People v. Redd

Filed 7/28/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F065225
Plaintiff and Respondent,
(Super. Ct. No. 11CM8888)
v.
SHERMAN REDD, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kings County. James T.
LaPorte, Judge.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
Larenda R. Delaini, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury found prison inmate Sherman Redd guilty of conspiracy to commit the
crime of communicating with a prisoner without permission (Pen. Code, §§ 182,
subd. (a)(1), 4570)1 and conspiracy to pervert or obstruct justice (§ 182, subd. (a)(5)).
On appeal, Redd contends there was insufficient evidence to support either of the
conspiracy convictions. He further contends the conviction for conspiracy to pervert or
obstruct justice must be reversed because the alleged conspiracy was a “non-crime.”
We agree there was insufficient evidence to support the conviction for conspiracy
to pervert or obstruct justice based on attempting to bring tobacco into a state prison. We
reverse the conviction for count 2 and affirm in all other respects.
FACTS AND PROCEDURAL HISTORY
On September 9, 2011, Avenal State Prison received an anonymous tip that a cook
was going to smuggle in cell phones and narcotics for an inmate the next day. On
September 10, 2011, prison cook Alcadio Cornil was stopped as he was entering the
prison, and cellophane-wrapped bindles containing cell phones and tobacco were found
on his person and in his belongings. Cornil said the items were for Redd.
On September 12, 2011, the District Attorney of Kings County filed a six-count
criminal complaint against Redd and Cornil. Cornil and the district attorney reached a
plea agreement and, in November 2011, Cornil entered a guilty plea to one count of
conspiracy to communicate with a prisoner without permission (§§ 182, subd. (a)(1),
4570) and one count of bribery (§ 68). The parties agreed Cornil would receive a two-
year prison term and the remaining charges would be dismissed.
Subsequently, a three-count amended information was filed against Redd only. In
count 1, Redd was charged with conspiring to commit the crime of communicating with
any state prison inmate or bringing into a state prison any letter, writing, literature, or
1 Unless otherwise indicated, all further statutory are to the Penal Code.
2.
reading matter to any prisoner without permission (§§ 182, subd. (a)(1), 4570). The
following overt acts were alleged:
“[(1) ¶] Prior to September 8, 2011, … Redd asked Alcadio Cornil to
furnish him with cell phones.
“[(2) ¶] On September 8, 2011, Alcadio Cornil met an unknown co-
conspirator at the Kettleman City McDonald’s to pick up cell phones.
“[(3) ¶] On September 8, 2011, Alcadio Cornil received $1200 from this
unknown co-conspirator … as payment to smuggle the cell phones into
Avenal State Prison.
“[(4) ¶] On September 10, 2011, Alcadio Cornil entered the grounds of
Avenal State Prison with 4 cell phones, 4 cell phone chargers, and one
micro SD adapter concealed on his person and within his personal
belongings.”
In count 2, Redd was charged with conspiring to pervert and obstruct justice, and
the due administration of the laws, to wit, possession of tobacco by a state prison inmate
(§ 182, subd. (a)(5); Cal. Code Regs., tit. 15, § 3006, subd. (c)(18)). The following overt
acts were alleged:
“[(1) ¶] Prior to September 10, 2011, … Redd asked Alcadio Cornil to
furnish him with tobacco.
“[(2) ¶] On September 10, 2011, Alcadio Cornil entered the grounds of
Avenal State Prison with .19 pounds of tobacco, concealed on his person
and packaged in two separate cellophane wrapped bindles.
“[(3) ¶] On September 10, 2011, Alcadio Cornil intended to deliver the
tobacco to … Redd while he worked with … Redd in a kitchen located at
Avenal State Prison.”
In count 3, it was alleged that, on or about September 10, 2011, Redd unlawfully
gave or offered to a state employee a bribe valued at greater than $950 (§ 67.5, subd. (b)).
It was further alleged that Redd had two prior serious or violent felony convictions
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
A jury trial began on May 8, 2012.
3.
Robert Amaro is a correctional sergeant at Avenal State Prison assigned to the
Investigative Services Unit (ISU). He testified that on Friday, September 9, 2011, he
received a telephone call from an unidentified woman. The caller reported that, earlier
that day, the cook who worked in Facility 5 during the morning shift on Fridays and
Saturdays brought in cell phones and narcotics and delivered them to a Black inmate
called “‘Sherm.’” She also told Amaro that the cook would be bringing in more cell
phones and narcotics on Saturday. Amaro asked the caller her name and how she knew
this information, but she declined to identify herself or explain how she knew about the
alleged smuggling activity.
Amaro looked up the 20 inmates who worked in the Facility 5 kitchen during that
day’s morning shift and noticed Redd because his first name was Sherman. Amaro then
identified Cornil as the cook who worked that day’s morning shift and who generally
worked the morning shift on Fridays and Saturdays at Facility 5.
Around 3:30 a.m. the next day, Amaro and his supervisor, Lieutenant Robert
Reifschneider, met Cornil at the front entrance of the prison. Amaro identified himself as
the investigative sergeant, and Cornil “became visibly shaken, literally shaking.” Amaro
and Reifschneider escorted Cornil to an office, and Amaro told Cornil they had reason to
believe he was attempting to introduce cell phones and narcotics into the prison. Cornil
immediately responded, “‘I give up. I surrender,’” and placed his personal cell phone on
the table.
Amaro asked Cornil to empty his pockets. From his pants pockets, Cornil
removed two cellophane-wrapped bindles—each containing two cell phones—and two
“tennis ball sized” cellophane-wrapped bindles that contained tobacco. From his lunch
bag, Cornil produced four cell phone chargers, two earbuds, four cables for the cell phone
4.
chargers, an HDMI cable, and a micro SD adapter.2 These items were also packaged in
cellophane. Taped to one of the chargers was a piece of paper on which the letter “S”
was handwritten, and the micro SD adapter was similarly labeled. One of the cell phones
had a piece of paper taped to it that read “S” and “Fontana, California. No sim.’”
Amaro advised Cornil of his Miranda3 rights, and Amaro and Reifschneider
conducted a recorded interview with Cornil. A redacted recording of the interview was
played for the jury, and a transcript of the interview was provided to the jury and is part
of the record on appeal.
In the interview, Cornil acknowledged that when he had been taken aside for an
inspection of his belongings, he said he wanted to surrender. Cornil told the officers the
cell phones, chargers, and tobacco were intended to be delivered to Redd, an inmate who
worked in the Facility 5 kitchen. Cornil said that on the previous day he delivered a
screen to Redd. Asked if anybody was working with Redd, Cornil responded, “I have no
idea. I just, he’s just the one I talked to.” Cornil explained that Redd sent someone to
Kettleman City the previous Thursday to meet with Cornil at McDonald’s. Cornil
described the person as a Black man. The man said Redd sent him and gave Cornil a
plastic bag. The man also gave Cornil $1,200 in cash, $300 for each cell phone.
Amaro searched Cornil’s car and did not find anything that linked Redd to Cornil.
Amaro also had a correctional officer confiscate Redd’s property from his assigned bunk
area and locker. No “pay/owe sheets” were found in Redd’s confiscated property.
Amaro testified that inmates are not allowed to possess tobacco or cell phones
under the Department of Correction’s regulations. He thought the “going rate” (that is,
2 During his testimony, Amaro identified the items he found on Cornil, and it appears he
confiscated five chargers, four charger cables, two earbuds, two HDMI cables, and one micro SD
adapter from Cornil.
3 Miranda v. Arizona (1966) 384 U.S. 436, 444-445.
5.
the amount an inmate would pay in prison) for a standard cell phone without internet
access was about $300 or $400. The phones confiscated from Cornil had internet
capability, and Amaro opined that each one could be worth over $1,000 in prison.
On cross-examination, Amaro agreed that this case was the first time he had
testified in court about tobacco or cell phones. He had testified in administrative hearings
about tobacco.
Cornil was called as a witness by the People, but he did not want to testify and
stated he just wanted to “do [his] time and go home.” His response to many questions
was that he forgot or he did not know. He testified that he had been diagnosed with a
mental health problem. Although he remembered being interviewed by ISU officers,
Cornil claimed he did not remember what was said during the interview. He explained,
“That day I got busted I just took two pills of Vicodin and I don’t know what else I was
saying.” He admitted that the cell phones were intended for an inmate he worked with,
but when specifically asked whether the cell phones were for Redd, Cornil replied that he
did not remember.
Michael Gonzales was a culinary officer in the Facility 5 kitchen in September
2011. His duties were to process inmates into work and supervise them. He supervised
Redd, who worked as a recycle technician, dumping trash. Gonzales testified that he
heard other inmates call Redd “‘Sherm,’” a nickname short for Sherman. Gonzales also
worked with Cornil, who worked as a correctional supervising cook. Gonzales never saw
Redd and Cornil speak to each other.
Correctional officer Earl Parks, who worked in the ISU, examined Redd’s
confiscated property. He found an envelope addressed to Redd that contained two micro
SD cards, one card had a one-gigabyte capacity and the other had an eight-gigabyte
capacity. Parks explained that smart phones are “basically small computers” and an SD
card is a storage device that can be used with a smart phone. When an SD card is placed
in a smart phone and formatted for that phone, files are created on the card.
6.
Parks conducted a forensic examination of the two micro SD cards found in
Redd’s property. The cards were formatted and associated with a cell phone number;
both cards were associated with the same cell phone number. The service provider for
that number was Verizon, and the name on the account was Annabelle Sauni. Sauni’s
husband was an Avenal State Prison inmate and, in September 2011, he was housed in
the same housing unit as Redd. The micro SD cards also were associated with an email
address, “Bluesherm137@aol.com.” The cards contained movies, videos, and
photographs, including photographs of Redd.
In addition, Parks examined the cell phones that were found with Cornil on
September 10, 2011. One of the phones, a Droid 3 smart phone, had a micro SD card,
which Parks analyzed. The card contained movies, a refinance agreement for a loan, and
financial documents. It also contained photographs, including photos of a woman and an
Avenal State Prison inmate that had been taken in the prison visiting room. The inmate
in the photos was Kevin Murphy, who was housed in the same housing unit as Redd in
September 2011.
On Cornil’s personal cell phone, Parks found telephone numbers for “Luxy” and
“Simon” stored as contacts. Parks did not find any text messages between Cornil and
Redd on Cornil’s phone.
Parks subpoenaed from Verizon the cell phone records for Sauni. Sauni’s Verizon
account was associated with seven different cell phone numbers, including the cell phone
number associated with Redd’s micro SD cards. Among Sauni’s other telephone
numbers were the numbers for Luxy and Simon from Cornil’s contacts. It also appeared
that the cell phone number associated with Redd’s two micro SD cards had logged calls
and texts from two women who were listed as Redd’s visitors.
On cross-examination, Parks testified that he found, among Redd’s confiscated
things, paper with handwritten numbers, letters, and names, which appeared to be related
to fantasy football. There were lists of “RB,” “WR,” and “TE,” likely referring to
7.
running backs, wide receivers, and tight ends, along with names, such as Johnson and
Moss, and abbreviations such as “Ten” and “Was,” presumably referring to players and
teams respectively.
Correctional officer Todd Denham testified about an incident that occurred on
June 22, 2008. During the 12:45 a.m. count, he observed Redd sleeping on his bunk.
Denham saw a light coming from Redd’s stomach and realized it was a cell phone.
Denham confiscated the phone, a Samsung Verizon flip phone.
On May 15, 2012, the jury began deliberating, and Redd brought a motion
pursuant to section 1118.1. With respect to count 1, his attorney argued that mere
possession of cell phones was not communication; it was a means of communication.
With respect to count 2, he asserted that section 182, subdivision (a)(5), conspiracy to
pervert or obstruct justice, is not a “catch-all type of charge,” but is generally limited to
conduct of an officer in connection with the administration of his or her public duties.
The same day, Redd admitted he had one prior strike conviction. The People
moved to strike the second allegation of a prior strike conviction due to insufficient
evidence, and the trial court granted the motion. The jury reached a verdict on counts 1
and 2, finding Redd guilty of both counts, but deadlocked on count 3. The court declared
a mistrial as to count 3.
On June 19, 2012, the trial court held a sentencing hearing. The court denied
Redd’s section 1118.1 motion. The People moved to dismiss count 3 in the interest of
justice, and the court dismissed the count as requested. The court sentenced Redd to six
years (upper term of three years doubled) for count 1 and one year four months (one-third
the middle term of two years doubled) for count 2 for a total term of seven years four
months in state prison. The same day, Redd filed a notice of appeal.
8.
DISCUSSION
Redd contends the evidence was insufficient to prove either of his conspiracy
convictions. For count 2, he argues that bringing tobacco into a state prison and
possession of tobacco by an inmate do not constitute obstruction of justice.
I. Standard of review
In deciding a challenge to the sufficiency of the evidence, we “examine the whole
record in the light most favorable to the judgment to determine whether it discloses
substantial evidence—evidence that is reasonable, credible and of solid value—such that
a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”
(People v. Kraft (2000) 23 Cal. 4th 978, 1053.) We “presume[] in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citations.] The same standard applies when the conviction rests primarily on
circumstantial evidence. [Citation.]” (Ibid.)
To the extent Redd’s contention requires us to interpret a statute and determine its
applicability to a given set of facts, these are questions of law, which we decide
independently. (People v. Superior Court (Martinez) (2014) 225 Cal. App. 4th 979, 990.)
II. Count 1—conspiracy to violate section 4570
“Pursuant to section 182, subdivision (a)(1), a conspiracy consists of two or more
persons conspiring to commit any crime.” (People v. Morante (1999) 20 Cal. 4th 403,
416, fn. omitted.) A conviction for conspiracy under section 182, subdivision (a)(1)
“requires proof that the defendant and another person had the specific intent to agree or
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.” (People v. Morante, supra,
at p. 416.)
In count 1, Redd was convicted of conspiracy to violate section 4570,
unauthorized communication with any prisoner. Section 4570 provides:
9.
“Every person who, without the permission of the warden or other
officer in charge of any State prison . . . communicates with any prisoner or
person detained therein, or brings therein or takes therefrom any letter,
writing, literature, or reading matter to or from any prisoner or person
confined therein, is guilty of a misdemeanor.”
Redd asserts that the language of section 4570 is unambiguous, and it prohibits
unauthorized communication with any prisoner but does not prohibit providing a means
of facilitating communication—such as a cell phone—to an inmate.4 The Attorney
General does not dispute this.
In this case, the jury was instructed on section 4570:
“The elements of a violation of unauthorized communication with a state
prison inmate are defined as follows:
“1[.] Any person who willfully, without permission of the warden,
communicates with a prisoner who was committed to and confined in a
California State Prison.
“OR
“2[.] A person willfully brought or assisted in bringing into a
California State Prison or onto the grounds thereof or take therefrom, any
letter, writing, literature or reading matter to or from any prisoner.
“Communication means actual communication with an inmate, but
does not specify the means by which communication occurs[.]”
Thus, assuming without deciding that Redd is correct and providing a means of
facilitating communication, by itself, is not a violation of section 4570, the jury was
properly instructed on the law; it was told that communication means “actual
communication.”
4 We note that section 4576, subdivision (a) now makes it a misdemeanor to deliver a cell
phone or memory storage device to an inmate and subdivision (c) of section 4576 provides that
“[a]ny inmate who is found to be in possession of a wireless communication device shall be
subject to time credit denial or loss of up to 90 days.” Section 4576, however, does not apply to
the current case because it became effective October 6, 2011, after Cornil was apprehended.
(Stats. 2011, ch. 500, § 1.)
10.
Redd acknowledges that he “could nevertheless be convicted of conspiring to
violate Penal Code section 4570 if there was substantial evidence that the objective of the
conspiracy was not merely to provide cell phones to an inmate but to use the cell phones
to communicate with an inmate.” He argues, however, “the evidence showed the cell
phones were ‘most likely provided to sell’ or used for ‘fantasy football,’ rather than to
facilitate communication between any of [Redd’s] fellow inmates.” We are not
persuaded. Redd does not explain the basis for his assertion that the cell phones were
most likely intended for sale or for use in fantasy football. Even if there was evidence
from which the jury could determine that one or more of the cell phones was intended for
sale or for use in fantasy football, this would not preclude a finding that Redd also
intended one or more of the cell phones to be used for unauthorized communication with
any prisoner. Here, the evidence showed that one of the cell phones Cornil intended to
deliver to Redd—the Droid 3—contained movies, financial documents, and photographs
of Murphy, an inmate housed in Redd’s housing unit. The jury reasonably could deduce
from this evidence that Redd intended to deliver the Droid 3 to Murphy. The delivery of
the Droid 3 to inmate Murphy, in turn, would be a violation of section 4570 because the
phone itself contained “writing” and “reading matter” in the form of financial documents.
Accordingly, there was sufficient evidence to support a finding that Redd intended to
“bring[] … [into a state prison] any letter, writing, literature, or reading matter to … any
prisoner.” (§ 4570.) In addition, two micro SD cards were found in Redd’s belongings.
These cards were associated with a cell phone number and an email address. The jury
reasonably could infer that Redd intended to use at least one of the cell phones found
with Cornil for unauthorized communication by email, text, or telephone calls.
Redd next claims there was insufficient evidence of a conspiracy because there
was no evidence that Cornil intended that the cell phones be used for unauthorized
communication with any inmate. He asserts: “[V]iewed in the light most favorable to
the prosecution, the evidence shows only that Cornil agreed to deliver the cell phones
11.
into the prison. It does not show that he had any knowledge as to his reason for doing so
or that he had any intent to achieve any objective beyond the mere delivery of the items.”
We disagree. Cornil testified that he pled guilty to conspiracy to communicate with any
prisoner. A guilty plea is “a judicial admission of every element of the offense charged.”
(People v. Chadd (1981) 28 Cal. 3d 739, 748.) Given that the jury was informed of
Cornil’s guilty plea, it cannot be said there was no evidence of his intent to commit the
crime of unauthorized communication with any prisoner.
III. Count 2—conspiracy to pervert or obstruct justice
Under section 182, subdivision (a)(5), it is a crime for two or more persons to
conspire to commit any act “to pervert or obstruct justice, or the due administration of the
laws.”5
In count 2, Redd was convicted of conspiracy to pervert or obstruct justice based
on the allegations that Redd asked Cornil to bring him tobacco and Cornil subsequently
entered the prison with tobacco wrapped in cellophane, intending to deliver it to Redd.
Redd contends that count 2 was “unfounded as it misapplied and improperly criminalized
possession of tobacco by a state prison inmate.”6 Essentially, Redd’s argument is that
bringing tobacco into a state prison does not pervert or obstruct justice or the due
administration of the laws.
In 1950, the California Supreme Court explained the meaning of an act that
perverts or obstructs justice, or the due administration of the laws:
5 Section 182, subdivision (a)(5) also makes it a crime to conspire “[t]o commit any act
injurious to the public health, to public morals,” but this language was not used in the amended
information, and no argument was made that Redd’s conduct was injurious to public health or
morals.
6 Redd points out that, although inmates are not allowed to possess tobacco under the
Department of Correction and Rehabilitation’s rules and regulations, possession of tobacco is
classified as an administrative rule violation, not a serious rule violation. (Cal. Code Regs.,
tit. 15, §§ 3006, subd. (c)(18), 3314, subd. (a)(3)(A), 3315.) Therefore, he asserts, the allegations
of count 2 constitute “an administrative level offense and not a criminal offense.”
12.
“Generally speaking, conduct which constitutes an offense against
public justice, or the administration of law includes both malfeasance and
nonfeasance by an officer in connection with the administration of his
public duties, and also anything done by a person in hindering or
obstructing an officer in the performance of his official obligations. Such
an offense was recognized at common law and generally punishable as a
misdemeanor. Now, quite generally, it has been made a statutory crime
and, under some circumstances, a felony. [Citation.]
“In California, the statutes relating to ‘Crimes Against Public
Justice’ are found in part I, title [7], of the Penal Code. Bribery, escapes,
rescues, perjury, falsifying evidence, and other acts which would have been
considered offenses against the administration of justice at common law are
made criminal by legislative enactment. Section 182, subdivision 5,[7] is a
more general section making punishable a conspiracy to commit any
offense against public justice. The meaning of the words ‘to pervert or
obstruct justice, or the due administration of the laws’ is easily ascertained
by reference either to the common law or to the more specific crimes
enumerated in part I, title [7]. A conspiracy with or among public officials
not to perform their official duty to enforce criminal laws is an obstruction
of justice and an indictable offense at common law. [Citation.] In the same
category is a conspiracy to obtain the release of a person charged with a
felony by presenting a worthless and void bail bond. Such a conspiracy has
been held to be a perversion of the due administration of the law, and an
offense within the meaning of subdivision [(a)]5 of section 182 of the Penal
Code. [Citation.]” (Lorenson v. Superior Court (1950) 35 Cal. 2d 49, 59-
60, italics added (Lorenson).)
In Lorenson, the defendant was a police captain in the Los Angeles Police
Department indicted for conspiracy to commit robbery, to commit assault with a deadly
weapon, and to pervert or obstruct justice. (Lorenson, supra, 35 Cal.2d at pp. 50-51.) In
rejecting a claim of insufficient evidence to support the indictment, the court concluded
that one could infer from the evidence that there was agreement among the defendant,
other members of the police department, and criminal associates of Mickey Cohen to
assault and rob the victim, Pearson. The court further noted that there was evidence from
7 Former section 182, subdivision (5), was renumbered as section 182, subdivision (a)(5),
in 1989 without any change to the language. (Stats. 1989, ch. 897, § 15.)
13.
which one could infer that the defendant and other police officers “were to furnish
protection to the participants in the conspiracy by refusing to disclose the identity of
Pearson’s attackers, if they were arrested, and to effect their release from custody.” (Id.
at p. 57.) After the robbery and assault, Cohen’s associates were arrested (apparently by
officers not involved in the conspiracy), but they were immediately released from the
police station before Pearson could arrive to identify any of them, and the arresting
officers were instructed not to talk about the incident. (Id. at p. 54.) Lorenson is an
example of “[a] conspiracy with or among public officials not to perform their official
duty to enforce criminal laws,” an indictable offense at common law. (Id. at pp. 59-60.)
Here, as Redd points out, nothing in part 1, title 7 of the Penal Code deals with
bringing tobacco into a prison or possession of tobacco by a state prisoner, and we also
observe that the People did not claim that smuggling tobacco into a prison or possession
of tobacco by a prisoner was an indictable offense at common law.
The Attorney General responds that bringing tobacco into a state prison is
unlawful and therefore conspiring to do so perverts and obstructs justice and the due
administration of the laws. She offers no authority, however, for the proposition that
section 182, subdivision (a)(5), is so expansive that it criminalizes any conspiracy to
commit any unlawful act.
The Attorney General relies on Davis v. Superior Court (1959) 175 Cal. App. 2d 8
(Davis), in which the Court of Appeal expanded upon Lorenson. In Lorenson, the
Supreme Court explained that the meaning of the words “‘to pervert or obstruct justice,
or the due administration of the laws’” could easily be ascertained by reference either to
the common law or to the more specific “‘Crimes Against Public Justice,’” found in
part 1, title 7 of the Penal Code. (Lorenson, supra, 35 Cal.2d at p. 59.)
In Davis, the Court of Appeal held that conduct that perverts or obstructs justice is
not necessarily limited to crimes listed in part 1, title 7 of the Penal Code, nor are all
crimes in that title necessarily crimes that pervert or obstruct justice:
14.
“The reference [in Lorenson] to ‘Crimes Against Public Justice’
does not necessarily exclude a crime not defined within the four corners of
that part 1, title [7], of the Penal Code .… The court’s reference to such
crimes was illustrative, rather than exclusionary; the type of conduct with
which title [7] principally deals falls within the category of acts ‘to pervert
or obstruct justice.’
“Thus the [Lorenson] court did not, for example, mean to exclude
from the category of acts ‘to pervert or obstruct justice’ corrupt conduct of
attorneys formerly prohibited by sections 160 and 161 of title [7] but now
proscribed by sections 6128 and 6129 of the Business and Professions
Code, a part of the State Bar Act. Nor do we believe that the court meant
thereby to include as acts ‘to pervert or obstruct justice’ the illegal sale of
liquor within certain distances of the several educational institutions
proscribed in sections 172, 172a and 172d under title [7].” (Davis, supra,
175 Cal.App.2d at p. 16, italics added.)
In Davis, the defendant was charged with a conspiracy to pervert and obstruct
justice by means of violation of section 4570. (Davis, supra, 175 Cal.App.2d at p. 11.)
The court observed that section 4570 had been contained in title 7 until 1941, and the
statute was moved “only for inclusion under a more appropriate heading.” (Id. at p. 16.)
Moreover, the court noted that title 7 did include a prohibition against communication
similar to section 4570 but applied to reformatories. The court concluded, “We cannot
find that the inhibition as to the writing at a reformatory constitutes a public crime while
that applicable to a prison does not.” (Ibid.)
From Davis, the Attorney General relies on the sentence, “The court’s reference to
such crimes [found in part 1, title 7 of the Penal Code] was illustrative, rather than
exclusionary; the type of conduct with which title [7] principally deals falls within the
category of acts ‘to pervert or obstruct justice.’” (Davis, supra, 175 Cal.App.2d at p. 16.)
This may be so, but the Attorney General does not explain why possession of tobacco
must be included in the set of crimes that are “Crimes Against Public Justice” for
purposes of section 182, subdivision (a)(5). The Davis court certainly did not hold that
committing any unlawful act is necessarily a perversion or obstruction of justice. To the
contrary, the court opined that even certain title 7 crimes would not amount to a
15.
perversion or obstruction of justice. (Davis, supra, at p. 16 [noting, in dicta, that the
illegal sale of liquor within certain distances of the several educational institutions would
not constitute a “‘Crime Against Public Justice’”].)
Furthermore, the Davis court observed, “section 182 subdivision [(a)(5)] ‘is no
narrowly drawn statute,’ and if it is not to ‘run afoul of the Due Process Clause because it
fails to give adequate guidance to those who would be law-abiding, to advise defendants
of the nature of the offense with which they are charged, or to guide courts in trying those
who are accused’ [citation], it must be given content by the cases.” (Davis, supra, 175
Cal.App.2d at p. 14.) The Davis court recognized that the constitutionality of the statute
rested upon cases, including Lorenson, supra, 35 Cal. 2d 49, that “have charted
boundaries to its otherwise limitless sea of criminality.” (Davis, supra, at p. 14.) As
interpreted by the courts, section 182, subdivision (a)(5), “is not limitless but contracted.”
(Davis, supra, at p. 16.)
Given that section 182, subdivision (a)(5), is limited, it is incumbent upon the
Attorney General to explain why the allegations against Redd—conspiring to bring
tobacco into a state prison—constitute a perversion or obstruction of justice, or the due
administration of the laws. It is not enough to show that the object of the conspiracy was
not lawful. We note that the Attorney General does not claim, for example, that Cornil
was a public official and smuggling tobacco to an inmate was a failure to perform his
official duty to enforce criminal laws. (Cf. Lorenson, supra, 35 Cal.2d at pp. 59-60 [“A
conspiracy with or among public officials not to perform their official duty to enforce
criminal laws is an obstruction of justice and an indictable offense at common law.”].)
Nor does the Attorney General point to any evidence in the record showing that Cornil’s
duties as a correctional supervising cook included enforcement of the law.
The alleged conspiracy to bring tobacco into a state prison does not violate a
statute found in part 1, title 7 of the Penal Code, nor is there any claim that the allegations
would have been a crime under common law. Because the Attorney General has not
16.
demonstrated how the alleged conspiracy perverts or obstructs justice or the due
administration of the laws, there was insufficient evidence to support Redd’s conviction
for count 2. We need not consider Redd’s remaining claim that the alleged conspiracy
was a “non-crime.”
DISPOSITION
The conviction for count 2, conspiracy to pervert or obstruct justice, or due
administration of laws, is reversed. The trial court is directed to forward the amended
abstract of judgment, omitting the conviction, to appropriate prison authorities. The
judgment is affirmed in all other respects.
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Kane, J.
WE CONCUR:
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Hill, P.J.
_____________________
Gomes, J.
17.