Prison Inmate Receives Illegal Cell Phone: Conspiracy?

If you know anyone in prison, he or she may have called you on a cell phone, rather than through a landline.  The fact that the call came from a cell phone may have surprised you that an inmate would have such an item, as a cell phone can be expensive.

It may surprise also surprise you that the California State Legislature has not made mere possession of a “wireless communication device” by an inmate a crime and instead provided for punishment of this conduct through noncriminal loss of custody credits, with a maximum loss of credits being 90 days.

However, sometimes, an inmate having a cell phone can be charged with conspiracy, which is a crime and carries with it far more serious punishment, as the following summary of a Fourth Appellate District case exemplifies.

In 2018, Alan Bueno, an inmate at Centinela State Prison, arranged with a prison employee to obtain a cellular telephone.  Mr. Bueno instructed his wife, S., to send the prison employee $600 for the prison employee to then deliver the phone to Mr. Bueno.  S. then sent the $600 to a Walmart account in a Walmart in El Centro, a city near Centinela.

Mr. Bueno was caught and convicted in Imperial County Superior Court of conspiracy to deliver a cell phone to an inmate or to possess a cell phone within a state prison with the intent to deliver it to an inmate, in violation of Penal Code § 4576(a).  He was also charged with giving or offering a bribe to a ministerial officer (Penal Code § 67.5(a)).

It should be noted that Bueno had a prior conviction for a strike offense (Penal Code §§ 667(d), 1170.12(b)) and one prison prior (Penal Code § 667.5(b)), so he faced certain sentence enhancements. 

Pursuant to a plea agreement, the sentencing enhancements were dismissed, as was the bribery charge, and Mr. Bueno was sentenced to the low term sentence of sixteen months, halved for a conspiracy charge.  In other words, eight months was added to his sentence at Centinela.

Mr. Bueno then filed an appeal in the Fourth Appellate District, challenging the trial court’s denial of his motion to dismiss the complaint, wherein he argued that he could not be charged with conspiracy because the prison had its own disciplinary system to address possession of a cell phone and the maximum punishment was 90 days.

The Fourth Appellate District affirmed the trial court’s denial of Bueno’s motion to dismiss, denying Bueno’s appeal.

The Fourth Appellate District explained that a conspiracy is a different crime entirely than just possession of a banned substance in prison.  A 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.

Here, although the intended offense at issue was a misdemeanor, the conspiracy to commit a misdemeanor may be punished as a felony.  People v. Tatman (1993) 20 Cal. App. 4th 1, 7.

This was appropriate here, the Fourth Appellate District explained, because a conspiracy involves “the division of labor inherent in a group association encourages, as here, the selection of more elaborate and ambitious goals and to increase the likelihood that the scheme will be successful.  Moreover, the moral support of the group is seen as strengthening the perseverance of each member of the conspiracy, thereby acting to discourage any reevaluation of the decision to commit the offense which a single offender may undertake.”  Tatman, supra, at p. 8.

Moreover, here, Mr. Bueno orchestrated a scheme involving his wife for access to a cellular telephone and his conviction for conspiracy to violate Penal Code § 4576(a) was affirmed, despite his being the one who received the illegal cell phone.

We regard this summary as a bit of a cautionary tale to anyone in prison thinking about arranging to possess a cell phone in prison.  He or she may not just face a 90-day loss of custody credit as is commonly understood.

The citation for the Fourth Appellate District Court ruling discussed above is People v. Alan Bueno (4th App. Dist., 2022) 83 Cal. App. 5th 44, 299 Cal. Rptr. 3d 296.

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