Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIF134569, Paul E. Zellerbach, Judge.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, and Elizabeth S. Voorhies, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant Shaun Anthony Douglas was convicted by a jury of two counts of bringing, or assisting in the bringing, of controlled substances into a penal institution—one count for marijuana and the other for methamphetamine (Pen. Code, § 4573) and was also convicted of one count of conspiracy to do the same (§ 182, subd. (a)(1)). He was given concurrent sentences for the conspiracy count and the second smuggling count.
Unless otherwise noted, further statutory references will be to the Penal Code.
Defendant contends that the smuggling of two different controlled substances on the same occasion should have been treated as one violation rather than two, and thus the conviction for the second count should be reversed. Defendant further contends that his concurrent sentence on the conspiracy conviction must be stayed pursuant to section 654’s prohibition on multiple punishment for the same criminal act. The People concede that the conviction for the second count of violating section 4573 should be reversed with the direction to dismiss it, and that the sentence for the conspiracy conviction should be stayed pursuant to section 654. We agree and reverse in part with instructions to modify accordingly.
BACKGROUND
The defendant was an inmate at the California Rehabilitation Center. As an inmate, defendant’s telephone calls were monitored. Several of defendant’s telephone conversations with a female friend led prison officials to be suspicious; when the friend next visited defendant in prison she was searched. The search revealed bindles containing methamphetamine and marijuana.
MULTIPLE SUBSTANCES AND SECTION 4573
Defendant contends, and the People agree, that a defendant cannot be convicted of multiple violations of section 4573 for bringing more than one kind of controlled substance into an institution at the same place and time.
Section 4573 makes it a felony to bring, send, or knowingly assist in bringing or sending, into a penal institution “any controlled substance, 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 a controlled substance.” “ ‘[I]n criminal statutes, the word “any” has long been construed as ambiguously indicating the singular or the plural.’ ” (People v. Rouser (1997) 59 Cal.App.4th 1065, 1070 (Rouser).) If a penal statute is reasonably susceptible to multiple constructions, the construction that is more favorable to the offender is ordinarily adopted. (People v. Rizo (2000) 22 Cal.4th 681, 685–686.) In People v. Rouser, supra, 59 Cal.App.4th at page 1073, we held that the phrase “ ‘any controlled substances’ ” in section 4573.6 (prohibiting the possession of controlled substances and related paraphernalia in penal institutions) “describes a single offense irrespective of how many controlled substances are possessed... at the same time and in the same place.” Sections 4573 and 4573.6 both relate to issues of prison administration and drug presence in penal institutions and are to be construed together. (People v. Gutierrez (1997) 52 Cal.App.4th 380, 386.)
The use of “substance” in section 4573 rather than “substances” as used in section 4573.6 does not change that the word “any” still creates ambiguity between the singular and plural. Accordingly, we adopt and apply the interpretation in Rouser that irrespective of how many different controlled substances or related devices, contrivances, instruments, or paraphernalia are involved at a single place and time, only one offense has occurred.
Thus, defendant should only have been convicted of one count of violating section 4573 for his involvement in a single incident of bringing both marijuana and methamphetamine into a penal institution. Defendant’s conviction for a second count of violating section 4573 should therefore be reversed.
CONSPIRACY AND SECTION 654
Defendant contends, and the People agree, that the concurrent sentence for the conspiracy count should have been stayed pursuant to section 654’s prohibition on multiple punishment for the same act. At sentencing, both prosecution and defense trial counsel agreed section 654 applied to all but the first smuggling count, and the trial court agreed that all of the counts related to the same course of events, facts, and circumstances. However, the trial court thought that because this case was a third strike situation, it had discretion to run the convictions concurrently.
Where section 654 precludes multiple punishments, sentences must be stayed on all but one count of the counts based upon the same act. (§ 654; People v. Ortega (1998) 19 Cal.4th 686, 692.) “Section 654 prohibits multiple punishment for both [a] conspiracy and the substantive offenses that were its object.” (People v. Briones (2008) 167 Cal.App.4th 524, 529.) Where “the three strikes law does not mandate consecutive sentencing, section 654 applies to sentencing under the three strikes law.” (People v. Danowski (1999) 74 Cal.App.4th 815, 824.)
Because the operative facts were the same among all three counts, the three strikes law does not mandate consecutive sentencing. (§ 667, subd. (c)(6).) Thus, section 654 is applicable. Here, the conspiracy was encompassed in the substantive offenses, and thus section 654 requires that the sentence for the conspiracy count be stayed.
DISPOSITION
The conviction on count 2 (§ 4573) is reversed, and the superior court is directed to dismiss the count. The order sentencing defendant concurrently on count 3 (§ 182, subd. (a)(1)) is reversed, and the superior court is directed to stay the sentence on count 3. In all other respects, the judgment is affirmed. The superior court clerk is directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: McKINSTER J., RICHLI J.