Stanford Law School - Robert Crown Law Library

Filed 5/21/07

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Petitioner,
S130489
v.
Ct.App. 2/4 B176608
THE SUPEROR COURT
OF LOS ANGELES COUNTY,
Respondent;
) Los Angeles County
Super. Ct. No. GA054599
RONALD DECKER,
Real Party in Interest.

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 Bafiera. (Pen. Code, § 664, subd. (a).)
According to the evidence offered at the preliminary 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
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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.
Decker does not dispute that the foregoing evidence was sufficient to hold
him to answer to the charge of solicitation of the murder of Donna and Hermine
but argues that this evidence was insufficient to support a charge of their
attempted murder. The magistrate and the trial court, believing themselves bound
by People v. Adami (1973) 36 Cal.App.3d 452 (Adami), reluctantly agreed with
Decker and dismissed the attempted murder charges. The Court of Appeal
disagreed with Adami and issued a writ of mandate directing the respondent court
to reinstate the dismissed counts. We granted review to address the conflict and
now affirm.
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 Bafiera; 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
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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 meeting with “John.”
Based on the physical description Wafer had provided and on the phone number
Decker had supplied, Holston located a photograph of Decker. Wafer
immediately recognized Decker as “Ron,” the man he had met the previous week.
At Holston’s request, Wafer arranged a meeting with Decker for the evening of
September 5 at a golf course parking lot in Arcadia. Holston accompanied Wafer
to the meeting and was introduced as “John” from Detroit. Holston was wearing a
“wire,” and the encounter was both videotaped and recorded.
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,
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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 Bafiera, 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
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the rest of the money about a month later. Decker also reiterated that “if Hermine
is in the car, with her, you cannot, I understand if I were in your business, I would
never leave a witness. You have to take her out too. Whoever’s with her you gotta
take the other person out too. But don’t charge me double.”
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) 30 Cal.3d 290, 300.) The question
for us is whether “it appears from the preliminary examination that a public
offense has been committed, ‘and there is sufficient cause to believe the defendant
guilty thereof’. . . . ‘ “Sufficient cause” . . . means such a state of facts as would
lead a man of ordinary caution or prudence to believe and conscientiously
entertain a strong suspicion of the guilt of the accused. [Citation.] . . . .’ ”
(Williams v. Superior Court (1969) 71 Cal.2d 1144, 1147.) “[E]vidence which
will justify prosecution under the above test need not be sufficient to support a
conviction.” (Ibid.)
Attempted murder requires the specific intent to kill and the commission of
a direct but ineffectual act toward accomplishing the intended killing. (Pen. Code,
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§ 21a; People v. Lee (2003) 31 Cal.4th 613, 623.) The uncontradicted evidence
that Decker harbored the specific intent to kill his sister (and, if necessary, her
friend Hermine) was overwhelming. Decker expressed to both Wafer and Holston
his desire to have Donna killed. He researched how to find a hired assassin. He
spent months accumulating cash in small denominations to provide the hired
assassin with a downpayment and had also worked out a method by which to pay
the balance. He knew the layout of his sister’s condominium and how one might
enter it surreptitiously. He had tested the level of surveillance in the vicinity of
her home and determined it was “not really that sharp.” He chronicled his sister’s
daily routine at both her home and her office. He offered Holston
recommendations on how his sister should be killed and what materials would be
necessary. And, at both meetings with Holston, he insisted that Hermine, if she
were present, be killed as well, so as to prevent her from being a witness.
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) 18
Cal.4th 349, 376), nor need it satisfy any element of the crime. (People v. Dillon
(1983) 34 Cal.3d 441, 454.) However, as we have explained, “[b]etween
preparation for the attempt and the attempt itself, there is a wide difference. The
preparation consists in devising or arranging the means or measures necessary for
the commission of the offense; the attempt is the direct movement toward the
commission after the preparations are made.” (People v. Murray (1859) 14 Cal.
159, 159; see also People v. Anderson (1934) 1 Cal.2d 687, 689-690.) “ ‘[I]t is
sufficient if it is the first or some subsequent act directed towards that end after the
preparations are made.’ ” (People v. Memro (1985) 38 Cal.3d 658, 698.)
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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) 594 So.2d 703, 709; accord,
Perkins & Boyce, Criminal Law (3d ed. 1982) p. 617.) Indeed, we have ourselves
observed that “none of the various ‘tests’ used by the courts can possibly
distinguish all preparations from all attempts.” (People v. Memro, supra, 38
Cal.3d at p. 699.)
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,
1 Cal.2d at p. 690 [attempted robbery]; see also People v. Memro, supra, 38
Cal.3d at p. 698 [attempted lewd conduct]; People v. Dillon, supra, 34 Cal.3d at p.
455 [attempted robbery]; People v. Morales (1992) 5 Cal.App.4th 917, 926
[attempted murder].) Viewing the entirety of Decker’s conduct in light of his
clearly expressed intent, we find sufficient evidence under the slight-acts rule to
hold him to answer to the charges of attempted murder. (See People v. Memro,
supra, 38 Cal.3d at p. 699.)
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
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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, who 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, 34 Cal.3d at p. 453.)
Decker had secured an agreement with Holston to murder Donna (and, if
necessary, her friend Hermine); had provided Holston with all the information
necessary to commit the crimes; had given Holston the $5,000 downpayment; and
had understood that “it’s done” once Holston left with the money. These facts
would lead a reasonable person to “believe a crime is about to be consummated
absent an intervening force”—and thus that “the attempt is underway.” (Id. at p.
455.) Indeed, as Justice Epstein noted for the Court of Appeal, “[t]here was
nothing more for Decker to do to bring about the murder of his sister.” Although
Decker did not himself point a gun at his sister, he did aim at her an armed
professional who had agreed to commit the murder.1

1
Decker does not argue here that the attempted murder charges must be
dismissed because, notwithstanding Decker’s own conduct, Detective Holston
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As contrary authority, Decker relies on Adami, supra, 36 Cal.App.3d 452,
which affirmed the dismissal of an attempted murder charge on similar facts, and
relies also on the small number of out-of-state majority and minority opinions that
have followed Adami. (See Braham v. State (Alaska 1977) 571 P.2d 631, 651
(conc. & dis. opn. of Connor, J.); State v. Otto (Idaho 1981) 629 P.2d 646, 649;
see also State v. Disanto (S.D. 2004) 688 N.W.2d 201, 208-209.) In Adami, the
defendant sought to have his wife killed because she had stolen money from him.
He agreed on a price with an undercover police agent posing as an assassin and
supplied the agent with a photograph of the victim, a description of the victim and
her residence and vehicles, and other pertinent information. The defendant gave
the police agent $500 as a downpayment and announced he was not going to
change his mind. (Adami, supra, 36 Cal.App.3d at pp. 454-455.) Adami declared
that these acts “consisted solely of solicitation or mere preparation” and
concluded, in accordance with the “weight of authority,” that “solicitation alone is
not an attempt.” (Id. at p. 457.)
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, 571 P.2d at p. 650 (conc. & dis.
opn. of Connor, J.) [“Although there are a few cases in which courts have said that

never intended to commit the murders. (Cf. People v. Camodeca (1959) 52 Cal.2d
142, 147.)
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‘slight acts’ will suffice for the more serious objectives, such as murder, the
reasoning supporting these opinions is flawed in several ways”]; State v. Otto,
supra, 629 P.2d at p. 649.) These cases thus conflict with well-established
California law (see ante, p. 7; see generally 19 Cal.Jur.3d (2001) Criminal Law:
Miscellaneous Offenses, § 18, p. 39) and with the law concerning attempted
crimes in most jurisdictions. (22 C.J.S. (2006) Criminal Law, § 157, p. 214.)
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, 1 Cal.2d at page 690, was
supported by a citation to Stokes v. State (Miss. 1908) 46 So. 627, 629, which is
“[o]ne of the leading cases in the United States on attempt to commit a crime”
(Duke v. State (Miss. 1976) 340 So.2d 727, 729) and which (like the present case)
involved a defendant who hired another to perform a murder. The cases on which
Decker relies thus conflict not only with California law (see, e.g., People v.
Morales, supra, 5 Cal.App.4th at p. 926), but also with the “fairly general
agreement . . . that slight acts are enough when the intent to murder is clearly
shown.” (Annot., What Constitutes Attempted Murder (1974) 54 A.L.R.3d 612,
617-618.) Indeed, where (as here) the crime involves concerted action—and
hence a greater likelihood that the criminal objective will be accomplished (People
v. Leon (2007) 40 Cal.4th 376, 391)—there is a greater urgency for intervention
by the state at an earlier stage in the course of that conduct. (People v. Morante
(1999) 20 Cal.4th 403, 416, fn. 5.) Had Decker struck an agreement with and paid
earnest money to a real hired killer, he could have been prosecuted for conspiracy
to commit murder, which is punishable to the same extent as the completed crime
of first degree murder. (See People v. Hernandez (2003) 30 Cal.4th 835, 870.)
Because of the fortuity that Decker’s hired killer was actually an undercover
detective, Decker faces the much less serious charge of attempted murder. Neither
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Decker nor the dissent has offered any reason for us create an exception to the
slight-acts rule for attempted murder, especially in Stokes’s classic formulation
where the attempt involves concerted action with others, merely so that Decker’s
maximum potential punishment may be further reduced.
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, 36 Cal.App.3d at p. 455.)
Decker similarly expends considerable effort to convince us that “ ‘solicitation of
another to commit a crime is an attempt to commit that crime if, but only if, it
takes the form of urging the other to join with the solicitor in perpetrating that
offense, not at some future time or distant place, but here and now, and the crime
is such that it cannot be committed by one without the cooperation and submission
of another.’ ” (Quoting Perkins, Criminal Law (1957) p. 519; see also Adami,
supra, 36 Cal.App.3d at p. 457.) But a solicitation requires only that a person
invite another to commit or join in an enumerated crime (including murder) with
the intent that the crime be committed. (Pen. Code, § 653f.) The solicitation is
complete once the request is made (People v. Burt (1955) 45 Cal.2d 311, 314) and
is punishable “irrespective of the reaction of the person solicited.” (In re Ryan N.
(2001) 92 Cal.App.4th 1359, 1377.) In this case, the solicitation was complete
early in Decker’s first conversation with Holston, when he asked Holston to kill
Donna. But the People do not contend that this request was sufficient to prosecute
Decker for attempted murder. They argue instead that the solicitation, in
combination with Decker’s subsequent conduct, revealed his plan to have Holston
murder Donna (and, if necessary, her friend Hermine) and that Decker put this
plan into operation no later than the point at which he completed the agreement
with Holston, finalized the details surrounding the murders, and paid Holston
$5,000 in earnest money.
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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. A substantial number
of our sister states have held that it can. (E.g., State v. Mandel (Ariz. 1954) 278
P.2d 413, 415-416;2 Howell v. State (Ga.Ct.App. 1981) 278 S.E.2d 43, 46-48;
State v. Montecino (La.Ct.App. 2005) 906 So.2d 450, 454; State v. Manchester
(Neb. 1983) 331 N.W.2d 776, 780; State v. Kilgus (N.H. 1986) 519 A.2d 231,
235-236; People v. Sabo (N.Y.Sup.Ct. 1998) 687 N.Y.S.2d 513, 519-520; Ashford
v. Com. (Va.Ct.App. 2006) 626 S.E.2d 464, 467-468; State v. Gay (Wn.Ct.App.
1971) 486 P.2d 341, 345-346; State v. Burd (W.Va. 1991) 419 S.E.2d 676, 680;
see also United States v. Martinez (2d Cir. 1985) 775 F.2d 31, 35; United States v.
Church (C.M.A. 1991) 32 M.J. 70, 73.) Additional jurisdictions have held that a
solicitation to murder, in combination with a completed agreement to hire a
professional killer and further conduct implementing the agreement, can similarly
constitute an attempted murder. (E.g., Braham v. State, supra, 571 P.2d at p. 638
[completed agreement, plus a visit by the hired killer to the victim to “foster[] a
relationship of trust and confidence”]; State v. Group (Ohio 2002) 781 N.E.2d

2
The dissent purports to distinguish State v. Mandel, supra, 278 P.2d 413,
which upheld a conviction for attempted murder following a downpayment, on the
ground that Mandel, after being introduced to the undercover agent posing as a
hired killer, explained how the murder should take place and drove the agent in a
car to view the victim’s home and the site for disposal of the body (dis. opn., post,
at p. 5, fn. 5), whereas defendant here, after being introduced to the undercover
agent posing as a hired killer, explained how the murder should take place and
communicated the victim’s address and other information in both written and oral
form to the undercover agent in a parking lot. The dissent’s rationale for
endowing the location of the communication with determinative legal significance
is, at best, elusive.
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980, 996 [“Group did more than merely solicit the firebombing of Mrs. Lozier’s
house. He took all action within his power, considering his incarceration, to
ensure that the crime would be committed”].) We find these authorities
persuasive.
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 (Mass. 1901) 59 N.E. 55, 56, italics
added.) Conduct that qualifies as mere preparation and conduct that qualifies as a
direct but ineffectual act toward commission of the crime exist on a continuum,
“ ‘since all acts leading up to the ultimate consummation of a crime are by their
very nature preparatory.’ ” (State v. Sunzar (N.J.Super.Ct. Law Div. 1999) 751
A.2d 627, 630, quoting State v. Otto, supra, 629 P.2d at p. 653 (dis. opn. of Bakes,
C. J.).) The difference between them “is a question of degree.” (Commonwealth
v. Peaslee, supra, 59 N.E. at p. 56.) There is thus no error in resting a finding of
attempted murder in part on evidence that also tends to establish solicitation to
commit murder and vice versa. (State v. Kilgus, supra, 519 A.2d at p. 236
[“whether the defendant’s actions constituted solicitation was not important so
long as his actions also constituted an attempt”].) After all, even under Decker’s
analysis, evidence of a solicitation to commit murder can tend to support a finding
of attempted murder if the defendant then “provides the hit man the instrument or
other means to procure the death.” (See also Adami, supra, 36 Cal.App.3d at p.
457.)3 Decker offers no principled basis for a different result when the hit man

3
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
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already has a weapon and the defendant instead begins payment under the contract
to kill.
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, 629 P.2d at p.
650.) As the People point out, though, a downpayment on a contract to murder
serves the same purpose as a downpayment on any other type of contract. It
evidences the solicitor’s “seriousness of purpose” and makes the object of the
contract “closer to fruition.” (State v. Molasky (Mo. 1989) 765 S.W.2d 597, 602;
cf. Johnson v. Sheriff, Clark County (Nev. 1975) 532 P.2d 1037, 1038 [no
downpayment was offered to the would-be killer].) It blinks reality to equate the
threat posed by an individual who has merely invited another, perhaps
unsuccessfully, to commit murder with the threat posed by an individual who has
already reached an agreement with a hired killer to commit murder, finalized the
plans, and made the downpayment under the contract to kill. But for Holston’s
status as an undercover detective, it is likely that Decker’s conduct would have
resulted in the murder of these victims. Where, as here, the defendant’s intent is
unmistakable, “ ‘the courts should not destroy the practical and common-sense
administration of the law with subtleties as to what constitutes preparation and
what constitutes an act done toward the commission of a crime.’ ” (People v.
Memro, supra, 38 Cal.3d at p. 698.)

likewise “only highlights [the defendant’s] intention not to perform the act
himself.” (Dis. opn., post, at p. 2.)
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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 527, 532; accord, State v.
Mandel, supra, 278 P.2d at p. 416.) Here, the record supported at least a strong
suspicion that Decker’s intent to have his sister (and, if necessary, her friend)
murdered was unambiguous and that he had commenced the commission of the
crime by doing all that he needed to do to accomplish the murders.
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, 571 P.2d at p. 637; Stokes v. State,
supra, 46 So. at p. 628.) A different situation may exist, for example, when the
assassin has been hired and paid but the victims have not yet been identified. In
this case, however, Decker had effectively done all that he needed to do to ensure
that Donna and her friend were executed. (State v. Mandel, supra, 278 P.2d at p.
416; State v. Kilgus, supra, 519 A.2d at p. 236; People v. Sabo, supra, 687
N.Y.S.2d at p. 520; Ashford v. Com., supra, 626 S.E.2d at pp. 467-468; State v.
Gay, supra, 486 P.2d at pp. 345-347; see also United States v. Martinez, supra,
775 F.2d at p. 35.) Accordingly, he should have been held to answer to the
charges of attempted murder. We disapprove People v. Adami, supra, 36
Cal.App.3d 452 to the extent it is inconsistent with this opinion.
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DISPOSITION
The judgment of the Court of Appeal is affirmed.

BAXTER, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

16

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DISSENTING OPINION BY WERDEGAR, J.
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” (People v.
Dillon (1983) 34 Cal.3d 441, 454) of the crime attempted. As the majority details,
defendant’s conduct included numerous indirect acts toward accomplishing the
murder of his sister: he sought the services of a hired assassin; he located a person
(actually an undercover police detective) he thought would act as such; he
furnished the supposed assassin with a description of his sister, her home, her car
and her workplace, as well as specific information concerning her daily habits; he
discussed how the murder would be done and how and when he would pay for the
work, agreeing to furnish $5,000 in cash as a downpayment; and, finally, just
before he was arrested, he stated he was “absolutely, positively, 100 percent sure,
1

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that I want to go through with it” and urged the supposed assassin to do it “as fast
as you can.”
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. 8); neither did he otherwise directly menace her.
Instead, he relied on the person he thought had agreed to commit the murder to do
1
the actual deed. The direct object of defendant’s preparatory acts was the person
he sought to engage as his agent—not the ultimate, intended victim of the scheme.
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, 34 Cal.3d at
p. 455, italics added.) In this case, what defendant intended to do was have his
sister killed by someone else. Defendant’s own conduct did not include even
“slight” acts toward actual commission of the murder. That he hired another,
supplied him with information, and paid him a downpayment only highlights his
intention not to perform the act himself.

1
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. 8), 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) 38 Cal.4th 72, 120 [“ ‘A conviction of
conspiracy requires proof that the defendant and another person had the specific
intent to agree or conspire to commit an offense, as well as the specific intent to
commit the elements of that offense, together with proof of the commission of an
overt act “by one or more of the parties to such agreement” in furtherance of the
conspiracy’ ”].)
2

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The California cases the majority purports to rely on generally involve
2
single actors, i.e., defendants who acted directly on their victims. These cases
simply confirm that for attempt a defendant must have committed a direct act
toward commission of the crime. Defendant here committed no direct act toward
commission of the murder, since his scheme interposed a third party between
himself and his intended victim, and the third party never acted. The majority
goes astray in applying to this solicitation-of-murder case, where action by another
person was required to effectuate (or attempt) the intended killing, principles
applicable when an offense is intended and attempted by a single individual.
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) 36 Cal.App.3d 452, 457-458.) This is
because, as a logical matter, they did no more than “leave the intended assailant
only in the condition to commence the first direct act toward consummation of the
defendant’s design.” (Id. at p. 458.) To do all one can to motivate and encourage
another to accomplish a killing—even to make a downpayment on a contract to
kill—while blameworthy and punishable, is neither logically nor legally

2
See,
e.g.,
People v. Memro (1985) 38 Cal.3d 658, 699 (ushering a boy into
a room and standing close by during a strobe display were direct acts sufficient for
the attempted commission of a lewd or lascivious act on a minor); People v.
Dillon, supra, 34 Cal.3d at page 456 (arriving on land armed and disguised, and
dividing into groups to encircle a field, were direct acts sufficient for the attempted
robbery of a marijuana farm); People v. Anderson (1934) 1 Cal.2d 687, 690
(approaching a ticket office and pulling out a gun were direct acts sufficient for the
attempted armed robbery of a theater); People v. Morales (1992) 5 Cal.App.4th
917, 926-927 (threatening twice to “get” the victim, going home, loading a gun,
driving to the victim’s neighborhood, and hiding in a position with a clear shot
were direct acts sufficient for attempted murder).
3

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equivalent to attempting the killing oneself. In concluding to the contrary, the
majority blurs the distinction between preparation and perpetration the Legislature
intended by requiring that an attempt include a direct act. (Pen. Code, § 21a.) The
majority’s supportive reasoning likewise conflates the two separate elements of
attempt, specific intent and direct act (ibid.): “Viewing the entirety of
[defendant’s] conduct in light of his clearly expressed intent, we find sufficient
evidence under the slight-acts rule to hold him to answer to the charges of
3
attempted murder.” (Maj. opn., ante, at p. 7, italics added.) As a court, we are
not authorized to ignore the statutory requirements.
The majority’s criticisms of People v. Adami, supra, 36 Cal.App.3d 452,
are unpersuasive. The majority faults Adami for not mentioning the slight acts
rule, but since the Adami court concluded no “appreciable fragment of the crime
charged was accomplished” (id. at p. 457), the rule had no application. Nor,
contrary to the majority’s account, did Adami assume that evidence of solicitation
cannot also be evidence of attempt. Adami simply held that hiring a murderer,
planning the murder, and making a downpayment logically constitute “solicitation
or mere preparation” (ibid.), not attempted murder.
Confronted with statutory language and judicial precedent contrary to its
conclusion, the majority relies on out-of-state cases. Several of these interpret

3
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.)
4

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4
attempt statutes distinguishable from our own. Others involve more than a
5
completed agreement with a hired killer, including a direct act toward the victim.
The remaining cases are in my view mistaken for the same reason the majority is
mistaken: they implicitly allow that a defendant may be guilty of attempt when no
6
direct act toward the commission of the crime has been done. Courts in some
other jurisdictions have, as the majority fails to acknowledge, maintained the
7
distinction between preparation and attempt in cases similar to this.
Had the supposed assassin hired to kill defendant’s sister actually attempted
to kill her, defendant would be punishable under Penal Code section 31 as a

4
See, e.g., United States v. Martinez (2d Cir. 1985) 775 F.2d 31, 35
(“conduct amounting to a ‘substantial step’ towards the commission of the
crime”); United States v. Church (C.M.A. 1991) 32 M.J. 70, 71 (“an act . . .
amounting to more than mere preparation”); Howell v. State (Ga.Ct.App. 1981)
278 S.E.2d 43, 46 (“substantial step toward the commission of that crime”); State
v. Molasky (Mo. 1989) 765 S.W.2d 597, 600 (noting “[a]n act of perpetration [is]
no longer required, and instead a defendant need only do an act which [is] a
‘substantial step’ towards commission”); State v. Manchester (Neb. 1983) 331
N.W.2d 776, 780 (“conduct which is a substantial step”); State v. Gay
(Wash.Ct.App. 1971) 486 P.2d 341, 345 (“act . . . tending but failing to
accomplish” the crime).
5
See, e.g., State v. Mandel (Ariz. 1954) 278 P.2d 413, 415-416 (defendant
planned to entice victim to murder scene and drove assassin in her car to view
victim’s home and arroyo where body was to be disposed); State v. Kilgus (N.H.
1986) 519 A.2d 231, 235-236 (defendant said he was “going to have to get
involved” and made arrangements for the victim to be alone); State v. Burd
(W.Va. 1991) 419 S.E.2d 676, 680 (defendant offered to drive the assassin to
show him the victim’s house and provided a fake suicide note to leave at the crime
scene and money for a gun).
6
See, e.g., State v. Montecino (La.Ct.App. 2005) 906 So.2d 450, 454;
Ashford v. Com. (Va.Ct.App. 2006) 626 S.E.2d 464, 467-468.
7
See, e.g., People v. Otto (Idaho 1981) 629 P.2d 646, 648; Johnson v. Sheriff
(Nev. 1975) 532 P.2d 1037, 1038; State v. Disanto (S.D. 2004) 688 N.W.2d 201,
213.
5

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8
principal in the offense, either as an aider and abettor or as a coconspirator. But
in this case, neither defendant nor the supposed assassin took a direct act toward
commission of the offense. Defendant’s conduct was confined to encouraging and
enabling his intended agent to kill (or attempt to kill), but the detective with whom
he dealt took no such action. There was no attempt.
For the foregoing reasons, I dissent.
WERDEGAR, J.

8
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, having advised
and encouraged its commission . . . are principals in any crime so committed.”
6

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Superior Court (Decker)
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 124 Cal.App.4th 104
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S130489
Date Filed: May 21, 2007
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Clifford Klein

__________________________________________________________________________________

Attorneys for Appellant:

Steve Cooley, District Attorney, Lael R. Rubin, Head Deputy District Attorney, Patrick D. Moran and
Matthew G. Monforton, Deputy District Attorneys, for Petitioner.

__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

Roger J. Rosen and Diane E. Berley for Real Party in Interest.

1

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Lael R. Rubin
Head Deputy District Attorney
320 West Temple Street, Suite 540
Los Angeles, CA 90012
(213) 974-5911

Diane E. Berley
6250 Platt Avenue, PMB 834
Wes Hills, CA 91307
(818) 716-5604

2

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Opinion Information

Date:	Docket Number:
Mon, 05/21/2007	S130489

Disposition
May 21 2007	Opinion: Affirmed

Dockets
Jan 6 2005	Petition for review filed   counsel for RPI Ronald Decker.
Jan 7 2005	Received Court of Appeal record
Jan 7 2005	Record requested
Feb 23 2005	Petition for review granted (criminal case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Mar 23 2005	Counsel appointment order filed   Diane Berley is appointed to represent RPI. RPI's brief on the merits is due within 30 days (4/22)
Apr 25 2005	Opening brief on the merits filed   counsel for real party RONALD DECKER (40.1)
May 23 2005	Answer brief on the merits filed   by petnr. The People
Jun 10 2005	Request for extension of time filed   for RPI to file the reply brief on the merits, to July 13.
Jun 16 2005	Extension of time granted   to July 13 for RPI to file the reply brief on the merits. No further extensions of time are contemplated.
Jul 11 2005	Note:   Counsel phoned to say that she will submit request for ext. to file reply brief.
Jul 20 2005	Request for extension of time filed   for RPI to file the reply brief on the merits, to 8-12-05.
Jul 28 2005	Reply brief filed (case fully briefed)   counsel for real party RONALD DECKER
Aug 3 2005	Order filed   The application of RPI for an extension of time is deemed a request for relief from default. Relief from default is granted and the time to file the reply brief is extended to and including 8-12-05.
Sep 21 2005	Change of contact information filed for:   counsel for RPI {DECKER] change of address.
Apr 26 2006	Received:   letter from Respondent People Deputy District Attorney Patrick D. Moran
Feb 8 2007	Case ordered on calendar   to be argued Tuesday, March 6, 2007, at 9:00 a.m., in San Francisco
Mar 6 2007	Cause argued and submitted
May 18 2007	Notice of forthcoming opinion posted
May 21 2007	Opinion filed: Judgment affirmed in full   Opinion by Baxter, J. -----joined by George, C.J.,Kennard, Chin, Moreno, & Corrigan, JJ. Dissenting Opinion by Werdegar, J.
Jun 13 2007	Compensation awarded counsel   Atty Berley
Jun 21 2007	Remittitur issued (criminal case)
Jun 28 2007	Received:   receipt for remittitur.

Briefs
Apr 25 2005	Opening brief on the merits filed
May 23 2005	Answer brief on the merits filed
Jul 28 2005	Reply brief filed (case fully briefed)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website