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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

J OHNNY MATA

,
Defendant and Appellant. B 301044

(Los Angeles County Super. Ct. No. KA101342 )

APPEAL from a judgment of the Superior Court of Los Ange les 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

.2 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 denyin g 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 w e 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 / Wheel e r analysis. On remand

t he trial court ruled Mata failed to demonstrate the prosecutor exercised any peremptory challenges in a discriminatory manner. Mata appeal ed again . He argues t he 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, §§ 6 67, sub ds. (b)

- (i), 1170.12, subd s. (a)

- (d) ) 1 or to impose a five

- year enhancement for a prior serious felony
conviction under section 667, subdivision (a)

. Finally, M ata 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 exe rcise its discretion whether to strike it

. We agree with the last argument, and otherwise affirm.

1 Undesignated s tatutory references are to the Penal Code.3 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 o f 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 unde r 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 firea rm 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 cou rt reimposed Mata’s original sentence, Mata appealed, and we affirmed. ( People v. Mata (Dec. 21, 2020

, B2 94526) [n on pub. opn .] ( Mata I I I ).) This appeal is Mata IV

.

3 Mata committed the attempted murder on October 23, 1996, when he was 15 years old. T he juvenile court found him unfit to remain in the juvenile court system and transferred his case to adult court, where he was convicted.4

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,
d uring voir dire, c ounsel for Mata argued the prosecutor impermissibly challenged Prospective Juror Nos

. 7, 11, and 15
because the y were “younger Hispanics

. ” The court found these three challenges, along with a peremptory challenge the prosecutor had previously exercise d 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 reaso ns for
ch allenging 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.”
T his court held in Mata I the trial court erred in fail ing to
elici t the prosecutor ’s reasons for ch allenging 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
t he 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 th ey in this appeal.5 On remand t he court summarized its understanding of this
court’s directions in Mata I : “ T o 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. Wi th out 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 t he prosecutor allowed Juror No. 5 and Juror No. 9 (not to be
confu sed with Prosp ective 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 des cribed 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 h ad 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 b rief 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.”6

message to the former prospective juror to contact the cou rt. 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 W hite.” Cou nsel 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 cour t excused Prospective Juror No. 7 and thanked him for coming in, counsel for Mata asked whet her 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 prosp ective juror to testify at the proceeding and that , had counsel known the court was going to do that, he would have as ked 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 argumen t” about whether Prospective Juror
No. 11 and Prospec tive Juror No. 15 were Hispanic, and “it would be in everyone’s interes t 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 / Wheele r hearing , it intended to include all
four challenged prospective jurors in its analysis

. Before doing so, the court stated that

, “ i f given the second opportunity,” the

court “would have modified

. . . [ its ] prima facie finding ” with

re spect to Prospectiv e Juror Nos. 7 and 9

. The court stated :

“ H aving made the prima facie finding, I will move on to7

addressing the second and third [steps].” Assessing the prosecutor’s stated reasons for challenging each of the four prospective jurors , t he 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 ap pealed.

DISCUSSION

A. The Trial Court Did Not Prejudicially Err i n 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 per emptory challenge for any permiss ible 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), th e 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 likely8

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 se nse 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 ’ s9

determination regarding the sufficiency of a prosecutor ’ s justifications for exercising peremptory cha llenges ‘“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 cour t 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 conte nds “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 u nilaterally 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 the10

jurisdict ion of the court to which the matter is returned’”] ; Ayyad v. Sprint Spectrum

, L.P . (2012) 210 Cal.App.4th 851, 860 [“i f 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.) T he trial court
stated that it had found Mata made a prima facie showing and
that the court would proceed to the re maining steps of the
Batson / Wheeler analysis. T he 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 consider ation of [Prospective Juror No. 7’s] appearance and [ethnic ide ntity].” 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
knowl edge that Prospe ctive Juror No. 7 was not , in fact, Hispanic

. The record does not support Mata’s assertion the “trial
court’s alternative step

- one findings taint ed 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 Ex e mplary, 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 fai lure to question the prosecutor or “to evaluate or to make a credibility finding

. ” Although the trial11

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 sufficien tly “ ‘sincere and reasoned attempt ’ ” ( Gutierrez

, supra , 2 Cal.5th at p. 115 9 ) 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 appro priate” 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 stepmothe r. 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.” O n remand t he
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 foun d the prosecutor’s justification for ch allenging Prospective Juror No. 7 was credible and genuine

. Substantial evidence support ed the court’s credibility finding. Prospective Juror No. 7 stated he was in his sixth year12

of college , and counsel for Mata corroborated the youthful

appe arance of Prospective Juror No. 7 when he described th e prospective juror (along with Prospective Juror Nos. 11 and 15 ) as “young er Hispanics ” in their “20’s to early 30’s.” T he court similarly found at the first Batson / Wheel er hearing that
P rospective J uror No. 7 “appeared young.” The court did not err in accepting the prosecutor’s reason s 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 “ t he 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 th e challenge was improperly
motivated

. ” ’” ( Gutierrez

, supra , 2 Cal.5th at p. 1158 ; s ee 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, doe s not leave one to believe that the excusal of this juror was for discriminatory purposes

. ” The court summarized its experience presiding in the E ast D istrict of the Los Angeles County Superior Court for over 32 years and commented on the
“dramatic increa se over those years of Hispanics in the E ast
D istrict” and “a substantial increase of [Hispanic] jurors.” The

court stated , “When you have a trial where all civilian witnesses13

[and] victims are Hispanic, it makes very little sense to exclude jurors because of that ethnicity.” Contrary to Mata’s suggestion

, however, this commentary w as not an effort by the court to supply a r eason “the prosecution had not proffered” to deny
Mata’s Batson / Wheeler motion . Rather, in context, it w as 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

. Bu t because the prosecutor’s

reason s for challenging P rospective Juror No. 7 w ere 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 ma ke more detailed findings. (S ee 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

- husban d ” an d expressed “doubts” about younger police officers ; (2) she “might14

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 check ing
the m against the court’s recollection of the responses Prospective
Juror No. 9 gave during voir dir e

. 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. T h e court found the prosecutor’s

reasons were credible : “The reasons given today ar e not belated or fabricated but ones that are supported by the record.” Substantial evidence support ed the court’s finding. During jury selection, Prospective Juror No. 9 describe d a negative experience she had with law enforcement, criticized younger

p olice officers, admitt ed 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 ex cusal.’”]; 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 J anuary 1, 2022, provides that “[e]xpressing a distrust of or having a negative experience with law enforcement or the criminal legal system” is15

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 . . . e thnic , 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

. T he 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 t he prosecutor’s characteri zation of Prospective Juror
No. 9’s prior experience with law enforcement as negativ e : R eferring to her ex

- husband’s allegedly wrongful arrest, the prospective juror stated she “ didn’t think that [was] right

. ”
N othing in the rec ord 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 juro r’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 i n the case.” The new law does not apply to Mata’s trial, which occurred in 2015

.16

(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.” T he prosecutor ’s concern with a prospective juror who indicate d 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 expl ication”]

. ) The prosecutor’s desire to
select jurors with sufficient life experience to inform their judgment was not inconsistent with h is 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 cor roborated” and failing to “ subject any other proffered justification for scrutiny .”
The record contradicts this characterization. T he 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. 1117 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 stat ed 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 mem ber 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 justi fications credible: “The court

. . . finds a race

neutral reason for the exercise of that peremptory and that it was without any racial consideration.” Substantial evidence
support ed 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 a cceptance of Juror No. 7, an African American man who had been involved with gangs,
demonstrated the c halleng e against Prospective Juror No. 11 “was based on Hispanic ethnicity.” The prosecutor, however, gave a plausible explanation for why Juro r No. 7, who was “in his mid to late 50’s” and “viewed gangs today very differently from
his experiences back wh en he was 13 years old

, ” did not raise the kinds of concerns the prosecutor had with P rospective 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 pa rticular 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 . T he prosecutor was legitimately concerned about
the prospective juror ’s asso cia t ion with family members who18

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 w orked as a supervisor in the customer service department of a car manufacturer

. S he 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 : “Frank ly, 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 th is 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” indicate d his “concern . . . for what others might perceive as an unconventional lifestyle

. ” Although the record does not reflect that the prosecutor

was w orried about the opinion other peopl e might have about the

non traditional structure of Prospective Juror No. 15’s family

, the record does support the court’s assessment that the prosecutor viewed the prospective j uror’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 Juror19

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 observa tion 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 dis believe 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
Juro r 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 p age 1172, Mata argues the trial court should have questioned the prosecutor
about his con cern with Prospective Juror No. 15’s marital status because “the objection [was] not obvious.” In Gutierrez th e 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
G utierrez 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 .; s ee 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 N o. 9 when he observed the woman “who appeared to be in her 50’s

. . . worked for the City Attorney’s Office.”20

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 Prosp ective 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. T he trial court listened to the prosecutor’s explanation, observed his demeanor, stated the prosecutor prefaced his explanation with the word “frankly

, ” and concluded
th e comment evidenced a legitimate concern with having a juro r who has led an “unconventio nal” life

. It was not unreasonable for
the trial court to decide that a challenge based on marital status did not require additional explanation. ( S ee People v. Trinh (2014) 59 Cal.4th 216, 242 [trial court did not err in ruling that the prosecutor’s rea son 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 sec tion 231.7, subdivision (e)(5)

, provides that “[h]aving a child outside of marriage” is also a presumptively invali d reason for a peremptory challenge. Again, this new law does not apply to Mata’s trial.21

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 finding s. ( People v. Smith

, supra , 4 Cal.5th at p. 1158 ; s ee , 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 dispos itive, 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 a nalysis wa s 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 tri al might have shown that the jurors in question were not really

com parable.” [Citation.] When a defendant asks for comparative juror analysis for the first tim e on appeal, we have held that

“ such evidence will be considered in view of the deference22

accor ded 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 s imilar 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 f ormulaic 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 i n 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) 4 6 Cal.App. 5th 533, 559 [same] .)
Mata asserts t he 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 refer red to “moving papers” and a “brief” that “argued” Juror No. 5 and J uror No. 9 ( again, not to be conf used with Prospective Juror No. 9) “had the same demographics” but23

“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 Ma ta I did not include such a direction, bec ause Mata relies on such an analysis in this appeal

we will compare the juror s h e 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 P rospective Juror N o. 7

. Although the prosecutor agreed Juror No. 5 appeared young

, Juror No. 5 did not take six years to obtain her degree

, a n aspect
about Prospective Juror No. 7 the prosecutor felt was “weird” and
caused him concern

. (S ee People v. Armstrong (2019) 6 Ca l. 5th 735, 784 [“ [o] verlap on one concern will seldom be sufficient” to establish pretext ] .) Mata also argues Juror No. 5 appear ed

“ 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

you nger 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 challen ge against Prospective Juror No. 11) , nor was she a single parent of five children (the second basis for the peremptory challeng e 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.24

similar to either Prospective Juror No. 11 or Prospec tive 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 [ al though 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 No s

. 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 J uror No. 9
was married wit h a baby does not necessarily mean she appeared

as you thful 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 co ntrast 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 do es 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. E ven25

though Juror No. 7 said that, as an African American man in Los Ang e les he was “ harassed by the police

, ” the prosecutor stated
that this juro r’ 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 prose cutor’s acceptance of Juror No. 7 does
not show h is concern about Prospective Juror No. 9’s negative experience with law enforcement w as a pretext for
discrimination

. Nor does it show the prosecutor’s concern about
P rospective Juror No. 11’s yout h and monthly visits with family
members a ssociated with gangs w as 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” tha n 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.26

to be Hispanic. 11 (See People v. Hardy

, supra , 5 Cal.5 th at p. 7 7 [ 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 c omparing Juror No. 12 with Prospec tive 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 [ b ecause “ [ 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.”27

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 appl ies 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 Legislatu re 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 enhancement s . ( 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,

45 4

- 455 .)

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

.28 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 legisla tive 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
T o Exercise Its Discretion Whether T o 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 d ismiss a five

year enhancement for a prior serious felony convi ction under section 667, subdivisio n (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 substance s 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.).)29

(2020) 9 Cal. 5th 685, 693.) The People concede that the new law applies retroactively to Mata, but argue that “remand is
unwarranted be c ause the [court] already declined to stri ke the section 667, subdivision (a), enhancement following the ret ri al of the murder count.” The People assert that “t he rec ord 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 fin al

. ( 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 indicate s 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 th e . . . assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discreti on at a new sentencing hearing. ” ’ [Ci tation.] 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 26 7, 273.) Here, t he 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 f or 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 Mata30

murdered the victim in that case. ( Mata III

, supra , B294526.)
Th e facts in this case, however, are very different, and t he 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 exercise d 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 C al.App.5th at

pp. 273

- 274 [t rial court’s expression of its “ ‘ great satisfaction in imposing the very lengthy sentence’ ” and its sentencing choices
indicate d “there is no possibility the trial court would strike the enhancement were [the court] to remand”]

. )31 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.