Citation. 228 Cal. App. 3d 693, 279 Cal. Rptr. 59, 1991 Cal. App. 255, 91 Cal. Daily Op. Service 1964.
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This is an appeal by the People following a decision in the lower court prior to trial in favor of the Defendant, David Wayne Sconce (Defendant). The Defendant had been charged with conspiring with Bob Garcia (Garcia) to commit the murder of Elie Estephan (Estephan).
Synopsis of Rule of Law.
Once a defendant’s participation in a conspiracy is shown, it will be presumed to continue unless he is able to prove, as a matter of defense, that he effectively withdrew from the conspiracy. Withdrawal from a conspiracy requires an affirmative and bona fide rejection or repudiation of the conspiracy, communicated to the co-conspirators. Further, under California law, withdrawal is a complete defense to conspiracy only if accomplished before the commission of an overt act.
Facts.
The Defendant offered Garcia $10,000 to kill Estephan, the estranged husband of Cindy Strunk Estephan (Cindy). The Defendant told Garcia that he, Cindy and a man named Sallard were plotting the murder. Garcia agrees to find someone to kill Estephan or he would do it himself. Garcia contacted Herbert Dutton (Dutton) and offered him $5,000 to carry out the killing. Later, Garcia and Dutton went to Estephan’s house and decided that Dutton would plant a bomb under Estephan’s car. About three weeks later, the Defendant contacted Garcia and called off the plan. Garcia had not seen Dutton since the two went to Estephan’s house. Additionally, Garcia did not know that, at the time the Defendant called off the plan, Dutton had been arrested on a parole violation.
Issue.
Did the Defendant’s withdrawal from the conspiracy constitute a defense to liability for the conspiracy itself?
Held.
The Defendant’s withdrawal from the conspiracy is not a valid defense to the completed crime of conspiracy.
Discussion.
The court noted that with respect to the conspiracy itself, withdrawal is not a defense to what has already been done. Since the overt act required to complete a conspiracy is minimal, conspiracies will often be found at approximately the same time as the initial agreement. In the case before the court, the conspiracy was complete when the Defendant hired Garcia to find someone to kill Estephan. The contacting of Garcia was the overt act required to complete the conspiracy. As a result, the Defendant’s later withdrawal was ineffective to the already complete conspiracy.
