Last week, the Court of Appeal, Second Appellate District (“2nd District”), issued its decision in People v. Decker, 2004 Cal.App. LEXIS 1921. The fact that the Second Appellate District chose to disagree with precedence established by the First Appellate District (“1st District”) over thirty years ago, while nothing novel, still raised enough curiosity in me to read about it in the Daily Journal. But truth be told, it was the knee-jerk reaction from my long-time colleague -- who is one of the smartest attorneys that I know -- during a discussion about Decker that prompted me to go further and write this blog.
A. The Adami Case
As you may know, in 1973, the 1st District decided People v. Adami (1973) 36 Cal.App.3d 452, a case involving a man who had solicited an under-cover policeman to murder his wife, giving him a down payment, a photograph of his wife, and written instructions on where she could be found. The defendant was charged with soliciting the crime of murder in violation of Penal Code section 653f, and attempted murder under Penal Code section 187 and 664.
Under California law, the elements of attempted murder are: (1) the specific intent to murder a human being; and (2) a direct, unequivocal but ineffectual act in furtherance of such intent. In construing the second element, the California Supreme Court has held that acts of preparation alone are insufficient and that “some appreciable fragment of the crime must have been accomplished.” In other words, the crime “must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter.” See, e.g., People v. Gallardo (1953) 41 Cal.2d 57; People v. Buffum (1953) 40 Cal.2d 709.
After the trial court granted Adami’s motion to eliminate the attempted murder count, the 1st District affirmed the ruling, holding that Adami’s acts consisted solely of solicitation or “mere preparation.” Looking at decisions from other jurisdictions, the Adami court focused on the conduct of the third-party agent, or “solicitee,” and whether the would-be assassin had taken any steps toward carrying out the crime. Finding that the under-cover policeman in its own case had done nothing in that regard, the 1st District concluded that the crime Adami had committed could be no greater than solicitation of murder.
B. The Decker Decision
Facing almost identical facts in Decker, the 2nd District rejected the application of Adami, claiming it to be “inconsistent with later decisions of our Supreme Court.” In an effort to marginalize Adami, the Decker court relied upon language from the Supreme Court’s more recent decision in People v. Memro (1985) 38 Cal.3d 658, which noted that some appellate courts have been using a “sliding-scale” test to determine whether in fact the crime of “attempt” has occurred. In such cases, when “the design of a person to commit a crime is clearly shown, slight acts done in furtherance of that design will constitute an attempt.” The emphasis is mine.
II. The Second Appellate District's Flawed Approach
In my opinion, the 2nd District’s application of Memro to justify the reinstatement of an attempted murder charge against Decker is incorrect for at least two reasons. First, nothing in Memro is inconsistent with earlier holdings from the Supreme Court in either Gallardo or Buffum, both of which were relied upon by the 1st District in Adami. The Memro court did not dispatch the requirement that some act – however slight – must occur in furtherance of the crime after all preparations have been made. Consequently, the 2nd District’s excuse for disagreeing with the conclusion reached in Adami lacks merit.
(See Part 2, Wednesday 11/24/04)