Filed 5/1/18 P. v. Ferriero CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH FERRIERO,

Defendant and Appellant.
C082295

(Super. Ct. No. CRF133863)




After a jury found him guilty of possession of a controlled substance for sale (Health & Saf. Code, § 11378), defendant Joseph Ferriero admitted to suffering four prior drug convictions (§ 11370.2, subd. (c)). On appeal he contends: (1) the trial court erred in failing to advise him of his Boykin-Tahl rights as well as the penal consequences of an admission before taking his admission to the prior convictions; (2) his trial counsel rendered ineffective assistance in failing to object to an officer’s testimony revealing defendant was an informant; and (3) his trial counsel also rendered ineffective assistance in failing to object to the officer’s testimony because it pertained to bona fide negotiations. Finally, in a supplemental brief, defendant contends reversal is required in light of the Legislature’s partial repeal of section 11370.2. Defendant’s final contention has merit, and we will remand for resentencing.
BACKGROUND
Methamphetamine was found in defendant’s bedroom dresser. At trial, witnesses included an officer, who had discovered the contraband, and defendant’s wife, who testified for the defense.
The officer testified he had executed a search warrant for defendant’s home. Defendant arrived home during the search.
Officers found six grams of methamphetamine along with scattered, loose methamphetamine crystals inside a dresser in the master bedroom. There was also an empty plastic Ziploc bag, a black bag with a digital scale, and another bag with two-tenths of a gram of methamphetamine. Another dresser had one gram of methamphetamine and a folded-up paper with five-tenths of a gram of methamphetamine. There were also two glass methamphetamine pipes that appeared to have been used.
Defendant told an officer the methamphetamine was his, and he was able to recite the amount of methamphetamine to almost a tenth of a gram.
Defendant’s wife, however, testified that the drugs were hers, that she consumed “a couple” grams of methamphetamine a day, and that defendant did not know the drugs were in the house.
The jury found defendant guilty of possession of a controlled substance for sale. (§ 11378.) Defendant then admitted to four prior drug convictions.
The trial court denied probation and imposed an aggregate term of 13 years four months, consisting of the low term of 16 months along with four 3-year enhancements for his prior drug convictions: one conviction for possession with intent to manufacture phencyclidine (PCP) (§ 11383) and three convictions for possession for sale (§ 11378). The court split the sentence, ordering 730 days in custody or alternative custody, followed by 4,137 days on mandatory supervision.
DISCUSSION
I
Defense counsel did not render ineffective assistance in failing to object when defendant was revealed to be an informant
Defendant contends his trial counsel rendered ineffective assistance in failing to object when an officer’s testimony revealed that defendant was an informant.
A. The officer reveals defendant was an informant
During the testimony of the officer who was part of the search of defendant’s house, defense counsel cross-examined the officer about evidenced seized. He asked, “Did you look through text messages on his cell phone?” The officer responded, “I believe I did.” Defense counsel continued, “and you did not book that cell phone?” To which the officer responded, “No. I’m not sure you want to go down this, but it was due to an agreement between your client and I.” Defense counsel did not immediately inquire about that agreement.
But later defense counsel again asked about defendant’s cell phone: “You found nothing on the cell phone; is that correct?” The officer responded: “I don’t recall anything on the cell phone. There’s a reason I didn’t take the cell phone. I left it with him because he wanted the phone numbers because we had an informal agreement that he was going to inform for me after this.” Counsel then asked, “So you wanted him to work for you?” The officer said he did, later adding, “we utilize informants, yes.” Counsel asked, “So then you would try to get him to go and get somebody else busted, right?” The officer responded, “That was an agreement that we informally had, yes.”
On redirect, the prosecutor asked how leaving the cell phone with defendant affected the officer’s opinion that defendant possessed the methamphetamine for sale. The officer responded: “I left the phone with [defendant], not because it was not of any evidentiary value. . . . [T]he reason I left it with him is because we had an informal, verbal understanding that there was a potential that we would not be going to court on this and he would be working for me.”
B. Analysis
Defendant argues under Evidence Code section 1041, subdivisions (a) and (b)(1), revealing his identify as an informant was forbidden. We disagree.
“[Evidence Code] [s]ection 1041 grants a public entity a privilege not to disclose, and to prevent from being disclosed, the identity of a person who furnished information to a law enforcement officer . . . . [Citation.] The public entity may claim this privilege when disclosure is forbidden by federal or state statute, or, . . . when disclosure of the identity ‘is against the public interest because the necessity for preserving the confidentiality of [the informer’s] identity outweighs the necessity for disclosure in the interest of justice.’ [Citation.]” (People v. Bradley (2017) 7 Cal.App.5th 607, 618-619.)
Here, because defendant is not a public entity—and because no public entity sought to prevent the disclosure of his identity—his trial counsel had no grounds to object to the disclosure of defendant’s identity as an informant. Thus the failure to object was not ineffective assistance. (See People v. Thompson (2010) 49 Cal.4th 79, 122 [“Counsel is not ineffective for failing to make frivolous or futile motions”].)
II
Trial counsel did not render ineffective assistance in failing to object to the disclosure of bona fide negotiations
Defendant contends his counsel rendered ineffective assistance in failing to object to testimony revealing bona fide negotiations. He argues his “informal agreement” with the officer to be a confidential informant was a bona fide negotiation, and he maintains the officer was actively engaged in negotiating a disposition in his case. We disagree.
“Evidence of a plea of guilty, later withdrawn, or of an offer to plead guilty to the crime charged or to any other crime, made by the defendant in a criminal action is inadmissible in any action or in any proceeding.” (Evid. Code, § 1153.) “However, the statutory bar applies only to statements made in the context of bona fide plea negotiations.” (People v. Magana (1993) 17 Cal.App.4th 1371, 1376.) “Bona fide plea negotiations include statements made to the trial court and to the prosecuting attorney because those are the participants in a plea bargain.” (Id. at p. 1377.) They “do not include statements to transporting police officers.” (Ibid.) Nor do they apply to “the defendant’s voluntary disclosures about the bargaining process made to third persons uninvolved and unnecessary to the plea negotiations.” (Ibid.)
Here, we cannot conclude that the officer’s testimony that they had a “verbal understanding that there was a potential that we would not be going to court on this and he would be working for me,” was evidence of a bona fide plea negotiation. The record fails to establish that there was any bargaining process undergoing and that the officer was involved and necessary to such negotiations. Accordingly, trial counsel did not render ineffective assistance in failing to object to the officer’s statement regarding his informal agreement with defendant.
III
Remand is required in light of Senate Bill 180
In a supplemental brief, defendant contends reversal is required in light of Senate Bill 180, which amends section 11370.2. The People do not oppose remand, and we agree.
In October 2017 the Governor signed Senate Bill 180, which amended section 11370.2 by removing most of the drug offenses that gave rise to a three-year enhancement. (Stats. 2017, ch. 677, § 1.) As of January 1, 2018, only a prior conviction where the defendant used a minor in its commissions (§ 11380) gives rise to such an enhancement. (Stats. 2017, ch. 677, § 1.) In defendant’s case, none of his prior drug convictions were for violation of section 11380.
Further, we agree with the parties that Senate Bill 180 applies retroactively. If an amended statute “lessening punishment becomes effective prior to the date the judgment of conviction becomes final then . . . it, and not the old statute in effect when the prohibited act was committed, applies.” (In re Estrada (1965) 63 Cal.2d 740, 744; see also People v. Francis (1969) 71 Cal.2d 66, 75.) And here, the amendment has taken effect and defendant’s conviction is not yet final. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [“for the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed”].)
We will therefore vacate defendant’s four section 11370.2 enhancements and remand for resentencing. This disposition renders moot defendant’s contention that the trial court erred in failing to advise him of his Boykin-Tahl rights and the penal consequences of an admission before taking his admission to his prior convictions.
DISPOSITION
The four 3-year section 11370.2 enhancements are vacated and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.



RAYE , P. J.



We concur:



MURRAY , J.



HOCH , J.