Interesting. I don't know how I come out on this one.
DeAndre Lee is a prisoner and would like to smoke some weed. So he asks his wife to bring some to him the next time she visits him in prison. But, stupidly, he does so over a monitored phone. Not too bright. So the next time she comes, the guards search her, and find some marijuana and some loose tobacco and a little bit of crack in a couple of condoms hidden in her bra.
Okay, so that seems like a pretty easy case. And I'm sure it is, against the wife: an attempt to bring controlled substances into the prison in violation of Section 4573.9 of the Penal Code. Easy.
But here's the toughie. Section 4573.9 expressly doesn't apply to prisoners; rather, it says that it's a crime for anyone "other than a person held in custody" to attempt to smuggle stuff into prison. As a result, they clearly can't charge Lee for a violation of (or attempt to violate) Section 4573.9. They can, of course, charge him with other crimes. But they want to charge him with this one, presumably because it (unlike the others) is a felony, and since Lee already has a strike, this means he's gonna spend tons of time in prison if they can convict him of Section 4573.9 rather than something else. But, remember, that statute expressly doesn't apply to prisoners.
So here's where the State gets creative. They charge Lee with conspiracy to violate Section 4573.9, since he (after all) asked Lee to help. Lee says: "Wait a minute, I can't conspire to violate a statute I'm unable to violate as a matter of law." But Justice Ardaiz says "Yes you can, because conspiracy is a separate crime with separate dangers." To which Lee says, "I disagree, but in any event, common law doctrines entirely aside, surely you'll have to agree with me that the fact that the Legislature expressly exempted prisoners from Section 4573.9 -- presumably because they didn't want such a harsh penalty for prisoners -- means that they also intended that prisoners also not be punished under that law for conspiring to violate it." To which Justice Ardaiz responds: "Nope, I surely do not have to agree. The Legislature didn't like running drugs into prison. Guilty. Enjoy the extra 12 years in prison for your attempt to smuggle a little pot into your cell."
A while back, I wrote a fairly long piece about criminal conspiracy in the Stanford Law Review, and so have a pretty decent understanding about the concepts involved here. The reasoning that Justice Ardaiz employs is assuredly not clearly wrong, but it still troubles me a bit. I'm just not sure that conspiracy can or should be allowed to swallow up an express statutory exception. I'm not willing to say that I'd come out the other way, but there's a part of me that's definitely tugged in that direction.
On a less theoretical note, the opinion is funny because its discussion of Wharton's Rule -- which, again, I'm fairly hip on -- contains a paragraph-by-paragraph analysis of the leading cases regarding this Rule, and these cases always involve interesting underlying crimes. Paragraph 1: Transporting women across state lines for immoral purposes (Mann Act). Paragraph 2: Adultery. 3: Abortion. 4: Miscarriages. 5: Prostitution. 6: Three-card monte. 7: Keeping a Bordello. 9: Statutory Rape.
Seven out of nine cases about sex-related crimes, and one about gambling. It's sometimes interesting about how it's often the "victimless" crimes that occasionally push the envelope in various areas of the law. I should think about this more, but I really do thing that there's something about that. It can't just be a coincidence that this area of doctrine -- like several others -- is dominated by cases of this type.
