California Prisoner’s Conviction for Smuggling Tobacco Overturned

by Lonnie Burton

A California state prisoner convicted of a felony offense for smuggling tobacco into prison has had his conviction reversed by a California appellate court, although a related conviction for smuggling cell phones was affirmed.

In September 2011, Sherman Redd, incarcerated at Avenal State Prison, was the subject of an anonymous tip that claimed he had asked staff member Alcadio Cornil to smuggle in cell phones and tobacco. When Cornil arrived for work the next day he was met by two prison investigators. Asked to empty his pockets, he immediately responded, “I give up. I surrender.”

Cornil then produced bundles that contained four cell phones, two “tennis -ball sized” packages of tobacco and several cell phone chargers, two earbuds, four cables for the cell phones, an HDMI cable and a micro SD adaptor.

When questioned, Cornil admitted that he had been paid $1,200 to deliver the items to Redd, who worked for Cornil in the prison’s kitchen. Both Cornil and Redd were charged with felony offenses. Cornil pleaded guilty to one count of conspiracy to communicate with a prisoner without permission and one count of bribery, and received a two-year sentence.

Redd was charged with three felonies: conspiracy to communicate with a prisoner without permission, conspiracy to pervert and obstruct justice, and bribery. He was convicted on the first two counts and sentenced to an additional six years in prison on the conspiracy to communicate charge and one year, four months on the obstruction charge.

Count I, conspiracy to communicate with a prisoner, for smuggling the cell phones, was upheld by the Court of Appeal, Fifth Appellate District on July 28, 2014. In affirming the conviction, the appellate court rejected Redd’s argument that the statute was ambiguous because it only prohibited “unauthorized communication with any prisoner” but not a means to facilitate that communication. The Court of Appeal found that because the cell phones smuggled by Cornil contained documents, photos and movies stored on SD cards, the communication requirement was satisfied.

However, as to Count II, the appellate court held that under state law the act of conspiring to smuggle tobacco did not constitute an action to “pervert or obstruct justice.”

“The alleged conspiracy to bring tobacco into a state prison does not violate [the] statute,” the court wrote. The Attorney General had failed to demonstrate “how the alleged conspiracy perverts or obstructs justice,” thus there was insufficient evidence to support that conviction. Accordingly, Redd’s conviction and six-year sentence on Count I was affirmed and his conviction on Count II was reversed. See: People v. Redd, 228 Cal. App. 4th 449, 175 Cal. Rptr. 3d 351 (Cal. App. 5th Dist. 2014).

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