Filed 5/12/16 P. v. Berry 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,
                                                                                           F069681
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. 12CM7085)
                   v.

GLORIA SUE BERRY,                                                                        OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. James
LaPorte, Judge.
         Catherine White, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Kane, J. and Peña, J.
       Defendant Gloria Sue Berry was convicted by jury trial of felony possession of
controlled substances in prison (Pen. Code, § 4573.6; count 1),1 felony possession of
drugs or alcoholic beverage in prison (§ 4573.8; count 3), and misdemeanor
transportation of marijuana (Health & Saf. Code, § 11360, subd. (b); count 5). The trial
court sentenced her to a two-year term in county jail on count 1, a stayed prison term on
count 3, and a $100 fine on count 5. On appeal, the parties agree that defendant’s
convictions on counts 1 and 3 were based on the same act of possessing 24 plastic
baggies of marijuana in her car at the state prison, and that the conviction on count 3 must
be reversed. We concur and reverse the conviction on count 3.
                                      DISCUSSION
       In People v. Rouser (1997) 59 Cal.App.4th 1065 (Rouser), the defendant was
convicted under section 4573.6 of two counts of possession of a controlled substance in a
state prison when methamphetamine and heroin were both found in his cell at the same
time and in the same location. (Rouser, supra, 59 Cal.App.4th at p. 1067.)
Section 4573.6 states in part: “Any person who knowingly has in his or her possession in
any state prison … any controlled substances, … any device, contrivance, instrument, or
paraphernalia intended to be used for unlawfully injecting or consuming controlled
substances, without being authorized to so possess the same … is guilty of a felony ….”
Focusing on the use of the term “any” in section 4573.6, the appellate court in Rouser
concluded that “contemporaneous possession in a state prison of two or more discrete
controlled substances … at the same location constitutes but one offense under Penal
Code section 4573.6.” (Rouser, supra, at p. 1067; id. at pp. 1069-1070.)
       In this case, defendant was charged under two different statutes, sections 4573.6
and 4573.8, for simultaneous possession of marijuana at a state prison. Section 4573.8,


1      All statutory references are to the Penal Code unless otherwise noted.


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which is very similar to section 4573.6, provides in part: “Any person who knowingly
has in his or her possession in any state prison … any device, contrivance, instrument, or
paraphernalia intended to be used for unlawfully injecting or consuming drugs, or
alcoholic beverages, without being authorized to possess the same … is guilty of a
felony.” We conclude it would be anomalous to preclude multiple convictions for
simultaneous possession of different items of contraband under section 4573.6, as in
Rouser, but allow multiple convictions when the defendant is charged with simultaneous
possession of contraband under both sections 4573.6 and 4573.8. In addition,
section 4573.8 is general and section 4573.6 is specific, and thus the former includes the
discrete acts covered by the latter. (People v. DeLaCruz (1993) 20 Cal.App.4th 955, 958
[“Prosecution under a general statute is precluded when the facts of the alleged offense
parallel the acts proscribed by a special statute.”].)
       For these reasons, we agree with the parties that the conviction on count 3 must be
reversed.2
                                       DISPOSITION
       The conviction on count 3 for felony possession of drugs or alcoholic beverage in
prison (§ 4573.8) is reversed. The superior court is directed to prepare an amended
abstract of judgment and forward a certified copy to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.




2      Having reversed defendant’s conviction on count 3, we need not address her equal
protection claim.


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