Fenton

Defendant smuggled drugs into a jail by placing them between his toes. One drug was a controlled substance for which he held a physician’s prescription. The other drug was not a controlled substance. Convicted by jury of violating Penal Code sections 4573 (smuggling a controlled substance into a jail) and 4573.5 (smuggling a drug other than a controlled substance into a jail) and granted probation, defendant appeals. We conclude Penal Code section 4573 does not proscribe smuggling a controlled substance into a jail as long as the smuggler/inmate has a physician’s prescription. Accordingly, we reverse the conviction as to the violation of Penal Code section 4573, but otherwise affirm the judgment.

Facts

Following a conviction for possession of cocaine for sale, defendant was granted probation, including a county jail term with work furlough. On March 11, 1992, Placer County Sheriff’s Deputy Richard Padilla was on duty at a minimum security facility in Auburn. As defendant checked in at the facility that day, Deputy Padilla searched him. During the search, the deputy discovered three pills hidden between the toes of defendant’s right foot. Defendant said the pills were…