Attempted Crimes in California Criminal Law
Penal Code sections 21a and 664 PC
Under Penal Code 21a PC, you attempt to commit crime under California law when you
- specifically intend to commit a crime, and
- commit a direct...but ineffectual...act in furtherance of that crime.1
The main issue in a prosecution for an attempted crime will typically be whether you went beyond mere preparation and actually committed an act in furtherance of the crime. Preparation consists of devising or arranging the plan that is necessary for the commission of the offense; the attempt is the direct movement of putting that plan into action. Without that act, guilty thoughts...no matter how evil...are not punishable.
Some common examples of attempted crimes include
- attempted rape in violation of Penal Code 261 PC California's rape law (before you actually engage in intercourse, the victim "fights you off" or otherwise escapes),
- attempted robbery in violation of Penal Code 211 PC California's
robbery law (you walk into the bank while armed but a security officer apprehends you before you demand the teller's money),
- attempted carjacking in violation of Penal Code 215 PC California's
carjacking law (you put a gun though the window of the car and demand that the driver exit the vehicle but he drives away before you get in), and
- attempted murder (firing a gun into a crowd of people but not actually killing anyone)
The most common legal defenses to attempted crimes under California law include (but are not limited to):
- you didn't specifically intend to commit a crime,
- you didn't commit an act in furtherance of the intended crime, and
- you can't intentionally commit an unintentional act (you can't, for example, intend to commit an unintentional killing).
Generally speaking, if you are convicted of an attempted crime under California law, you face a punishment that is half of what you would face if convicted of the underlying offense. Crimes that are punishable by incarceration for life or the death penalty subject you to five, seven or nine-years in the California state prison . And attempted murder can subject you to life in prison with the possibility of parole.2
In this article, our California criminal defense attorneys3 discuss attempted crimes in California criminal law by addressing the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on California's Attempted Murder Laws; California's Involuntary Manslaughter Law; Penal Code 459 PC California's Burglary Law; Penal Code 261 PC California's Rape Law; Penal Code 211 PC California's Robbery Law; Penal Code 215 PC California's Carjacking Law; Receiving Stolen Property Under California Law; California's Reckless Burning Law (Arson); California's Willful, Deliberate and Premeditated Murder Law; California's Laws Regarding Informants; California's Conspiracy Laws; California Legal Defenses; and California's Parole Laws.
Under Penal Code 21a PC, an "attempt" to commit a crime consists of two components:
- a specific intent to commit a particular crime, and
- a direct...but unsuccessful...act toward its commission.4
In other words, an attempted crime under California law requires more than mere preparation to commit a crime. It actually requires an act that...unless prevented or intercepted by some other force...would result in the intended crime.
As Palm Springs criminal defense attorney Michael Scafiddi5 explains, "Whether the act is considered merely preparatory or is sufficient to qualify as an attempt is a question that will depend on the facts and circumstances of each particular case. There is definitely a difference between preparation and an actual attempt to commit a crime...and part of this distinction has to do with intent."
If the intent is clear, it may be easier to qualify an act as an attempt...even if that same act would otherwise be insufficient if the intent were not so clear. So a slight act done in furtherance of the crime will typically suffice when the intent to commit the crime is obvious.6 This is what's known as the "slight-acts rule."
Example: Michael intends to rob a hotel. He goes to the garage of the hotel where he knows that the manager and assistant manager will pass through on their way to deposit the hotel's money in the bank. He brings a gun, places a mask over his face and waits and hides moments before they approach. When other hotel employees discover him, he struggles with them before fleeing the scene.
Because the intent was clear, the court held that Michael was properly convicted of attempted robbery . Had the other hotel employees not interrupted Michael's plan, he would have committed a robbery. As the court explains, "It is clear at the moment appellant [Michael] entered the garage, he intended to rob both the manager and assistant manager. Any later event that interrupted those crimes was irrelevant to appellant's liability..."7 Here, simply entering the garage was act enough to qualify as an attempt.
Let's take a look at some additional cases to gain a better understanding of when actions do and do not rise to the level of an attempted crime under California law.
Attempt to manufacture drugs
Defendant is caught driving with a variety of items that are used to manufacture "hashish" or marijuana. In fact, the only item missing was the marijuana. The defendant admits he purchased the items in order to "make hash" but decided not to purchase the marijuana after acquiring the equipment because he knew it was "a poor decision". He was subsequently convicted of attempting to manufacture a controlled substance.
The court reversed the conviction, stating that despite the fact that the defendant's intent was clear, possessing the equipment was still merely preparatory. At the time the police discovered the equipment, the defendant had no ability to manufacture "hash" since (1) he had not yet assembled the equipment, and (2) did not have the marijuana.
As the court explains, "In reviewing the record in this case, we find no act...not even a slight act...on the part of appellant that goes beyond preparation and can be regarded as an "unequivocal overt act which can be said to be a commencement of the commission of the intended crime."8
Ed decides to rent an office that is located directly over a bank vault. He pays rent for one month and buys drilling tools, two acetylene gas tanks, a blow torch, a blanket and a linoleum rug. He begins drilling two groups of holes into the floor of the office but doesn't penetrate the ceiling of the bank. He then covers the holes with the linoleum rug. At some point, he installs a lock on a closet and places the equipment in the closet. After the month's rent is up, the landlord enters the office and turns the equipment over to the police. The record isn't clear when Ed last entered the office, but it may have been after the landlord removed the equipment.
Ed argues that even the drilling constituted mere preparation to commit a burglary. He states that he voluntarily ceased drilling and that...as a result...there was no outside "interruption" that otherwise caused his plan to fail. He simply abandoned his plan and therefore, his actions didn't rise to the level of an attempted burglary in violation of Penal Code 459 PC California's burglary law .
The court disagreed. It stated that the landlord's act of discovering the equipment, resuming control over the office and calling the police was an outside circumstance that interrupted the plan. It explained that there are two types of attempts:
- those where the defendant does everything necessary to commit the crime but is nevertheless unsuccessful (for example, taking aim at an intended victim and pulling the trigger but the gun malfunctions), and
- those where the defendant's criminal conduct is stopped or intercepted when the defendant's intent becomes clear after the defendant has begun putting his plan into action. "'It is not necessary that the overt act proved should have been the ultimate step toward the consummation of the design. It is sufficient if it was 'the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made.'"
The court reasoned that this case falls under the second category. It held that the landlord's actions were equivalent to an interception. The fact that Ed may have voluntarily abandoned the effort is irrelevant – what is relevant is the fact that he purchased the equipment and drilled the holes before the landlord resumed control, thus interrupting Ed's plan to steal from the bank. 9
Ron's sister owes him a considerable amount of money. He determines that the only way to collect his money is to kill her. He observes his sister's habits, dress and routine, and tests the security at his sister's condominium and office. Because he believes he would be an obvious suspect, he decides to hire an assassin to do the job. So he researches the "underworld of professional killers", budgets to pay for their services, arranges a meeting with one and instructs him to kill his sister and, if necessary, any witnesses who are with her at the time. At a second meeting, Ron gives the hired assassin $5,000 as a down payment. The assassin...who turns out to be an undercover detective...says "I want you to know, once I leave here, it's done. So, you sure you want to go through with it?" Ron replies "I am absolutely, positively, 100 percent sure, that I want to go through with it. I've never been so sure of anything in my entire life."
The court recognized that in order to qualify as an attempted murder
California's attempted murder law there must be an overt act that goes beyond mere preparation. And...as previously stated above...California subscribes to the "slight acts" rule, which essentially states that whenever the intent to commit a crime is clearly shown, any slight act in furtherance of that design will constitute an attempt. Here, the court reiterated that not only was Ron's intent to kill his sister crystal clear, but that he actually put his plan into action by paying the detective $5,000 and confirming that he wanted her dead by stating that he'd "never been so sure of anything" in his entire life.10
It is interesting to note is that had the detective been an actual assassin, Ron could have been prosecuted for murder under California's conspiracy law ...a much more serious offense, punishable to the same extent as first-degree murder...since a conspiracy involves an agreement between two or more people to commit a crime coupled with an act in furtherance of that agreement. But because of the fact that the officer could not legally agree to kill the sister, Ron could only be convicted of attempted murder.
This point...that a legal impossibility will not preclude an attempted crime under California law...is also illustrated in the next example.
Attempt to sell drugs
Larry agrees to sell a purchaser...who turns out to be a
California police informant ,...methylamine so that the purchaser can use the chemical to manufacture methamphetamines. Larry argues that because the purchaser was an informant...and would not therefore "use" the chemical to manufacture drugs...he could not be convicted of an attempt to commit the offense.
The court, however, found the argument unconvincing, stating that the attempt focuses on the intention and acts of the defendant, not on the intent/acts of the other person. "One of the purposes of the criminal law is to protect society from those who intend to injure it. When it is established that the defendant intended to commit a specific crime and that in carrying out this intention he committed an act that caused harm or sufficient danger of harm, it is immaterial that for some collateral reason [here, that the purchaser of the chemical was a police informant] he could not complete the intended crime."11
There are a number of California legal defenses to an attempt charge that your California criminal defense attorney could present on your behalf. The following are some of the most common:
Before you can be convicted of an attempted crime, you must first specifically intend to commit the particular crime. If you don't have criminal intent, you can't be convicted of an attempted crime.
Let's say, for example, you are about to purchase a watch from a street vendor. You believe that you are getting a great deal for the watch and have no reason to believe the watch is stolen. As you are about to hand over your money to the vendor, the police arrest you both...you for attempting to receive stolen property in violation of Penal Code 496 and the vendor for theft.
Because you didn't specifically intend to commit the crime of receiving stolen property, you aren't guilty of this offense. Without that criminal intent, there is no crime.
This issue is the heart of California attempt offenses. It bears repeating that if you merely prepare to commit a crime...but do not perform any acts beyond preparation...you are not guilty of an attempted crime.
Guilty thoughts are just those...thoughts. You may want to kill each and every one of your co-workers and torture and steal from your boss. You may want to run over your ex. You may want to rob a bank. None of these thoughts are criminal in and of themselves.
You can even take it a step further and prepare to do these acts. Maybe you decide to bring a bomb to the office...maybe you follow your ex home from work to see the exact route she walks from work home...maybe you go to the bank, looking to see how much security it employs and what your easiest escape route would be...
None of this matters unless and until you take an additional step towards actually committing the crime (refer to the example in Section 1. where the defendant had purchased all the equipment to manufacture marijuana but hadn't assembled it or purchased the marijuana). The bottom line is that California law does not punish evil intent...only evil acts. And without that requisite act in furtherance, you should be acquitted of any wrongdoing.12
This is a very important principle regarding attempted crimes in California law. You cannot intentionally commit an unintentional act – period. Because an attempt under California law requires a specific intent to commit a crime, it is a logical impossibility to intend to commit an unintentional crime.
This means, for example, that you cannot be convicted of attempted involuntary manslaughter under California law or of attempted reckless burning under California law , since both crimes are committed based on reckless or negligent acts, not intentional ones.13
Penal Code 664 PC defines the penalties for attempted crimes under California law. They vary quite a bit, depending on the nature of the underlying offense.
The general rule is that if the attempted offense is punishable by imprisonment and/or a fine, you face one-half the term of the incarceration and/or the fine. But then there are penalties for specific offenses as well.
If you are convicted of attempting to violate California's willful, deliberate and premeditated murder law , you face imprisonment in life with the possibility of parole under California's parole laws .
If the crime you attempt to commit is murder against an officer, firefighter, or other "protected person"...and you know or reasonably should know that the victim is one of these persons engaged in the performance of his/her duties...you face a life sentence with the possibility of parole. However, if that attempted murder is willful, deliberate and premeditated, you face 15-years-to-life in the
California state prison .
And if the attempted crime is any other crime where the maximum sentence is life imprisonment or death, you face a five, seven or nine-year state prison sentence.14
Fortunately, our exceptional team of California criminal defense attorneys knows the most effective strategies to fight the underlying charge as well as your attempt charge in the hopes that you never have to spend even one day behind bars.
Call us for help...
For questions about attempted crimes in California criminal law, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
1 Penal Code 21a PC California's attempted crime law. ("An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.")
2 Penal Code 664 PC – Attempts, punishment. ("Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows: (a) If the crime attempted is punishable by imprisonment in the state prison, the person guilty of the attempt shall be punished by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense attempted. However, if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. If the crime attempted is any other one in which the maximum sentence is life imprisonment or death, the person guilty of the attempt shall be punished by imprisonment in the state prison for five, seven, or nine years. The additional term provided in this section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact. (b) If the crime attempted [under California's attempt laws] is punishable by imprisonment in a county jail, the person guilty of the attempt shall be punished by imprisonment in a county jail for a term not exceeding one-half the term of imprisonment prescribed upon a conviction of the offense attempted. (c) If the offense so attempted [under California's attempt laws] is punishable by a fine, the offender convicted of that attempt shall be punished by a fine not exceeding one-half the largest fine which may be imposed upon a conviction of the offense attempted. (d) If a crime is divided into degrees, an attempt to commit the crime may be of any of those degrees, and the punishment for the attempt shall be determined as provided by this section. (e) Notwithstanding subdivision (a), if attempted murder is committed upon a peace officer or firefighter, as those terms are defined in paragraphs (7) and (9) of subdivision (a) of Section 190.2, a custodial officer, as that term is defined in subdivision (a) of Section 831 or subdivision (a) of Section 831.5, a custody assistant, as that term is defined in subdivision (a) of Section 831.7, or a nonsworn uniformed employee of a sheriff's department whose job entails the care or control of inmates in a detention facility, as defined in subdivision (c) of Section 289.6, and the person who commits the offense knows or reasonably should know that the victim is a peace officer, firefighter, custodial officer, custody assistant, or nonsworn uniformed employee of a sheriff's department engaged in the performance of his or her duties, the person guilty of the attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. This subdivision shall apply if it is proven that a direct but ineffectual act was committed by one person toward killing another human being and the person committing the act harbored express malice aforethought, namely, a specific intent to unlawfully kill another human being. The Legislature finds and declares that this paragraph is declaratory of existing law. (f) Notwithstanding subdivision (a), if the elements of subdivision (e) are proven in an attempted murder and it is also charged and admitted or found to be true by the trier of fact that the attempted murder was willful, deliberate, and premeditated, the person guilty of the attempt [under California's attempt laws] shall be punished by imprisonment in the state prison for 15 years to life. Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not apply to reduce this minimum term of 15 years in state prison, and the person shall not be released prior to serving 15 years' confinement.")
3 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
4 See Penal Code 21a PC California's attempted crime law, endnote 1, above.
5 Palm Springs criminal defense attorney Michael Scafiddi uses his former experience as an Ontario Police Officer to represent clients throughout the Inland Empire including San Bernardino, Riverside, Rancho Cucamonga, Hemet, Banning, Fontana, Joshua Tree, Barstow, Palm Springs and Victorville.
6 People v. Luna (2009) 170 Cal.App.4th 535, 540. ("In considering appellant's argument, we first note that in a case such as this one "[w]here the intent to commit the crime is clearly shown, an act done toward the commission of the crime may be sufficient for an attempt [under California's attempt laws] even though that same act would be insufficient if the intent is not as clearly shown. [Citation.]" ( People v. Bonner (2000) 80 Cal.App.4th 759, 764, 95 Cal.Rptr.2d 642; People v. Anzalone (2006) 141 Cal.App.4th 380, 387, 45 Cal.Rptr.3d 876.) "[T]he 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. [Citations.]" ( People v. Dillon (1983) 34 Cal.3d 441, 455, 194 Cal.Rptr. 390, 668 P.2d 697.) Thus, even " 'slight acts done in furtherance of that design will constitute an attempt, and 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.]"")
7 People v. Bonner (2000) 80 Cal.App.4th 759.
8 See People v. Luna, endnote 6, above.
9 People v. Staples (1970) 6 Cal.App.3d 61.
10 People v. Superior Court (2007) 41 Cal.4th 1.
11 People v. Meyer (1985) 169 Cal.App.3d 496.
12 California Jury Instructions, Criminal "CALJIC" 6.00 - An attempt to commit a crime [under California law] consists of two elements, namely, a specific intent to commit the crime, and a direct but ineffectual act done toward its commission. ("In determining whether this act was done, it is necessary to distinguish between mere preparation, on the one hand, and the actual commencement of the doing of the criminal deed, on the other. Mere preparation, which may consist of planning the offense or of devising, obtaining or arranging the means for its commission, is not sufficient to constitute an attempt. However, acts of a person who intends to commit a crime will constitute an attempt [under California law] where those acts clearly indicate a certain, unambiguous intent to commit that specific crime. These acts must be an immediate step in the present execution of the criminal design, the progress of which would be completed unless interrupted by some circumstance not intended in the original design.")
13 People v. Broussard (1977) 76 Cal.App.3d 193, 197. ("An "attempt" to commit involuntary manslaughter would require that the defendant intend to perpetrate an unintentional killing - a logical impossibility. This conclusion is supported by the commentators: "One does not attempt to commit a crime [under California law] by negligently endangering the person or property of another however great the danger or extreme the negligence." (Perkins, op cit , ch. 6, pp. 573-574.) "[T]here can be no attempt to commit involuntary manslaughter. The consequence involved in that crime is the death of the victim and an act done with intent to achieve this, if an attempt at all, is attempted murder. It is of the essence of involuntary manslaughter that the consequence be produced either recklessly or negligently, but not intentionally."")
14 See Penal Code 664 PC – Attempts, punishment, endnote 2, above.