the same demographics” but

22
“were non-Hispanic”9 and suggested that this court in Mata I had
directed the court to conduct a comparative juror analysis.
Although our disposition in Mata I did not include such a
direction, because Mata relies on such an analysis in this appeal
we will compare the jurors he identifies with the prospective
jurors the prosecutor challenged. (See People v. Miles, supra,
9 Cal.5th at p. 541.)
Mata argues Juror No. 5 and Prospective Juror No. 7
“appear to be of similar age and station in life.” But Juror No. 5,
who was single, lived with her parents, and was studying “to get
into nursing school,” was not “‘materially similar’” (People v.
Hardy, supra, 5 Cal.5th at p. 77) to Prospective Juror No. 7.
Although the prosecutor agreed Juror No. 5 appeared young,
Juror No. 5 did not take six years to obtain her degree, an aspect
about Prospective Juror No. 7 the prosecutor felt was “weird” and
caused him concern. (See People v. Armstrong (2019) 6 Cal.5th
735, 784 [“[o]verlap on one concern will seldom be sufficient” to
establish pretext].) Mata also argues Juror No. 5 appeared
“younger than Prospective Juror No. 11” and suggests Juror
No. 5 lacked life experience compared to Prospective Juror
No. 15. There is no evidence, however, Juror No. 5 appeared
younger than Prospective Juror No. 11. And Juror No. 5 did not
have any family members who were affiliated with gangs (the
second basis for the prosecutor’s peremptory challenge against
Prospective Juror No. 11), nor was she a single parent of five
children (the second basis for the peremptory challenge against
Prospective Juror No. 15). Thus, Juror No. 5 was not materially

9 As noted, it appears counsel for Mata may have been
referring to the appellate brief filed in Mata I, and not to any
brief or motion he filed in the trial court requesting a
comparative juror analysis.

23
similar to either Prospective Juror No. 11 or Prospective Juror
No. 15. (See People v. Krebs, supra, 8 Cal.5th at p. 294
[‘‘‘Advocates do not evaluate panelists based on a single answer.
Likewise, reviewing courts should not do so.’”]; People v. Bryant,
supra, 40 Cal.App.5th at pp. 540-541 [although the compared
juror shared one trait with the challenged prospective juror, the
defendants “did not show any of her other responses were like
[the challenged prospective juror’s]”].)
There were also material differences between Juror No. 9,
who was “married with a baby,” and Prospective Juror Nos. 11
and 15. First, there is no evidence Juror No. 9 appeared young, a
trait that both the prosecutor and counsel for Mata agreed
Prospective Juror Nos. 11 and 15 possessed. That Juror No. 9
was married with a baby does not necessarily mean she appeared
as youthful as Prospective Juror Nos. 11 and 15. Second, Juror
No. 9 did not regularly associate with family members who were
involved with gangs (as Prospective Juror No. 11 did) and was
not an unwed mother of multiple children (in contrast to
Prospective Juror No. 15). (See People v. Armstrong, supra,
6 Cal.5th at p. 780.) Third, Juror No. 9 had a cousin in law
enforcement, a factor that may have made her appealing to the
prosecutor. (See People v. Miles, supra, 9 Cal.5th at p. 543 [“we
need not turn a blind eye to reasons the record discloses for not
challenging other jurors” because “‘“the risk posed by one panelist
might be offset by other answers, behavior, attitudes or
experiences that make one juror, on balance, more or less
desirable”’”].)
Comparing Juror No. 7 (again, not Prospective Juror No. 7)
to Prospective Juror No. 9 or No. 11 does not show the prosecutor
based his peremptory challenges on the prospective jurors’
ethnicity. Juror No. 7 was married with three adult children,
sold cars, and had several cousins who were police officers. Even

24
though Juror No. 7 said that, as an African American man in Los
Angeles he was “harassed by the police,” the prosecutor stated
that this juror’s current attitude about gangs convinced the
prosecutor that he would be a good juror. As the prosecutor
explained, “I’m not just looking at the words the jurors say, but
also their overall life experience and what they bring in totality
to the jury box.” The prosecutor’s acceptance of Juror No. 7 does
not show his concern about Prospective Juror No. 9’s negative
experience with law enforcement was a pretext for
discrimination. Nor does it show the prosecutor’s concern about
Prospective Juror No. 11’s youth and monthly visits with family
members associated with gangs was a pretext for a
discriminatory challenge against him.10 (See People v.
Armstrong, supra, 6 Cal.5th at p. 785 [“Prospective jurors must
be evaluated as individuals . . . . What matters is the full range
of responses and whether, because of widespread similarities
aside from race or gender, a reasonable comparison casts doubt
on the honesty of the neutral reasons offered.”].)
Finally, Mata asserts Juror Nos. 1 and 12 had “more
frequent and direct contacts with gang members” than did
Prospective Juror No. 11, that Juror No. 8 had a “more serious
negative experience” with law enforcement than did Prospective
Juror No. 9, and that Juror No. 2 also had an adult child in the
military like Prospective Juror No. 15. Comparing Juror Nos. 1,
2, and 8 with the prospective jurors the prosecutor challenged is
not probative because the trial court found these jurors appeared

10 Juror No. 7’s long-ago experience with gangs is materially
different from Prospective Juror No. 11’s gang experience, which
consisted of current social gatherings with family members who
were gang members.

25
to be Hispanic.11 (See People v. Hardy, supra, 5 Cal.5th at p. 77
[a comparative juror analysis allows “‘a defendant . . . [to]
compare the responses of the challenged jurors with those of
similar unchallenged jurors who were not members of the
challenged jurors’ racial group’”].) And comparing Juror No. 12
with Prospective Juror No. 11 does not help Mata because Juror
No. 12 was retired and was not the kind of “young” prospective
juror the prosecutor was seeking to avoid. (See People v.
O’Malley, supra, 62 Cal.4th at p. 980 [“the differences between
[the prospective juror] and the other jurors were significant,”
which undermined the “defendant’s assertion that the
prosecutor’s stated reasons for excusing [the prospective juror]
were merely pretextual”]; People v. Smith (2019) 32 Cal.App.5th
860, 879-880 [because “[n]one of [the] jurors [the defendant used
as a basis of comparison] had any other serious disqualifying
issue,” the jurors “were not similarly situated” with the
challenged prospective juror].)

B. The Trial Court Did Not Err in Reinstating the
Judgment
Mata contends that under Senate Bill No. 1391, which
became effective January 1, 2019 and “eliminated district
attorneys’ ability to request transfer hearing[s] for 14 and 15 year
olds” (B.M. v. Superior Court (2019) 40 Cal.App.5th 742, 753,
review granted Jan. 2, 2020, S259030), his 1997 felony conviction
“does not qualify as a strike, and the trial court lacked the
authority to sentence him as a second striker.” Mata contends
that, for the same reason, his 1997 felony conviction no longer

11 At the end of jury selection, the trial court found that, of
the seated jurors, Nos. 1, 2, 3, 4, 8, and 11 had “physical features
of a Hispanic” or a “Hispanic surname.”

26
qualifies as a serious felony under section 667, subdivision (a).
We rejected a virtually identical argument in Mata III, supra,
B294526, holding that Senate Bill No. 1391 applies only to cases
that are not final and that Mata’s 1997 conviction was final long
ago.12
The Supreme Court’s recent decision in People v. McKenzie
(2020) 9 Cal.5th 40 (McKenzie), cited by Mata in his reply brief,
does not suggest a different conclusion. In McKenzie the trial
court placed the defendant on probation after he pleaded guilty to
various drug-related offenses and admitted four prior drug-
related felony convictions for purposes of a sentence enhancement
under Health and Safety Code, former section 11370.2,
subdivision (c). (McKenzie, at p. 43.) After the defendant
violated the terms of his probation, the trial court revoked
probation and imposed the prison sentence that included the
prior drug conviction enhancements. (Ibid.) While the
defendant’s appeal was pending, the Legislature enacted Senate
Bill No. 180, which amended Health and Safety Code section
11370.2 so that the defendant’s prior drug convictions no longer
qualified as enhancements. (McKenzie, at p. 43.) The Supreme
Court held the ameliorative legislative changes applied to the
defendant’s sentence because “the prosecution had not been
‘reduced to final judgment at the time’ the revisions took effect.”
(Id. at p. 45; see People v. Millan (2018) 20 Cal.App.5th 450,
454-455.)

12 Mata acknowledges this argument “repeats in large part a
claim” he made in Mata III.

27
 Unlike the statute involved in McKenzie, which specifically
addressed the use of prior convictions for increased punishment,13
Senate Bill No. 1391 says nothing about using a defendant’s prior
conviction for sentencing purposes. (See Mata III, supra,
B294526.) In addition, while the legislative history of Senate Bill
No. 180 included discussion of the problem of sentence
enhancements for prior drug convictions (see McKenzie, supra,
9 Cal.5th at p. 51), there is no indication the Legislature, in
enacting Senate Bill No. 1391, was concerned with prior felony
convictions.

C. One Last Remand Is Appropriate for the Trial Court
To Exercise Its Discretion Whether To Strike the
Enhancement Under Section 667, Subdivision (a)
Mata asks us to remand the case and direct the trial court
“to exercise its discretion whether to strike the five-year
enhancement [under section 667, subdivision (a)], which was
mandatory when imposed.” On January 1, 2019, three weeks
after the trial court reinstated the judgment in this case, the law
changed to allow courts to exercise discretion to dismiss a five-
year enhancement for a prior serious felony conviction under
section 667, subdivision (a), in furtherance of justice. (See
Stats. 2018, ch. 1013 § 2 (Senate Bill No. 1393); People v. Stamps

13 Senate Bill No. 180 stated: “Existing law imposes on a
person convicted of a violation of . . . specified crimes relating to
controlled substances a sentence enhancement . . . for each prior
conviction of . . . specified controlled substances crimes . . . . [¶]
This bill would . . . limit the above sentence enhancement to only
be based on each prior conviction of . . . the crime of using a
minor in the commission of offenses involving specified controlled
substances.” (Legis. Counsel’s Dig., Sen. Bill No. 180 (2017-2018
Reg. Sess.).)

28
(2020) 9 Cal.5th 685, 693.) The People concede that the new law
applies retroactively to Mata, but argue that “remand is
unwarranted because the [court] already declined to strike the
section 667, subdivision (a), enhancement following the retrial of
the murder count.” The People assert that “the record clearly
indicate[s] that the [court] would not have dismissed the
enhancement even if it had the power to do so.”
We agree with Mata’s argument and the People’s
concession that Senate Bill No. 1393 applies to Mata because his
judgment is not yet final. (See People v. Stamps, supra, 9 Cal.5th
at p. 699.) But we do not agree with the People that the record in
this case clearly indicates the court would not have dismissed the
five-year enhancement even if the court had the discretion to do
so. “‘“[W]hen the record shows that the trial court proceeded with
sentencing on the . . . assumption it lacked discretion, remand is
necessary so that the trial court may have the opportunity to
exercise its sentencing discretion at a new sentencing hearing.”’
[Citation.] Remand is not required, however, if ‘the record shows
that the trial court clearly indicated when it originally sentenced
the defendant that it would not in any event have stricken [the
previously mandatory] enhancement.’’’ (People v. Henderson,
supra, 46 Cal.App.5th at pp. 561-562; see People v. Franks (2019)
35 Cal.App.5th 883, 892.) “[W]e review the trial court’s
statements and sentencing decisions to infer what its intent
would have been.” (People v. Jones (2019) 32 Cal.App.5th 267,
273.)
Here, the trial court did impose the maximum terms on
each of Mata’s convictions in this case, as it did in Mata III, but
the court did not make any comments clearly indicating it
intended to sentence Mata to prison for as long as possible. The
trial court did decline to strike the five-year enhancement in
Mata’s other case, based in part on the manner in which Mata

29
murdered the victim in that case. (Mata III, supra, B294526.)
The facts in this case, however, are very different, and the record
does not affirmatively show the court would similarly decline to
strike the five-year enhancement. (Cf. People v. Franks, supra,
35 Cal.App.5th at p. 893 [record affirmatively showed the trial
court would not have exercised its discretion to strike a prior
serious felony enhancement when it said, “‘I will not exercise my
discretion, which I might have, to strike the punishment of either
the strike prior or the 667(a) five-year prior that is to be
imposed in this case’”]; People v. Jones, supra, 32 Cal.App.5th at
pp. 273-274 [trial court’s expression of its “‘great satisfaction in
imposing the very lengthy sentence’” and its sentencing choices
indicated “there is no possibility the trial court would strike the
enhancement were [the court] to remand”].)

30
 DISPOSITION

The judgment of conviction is affirmed. The matter is
remanded for the exclusive purpose of allowing the trial court to
exercise its discretion whether to dismiss the five-year
enhancement under section 667, subdivision (a).

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.

31