People v. Ford

[38]

DRAPER, J.

Defendant appeals from a conviction of unauthorized possession of a drug within a prison. (Pen. Code, §4573.6.)

At the time of the offense charged, appellant was an inmate of San Quentin prison. Five tubes of a drug known as Wyamine were found in his bunk. There was evidence that appellant several times admitted to prison officials that the tubes were his. There was evidence of the highly limited availability of the cell and bunk to others. Two other inmates testified that they saw one Williams reach into appellant’s cell and place something therein on the day in question. The jury, on full instruction as to the elements of possession, found appellant guilty. It is apparent that his claim of insufficiency of the evidence is without merit.

A more interesting question is raised by appellant’s contention that he was punished, before trial, for possession of the drugs. Following discovery of the offense, appellant was brought before the Prison Disciplinary Committee on a charge of violation of prison rule D-1103, which makes violation of any penal statute a violation of prison rules. He admitted the charge and was punished by solitary confinement for 29 days.

“An act . . . which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act . . . under any other.” (Pen. Code, § 654.)

■ Appellant argues that the prison regulations are made under authority of the Penal Code (§§ 5054, 5058, 2079); that the code recognizes that discipline for violation of rules is punishment (§ 2081); that under rule D-1103 the act punished by the Prison Disciplinary Committee is the very act of violation of the penal statute (§4573.6) for which appellant is prosecuted in the case at bar. Thus, he contends, his punishment by solitary confinement prevents further punishment and bars this prosecution.

It will be noted that appellant’s argument is not based upon the constitutional claim of double jeopardy. Rather, it is based wholly on section 654, which prohibits multiple punishment for a single act. Thus