## Facts

- DeAndre Lee was incarcerated at the Substance Abuse Treatment Facility at Corcoran State Prison.
- Based on monitored phone calls between Lee and his wife, Felicia Rush, correctional officers suspected Rush would smuggle drugs into the prison at Lee’s direction.
- Officers obtained a search warrant and searched Rush when she arrived for a visit.
- Rush relinquished condoms hidden in her bra containing marijuana, cocaine base, and loose tobacco.
- Rush initially minimized Lee’s involvement and claimed she was directed by a noninmate known as “Stephon,” later identified as Stephon Devine, an employee in the prison counseling program.
- After agreeing to cooperate, Rush admitted she had lied about Lee’s lack of involvement; investigators concluded Devine, Lee, and Rush were acting together.
- Rush testified she had previously smuggled tobacco and marijuana into the prison multiple times and sometimes provided contraband directly to Lee during contact visits.
- Lee was charged with conspiracy to furnish a controlled substance to a prison inmate under Penal Code §§ 182(a)(1) and 4573.9.
- Penal Code § 4573.9 (as then written) applied to “any person, other than a person held in custody,” who furnishes specified controlled substances to an inmate.

## Issues

1. Whether an inmate excluded from direct liability under Penal Code § 4573.9 (“other than a person held in custody”) may nevertheless be convicted of conspiracy to violate that statute.
2. Whether the trial court erred in imposing an upper term sentence doubled under the Three Strikes law.

## Decision

- The Court of Appeal affirmed the judgment.
- The court held Lee could be convicted of conspiracy to violate Penal Code § 4573.9 even though, as an inmate, he could not be convicted as a principal furnisher under the statute.
- The court concluded the statutory phrase excluding persons held in custody limits only who may be punished as a direct perpetrator under § 4573.9, not who may be punished for agreeing with a noninmate to commit the prohibited furnishing.
- The court also upheld the sentence, including the upper term doubled under the Three Strikes law.

## Legal Principles

- Conspiracy is a distinct offense from the completed substantive crime; liability turns on an agreement to commit an unlawful act, specific intent, and an overt act in furtherance of the agreement.
- A statutory limitation defining who may commit the target offense as a principal does not, without a clear legislative indication, bar conspiracy liability for a participant who agrees that a qualifying actor will commit the prohibited act.
- An individual’s personal inability to commit the target offense as a principal (because the statute excludes that person’s status) does not negate conspiracy liability when the conspiracy’s object can be accomplished by a coconspirator who falls within the statute.

## Conclusion

The court affirmed Lee’s conspiracy conviction and sentence, holding that Penal Code § 4573.9’s exclusion of persons held in custody from principal liability does not prevent an inmate from being convicted of conspiring with noninmates to furnish controlled substances to an inmate.


People v. Lee, 136 Cal. App. 4th 522 (Ct. App. 2006)