P. v. Morreo

Filed 10/28/08 P. v. Morreo 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COURT^*

APPEAL from a judgment of the Superior Court of Kings County. Lynn C. Atkinson, Judge.

Terry R. Kolkey, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appellant Phillip Morreo was convicted, following a jury trial, of two counts of possessing a device, contrivance, instrument, or paraphernalia intended to be used for the unlawful injection and consumption of controlled substances while in prison (Pen. Code,^[1] 4573.6; counts 1 & 2). The jury also found true an allegation that appellant had suffered a prior conviction of a serious or violent felony ( 667, subds. (b)-(j); 1170.12, subds. (a)-(d)). The trial court sentenced appellant to six years on count 1, plus two years on count 2, for an aggregate prison term of eight years, to be served consecutively to the term he was already serving. On appeal, appellant contends one of his convictions cannot stand because the two counts constitute a single offense. We agree with appellant and will reverse his conviction on count 2.

FACTS

On January 11, 2007, Humberto Moreno worked at Avenal State Prison as a correctional officer. As a housing unit floor officer, he was responsible for supervising inmates in housing unit 120. Moreno described housing unit 120 as a U-shaped building, housing 296 inmates. According to Moreno, the housing unit did not contain cells. Rather, the prisoners were housed in dorms within the housing unit. A housing unit was comprised of 24 dorms, each containing 12 to 14 bunks.

Around 7:45 a.m., Moreno performed a security check of housing unit 120. When Moreno entered dorm 6, he saw appellant injecting a substance into his right arm with a syringe. Moreno ordered appellant to turn around. Appellant threw the syringe down on the floor. After Moreno handcuffed appellant, he picked up the syringe with a paper towel and placed it in his pocket. Moreno testified that inmates were not allowed to possess syringes.

Jose Mendoza was also working as a housing unit floor officer in housing unit 120 on the morning of January 11, 2007. After appellants discovery by Moreno, Mendoza was directed to search appellants locker in dorm 2. When he opened appellants locker, Mendoza found a paper bag containing a syringe.

On cross-examination, Mendoza testified that dorm 2 was on the second floor and dorm 6 was on the first floor of housing unit 120. Mendoza described dorm 2 as being [a] couple dorms down to the left of dorm 6.

Kelly Estrada, a medical technical assistant at the prison, examined appellant. She found redness, bruising, bleeding, and injection marks on his inner arms.

DISCUSSION

Appellant contends his simultaneous possession of two syringes while in prison constituted a single crime under section 4573.6. We agree.

Section 4573.6 provides:

Any person who knowingly has in his or her possession in any state prison ... any controlled substances, the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code, 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 punishable by imprisonment in the state prison for two, three, or four years.

Two cases appellant cites are instructive. In People v. Kirk (1989) 211 Cal.App.3d 58 (Kirk), the defendant was in possession of a sawed-off shotgun on his living room couch and a sawed-off shotgun in a closet in the bedroom on the same date. The guns had been stolen from burglaries on two different dates and had been altered to their illegal configuration after they had been stolen. In determining that the defendant only could be convicted of one offense of section 12020, subdivision (a) as it was written in 1985,^[2]when the defendant committed his crimes, the court noted that numerous cases have held that a defendant is subject to only a single conviction when he possesses more than one unlawful item of the same kind at the same time and place. [Citations.] (Kirk, supra, 211 Cal.App.3d at p. 62.)

The Kirk court found former section 12020, subdivision (a) is facially ambiguous because, [b]y its use of the term any rather than a, the statute does not necessarily define the unit of possession in singular terms. [Citation.] (Kirk, supra, 211 Cal.App.3d at p. 65.) The court further found that [t]he statutory ambiguity is compounded by section 7 which provides in pertinent part that the singular number includes the plural, and the plural the singular and that, [r]ead together, former section 12020, subdivision (a) and section 7 fail to provide any warning that separate convictions will result for each weapon simultaneously possessed. (Ibid.) The court concluded: In the circumstances, defendant is entitled to the benefit of the statutory ambiguity. We therefore conclude defendant should not have been convicted of multiple violations of section 12020 for his contemporaneous possession of two illegal weapons. (Ibid.)

In People v. Rouser (1997) 59 Cal.App.4th 1065 (Rouser), the court held that contemporaneous possession in state prison of two or more discrete controlled substances (methamphetamine and heroin) at the same location constituted one offense under section 4573.6, the statute at issue in this case. In reaching this conclusion, the Rouser court relied on, inter alia, the statutory analysis of the Kirk decision. (See Rouser, supra, 59 Cal.App.4th at p. 1070.) The Rouser court concluded that the defendant was entitled to the benefit of any ambiguity in section 4573.6 and the phrase any controlled substances in the section describes a single offense irrespective of how many controlled substances are possessed, as here, at the same time and in the same place. (Rouser, supra, p. 1073.) Otherwise, as the Rouser court explained, a prison inmate could be convicted under section 4573.6 of nine counts of unlawful possession for simultaneously having in his cell a smoking pipe, a hypodermic kit, marijuana cigarettes, methamphetamine, heroin, cocaine, a mirror, a razor blade, and LSD tablets. Based on the language of section 4573.6, it is unreasonable to conclude the Legislature intended such a result. (Rouser, supra, at p. 1072.)

We find the reasoning in both Kirk and Rouser persuasive. By analogy, we conclude appellants simultaneous possession of two syringes on January 11, 2007, constituted one offense of possession of any device, contrivance, instrument, or paraphernalia used to inject or consume a controlled substance within the meaning of section 4573.6. ( 4573.6, italics added.) The fact that the syringes were found in separate locations of the same prison building where appellant was housed does not alter our conclusion that his simultaneous possession of the syringes constituted a single violation of section 4573.6. Notwithstanding respondents suggestion to the contrary, the syringes were possessed in in the same place (Rouser, supra, 59 Cal.App.4th at p. 1073) for purposes of section 4573.6. Section 4573.6 prohibits possession in any state prison. The evidence undisputedly showed that appellant possessed the syringes in Avenal State prison (same place) on January 11, 2007 (same time), as alleged in both counts of the information. Respondent does not dispute that appellant was in simultaneous possession of the syringes, and has offered no direct support for the suggestion that one violation of section 4573.6 could properly be fragmented into two offenses because the syringes were found in different locations of the same prison building where appellant resided.^[3] In our view, the circumstance that appellant resided not in a traditional prison cell, but in a dormitory-style prison facility, which may have permitted freer movement and the ability to possess prohibited items in more than one location of the facility, does not justify multiple violations of section 4573.6, under the language of the statute. Accordingly, appellants simultaneous possession of two syringes while in Avenal State Prison on February 11, 2007, constituted a single violation of section 4573.6, and his conviction of count 2 must be reversed.

DISPOSITION

Appellants conviction on count 2 for violating section 4573.6 is reversed. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting this reversal and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.

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^* Before Vartabedian, Acting P.J., Dawson, J. and Hill, J.

^[1] Further statutory references are to the Penal Code unless otherwise noted.

^[2] In 1985, subdivision (a) of section 12020 provided in pertinent part, Any person who possesses any instrument or weapon of the kind commonly known as a sawed-off shotgun is guilty of a felony, (Kirk, supra, 211 Cal.App.3d at p. 60.)

^[3] Notably, in Kirk, supra, 211 Cal.App.3d at p. 61, the court specifically rejected the possibility the two convictions could be justified on the theory defendant possessed the two weapons at different places or times. The court explained: The information charged defendant with possessing the weapons on July 21, 1985. Although the weapons were taken in the precedent burglaries, the evidence shows without dispute the weapons had not then been sawed off. Thus, the only evidence of possession of illegal weapons was that they were located in two rooms of defendants residence on July 21, as alleged in the information. The cases have recognized that where illegal goods are kept at the same time in a residence, there is but a single possession of goods. [Citations.] (Ibid.)