Filed 5/12/16 P. v. Berry 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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

D efendant 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
convictio ns 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. Ro user (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 pos session in any state prison ... any control led substances, ... any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or consuming controlled substances, without being author ized 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 “con temporaneous possession in a state prison of two or more dis crete 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 cha rged 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 i n 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 i t 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 bo th 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 s tatute 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 felo ny 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 respec ts, the judgment is affirmed.

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