Filed 12/26/19 P. v. Tran CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

SANG QUOC TRAN,

Defendant and Appellant.

H046967

(Monterey County

Super. Ct. No. 19CR001041)
Defendant Sang Quoc Tran was convicted by a jury of two felony counts: possession of contraband while in the county jail (count 1, Pen. Code, § 4573.6, subd. (a)) and possession of drugs while in the county jail. (count 2, § 4573.8). On appeal, he contends that his conviction of the second count was improper because it necessarily included all the elements of the first count. The People concede that defendant’s conviction of the more general statute prohibiting drug possession in jail cannot be sustained. We agree. We will therefore reverse the judgment and direct the court to strike count 2 and resentence defendant.

Background

Only a brief summary of the underlying facts is necessary in this case. While in a booking cell at the Monterey County jail, a tip led deputy sheriffs to remove the inmates of that cell in order to search for narcotics. When those seven inmates were removed, Deputy Nicholas Kennedy performed tests on defendant, who showed signs of being under the influence of methamphetamine. A strip search of defendant led to the discovery of methamphetamine in his underwear.

By amended information defendant was charged in count 1 with possession of contraband in jail, in violation of section 4573.6, subdivision (a) and in count 2 with possession of drugs in jail, in violation of section 4573.8 both based on the discovery of the methamphetamine. A jury trial resulted in guilty verdicts on both counts. At sentencing the trial court imposed the midterm of three years on count 1, with a concurrent term of two years on count 2, along with a $300 restitution fine (§ 1202.4, subd. (b)), an $80 court operations assessment (§ 1465.8, subd. (a)(1)), and a $60 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)). Following the sentencing order and abstract of judgment, defendant filed this timely appeal.

Discussion

The issue raised by defendant in this appeal calls for the application of the “Williamson rule,” derived from In re Williamson (1954) 43 Cal.2d 651, 654. (People v. Murphy (2011) 52 Cal.4th 81 (Murphy).) “Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute. In effect, the special statute is interpreted as creating an exception to the general statute for conduct that otherwise could be prosecuted under either statute.” (Id. at p. 86.) Accordingly, “absent some indication of legislative intent to the contrary, the Williamson rule applies when (1) ‘each element of the general statute corresponds to an element on the face of the special statute’ or (2) when ‘it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.’ [Citation.] In its clearest application, the rule is triggered when a violation of a provision of the special statute would inevitably constitute a violation of the general statute.” (Ibid.; see People v. Chardon (1999) 77 Cal.App.4th 205, 213 [“When the Williamson rule applies, the special statute precludes prosecution under the general statute”].)

The Williamson rule applies to the statutes at issue here. Section 4573.6, subdivision (a), prohibits the unauthorized possession in any state prison or county jail of “any controlled substances, the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code,” along with “any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or consuming controlled substances.” A violation of that provision by “[a]ny person” is a felony punishable by imprisonment for two, three, or four years. (§ 4573.6, subd. (a).) Section 4573.8 prohibits the unauthorized possession in prison or jail of any “drugs in any manner, shape, form, dispenser, or container, any device, contrivance, instrument, or paraphernalia intended to be used for unlawfully injecting or consuming drugs, or alcoholic beverages.” (§ 4573.8, subd. (a), italics added.)

Clearly the two statutes are similar in identifying the conduct they proscribe. Section 4573.8, however, encompasses a broader range of prohibited acts: It targets possession of “drugs” in any manner or form as well as alcohol; it is not limited to possession of “controlled substances” prohibited by Health and Safety Code section 11000 et seq., as in section 4573.6. Thus, defendant’s act of possessing methamphetamine in jail was covered by both the more specific statute, section 4573.6, and the more general statute, section 4573.8. Because his violation of the specific statute necessarily constituted a violation of the more general statute, the latter offense should not have been prosecuted. (Cf. Murphy, supra, 52 Cal.4th at p. 87, quoting People v. Jenkins (1980) 28 Cal.3d 494, 502 [“If it appears from the entire context that a violation of the ‘special’ statute will necessarily or commonly result in a violation of the ‘general’ statute, the Williamson rule may apply even though the elements of the general statute are not mirrored on the face of the special statute”].) The parties make the further point, citing People v. Rouser (1997) 59 Cal.App.4th 1065, that multiple convictions are precluded when an inmate simultaneously possesses two or more discrete substances in prison; it would therefore be “anomalous” and “incongruous” to allow multiple convictions when the prosecution is for possession of only a single item of contraband. Their point is well taken. Defendant’s conviction on count 2 in this case should not have been permitted.

Disposition

The judgment is reversed. On remand, the trial court shall strike the conviction on count 2 and resentence defendant.

_________________________________

ELIA, ACTING P. J.

WE CONCUR:

_______________________________

GROVER, J.

_______________________________

DANNER, J.

People v. Tran

H046967