Filed 3/22/13 P. v. Mason CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F063753
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. RF006037)
                   v.

LLOYD HARVEY MASON,                                                                     OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Michael E.
Dellostritto, Judge.
         Rex Adam Williams, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Tia M.
Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         Lloyd Harvey Mason pleaded no contest to charges of possessing
methamphetamine for sale, possessing concentrated cannabis, and being a felon in
possession of a firearm. He asks us to review sealed materials related to his motions to
quash and traverse a search warrant in order to determine whether the trial court erred
when it refused to disclose the identity of a confidential informant on whom the police
relied. We have reviewed all the materials in the record and find no grounds for
disturbing the trial court‟s rulings.
       Mason also challenges the trial court‟s order that he serve his entire sentence in
state prison, even though the sentence included a longer term for a county jail offense and
a shorter concurrent term for a state prison offense. We construe the 2011 Realignment
Legislation1 as mandating state prison for the entire sentence in this situation, consistent
with our recent decision in People v. Torres (2013) 213 Cal.App.4th 1151 (Torres). We
affirm the judgment.
                       FACTUAL AND PROCEDURAL HISTORIES
       A confidential informant told police that Mason was selling methamphetamine
from his house. Police conducted a sting operation in which Mason sold
methamphetamine to the informant. Using an affidavit describing the sting operation,
police obtained a warrant to search Mason‟s house. Inside, they found methamphetamine,
marijuana, hashish, glass pipes, syringes, a scale, pay-owe records, clear plastic bags, a
shotgun, shotgun shells, a handgun, three throwing knives, three throwing stars
(shuriken), and an expandable baton. Mason admitted to officers that he owned all these
items and said he had been selling drugs for 30 years.
       The district attorney filed an information charging eight counts: (1) possession of
methamphetamine for sale (Health & Saf. Code, § 11378); (2) possession of concentrated
cannabis for sale (Health & Saf. Code, § 11359); (3) possession of concentrated cannabis
(Health & Saf. Code, § 11357, subd. (a)); (4 & 5) being a felon in possession of a firearm
(former Pen. Code, § 12021, subd. (a)(1));2 (6) being a felon in possession of ammunition

       1This is the act‟s official name. (Stats. 2011, ch. 15, § 1; Stats. 2011, 1st Ex. Sess.
2011, ch. 12, § 1.)
       2This   offense has been recodified as Penal Code section 29800, subdivision (a)(1).



                                              2.
(former Pen. Code, § 12316, subd. (b)(1));3 (7 & 8) unlawful possession of a weapon
(former Pen. Code, § 12020, subd. (a)(1)).4 For count 1, the information alleged that
Mason had three prior drug convictions qualifying for a sentence enhancement under
Health and Safety Code section 11370.2, subdivision (c).
       Pursuant to a plea agreement, Mason pleaded no contest to counts 1, 3 and 5, and
admitted one of the prior drug convictions, in exchange for a stipulated six-year sentence
and the dismissal of the remaining charges.
       The court imposed the upper term of three years for count 1 plus three years for the
prior drug conviction. For counts 3 and 5, the court imposed three-year upper terms,
concurrent with the sentence for count 1.
       Under the 2011 Realignment Legislation, count 1, possession of methamphetamine
for sale, and count 3, possession of concentrated cannabis, are punishable by
incarceration in county jail, not state prison. (Health & Saf. Code, §§ 11378, 11357,
subd. (a); Pen. Code, § 1170, subd. (h).) Count 5, being a felon in possession of a
firearm, is punishable by incarceration in state prison. (Former Pen. Code, § 12021,
subd. (a)(1); Pen. Code, §§ 18, subd. (a); 29800, subd. (a)(1).) The probation officer
submitted a letter to the court expressing the opinion that Mason should serve three years
in state prison for the concurrent term imposed for count 5, and then serve the remainder
of his six-year sentence in county jail. The trial court observed that the probation officer
“did a very good analysis,” but then sentenced Mason to state prison on all three counts,
remarking that the proper disposition would ultimately need to be determined on appeal.




       3This   offense has been recodified as Penal Code section 30305, subdivision (a)(1).
       4The  provisions of this section have been distributed among several new sections.
Mason was charged specifically with possession of a shuriken (new Pen. Code, § 22410)
and a billy (new Pen. Code, § 22210).



                                              3.
                                       DISCUSSION
I.     Search warrant
       The police obtained the search warrant using an affidavit that included an account
of a confidential informant‟s tip that Mason was selling methamphetamine and the
confidential informant‟s participation in the sting operation. Mason filed a motion to
unseal the affidavit, discover the identity of the confidential informant, and traverse and
quash the warrant.
       A motion to quash “asserts the warrant on its face lacks probable cause.” The
defendant must show that the affidavit lacks sufficient evidence as a matter of law to
establish probable cause. (People v. Heslington (2011) 195 Cal.App.4th 947, 957, fn. 7.)
A motion to traverse “„mount[s] a subfacial challenge, i.e., attack[s] the underlying
veracity of statements made on the face of the search warrant application.‟” The
defendant must show that the affidavit contains a false statement made knowingly or
recklessly and without which the warrant lacks probable cause. (Ibid.)
       By statute, the identity of a confidential informant is privileged (Evid. Code,
§ 1041), and disclosure of an informant‟s identity is not necessary to establish the legality
of a search warrant that is valid on its face (Evid. Code, § 1042, subd. (b)). A court may
require disclosure in spite of the privilege when disclosure is “„relevant and helpful to the
defense of an accused, or is essential to a fair determination of a cause .…‟” (People v.
Hobbs (1994) 7 Cal.4th 948, 959 [quoting Rovario v. United States (1957) 353 U.S. 53,
60-61].)
       Pursuant to Evidence Code section 915, subdivision (b), and People v. Hobbs,
supra, 7 Cal.4th at pages 957-961 and 971-975, the court conducted an in camera hearing.
The court then unsealed a portion of the affidavit describing the informant‟s tip and the
sting operation in which Mason sold methamphetamine to the informant. The court
refused, however, to order discovery of the identity of the informant. It denied the
motions to traverse and quash.


                                             4.
       Mason now asks us to “review all sealed materials in the record to determine
whether the trial court erred in not unsealing all of the affidavit, in denying the motion for
additional discovery including the identity of the informant, and/or in denying the motion
to traverse the search warrant.” In support of this request, Mason filed an application to
augment the appellate record to include any sealed reporter‟s transcript from the in
camera hearing. We issued an order requiring the superior court to supply any such
transcript. Transcripts for two hearing dates were prepared and received, but no in
camera discussion is included in these.
       The clerk of the superior court submitted a declaration stating that a hearing on a
third date was not transcribed. The appellate record contains the part of the affidavit the
court unsealed, but contains no information about the identity of the confidential
informant or any other part of the affidavit that might have remained sealed. It does not
appear, therefore, that we have been given access to any materials Mason has not already
seen. Mason did not, however, make any additional applications to augment, so we
assume he considers the record complete for purposes of this appeal.
       Having reviewed the record, we find nothing that would undermine any of the trial
court‟s rulings. The identity of the confidential informant was of little significance. The
warrant application depended not just on the informant‟s tip, but on the results of the
sting operation. After the police conducted that operation and Mason sold
methamphetamine to the informant, the issue of the informant‟s reliability became
unimportant. The sale by itself supported the warrant. Under these circumstances, we
can see no plausible way in which learning the informant‟s identity could have helped
Mason to attack the warrant. Mason suggests no way in which he could have used the
information. He does not claim, for example, that the police might have fabricated the
account of a sting operation and that the informant, if identified, might have testified to
that effect at the suppression hearing.




                                              5.
       Mason concedes that potential support for his attack on the warrant is the only
matter at issue. He cannot argue that the identity of the informant might have helped
undermine the case for his guilt because he pleaded no contest. (People v. Duval (1990)
221 Cal.App.3d 1105, 1114 [“[W]hen a defendant, by pleading nolo contendere to a
charge, has admitted the truth of the allegations, the informant‟s evidence on the question
of guilt no longer has significance and no review on appeal is required”].)
       There is no reason, therefore, to disturb the court‟s decision to keep the
informant‟s identity secret. Further, the description of the sting operation in the affidavit
provided probable cause, so the motion to quash was properly denied. There is nothing in
the record to cast doubt on the veracity of any statements in the affidavit on which
probable cause depended—that is, on the statements describing the sting operation—so
the motion to traverse also was properly denied.
II.    Effect of Realignment Legislation on concurrent terms
       The 2011 Realignment Legislation altered the housing arrangements for persons
convicted of certain felonies. Numerous offenses previously punishable by 16 months,
two years, or three years in state prison now are punishable by those terms in county jail.
(Stats. 2011, ch. 15, §§ 2-633; Legis. Counsel‟s Dig., Assem. Bill No. 109 (2011-2012
Reg. Sess.), Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, §§ 4-11; Legis. Counsel‟s Dig.,
Assem. Bill No. 17 (2011-2012 1st Ex. Sess.); see Pen. Code, § 1170, subd. (h).) The
legislation provides that the new sentencing provisions are to be applied to persons
sentenced on or after October 1, 2011. (Pen. Code, § 1170, subd. (h)(6); Stats. 2011, 1st
Ex. Sess. 2011, ch. 12, § 12.)
       The Legislature considered the question of which institution a prisoner would
serve his sentence in if ordered to serve two terms consecutively, when one offense is
punishable by incarceration in state prison and the other by incarceration in county jail.
Should the prisoner be moved between institutions when one portion of the sentence ends




                                              6.
and the next begins? The Legislature opted to require a prisoner in this situation to serve
his entire sentence in state prison:

        “[W]hen any person is convicted of two or more felonies, … and a
        consecutive term of imprisonment is imposed under Sections 669 and 1170,
        the aggregate term of imprisonment for all these convictions shall be the
        sum of the principal term, the subordinate term, and any additional term
        imposed for applicable enhancements .… Whenever a court imposes a term
        of imprisonment in the state prison, whether the term is a principal or
        subordinate term, the aggregate term shall be served in the state prison,
        regardless as to whether or not one of the terms specifies imprisonment in
        the county jail pursuant to subdivision (h) of Section 1170.” (Pen. Code,
        § 1170.1, subd. (a); Stats. 2011, ch. 39, § 29.)
        The legislation did not say anything about where a prisoner should serve his time if
the court imposed concurrent sentences for a state prison offense and a county jail
offense. Presumably, if the sentences are of the same length or the state prison sentence
is longer, then the prisoner must serve the time in state prison, since that is where he
would have served it if no county jail term had been imposed. What happens, however, if
(as here) the county jail term is longer? Where does the prisoner serve the portion of the
sentence remaining after the state prison term is completed? Must the prisoner remain in
state prison, as he would if the terms were consecutive, or should he be moved to county
jail?
        The Legislature subsequently became aware of this problem and adopted the
solution it had applied to consecutive sentences: The prisoner is to serve the whole term
in state prison. The Legislature amended Penal Code section 669, adding the following
language:

               “When a court imposes a concurrent term of imprisonment and
        imprisonment for one of the crimes is required to be served in the state
        prison, the term for all crimes shall be served in the state prison, even if the
        term for any other offense specifies imprisonment in a county jail pursuant
        to subdivision (h) of Section 1170.” (Pen. Code, § 669, subd. (d).)
This provision went into effect immediately when the statute was filed with the Secretary
of State on June 27, 2012. (Stats. 2012, ch. 43, §§ 23, 117.)

                                               7.
       Mason was sentenced on October 28, 2011, after the 2011 Realignment
Legislation became operative but before amended Penal Code section 669 went into
effect. The question this case presents is whether, in light of the purposes and provisions
of the 2011 Realignment Legislation as a whole, Mason should be ordered to serve all the
concurrent terms in state prison even though the Legislature had not yet expressly adopted
that rule when he was sentenced.
       In interpreting a statute, our objective is “to ascertain and effectuate legislative
intent.” (People v. Woodhead (1987) 43 Cal.3d 1002, 1007.) We look to the entire
statutory scheme in interpreting particular provisions “so that the whole may be
harmonized and retain effectiveness.” (Clean Air Constituency v. California State Air
Resources Bd. (1974) 11 Cal.3d 801, 814.) “In the end, we „“must select the construction
that comports most closely with the apparent intent of the Legislature, with a view to
promoting rather than defeating the general purpose of the statute, and avoid an
interpretation that would lead to absurd consequences.” [Citation.]‟” (Torres v.
Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1003.)
       In our view, it would be illogical to treat concurrent sentences differently than
consecutive sentences in the present situation. There is little likelihood that the
Legislature ever intended to pursue separate policy objectives for concurrent and
consecutive sentences as part of the 2011 Realignment Legislation. It ultimately
concluded, of course, that they should be treated the same way. To reverse the trial court
in this case, we would have to be persuaded that, during the eight months between the
operative date of the original legislation and the effective date of the amendment to Penal
Code section 669, the Legislature first believed there was some reason to treat concurrent
sentences differently and then changed its mind. There is no reason to believe that. It is
far more probable that the Legislature simply overlooked the issue at first, and then, when
the problem was called to its attention, implemented the solution it would have employed
at the outset but for the oversight. In order to avoid an absurd consequence and effectuate


                                              8.
the Legislature‟s intent, therefore, we conclude that the original legislation inadvertently
left a gap on the subject of concurrent sentences, a gap we fill by deeming the original
legislation‟s rule on consecutive sentences to extend to concurrent sentences as well.
This conclusion also avoids the anomalous result of creating a small class of prisoners—
those sentenced on and after October 1, 2011, and before June 27, 2012, who received a
state prison sentence and a longer, concurrent county jail sentence—who must be treated
differently than all others.
       In so holding, we need not and do not decide whether amended Penal Code
section 669 applies retroactively. Our holding is based on the conclusions that the
Legislature intended at the time of the original legislation to require consecutive and
concurrent terms to be treated in the same way, and that treating them the same way
avoids an interpretation of the original legislation that leads to absurd consequences.
       There is no due process or other constitutional difficulty involved in our holding
that the sentences must all be served in state prison even though the statute did not
expressly so require at the time of sentencing. At the time of their commission, all the
offenses were punishable by imprisonment in state prison, so Mason cannot claim to have
been without notice of that potential punishment before he acted.
       We reached the same conclusions on this issue in Torres, supra, 213 Cal.App.4th
1151, which was filed after briefing was completed in this case. We intend all of our
discussion in this opinion to be consistent with our opinion in Torres.5
       Mason argues separately that no state prison sentence should have been imposed
for count 5 in the first place because that sentence involved an equal-protection violation.
His argument is based on a belief that, after his conviction and sentencing, the offense of
being a felon in possession of a firearm became a county jail offense. Mason says he and

       5Even  though Torres had not yet been decided at the time, we issued a briefing
letter on January 31, 2013, to give the parties an opportunity to submit arguments on the
issues we have addressed.



                                             9.
those convicted of the offense later are similarly situated and there is no justification that
passes constitutional muster for placing him in state prison while later offenders go to
county jail.
       As the People correctly point out, however, the offense never did, in fact, become
a county jail offense. When Mason was sentenced on October 28, 2011, former Penal
Code section 12021, subdivision (a)(1), provided that the offense of being a felon in
possession of a firearm was a felony. Since that statute did not provide that the offense
was punishable in accordance with section 1170, subdivision (h) (i.e., the provision of the
Realignment Legislation that mandates incarceration in county jail for certain felonies), it
was punishable by 16 months, two years, or three years in state prison under Penal Code
section 18. Former Penal Code section 12021, subdivision (a)(1), was repealed and
reenacted without substantive change with an operative date of January 1, 2012, as Penal
Code section 29800, subdivision (a)(1). (Stats. 2010, ch. 711, §§ 4, 6, 10.) Being a felon
in possession of a firearm was and is a state prison offense under realignment.
       In claiming that there was a time when being a felon in possession of a firearm was
a county jail offense, Mason relies on a version of Penal Code section 18 that was enacted
as part of the original 2011 Realignment Legislation. That version read:

       “Except in cases where a different punishment is prescribed by any law of
       this state, every offense declared to be a felony is punishable by
       imprisonment for 16 months, or two or three years as provided in
       subdivision (h) of Section 1170.” (Stats. 2011, ch. 15, § 230.)
Since Penal Code section 1170, subdivision (h), provides for incarceration in county jail,
and former Penal Code section 12021, subdivision (a)(1) and Penal Code section 29800,
subdivision (a)(1), declare the offense a felony without specifying a punishment, the
offense would have been a county jail offense if this version of Penal Code section 18 had
ever become operative.
       Along with the rest of the original Realignment Legislation, this version of Penal
Code section 18 was at first intended to become operative on July 1, 2011. (Stats. 2011,


                                              10.
ch. 15, § 636.) In legislation filed on June 30, 2011, however, the Legislature changed
the operative date to October 1, 2011. (Stats. 2011, ch. 39, § 68.) Then, on
September 21, 2011, the Legislature enacted a different version of Penal Code section 18,
which provides:

       “(a) Except in cases where a different punishment is prescribed by any law
       of this state, every offense declared to be a felony is punishable by
       imprisonment for 16 months, or two or three years in the state prison unless
       the offense is punishable pursuant to subdivision (h) of Section 1170.”
       (Stats. 2011, 1st Ex. Sess. 2011, ch. 12, § 7.)
       It is this version that became operative on October 1, 2011, not the previous
version. (Stats. 2011, 1st Ex. Sess. 2011, ch. 12, § 46.) Since being a felon in possession
of a firearm is not declared to be punishable pursuant to Penal Code section 1170,
subdivision (h), it is punishable by imprisonment in the state prison under Penal Code
section 18, as we have said.
       As there was no period during which any defendant could have been sentenced to
county jail for being a felon in possession of a firearm, there is no arbitrary classification
upon which an equal-protection claim could be based.
                                       DISPOSITION
       The judgment is affirmed.


                                                                   _____________________
                                                                       Wiseman, Acting P.J.

WE CONCUR:


 _____________________
 Detjen, J.


 _____________________
 Peña, J.




                                              11.
