People v. Lee

• Decision Date: 07 February 2006
• Docket Number: No. F046238.,F046238.
• Citation: 136 Cal.App.4th 522,38 Cal.Rptr.3d 927
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Deandre LEE, Defendant and Appellant.

38 Cal.Rptr.3d 927

136 Cal.App.4th 522

The PEOPLE, Plaintiff and Respondent, v. Deandre LEE, Defendant and Appellant.

No. F046238.

Court of Appeal, Fifth District.

February 7, 2006.

Certified for Partial Publication.^*

Julia L. Bancroft, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, Plaintiff and Respondent.

OPINION

ARDAIZ, P.J.

A jury convicted DeAndre Lee of conspiracy to furnish a controlled substance to a prison inmate (Pen.Code,¹ §§ 182, subd. (a)(1), 4573.9), and he admitted having suffered a prior conviction under the three strikes law (§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)). He was sentenced to 12 years in prison and ordered to pay a restitution fine, and he now appeals.

In the published portion of our opinion, we will reject Lee's contention that, as a prison inmate, he could not properly be charged with, or convicted of, conspiring to violate section 4573.9. In the unpublished portion of our opinion, we will conclude the trial court did not improperly sentence Lee to an upper, doubled term. Accordingly, we will affirm the judgment.

FACTS

As a result of monitored telephone conversations between Lee, an inmate in the Substance Abuse Treatment Facility (SATF) at Corcoran State Prison, and his wife, Felicia Rush, correctional officers suspected Rush would be smuggling drugs into the prison at Lee's behest on July 12, 2003.² A search warrant was obtained for Rush, who was intercepted upon her arrival for visitation that day. During the search, she relinquished a green condom containing three bindles of marijuana and loose tobacco; and a clear condom containing three small bindles of marijuana, two separately-packaged rocks of cocaine base, and loose tobacco. The items had been secreted in her bra.

In her initial statements to investigators, Rush maintained that, although she had had a conversation with Lee confirming the items she was to bring in, she had been told to bring in the drugs by a noninmate she knew only as Stephon. This person was subsequently identified as Stephon Devine, an employee of the counseling program provider at SATF. By the time he was identified, he was no longer employed at the institution. Rush agreed to help the district attorney's office in its investigation of him, then informed the investigator that she had lied about Lee's lack of involvement. Further investigation revealed that Devine, Lee, and Rush were working together.³

Rush testified at trial while facing a felony charge of bringing drugs into a state prison. She admitted that, prior to July 12, she had brought in tobacco and marijuana quite a few times. If she and Lee had noncontact visits, he would signal her when she was supposed to give the contraband to one of the inmate workers in the visiting room. If they had contact visits, she usually would give the drugs directly to Lee.

According to Rush, she started bringing drugs into the prison because she was afraid of Lee. She initially received a telephone call at her office in Santa Monica. The caller told her to buy drugs and bring them to the prison. She thought it was a joke, but, a few hours later, two individuals came to her office and threatened her. She also received a telephone call from Lee's aunt, telling her that she had to give him money and cooperate with him because she was always putting him in a bind. Lee subsequently telephoned her and told her to cooperate in bringing the items into the prison. He confirmed that he knew about the people who came to her office. In addition to the items she brought to Lee, he and Devine, who were working together, had her bring tobacco and money to the prison and leave it for Devine at prearranged locations. She sent money to Devine, as well.

The drugs Rush brought into the prison on July 12 were intended for Lee, who was the one who told her to bring them in. In an earlier visit, Lee had told her what she was supposed to do, because she would "cost him, put him in a bind and all his people." He told her how to package the items, as well as the number of items to bring.

DISCUSSION

I AN INMATE CAN BE CONVICTED OF CONSPIRACY TO VIOLATE SECTION 4573.9

Section 4573.9 provides, in pertinent part: "Notwithstanding any other provision of law, any person, other than a person held in custody, who sells, furnishes, administers, or gives away, or offers to sell, furnish, administer, or give away to any person held in custody in any state prison ... any controlled substance, the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code, if the recipient is not authorized to possess the same ..., is guilty of a felony punishable by imprisonment in the state prison for two, four, or six years." (Italics added.)⁴

The parties agree that Lee could not commit the substantive offense because, as an inmate, he was not a person "other than a person held in custody." (§ 4573.9; Cf. People v. West (1991) 226 Cal.App.3d 892, 894, 898-899, 277 Cal.Rptr. 237.) Lee was not convicted of violating section 4573.9, however, but of conspiracy to violate that statute. Lee says he could not properly be charged with, or convicted of, conspiracy because the language of section 4573.9 specifically precludes him from punishment and, inasmuch as other statutes provide for lesser punishment for inmates, to apply the law of conspiracy under the circumstances present here would run contrary to the expressed legislative intent. Respondent counters that conspiracy is a separate and distinct offense from the substantive crime committed, and Lee has not shown the existence of an affirmative legislative intent that he go unpunished for his role in the charged criminal conduct.⁵

"Pursuant to section 182, subdivision (a)(1), a conspiracy consists of two or more persons conspiring to commit any crime. A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree to conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act `by one or more of the parties to such agreement' in furtherance of the conspiracy. [Citations.] [¶] Criminal conspiracy is an offense distinct from the actual commission of a criminal offense that is the object of the conspiracy. [Citations.] ... [¶] `"`In contemplation of law the act of one [conspirator] is the act of all. Each is responsible for everything done by his confederates, which follows incidentally in the execution of the common design as one of its probable and natural consequences....'"' [Citations.]" (People v. Morante (1999) 20 Cal.4th 403, 416-417, 84 Cal.Rptr.2d 665, 975 P.2d 1071, fns. omitted.)

"`[T]he basic conspiracy principle has some place in modern criminal law, because to unite, back of a criminal purpose, the strength, opportunities and resources of many is obviously more dangerous and more difficult to police than the efforts of a lone wrongdoer.' [Citation.] Collaboration magnifies the risk to society both by increasing the likelihood that a given quantum of harm will be successfully produced and by increasing the amount of harm that can be inflicted. As the United States Supreme Court wrote in Callanan v. United States (1961) 364 U.S. 587, 593-594 [81 S.Ct. 321, 5 L.Ed.2d 312]: `Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise.' (Fn.omitted.) [Citation.]

"Thus wrongful conduct by such combination should be criminally punished even when the same acts would be excused or receive a lesser punishment when performed by an individual; group criminal conduct calls for enhanced punishment, and society has a justifiable right and obligation to intervene at an earlier stage." (People v. Williams (1980) 101 Cal.App.3d 711, 721, 161 Cal.Rptr. 830.)

In light of the foregoing, "[t]here are many cases ... in which it has been recognized that a defendant may be liable to prosecution for conspiracy to commit a given crime even though he is incapable of committing the crime itself. [Citations.]" (People v. Buffum (1953) 40 Cal.2d 709, 722, 256 P.2d 317, overruled on other grounds in People v. Morante, supra, 20 Cal.4th at p. 432, 84 Cal.Rptr.2d 665, 975 P.2d 1071; People v. Roberts (1983) 139 Cal.App.3d 290, 293, 188 Cal.Rptr. 586; cf. People v. Wallin (1948) 32 Cal.2d 803, 806-807, 197 P.2d 734.) Lee now relies on narrowly-drawn, interconnected exceptions to this general rule, all of which are founded, however implicitly, on the notion that legislative intent is paramount in determining whether a party can be prosecuted for conspiracy in a given situation.

The first such exception is Wharton's Rule (1 Anderson, Wharton's Criminal Law and Procedure (1957) p. 191), which provides that where "the cooperation of two or more persons is necessary to the commission of the substantive crime, and there is no ingredient of an alleged conspiracy that is not present in the substantive crime, then the persons necessarily involved cannot be charged with conspiracy to commit the substantive offense and also with the...