Opinion
B320931
10-18-2024
THE PEOPLE, Plaintiff and Respondent, v. GIOVANNI IBANEZ, Defendant and Appellant.
Brad Kaiserman, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan S. Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Christopher G. Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA146403. Connie R. Quinones, Judge. Affirmed as modified.
Brad Kaiserman, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan S. Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Christopher G. Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
VIRAMONTES, J.
Defendant and appellant Giovanni Ibanez appeals from a judgment of conviction for second degree murder.
On appeal, Ibanez argues the trial court should have excluded his confession to an undercover informant during an Illinois v. Perkins (1990) 496 U.S. 292 (Perkins) operation regarding his role in the crime, because his statements were involuntary and Ibanez invoked his right to counsel during his conversation with the informant. He also argues his conviction must be reversed based on a retroactive application of Penal Code section 1109, which requires the trial court to bifurcate gang enhancement allegations.
All further undesignated statutory citations are to the Penal Code.
Our review of the record reveals that Ibanez's statements were voluntary and that he did not unequivocally invoke his right to counsel. We also conclude that Ibanez's request to retroactively apply section 1109 is precluded by our Supreme Court's decision in People v. Burgos (2024) 16 Cal.5th 1, which held the bifurcation provision does not apply retroactively.
Ibanez also asks us to conduct an independent review of the files reviewed in camera by the trial court following the grant of his motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) and to independently review the in-camera discovery hearing pertaining to his motion to traverse or quash the arrest warrant. Our independent review of these proceedings reveals no error.
Last, Ibanez asks us to correct the minute order and abstract of judgment to remove the court operations assessment and criminal convictions assessment as the assessments were not orally imposed at sentencing. The People concede this point and agree we should correct the error.
Accordingly, we affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
An information charged Ibanez and four other individuals with the first degree murder of Angel Zavala (§ 187, subd. (a)). It was further alleged the murder was committed for the benefit of a criminal street gang (§186.22, subd. (b)(1)(C)) and that a principal discharged a firearm causing Zavala's death (§ 12022.53, subds. (b)-(d)). The following evidence was adduced at trial.
I. Prosecution evidence
A. The May 3, 2017 stabbing
Ibanez, Henry "Smash" Alas, Faustino "C-Note" Bermudez were members of the "Down for Whatever" (DFW) gang, a tagging crew with approximately 25 to 30 members that operates in Compton. DFW's primary rivals are the White Street Hustlers or "White Street."
Ibanez's moniker is "Stoner."
On May 3, 2017, Bermudez, Pedro "Stretch" Guzman, and Alas attacked Zavala, who was a member of White Street. During the fight, Zavala stabbed Bermudez, Guzman, and Alas. Bermudez suffered serious injuries and required hospitalization.
On May 4, 2017, Ibanez contacted Alas over Facebook, and asked him about the stabbing. Alas said that he, Guzman, and Bermudez had been stabbed and that Bermudez was still in the hospital.
That same day, Alas messaged his girlfriend on Facebook. Alas said he and another "homie" were stabbed, and that the " 'other homie'" was" 'in surgery.'" When his girlfriend asked who stabbed him, Alas replied," 'an [enemy] that I was beating up he pop a knife after he got me.'" Alas then said," '[b]ut going to get it worse though straight leaving him dead.'" Alas's girlfriend told him," 'You're not dying on me,'" to which Alas responded," 'No babe I'm not. The foo dat did this . . . is going to die ....' "
B. Zavala's murder
On May 6, 2017, around 9:43 a.m., Alas contacted Ibanez over Facebook. Ibanez responded that he was with Guzman and Daniel "Gunner" Moran. Moran was a DFW associate and a member of Florencia 13, a much larger and established gang. Alas indicated that he was going to "pull u[p]" to which Ibanez responded, "Come out."
Approximately 40 minutes later, a witness near the corner of White Avenue and Rose Street heard three to four gunshots and saw a grey Nissan Maxima speeding away.
Deputies for the Los Angeles County Sheriff's Department (LASD) responded to the scene. When they arrived, they found Zavala bleeding from gunshot wounds to his head and neck. Zavala later died from his wounds.
The deputies recovered four .40 caliber bullet shell casings on the street near Zavala.
C. The arrests and Perkins operation
On June 8, 2017, Ibanez, Moran, Guzman, Bermudez, and Alas were arrested as suspects in Zavala's murder. Ibanez was arrested at his house and the arresting officers found a Nissan Maxima in the rear of the house that matched the car seen in surveillance footage recovered near the crime scene.
Ibanez was separated from the other arrestees and transported to the sheriff's station where he was interviewed by detectives. Both before and after the interview, Ibanez was placed in a jail cell with an undercover agent as part of a Perkins operation. The Perkins agent was significantly older and larger than Ibanez, who was 18 years old, 5'6'' and 130 pounds at the time of his arrest. By comparison, the Perkins agent was closer to 40 years old and weighed approximately 250 to 300 pounds. The Perkins agent also had gang tattoos that were visible to Ibanez.
Ibanez introduced himself to the Perkins agent as "Stoner" from the tagging crew" 'Down for Whatever.'" Ibanez explained he had been arrested for "a hot one," a term referring to a murder. After the Perkins agent said he was in a gang, he and Ibanez discussed other gang members in Compton.
Ibanez and the Perkins agent then discussed the circumstances of Ibanez's arrest. The following exchange took place.
"[Informant]: Did you guys do something big, or what?
"[Ibanez]: Nah. Well, they just-they were talking about a shooting fool, but I mean, I don't [know] what the fuck is going on.
"[Informant]: Did they tell you they arrested you for that or they arrested you for something else?
"[Ibanez]: Well, that's what they were questioning us about, about the shooting.
"[Informant]: Oh, so that's, did they-did you just got [sic] busted and your homie?
"[Ibanez]: Nah, it's fucking five of us, fool.
"[Informant]: Oh, so they're hitting you for the hot one and shit. Damn."
Ibanez said that one of the arresting officers told him," 'You know you fucked up, right? Like, you gonna be down a long time.'" Ibanez said he just laughed at the officer. The Perkins agent then told Ibanez, "[E]verything's beatable, homes. These motherfuckers could put you away and do what they fucking want. It's just how you fight it, you know?" Ibanez responded, "Yeah, I need a lawyer, dog. Fuck that Public Defender."
The Perkins agent told Ibanez it was likely law enforcement had been investigating him for some time or someone was cooperating with investigators based on the simultaneous arrests for the shooting.
Ibanez told the Perkins agent he did not want anything to happen to his family because he was "locked up." He wondered if his family could face immigration consequences if law enforcement "tr[ied] to get them." An arresting officer suggested they could "take [Ibanez's] little brothers away" but Ibanez did not believe him because Ibanez was the only one who was arrested. The Perkins agent explained Ibanez's brothers could be taken away if Ibanez's parents were removed from the home. "If there's nobody in the house and they end up taking your mom, then they take the kids." However, the Perkins agent stated his belief that investigators probably just wanted to talk to Ibanez's mother to question her about Ibanez's alibi.
Detectives then placed Moran in a cell near Ibanez. Moran told Ibanez he had been charged with gang conspiracy and his bail was $40,000. Ibanez and the Perkins agent discussed how Moran's bail was much lower than the typical bail amount for a murder charge. Ibanez said if his family was still willing to support him, they could bail him out, get a lawyer, and "fight this shit in the streets."
Detectives then took Ibanez out of his cell for further questioning. When Ibanez was returned to the cell, he told the Perkins agent, the detectives were investigating Ibanez for a murder and had pictures of his car. Ibanez explained the detectives were trying to implicate him as the driver during the shooting. The Perkins agent asked Ibanez who was the registered owner of the car. Ibanez explained he and his father were co-owners. The Perkins agent replied, "Damn, they could go pick up your dad." Ibanez replied, "But I told them that I'm the only one that drives it." Ibanez then said he would be "mad" and "go all out" if they "tried to get [his] dad."
Ibanez and the Perkins agent then discussed how the detectives might interview Ibanez's father. Ibanez said he hoped they did not and he would be upset if his father was punished. The Perkins agent later asked if Ibanez had told his father because the investigators could arrest his father. Ibanez said he would wait to see if that occurred, but if it did, Ibanez would admit to being the driver.
The Perkins agent advised Ibanez to "study" his case to see if he could determine who was cooperating with law enforcement. Ibanez thought he may have been arrested because of the stabbing and admitted he lied to detectives when he said he did not know about the stabbing. The Perkins agent told Ibanez the stabbing could be "good" for Ibanez and the others, and later said Ibanez could argue self-defense. Nonetheless, Ibanez was concerned investigators had already identified his car from surveillance footage even though his license plate was illegible in the video. The Perkins agent said investigators could obtain different angles of the car and essentially follow where the car had traveled.
The Perkins agent was taken from the holding cell. When he returned, he asked Ibanez about Moran. Ibanez explained that Moran was from Florencia. The Perkins agent then asked Ibanez if all five suspects had been brought to the same sheriff's station. Ibanez said it was only him and Moran. The Perkins agent then asked Ibanez if he knew someone named "Stretch" because he had overheard officers say Stretch was cooperating. Ibanez did not believe Strech would cooperate and said that he thought the detectives were trying to make Ibanez look like a snitch.
Ibanez said he heard a "homie" talking about shells but that if investigators had found any shells, they would have "booked" Ibanez already. The Perkins agent explained that Ibanez had already been booked. Ibanez said it would be impossible for investigators to connect the shells to him and the crime scene because the shells were just left on the street and that there were 40 or 50 shells in the street already. Ibanez explained, "[W]e didn't pick them up. We left them at the crime scene." Ibanez later stated that he vacuumed the car and was sure the gun had been disposed. He also described how the gun belonged to another gang member and that he instructed others to clean the gun and bullets after they had touched it. He said, "And those were the same ones we used. So you know it's solid, those bullets are clean as fuck."
The Perkins agent asked what gun was used and Ibanez replied it was a .40-caliber gun, and that it was fired "like five" times.
Ibanez identified Moran as the shooter. He said Moran's nickname was "Gunner" and that Moran was the one trying to get DFW to become a gang.
Ibanez explained the motive and circumstances of the shooting. He said the shooting occurred around 10:00 a.m. He said the victim was an enemy and had stabbed his friends. Ibanez explained, "That fool, we got him 'cause he's the one that stabbed the homies." He said, "And we were mad 'cause of that shit and that's why we were looking and you know, we're trying to retaliate ...." Ibanez explained he and the others searched several places to find someone to retaliate against, but did not find anyone. However, eventually, they came across Zavala and they shot him in the neck and through his face.
Ibanez said, immediately after the shooting, he drove through the streets and then entered the freeway. After which, he and the others went to a house where they cleaned their hands and left the gun there.
II. Defense evidence
Defense counsel presented three character witnesses that testified to Ibanez's good behavior and community involvement. III. Jury verdict and sentencing
The jury found Ibanez guilty of second degree murder. It found true the gang and firearm allegations. Moran and Guzman accepted plea agreements. Alas was tried separately and convicted of first degree murder.
The trial court dismissed the gang and firearm allegations and sentenced Ibanez to 15 years to life in state prison.
DISCUSSION
I. The trial court did not err in admitting Ibanez's statements to the Perkins agent
Ibanez argues the trial court erred in denying his motion to exclude his statements to the Perkins agent because the statements were involuntary and thus violated the Fourteenth Amendment to the United States Constitution and article I, section 15 of the state Constitution.
A. Governing law and standard of review
" 'The Fourteenth Amendment to the federal Constitution and article I, section 15, of the state Constitution bar the prosecution from using a defendant's involuntary confession.'" (People v. Boyette (2002) 29 Cal.4th 381, 411 (Boyette).)"' "A statement is involuntary if it is not the product of' "a rational intellect and free will."' [Citation.] The test for determining whether a confession is voluntary is whether the defendant's 'will was overborne at the time he confessed.'" '" (People v. Linton (2013) 56 Cal.4th 1146, 1176 (Linton).)"' "A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. [Citation.] Although coercive police activity is a necessary predicate to establish an involuntary confession, it 'does not itself compel a finding that a resulting confession is involuntary.' [Citation.] The statement and the inducement must be causally linked." '" (Ibid.)
Federal and California law requires" 'the prosecution to establish, by a preponderance of the evidence, that a defendant's confession was voluntary.'" (Boyette, supra, 29 Cal.4th at p. 411.) In determining whether a statement was involuntary, we look at the totality of the circumstances. (Linton, supra, 56 Cal.4th at p. 1176.)" 'On appeal, we conduct an independent review of the trial court's legal determination and rely upon the trial court's findings on disputed facts if supported by substantial evidence.' [Citation.] The facts surrounding an admission or confession are undisputed to the extent the interview is tape-recorded, making the issue subject to our independent review." (Id. at pp. 11761177.)
B. Analysis
Ibanez argues his statements were involuntary for multiple reasons. First, he argues his statements were involuntary because the Perkins agent was physically much larger than him and because the agent was a gang member familiar with the prison system. Second, he argues the Perkins agent threatened Ibanez with statements about the possible consequences Ibanez's family could face if Ibanez did not confess. Third, he argues the Perkins agent engaged in relentless questioning that overcame Ibanez's will and forced Ibanez to confess. We are not persuaded.
In support of his first argument, Ibanez cites to Arizona v. Fulminante (1991) 499 U.S. 279 (Fulminante). In Fulminante, the defendant was suspected of murdering and possibly sexually assaulting his stepdaughter but was arrested for an unrelated crime. (Id. at p. 283.) The defendant was incarcerated with an FBI informant who masqueraded as an organized crime figure. (Ibid.) The informant told the defendant that if the defendant told the informant about the crimes against the defendant's stepdaughter, the informant would protect the defendant from other inmates, who had already threatened defendant. (Ibid.) The defendant then admitted to the informant that he had driven his stepdaughter to the desert on his motorcycle, where he choked her, sexually assaulted her, and made her beg for her life, before shooting her twice in the head. (Ibid.) The defendant challenged the admission of his confession on the grounds it was involuntary. (Fulminante, at p. 282.) The United States Supreme Court ruled that, under the circumstances, the defendant's confession had been coerced because the defendant faced a credible threat of violence unless he confessed. (Id. at p. 287.)
Here, Ibanez asserts the circumstances were similar to those in Fulminante. We disagree. Ibanez has not pointed to any instance in the record where the Perkins agent expressly or impliedly threatened him to extract a confession. What the record shows is that the Perkins agent acted as a friendly confidant, who was familiar with gang and prison life. (See People v. Rodriguez (2019) 40 Cal.App.5th 194, 198-199 [rejecting contention that defendant was coerced because informant posed as an older, well-connected gang member]; People v. Linton, supra, 56 Cal.4th at p. 1178 [questioners did not use aggressive, hostile, or threatening tone; interrogation not coercive].)
Ibanez directs us to the fact that the Perkins agent was physically much larger than Ibanez and identified himself as a gang member during their conversation. While this may be true, there is nothing in the conversation to suggest that Ibanez was intimidated by the Perkins agent's physical stature or the fact that the Perkins agent was a gang member and may have been well-connected within the prison system.
To the contrary, we agree with the trial court's assessment that the recording of the Perkins operation reveals an informal tone and free-flowing conversation between Ibanez and the Perkins agent. Indeed, Ibanez actually bragged to the Perkins agent about how the last time Ibanez was incarcerated he beat up another inmate who was much larger than himself. Ibanez also described how the last time he was in custody, he thought that he would be assaulted by other inmates, but nothing happened.
In sum, Ibanez's arguments regarding the stature or status of the Perkins agent are not supported by the record, and the totality of the circumstances show his statements during the Perkins operation were voluntary.
Ibanez also argues his statements to the Perkins agent were involuntary because the Perkins agent discussed the possibility that Ibanez's father could be arrested, his family could face immigration consequences, and authorities could "take [Ibanez's] little brothers away." Ibanez suggests the Perkins agent coerced Ibanez's confession by discussing these topics. Our review of the recording and the transcript of the Perkins operation does not support Ibanez's characterization.
It was Ibanez, not the Perkins agent, who brought up the potential immigration consequences for his family. Ibanez explained that when law enforcement arrested him, his mother believed it was the immigration authorities. The Perkins agent then inquired about Ibanez's parents' immigration status. Ibanez responded that law enforcement may try to go after his parents for being undocumented. The Perkins agent's response to this concern was "Yeah ...." This exchange does not show the Perkins agent coerced Ibanez's confession. Rather, it shows Ibanez was already concerned about potential immigration consequences for his family and the Perkins agent merely acknowledged that concern.
The same can be said regarding the discussion of Ibanez's little brothers. During the exchange, Ibanez said an arresting officer suggested, "they were gonna take [Ibanez's] little brothers away ...." Ibanez then asked the Perkins agent if that was a possibility. The Perkins agent responded, "Yeah, if they [are] taking your mom and your dad .... [¶] . . . [¶] If there's nobody in the house and they end up taking your mom, then they take the kids." The record shows the Perkins agent was merely explaining to Ibanez his understanding of how a potential dependency case could play out if Ibanez's parents were no longer in the home. However, the Perkins agent never suggested it would certainly happen. In fact, at the end of this discussion, the Perkins agent seems to reassure Ibanez that the investigators probably just want to talk to Ibanez's mother about Ibanez's alibi.
The same is true regarding whether Ibanez's father could be arrested. This topic came up in the context of Ibanez and the Perkins agent discussing who would be charged with the murder, and whether Ibanez could be charged as the shooter or the driver. Ibanez explained that it seemed the investigators were "making [Ibanez] the driver." The Perkins agent then asked Ibanez whose name the car was under. When Ibanez said the car was under his name, the Perkins agent said "Very good. Because if it would have been on your mom, then . . . your mom goes down for that shit." Ibanez then said the car was also under his father's name. The Perkins agent then said, law enforcement "could go pick up your dad." Ibanez responded that he had already told detectives that he was the only person who used the car. The Perkins agent responded, "Yeah 'cause that's what you gotta fucking sit there and think 'cause that right there, whoever's car-whoever- whoever's property it is, they could be held accountable for it ...." Ibanez then said, "Fool, if they tried to get my dad with some shit, I'll be mad, fool. I'mma [sic] go all out ...."
As with the other exchanges, the context of this discussion does not show that the Perkins agent coerced a confession from Ibanez by explaining that his father could be arrested if investigators linked his father to the car. Indeed, Ibanez did not think it was likely his father would be arrested and stated he would wait and see what would happen. Plainly, Ibanez's will was not overborne by the Perkins agent who merely explained how the police might try to connect the car to the murder and would investigate the car's ownership.
Ibanez also argues his statements were involuntary because the Perkins agent questioned him relentlessly about the shooting. However, the record reflects a free-flowing conversation between Ibanez and the Perkins agent. For example, both Ibanez and the Perkins agent asked each other questions and the Perkins agent's questions were not coercive.
In sum, the totality of the circumstances shows that Ibanez's statements were voluntary.
II. Ibanez's counsel was not ineffective for failing to object to the admission of his statement to the Perkins agent on the grounds he invoked his right to counsel
Ibanez next argues that his statements to the Perkins agent should have been excluded because he invoked his right to counsel. Relatedly, Ibanez argues, because his trial counsel failed to object on these grounds, he received ineffective assistance of counsel. We conclude that Ibanez did not unequivocally invoke his right to counsel and therefore his trial counsel did not render ineffective assistance for failing to object on these grounds.
A. Governing law and standard of review
In Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), the United States Supreme Court "held that the Fifth Amendment privilege against self-incrimination prohibits admitting statements given by a suspect during 'custodial interrogation' without a prior warning." (Perkins, supra, 496 U.S. at p. 296, citing Miranda, at p. 444.) "Custodial interrogation means 'questioning initiated by law enforcement officers after a person has been taken into custody ....' [Citation.] The warning mandated by Miranda was meant to preserve the privilege during 'incommunicado interrogation of individuals in a police-dominated atmosphere.' [Citation.] That atmosphere is said to generate 'inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely.' [Citation.] 'Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated.'" (Perkins, at p. 296.)
"[O]nce a suspect in custody invokes his Miranda right to counsel, his or her subsequent statements to police are presumed involuntary and inadmissible if obtained pursuant to an 'encounter [initiated by the police] in the absence of counsel (assuming there has been no break in custody).'" (People v. Storm (2002) 28 Cal.4th 1007, 1023, quoting McNeil v. Wisconsin (1991) 501 U.S. 171, 177 (McNeil).) If a suspect requests counsel," 'the interrogation must cease until an attorney is present.'" (Edwards v. Arizona (1981) 451 U.S. 477, 482, quoting Miranda, supra, 384 U.S. at p. 474.) This rule prevents "police from badgering a defendant into waiving his previously asserted Miranda rights." (Michigan v. Harvey (1990) 494 U.S. 344, 350.) If defendant invokes his right to counsel and the police initiate a meeting in the absence of counsel, the suspect's statements are presumed involuntary and are inadmissible as substantive evidence at trial, even if the suspect executes a waiver and the statements would be considered voluntary under traditional standards. (McNeil, at pp. 176-177.)
"[W]hether a suspect has invoked his or her right to counsel 'is an objective inquiry.'" (People v. Gonzalez (2005) 34 Cal.4th 1111, 1124 (Gonzalez), citing Davis v. United States (1994) 512 U.S. 452, 459.)" '[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.' [Citation.] Accordingly, 'the suspect must unambiguously request counsel.... Although a suspect need not "speak with the discrimination of an Oxford don," [citation], he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.'" (Gonzalez, at p. 1124.)
Generally, conversations between suspects and undercover agents do not implicate the concerns underlying Miranda. (People v. Fayed (2020) 9 Cal.5th 147, 165 (Fayed), citing Perkins, supra, 496 U.S. at pp. 297-298.) "The essential ingredients of a 'police-dominated atmosphere' and compulsion are not present when an incarcerated person speaks freely to someone whom he believes to be a fellow inmate. Coercion is determined from the perspective of the suspect. [Citations.] When a suspect considers himself in the company of cellmates and not officers, the coercive atmosphere is lacking." (Perkins, at p. 296.) "In other words, 'Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect's misplaced trust in one he supposes to be a fellow prisoner.... [¶] Miranda was not meant to protect suspects from boasting about their criminal activities in front of people whom they believe to be their cellmates.'" (Fayed, supra, 9 Cal.5th at p. 165.)
" 'In reviewing the trial court's denial of a suppression motion on Miranda and involuntariness grounds,"' "we accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained." '" [Citations.] Where, as was the case here, an interview is recorded, the facts surrounding the admission or confession are undisputed and we may apply independent review.'" (People v. Jackson (2016) 1 Cal.5th 269, 339.)
B. Ibanez's statement did not implicate Miranda
Ibanez argues, when he told the Perkins agent, "I need a lawyer," this qualified as an invocation of the right to counsel and "should have immediately terminated the interrogation by the undercover agent." This statement was not an unequivocal invocation of Ibanez's right to counsel. Rather, the statement was merely Ibanez expressing his desire to have a lawyer sometime in the future. This interpretation is further supported by Ibanez's statement about getting a lawyer if his family still wanted to support him by bailing him out of custody and obtaining a lawyer.
Additional context from the conversation further supports our conclusion that Ibanez's statement was not an unequivocal invocation of his right to counsel. Ibanez's full statement was, "Yeah, I need a lawyer, dog. Fuck that Public Defender." To which the Perkins agent responded, "Oh, yeah. Fuck the . . . Public Pretender ....Those motherfuckers don't help you. Well, they're there to help a motherfucker, but those fools are trucks ...." We read Ibanez's statement as a comment on the possibility that he would be assigned appointed counsel from the public defender's office and his view of the supposedly low quality of legal representation that appointed counsel would provide. In other words, read in its full context, Ibanez's statement was expressing his need for private counsel at some time in the future rather than utilizing appointed counsel from the public defender's office.
C. Ibanez did not receive ineffective assistance of counsel because the objection would have been denied
Because Ibanez has not demonstrated that his statements to the Perkins agent should have been excluded on the grounds that he invoked his right to counsel during their conversation, he cannot show that his counsel was ineffective for failing to object on those grounds. We will not consider defense counsel ineffective for failing to object when an objection would have been futile. (See People v. Diaz (1992) 3 Cal.4th 495, 562 [no claim for ineffective assistance of counsel based on defense counsel's failure to make a futile objection].)
III. Section 1109 does not require reversal
Ibanez argues his conviction must be reversed because section 1109, which became effective January 1, 2022, and requires the trial court to hold a bifurcated trial on the gang allegations if requested by the defendant, applies retroactively to his case.
Assembly Bill No. 333 (2021-2022 Reg. Sess.) substantially changed the law governing gang-related offenses. Relevant here, it added section 1109, which provides that gang allegations must be tried separately from the substantive offenses if requested by the defense. (§ 1109, subd. (a); Stats. 2021, ch. 699, § 5.)
While Ibanez's appeal was pending, the California Supreme Court rejected the argument that section 1109's bifurcation provision applies retroactively. (People v. Burgos (2024) 16 Cal.5th 1, 30 (Burgos).) Ibanez filed a supplemental letter brief, recognizing our Supreme Court's holding in Burgos but arguing section 1109 should still apply retroactively under the equal protection clause of the Fourteenth Amendment to the United States Constitution. However, this argument was rejected in Burgos, supra, 16 Cal.5th at page 29. We are bound by the decisions of the California Supreme Court. (People v. Brouillette (1989) 210 Cal.App.3d 842, 846.)
Accordingly, we find Ibanez is not entitled to retroactive application of section 1109.
IV. The trial court did not abuse its discretion in determining the materials subject to Ibanez's Pitchess motion
Ibanez also asked us to independently review the trial court's grant of his Pitchess motion, which sought the sealed personnel records of Detective Sumner, Sergeant Iberri, Deputy Arias, and Deputy Alcala. Ibanez asks us to conduct our own review to determine whether any additional disclosures should have been made.
" 'When a defendant shows good cause for the discovery of information in an officer's personnel records, the trial court must examine the records in camera to determine if any information should be disclosed. [Citation.] The court may not disclose complaints over five years old, conclusions drawn during an investigation, or facts so remote or irrelevant that their disclosure would be of little benefit. [Citations.] Pitchess rulings are reviewed for abuse of discretion.'" (People v. Rivera (2019) 7 Cal.5th 306, 338 (Rivera).)
Here, the record reflects that the LASD's custodian of records appeared at an in camera hearing and was placed under oath. The custodian correctly identified the LASD's personnel files from Ibanez's motion and had located and produced all of the records that were sought in the trial court's order. The trial court examined the information and made a record of and properly released to Ibanez information that was discoverable. Having reviewed the reporter's transcript of the in camera hearing, we find the trial court complied with applicable law and find no abuse of discretion. (Rivera, supra, 7 Cal.5th at p. 339.)
V. Hobbs review
Ibanez also asks us to review the trial court's denial of his motion to quash the search warrant and its decision to unseal portions of a search warrant affidavit while keeping the identity of an undercover informant under seal. The People did not object to this request.
"When a defendant seeks to quash or traverse a warrant where a portion of the supporting affidavit has been sealed, the relevant materials are to be made available for in camera review by the trial court." (People v. Galland (2008) 45 Cal.4th 354, 364 (Galland); People v. Hobbs (1994) 7 Cal.4th 948, 963 (Hobbs).) "The court should determine first whether there are sufficient grounds for maintaining the confidentiality of the informant's identity. If so, the court should then determine whether the sealing of the affidavit (or any portion thereof) 'is necessary to avoid revealing the informant's identity.'" (Galland, at p. 364; Hobbs, at p. 972.)
If the trial court determines the affidavit was properly sealed, it then determines" 'whether, under the "totality of the circumstances" presented in the search warrant affidavit and the oral testimony, if any, presented to the magistrate, there was "a fair probability" that contraband or evidence of a crime would be found in the place searched pursuant to the warrant' (if the defendant has moved to quash the warrant) or 'whether the defendant's general allegations of material misrepresentations or omissions are supported by the public and sealed portions of the search warrant affidavit, including any testimony offered at the in camera hearing' (if the defendant has moved to traverse the warrant)." (Galland, supra, 45 Cal.4th at p. 364, quoting Hobbs, supra, 7 Cal.4th at pp. 975, 974.)
We independently review the record and sealed portion of the affidavit to determine whether there was a reasonable probability defendant could prevail on his motion to traverse or quash the search warrant. (Hobbs, supra, 7 Cal.4th at p. 975.)
We have reviewed the record and conclude the trial court followed proper procedure and did not err in refusing to reveal the identity of the confidential informant. We also find the trial court did not abuse its discretion in concluding there was no additional relevant discoverable information that should have been turned over to the defense. The trial court had an adequate basis to find the informant was reliable and the information was sufficient to show probable cause to issue the search warrant.
VI. Court assessments
Last, Ibanez asks us to strike a $30 criminal conviction assessment (Gov. Code, § 70373) and a $40 court operations assessment (§ 1465.8, subd. (a)(1)) because the trial court did not orally impose them at sentencing. The People agree.
"The oral imposition of sentence constitutes the judgment in an action, and the minutes cannot add anything substantive to the oral pronouncement. [Citations.] Generally, the oral pronouncement controls if there is a discrepancy, and the court clerk lacks the authority to add fines or fees not imposed by the trial court. [Citation.] 'The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment. [Citation.] . . . [T]he clerk's minutes must accurately reflect what occurred at the [sentencing] hearing.' [Citation.] If the clerk includes fines in the court's minutes or the abstract of judgment that were not part of the oral pronouncement of sentence, those fines must be stricken from the minutes and the abstract of judgment." (People v. Bongani El (2021) 65 Cal.App.5th 963, 967.)
Here, the reporter's transcript shows the trial court did not impose the assessments identified by Ibanez on appeal. However, the minute order from Ibanez's sentencing hearing and the abstract of judgment shows these assessments were imposed. Because the trial court did not impose these assessments in its oral pronouncement, they are stricken.
DISPOSITION
The criminal conviction assessment and court operation assessment are stricken. The trial court is ordered to issue a new abstract of judgment and to transmit the abstract to the Department of Corrections. The judgment is otherwise affirmed.
WE CONCUR: STRATTON, P. J., WILEY, J.