California Supremes Split on when Solicitation to Murder Becomes Attempt

Well, it’s not much of a split. It’s a 6-1 decision with Justice Werdegar dissenting.

The California Supreme Court holds in People v. Superior Court (Decker), case no. S130489 (May 21, 2007), that a defendant who hired an undercover detective as a “hit man,” made a down payment, provided the hit man all of the details necessary for him to carry out the killing — including descriptions of the intended victim and her home, car, workplace, and daily routine — and then stated his unequivocal wish that the hit man follow through with the killing, can be charged with attempted murder.

The court is forced to draw the line in this case between solicitation and attempt, and it’s not an easy thing to do. Both the majority opinion and Justice Werdegar’s dissent are persuasively written.

Professor Martin has this post about the case at California Appellate Report, in which he writes:

But, according to the majority, what does it take for an “attempt”? Not much. Basically, just the tiniest thing. Just add a tiny little bit of movement (e.g., a downpayment) to a solicitation and, boom, you’ve got an attempt.

I’d say that’s a little unkind to the majority. Even though the majority does rely heavily on the “slight-acts rule,” the opinion makes clear that neither making the down payment nor any other act in addition to solicitation will necessarily suffice as an “attempt.” Key to the majority seems to be the notion that Decker had set all of the wheels in motion such that without interference, the crime would be completed with no further participation from him:

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. 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. (Emphasis added, citations omitted.)

But I agree with Professor Martin that the case is a “good review of the elements of solicitation and attempt.”

Jusice Werdegar’s dissent intrigues by raising, but not reaching a conclusion, on the issue of whether Decker actually did everything necessary for the crime to be committed in light of the fact that the undercover detective posing as the hit man had no intention of carrying out the crime.

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