SEE CONCURRING AND DISSENTING OPINION

Filed 3/5/18

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S097558

v. )

)

TODD JESSE GARTON, )

) Shasta County

 Defendant and Appellant. ) Super. Ct. No. 98F4493

____________________________________)

A jury in Shasta County convicted defendant Todd Jesse Garton of first 

degree murder and conspiracy to murder his wife, Carole Garton, and her fetus, 

and conspiracy to murder his codefendant’s husband, Dean Noyes. (Pen. Code, 

§§ 182, subd. (a)(1), 187, subd. (a); all undesignated references are to this code.) 

The jury found true special circumstance allegations that defendant committed 

multiple murders, that he committed the murders for financial gain, and that a 

principal in each offense was armed with a firearm. (§§ 190.2, subds. (a)(3), 

(a)(1), 12022, subd. (a)(1).) The jury returned a verdict of death. This appeal is 

automatic. (Cal. Const., art. VI, § 11; Pen. Code, § 1239, subd. (b).) We reverse 

defendant’s conviction for conspiracy to murder Dean Noyes and affirm the 

judgment in all other respects.
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I. FACTS

A. Guilt phase

Defendant was originally charged with a codefendant, Lynn Noyes. Before 

trial, the court severed their cases, and Lynn Noyes pleaded guilty to the murder of 

Carole Garton and to the conspiracy to murder her husband, Dean Noyes. For 

clarity, we refer to Carole Garton, Lynn Noyes, and Dean Noyes by their first 

names. The parties presented the following evidence in Garton’s trial.

1. Prosecution evidence

Garton and Lynn met in high school in 1986 and dated for a time. After 

Lynn was suspended from high school, she saw Garton less, and by 1987, Garton 

had begun dating Carole. In 1990, Garton entered the Marine Corps, and he and 

Carole married in 1991. Although Lynn and Garton remained in contact, Lynn 

began dating Dean, and the two were married in 1992. Lynn and Dean had 

divorced by the time of Garton’s trial in 2001.

a. Conspiracy to kill Dean Noyes 

In the beginning of 1996 or 1997, after he and Carole had moved to Shasta 

County, Garton told his friend Dale Gordon that he was a paid assassin for an 

organization he called “The Company.” He began to talk about murdering Lynn’s 

husband, Dean, as a “hit” or “assassination” for this organization in exchange for 

money. Over the course of one or two years, Garton and Gordon discussed the 

murder “about 50 times, at least,” and “[m]aybe a hundred times.” Garton said he 

would be paid $25,000 for such a murder, and although he did not agree to a 

particular amount, Garton told Gordon that Gordon would be paid from Dean’s 

life insurance policy if he was involved in his murder. Gordon agreed to help plan 

and participate in Dean’s murder.
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In the spring of 1997, Garton told Lynn that Dean was having an affair and 

that “he knew people who could take him out.” Later that year, Lynn received a 

call from the husband of the woman with whom Dean was having an affair. When 

she confronted Dean, he acknowledged the affair. Lynn then told Garton to “go 

ahead and take him out.” She told Garton that Dean would be taking a trip to San 

Francisco in the future, and she sent Garton a box with keys to the cars that she 

and Dean owned; keys to their home in Gresham, Oregon; pictures of Dean; and 

information about where he parked and typically went after work in Portland, 

Oregon.

Garton began discussing a plan to murder Dean with another friend, 

Norman Daniels, around October 1997. Garton said there were several “contracts 

on [Dean’s] head” because he had embezzled money, and Daniels agreed to 

accompany Garton and Gordon and provide “support” for the plan. Garton told 

Daniels that he would receive $1,000 after Lynn received Dean’s life insurance 

payment if Daniels participated.

Garton originally planned to kill Dean in San Francisco while he was 

attending a conference, and he discussed this plan with Gordon and Daniels. But 

the trip was cancelled, and the three never followed through on the plan.

Instead, Garton and Gordon began planning to murder Dean in Oregon at 

his home or workplace. The two told Daniels that they would travel to Portland in 

October 1997 “to scout out the area,” and on October 10, 1997, Garton and 

Gordon rented rooms in a hotel in Portland. That afternoon, they went to the 

Noyeses’ home in Gresham and walked through the house while she was there. 

Garton drew a picture of the house, and later Garton and Gordon drove by Dean’s 

workplace in downtown Portland. That night, Lynn and Garton had sex in 

Garton’s hotel room.
4

Gordon and Garton returned to Oregon on January 3, 1998. They stayed in 

a hotel in the Eugene area, where they met with Lynn. They talked with Lynn 

about killing Dean and showed her several guns and knives, as well as 

ammunition, additional magazines, handcuffs, latex gloves, and a first aid kit. 

Gordon said they did so “to show Lynn that we were really going to do this.” 

Lynn spent the night in Garton’s room; the two had sex and returned to their 

respective homes the following day. 

In late January or early February 1998, Garton, Gordon, and Daniels met at 

the Moose Lodge in Anderson, California, to plan a trip to Oregon to murder 

Dean. They discussed two plans: first, they would try to kill Dean at his 

workplace; failing that, they would enter the Noyes residence and shoot him there. 

Garton also discussed paying Gordon and Daniels for their roles in the killing. 

On February 6, 1998, the three men drove up to Oregon. They brought a 

variety of guns, a silencer, communication devices, handcuffs, and latex gloves. 

Upon arriving in Gresham, they checked into a motel and stashed their equipment 

in their room. They then drove to the parking garage near Dean’s workplace, 

where they planned to kill him the next day. 

The next morning, Garton, Gordon, and Daniels rose early and drove to the 

parking garage to await Dean’s arrival. But Dean never arrived; unbeknownst to 

Garton, Lynn had told Dean to drive the larger of their cars, knowing that this car 

would not fit into the garage where the three men waited. After realizing that 

Dean had parked elsewhere, the men left and checked into a different hotel. Later, 

Garton shot a rifle out the hotel window into a deserted field. 

That afternoon, Lynn came to the hotel. She tried to convince Garton to 

abandon the plan, but he insisted that it was too late to do so and that he would try 

to kill Dean again that evening. She later called Garton and said she would try to 
5

get Dean and his brother, who was visiting at the time, out of the house so that the 

killing would not occur in her home. 

That night, Garton, Gordon, and Daniels left the hotel and parked near the 

Noyes residence. The men, all armed, approached the house, and Garton went to 

the front door. But Garton was unable to open the door, and the men ran back to 

their car. They returned to their hotel and departed for California the next 

morning. 

After returning home, Garton concocted a new plan to kill Dean. At the 

time, Lynn thought Dean was embezzling money from his employer. Garton 

planned to use this information to extort Dean and then kill him. He returned to 

Gresham in May 1998 and, with Lynn’s assistance, staged a break-in of the Noyes 

residence, taking a planner, a laptop, and some computer disks and equipment. 

According to Daniels, Garton also planned to kill Dean on this trip if the 

opportunity arose. Following the staged break-in, Garton called Daniels from his 

hotel room, telling him to send Dean an anonymous e-mail insinuating that 

someone knew he was embezzling and threatening harm to his children if he 

didn’t cooperate. Daniels complied. Subsequently, Dean received several cryptic 

messages from the same anonymous e-mail address. Garton’s computer contained 

evidence that he had accessed the account from which these e-mails were sent. 

Garton continued to discuss the possibility of murdering Dean with Lynn after 

sending these e-mails and after Carole’s murder, but the conspiracy to murder 

Dean was never carried out.

b. Murder of Carole Garton and her fetus

In October 1997, Carole and Garton discovered that Carole was pregnant. 

The prosecution presented evidence that Garton thought children were “pains” 
6

who would take away his freedom. He told people that he did not want the child 

and that it was not his. 

A few months later, Garton and Carole applied for life insurance. Carole 

was approved for a policy of $125,000, which was in effect at the time she was 

murdered. Garton was listed as the primary beneficiary. 

In early April 1998, two months after Garton, Daniels, and Gordon had 

driven to Oregon to murder Dean, Garton approached Daniels about another 

killing. He explained his involvement in The Company and said the organization 

would pay Daniels for fulfilling one of its “contracts” to kill someone. After 

completing one assassination, Daniels would become a member of The Company. 

If Daniels agreed to do this, Garton explained, The Company would send him a 

package revealing Daniels’s target. Garton’s code name was “Patriot,” and he 

gave Daniels a business card that said “Patriot” and had Garton’s pager number on 

it. 

Later that month, in preparation for the killing, Daniels and Garton bought 

a handgun, cleaning equipment, a holster, and two boxes of ammunition. Garton 

advised Daniels what gun to buy, paid for it, gave Daniels a holster for it, and 

helped him break it in. Daniels used that gun to kill Carole. 

On April 27, 1998, Garton bought a label maker, label tape cartridges, a 

manila envelope, and a pager. That night, he delivered the “target package” to 

Daniels. The package was in a manila envelope with a label on it, and it bore a 

wax seal with an imprint resembling a trinket of Garton’s. As Daniels opened the 

envelope, Garton told him that if he opened it, he would have to carry out the 

assigned killing or else be killed himself. 

The package contained a pager, some photographs, and some newspaper 

and magazine excerpts about the Irish Republican Army (IRA). All three 

photographs depicted Carole, and the back of one photograph contained 
7

information about Carole and Garton, along with a timeframe in which the murder 

was to take place and other instructions. 

Garton looked over the package’s contents with Daniels and seemed upset 

that the intended victim was his wife. Daniels said he couldn’t carry out the 

murder and asked Garton to call someone to change the target; Garton picked up 

the phone and started dialing, but then put the phone down and said, “Well, at least 

it’s not me.” Garton explained that Carole had been a member of the IRA and had 

worked with The Company, but had betrayed the group and so was being targeted 

as retribution. Later, on Garton’s advice, Daniels destroyed the photographs and 

documents, but kept the imprinted wax seal. 

After that meeting, Garton told Daniels that Daniels should have a received 

an introductory e-mail from The Company. Daniels said he had probably deleted 

it, and Garton said he would have The Company resend it. Soon thereafter, on 

May 6, 1998, Daniels received the introductory e-mail from the address 

“companyt@usa.net.” It welcomed him to the organization, informed him how he 

would receive coded messages, and explained that someone would be assigned to 

follow him and make sure he did his job. Garton responded to the e-mail on 

Daniels’s behalf. Over the next week, Daniels exchanged a series of e-mails with 

companyt@usa.net regarding his assignment. One of those e-mails contained a 

threat on Daniels’s life if he failed to kill Carole. The Company’s e-mail address 

was registered to a physical address in Northern Ireland, and drafts of The 

Company’s e-mails were found on the computer at the Garton residence.

As Daniels prepared to murder Carole, Garton provided assistance and 

advice. He initially told Daniels to kill Carole while Garton was in Oregon in 

early May, so that Garton would have an alibi. He told Daniels how to dispose of 

the murder weapon. When Daniels’s request for additional money was denied by 

the companyt@usa.net address, Garton offered him money. Garton then advised 
8

Daniels to kill Carole on May 16, 1998, because Garton would be gone all day at a 

gun show.

Garton also asked Lynn to help Daniels with the killing. In the fall of 1996, 

Garton and Lynn had previously discussed killing Carole as a way for them to 

reunite. This time, Garton began by saying that because of the earlier incident in 

Oregon, Lynn had no choice but to help The Company with one of its contracts. 

He later revealed that Carole was the target and that there was nothing he could do 

about it. 

At Garton’s request, Lynn often spoke with Daniels via e-mail, online chat 

rooms, instant messaging, and telephone in the weeks leading up to Carole’s 

murder. Garton told Daniels that Lynn would psychologically evaluate him on 

behalf of The Company, which allowed Lynn to glean information from Daniels 

about his preparedness and then pass that information on to Garton. 

On May 16, 1998, Garton and Daniels went to work at a gun show. Garton 

had previously recommended killing Carole that day because everyone would be 

at the show and killing her at home because they lived in a sparsely populated 

area. Carole briefly dropped by the show after a doctor’s appointment, and 

Daniels went home with her. After the two watched a movie together, Carole 

went to her room and lay down. Daniels drove to return the video, went back to 

the house, and then shot her five times.

Daniels left the house and drove the Gartons’ Jeep to a nearby parking lot, 

where he abandoned the vehicle; he and Garton had planned to make the murder 

look like it occurred during a robbery. Daniels went home and paged Garton with 

the message, “All done, going home.” Garton called Daniels to ask whether the 

message was for him, and Daniels confirmed it was. Daniels then left a message 

for Lynn, and the two later communicated online and over the phone; she advised 
9

him to dispose of any evidence. He also e-mailed companyt@usa.net with the 

message, “Package delivered.” 

Later that afternoon, Gordon’s girlfriend, Sarah Mann, arrived at the Garton 

residence. Gordon, Daniels, Garton, Carole, and Mann had all planned to go out 

that evening. On her way there, Mann saw Daniels driving the Gartons’ Jeep. She 

entered the home but saw no one there, so she watched television and played on 

the computer. Gordon arrived next, followed about 10 minutes later by Garton. 

Garton asked where Carole was, went outside, quickly came back in, and asked 

someone to call 911 because their Jeep had been stolen. Mann said she had just 

seen Daniels driving the Jeep. But Garton insisted the Jeep had been stolen and 

told Gordon he had to call 911.

Garton then went into the bedroom and discovered Carole’s body. He 

yelled for someone to call 911 and attempted to resuscitate Carole. The police 

arrived, followed by emergency medical technicians, but they were unable to 

revive her. Carole was pronounced dead at the scene. 

That night, Garton paged Daniels and the two spoke on the phone. Garton 

asked Daniels if he knew that Carole had been murdered and said the police were 

looking for Daniels. Garton also told him to dispose of the evidence. Daniels, 

who was at a friend’s house, asked Garton for a ride home to get rid of the gun, 

but Garton refused.

The next morning, May 17, 1998, Daniels asked Lynn to have The 

Company protect him. Lynn told Daniels that Garton wanted Daniels to return 

home and dispose of the gun, though Garton warned that the house was being 

watched; Garton also mentioned the possibility of Daniels fleeing to New York.

On returning home, Daniels encountered two detectives who had been 

monitoring his home and had received information of his return, and Daniels was 

taken into custody. The next day, May 18, 1998, at the behest of the detectives, 
10

Daniels called Garton. In that recorded conversation, after Daniels told Garton 

that he had “copped a plea of jealousy,” Garton said, “I’m going to get on the 

phone to the big boys and see what we can pull here,” and “I’ll see whatever 

monies you had coming . . . goes to your kid or family or something,” which 

Daniels understood as a reference to The Company and the money he would be 

paid for killing Carole. 

After Daniels’s arrest, Garton advised Lynn to tell the police that Daniels 

was jealous of Garton and Carole’s relationship, that she had only ever interacted 

with Daniels over the internet, and that she and Garton had no romantic 

relationship. In June 1998, detectives came to Lynn’s house. Seeing them 

approach from the kitchen window, she quickly called Garton, who told her to 

“remember the truth that [they] discussed, and stick to that.” 

2. Defense evidence

Garton testified in his defense and denied he was involved in the plot to kill 

Dean or in Carole’s murder. He presented the following evidence through his own 

testimony and the testimony of several other witnesses. 

a. Conspiracy to kill Dean Noyes

Garton dated Lynn in high school and broke off the relationship when he 

met Carole. But the two remained in contact. When Garton informed her that he 

was marrying Carole, Lynn responded that she planned on marrying him and sent 

Carole all of Garton’s letters to her in an attempt to stop the wedding. A year 

passed without further contact, until Lynn wrote Garton to say she too was getting 

married. After moving from California to Bend, Oregon, in the early 1990s, 

Garton and Carole reconnected with Lynn and began speaking regularly. During 

these conversations, Lynn repeatedly expressed romantic interest in Garton, 

although he discouraged such advances. 
11

Carole and Garton eventually moved back to Redding, California, where 

Garton began working for a fencing company and a hunting equipment supplier. 

On weekends, he would travel to hunting equipment shows across the region; 

these trips often took him to Oregon. One of these trips was to Eugene, Oregon, 

with Gordon. He met Lynn on this trip, but the two did not have sex; according to 

Garton, the two never had sex in the years leading up to Carole’s death. Although 

Lynn repeatedly told Garton about her suspicion that Dean was having an affair, 

Garton never provided her with any information to confirm these suspicions. 

In early 1998, Garton met with Gordon and Daniels at the Moose Lodge to 

discuss an upcoming trip to Portland. The three did not discuss killing Dean. 

Instead, they discussed going to a hunting equipment show. 

In February 1998, Garton, Gordon, and Daniels traveled to Portland to 

promote Garton’s business. They brought a variety of weapons and gear for their 

work, but Garton shot none of the guns they brought during the trip. They spent 

the first night at a Quality Inn and visited downtown Portland the next morning; 

they did not go to the parking garage near Dean’s work. They then went to the 

Hampton Inn, where Garton met Lynn. That evening, Daniels and Gordon took 

Garton’s car and went to a bar near Lynn’s home. The three men left the next 

morning. 

Garton returned to Portland on May 9, 1998, accompanied by Carole. He 

phoned Daniels from the hotel during that visit to discuss an ongoing fencing 

project that was behind schedule.

b. Murder of Carole Garton and her fetus

Garton presented evidence that he was loving toward Carole and excited for 

the impending birth of their child. Garton had been a volunteer youth soccer 

coach for a season and was good with kids. He attended a childbirth class with 
12

Carole; although he initially admitted being there involuntarily, he became an 

active participant in the class. Upon learning that the child would be a boy, 

Garton began referring to him as Jesse and bought him a rifle. 

Garton had life insurance through the United States Department of Veterans 

Affairs and acquired another policy through a private company in May 1998. He 

did not believe Carole had life insurance. He denied having any involvement in 

Carole’s killing. He never approached Daniels about becoming a paid assassin. 

He never made or saw a wax seal imprinted with a trinket from his home. 

Although he did buy an electric label maker, it was for his mother to give to her 

friend. 

Garton also did not buy Daniels the gun used in Carole’s murder, nor did he 

suggest buying that particular gun. He did give Daniels a holster for it, as well as 

drive him to pick up the gun. He also went with Daniels to fire the gun after 

Daniels had purchased it. 

On May 16, 1998, Garton went to work at a nearby gun show. Carole 

visited the show on the way home from a doctor’s appointment and went home 

with Daniels. Later that afternoon, Garton received a message from Daniels 

saying, “All done, going home.” 

When Garton came home, Mann and Gordon were there. He asked where 

Carole was, but did not tell Mann to call the police because the Jeep had been 

stolen. He then discovered Carole’s body. Seeing blood, he yelled for someone to 

call 911, tried to find her pulse, and began trying to resuscitate her. The police 

arrived and removed him from the house. 

The day after the murder, Garton did not speak with Lynn or with Daniels. 

The next day, he received a call from Daniels. Although Daniels said he had 

“copped a plea of jealousy,” Garton did not realize at the time that Daniels was 

confessing to having killed Carole. In the conversation, Garton assured Daniels 
13

that he would receive the money Garton’s fencing company owed him. He also 

told Daniels that he would speak with his dad and his older brother — whom he 

had previously called “the big boys” — to see what they thought of the situation. 

3. Prosecution rebuttal evidence

The prosecution presented additional evidence in rebuttal, including the 

following: Garton and Carole traveled to Oregon in April 1998; during that visit, 

Garton met up with Lynn and the two had sex. During the same month, Garton 

ordered business cards from a local printing store for someone who went by 

“Patriot,” and he later ordered a flier for Carole’s memorial service from the same 

store. He also kept an April 27, 1998 receipt from Office Max, showing the 

purchase of a manila envelope, a pager, and a label maker, along with several 

other office supplies. 

4. Defense surrebuttal evidence

The defense presented testimony from Lynn in response to the 

prosecution’s evidence concerning the Gartons’ April 1998 trip to Oregon. Lynn 

acknowledged she may have made contradictory statements about the trip; she had 

previously told detectives that she had not seen Garton in Oregon that month, and 

she had later told the prosecution a different story.

B. Penalty phase

The prosecution’s penalty phase evidence consisted of victim impact 

testimony from Carole’s father, stepmother, and two brothers. The family 

members described Carole’s personality and interests, as well as her excitement 

about becoming a parent. They described how they learned about Carole’s death 

and how seriously her death had affected them as a family and as individuals.

The defense did not present evidence at the penalty phase. At the 

beginning of his closing argument, before discussing the existence of mitigating 
14

factors and arguing in favor of a sentence of life without parole, Garton’s counsel 

said he had “a message as counsel for Mr. Garton to deliver to” the jury. He 

pointed out Daniels’s role in the crime, noted that Garton was incarcerated and 

found guilty, and concluded, “To Todd, life without family, freedom, or honor, has 

little value. You might as well kill him. He is neither asking nor he expects more 

than death from you [sic].” 

II. GUILT PHASE ISSUES

A. Wedding ring ruling 

Garton argues that the trial court erred when it denied his request to wear 

his wedding ring during trial. He contends this alleged error “violated . . . his right 

to present evidence in his defense, to be dressed in civilian attire in the jury’s 

presence, and to a reliable guilt and penalty determination in violation of the Fifth, 

Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and 

his rights under article I, sections 7, 15, 16, and 17 of the California Constitution.” 

1. Background

At a pretrial hearing, defense counsel requested that the court allow Garton 

to wear his wedding ring and a religious necklace during trial. The court found the 

request “problematic” and indicated that it would discuss the request with the 

bailiff. The prosecutor opposed the request for security reasons. The prosecutor 

also commented, “I see no benefit for him wearing [the wedding ring] . . . other 

than his attempt to try and persuade the jury that he has nothing to do with this 

murder, and that he’s still bonded with his wife, whatever it is he’s trying to 

convey subconsciously, or directly to the jury.” 

The court took issue with the non-security ground of opposition concerning 

the wedding ring: “I see the People’s point with regards to the wedding band, and 

that is, that one could consider the wearing of that band to be an — in effect, a 
15

form of communication . . . . The problem with that argument . . . is that if the 

Defendant wasn’t in custody, I’m not sure there would be any way I could compel 

him to take off his wedding band, even though you may or may not ever get to ask 

him about why he’s wearing it.” But the court acknowledged security concerns as 

to both items and opined that the effort required to ensure that the necklace and 

ring did not enter the jail “may be more of a burden than a busy Deputy Marshal 

should have to undertake.” 

At a subsequent hearing, the trial judge said he had spoken with his marshal 

and summarized the reasons the jail does not generally allow jewelry to be worn 

by inmates: jewelry can be made into a weapon or used for barter, even if the 

original wearer does not so intend. The court also noted that Garton would be 

wearing a tie and belt at trial, and said that “[t]here [are] roughly at least a hundred 

opportunities for the busy Marshal to inadvertently miss one of the now four 

items, two of which are small and not readily visible, to be missed and find their 

way back to the jail.” Defense counsel offered several options to ensure the 

marshals would not miss the jewelry; he suggested providing the marshals with a 

checklist or personally taking responsibility for the jewelry. Defense counsel 

argued, “[A]ny other defendant who is not in custody in this court . . . would 

obviously come in wearing a wedding ring, if that’s their normal course. And so 

what we’re now saying is that he is being deprived of the rights that any other 

person would have to correctly appear or make a normal appearance before a jury 

because of the no-bail situation . . . . And the fact that he does not have a wedding 

ring could well be interpreted by jurors as abandonment of his wife, in some sense 

or another.” The court was not persuaded and said: “[C]ounsel, there are a great 

many married men who never have worn wedding rings. It would really shock me 

to think that any juror would start making negative assumptions about a man 

whose wife died roughly two years ago because he isn’t currently wearing a ring, 
16

never having any knowledge about whether he ever wore a ring.” The court 

denied Garton’s request. Garton challenges the court’s ruling as to the wedding 

ring but not as to the religious necklace. 

2. Analysis of civilian attire claim

We first address Garton’s claim that the trial court’s denial of his request to 

wear his wedding ring violated his state and federal constitutional rights to be tried 

in civilian attire. 

The high court “has declared that one accused of a crime is entitled to have 

his guilt or innocence determined solely on the basis of the evidence introduced at 

trial, and not on grounds of official suspicion, indictment, continued custody, or 

other circumstances not adduced as proof at trial.” (Taylor v. Kentucky (1978) 436 

U.S. 478, 485.) In particular, “the State cannot, consistently with the Fourteenth 

Amendment, compel an accused to stand trial before a jury while dressed in 

identifiable prison clothes.” (Estelle v. Williams (1976) 425 U.S. 501, 512 

(Estelle).) 

Among the “substantial reasons for the rule that a criminal defendant is 

entitled to be tried in ordinary clothing[, f]oremost is the rationale that compelling 

a defendant to go to trial in jail clothing could impair the fundamental presumption 

of our system of criminal justice that the defendant is innocent until proved guilty 

beyond a reasonable doubt.” (People v. Taylor (1982) 31 Cal.3d 488, 494 

(Taylor).) “ ‘Jurors required by the presumption of innocence to accept the 

accused as a peer, an individual like themselves who is innocent until proved 

guilty, may well see in an accused garbed in prison attire an obviously guilty 

person to be recommitted by them to the place where his clothes clearly show he 

belongs.’ ” (Ibid., citing Estelle, supra, 425 U.S. at pp. 518–519 (dis. opn. of 

Brennan, J.).) In such circumstances, a defendant may not be able to sufficiently 
17

present his or her defense due to “the embarrassment associated with . . . wearing 

jail garb.” (Taylor, at p. 495.) Further, requiring defendants held in custody to 

wear inmate attire can violate the principles of equal protection: “[C]ompelling 

the accused to stand trial in jail garb operates usually against only those who 

cannot post bail prior to trial.” (Estelle, at p. 505; see Taylor, at p. 495.) 

The trial court’s denial of Garton’s request to wear his wedding ring during 

trial does not raise the concerns above. The absence of a wedding ring does not 

“identif[y]” a defendant as a person in custody (Estelle, supra, 425 U.S. at p. 502), 

nor does it act as a “constant reminder of the accused’s condition” that stems from 

“distinctive, identifiable attire” associating a defendant with jail or prison (id. at 

pp. 504–505).

Garton argues that even if his request did not implicate the due process and 

presumption of innocence rationales for civilian attire, “he was denied equal 

protection of the laws due solely to his custodial status.” He argues that out-ofcustody defendants may wear a wedding ring at trial and implies that there was no 

justification for Garton’s inability to do so. It is true that an in-custody criminal 

defendant’s compelled wearing of jail-associated attire “impinges on the tenets of 

equal protection” because it tends to affect those who cannot afford bail. (Taylor, 

supra, 31 Cal.3d at p. 495.) When a criminal defendant who cannot afford bail 

must appear at trial in jail attire, “ ‘[h]e suffers a disadvantage as a result of his 

poverty [and o]ur traditions do not brook such disadvantage. [Citation.]’ ” (Ibid.) 

However, we need not resolve the merits of Garton’s equal protection theory; any 

such violation was harmless because the absence of his wedding ring did not 

impermissibly remind the jury of Garton’s custodial status.
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3. Analysis of evidentiary claim

We next address Garton’s claim that he was “entitled to wear his wedding 

ring to rebut evidence that he did not love his wife and child and to prove 

affirmatively that he did” during his testimony and while otherwise present at trial. 

Garton notes that the jury was instructed pursuant to CALJIC 2.20 that when 

evaluating witness testimony during trial, it “may consider . . . [t]he demeanor and 

manner of the witness while testifying.” He argues that his wedding ring would 

have constituted a portion of his demeanor during his testimony and throughout 

his trial. He contends that the trial court’s rejection of his request to wear the ring 

constituted an abuse of discretion under state evidentiary law and a violation of his 

constitutional right to present evidence. The Attorney General responds that 

“while jurors might have drawn certain inferences based on the presence or 

absence of a wedding ring on appellant’s finger while he sat at the defense table, 

any such inferences would have been inappropriate because they were not based 

on evidence.” 

Garton is correct that a jury may consider a witness’s demeanor while 

testifying in order to determine the witness’s credibility. (Evid. Code, § 780.) 

Further, “[t]he witness’[s] demeanor . . . is always assumed to be in evidence.” 

(3A Wigmore, Evidence (Chadbourn ed. 1970) § 946, p. 783; see People v. Adams 

(1993) 19 Cal.App.4th 412, 438, citing Dyer v. MacDougall (2d Cir. 1952) 201 

F.2d 265, 269 [“a witness’s ‘ “demeanor” — is a part of the evidence’ ”].) A 

witness’s demeanor can include everything from facial expressions and hand 

gestures to tone and attire. (See Timony, Demeanor Credibility (2000) 49 Cath. 

U. L.Rev. 903, 907 [“Generally, demeanor includes the witness’s dress, attitude, 

behavior, manner, tone of voice, grimaces, gestures, and appearance. In other 

words, demeanor includes ‘all matters which “cold print does not preserve.” ’ ”].) 

Although jewelry is not typically part of a witness’s demeanor relevant to his or 
19

her credibility, a wedding ring conveys specific meaning, and its presence or 

absence may be relevant to credibility determinations in some cases. The 

Attorney General is thus incorrect in arguing that a trial court’s ruling that a 

witness cannot wear a wedding ring while testifying is never an evidentiary ruling.

But the trial court did not abuse its discretion in prohibiting Garton from 

wearing his wedding ring while testifying or during trial. “ ‘A trial court has 

“considerable discretion” in determining the relevance of evidence. [Citation.] 

Similarly, the court has broad discretion under Evidence Code section 352 to 

exclude even relevant evidence if it determines the probative value of the evidence 

is substantially outweighed by its possible prejudicial effects. [Citation.]’ ” 

(People v. Jones (2017) 3 Cal.5th 583, 609.) Here, the court reasonably weighed 

the security concerns of Garton wearing his wedding ring against the ring’s slight 

probative value. We find no abuse of discretion under these circumstances.

Finally, we reject Garton’s remaining constitutional arguments concerning

the court’s wedding ring ruling. “[T]he trial court’s rulings did not completely 

preclude him from pursuing the defense that he was wrongly accused.” (People v. 

Masters (2016) 62 Cal.4th 1019, 1079.) Nor did it prevent him from arguing that 

he could not have committed the murders because he loved his wife. Rather, the 

court permitted Garton to present a variety of evidence on the topic of his 

relationship with Carole; indeed, he testified to their relationship himself, as did 

several other defense witnesses. The court’s ruling thus did not constitute a 

deprivation of Garton’s constitutional right to present a complete defense. (See 

Crane v. Kentucky (1986) 476 U.S. 683, 689–691; Masters, at p. 1079.) The 

court’s ruling also did not inappropriately invade the province of the jury; its 

evidentiary ruling did not “undermine[] the sanctity of jury deliberations and 

invade[] the jurors’ mental processes.” (People v. Nelson (2016) 1 Cal.5th 513, 

569; see People v. Fuiava (2012) 53 Cal.4th 622, 666 [a ruling that probative 
20

value of certain evidence was substantially outweighed by undue consumption of 

time did not invade province of jury].) Nor did the ruling violate Garton’s right to 

reliable guilt and penalty determinations. (See People v. Gurule (2002) 28 Cal.4th 

557, 620 [rejecting argument that “routine” evidentiary ruling violated defendant’s 

rights to a reliable penalty, due process, a fair trial, and confrontation].)

B. Trial security measures for investigating officers 

Garton argues that the trial court violated his rights to due process, a fair 

trial, and to reliable guilt and penalty determinations by allowing the prosecution’s 

investigating officers to bypass metal detectors while entering the courthouse in 

front of jury members. He argues that the officers’ security bypass was inherently 

prejudicial to Garton’s right to the presumption of innocence and was not justified 

by a manifest need. 

1. Background

After trial began, Garton’s counsel expressed concern that two investigating 

officers had been bypassing security at the entrance to the courthouse. He noted 

that the officers sat at the prosecution’s table during trial and argued that their 

ability to enter the courthouse without being searched “[s]how[ed] a level of trust 

on that side of this courtroom that is not being accorded to us.” Noting that both 

officers were expected to testify for the prosecution, the defense argued that the 

security bypass “present[ed] an impermissible appearance of credibility to those 

officers, being allowed to pass through without the proper search.” The defense 

requested that “all participants in the trial that are sitting at counsel table . . . go 

through exactly the same entry procedure as everybody else.”

The court found that the officers’ security bypass was not improper or 

prejudicial. Observing that the security checkpoint was put in place to screen for 

weapons, the court said that because the officers were permitted to carry weapons 
21

in the courtroom (see § 171b, subd. (b)(2)(A)), there was no reason for officers to 

go through additional screening once they identified themselves to court security 

officers. At the same time, it offered to advise the jury “as to the reasons for that 

treatment so that they don’t get the impression which you thought they would get, 

that somehow these two officers and potential witnesses have some kind of special 

credibility.” Defense counsel declined, saying that “an admonition would do more 

harm than good, so we have to live with the lesser of two evils.” 

2. Analysis

We reject Garton’s claim because nothing in the record suggests the jurors 

were aware that the officers were permitted to bypass the metal detectors when 

entering the courthouse. Without such evidence, Garton cannot show he was 

prejudiced by the procedure. (See People v. Stevens (2009) 47 Cal.4th 625, 642 

[holding that defendant’s contention that he should not have been accompanied by 

an officer at the witness stand fails for failure to show any prejudice].) Moreover, 

even if the jurors had seen the two investigating officers bypassing security at the 

entrance to the courthouse, the jurors were instructed with CALJIC 2.20 on the 

considerations relevant to evaluating witnesses. These considerations emphasize 

the testimony of the witness on the stand. We presume the jury followed the 

court’s instructions and would not have considered the officers’ ability to bypass 

weapons screening as lending them a false aura of credibility. (People v. 

Thompson (2010) 49 Cal.4th 79, 138.) The trial court reasonably concluded that 

because the officers were authorized to carry weapons under state law (§ 171b, 

subd. (b)(2)(A)), there was no reason to subject them to weapons screening at the 

entrance to the courthouse. The court did not err in permitting the continued use 

of the security bypass.
22

C. Confrontation clause error 

Garton contends that his constitutional right to confront the witnesses 

against him was violated during the testimony of Shasta County coroner Dr. Susan 

Comfort. He argues that Comfort relied on testimonial statements made by 

another coroner who performed Carole’s autopsy, violating Crawford v. 

Washington (2004) 541 U.S. 36 (Crawford). He argues that such error violated his 

right to reliable guilt and penalty determinations.

1. Background

As a coroner for Shasta County, Dr. Harold Harrison performed an autopsy 

of Carole and her fetus, and authored a report in June 1998. He retired and was 

succeeded by Comfort, who testified as a witness for the prosecution at Garton’s 

trial. 

Comfort testified that she relied on Harrison’s autopsy report and 

associated diagrams, as well as photographs taken at the autopsy and the crime 

scene, in forming the opinions she conveyed during her testimony. She also 

acknowledged reviewing an emergency medical technician’s crime scene report 

and a ballistics report produced by an employee of the California Department of 

Justice. The prosecutor then told Comfort, “What I’d like to do is go through with 

you Dr. Harrison’s findings in the autopsy of Carole Anne Garton,” and he sought 

to introduce several diagrams Comfort had prepared in anticipation of trial that 

Comfort testified “accurately reflect[ed] the findings of Dr. Harrison.” Garton’s 

counsel objected to introduction of the diagrams, saying, “As I understand, what 

this witness is going to be doing is testifying entirely from hearsay. So, we’re 

going to object.” The court overruled the objection but noted, “[I]f Dr. Comfort’s 

testimony is based on assumptions, such as an assumption of the accuracy of a 

diagram or anything else, [then] that needs to be established in her examination.” 

The court later warned the prosecution to avoid eliciting testimony from Comfort 
23

concerning hearsay, including portions of Harrison’s report upon which she did 

not rely in forming her opinions. 

Comfort testified on the trajectories of the bullets that injured Carole and 

her fetus, observed that the fetus was approximately eight and a half months old 

and would have been viable, and concluded that gunshot wounds caused Carole’s 

death. On cross-examination, she estimated that Carole would have died within 20 

or 30 minutes of being shot. At no point did either party seek to introduce 

Harrison’s autopsy report into evidence.

2. Analysis

The Attorney General contends that Garton forfeited his confrontation 

clause claim by objecting to Comfort’s testimony only on hearsay grounds. “But 

because defendant’s trial occurred before the decision in Crawford, he has not 

forfeited his Crawford challenge.” (People v. Clark (2016) 63 Cal.4th 522, 563, 

citing People v. Rangel (2016) 62 Cal.4th 1192, 1215 [clarifying that “in a case 

tried before Crawford, a defendant does not forfeit a Crawford challenge by 

failing to raise a confrontation clause objection at trial”].)

The confrontation clause of the Sixth Amendment to the federal 

Constitution guarantees that “[i]n all criminal prosecutions, the accused shall 

enjoy the right . . . to be confronted with the witnesses against him.” In Crawford, 

the high court held that this guarantee bars the introduction of testimonial out-ofcourt statements offered for their truth unless (1) there is a showing that the 

declarant is unavailable and either (2) the defendant had a prior opportunity to 

cross-examine the declarant or (3) the defendant has forfeited his right to object 

through his own wrongdoing. (Crawford, supra, 541 U.S. at pp. 54, 62.) In light 

of the unavailability requirement, we note that greater vigilance by courts in 
24

requiring live witnesses to be called when available would help to avoid 

confrontation clause problems.

Garton argues that “Dr. Comfort did little more than convey Dr. Harrison’s 

findings verbatim to the jury,” i.e., that she “conveyed his testimony to the jury as 

a surrogate witness.” Thus, the core of Garton’s confrontation clause claim is that 

Comfort’s testimony introduced out-of-court statements from the autopsy report to 

the jury. In this regard, Comfort’s testimony may be grouped into three 

categories: (1) in-court statements and opinions premised explicitly on 

photographs and X-rays from the autopsy (e.g., “Referring back to the photograph, 

other things we can see here, is she’s got this gun powder stippling pattern just like 

we saw on gunshot wounds number three and four”); (2) recitations of statements 

made by Harrison in the autopsy report; and (3) opinions relying generally on 

Harrison’s autopsy report and photographs, but not identifying specific facts from 

Harrison’s report or photographs (e.g., “[Comfort]: The cause of death was the 

result of multiple gunshot wounds. [Prosecutor]: And what do you base that 

opinion on? [Comfort]: After reviewing the autopsy report prepared by Dr. 

Harrison and also the photographs that were taken at the scene and at the 

autopsy”). Because there was no showing of Harrison’s unavailability, the 

confrontation clause bars the admission of any part of Comfort’s testimony that 

constitutes testimonial hearsay, unless an exception applies. We begin by 

analyzing whether any of the three categories of Comfort’s testimony included 

hearsay.

The first category of Comfort’s testimony, premised explicitly on 

photographs and X-rays, did not constitute hearsay. “It is clear that the admission 

of autopsy photographs, and competent testimony based on such photographs, 

does not violate the confrontation clause. Hearsay is defined as an out-of-court 

‘statement.’ (Evid. Code, § 1200.) A statement is defined for this purpose as an 
25

‘oral or written verbal expression or . . . nonverbal conduct of a person’ intended 

as a substitute for oral or written expression. (Evid. Code, § 225, italics added.) 

Only people can make hearsay statements; machines cannot. [Citation.]” (People 

v. Leon (2015) 61 Cal.4th 569, 603.)

The second category of statements, those made by Harrison in the autopsy 

report and related by Comfort, did communicate out-of-court statements to the 

jury because the autopsy report contained the out-of-court statements of Harrison. 

For example, Comfort supplied facts from Carole’s autopsy of which she had no 

personal knowledge: “Page 2 [of the autopsy report] contains the external 

examination and under that, under the general description, Dr. Harrison states that 

the body measures five feet five inches in length and he estimates a weight of 200 

pounds and that she is pregnant”; “And that wound, the trajectory of the pathway, 

which I was able to determine from reading Harrison’s report, was that it 

perforated the uterus, the amnionic sack [sic] surrounding the fetus, then the bullet 

entered the head of the baby and then angled downwards”; “I did not see anything 

mentioned at all in Harrison’s report, any other kinds of injuries other than 

gunshot wounds”; “According to Harrison, they recovered a deformed, largecaliber projectile and it was in the petrous bone.” Because these facts were 

offered for their truth, they were hearsay. (People v. Sanchez (2016) 63 Cal.4th 

665, 684 [“If an expert testifies to case-specific out-of-court statements to explain 

the bases for his opinion, those statements are necessarily considered by the jury 

for their truth, thus rendering them hearsay.”].)

As to the third category of Comfort’s statements, her own opinions 

generally relying on the photographs did not communicate out-of-court statements 

because photographs are not statements. With respect to Comfort’s testimony 

generally relying on the autopsy report, which does contain Harrison’s written 

statements, we have held that an expert may rely on hearsay in forming an opinion 
26

and may tell the jury in general terms that she did so. (Sanchez, supra, 63 Cal.4th 

at p. 685.) If Comfort had related as true a statement by Harrison, then she would 

have communicated hearsay. But this category of Comfort’s testimony did not 

directly convey any statements by Harrison, nor in context did her testimony 

implicitly do so. Comfort explained earlier in her testimony that in addition to 

Harrison’s autopsy report, she reviewed Harrison’s diagrams and all of the 

photographs, and that “based on [her] review of all those documents,” she 

“reach[ed] the same conclusions in [her] mind” as Harrison. In light of her entire 

testimony, it is clear that Comfort was exercising her own independent judgment 

to arrive at her conclusions. In sum, this third category of Comfort’s statements 

only conveyed to the jury in general terms that Comfort relied on the autopsy 

report and did not communicate hearsay to the jury.

Assuming that the hearsay from the second category of Comfort’s 

statements was testimonial within the meaning of Crawford, we find that any 

confrontation clause error would have been harmless beyond a reasonable doubt. 

(Chapman v. California (1967) 386 U.S. 18, 24.) A relatively small portion of 

Comfort’s testimony concerning the state of Carole’s body — only five or six 

statements out of testimony spanning 30 transcript pages — was hearsay. More 

importantly, the state of Carole’s body and the manner in which she died were not 

disputed at trial. The parties stipulated to the fact that Carole was shot from a very 

close range, Daniels testified that he shot Carole at that close range, and an 

emergency medical technician testified that he saw bullet wounds in Carole’s body 

at the crime scene and authenticated photographs showing the same. During guilt 

phase closing arguments, Garton’s counsel acknowledged, “[T]here is no issue in 

this case about how Carole Garton was shot. Norman did that, not Todd Garton. 

How he did it, that issue is not relevant here. [¶] The issue is whether Mr. Garton 

was involved to some extent in having Mr. Norman Daniels go and do it.”
27

Garton argues that the inability to cross-examine Harrison prevented him 

from obtaining clarifying details about how the fetus died, which could have 

allowed him to contest his intent to kill the fetus and “present a less-aggravated 

view of the crime.” Garton claims that Comfort (1) was unable to tell from 

Harrison’s autopsy report whether a red dot visible in an autopsy photograph “was 

an injury or possibly a little red mole,” and (2) relied on Harrison’s autopsy report 

to conclude that Carole’s fetus died of a gunshot wound rather than as a necessary 

consequence of Carole’s death. But Garton does not explain how the red dot 

would have contradicted either the autopsy report’s or Comfort’s assessment of 

the fetus’s cause of death. And because Daniels (not Garton) shot Carole and her 

fetus, it is not clear how the fetus’s exact cause of death would have cast doubt on 

Garton’s intent to kill the fetus or would have otherwise presented a less 

aggravated view of his crime. We thus conclude that Garton was not prejudiced 

by the introduction of Comfort’s case-specific hearsay statements concerning the 

state of Carole’s body and her cause of death.

D. Territorial jurisdiction over conspiracy charge 

Garton contends that the trial court erred in finding that it had jurisdiction 

over the charge that he conspired to murder Dean in Oregon. He relies on People 

v. Buffum (1953) 40 Cal.2d 709 (Buffum), which held that California courts have 

jurisdiction over conspiracies to commit out-of-state crimes only when the 

conspiratorial acts done in California independently constitute attempts to commit 

those crimes.

1. Background

The prosecution introduced evidence at the guilt phase tending to show that 

Garton, while residing in Shasta County, spent over a year planning to murder 

Dean. Gordon testified that Garton began talking with him about a plan to murder 
28

Dean around January 1997. He further testified that Garton expected to receive 

life insurance proceeds from Dean’s death and offered to share a portion of those 

proceeds with Gordon in exchange for assistance in planning and committing the 

murder. Daniels testified that Garton approached him with plans to kill Dean in 

October 1997 and offered him money in exchange for his help. Daniels and 

Gordon testified that Garton talked to each of them in 1997 about murdering Dean 

while Dean was on a business trip in San Francisco, though Garton later changed 

the plan to murder Dean at his workplace or home in Oregon. Lynn testified that 

sometime in 1997, Garton “mentioned the idea” that “he could — or knew people 

who could” kill Dean. She also said that after she found out Dean had cheated on 

her, she told Garton to kill Dean.

The prosecution introduced evidence that Daniels, Gordon, and Garton 

prepared to murder Dean in California between 1997 and early 1998. Throughout 

1997, Garton and Gordon watched violent movies together as “training.” Daniels 

testified he and Garton shopped for shoes, rain gear, and wool hats so they would 

blend in when in Oregon and that they test-fired a gun they anticipated using in the 

murder. Shortly before Daniels, Gordon, and Garton left for Oregon in February 

1998, they met at the Moose Lodge in Anderson, California, to discuss details of 

the planned murder. Sometime in 1997, Lynn had mailed Garton pictures of 

Dean, as well as keys to her home and cars, and Garton discussed using those keys 

to enter Dean’s home in case they were not able to kill him at his workplace.

Daniels and Gordon testified to other planning conduct that occurred 

outside of California before February 1998. They each said that Gordon and 

Garton traveled to Portland, Oregon, in October 1997 to “scout out” Dean’s home 

and workplace. Gordon also said that on that first trip, he and Garton walked

around the Noyeses’ house and discussed entering through the back door. He 

remembered that Garton drew a picture of the home and that they drove by Dean’s 
29

workplace in downtown Portland. He testified that on a second trip to Oregon in 

January 1998, he and Garton met with Lynn in a hotel to discuss their plans to kill 

Dean and that they had brought guns and knives with them “to show Lynn that we 

were really going to do this.”

Daniels said that on February 6, 1998, Garton picked Daniels up and took 

him back to Garton’s house. The two loaded Garton’s car with an assortment of 

guns, ammunition, and knives, as well as a homemade silencer, latex gloves, and 

two walkie-talkies. Gordon then met them at the house, and they left for Oregon 

shortly thereafter. Gordon and Daniels said the three of them drove off with the 

intent to kill Dean at his workplace in Portland the next morning. 

The prosecution presented evidence that Garton, Daniels, and Gordon 

arrived in Gresham, Oregon, that evening and checked into a motel. After leaving 

their weapons in the motel room, they drove by the parking garage where they had 

planned to kill Dean the next morning. They went back to the motel, slept, and 

returned to the parking garage with their weapons on the morning of February 7, 

1998. Dean never entered the parking garage that morning, and Garton, Daniels, 

and Gordon eventually decided to stay at a different hotel. That night, the three 

left the hotel with their weapons and parked at a business near the Noyeses’ home. 

They each armed themselves and walked to the Noyeses’ home, and Garton tried 

to open the front door with a key Lynn had previously mailed him. He could not 

open the door with the key, and the men ran back to their car. 

Before trial, Garton moved to dismiss the charge that he conspired to 

murder Dean on the ground that the court lacked territorial jurisdiction over the 

conspiracy, arguing that Garton’s actions in California were insufficient to 

constitute an attempt to commit murder. At a hearing on the issue, the defense 

argued that “there was a degree of preparation in California,” but that an attempt 

could not begin until Garton arrived in Gresham, Oregon. The court denied the 
30

motion, reasoning that “the Defendant and his crime partners engaged in sufficient 

California acts to go beyond mere preparation, considering, and in light of, the 

unequivocal, clear, expressed intent to commit the murder.” 

During trial, the defense requested an offer of proof hearing pursuant to 

Evidence Code section 402 concerning Daniels’s testimony about the conspiracy 

to murder Dean, but the court denied the motion as untimely. The defense later 

raised a standing objection to “anything dealing with anything up in Oregon”; the 

court acknowledged the objection and indicated that counsel would have to renew 

it at a later time. The court again discussed the jurisdictional issue in the context 

of the defense’s motion for entry of judgment on grounds of insufficient 

corroborating evidence of accomplice testimony, and it again rejected Garton’s 

jurisdictional arguments. At the close of the guilt phase, the jury convicted Garton 

of all conspiracy counts, including the conspiracy to murder Dean.

2. Analysis

As noted, Buffum held that a California court has jurisdiction over a 

conspiracy to commit a crime in another state when “the acts done within the state 

are sufficient to amount to an attempt to commit a crime but not otherwise.” 

(Buffum, supra, 40 Cal.2d at p. 716.) In People v. Morante (1999) 20 Cal.4th 403, 

432–433, we overruled this jurisdictional rule prospectively, holding that “our 

courts do have jurisdiction to criminally prosecute a defendant both for in-state 

conspiracies to commit offenses out of state, and for in-state aiding and abetting of 

the commission of offenses out of state.” (Id. at p. 409.) But the information 

charging Garton with conspiracy to murder Dean was filed in 1998, before we 

decided Morante, and thus both parties agree that Buffum governs this case. 

Therefore, in order to determine whether the trial court had jurisdiction over the 

charge that Garton conspired to commit murder in Oregon, we must determine 
31

whether his acts within California’s borders independently constituted an attempt 

to commit murder.

The act element of attempt is satisfied when “a direct but ineffectual act 

[has been] done toward [a crime’s] commission.” (§ 21a.) “The overt act element 

of attempt requires conduct that goes beyond ‘mere preparation’ and ‘show[s] that 

[defendant] is putting his or her plan into action.’ [Citations.]” (People v. Watkins 

(2012) 55 Cal.4th 999, 1021 (Watkins).) We recently summarized the boundaries 

of an attempt as follows: “For example, if a person decides to commit murder but 

does nothing more, he has committed no crime. If he buys a gun and plans the 

shooting, but does no more, he will not be guilty of attempt. But if he goes 

beyond preparation and planning and does an act sufficiently close to completing 

the crime, like rushing up to his intended victim with the gun drawn, that act may 

constitute an attempt to commit murder.” (People v. Johnson (2013) 57 Cal.4th 

250, 258 (Johnson).) The standard is not that attempt liability attaches when law 

enforcement may lawfully intercede for investigative or crime prevention 

purposes. (Cf. conc. & dis. opn. of Chin, J., post, at pp. 1, 20, 24.)

Because there was clear evidence of Garton’s intent to murder Dean, we 

review his actions in California under the slight acts rule. “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.’ [Citations.]” (People v. Superior Court (Decker) 

(2007) 41 Cal.4th 1, 8 (Decker).) “Indeed, where (as here) the crime involves 

concerted action — and hence a greater likelihood that the criminal objective will 

be accomplished [citation] — there is a greater urgency for intervention by the 

state at an earlier stage in the course of that conduct. [Citation.]” (Id. at pp. 10–

11.) 
32

By the morning of February 6, 1998, Garton had planned the murder of 

Dean extensively. He had loaded his car with weapons and equipment, and he 

then drove away from his home toward the state line with accomplices with the 

intent to murder Dean in the Portland area the next day. But, as in many other 

attempt cases, “ ‘[t]he line between mere preparation and conduct satisfying the 

act element of attempt . . . is difficult to determine; the problem “is a question of 

degree and depends upon the facts and circumstances of a particular case.” ’ ” 

(People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1192 (Hajek and Vo), overruled 

on another ground in People v. Rangel, supra, 52 Cal.4th at p. 1216.) We 

conclude that on the facts here, Garton’s actions within California were not 

sufficient to satisfy the act element of an attempted murder.

Our attempt jurisprudence calls for a pragmatic, case-specific approach; 

“ ‘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.’ [Citations.]” (People v. Memro 

(1985) 38 Cal.3d 658, 698, overruled on another ground in People v. Gaines 

(2009) 46 Cal.4th 172, 181, fn. 2.) 

One factor that our case law on attempted murder has recognized is the 

defendant’s geographic proximity to the victim. For example, in Hajek and Vo, 

one defendant told a witness that he planned to kill a woman and her family, and 

later both defendants drove a stolen van to a place near the family’s home, gained 

access to the home while wearing gloves and carrying a pellet gun, and held the 

members of the family hostage. (Hajek and Vo, supra, 58 Cal.4th at p. 1193.) We 

rejected the defendants’ argument that “there was insufficient evidence of an act 

that went beyond mere preparation” under the slight acts rule, noting that “[a]t the 

point defendants entered the [victims’] residence and took [two family members] 

hostage, it can fairly be said they were ‘ “ ‘actually putting [their murderous] plan 
33

into action.’ ” ’[Citations.]” (Id. at p. 1194.) Likewise, in People v. Morales 

(1992) 5 Cal.App.4th 917 (Morales), a case we have cited with approval (Johnson,

supra, 57 Cal.4th at p. 258, fn. 4; Hajek and Vo, at p. 1194), the Court of Appeal 

found substantial evidence supporting the defendant’s attempted murder 

conviction under the slight acts rule where the defendant “not only threatened to 

get [the victim] twice, he went home, loaded his gun, drove to his victim’s 

neighborhood, and finally hid in a position that would give him a clear shot at [the 

victim] if [the victim] left by the front door [of his home].” (Morales, at pp. 926–

927).

Our cases reviewing the overt act requirement for other attempt crimes 

similarly find relevant the defendant’s proximity to the planned crime scene and 

the intended victim. For example, in People v. Anderson (1934) 1 Cal.2d 687, 690 

(Anderson), we found that the defendant committed sufficient acts to constitute an 

attempted robbery. We said, “Defendant’s conduct in concealing the gun on his 

person and going to the general vicinity of the Curran theater with intent to 

commit robbery may, for present purposes, be classified as mere acts of 

preparation but when he ‘walked in there [Curran Theater entrance] about two feet 

from the grill’ and ‘pulled out the gun’ and ‘was just going to put it up in the cage 

when it went off’, we are satisfied that his conduct passed far beyond the 

preparatory stage and constituted direct and positive overt acts that would have 

reasonably tended toward the perpetration of the robbery.” (Ibid.; see also 

Watkins, supra, 55 Cal.4th at pp. 1021–1024 [reviewing cases finding sufficient 

evidence of the overt act element of an attempted robbery].) 

Unlike the defendants’ actions in the cases above, Garton’s actions in 

California did not occur in close proximity to the victim or to the anticipated site 

of the murder in the Portland area. While in California, Garton could not “enter” 

the murder scene (Hajek and Vo, supra, 58 Cal.4th at p. 1194), “hid[e] in a 
34

position that would give him a clear shot” (Morales, supra, 5 Cal.App.4th at 

p. 927), or even “go[] to the general vicinity” of the planned murder scene 

(Anderson, supra, 1 Cal.2d at p. 690).

We have previously found sufficient evidence of attempted murder when a 

defendant was far away from his victim but had no further actions to take to 

complete the crimes. In Decker, we held that the trial court erred in dismissing an 

attempted murder charge stemming from the defendant’s attempt to “aim at [his 

sister] an armed professional who had agreed to commit [her] murder.” (Decker, 

supra, 41 Cal.4th at p. 9.) We noted that “[a]lthough Decker did not himself point 

a gun at his sister” (ibid.), he “had effectively done all that he needed to do to 

ensure that [the victims] be executed” (id. at p. 14). “Decker had secured an 

agreement with Holston [an undercover police detective] to murder [his sister] 

(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.” (Id. at p. 9.) We explained: “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. [Citations.] 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.” (Decker, supra, 41 Cal.4th at pp. 13–14.)

Garton did not arrange to murder his victim from afar; he planned to be an 

armed member of a group that would murder Dean in Oregon. Before reaching 

the state line, he had done some, but not all of the things that “he needed to do” 
35

(Decker, supra, 41 Cal.4th at p. 14) to murder his intended victim. He had 

gathered weapons and other equipment, scouted possible crime scenes, prepared 

his accomplices, and started driving toward Oregon. But he had not arrived near 

the anticipated crime scene, sent his accomplices off to murder Dean without 

further assistance, or taken other action sufficient to accomplish Dean’s murder 

from afar. We conclude that Garton’s actions in California were insufficient to 

satisfy the overt act element.

The facts of Buffum itself are instructive. There, a surgeon and an 

accomplice were convicted of conspiring to perform abortions in violation of 

former section 274. (Buffum, supra, 40 Cal.2d at p. 714.) Although the surgeon 

refused to perform abortions in Southern California, he took the phone numbers of 

several women and told them they would receive a call or gave them a number to 

call. His accomplice then called the women or received a call from them, and 

arranged to transport them to and from Tijuana, Mexico, where they received 

abortions from a third party. (Ibid.) On these facts, we found that the two 

defendants’ actions within California were “merely preparatory.” (Id. at p. 718.) 

We noted that “[n]o case has been cited or found which holds that persons can be 

convicted of an attempt to commit abortions if they do no more within the state 

than make arrangements for transportation and then take women from California 

to Mexico for the purpose of performing abortions upon them in that country. . . . 

There is nothing in the [former] section [274] which indicates that transportation 

or arrangement therefor has a direct relation to the acts prohibited by the statute.” 

(Ibid.) 

Similarly here, Garton’s actions in California included planning an out-ofstate crime, preparing to commit that crime, and transporting himself and his 

accomplices out of the state to commit the crime there. Whereas the defendants in 

Buffum intended to act as accomplices to a third party who would commit the 
36

relevant crime, Garton planned to commit murder himself. His actions within 

California — planning and driving away with guns and accomplices — were 

insufficient to amount to attempted murder. Moreover, Garton’s actions in 

California on February 6, 1998 were temporally separated by one night from his 

actions in Oregon on the morning of February 7, 1998. This significant temporal 

gap between when Garton and his coconspirators embarked for Oregon and their 

arrival at the location where they planned to kill Dean shows that, at the moment 

defendant and his coconspirators entered into Oregon, the plot to kill Dean was not 

“in such progress that it [would] be consummated unless interrupted by 

circumstances independent of the will of the attempter . . . .” (Buffum, supra, 40 

Cal.2d 709 at p. 718.)

The Attorney General contends that “[a]lthough more than 12 hours elapsed 

and about 400 miles were driven between appellant’s departure from Shasta 

County on February [6] and the first attempt to kill Dean on February [7], those 

circumstances do not preclude a finding that acts in California constituted an 

attempt.” He notes that “an act may constitute an attempt even if subsequent acts 

are undertaken before a crime is committed,” especially in the context of clearly 

shown intent, and he argues that “[l]oading the equipment into his Jeep and 

heading north on I-5 were the first steps toward putting his plan into action.”

A defendant need not take the penultimate action toward a crime to be 

guilty of attempt. For example, a defendant need not point a gun at an intended 

victim to be guilty of attempted murder; when a defendant has clearly shown 

murderous intent, arriving near an intended victim’s home or work with a weapon 

and then waiting for the victim can be attempted murder. (Morales, supra, 5 

Cal.App.4th at pp. 926–927.) Nor must a defendant be within sight of a victim; 

when a defendant has clearly shown murderous intent, unequivocally directing an 

accomplice to commit a murder can constitute attempted murder. (Decker, supra, 
37

41 Cal.4th at p. 9.) But our case law does not suggest that a defendant with clearly 

shown intent need only make preparations or start moving toward the intended 

victim to be guilty of attempted murder. (See People v. Miller (1935) 2 Cal.2d 

527, 529 [holding that the defendant coming within 200 yards of the intended 

victim with a loaded rifle “do[es] not constitute an attempt to commit murder”]; 

Anderson, supra, 1 Cal.2d at p. 690 [“Defendant’s conduct in concealing the gun 

on his person and going to the general vicinity of the Curran theater with intent to 

commit robbery may, for present purposes, be classified as mere acts of 

preparation”]; cf. Hajek and Vo, supra, 58 Cal.4th at p. 1194 [stating that “[a]t the 

point defendants entered the [victims’] residence and took [two family members] 

hostage, it can fairly be said they were actually putting [their murderous] plan into 

action,” and implying that the point of attempt had not yet been reached when 

defendants began driving to the residence, even though they had weapons and 

planned to murder the family]; People v. Dillon (1983) 34 Cal.3d 441, 456 

[finding attempted robbery of a marijuana field where defendants had armed and 

disguised themselves, set off for the field, “made their way past barricades posted 

with ‘no trespassing’ signs,” “divided themselves into small groups, encircled the 

field,” and laid in wait for their opportunity].) To be sure, the evidence shows that 

after Garton left California, he apparently did commit overt acts sufficient to 

support an attempted murder conviction. But Buffum does not permit us to 

consider these out-of-state acts for the purpose of territorial jurisdiction in 

California. 

In sum, we hold that Garton’s activities in California do not satisfy the 

overt act element of attempted murder, even considering the clear evidence of his 

intent to murder Dean. Although we acknowledge that our dissenting colleagues 

would draw the line at a different place, we conclude that Garton’s actions within 

California were not sufficient to support a conviction for attempted murder. 
38

Accordingly, we reverse Garton’s conviction for conspiracy to murder Dean 

Noyes for lack of territorial jurisdiction.

E. CALJIC No. 8.69 instructional error 

Garton contends that the trial court’s use of CALJIC No. 8.69 allowed the 

jury to find him guilty of conspiracy to commit murder without finding that he had 

a specific intent to kill. He argues that the court’s instructions reduced the 

prosecution’s burden of proof by omitting an essential element of the offense 

charged and thus violated his right to due process.

1. Background

Garton was charged with three counts of conspiracy to commit murder. 

Each charge of conspiracy involved more than two parties: the conspiracies to 

murder Carole and her fetus involved three conspirators, and the conspiracy to 

murder Dean involved four conspirators. At the close of trial, as to all three 

counts, the trial court instructed the jury with a variant of CALJIC No. 8.69. That 

instruction stated in relevant part:

“In order to prove this crime, each of the following elements must be

proved:

“1. Two or more persons entered into an agreement to kill unlawfully 

another human being;

“2. At least two of the persons specifically intended to enter into an 

agreement with one or more other persons for that purpose;

“3. At least two of the persons to the agreement harbored express malice 

aforethought, namely a specific intent to kill unlawfully another human being; and

“4. An overt act was committed in this state by one or more of the persons 

who agreed and intended to commit murder.” 
39

After deliberation, the jury returned guilty verdicts for conspiracy to 

murder Carole, conspiracy to murder a human fetus, and conspiracy to murder 

Dean. 

2. Analysis

“ ‘Conspiracy requires two or more persons agreeing to commit a crime, 

along with the commission of an overt act, by at least one of these parties, in 

furtherance of the conspiracy. [Citations.] A conspiracy requires (1) the intent to 

agree, and (2) the intent to commit the underlying substantive offense.’ 

[Citation.]” (People v. Homick (2012) 55 Cal.4th 816, 870.) The default phrasing 

of CALJIC No. 8.69 reflects these elements of specific intent. The instruction 

specifies that, in order to prove conspiracy to murder, the prosecutor must prove 

that “each of the persons specifically intended to enter into an agreement with one 

or more other persons for that purpose” and that “each of the persons to the 

agreement harbored express malice aforethought, namely a specific intent to kill 

unlawfully another human being.” (CALJIC No. 8.69, italics added.)

The parties agree that the trial court erred by instructing to the contrary. As 

they correctly note, the trial court should have provided instructions informing the 

jury that in order to prove that Garton committed conspiracy to commit murder, 

the prosecution needed to prove that Garton was one of the several conspirators 

who possessed a specific intent to agree and to kill. Instead, the trial court gave a 

variant of CALJIC No. 8.69 that is appropriate when a conspiracy involves the 

“ ‘feigned participation of a false coconspirator or government agent.’ ” (Use 

Note to CALJIC No. 8.69 (7th ed. 2003) p. 388.) Asking the jury to find specific 

intent for “at least two” conspirators in a conspiracy with more than two members, 

none of whom is feigning involvement, could potentially lead a jury to find an 

individual conspirator guilty without finding that he or she possessed a specific 
40

intent to agree or to kill. (See People v. Petznick (2003) 114 Cal.App.4th 663, 

680–681 [same erroneous CALJIC No. 8.69 instruction “permitted the jury to find 

defendant guilty of conspiracy to commit murder without regard to whether or not 

he personally intended to kill so long as they found that at least two of the other 

participants harbored that intent”].)

We conclude that the instructional error was harmless under any standard as 

to the conspiracies to murder Carole and her fetus. (Because we reverse Garton’s 

conviction for conspiracy to murder Dean on jurisdictional grounds, we need not 

determine whether this error was harmless as to that conspiracy charge.) In 

addition to convicting Garton of the first degree murders of Carole and her fetus, 

the jury found true two special circumstances related to those murders: (1) that the 

murders were committed as multiple murders and (2) that the murders were 

committed for financial gain. The jury was instructed with a version of CALJIC 

8.80.1, which stated in relevant part: “If you find that Mr. Garton was not the 

actual killer of a human being, you cannot find the special circumstance to be true 

unless you are satisfied beyond a reasonable doubt that Mr. Garton, with the intent 

to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or 

assisted any actor in the commission of the murder in the first degree.” (Italics 

added.) Thus, in finding the special circumstances true, the jury necessarily found 

that Garton possessed a specific intent to kill Carole and her fetus.

Moreover, the jury necessarily found that Garton possessed a specific intent 

to enter into an agreement with another person to commit the murder. At trial, no 

party argued that Garton was the actual killer of Carole and her fetus; all parties 

agreed that Daniels was the actual killer. The prosecution’s theory of Garton’s 

involvement in the murder of Carole and her fetus was that Garton enlisted 

Daniels to commit the murder and provided Daniels with assistance and advice in 

carrying out the murder. On the record here, the jury’s conclusion that Garton, 
41

“with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, 

requested, or assisted any actor in the commission of the murder in the first 

degree” necessarily subsumed a finding that Garton intended to enter into an 

agreement with Daniels to kill Carole and her fetus. (See People v. Calhoun

(1958) 50 Cal.2d 137, 144 [to show an agreement, “it is sufficient if [the 

conspirators] positively or tacitly come to a mutual understanding to accomplish 

the act and unlawful design”].) Accordingly, the court’s instructional error was 

harmless. 

F. Corroboration of accomplice testimony 

Garton contends the trial court erred in denying his motion for entry of 

judgment of acquittal. He argues that the testimony of his accomplices was not 

corroborated as required by section 1111 and that the remaining evidence was 

insufficient to tie him to each murder and conspiracy charge. 

1. Background

During the guilt phase, Lynn, Daniels, and Gordon testified extensively as 

to Garton’s involvement in the conspiracies to murder Dean, Carole, and Carole’s 

fetus. At the close of the prosecution’s case, Garton argued that “the 

Prosecution’s entire case rests upon the statements of the accomplices,” but that 

his accomplices’ testimony was insufficiently corroborated by evidence 

independently linking him to each count of conspiracy and murder. He moved for 

a judgment of acquittal on the ground of insufficient evidence pursuant to section 

1118.8. The trial court denied that motion as to each count against him. 

2. Analysis

“Section 1111 serves to ensure that a defendant will not be convicted solely 

upon the testimony of an accomplice because an accomplice is likely to have selfserving motives.” (People v. Davis (2005) 36 Cal.4th 510, 547.) Section 1111 
42

provides, as relevant here: “A conviction can not be had upon the testimony of an 

accomplice unless it be corroborated by such other evidence as shall tend to 

connect the defendant with the commission of the offense; and the corroboration is 

not sufficient if it merely shows the commission of the offense or the 

circumstances thereof.” (§ 1111.)

We have explained that “for the jury to rely on an accomplice’s testimony 

about the circumstances of an offense, it must find evidence that ‘ “without aid 

from the accomplice’s testimony, tend[s] to connect the defendant with the 

crime.” ’ [Citations.] ‘The entire conduct of the parties, their relationship, acts, 

and conduct may be taken into consideration by the trier of fact in determining the 

sufficiency of the corroboration.’ [Citations.] The evidence ‘need not 

independently establish the identity of the victim’s assailant’ [citation], nor 

corroborate every fact to which the accomplice testifies [citation], and ‘ “may be 

circumstantial or slight and entitled to little consideration when standing alone” ’ 

[citation].” (People v. Romero and Self (2015) 62 Cal.4th 1, 32 (Romero and 

Self).) Conversely, “an accomplice’s testimony is not corroborated by the 

circumstance that the testimony is consistent with the victim’s description of the 

crime or physical evidence from the crime scene. Such consistency and 

knowledge of the details of the crime simply proves the accomplice was at the 

crime scene, something the accomplice by definition admits. Rather, under 

section 1111, the corroboration must connect the defendant to the crime 

independently of the accomplice’s testimony.” (Id. at p. 36.) And corroborating 

evidence “may not come from, or require ‘ “aid or assistance” ’ from, the 

testimony of other accomplices or the accomplice himself.” (People v. Whalen 

(2013) 56 Cal.4th 1, 55 (Whalen).)

Garton contends that the testimony of his accomplices Lynn, Daniels, and 

Gordon was uncorroborated as to each count against him. Because we reverse 
43

Garton’s conviction for conspiracy to murder Dean on jurisdictional grounds, and 

because Gordon testified only as to that conspiracy, we address only Lynn’s and 

Daniels’s testimony regarding the remaining conspiracy and murder convictions 

concerning the killing of Carole and her fetus.

During the guilt phase, Daniels testified in detail about the conspiracy and 

acts that led to Carole’s death. According to Daniels, at the beginning of April 

1998, Garton suggested that Daniels commit a murder for hire as part of an 

“assassination ring” he called The Company. Garton said he was a member of 

The Company and his code name was “Patriot,” and gave Daniels a business card 

with the name Patriot on it. Daniels agreed to participate in the murder in 

exchange for money. After he agreed, Daniels and Garton purchased the pistol 

that was used to kill Carole, and they picked up the gun after the statutory waiting 

period on April 27, 1998. Later that night, Garton delivered a large manila 

envelope with a wax seal to Daniels at Daniels’s home, which contained a pager, 

several news articles, and several photos of Carole with instructions to murder her 

within the next month written on the back. Between April 28 and May 16, 1998, 

the day of Carole’s murder, Daniels received and responded to several e-mails 

from the address companyt@usa.net concerning the details of the murder. He also 

communicated with Lynn online and via phone and pager concerning the murder 

and discussed the time and location of the murder with Garton. On the day of the 

murder, Daniels drove Carole home from a gun show they had attended together 

and shot her in her bedroom. He then left the Gartons’ home in their Jeep, left the 

car in a parking lot, went home with the murder weapon, and contacted Garton, 

Lynn, the companyt@usa.net address, and several acquaintances.

In her testimony, Lynn recounted a similar understanding of the conspiracy 

to kill Carole and what Garton called The Company. She said that Garton told her 

Daniels wanted to get involved in the organization and that Garton eventually 
44

asked her to help Daniels carry out a killing for the organization. She described 

conversations she had with Daniels and Garton about the planned murder over the 

phone and computer, as well as communications with Daniels, Garton, and the 

companyt@usa.net address about the murder after it happened. She also described 

Garton’s demeanor after the murder, as well as her relationship with Garton in the 

wake of Carole’s murder. The day after Carole’s memorial service, she 

accompanied Garton to his home to “get rid of” “something that was 

incriminating,” and she went with Garton to throw a set of cassette tapes and what 

was later identified as a label maker into the Sacramento River. 

Several pieces of independent evidence corroborated these accomplices’ 

testimony. First, the prosecution presented evidence corroborating Daniels’s 

account of Garton’s involvement in the acquisition of the murder weapon. The 

owner of a local gun shop, who was a friend of Garton’s, testified that Garton and 

Daniels came into his store on April 17 and April 27, 1998, to purchase the type of 

pistol used to kill Carole and that Garton gave Daniels money to pay for the 

weapon after the waiting period. The store owner identified a receipt from the 

store documenting the purchase, which was admitted into evidence.

Second, there was evidence corroborating Daniels’s and Lynn’s accounts of 

Garton’s involvement in the conspiracy through what he called The Company. 

Portions of e-mails concerning the conspiracy sent to Daniels’s e-mail address 

from the companyt@usa.net address were recovered from the hard drive of the 

Garton’s computer. 

Third, there was evidence corroborating the accomplices’ accounts of 

Garton’s involvement with the murder and conspiracy after the murder had been 

committed. The prosecution introduced records from Garton’s pager indicating 

that on the day Carole was murdered, he received a page stating, “All done, going 

home,” consistent with Daniels’s description of the page he sent Garton. And 
45

Garton’s own statements made during a recorded call with Daniels on May 18, 

1998 provided independent corroboration. After Daniels told Garton that he 

“copped a plea of jealousy” and asked if Garton could help him get a lawyer, 

Garton told Daniels, “I’m gonna get on the phone to the big boys and see what we 

can pull here.” This statement is reasonably interpreted as a reference to The 

Company and its higher members, i.e., “the big boys.” Later in the call, Garton 

said, “And you know you’re still gonna get yours, I’ll see that, I’ll see whatever 

monies you had coming goes to your ah, goes to your kid or your family or 

something.” This statement corroborated Lynn’s and Daniels’s account that 

Daniels anticipated he would receive money for murdering Carole.

In prior cases, we have found similar evidence sufficient to satisfy the 

corroboration requirement of section 1111. (See Whalen, supra, 56 Cal.4th at 

p. 56 [defendant’s statement that could be interpreted as admitting his connection 

to the charged crimes is sufficient independent corroboration under section 1111]; 

Romero and Self, supra, 62 Cal.4th at pp. 34–35 [citing cases in which defendant’s 

possession and purchase of the murder weapon were deemed sufficient 

corroboration].) As to Daniels’s testimony, all of the evidence above, “ ‘ “without 

aid from the accomplice’s testimony, tend[ed] to connect the defendant with the 

crime.” ’ ” (Romero and Self, at p. 37.) And as to Lynn’s testimony, Garton’s 

recorded statements to Daniels and statements made through the 

companyt@usa.net address were sufficient corroboration of her account of the 

conspiracy and murder. Accordingly, we hold that the trial court did not err in 

finding the testimony of Garton’s accomplices sufficiently corroborated under 

section 1111.
46

G. Cumulative guilt phase error 

Garton contends that the cumulative effect of the errors at his trial rendered 

it fundamentally unfair and unreliable, requiring reversal of his convictions. We 

have determined or assumed that four claims of error have merit: the denial of 

Garton’s request to wear his wedding ring, the improper admission of hearsay 

related to Carole Garton’s autopsy, the incorrect usage of CALJIC 8.69’s 

instructions on conspiracy, and the incorrect assertion of territorial jurisdiction 

over a charge that Garton conspired to murder Dean. We hold that “none of the 

errors, individually or cumulatively, ‘ “significantly influence[d] the fairness of 

defendant’s trial or detrimentally affect[ed] the jury’s determination of the 

appropriate penalty.” ’ ” (People v. Valdez (2004) 32 Cal.4th 73, 139 (Valdez).) 

The instructional and evidentiary errors were minor, especially in light of other 

jury findings and the significant evidence of guilt, and they did not have “negative 

synergistic effect[s].” (People v. Hill (1998) 17 Cal.4th 800, 847.) As to the 

jurisdictional error, we find no spillover or “synergistic effect.” (Ibid.) When 

commenting on Garton’s jurisdictional argument during trial, the court correctly 

concluded that even if it had dismissed the conspiracy charge relating to the 

attempted murder of Dean, “all of the evidence relating to [the charge] would still 

be admissible as evidence under [Evidence Code section] 1101(b) because it 

would be evidence relating to motive, intent, [and] plan regarding the Carole 

Garton murder. And although these conspiracies are charged separately, they are 

clearly, by the evidence . . . interrelated with a common motivation and 

design. . . .” Under these circumstances, we find no cumulative error requiring 

reversal of Garton’s convictions.
47

III. PENALTY PHASE ISSUES

A. Cumulative penalty phase error 

Garton contends that the cumulative effect of the errors at his trial require 

reversal of the death judgment. We conclude beyond a reasonable doubt that 

“none of the errors, individually or cumulatively, ‘ “. . . detrimentally affect[ed] 

the jury’s determination of the appropriate penalty.” ’ ” (Valdez, supra, 32 Cal.4th 

at p. 139.) 

The prosecution focused overwhelmingly on the murders of Carole and her 

fetus in the penalty phase argument. The prosecutor mentioned the conspiracy to 

murder Dean in one oblique phrase (“He’s the one that pulled these three coconspirators into this whole plot to kill, or attempt to kill”) and in one direct 

sentence (“And we have proven the conspiracy to murder another person, that was 

Dean Noyes”). Otherwise, the prosecution focused the arguments exclusively on 

how the murders of Carole and her fetus warranted the death penalty. 

Moreover, as noted, the court would still have allowed evidence of the 

conspiracy to murder Dean even if it had concluded that California courts lacked 

jurisdiction over that charge. Thus, even if that charge had been dismissed, the 

jury would have heard evidence of that conspiracy during the guilt phase and 

would have been able to consider it during the penalty phase. Thus, we find no 

cumulative error requiring reversal of the death judgment.

B. Constitutionality of California’s death penalty statute 

Garton raises several constitutional challenges to California’s death penalty 

scheme. We have rejected these claims before and decline to revisit our prior 

holdings, as follows:

Consideration of the circumstances of the crime during the penalty phase 

pursuant to section 190.3, factor (a), does not result in an arbitrary and capricious 
48

application of the death penalty and does not violate the Fifth, Sixth, Eighth, and 

Fourteenth Amendments to the federal Constitution. (People v. Winbush (2017) 2 

Cal.5th 402, 489 (Winbush); see also Tuilaepa v. California (1994) 512 U.S. 967, 

976 [§ 190.3, factor (a) does not violate the Eighth Amendment and is not 

unconstitutionally vague].)

The jury need not make findings that aggravating factors were present, that 

they outweighed the mitigating factors, or the factors were substantial enough to 

warrant a judgment of death beyond a reasonable doubt under Apprendi v. New 

Jersey (2000) 530 U.S. 466, Blakely v. Washington (2004) 542 U.S. 296, Ring v. 

Arizona (2002) 530 U.S. 584, and Cunningham v. California (2007) 549 U.S. 270. 

(See People v. Merriman (2014) 60 Cal.4th 1, 106; People v. Griffin (2004) 33 

Cal.4th 536, 594–595.) The federal Constitution does not require that the trial 

court instruct the jury that it must find death is the appropriate penalty, that it must 

find aggravating factors outweigh the mitigating factors beyond a reasonable 

doubt, or that there is no articulable standard of proof for its penalty 

determination. (People v. Delgado (2017) 2 Cal.5th 544; People v. Doolin (2009) 

45 Cal.4th 390, 456; People v. Dunkle (2005) 36 Cal.4th 861, 939 [“the capital 

sentencing function is not susceptible of a burden of proof quantification”].) And 

“[j]urors need not make written findings in determining penalty.” (People v. 

Valdez (2012) 55 Cal.4th 82, 180.)

The federal Constitution does not require the court to instruct the jury that 

the prosecution has the burden of persuasion regarding the existence of 

aggravating factors, the weight of aggravating versus mitigating factors, and the 

appropriateness of a death judgment. (People v. Mendoza (2016) 62 Cal.4th 856, 

916; People v. Lenart (2004) 32 Cal.4th 1107, 1136–1137.) In addition, the trial 

court need not instruct the jury that life without parole was presumed the 

appropriate sentence; “[t]here is no requirement jurors be instructed there is a 
49

‘ “ ‘presumption of life’ ” ’ or that they should presume life imprisonment without 

the possibility of parole is the appropriate sentence.” (People v. Parker (2017) 2 

Cal.5th 1184, 1233.)

The jury is not required to unanimously find that certain aggravating factors 

warrant the death penalty under the Sixth, Eighth, and Fourteenth Amendments to 

the federal Constitution, and the equal protection clause does not compel a 

different result. (People v. Enraca (2012) 53 Cal.4th 735, 769; People v. Casares 

(2016) 62 Cal.4th 808, 854.) The court is also not required to instruct the jury that 

it need not unanimously find particular facts in mitigation. (People v. Cage (2015) 

62 Cal.4th 256, 293 (Cage).)

The court’s use of CALJIC No. 8.88, which instructs that jurors must be 

“persuaded that the aggravating circumstances are so substantial in comparison 

with the mitigating circumstances” to warrant a death judgment, is not 

unconstitutionally vague, appropriately informs jurors, and does not violate the 

Eighth and Fourteenth Amendments to the federal Constitution. (Id.; People v. 

Landry (2016) 2 Cal.5th 52, 122–123; People v. Williams (2016) 1 Cal.5th 1166, 

1204–1205.) “We again conclude that the instruction is ‘not unconstitutional for 

failing to inform the jury that: (a) death must be the appropriate penalty, not just a 

warranted penalty [citation]; (b) [a sentence of life without the possibility of 

parole] is required, if it finds that the mitigating circumstances outweigh those in 

aggravation [citation] or that the aggravating circumstances do not outweigh those 

in mitigation [citation]; (c) [a sentence of life without the possibility of parole] 

may be imposed even if the aggravating circumstances outweigh those in 

mitigation [citation]; (d) neither party bears the burden of persuasion on the 

penalty determination [citation].” (Landry, at p. 122.)

The use of adjectives like “extreme” and “substantial” in the list of 

mitigating factors in section 190.3 does not act as a barrier to the jury’s 
50

consideration of mitigating evidence in violation of the federal Constitution. 

(People v. McKinnon (2011) 52 Cal.4th 610, 692; People v. Avila (2006) 38 

Cal.4th 491, 614–615.) The use of CALJIC No. 8.85, which does not identify 

which sentencing factors are aggravating, mitigating, or both, is not 

unconstitutional. (People v. Delgado, supra, 2 Cal.5th at p. 592; People v. 

Hillhouse (2002) 27 Cal.4th 469, 509 [“The aggravating or mitigating nature of 

the factors is self-evident within the context of each case.”].)

The federal Constitution does not require intercase proportionality review 

among capital cases. (Winbush, supra, 2 Cal.5th at p. 490; see Pulley v. Harris 

(1984) 465 U.S. 37, 50–51.) “California’s death penalty law does not violate 

equal protection by treating capital and noncapital defendants differently. 

[Citation.]” (People v. Sánchez (2016) 63 Cal.4th 411, 488.) California’s use of 

the death penalty does not violate international law, the federal Constitution, or the 

Eighth Amendment’s prohibition against cruel and unusual punishment in light of 

“evolving standards of decency.” (Cage, supra, 62 Cal.4th at p. 297; People v. 

Zamudio (2008) 43 Cal.4th 327, 373.)
51

CONCLUSION

We reverse Garton’s conviction for conspiracy to murder Dean Noyes and 

affirm the judgment in all other respects.

LIU, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

KRUGER, J.
CONCURRING AND DISSENTING OPINION BY CHIN, J.

I disagree with the majority’s conclusion that the trial court lacked 

jurisdiction to try defendant for conspiracy to murder Dean Noyes (Dean). The 

test that governs this issue here is whether defendant’s acts in California 

constituted an attempt to murder Dean. Given the unequivocal evidence of 

defendant’s intent to commit that murder, the actions defendant took in California 

on February 6, 1998, to carry out his plan — assembling the members of the team 

he had recruited to help him kill Dean; loading his car with the weapons, 

ammunition, disguises, and other equipment he had gathered to commit the 

murder; driving north with the team several hours to the California border and 

crossing into Oregon, where he intended to kill Dean in a matter of hours — were 

sufficient to establish an attempt to murder Dean. This conduct amply serves the 

purpose of the overt act requirement: ensuring that a defendant is not punished for 

a guilty mental state alone, by removing any uncertainty as to whether the 

intended design will be carried out. And holding that it is sufficient to support an 

attempted murder conviction would further the purpose of criminal attempt 

liability: protecting the public by encouraging police to intervene when they 

discover that a formulated and finalized plan to commit murder is actually 

underway. Had police known on February 6, 1998, that defendant, heavily armed 

and with paid accomplices, was on his way to carry out a murder he had carefully 

planned over the course of many months, it surely would have been appropriate 

for them to have intercepted him. 
2

These underlying purposes should guide our application of the relevant 

precedents and inform our conclusion. The majority gives them insufficient 

attention in concluding that defendant’s conduct in California cannot establish 

attempted murder. I therefore dissent from the majority’s reversal of defendant’s 

conviction for conspiracy to murder Dean. In all other respects, I concur in the 

majority’s opinion.

RELEVANT FACTS

Defendant offered Dale Gordon and Norman Daniels money to assist in 

Dean’s murder, and spent over a year planning with them and Dean’s wife, Lynn 

Noyes (Lynn), to kill Dean in Oregon. As part of their planning, they shopped for 

clothing so they would blend in when they were in Oregon killing Dean; they 

obtained pictures of Dean, information about his typical daily whereabouts, and 

keys to his house and cars in the event they failed to kill him at his workplace; 

they went to Oregon in October 1997 to “scout out” Dean’s home and workplace; 

they went to Oregon again in January 1998, met there with Lynn to discuss their 

murder plans, and showed her guns, knives, ammunition, handcuffs, and latex 

gloves to demonstrate they “were really going to do this”; and they had a final 

planning meeting in late January or early February 1998 in Anderson, California, 

at which they discussed killing Dean at his workplace or, as a backup, killing him 

at his home. Shortly after the final planning meeting, defendant called Daniels 

and told him that “it’s on,” “meaning that [they] were going up to Oregon” to kill 

Dean. 

On February 6, 1998, defendant assembled the members of the murder 

team at his house. He called Gordon’s place of employment and made up a story 

that enabled Gordon to “leave work as soon as possible.” Defendant picked up 

Daniels and took him back to his house, where they loaded defendant’s car with 
3

several silencers, latex gloves, two walkie-talkies, disguises, as many as six guns, 

fully-loaded magazines, and knives. When Gordon arrived, the car was already 

loaded, and defendant was “getting upset” because he wanted to get to Oregon “as 

soon as possible.” Shortly thereafter, they all left for Oregon intending to kill 

Dean at his workplace early the next morning. Defendant intended to do the 

killing himself; Daniels and Gordon went along for backup and to provide help, if 

defendant needed it. They drove to the California border — about 130 miles and 

nearly one-third of the total distance to their destination — and crossed into 

Oregon, arriving later that evening in Gresham, Oregon. At some point during the 

trip, defendant called Lynn and said he “was on his way up to Oregon for 

business” and that she “should know what he was referring to.” Early the next 

morning, defendant went with Daniels and Gordon to a garage near Dean’s office, 

where they intended to kill Dean. They waited there about three hours, but Dean 

never showed up. Unbeknownst to defendant, Lynn had changed her mind about 

wanting Dean killed, and had convinced Dean to drive to work on February 7 in a 

car she knew defendant would not be looking for and that would not fit into the 

garage where defendant was waiting to kill Dean. 

 

RELEVANT LEGAL PRINCIPLES

The majority correctly states many of the legal principles that apply in 

determining whether defendant’s acts in California constituted an attempt to 

commit murder. “In general, before an attempt to commit a crime can be made 

out, some overt act towards its commission, other than a mere act of preparation 

for its commission, must be established.” (People v. Compton (1899) 123 Cal. 

403, 410.) The act must show that the defendant was “ ‘ “putting his or her plan 

into action.” ’ ” (Maj. opn., ante, at p. 31.) Formulating “ ‘a definitive test’ ” for 

applying this principle “ ‘has proved elusive’ ” (ibid.), because “ ‘ “[t]he line 
4

between mere preparation and conduct satisfying the act element of attempt . . . is 

difficult to determine; the problem ‘is a question of degree and depends upon the 

facts and circumstances of a particular case’ ” ’ ” (id. at p. 32). Here, however, 

two fact-specific rules guide the inquiry. First, “[b]ecause there was clear 

evidence of [defendant’s] intent to murder Dean,” only “ ‘ “slight acts in 

furtherance of the design will constitute an attempt.” ’ ” (Maj. opn., ante, at p. 

31.) Second, because “the crime involve[d] concerted action — and hence a 

greater likelihood that the criminal objective [would] be accomplished [citation] 

— there [was] a greater urgency for intervention by the state at an earlier stage in 

the course of [defendant’s] conduct.” (Ibid.) 

In addition to these principles, which the majority correctly sets forth, our 

case law recognizes several others. For an act to constitute an attempt, “it need 

not be the last proximate or ultimate step toward commission of the crime or 

crimes [citation], nor need it satisfy any element of the crime [citation]. . . . ‘ “[I]t 

is sufficient if it is the first or some subsequent act directed towards [commission 

of the crime] after the preparations are made.” ’ [Citation.]” (People v. Superior 

Court (Decker) (2007) 41 Cal.4th 1, 8 (Decker).) It is also sufficient if it “would 

lead a reasonable person to ‘believe a crime is about to be consummated absent an 

intervening force.’ ” (Id. at p. 9.) In other words, if, by virtue of the act, “ ‘the 

actual transaction has commenced which would have ended in the crime if not 

interrupted, there is clearly an attempt to commit the crime.’ ” (People v. Mason

(1896) 113 Cal. 76, 79.) 

In applying these principles, it is crucial to keep in mind the purposes they 

were established to further: setting proper limits for criminal attempt liability 

while still serving the goal of criminal law “ ‘to protect society from those who 

intend to injure it.’ ” (People v. Dillon (1983) 34 Cal.3d 441, 453 (Dillon).) 

“ ‘Applying criminal culpability to acts directly moving toward commission of 
5

crime . . . is an obvious safeguard to society because it makes it unnecessary for 

police to wait before intervening until the actor has done the substantive evil 

sought to be prevented. It allows such criminal conduct to be stopped or 

intercepted when it becomes clear what the actor’s intention is and when the acts 

done show that the perpetrator is actually putting his plan into action.’ 

[Citations.]” (Ibid.) At the same time, “[t]o ensure that attempt principles do not 

punish a guilty mental state alone, an act toward the completion of the crime is 

required before an attempt will be recognized.” (People v. Johnson (2013) 57 

Cal.4th 250, 258 (Johnson).) “[U]ntil [an overt] act occurs, one is uncertain 

whether the intended design will be carried out.” (Decker, supra, 41 Cal.4th at p. 

13.) “It is that quality of being equivocal that must be lacking before the act 

becomes one which may be said to be a commencement of the commission of the 

crime, or an overt act, . . . and this is so for the reason that so long as the equivocal 

quality remains no one can say with certainty what the intent of the defendant is.” 

(Miller, supra, 2 Cal.2d at pp. 531-532.) 

These principles have given rise to the following additional rules and 

guidelines: “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.” (Decker, supra, 41 

Cal.4th at p. 13; see maj. opn., ante, at p. 34 [quoting Decker] .) “Public safety 

would be needlessly jeopardized if the police were required to refrain from 

interceding until absolutely certain in each case that the criminal would go through 

with his plan. The law of attempts eliminates precisely that burden once the 

subject has plainly demonstrated, by his actions, his intent presently to commit the 

crime.” (Dillon, supra, 34 Cal.3d at p. 454.) Thus, as the majority explains, 

“ ‘ “[w]henever the design of a person to commit crime is clearly shown, slight 
6

acts in furtherance of the design will constitute an attempt.” ’ ” (Maj. opn., ante, 

at p. 31.) 

Consistent with the focus in the law of criminal attempts on the role of 

unequivocality, we have, notwithstanding our general statement as to the adequacy 

of preparatory acts, expressly acknowledged decisions from California and 

elsewhere holding that where “the preparation for the [crime] was without any 

equivocality, and the intent thus being proved, the preparation was sufficient to 

constitute the overt act.” (Miller, supra, 2 Cal.2d at p. 532.) These decisions, we 

have explained, fall within a “class of cases where the acts of preparation 

themselves clearly indicate the certain unambiguous intent and suffice to 

constitute the attempt.” (Ibid.; see also Decker, supra, 41 Cal.4th at p. 12 

[“ ‘some preparations may amount to an attempt’ ”].) 

In short, as the majority observes, our decisions collectively establish “a 

pragmatic, case-specific approach” for determining when a criminal attempt has 

occurred. (Maj. opn., ante, at p. 32.) They also establish, as the majority notes, 

that in making this determination, “ ‘ “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.” ’ ” (Ibid.)

DISCUSSION

Although the majority and I generally agree on the governing legal 

principles, I disagree with the majority’s application of those principles and would 

hold that defendant’s acts in California on February 6, 1998, were sufficient to 

support a conviction for the attempted murder of Dean. Defendant’s acts in 

California on that date of assembling his murder team at his house, loading his car 

with the weapons and equipment he intended to use to kill Dean, setting off for 
7

Oregon with Daniels and Gordon intending to kill Dean at his workplace the next 

morning, and driving several hours to the California border and crossing into 

Oregon toward his destination, clearly constituted far more than “ ‘ “slight acts in 

furtherance of [his] design” ’ ” to murder Dean. (Maj. opn., ante, at p. 31.) 

Through this conduct, defendant was “ ‘ “putting his or her plan into action” ’ ” 

(ibid.) and taking steps “directed towards [commission of the crime] after the 

preparations [were] made” ’ ” (Decker, supra, 41 Cal.4th at p. 8, italics added.) 

These acts “would [have led] a reasonable person to ‘believe a crime [was] about 

to be consummated absent an intervening force’ ” (id. at p. 9), and showed that 

“ ‘the situation [was] “without any equivocality” ’ ” and that “ ‘the design [would] 

be carried out if not interrupted’ ” (maj. opn., ante, at p. 34). Indeed, defendant 

failed to complete the crime, not because he changed his mind, but because Lynn, 

having had a change of heart, “interven[ed]” (Decker, at p. 9) and “interrupted” 

(id. at p. 13) defendant’s plan by convincing Dean to drive to work on February 7 

in a car she knew defendant would not be looking for and that would not fit into 

the garage where defendant was waiting to commit the murder. Moreover, to the 

extent, if any, that defendant’s acts in California may arguably be characterized as 

“preparation,” under our case law, they “clearly indicate[d] the certain 

unambiguous intent,” and therefore “suffice[d] to constitute the attempt.” (Miller, 

supra, 2 Cal.2d at p. 532.) 

Several of our prior decisions support these conclusions. In People v. 

Mayen (1922) 188 Cal. 237, 255 (Mayen), the defendant was convicted of 

attempted grand larceny, and asserted on appeal that the evidence was insufficient 

to sustain his conviction. We disagreed, citing the following evidence: The 

defendant, through a confederate, induced the intended victim to agree to 

contribute money towards a “framed up . . . stock gambling investment.” (Ibid.) 

After the intended victim obtained the money, the defendant “asked” him “to turn 
8

[it] over,” but was arrested “before the payment was actually made.” (Id. at p. 

256.) On these facts, we held that the defendant’s acts went “far beyond the point 

of mere preparation” and constituted an “actual attempt . . . to get possession of 

the money.” (Ibid.) Most significantly for present purposes, we reached this 

conclusion even though the defendant was arrested “while the parties were on their 

way from Los Angeles to Oakland, where the deal was to be consummated.” 

(Ibid.) Mayen thus supports the conclusion that, in this case, defendant committed 

attempted murder when, on February 6, 1998, he assembled Daniels and Gordon 

at his house, loaded his car with weapons and other necessary equipment, and 

drove north several hours “on [his] way from” his home in California to Oregon, 

“where the [murder plot] was to be consummated” in a matter of hours. (Ibid.)

In People v. Stites (1888) 75 Cal. 570, 570-571 (Stites), the defendant was 

convicted of attempting to place an obstruction upon a railroad track in San 

Francisco, and asserted on appeal that the evidence was insufficient to sustain his 

conviction. The evidence showed that on the day preceding his arrest, he and a 

confederate discussed “ ‘how they could most advantageously and 

effectively . . . place an explosive upon the track,’ ” and agreed to “ ‘meet’ ” early 

the next morning at the junction of Turk and Hyde streets in San Francisco “ ‘for 

the purpose of immediately proceeding to put in execution [their] project.’ ” (Id.

at p. 572.) Later, the defendant prepared a “ ‘bomb’ ” using dynamite cartridges 

the confederate had given him. (Id. at p. 573.) The next morning, about 15 

minutes before the time of the rendezvous, the defendant left his house with the 

bomb in his coat pocket, and started walking to the meeting spot. (Ibid.) While 

still “ ‘on his way to meet his confederate,’ ” he was intercepted and arrested by 

police. (Ibid.) On these facts, we held that “ ‘when the [defendant] left his 

house . . . and went to Turk Street pursuant to the antecedent arrangement between 

his confederate and himself, it amounted to an overt act done by him for the 
9

purpose of effecting the crime intended, and was in law and fact a criminal 

attempt.’ ” (Id. at p. 576.) We explained that, although there is “ ‘a difference 

between the preparation antecedent to the offense and the actual attempt,’ ” “ ‘if 

the actual transaction has commenced which would have ended the crime if not 

interrupted, there is clearly an attempt to commit the crime.’ ” (Id. at pp. 576-

577.) 

Consistent with Stites, I conclude in this case that “when [defendant] left 

his house” in California with Gordon, Daniels, and the weapons, ammunition, and 

equipment he had gathered to kill Dean, and he “went to” the California border 

and crossed into Oregon “pursuant to [his] antecedent arrangement” with “his 

confederate[s],” he committed “an overt act . . . for the purpose of effecting the 

crime intended,” which “was in law and fact a criminal attempt.” (Stites, supra, 

75 Cal. at p. 576.) Based on those acts, it can “ ‘fairly be said’ ” (maj. opn., ante, 

at p. 32) that “ ‘the actual transaction ha[d] commenced which would have ended 

in the crime if not interrupted’ ” (Stites, at pp. 576-577) by Lynn’s change of heart 

and her resulting effort to divert Dean from the garage where defendant was 

waiting to commit the murder.

Supporting this conclusion is the Mississippi Supreme Court’s decision in 

Stokes v. State (Miss. 1908) 46 So. 627 (Stokes), which, as we long ago explained, 

falls within the “class of cases where the acts of preparation themselves clearly 

indicate the certain unambiguous intent and suffice to constitute the attempt.” 

(Miller, supra, 2 Cal.2d at p. 532.) Stokes involved facts strikingly similar to 

those now before us. The defendant there was convicted of attempting to murder 

the husband of a woman with whom he had “relations . . . of a very friendly 

nature,” “both to get rid of” the husband and “to realize on certain policies of life 

insurance” that he “was carrying for the benefit of his wife.” (Stokes, at p. 628.) 

The defendant hired someone to commit the killing as the husband returned home 
10

from a lodge meeting. (Ibid.) On the night the killing was to occur, the defendant 

and the would-be assassin met at the woman’s home, and then “proceeded” 

together “to the place where” the killing was to occur. (Ibid.) The defendant 

brought a loaded gun, and was arrested as he was handing it to the assassin, who 

had secretly informed the police of the defendant’s plan. (Ibid.) 

In finding that the defendant in Stokes had committed “an overt act” 

sufficient to sustain his conviction of attempted murder, the court explained: 

“[W]hen the facts show, in furtherance of the design, that a gun has been procured 

and loaded, and the party so procuring and loading the gun has armed himself and 

started out on his mission to kill, but is prevented from carrying out his design by 

such extraneous circumstance as that the party he intends to kill does not come to 

the point where he expected to carry out his design, . . . , he is clearly guilty of the 

attempt. When [the defendant] attempted to procure [a hired assassin] to 

perpetrate this crime, and in furtherance of this purpose took the gun, loaded it, 

and started with him to the point where the killing was to occur, the act was an act 

done tending to effect the commission of the crime . . . and was an attempt. In this 

stage it had proceeded beyond mere preparation or intent, and was an actual step 

taken towards the commission of the crime. If the jury believed, as they did 

believe, that the starting out with the gun was for the purpose of stationing [the 

hired assassin] at a point where he could do the killing and was in furtherance of 

the design to kill [the husband], this was an act done, and defendant was properly 

convicted. The public welfare and peace [are] better subserved, and the lives of 

citizens better protected, by the holding that these acts constitute criminal attempt, 

as in fact they do, than would any attempted refinement of the law which would 

result in a contrary view.” (Stokes, 46 So. at pp. 628-629, italics added.) 

“[W]henever the design of a person to commit crime is clearly shown, slight acts 

done in furtherance of this design will constitute an attempt, and this court will not 
11

destroy the practical and commonsense administration of the law with subtleties 

[sic] as to what constitutes preparation and what [constitutes] an act done toward 

the commission of a crime. Too many subtle distinctions have been drawn along 

these lines for practical purposes. Too many loopholes have been made whereby 

parties are enabled to escape punishment for that which is known to be criminal in 

its worse sense.” (Id. at p. 629.) 

Although more than a century has passed since Stokes was decided, just 11 

years ago, we described it as “ ‘[o]ne of the leading cases in the United States on 

attempt to commit a crime,’ ” we identified it as the source of California’s “slightacts rule,” and we relied on it in applying that rule “to the crime of attempted 

murder.” (Decker, supra, 41 Cal.4th at p. 10.) Consistent with Stokes, I conclude 

that defendant’s acts in California on February 6, 1998, “in furtherance of” his 

purpose and plan to kill Dean — loading his car with weapons, ammunition, and 

other equipment, “start[ing] with” his hired accomplices “to the point where the 

killing was to occur,” driving about 130 miles north and crossing the state line into 

Oregon — were “act[s] done tending to effect the commission of the crime” and 

constituted “an attempt.” (Stokes, supra, 46 So. at p. 628.) With those acts, 

defendant had “started out on his mission to kill, but [was] prevented from 

carrying out his design by” the “extraneous circumstance” that Dean, having been 

persuaded by Lynn to drive a different car to work, did “not come to the point 

where [defendant] expected to carry out his design.” (Ibid.) 

In reaching its contrary conclusion, the majority asserts that defendant’s 

acts in California “did not occur in close proximity,” either geographic or 

temporal, to the planned crime scene, the intended victim, and defendant’s further 

actions to commit the murder in Oregon on the morning of February 7. (Maj. 

opn., ante, at p. 33.) “While in California,” the majority states, defendant “could 

not ‘enter’ the murder scene [citation], ‘hid[e] in a position that would give him a 
12

clear shot’ [citation], or even ‘go[] to the general vicinity’ of the planned murder 

scene [citation].” (Id. at pp. 33-34.) Moreover, the majority concludes, the 

“night” that “separated” defendant’s actions in California on February 6 from his 

actions in Oregon on the morning of February 7 constituted a “significant temporal 

gap” that “shows” that, when defendant entered Oregon, the plot to kill Dean “was 

not ‘in such progress that it [would] be consummated unless interrupted by 

circumstances independent of the will of the attempter . . . .’ ” (Id. at p. 36.) 

Given the considerable evidence of defendant’s intent to kill Dean and the 

purposes of the overt act requirement and criminal attempt liability, the majority 

accords these temporal and geographic considerations too much weight. In Stites, 

supra, 75 Cal. at page 576, we quoted and adopted the lower court’s observation 

that “ ‘in considering whether a particular act done amounts to an attempt in a 

criminal sense, the proximity or remoteness of the person or thing intended to be 

injured is generally an important element.’ ” However, we also noted the 

impossibility of “ ‘fram[ing] any universal definition’ ” of an “ ‘ “attempt” ’ ” that 

would “ ‘precisely indicat[e] the lines of inclusion and exclusion’ ” and “ ‘be both 

positively and negatively accurate, when applied to the facts of a particular 

case.’ ” (Id. at p. 575.) And we consequently advised that “ ‘ “the special 

facts” ’ ” of “ ‘ “each case” ’ ” must be considered “ ‘ “in determining whether or 

not a criminal attempt has been proven.” ’ ” (Id. at p. 579.) We also emphasized 

that “ ‘if the actual transaction has commenced which would have ended the crime 

if not interrupted, there is clearly an attempt to commit the crime.’ ” (Id. at pp. 

576-577.) 

Moreover, since Stites, we have (1) emphasized that “[w]hether 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” 
13

(Decker, supra, 41 Cal.4th at p. 14); (2) adopted the slight acts rule (id. at p. 8); 

(3) held that “the plainer the intent to commit the offense, the more likely that 

steps in the early stages of the commission of the crime will satisfy the overt act 

requirement” (Dillon, supra, 34 Cal.3d at p. 455); (4) held that criminal attempt 

liability exists “ ‘when it becomes clear what the actor’s intention is and when the 

acts done show that the perpetrator is actually putting his plan into action’ ” (id. at 

p. 453); and (5) stated that “where . . . the crime involves concerted action — and 

hence a greater likelihood that the criminal objective will be accomplished 

[citation] —there is a greater urgency for intervention by the state at an earlier

stage in the course of that conduct” (Decker, at pp. 10-11). Thus, while the 

geographic proximity of the intended victim may, depending on the facts, be “an

important element” (Stites, supra, 75 Cal. at p. 576, italics added), it is not, under 

our case law, determinative. Notably, the majority cites no case holding that a 

defendant who was in the process of carrying out a finalized plan to commit a 

crime — by driving several hours with accomplices and the necessary weapons 

and equipment toward the location where the crime was to be committed — had 

not committed an attempt because he had not yet reached his destination.

On the contrary, the majority expressly recognizes that in Decker, we found 

that acts of a defendant committed “far away from his victim” constituted 

“sufficient evidence of attempted murder.” (Maj. opn., ante, at p. 34.) In Decker, 

the defendant offered an undercover detective $35,000 to kill both the defendant’s 

sister and, if necessary “to avoid having a witness,” the sister’s friend. (Decker, 

supra, 41 Cal.4th at p. 6.) The defendant provided descriptions of his sister, her 

mode of dress, her residence, her office, her car, and her daily habits. (Ibid.) The 

detective proposed committing the killing during a staged robbery or carjacking, 

and asked for a down payment. (Ibid.) Two days later, during a meeting at a golf 

course, the defendant gave the detective $5,000, promised to pay the balance when 
14

the job was done, and reiterated that his sister’s friend, if present, should be killed 

as well. (Id. at pp. 6-7.) The detective replied that he could get the job done 

quickly, and said, “ ‘once I leave here, it’s done.’ ” (Id. at p. 7.) When asked if he 

was sure he wanted to go through with the murder, the defendant replied, “ ‘I am 

absolutely, positively, 100 percent sure,” and urged the detective to commit the 

murder “ ‘as fast as you can.’ ” (Ibid.) The detective drove off, and the defendant 

was arrested a short time later. (Ibid.) Although, as the majority recognizes, the 

defendant’s act in Decker of giving the detective a down payment occurred “far 

away from his victim” (maj. opn., ante, at p. 33), we held that with that act, the 

defendant “was ‘ “actually putting his plan into action” ’ ” for purposes of attempt 

liability (Decker, supra, 41 Cal.4th at p. 9). The defendant’s acts, we explained, 

“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.’ 

[Citation.] . . . Although [the defendant] did not himself point a gun at his sister, 

he did aim at her an armed professional who had agreed to commit the murder.” 

(Ibid.) A different result, we found, was not warranted by the fact that the 

defendant committed these acts “in a parking lot” rather than near “the victim’s 

home.” (Id. at p. 12, fn. 2.) This finding and our conclusion undermine the 

majority’s conclusion here that defendant’s acts in California were insufficient 

because they “did not occur in close [geographic] proximity to the victim or to the 

anticipated site of the murder.” (Maj. opn., ante, at p. 33.) 

Indeed, Decker also undermines the majority’s conclusion that the 

“temporal gap” between defendant’s acts in California and his arrival in Oregon 

precludes liability for attempted murder. (Maj. opn., ante, at p. 36.) When the 

defendant in Decker provided the down payment and promised to pay the balance 

upon the job’s completion, the detective said “he was ‘convinced’ he would see 

the [sister] the next day, and that he could get this ‘job’ done quickly.” (Decker, 
15

supra, 41 Cal.4th at p. 7, italics added.) Thus, we held in Decker that the 

defendant’s act of making the down payment “ ‘ “actually put[] his plan into 

action” ’ ” for purposes of attempt liability and “would lead a reasonable person to 

‘believe a crime is about to be consummated absent an intervening force’ ” (id. at 

p. 9), notwithstanding the defendant’s understanding, belief, and expectation that 

the detective would commit the murder the next day at the earliest. This holding 

refutes the majority’s conclusion that the “night” that “separated” defendant’s 

actions in California on February 6, 1998, from his actions in Oregon the next 

morning constituted a “significant temporal gap” establishing that when he entered 

Oregon, his plan to kill Dean “was not ‘in such progress that it [would] be 

consummated unless interrupted by circumstances independent of the will of the 

attempter . . . .’ ” (Maj. opn., ante, at p. 36.)

In these respects, Decker is similar to our decision over a century ago in 

People v. Botkin (1901) 132 Cal. 231 (Botkin). There, the defendant, in San 

Francisco, mailed a box of poisoned candy to a woman in Delaware, “with intent 

that” she would there eat the candy and die as a result. (Id. at p. 232.) We 

concluded that the defendant’s acts in California — “[p]reparing and sending the 

poisoned candy to” the woman in Delaware — “coupled with a murderous intent, 

constituted an attempt to commit murder.” (Id. at p. 233.) Thus, we found 

sufficient evidence of an attempt even though (1) the defendant’s actions to 

implement her clear criminal intent “did not occur in close proximity to the victim 

or to the anticipated site of the murder” (maj. opn., ante, at p. 33), and (2) the 

“temporal gap between” those actions and the additional acts necessary for 

completion of the murder was, given the speed of the mail in the early 1900’s, 

surely larger than the temporal gap between defendant’s acts in California and his 

“arrival at the location where [he] planned to kill” Dean (id. at p. 36).
16

The majority’s proximity analysis is also inconsistent with Mayen. As 

explained above, we there held that the defendant’s acts went “far beyond the 

point of mere preparation” and constituted an “actual attempt . . . to get possession 

of the [intended victim’s] money,” even though the defendant was arrested “while 

the parties were on their way from Los Angeles to Oakland, where the deal was to 

be consummated.” (Mayen, supra, 188 Cal. at p. 256, italics added.) Thus, we 

found sufficient evidence of an attempt even though (1) the defendant’s actions to 

implement his clear criminal intent “did not occur in close proximity to . . . the 

anticipated site of the [crime]” (maj. opn., ante, at p. 33), and (2) the “temporal 

gap between” those actions and the additional acts necessary for the crime to be 

completed was, given the means of travel in the early 1900’s, at least as large as, 

and likely larger than, the temporal gap between defendant’s acts in California and 

his “arrival at the location where [he] planned to kill” Dean (id. at p. 36). 

Notwithstanding these factors, we held, quoting Stites, that “ ‘the actual 

transaction ha[d] commenced which would have ended in the crime if not 

interrupted,’ ” and that therefore, “ ‘there [was] clearly an attempt to commit the 

crime.’ ” (Mayen, at p. 256.) 

Of these decisions, the majority mentions only Decker, but its effort to 

distinguish that decision is unpersuasive. Emphasizing Decker’s statement that 

the defendant there “ ‘had effectively done all that he needed to do to ensure that 

[the victims] be executed’ ” (maj. opn., ante, at p. 34), the majority observes that, 

because defendant in this case “planned to be an armed member of a group that 

would murder Dean in Oregon,” his acts in California constituted only “some, but 

not all, of the things that ‘he needed to do’ [citation] to murder” Dean (id. at pp. 

34-35). Contrary to the majority’s analysis, in observing that the defendant in 

Decker had done “all that he needed to do” to accomplish his intended crimes 

(Decker, supra, 41 Cal.4th at p. 14), we were not establishing that as the test for 
17

whether an attempt has occurred. Instead, we were simply describing the state of 

the evidence in the case, a state that was certainly sufficient to establish an attempt, 

but not necessary. Indeed, to read Decker as establishing that there is no attempt 

unless the defendant did all that he or she needed to do to accomplish the intended 

crimes, would be inconsistent with the following principles we stated in our 

opinion: (1) slight acts are enough when the intent to commit a crime is clearly 

shown (id. at p. 8); (2) the slight acts rule applies to an attempt to commit murder 

(id. at p. 10); and (3) “[f]or an attempt, the overt act . . . need not be the last 

proximate or ultimate step toward commission of the crime or crimes,” but may be 

“ ‘ “the first or some subsequent act directed towards that end after the 

preparations are made” ’ ” (id. at p. 8). 

The majority’s narrow reading of Decker is also inconsistent with several 

other aspects of that opinion. We explained there that, because “ ‘ “all acts 

leading up to the ultimate consummation of a crime are by their very nature 

preparatory,” ’ ” “[c]onduct that qualifies as mere preparation and conduct that 

qualifies as a direct but ineffectual act toward commission of the crime exist on a 

continuum,” and “[t]he difference between them ‘is a question of degree.’ ” 

(Decker, supra, 41 Cal.4th at p. 12.) We also explained that, in light of “[t]he 

purpose of requiring an overt act” — resolving “uncertain[ty]” as to “whether the 

intended design will be carried out” — “[w]hen, 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.” (Id. at p. 13; see maj. opn., ante, at p. 34 [quoting Decker].) We 

cautioned that “[w]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.” ’ ” (Decker, at p. 13.) We also emphasized 
18

that “where . . . the crime involves concerted action — and hence a greater 

likelihood that the criminal objective will be accomplished [citation] —there is a 

greater urgency for intervention by the state at an earlier stage in the course of 

that conduct. [Citation.]” (Id. at pp. 10-11; maj. opn., ante, at p. 31.) 

The majority disregards these broad statements and principles in attempting 

to distinguish Decker based on defendant’s decision “to be an armed member of a 

group that would murder Dean in Oregon” — rather than to “arrange to murder 

[Dean] from afar” — and his consequent failure, before crossing the state line into 

Oregon, to do “all . . . of the things that ‘he needed to do’ [citation] to murder” 

Dean. (Maj. opn., ante, at pp. 34-35.) In focusing on these facts, the majority fails 

to recognize that defendant’s conduct in California amply fulfilled the “purpose 

of” the overt act requirement, by resolving “uncertain[ty]” as to whether defendant 

would carry out his “intended design,” rendering “the situation . . . ‘without any 

equivocality,’ ” and making “it appear[] the design [would] be carried out if not 

interrupted.” (Decker, supra, 41 Cal.4th at p. 13.) It also fails to recognize the 

significance of the fact that this case “involve[d] concerted action,” such that there 

was “a greater likelihood that the criminal objective [would] be accomplished” 

and “a greater urgency for intervention by the state at an earlier stage in the 

course of that conduct. [Citation.]” (Id. at pp. 10-11.) In disregard of these 

crucial underlying considerations, it attempts to draw a sharp line, based on 

temporal and geographic proximity, between “[c]onduct that qualifies as mere 

preparation and conduct that qualifies as a direct but ineffectual act toward 

commission of the crime,” instead of recognizing that such conduct “exist[s] on a 

continuum.” (Id. at p. 12.)

Finally, the majority does precisely what Decker directs courts not to do: 

“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 
19

commission of a crime.” ’ ” (Decker, supra, 41 Cal.4th at p. 13.) According to 

the majority, had defendant, after assembling Gordon and Daniels at his house on 

February 6 and loading his car with the necessary weapons and equipment, simply 

stayed home and “sent his accomplices off to murder Dean without further 

assistance,” he would, under Decker, have committed attempted murder. (Maj. 

opn., ante, at p. 35.) It defies common sense to hold, as does the majority, that 

defendant did not commit attempted murder simply because he decided instead to 

accompany his accomplices to Oregon and, to ensure that his plan was carried out, 

participate in the killing as “an armed member” of the murder team. (Id. at p. 34.) 

Certainly, in terms of the purpose of the overt act requirement, defendant’s act of 

going to Oregon so he could personally commit the murder, instead of staying at 

home, did not make the situation more “equivocal” (Miller, supra, 2 Cal.2d at pp. 

531-532) or increase the risk he would be punished for “a guilty mental state 

alone” (Johnson, supra, 57 Cal.4th at p. 258). On the contrary, that act, by 

“evidenc[ing]” defendant’s “ ‘seriousness of purpose’ ” and bringing “the object 

of [his] contract” with Daniels and Gordon “ ‘closer to fruition,’ ” rendered the 

situation less equivocal, made it more apparent that “the design [would] be carried 

out if not interrupted” (Decker, at p. 13), and decreased the risk defendant would 

be punished solely for a guilty mental state. 

Moreover, in terms of the purpose of imposing criminal liability for 

attempt — protecting the public — defendant’s act of going to Oregon so he could 

ensure that Dean was killed heightened the need for police intervention. In 

Decker, supra, 41 Cal.4th at page 13, we said that “[i]t 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 [down payment] under the contract to kill.” It likewise 
20

“blinks reality” (ibid.) to conclude, as the majority apparently does, that the threat 

posed by someone who has reached an agreement with two hired killers to commit 

murder, finalized the plans, and then set off with them to commit the crime, is less 

than the threat posed by someone who instead stays home and “sen[ds] his 

accomplices off [by themselves] to murder” his intended victim. (Maj. opn., ante, 

at p. 35.) Because defendant’s act in California of driving toward Oregon for 

several hours, heavily armed and with accomplices, made “clear that he was 

‘ “actually putting his plan into action” ’ ” (Decker, at p. 9), it surely would have 

been appropriate for police in California to have “ ‘intercepted’ ” him as he made 

his way toward the border (Dillon, supra, 34 Cal.3d at p. 453). Indeed, police 

officers aware of that act, and of defendant’s murderous intent, would clearly have 

been remiss in failing to do so. “The public welfare and peace [would be] better 

subserved, and the lives of citizens better protected, by [a] holding that these acts 

constitute criminal attempt,” than by the majority’s “attempted refinement of the 

law which . . . result[s] in a contrary view.” (Stokes, supra, 46 So. at p. 629.) 

Thus, by holding that defendant’s decision to go to Oregon and participate 

in the killing actually precludes his conduct in California from constituting 

attempted murder, the majority, contrary to Decker, supra, 41 Cal.4th at page 13, 

“ ‘ “destroy[s] 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.” ’ ” It also applies our precedents without 

consideration of the underlying purpose they were intended to serve: setting 

proper limits for criminal attempt liability — through the overt act requirement —

while still protecting society from those who intend to injure it. 

In addition to misreading Decker, the majority appears to misread the 

factual record in this case when it asserts that “our case law does not suggest that a 

defendant with clearly shown intent need only make preparations or start moving 
21

toward the intended victim to be guilty of attempted murder.” (Maj. opn., ante, at 

p. 37.) According to the evidence at trial, defendant did not merely “make 

preparations or start moving toward [his] intended victim.” (Ibid.) Instead, after 

many months of elaborate “preparations” (ibid.), defendant, on February 6, 1998, 

assembled his hired accomplices at his house, loaded his car with the weapons and 

equipment he had gathered, “start[ed] moving toward [his] intended victim” in 

Oregon (ibid.), and while still in California, drove about 130 miles north to the 

California border and crossed into Oregon, thus completing almost one-third of his 

journey to the location where, in a matter of hours, he intended to kill Dean. 

These acts “evidence[d] [defendant’s] ‘seriousness of purpose’ and [brought] the 

object of [his] contract [with Gordon and Daniels] ‘closer to fruition.’ ” (Decker, 

supra, 41 Cal.4th at p. 13.) And in light of the compelling evidence of defendant’s 

intent to kill Dean, they clearly constituted “direct movement[s] toward the 

commission [of the offense] after the preparations [were] made,” and clearly 

“show[ed] that [defendant was] putting his . . . plan into action” (id. at p. 8), that 

“the situation [was] ‘without any equivocality,’ ” and that his plan would have 

been “carried out” had it not been “interrupted” (id. at p. 13) by Lynn’s successful 

effort to divert Dean to a different garage. The majority’s conclusion that, on the 

record here, this cannot even “ ‘fairly be said’ ” (maj. opn., ante, at p. 32) is 

difficult to understand. 

In any event, contrary to the majority’s statement, “our case law” does, in 

fact, “suggest” that where intent to commit a crime is “clearly shown,” a defendant 

who “make[s] preparations” and “start[s] moving toward the intended victim” may 

“be guilty of attempted murder.” (Maj. opn., ante, at p. 37.) As explained above, 

Stites, supra, 75 Cal. 570, and Mayen, supra, 188 Cal. 237, both support this 

conclusion. As I have also previously explained, so too does the Mississippi 

Supreme Court’s decision in Stokes, which we have endorsed, followed, and 
22

described as “ ‘[o]ne of the leading cases in the United States on attempt to 

commit a crime’ ” (Decker, supra, 41 Cal.4th at p. 10). Again, the majority 

discusses none of these decisions.

Moreover, of the decisions the majority cites in support of its statement, 

several actually support my conclusion. The majority first cites Miller, but Miller 

was not a case in which the defendant’s intent was “clearly shown.” (Maj. opn., 

ante, at p. 36.) On the contrary, we there found the evidence of attempted murder 

insufficient precisely because “no one could say with certainty whether the 

defendant had come” armed with a gun “to kill” the person who had been 

annoying his wife “or merely to demand his arrest by the constable.” (Miller, 

supra, 2 Cal.2d at p. 532.) In addition, it was in Miller that we (1) recognized a 

“class of cases where the acts of preparation themselves clearly indicate the certain 

unambiguous intent and suffice to constitute the attempt,” and (2) included within 

that class Stokes’s holding “that, the intent being clear, the taking of a loaded gun 

and going in search of the intended victim constituted an attempt.” (Miller, at p. 

532.) In this regard, Miller clearly does “suggest” that, given defendant’s “clearly 

shown intent” (maj. opn., ante, at p. 37), he committed attempted murder when, on 

February 6, 1998, he assembled his accomplices at his house, loaded a car with the 

weapons and other equipment he had collected, started off for Oregon, and drove 

for several hours before crossing the California border into Oregon, where he 

planned to kill Dean in a matter of hours. 

Dillon, which the majority also cites (maj. opn., ante, at p. 37), likewise 

suggests that conclusion. There, the defendant, while trying to take marijuana 

from a marijuana farm, shot and killed someone who was guarding the farm. 

(Dillon, supra, 34 Cal.3d at pp. 451-452.) We affirmed the defendant’s conviction 

of attempted robbery even though the defendant never “actually encroach[ed] on 

the marijuana field,” reasoning that, in light of “clear evidence of” his intent, the 
23

jury could have “rationally” found that the following acts established he was 

engaged in an attempt to commit robbery: he and his accomplices armed and 

disguised themselves, set off for the farm, made their way past barricades posted 

with “no trespassing” signs, arrived on the scene carrying the means of forcibly 

subduing any opposition, divided themselves into small groups, encircled the field 

and watched for their opportunity, and persisted in their enterprise even after 

seeing armed guards. (Id. at p. 456.) However, in setting forth these facts, we 

were simply describing the evidence in the case, and were not, as the majority 

seems to be suggesting, establishing some factual threshold for attempt liability. 

This is clear from our discussion of the law governing liability for attempts, which 

explained: “Acts that could conceivably be consistent with innocent behavior 

may, in the eyes of those with knowledge of the actor’s criminal design, be 

unequivocally and proximately connected to the commission of the crime; it 

follows that the plainer the intent to commit the offense, the more likely that steps 

in the early stages of the commission of the crime will satisfy the overt act 

requirement.” (Id. at p. 455, italics added.) These statements support the 

conclusion that, because defendant’s intent to kill Dean could not have been 

“plainer,” his acts in California on February 6, 1998, pursuant to his plan to kill 

Dean a few hours later in Oregon, “satisfy the overt act requirement.” (Ibid.) 

Other aspects of Dillon also support this conclusion. We there explained 

that “[p]ublic safety would be needlessly jeopardized if the police were required to 

refrain from interceding until absolutely certain in each case that the criminal 

would go through with his plan” (Dillon, supra, 34 Cal.3d at p. 454), and that “no 

public purpose is served by drawing fine distinctions” as to what is and is not an 

overt act where the evidence clearly shows that “the defendant intended to commit 

a crime and was in the process of attempting to carry out that intent” (id. at p. 

453). In support of this discussion, we cited a federal decision stressing “the 
24

importance of a rule” that “encourage[s] early police intervention where a suspect 

is clearly bent on the commission of crime” (U.S. v. Stallworth (2d Cir. 1976) 543 

F.2d 1038, 1041, italics added), and “that enables society to punish malefactors 

who have unequivocally set out upon a criminal course without requiring law 

enforcement officers to delay until innocent bystanders are imperiled” (id. at p. 

1040, italics added). (Dillon, at p. 453.) In light of these considerations, we 

explained, criminal liability for attempt attaches “ ‘when it becomes clear what the 

actor’s intention is and when the acts done show that the perpetrator is actually 

putting his plan into action.’ ” (Ibid.) The evidence here is clear that defendant 

“intended to commit a crime” — killing Dean — and that, in driving to Oregon 

with accomplices, weapons, and other equipment, he was “ ‘actually putting his 

plan into action’ ” (ibid.), “was in the process of attempting to carry out [his] 

intent” (ibid.), was “clearly bent on the commission of crime” (Stallworth, at p. 

1041), and had “unequivocally set out upon a criminal course” (id. at p. 1040). 

Thus, contrary to Dillon’s teachings, the majority’s effort to “draw[] fine 

distinctions” as to what is and is not an overt act, and its conclusion that defendant 

needed to have gotten even closer to committing the murder, serve “no public 

purpose” (Dillon, at p. 453) and “needlessly jeopardize[]” public safety (id. at p. 

454). 

The other decisions the majority cites do not support its view. In People v. 

Anderson (1934) 1 Cal.2d 687, we rejected the defendant’s argument that there 

was insufficient evidence of an overt act to establish attempted robbery, stating: 

“Defendant’s conduct in concealing the gun on his person and going to the general 

vicinity of the Curran theater with intent to commit robbery may, for present 

purposes, be classified as mere acts of preparation but when he ‘walked in there 

[Curran Theater entrance] about two feet from the grill’ and ‘pulled out the gun’ 

and ‘was just going to put it up in the cage when it went off’, we are satisfied that 
25

his conduct passed far beyond the preparatory stage and constituted direct and 

positive overt acts that would have reasonably tended toward the perpetration of 

the robbery.” (Id. at p. 690, italics added.) It is clear from the italicized phrases in 

the preceding quote that we did not hold that the defendant’s acts of “going to the 

general vicinity of the Curran theater” with a concealed gun were insufficient; 

rather, we assumed, for “purposes” of discussion, that those acts “may . . . be 

classified as mere acts of preparation,” because the defendant had committed 

additional acts that went “far beyond the preparatory stage.” (Ibid., italics added.) 

Indeed, our conclusion that the defendant’s additional acts went “far beyond the 

preparatory stage” (ibid., italics added) actually supports the conclusion that the 

defendant had committed the requisite overt act well before committing all of 

those additional acts. 

Finally, in People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1194, in 

rejecting the defendants’ argument that there was insufficient evidence of an overt 

act to establish attempted murder, we stated: “At the point defendants entered the 

Wang residence and took Alice and Su Hung hostage, it can fairly be said they 

were ‘ “ ‘actually putting [their murderous] plan into action.’ ” ’ ” According to 

the majority, this statement “impl[ies] that the point of attempt had not yet been 

reached when [the] defendants began driving to the residence, even though they 

had weapons and planned to murder the family.” (Maj. opn., ante, at p. 37.) In 

my view, it implies no such thing. Rather, it is yet another example of a court 

addressing the state of the evidence. Our conclusion that, on the evidence we 

cited, it could “fairly be said” the defendants were putting their plan into action, 

does not imply, let alone establish, that the same could not also “fairly be said” at 

some earlier point. (Hajek and Vo, at p. 1194.) 

As we have “repeatedly” acknowledged, “the line between mere 

preparation and conduct satisfying the act element of attempt often is difficult to 
26

determine; the problem ‘is a question of degree and depends upon the facts and 

circumstances of a particular case.’ [Citation.]” (Watkins, supra, 55 Cal.4th at p. 

1021.) Here, consistent with Decker, I conclude that “in light of [defendant’s] 

clearly expressed intent” (Decker, supra, 41 Cal.4th at pp. 8-9) to kill Dean, “[t]he 

purpose of requiring an overt act” (id. at p. 13), the goal of protecting the public, 

and the “greater urgency” for “earlier” police “intervention” created by 

defendant’s “concerted action” with Daniels and Gordon (id. at pp. 10-11), 

defendant’s acts in California on February 6, 1998, were “sufficient . . . under the 

slight-acts rule to hold him to answer to the charge[] of attempted murder” (id. at 

p. 9). I dissent from the majority’s contrary conclusion, and its consequent 

holding that the trial court lacked jurisdiction to try defendant for conspiracy to 

murder Dean.

CHIN, J.

WE CONCUR:

CUÉLLAR, J.

POOCHIGIAN, J.*

——————————————————

* Associate Justice of the Court of Appeal, Fifth Appellate District, assigned 

by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Garton

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.S097558

Date Filed: March 5, 2018

__________________________________________________________________________________

Court: Superior

County: Shasta

Judge: Bradley L. Boeckman

__________________________________________________________________________________

Counsel:

Jeffrey J. Gale, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes, Sean M. McCoy and Daniel B. 

Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Jeffrey J. Gale

111 Bank Street, #303

Grass Valley, CA 95945-6518

(530) 320-2777

Daniel B. Bernstein

Deputy Attorney General

1300 I Street, Suite 125

Sacramento, CA 94244-2550

(916) 324-5171