People v. Mata

THE PEOPLE, Plaintiff and Respondent, v. JOHNNY MATA, Defendant and Appellant.

B277734

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

January 2, 2019

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert M. Martinez, Judge. Affirmed and remanded.

Mary Jo Strnad, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, David E. Madeo and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

____________________ A jury found Johnny Mata guilty of murdering a rival gang member and possessing a firearm as a felon. The trial court sentenced Mata to 86 years to life in prison, a sentence that included an enhancement for personally and intentionally discharging a firearm in committing the murder and an enhancement for having a prior serious felony conviction.

Mata argues his attorney provided ineffective assistance. We conclude otherwise and affirm his conviction, but we remand the case for the trial court to exercise its discretion under recent amendments to the Penal Code whether to strike the firearm enhancement and the prior serious felony conviction enhancement.

FACTUAL AND PROCEDURAL HISTORY

A. The Shooting

Shortly before midnight on December 23, 2010 David Deanda, Iliana Ortiz, Gabriel Chavez, and Louie Fraijo attended a party with approximately 20 people at a house in Baldwin Park. Ortiz stayed at the party for a while, drinking shots of tequila. When she decided to leave, Deanda walked her out.

After Ortiz and Deanda went outside, a person walking on the street approached the house, and Deanda asked, "Where you from?" The person said, "Flores." Deanda said he was "Little Loco from East Side Bolen" and "Fuck Flores." As soon as Deanda identified himself, the person "started shooting." Deanda ducked to the floor, but when he saw Ortiz was still standing, "frozen," he stood up again to push her to the floor. When Deanda stood up, the bullets hit him. Ortiz saw blood "all over" and screamed for someone to call 911. After firing multiple shots, the shooter "jumped in the car and took off." Deanda died from five gunshot wounds. The police recovered 12 casings at the scene.

B. The Investigation

Detective Richard Lopez conducted the investigation of Deanda's murder. Detective Lopez interviewed Ortiz, who gave a description of the shooter and worked with a sketch artist to produce a drawing. Detective Lopez also interviewed Chavez, who was "right behind" Deanda as Deanda walked out of the house on the night of the shooting. Neither Ortiz nor Chavez could identify the shooter from photographic line ups. The murder was unsolved for a year and a half.

In June 2012 Christina Montenegro, one of Mata's former girlfriends, contacted the police with information about the murder. Detective Lopez interviewed Montenegro and learned from her that Mata was the shooter and that Jesus Lule was the driver of the getaway car. Detective Lopez interviewed Lule, who corroborated the information from Montenegro.

C. The Charges and the First Trial

The People charged Mata with first degree murder (Pen. Code, § 187, subd. (a)),¹ and possession of a firearm by a felon (§ 12021, subd. (a)(1), now § 29800, subd. (a)(1)). The People alleged Mata committed the murder for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members, within the meaning of section 186.22, subdivision (b), and that Mata personally and intentionally discharged a firearm causing great bodily injury or death, within the meaning of section 12022.53, subdivision (d). The People also alleged as to both counts that Mata had a prior conviction for a felony that was a serious felony within the meaning of section 667, subdivision (a)(1), and a serious or violent felony within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12) and that for this conviction Mata served a prison term within the meaning of section 667.5, subdivision (b).

At the time the People filed the charges in connection with the 2010 murder of Deanda, Mata was awaiting trial in another case on a charge of attempted murder of Montenegro's previous boyfriend, Timmy Saldana, arising out of an unrelated incident in 2012. The trial court granted the People's motion to consolidate the two cases. In 2015 a jury found Mata guilty of the attempted murder of Saldana,² but could not reach a verdict on the murder of Deanda, hanging seven to five for acquittal. The trial court declared a mistrial on the murder charge and reset the case for a retrial.

D. The Retrial

At the retrial on the murder charge, the People presented the testimony of a gang expert, Detective Ralph Batres, who explained that El Monte Flores was a criminal street gang claiming the City of El Monte as its territory. Detective Batres also explained that East Side Bolen was a rival street gang claiming the City of Baldwin Park as its territory. Detective Batres testified that photographs of Mata showed he had tattoos symbolizing his allegiance to the El Monte Flores gang, including the letters "EMF" in several places on Mata's body and the words "EM Flores" on his chest.

Christina Montenegro testified she grew up in Baldwin Park and began dating Mata in September 2011. Sometime in 2012 Montenegro heard Jesus Lule, whom she met through Mata, claim that he and Mata had shot someone. Montenegro asked Mata about the shooting, and Mata recounted the details. Mata told Montenegro that he shot Deanda, also known as "Little Loco," on Francisquito Street, that Lule drove the getaway car, that prior to the shooting they saw some people from East Side Bolen on the street, and that Mata said he wanted to "get that fool" because of an "incident" involving Deanda and Mata's brother. Mata told Montenegro that Deanda "had juice" and that "whoever killed somebody with juice, . . . would be a bad mother fucker." Mata told Montenegro that Mata got out of the car after Lule parked in front of a church and that Deanda "hit him up first" by asking Mata where he was from. Mata told Montenegro that he replied "Flores" and shot Deanda. Mata said he heard a girl screaming as he ran back to the car, and Lule drove him away.

Jesus Lule testified that on the night of December 23, 2010 he attended a Christmas party with his girlfriend Sara Boles where saw Mata. Sometime after midnight, in the early hours of December 24, 2010, Lule and Mata left the Christmas party to buy some beer. Lule testified that, before Mata got into his car, a blue Honda Accord, Mata put on a black hooded sweater. Mata told Lule to drive across town to Francisquito Street. Mata directed Lule to drive up and down the street and then stop near a church. When Lule stopped the car, Mata got out and walked toward the church, and Lule lost sight of him. Lule heard "a lot of" gunshots and saw Mata running into the street. When Mata got into the car, Lule saw Mata had a gun.

Ortiz testified she saw the person who shot Deanda. She described the shooter as "slim" and "tall" with a "distinctive jaw" and a "bald" or "shaved head." Ortiz said the shooter had "pronounced cheekbones" and "didn't look stocky." The prosecutor introduced into evidence a sketch of the shooter based on Ortiz's description.

Chavez denied making any statements about what he had witnessed in the shooting. To impeach Chavez, the prosecutor introduced an audio recording and a transcript of Chavez's interview with Detective Lopez. In that interview, Chavez stated that prior to shooting the shooter said "EMF" and "Flores." Chavez described the shooter as a six foot tall "real stocky dude," "light-skinned," with "a big head" that was "balding." Chavez stated that the site of the shooting was a house where members of East Side Bolen congregated. Chavez described the incident: "This fool walked up . . . we . . . banged on him, he said his hood, we said it's our hood. We said fuck his hood and then [he] pulled out quick and done and dumped and left." When Detective Lopez showed Chavez a photographic line up of suspects that included a photo of Mata, Chavez circled a photograph of someone else.

Fraijo also denied making any statements about the shooting. To impeach Fraijo, the prosecutor introduced an audio recording and transcript of Detective Lopez's interview of Fraijo. In the interview, Fraijo stated Chavez told him the shooter was a "tall," "light-complected guy" who was "wearing a t-shirt." The shooter did not have facial hair or tattoos. Fraijo stated Chavez told him the shooter said "Flores," Deanda said, "Fuck Flores," and the shooter started shooting.

Ernest Olagues, Deanda's cousin, testified that, early in the morning on December 24, 2010, he parked his car in front of the house on Francisquito Street to get some rest. Olagues heard another car park in front of him. He heard someone get out of the car in front of the driveway and walk up the driveway. Olagues then heard gunfire from the front of the house. Olagues saw a "tall and slender" person wearing a black hoodie and baseball cap run down the sidewalk with a gun in his right hand. A dark Honda Accord drove next to the person along the sidewalk, and Olagues assumed the person got into the car before he saw the car "take off."

Officer Andrew Mora testified he stopped Mata in February 2011, and Mata admitted his membership in the El Monte Flores gang. Officer...