Lead Opinion
Opinion
Defendant and real party in interest Ronald Decker has been charged with the attempted willful, deliberate, and premeditated murder of his sister, Donna Decker, and her friend, Hermine Riley Bañera. (Pen. Code, § 664, subd. (a).) According to the evidence offered at the preliminaiy hearing, Decker did not want to kill these women himself—as he explained, “he would be the prime suspect” and “would probably make a mistake somehow or another”—so he sought the services of a hired assassin.
Decker located such a person (or thought he did). He furnished the hired assassin with a description of his sister, her home, her car, and her workplace, as well as specific information concerning her daily habits. He also advised the assassin to kill Hermine if necessary to avoid leaving a witness behind. Decker and the hired assassin agreed on the means to commit the murder, the method of payment, and the price. The parties also agreed that Decker would pay $5,000 in cash as a downpayment. Before Decker handed over the money, the assassin asked whether Decker was “sure” he wanted to go through with the murders. Decker replied, “I am absolutely, positively, 100 percent sure, that I want to go through with it. I’ve never been so sure of anything in my entire life.” All of these conversations were recorded and videotaped because, unknown to Decker, he was talking with an undercover police detective posing as a hired assassin.
Background
Ronald Decker was charged by felony complaint with the attempted willful, deliberate, and premeditated murder of his sister, Donna Decker, and her friend, Hermine Riley Bañera; the solicitation of Detective Wayne Holston to commit these murders; and the solicitation of Russell Wafer to murder Donna Decker. The undisputed evidence presented at the preliminary hearing revealed the following:
On August 20, 2003, Ronald Decker (identifying himself only as “Ron”) placed a telephone call to Russell Wafer, a gunsmith at Lock, Stock and Barrel in Temple City (Los Angeles County). Decker said he was looking for someone to do some “work” for him and arranged to meet privately with Wafer the following week. During that meeting, Decker explained that he had been in contact with Soldier of Fortune Magazine, had done some research, and came up with Wafer’s name as a possible “contractor” for a local “job”—“basically it was that he wanted someone taken care of.” Decker added that he could not kill the victim himself because he would be a prime suspect. Wafer advised that while he could not handle the job, his friend “John” from Detroit might be interested. After Decker offered to pay the killer $35,000 and an additional $3,000 to Wafer as a finder’s fee, Wafer said he would try to contact John. He instructed Decker to call him back the following week.
In reality, however, Wafer did not know a “John” in Detroit who would be interested in a contract murder. Wafer instead called the Los Angeles County Sheriff’s Department, spoke to Detective Wayne Holston, and agreed to assist in a sting operation. When Decker called Wafer on September 2, Wafer claimed he had been in contact with “John,” who was coming to town shortly. Wafer asked Decker for his phone number and promised to arrange a
After Wafer left the two men alone, Decker explained that a “lady” owed him a lot of money and that the only way for him to get it back was “to take her out.” Decker subsequently identified the target as his sister, Donna Decker, and provided descriptions of her person, her mode of dress, her residence, her office, her car, and her daily habits. Decker offered Holston $25,000 to perform the execution, with a $10,000 bonus if it were a “nice, neat, clean job.” Decker reiterated that he could not do it himself, as “he would be the prime suspect,” and might “slip up” somewhere. When Decker proposed that Holston kill Donna in an automobile accident, Holston warned him that she might survive such an accident. Decker agreed that this might not be the best method, since he wanted her “totally expired,” and said he appreciated Holston’s advice: “I want a professional—someone that’s gonna do the job, and do it right—and do it right.” When Holston then proposed killing Donna during a staged robbery or carjacking, Decker said that would be “great” and urged Holston to “shoot her in the heart and head both, just to make sure.” Decker added that Donna spent a lot of time with her friend and coworker, Hermine Riley Bañera, and that Holston might need to “take out” Hermine as well to avoid having a witness. Decker did not care for Hermine, either.
When Holston said he could complete the job within a week, Decker replied, “Marvelous. . . . The sooner the better.” Holston also asked for some money up front, and Decker said he could supply him with $5,000 in cash as a downpayment in a couple of days “so you can start right away.” The downpayment was also designed to prove Decker’s sincerity, since “once this goes into effect—she’s gonna be killed.” Decker could barely contain his eagerness: “Well that’s what I want[.] I don’t want go to the hospital then come home. I want absolutely positively expired. Totally expired.”
Decker and Holston met again at the golf course on September 7. This meeting was also videotaped and recorded. Decker gave Holston $5,000 in cash, wrapped in two plastic bundles. He reiterated that Holston, after Donna had been murdered, should use a pay phone to leave him a voicemail message—Holston was to say that “the paint job has been completed”—and that Holston would get the rest of the money about a month later. Decker also
Holston told Decker that he had already performed some intelligence work, that he was “convinced” he would see the victim the next day, and that he could get this “job” done quickly—eliciting another “marvelous” from Decker—and explained that “once I leave here, it’s done. So, you sure you want to go through with it?” Decker replied, “I am absolutely, positively, 100 percent sure, that I want to go through with it. I’ve never been so sure of anything in my entire life. ...[][] [D]o it very fast... as fast as you can.” At the end of the conversation, Decker seemed “very pleased” and thanked Holston and Wafer. A short time after Holston and Wafer drove off, Decker was arrested.
Discussion
The superior court’s dismissal of the attempted murder charges, which was based on undisputed facts, constitutes a legal conclusion subject to independent review on appeal. (People v. Watson (1981)
Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (Pen. Code, § 21a; People v. Lee (2003)
The controversy in this case, as the parties readily concede, is whether there was also a direct but ineffectual act toward accomplishing the intended killings. For an attempt, the overt act must go beyond mere preparation and show that the killer is putting his or her plan into action; it need not be the last proximate or ultimate step toward commission of the crime or crimes (People v. Kipp (1998)
As simple as it is to state the terminology for the law of attempt, it is not always clear in practice how to apply it. As other courts have observed, “ ‘[m]uch ink has been spilt in an attempt to arrive at a satisfactory standard for telling where preparation ends and attempt begins.’ [Citation.] ‘Both as fascinating and as fruitless as the alchemists’ quest for the philosopher’s stone has been the search, by judges and writers, for a valid, single statement of doctrine to express when, under the law of guilt, preparation to commit a crime becomes a criminal attempt.’ ” (Minshew v. State (Ala.Crim.App. 1991)
Although a definitive test has proved elusive, we have long recognized that “[w]henever the design of a person to commit crime is clearly shown, slight acts in furtherance of the design will constitute an attempt.” (People v. Anderson, supra,
Decker’s plan was to get rid of his sister so that he could recover money that she owed him. He was concerned, however, that he would be considered an obvious suspect in her murder, so he sought out someone else to carry out his plan. To that end, he conducted research into the underworld of professional killers, he budgeted to pay for those services, he evaluated how and where the murder should be done, he tested the level of security around his sister’s condominium, and he considered the possibility that there might be a witness and what should be done in that event. Once he met Detective Holston, whom he believed was a professional assassin, they agreed Holston would kill Donna and (if necessary) her friend Hermine, they agreed on a price, and they agreed it would be done within the week. Decker provided Holston with all of the necessary information concerning his sister, her home and office, and her habits and demeanor. He also gave Holston the agreed-on downpayment of $5,000 cash. Before he did, Holston warned him, “I want you to know, once I leave here, it’s done. So, you sure you want to go through with it?” Decker replied, “I am absolutely, positively, 100 percent sure, that I want to go through with it. I’ve never been so sure of anything in my entire life.”
Accordingly, at the time Decker handed Holston the downpayment on the murder, Decker’s intention was clear. It was equally clear that he was “ ‘actually putting his plan into action.’ ” (People v. Dillon, supra,
As contrary authority, Decker relies on Adami, supra,
We perceive several flaws in Adami’s analysis.
First, the opinion makes no mention of the slight-acts rule, which has long been the rule for attempted crimes in California. Indeed, Adami’s progeny make no pretense of reconciling their analysis with the slight-acts rule and instead explicitly reject it. (E.g., Braham v. State, supra,
Decker argues that the slight-acts rule should not be applied to the crime of attempted murder, but his argument lacks legal or logical Support. Our adoption of the slight-acts rule in People v. Anderson, supra,
Second, Adami has misconceived the issue under these circumstances to be “whether the solicitation itself was sufficient to establish probable cause to believe that defendant attempted the murder.” (Adami, supra,
The issue, then, is not whether “solicitation alone” is sufficient to establish an attempt (Adami, supra, 36 Cal.App.3d at p. 457) but whether a solicitation to commit murder, combined with a completed agreement to hire a professional killer and the making of a downpayment under that agreement, can establish probable cause to believe Decker attempted to murder these victims.
Third, Adami mistakenly assumes that there can be no overlap between the evidence that would tend to prove solicitation to murder and that which would tend to prove attempted murder. Indeed, Decker asserts that these are “mutually exclusive crimes.” But it could not be plainer, as Chief Justice Holmes put it, that while “preparation is not an attempt,” nonetheless “some preparations may amount to an attempt.” (Commonwealth v. Peaslee (1901)
Fourth, we reject the contention, endorsed by Decker and by Adami’s progeny, that there is “no persuasive reason” why a solicitation to commit murder “should be treated differently under the law merely because part of the agreed upon fee has passed hands. There is no greater proximity, no significantly greater likelihood of consummation, and no act of a nature other than incitement or preparation inherent in the solicitation itself.” (State v. Otto, supra,
The purpose of requiring an overt act is that until such act occurs, one is uncertain whether the intended design will be carried out. When, by reason of the defendant’s conduct, the situation is “without any equivocality,” and it appears the design will be carried out if not interrupted, the defendant’s conduct satisfies the test for an overt act. (People v. Miller (1935) 2 Cal.2d
In finding the record sufficient to hold Decker to answer to the charges of attempted murder here, we do not decide whether an agreement to kill followed by a downpayment is always sufficient to support a charge of attempted murder. Whether acts done in contemplation of the commission of a crime are merely preparatory or whether they are instead sufficiently close to the consummation of the crime is a question of degree and depends upon the facts and circumstances of a particular case. (Braham v. State, supra,
Disposition
The judgment of the Court of Appeal is affirmed.
George, C. J., Kennard, J., Chin, J., Moreno, J., and Corrigan, J., concurred.
Notes
Decker does not argue here that the attempted murder charges must be dismissed because, notwithstanding Decker’s own conduct, Detective Holston never intended to commit the murders. (Cf. People v. Camodeca (1959)
The dissent purports to distinguish State v. Mandel, supra,
The dissent apparently would part company with defendant and Adami on this point, inasmuch as hiring a killer and providing the killer with a weapon likewise “only highlights [defendant’s] intention not to perform the act himself.” (Dis. opn., post, at p. 15.)
Dissenting Opinion
My colleagues hold that defendant’s conduct in soliciting the murder of his sister, reaching an agreement with a hired assassin to do the killing, and making a downpayment under the agreement establishes probable cause to believe defendant himself attempted the murder. I respectfully dissent. “An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (Pen. Code, § 21a.) Defendant’s conduct in this case does not include “a direct but ineffectual act” done toward the murder’s commission. Accordingly, he cannot be guilty of attempted murder.
As we have long recognized, the required act for an attempt under California law must be “directed towards immediate consummation”
I agree with the majority that as evidence defendant harbored the specific intent to kill his sister, these facts are overwhelming. None of them, however, constitutes a direct but ineffectual act done toward the murder’s commission. (Pen. Code, § 21a.) As the majority states, defendant “did not himself point a gun at his sister” (maj. opn., ante, at p. 9); neither did he otherwise directly menace her. Instead, he relied on the person he thought had agreed to commit the murder to do the actual deed.
We previously have stated that for attempt, it must be “clear from a suspect’s acts what he intends to do . . . .” (People v. Dillon, supra,
The California cases the majority purports to rely on generally involve single actors, i.e., defendants who acted directly on their victims.
Although defendant’s conduct went beyond the minimum required for solicitation, for purposes of attempt law his arrangements constitute mere preparation. Reprehensible as they were, his acts “did not amount to any more than the mere arrangement of the proposed measures for [the] accomplishment” of the crime. (People v. Adami (1973)
Confronted with statutory language and judicial precedent contrary to its conclusion, the majority relies on out-of-state cases. Several of these interpret attempt statutes distinguishable from our own.
For the foregoing reasons, I dissent.
Although the majority asserts defendant “did aim at [his sister] an armed professional who had agreed to commit the murder" (maj. opn., ante, at p. 9), the armed professional referred to (i.e., the detective) only pretended to agree so that in fact there was no agreement, though defendant thought there was. This absence of actual agreement presumably is why the case was not prosecuted as a conspiracy. (See People v. Jurado (2006)
See, e.g„ People v. Memro (1985)
The majority casts its holding so circumstantially as to undercut any guidance this case might provide in future cases. As the majority states, in finding the record sufficient to hold defendant to answer to the charges of attempted murder, it does “not decide whether an agreement to kill followed by a downpayment is always sufficient to support a charge of attempted murder. Whether acts done in contemplation of the commission of a crime are merely preparatory or whether they are instead sufficiently close to the consummation of the crime is a question of degree and depends upon the facts and circumstances of a particular case.” (Maj. opn., ante, at p. 14.)
See, e.g., United States v. Martinez (2d Cir. 1985)
See, e.g., State v. Mandel (1954)
See, e.g., State v. Montecino (La.Ct.App. 2005)
See, e.g., People v. Otto (1981)
Penal Code section 31 states that “[a]ll persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission ... are principals in any crime so committed.”