From Casetext: Smarter Legal Research

People v. Sconce

California Court of Appeals, Second District, Third Division
Jul 28, 2021
No. B310275 (Cal. Ct. App. Jul. 28, 2021)

Opinion

B310275

07-28-2021

THE PEOPLE, Plaintiff and Respondent, v. DAVID WAYNE SCONCE, Defendant and Appellant.

Jeffrey Manning-Cartwright, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.


NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. A573819, Dorothy L. Shubin, Judge. Affirmed.

Jeffrey Manning-Cartwright, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

EDMON, P. J.

In 1989, defendant and appellant David Wayne Sconce pled guilty to multiple counts relating to the improper handling and disposition of human remains in Los Angeles Superior Court case No. A573819 (the funeral home case). In 1997, he pled guilty to conspiracy to commit murder in Los Angeles Superior Court case No. A578478 (the murder conspiracy case). After he violated probation, he was sentenced to a prison term of 25 years to life in the conspiracy case. In 2020, Sconce brought a motion in the funeral home case, purportedly seeking to conform the abstract of judgment and the minute order to the oral pronouncement of sentence, which he contended would require his release in the murder conspiracy case. We affirm the trial court's order denying the motion.

FACTUAL AND PROCEDURAL BACKGROUND

We derive the factual and procedural background in part from prior opinions related to this matter, of which we take judicial notice, including People v. Sconce (1991) 228 Cal.App.3d 693; People v. Sconce (Dec. 1, 2014, B249136) [nonpub. opn.]; Sconce v. Garcetti (9th Cir. Aug. 29, 1996, No. 96-55029) 1996 U.S. App. Lexis 22665; and Sconce v. California (C.D. Cal. Feb. 16, 2018) 2018 U.S. Dist. Lexis 56057. (See Evid. Code, §§ 451, 452, 459.)

1. Sconce's offenses

In 1988, Sconce was charged in the funeral home case with multiple counts of mishandling and unlawful disposition of human remains, assault by means likely to produce great bodily injury, robbery, conspiracy related to various of the foregoing charges, theft, bribery of witnesses, solicitation of perjury, and solicitation of three murders.

Specifically, Sconce was charged with 28 counts of unlawful removal of body parts from human remains (former Health & Saf. Code, § 7051); three counts of mutilation of human remains (former Health & Saf. Code, § 7052); two counts of multiple cremation of human remains (Health & Saf. Code, § 7054.7, subd. (a)(1)); two counts of comingling human remains (Health & Saf. Code, § 7054.7, subd. (a)(2)); one count of failure to inter human remains within a reasonable time (Health & Saf. Code, § 7103); two counts of conspiracy to mishandle human remains (Pen. Code, § 182); assault by means likely to produce great bodily injury on three different victims, and conspiracy to commit such assaults (Pen. Code, § 182, former § 245, subd. (a)(1)); robbery and conspiracy to rob one of those victims (Pen. Code, §§ 182, 211); grand theft auto (Pen. Code, § 487); receiving stolen property (Pen. Code, § 496); solicitation of the murder of his grandparents and a deputy district attorney (Pen. Code, § 653f, subd. (b)); bribery and offers to bribe witnesses (Pen. Code, §§ 137, subd. (a), 138, subd. (a)); solicitation of perjury (Pen. Code, § 653f, subd. (a)); and conspiracy to obstruct justice (Pen. Code, § 182, subd. (a)(5)).

In 1989, Sconce was charged in the murder conspiracy case with conspiracy to murder Elie Estephan (Penal Code, §§ 182, 187, subd. (a)). Sconce allegedly asked a crematorium employee to murder Estephan-the estranged husband of Sconce's brother-in-law's girlfriend-in order to obtain life insurance proceeds. (People v. Sconce, supra, 228 Cal.App.3d at pp. 696-699.)

Thereafter, the trial court (Judge Terry Lee Smerling) set aside the information in the murder conspiracy case on the theory Sconce had withdrawn from the conspiracy. In 1991, this court reversed Judge Smerling's order and the information was reinstated. (People v. Sconce, supra, 228 Cal.App.3dat pp. 696, 704.)

In the meantime, a capital murder charge was filed against Sconce in Ventura County. That charge was eventually dismissed.

While the People's appeal in the murder conspiracy case was pending, on August 30, 1989, Judge Smerling negotiated a plea agreement-without the prosecutor's agreement-in which Sconce would plead guilty to 21 of the charges in the funeral home case, in exchange for a five-year term. At the time, other counts in the funeral home case were also being reviewed in a separate appeal. Judge Smerling stated that if those counts, or the murder conspiracy count, were ultimately returned to the trial court and Sconce pled guilty to them, the court would impose no additional prison or jail time, but would impose probation. Accordingly, Sconce pled guilty to 21 charges in the funeral home case.

After this court reversed the order setting aside the information in the murder conspiracy case, the People obtained an order disqualifying Judge Smerling. The 1989 plea bargain was set aside on the ground it was unauthorized, in that Judge Smerling had lacked jurisdiction to make the bargain because the murder conspiracy charge was on appeal at the time, and it was not a proper subject for plea bargaining pursuant to Penal Code section 1192.7.

Sconce sought review of the order setting aside the plea bargain in federal court. In August 1996, in Sconce v. Garcetti, supra, 1996 U.S. App. Lexis 22665, the Ninth Circuit ordered specific performance of the plea bargain, reasoning that although Judge Smerling had lacked authority to make the bargain, the district attorney delayed until Sconce completed, or substantially completed, his five-year prison term before moving to set it aside. (Sconce v. Garcetti, at pp. *2-3, *12-*17.)

2. Sconce's plea to the murder conspiracy, revocation of probation, imposition of sentence, and prior appeal

On April 29, 1997, after the Ninth Circuit's ruling, Sconce appeared in Los Angeles County Superior Court before Judge Thomas W. Stoever. Sconce pled guilty to conspiracy to commit murder in the murder conspiracy case, admitted one overt act, and was placed on lifetime probation.

On the same date, Sconce pled guilty in the funeral home case to soliciting the murder of his grandparents and of a deputy district attorney (Pen. Code, § 653f, subd. (b)) and bribing or offering to bribe witnesses. (Pen. Code, §§ 137, subd. (a), 138, subd. (a).)

Sconce did not appeal from the 1997 order placing him on lifetime probation.

Thereafter Sconce lived in several other states and was supervised there. In approximately 2011, Sconce pled guilty to a federal firearms offense in Montana. As a result, he was returned to California and his probation was revoked. On May 6, 2013, Judge Dorothy L. Shubin imposed the mandatory term of 25 years to life in prison on the murder conspiracy charge.

Sconce appealed from the judgment following revocation of probation, and this court affirmed his judgment in 2014. (People v. Sconce, supra, B249136.) Among other things, this court concluded that “to the extent appellant's new 1997 plea might contain new elements beyond those involved in the earlier 1989 plea bargain, appellant voluntarily agreed to any deviations from the earlier plea bargain....” (People v. Sconce, supra, B249136.)

The California Supreme Court denied review on March 11, 2015. (People v. Sconce, S223622.)

3. Sconce's 2020 motion

On December 31, 2020, acting in propria persona, Sconce filed in the superior court a document captioned “Motion to conform abstract of judgment and minute order instruction to oral pronouncement of sentence, pursuant to Penal Code Sects. 1207, 12315.5, 1237.1 and 1237.5(A).” Therein he argued as follows. The murder conspiracy count was a part of the funeral home case. The minute order and the abstract of judgment in that case “only cryptically memorialized” the terms of the negotiated plea. Therefore the abstract and minute order must be corrected to accurately and fully reflect such terms. He requested that the trial court “accept what were Superior Court Judge Terry Smerling's August 30, 1989 oral pronouncements as being the accurate reflection of his judgment in [the funeral home case], and that during that sentencing [the murder conspiracy case] was thereby adjudicated as being count #67 within [the funeral home case], pursuant to Judge Smerling's judicial promise that Petitioner would receive concurrent probationary sentencing for that returned matter after the matter had returned to the Superior Court on remand.” Based upon the foregoing, Sconce sought vacation of his sentences in both the funeral home and murder conspiracy cases, reissuance of his original sentence in the conspiracy case with recognition that such sentence was completed in October 1993, issuance of a “finding of factual innocence, ” and issuance of an injunction immediately releasing him from custody. He also sought appointment of counsel and an “evidentiary hearing.”

The trial court denied the motion. Sconce filed a timely notice of appeal.

DISCUSSION

After review of the record, Sconce's court-appointed counsel filed an opening brief that raised no issues and averred that People v. Serrano (2012) 211 Cal.App.4th 496, applies to this appeal. People v. Serrano concluded that review under People v. Wende (1979) 25 Cal.3d 436, does not apply to appeals from orders denying postconviction relief. (Accord, People v. Cole (2020) 52 Cal.App.5th 1023, review granted Oct. 14, 2020, S264278.) People v. Cole held that an appeal from a postconviction order may be dismissed if counsel has found no arguable issues and if the defendant has not filed a supplemental brief. Where the defendant has filed a supplemental brief, the Court of Appeal must evaluate any arguments raised in the brief and issue a written opinion disposing of the trial court's order on the merits. (Id. at pp. 1039-1040.) Here, Sconce has filed a supplemental brief. Accordingly, without deciding whether Cole is correct in part or whole, we review his contentions.

Our Supreme Court is currently considering what procedures appointed counsel and the Courts of Appeal should follow when counsel determines that an appeal from an order denying postconviction relief lacks arguable merit. (People v. Delgadillo, review granted Feb. 17, 2021, S266305.)

The trial court's order denying the motion was correct. As far as we understand Sconce's arguments in his supplemental brief, he contends that the failure to consolidate the two cases, or to recognize that they had been consolidated, coupled with the “post-sentencing decisional history” in the matters, resulted in his being improperly sentenced to 25 years to life in the murder conspiracy case, whereas under the terms of the 1989 negotiated plea he was to be sentenced to probation with no additional prison time. Thus, although characterized as a request to “conform” the abstract of judgment to Judge Smerling's oral statements, in fact the crux of Sconce's contentions is that the sentence imposed in the murder conspiracy case violated the terms of the 1989 negotiated plea, because under that agreement the only sentence that could be imposed was time served.

Sconce has already appealed from the judgment entered after imposition of the 25-years-to-life term, and that judgment was final in 2015. As we explained in disposing of his appeal in 2014, Sconce is attempting to attack the validity of his 1997 plea before Judge Stoever or raise issues that were determined prior to the entry of the order granting probation. No appeal was taken from the 1997 negotiated plea in which he agreed to lifetime probation, which estops Sconce from claiming error with respect to the plea and ensuing sentence on revocation of probation. (People v. Sconce, supra, B249136.) Moreover, at the 1997 plea hearing, Sconce was advised and agreed that he would be on lifetime probation and that if he violated probation, he could be sentenced to a term of 25 years to life. This court already concluded in the prior opinion that Sconce voluntarily agreed to any deviations from the 1989 plea bargain. (People v. Sconce, supra, B249136.) Sconce cannot relitigate issues relating to his pleas or sentencing that have already been adjudicated or should have been raised in a prior appeal. (See People v. Senior (1995) 33 Cal.App.4th 531, 533, 538.)

Sconce neglects to include the transcript of the 1997 plea hearing, but the pertinent portions of the plea colloquy are set forth in Sconce v. California, supra, 2018 U.S. Dist. Lexis 56057, *17-*22.)

To the extent Sconce seeks to assert that the district attorney committed misconduct by engaging in “vindictive” and “illegal” behavior; that Judge Stoever and a federal judge engaged in some impropriety; and that the People's appeal in People v. Sconce, supra, 228 Cal.App.3d 693, was untimely, these allegations not only lack a sufficient legal and factual basis, but are not cognizable at this juncture. Instead, they should have been raised in a timely appeal from the judgment.

Sconce requests that this court “obtain and review the central district court writ instruction issued to the superior court” and determine whether it improperly broadened the Ninth Circuit's order requiring specific performance of the plea bargain. Again, any contention related to the proceedings occurring on remand in 1997 is untimely. To the extent Sconce argues that this court should “explain” certain text in various court documents, his argument is incomprehensible and untimely.

We have examined the record and have found no arguable issues. We are further satisfied that Sconce's attorney has complied with the responsibilities of counsel.

DISPOSITION

The order is affirmed.

We concur: EGERTON, J., KALRA, J. [*]

[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

People v. Sconce

California Court of Appeals, Second District, Third Division
Jul 28, 2021
No. B310275 (Cal. Ct. App. Jul. 28, 2021)
Case details for

People v. Sconce

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DAVID WAYNE SCONCE, Defendant and…

Court:California Court of Appeals, Second District, Third Division

Date published: Jul 28, 2021

Citations

No. B310275 (Cal. Ct. App. Jul. 28, 2021)