Nelms

Defendant was convicted by a jury of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and smuggling a controlled substance into a prison or jail (Pen. Code, § 4573; further undesignated section references are to the Penal Code). Following discharge of the jury, defendant admitted three prior prison terms for felony convictions (§ 667.5, subd. (b)) and was sentenced to an aggregate term in state prison of five years.

Defendant appeals, contending (1) his conviction for smuggling a controlled substance into a prison or jail is not supported by substantial evidence and violates his Fifth Amendment rights; (2) the jury was erroneously instructed on the offense of possessing a controlled substance in a prison or jail rather than smuggling a controlled substance into a prison or jail; (3) the trial court was required to stay the sentence on the simple possession charge; and (4) the abstract of judgment must be amended to reflect the correct award of presentence credits. The People concede the jury was not properly instructed on the smuggling charge but request that we reduce the conviction to the offense on which the jury was instructed.

While…