Filed 5/12/16 P. v. Berry CA5

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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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

GLORIA SUE BERRY,

Defendant and Appellant.

F069681

(Super. Ct. No. 12CM7085)

OPINION

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.
2

Defendant Gloria Sue Berry was convicted by jury trial of felony possession of 

controlled substances in prison (Pen. Code, § 4573.6; count 1),1felony 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.
3

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.