California prisoners can be convicted of conspiracy to deliver a cell phone to an inmate

THE PEOPLE, Plaintiff and Respondent, v. ALAN BUENO, Defendant and Appellant.

Court of Appeal, Fourth District, Division 1 (D078700;Filed 09/09/20)

Summary: Bueno,  a prisoner inmate at the time, arranged with a prison employee codefendant to obtain a cellular telephone. Bueno pleaded no contest to one felony count of conspiracy to violate Penal Code section 4576, subdivision (a), which bars possession with the intent to deliver or the actual delivery of a cellular telephone to a prison inmate. The  trial court had denied his motion to dismiss the conspiracy charge.

On appeal, Bueno contends that he cannot be convicted of conspiracy to deliver a cellular telephone to an inmate because he is the inmate to whom the cellular telephone was delivered. Bueno argued that  this case is similar to cases involving drug sales, in which the “buyer-seller rule” precludes the purchaser from being held criminally liable for a conspiracy to sell drugs to himself. Bueno argued that an inmate recipient of a cellular telephone cannot be held criminally liable for conspiring to commit the substantive offense of section 4576, subdivision (a). Bueno  also asserted that the statutory scheme sets out a tiered system of punishment for the different roles that an individual might play in a scheme to deliver/have delivered a cellular telephone to an inmate, and that this shows a legislative intent that the inmate who participates in such a scheme be punished by a loss of credits only, and not criminally prosecuted.

The Court of Appeal concluded that Bueno’s argument that he cannot be convicted of conspiracy to violate section 4576, subdivision (a) is without merit and  affirmed the judgment.

Elements required to establish a conspiracy were satisfied

A conspiracy is an agreement by two or more persons to commit any crime.  A conviction for conspiracy requires proof of four elements:

 (1) an agreement between two or more people,

(2) who have the specific intent to agree or conspire to commit an offense,

(3) the specific intent to commit that offense, and

(4) an overt act committed by one or more of the parties to the agreement for the purpose of carrying out the object of the conspiracy.” (People v. Vu (2006) 143 Cal.App.4th 1009, 1024–1025.)

A conspiracy to commit a misdemeanor is an offense that may be punished as a felony. (People v. Tatman (1993) 20 Cal.App.4th 1, 7 (Tatman); see Iannelli v. United States (1975) 420 U.S. 770, 778 (Iannelli) [A “conspiracy can be punished more harshly than the accomplishment of its purpose”].)

Bueno, through his no contest plea as well as the factual basis provided in the plea, admitted that all of the elements of a conspiracy were met.

Bueno argues  that a separate legal rule or exception exists that demonstrates that, in enacting section 4576, the Legislature did not intend for an inmate to be convicted of the offense of conspiracy to commit a violation of subdivision (a) of section 4576 in the absence of evidence that the inmate and his coconspirator(s) planned to deliver the cellular telephone to an inmate other than the conspiring inmate.

Bueno argued that a rule like the “buyer-seller rule” should apply to bar his conspiracy conviction, even though the “buyer-seller rule” has not been adopted in California to prohibit conspiracy convictions for purchasers of drugs. California authorities have concluded that a purchaser of drugs cannot be prosecuted as an accomplice to the person who sold the drugs. (See People v. Hernandez (1968) 263 Cal.App.2d 242, 247; see also, People v. Label (1974) 43 Cal.App.3d 766, 770–771 [“The purchaser is not an accomplice of the seller either as to illegal possession or as to sale”].)

Neither the rule regarding accomplices nor the “buyer-seller rule” pertaining to conspiracies has been applied in the context of delivery of a cellular telephone to an inmate.

Exception to the general rule of no accomplice liability where there is a “conspiracy or prearranged plan” (Lima, supra, 25 Cal.2d at p. 578)

Bueno participated in developing the plan whereby he enlisted a third party to pay Morlett so that Morlett would obtain a cellular telephone for the express purpose of bringing it inside the penal institution to deliver it to Bueno. The law on which Bueno relies—the law regarding accomplice liability—simply would not apply to preclude his conviction for conspiracy to violate section 4576, subdivision (a).

Bueno also argued that the Penal Code spells out “a tiered system of punishment based on the role that each person play[s] in the delivery of the cell phone,” and that a “receiver/possessor [of a cellular telephone] is subject to [a maximum] 90-day[ ] loss of credits.” Bueno suggests that the framework of section 4576 indicates a legislative intent to “penalize inmate possessors of cell phones less severely than those who deliver cell phones to them.” Bueno notes that subdivision (a) of section 4576 makes it a misdemeanor punishable by up to six months in local custody for any person to “ ‘possess[ ] with the intent to deliver’ ” or to “ ‘deliver[ ], to an inmate … any cellular telephone,’ ” while subdivision (c) of section 4576 provides only for a “time credit denial or loss of up to 90 days” for an inmate who is found in possession of a cellular telephone. According to Bueno, this demonstrates that the Legislature did not “make possession of a cell phone by a state prison inmate a crime” and contends that one should infer from this provision that the Legislature “intend[ed] to penalize inmates possessing cell phones less severely than those delivering cell phones to them.”

The Legislature did not make mere possession of a “wireless communication device” by an inmate a crime, and instead provided for punishment of this conduct through a noncriminal loss of credits. Here, Bueno did more than merely possess a cellular telephone while in custody; he entered into an agreement with Morlett, in which Morlett would obtain a cellular telephone for the specific purpose of delivering it to Bueno. Greater criminal punishment is permitted for conspiracies than for individual criminal conduct.

The legislative scheme  in section 4576 does not demonstrate that the Legislature intended for an inmate to be punished less severely than Morley  for his role in the cooperative plan between the two of them to ensure that Bueno would obtain a cellular telephone through Morlett’s conduct. The Legislature provided for lesser punishment under subdivision (c) of section 4576 for an inmate who has not actively participated in a collaborative plan to ensure that someone else brings a cellular telephone into the prison but who nevertheless ends up in possession of such a device; it does not suggest that an inmate may never be convicted of a conspiracy to commit a violation of subdivision (a) of section 4576.

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