CDCR Disciplinary Finding of Conspiracy Reversed

In July 2020, a correctional officer was processing mail in the prison mailroom and opened two large envelopes addressed to inmate Arlonzo J. Banks.  The envelopes were addressed using Mr. Banks’ CDCR number, but used two different cell block numbers.  The return addressee’s name was spelled differently on each envelope and was traced to a fictitious address (it did not exist).

The correctional officer found numerous small orange squares glued underneath the bottom flap of both manilla envelopes.  The officer suspected it may be drugs, so he took photographs of the envelopes and sent the envelopes and the orange squares to a pharmacist.  The pharmacist determined the squares were Suboxone, a controlled substance (an opioid that is weaker than heroin and is also used to treat opioid use disorder).

The correctional officer then issued a rules violation report to inmate Banks, charging him with conspiring to introduce a controlled substance into prison for distribution or sale (Cal. Code Regs. Title 15, § 3016(a)).

Inmate Banks immediately asked the investigating officer, “What, if any, evidence demonstrates I agreed with another individual to introduce a controlled substance into the facility?” 

The senior hearing officer in charge of hearing the rules violation report deemed the question irrelevant.

Mr. Banks then pled not guilty and said “I don’t know nothing about this.  . . . I don’t know that person [on the return address].”

The hearing officer found Mr. Banks guilty, saying there was “an agreement between two or more people because the envelopes were addressed to Mr. Banks, the Suboxone was concealed and the return address on the envelopes was fictitious.  “Given the prison value of said contraband,” the hearing officer reasoned the sender would not risk sending the envelopes blindly, so inmate Banks and the sender must have communicated about the smuggling method.

The hearing officer then assessed a 180-day loss of custody credits, 180-day loss of pay, 60-day loss of canteen privileges, 365-day loss of visiting privileges, 730-day loss of contact visiting privileges, seven-year loss of family visits, and one month of mandatory drug testing.

Inmate Banks then exhausted his administrative remedies and filed a petition for a writ of habeas corpus in the trial court (In re Arlonzo J. Banks).  In his petition, he argued the evidence was insufficient to establish a conspiracy because anyone could learn his address and send him materials.  There was also no evidence of phone calls, visitations or other communications between Banks and the sender.

The judge in Sacramento County granted the petition, in a written order, stating there was not supported by “some evidence.”  The judge also directed the CDCR to vacate the guilty finding and restore Banks’ privileges.

The warden of the prison appealed the ruling to the Third Appellate District in Sacramento, which affirmed the trial court judge’s ruling. 

The Third District explained that “[p]risoners are entitled to minimal due process safeguards in disciplinary matters involving the possible loss of early release credits.”  In re Rigsby (2019) 38 Cal. App. 5th 1011, 1016-1017, citing Wolff v. McDonnell (1974) 418 U.S. 539, 558.  “[D]ue process in this regard requires only that there be some evidence to support the findings made in the disciplinary hearing.”  Superintendent , Mass. Corr. Institution v. Hill (1985) 472 U.S. 445, 457.

The ”’some evidence“ standard of review is “extraordinarily deferential.”  In re Zepeda (2006) 141 Cal. App. 4th 1493, at 1498.  “[T]he relevant question is where there is any evidence in the record that could support the conclusion reached by the disciplinary board.” 

“Conspiracy is an . . . offense, the essence of which is an agreement to commit an unlawful act.”  The crime has four elements: (1) the existence of an agreement between at least two persons; (2) the specific intent to agree to commit an offense; (3) the specific intent to commit an act that is the subject of the agreement; and (4) an overt act in furtherance of the conspiracy, which may be committed by any conspirator.”  People v. Ware (2022) 14 Cal. 5th 151, 163.

Here, the warden contends there must have been an agreement because it does not make any sense that the sender would send drugs of such value to a random inmate.  The appellate court noted that this argument failed for two reasons.  First, there was no evidence of the value of the Suboxone.  Second, the sender may have had the intent to target Mr. Banks without his agreement.