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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115.

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)

OPINION

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.

-ooOooLloyd 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 
2.

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).
3.

(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).
4.

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. 
5.

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. 
6.

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 
7.

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.)
8.

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 
9.

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. 
10.

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, 
11.

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.