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California Court of Appeal • 1991

People v. Sconce

228 Cal. App. 3d 693 | 279 Cal. Rptr. 59 | 91 Cal. Daily Op. Serv. 1964 | 91 Daily Journal DAR 3181 | 1991 Cal. App. LEXIS 255

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Takeaway

In short, this case holds that withdrawal after an overt act may limit future conspiratorial liability, but it cannot erase liability for a conspiracy already completed.

Background

David Wayne Sconce was charged with conspiracy to murder Elie Estephan, the estranged husband of Cindy Strunk. The preliminary-hearing evidence indicated that Sconce discussed paying employees $10,000 to $15,000 to kill Estephan, pointed Estephan out through binoculars from a nearby restaurant, supplied his address, and repeatedly asked whether the plan was being carried out. Garcia, an employee, recruited Herbert Dutton, and the two drove to Estephan’s home to assess whether they could bomb his car.

About three weeks after his initial conversations with Garcia, Sconce told Garcia to call the plan off and to disregard the killing. A magistrate nevertheless held Sconce to answer, and the People filed an information alleging conspiracy to commit murder and six overt acts. The trial court granted Sconce’s Penal Code section 995 motion to set aside the information, reasoning that he had effectively withdrawn from the conspiracy. The People appealed.

Issues

Issue #1

Whether an effective withdrawal after overt acts have been committed is a defense to the completed crime of conspiracy.

Holding

No. Once an overt act in furtherance of the unlawful agreement has occurred, later withdrawal does not erase liability for the completed conspiracy.

Reasoning

A California conspiracy consists of an agreement between two or more persons to commit a crime, accompanied by an overt act in furtherance of that agreement. The overt act need not itself be criminal, amount to an attempt, or constitute aiding and abetting; the substantive target offense also need not be completed.

The overt-act requirement supplies the conspirators’ locus poenitentiae: their opportunity to reconsider the plan, terminate it, and avoid punishment for conspiracy. Conversely, once an overt act is committed, the conspiracy offense is complete. A conspirator cannot undo the already completed crime merely by later changing course.

Withdrawal requires an affirmative, bona fide repudiation communicated to coconspirators. It can cut off liability for later crimes committed by the remaining conspirators and, in appropriate circumstances, can matter to limitations issues. But it does not relate back to negate the original unlawful agreement and overt act.

Thus, even assuming Sconce effectively told Garcia to abandon the plan, that withdrawal would not defeat the conspiracy charge. The court therefore did not need to decide whether Sconce’s communication was sufficiently clear or sufficiently broad to amount to an effective withdrawal.

The trial court’s policy concern—encouraging conspirators to abandon criminal schemes—did not permit it to create a complete post-overt-act withdrawal defense. California’s settled rule remains controlling, and any broader renunciation defense, such as the Model Penal Code recognizes when a defendant thwarts the conspiracy, must come from the Legislature.

Issue #2

Whether the evidence provided a rational basis to hold Sconce to answer for conspiracy to commit murder.

Holding

Yes. The evidence supported a reasonable suspicion that Sconce joined a murder conspiracy and that overt acts were committed to advance it.

Reasoning

On a section 995 motion, the court does not determine guilt or reweigh evidence. It asks only whether a person of ordinary caution and prudence could reasonably suspect that a public offense occurred and that the defendant participated. Every legitimate inference must be drawn in favor of the information, while conflicts and witness credibility are primarily for the committing magistrate.

The record supported an inference of a murder agreement: Sconce offered money for Estephan’s killing, connected the plan to Estephan’s life-insurance proceeds, identified Estephan and his location for Garcia, and followed up on whether Garcia was going to carry out the killing.

The alleged overt acts went beyond mere discussion or preliminary negotiation. Surveillance of Estephan through binoculars, providing his address, trips to his residence, recruiting Dutton, and discussing a plan to bomb Estephan’s car were concrete steps advancing the agreed objective. The trial court itself had recognized that a conspiracy existed before Sconce purportedly withdrew.

The evidence also permitted an inference that multiple people participated. Garcia agreed to find or commit the killing and recruited Dutton, who agreed to do it and inspected the victim’s residence. Pollerana’s refusal to kill Estephan did not eliminate the evidence that he knowingly assisted Garcia, and the absence of an upfront payment or a settled price did not prevent Dutton from being part of the conspiracy.