Filed 2/16/21 P. v. Mata CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHNNY MATA,

Defendant and Appellant.

 B301044

 (Los Angeles County

 Super. Ct. No. KA101342)

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.
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 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 fiveyear 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.
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 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. 
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, 

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.
5

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.” 
6

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 
7

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 
8

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 
9

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 
10

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 
11

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 
12

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 
13

[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 
14

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 
15

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 exhusband 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.
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.” The prosecutor’s concern with a 

prospective juror who indicated she might view the evidence 

through the lens of television police shows, however, was selfevident 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
17

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 raceneutral 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 
18

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 
19

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.” 
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 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.
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 

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 
22

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 
23

“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. 
24

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 
25

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.
26

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.” 
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 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 drugrelated 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. 
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 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 fiveyear 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.).)
29

(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 
30

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”].)
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.