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NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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,
Plaintiff and
Respondent,
v.
LLOYD HARVEY MASON,
Defendant and
Appellant.
F063753
(Super.
Ct. No. RF006037)
APPEAL from
a judgment of the Superior Court
of
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 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 Legislation
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));
(former Pen. Code, § 12316, subd. (b)(1));
weapon (former Pen. Code, § 12020, subd. (a)(1)).
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.
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.â€
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. (
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
53, 60-61].)
Pursuant to
Evidence Code section 915, subdivision (b), and People v. Hobbs
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.
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.
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. (
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 requiredâ€].)
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 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.)
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.†(
1002, 1007.) We look to the entire
statutory scheme in interpreting particular provisions “so that the whole may
be harmonized and retain effectiveness.â€
(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 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.
title="">[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 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.â€
(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, 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.
name="_ftn1" title=""> [1]This is the act’s official name. (Stats. 2011, ch. 15, § 1; Stats.
2011, 1st Ex. Sess. 2011, ch. 12, § 1.)
name="_ftn2" title=""> [2]This offense has been recodified as Penal
Code section 29800, subdivision (a)(1).
