People v. Mata

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

B294526

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

December 21, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

In a prior appeal Johnny Mata, whom a jury convicted of murder and possession of a firearm by a felon, contended his trial counsel provided ineffective assistance. (People v. Mata (Jan. 2, 2019, B277734) [nonpub. opn.] (Mata II).)¹ We affirmed the convictions, but directed the trial court to exercise its discretion whether to strike a firearm enhancement under Penal Code section 12022.53, subdivision (d),² and an enhancement for a prior serious felony conviction under section 667, subdivision (a).

In this appeal Mata contends the trial court erred in denying his motion under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) to replace his appointed counsel. Mata also contends the trial court "lacked jurisdiction" to double his sentence under the three strikes law and to impose the five-year enhancement under section 667, subdivision (a), for his prior serious felony conviction. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Mata Kills a Rival Gang Member, and the People File Charges Against Him

On December 23, 2010 Mata, a member of the El Monte Flores criminal street gang, shot and killed David Deanda, a member of the rival East Side Bolen gang. In June 2012, while Mata was awaiting trial in an unrelated case for the attempted murder of another individual, Timmy Saldana, the detectives working on the Deanda shooting obtained evidence suggesting Mata killed Deanda. (Mata II, supra, B277734.)

The People charged Mata with the murder of Deanda and alleged that he committed the murder for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members, within the meaning of section 186.22, subdivision (b), and that Mata personally and intentionally discharged a firearm causing great bodily injury or death, within the meaning of section 12022.53, subdivision (d). The People also charged Mata with possession of a firearm by a felon (former § 12021, subd. (a)(1), now § 29800, subd. (a)(1)). The People also alleged that Mata had a prior serious or violent felony conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(j), 1170.12) and that he had a prior serious felony conviction within the meaning of section 667, subdivision (a)(1). The trial court consolidated the Deanda murder case with the Saldana attempted murder case. (Mata II, supra, B277734.)

B. The Jury Convicts Mata of Murder, and the Court Sentences Him

Following a trial in 2015 the jury found Mata guilty of the attempted murder of Saldana,³ but could not agree on a verdict for the murder of Deanda. The trial court declared a mistrial on the murder charge and set the case for a retrial.

Following a retrial on the murder charge, the jury found Mata guilty of the first degree murder of Deanda and of possessing a firearm as a felon. The jury also found true the gang and firearm allegations. In a bifurcated proceeding, Mata admitted that in 1997 he was convicted of attempted murder. The trial court found the conviction was for a serious or violent felony within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a serious felony within the meaning of section 667, subdivision (a). (Mata II, supra, B277734.)

The trial court sentenced Mata to a prison term of 86 years to life, consisting of 25 years to life for the first degree murder conviction, doubled under the three strikes law, plus 25 years to life for the firearm enhancement under section 12022.53, subdivision (d), five years for the enhancement under section 667, subdivision (a), and six years for the conviction for possession of a firearm by a felon. (Mata II, supra, B277734.)

C. This Court Affirms the Convictions and Directs the Trial Court To Exercise Its Discretion Whether To Strike Two Enhancements

Mata appealed, arguing his trial counsel, Antonio Bestard, provided ineffective assistance. We affirmed Mata's convictions, but vacated Mata's sentence and directed the trial court to exercise its discretion whether to strike the firearm and serious felony enhancements under recent amendments to sections 667, 1385, and 12022.53 that give the court discretion to strike those enhancements in the interest of justice. (Mata II, supra, B277734.)

D. The Trial Court Resentences Mata

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

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion in Denying Mata's Marsden Motion

Mata argues the trial court abused its discretion in denying his motion to replace Bestard "without permitting him to explain his reasons" for "his dissatisfaction with his appointed private counsel." Mata also argues the court erred in failing "to exercise its own discretion and instead deferred to this Court's ruling . . . affirming Mata's conviction against an ineffective assistance of counsel claim." The trial court, however, conducted an adequateinquiry and did not abuse its discretion in denying the motion. In addition, any error was harmless.

1. Relevant Proceedings

The trial court began the hearing on Mata's Marsden motion by asking Mata, "What can I do for you?" Mata said he wanted new counsel because "it won't make sense to have . . . Bestard defend [him] again if [he was] only appealing what happened in [his] trial." The following exchange occurred:

"The Court: What's the difficulty with Mr. Bestard?

"[Mata]: Well, like I said, the way he defended me, I don't think he did a good job.

"The Court: And then that's based on matters that you raised on appeal, is that correct?

"[Mata]: Correct.

"The Court: And the Court of Appeal disagreed with you as far as his competency. What else is the difficulty?

"[Mata]: Well, that's just it. I just don't feel that he should have represented me because it's not over. My appeal is not over. You see, there is another level to it.

"The Court: I understand that. You see, right now, we're here on a limited area . . . and that's for the court to exercise discretion as far as your priors are concerned, as far as the use allegation is concerned. That's it.

"[Mata]: Right.

"The Court: That's all we're dealing with. I am not dealing with other matters on appeal or whatever, you know. And you raised issues about whether he did a good job or whatever. And the Court of Appeal said, you know, that he acted properly. So, what are the differences?"

Mata asked the court to continue the resentencing hearing until after his "appeal" and "habeas corpus." The court deniedthe request for a continuance, and Mata asked again for "another counsel." The court told Mata he had not given "any reason" to appoint new counsel. Mata stated, "I just gave—I just told you [the] reason." The court again explained to Mata that this court held "there was no basis to find [Bestard] incompetent." The court asked Mata, "What else is there that's the conflict between you and him?"

Mata said Bestard had refused to sign an affidavit "saying that he messed up [the] trial." The court asked Mata, "How did he mess it up?" Mata said "everybody knew" he "was going to lose." The court again asked Mata, "And you raised these issues on appeal?" Mata stated, "I understand," and again complained Bestard would not honor his agreement to sign a declaration stating that he "messed up [the] trial and that things went wrong."

Bestard explained that he initially agreed to sign a declaration about the "procedural aspects or anything that would help [Mata]," but that he refused to sign it after he received a "protracted letter" from Mata's appellate counsel asking him to attest to "incorrect allegations" and admit to "things that [he] didn't do," including that he "never read the police report," "never interviewed witnesses," and "didn't investigate the case at all." Bestard said he told Mata's appellate counsel he was "very uncomfortable signing things that were not true or were not perceived to be true." Bestard summarized the obstacles he faced in presenting the evidence in the trial. Referring to the actions he took at trial that this court addressed in Mata II, Bestard stated "they were all strategic moves by me why I didn't call certain witnesses." After Bestard responded to Mata's allegations he was incompetent and had a conflict with Mata, the court asked Mata, "Anything more?" Mata replied, "That's it." The court denied the motion.

2. Applicable Law and Standard of Review

"'"'"'When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance.'"'"'"...