Penal Code 664 PC – Attempted Crimes in California

Updated


Penal Code 664 PC is the California statute that makes it a crime for a person to attempt to commit a crime. The statute punishes people for trying to break the law when they, for whatever reason, fail to do so.

This code section states:

“Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration [is guilty of a crime]…”.

Examples:

  • trying to commit the crime of rape (unlawful under Penal Code 261 PC), but the victim escapes before any sexual act.
  • walking into a bank with a gun ready to commit burglary (unlawful under Penal Code 211 PC), but running out after getting nervous.
  • attempting to set a car on fire (which is arson per Penal Code 451 PC), but fleeing from the scene after being spotted.

Defenses

A defendant can challenge an attempt charge with a legal defense. Common defenses include:

  • no act in furtherance of the attempted crime,
  • no intent to commit a crime, and/or
  • abandonment.

Penalties

The punishment for a conviction under 664 PC is:

  • one half of the jail term and/or fine
  • that would have been given if the crime was completed.

This is true regardless of whether the defendant was convicted of an:

Our California criminal defense attorneys will highlight the following in this article:

Attempted Carjacking
An unsuccessful carjacking could lead to charges under Penal Code 21a, California's law on attempted crimes.

1. What is an "attempted crime" per 664 PC?

Penal Code 664 PC is the California statute that makes it a crime for a person to attempt to commit a crime.

A prosecutor must prove two things to convict a defendant under this statute. These are:

  1. the accused intended to commit a certain crime, and
  2. the accused performed a direct act toward committing that crime.1

With regard to the second element, the direct action must be an actual step toward committing the crime. The following fall short of a direct act:

  • thinking about a crime,
  • planning a crime, or
  • preparing to commit a crime.2

A direct step must:

  1. show a definite intent to commit the target offense, and
  2. be an immediate step that puts the plan to commit the offense into motion.3

Example: Manuel is thinking about making some extra money by making and selling hashish (concentrated cannabis). He purchases some equipment for this purpose, but he does not assemble it. He also does not buy any marijuana, which is necessary to produce hashish. Manuel is soon caught with his equipment and charged with attempted manufacture of a controlled substance (under Health and Safety Code11379.6 HS).

Here, Manuel is likely not guilty of attempt. His actions are only preparations and do not equate to a direct step towards manufacturing hashish. A direct step would have taken place, though, if Manuel:

  • assembled the equipment he purchased, and
  • bought large quantities of marijuana.

2. What are some examples of attempted crimes?

The following are attempt crimes that are commonly charged in California:

Note that attempt is charged under Penal Code 664. It is not charged under the statute for the target offense. This means an attempt to commit murder would be charged:

  • under PC 664, and not
  • PC 187.

3. Why do we punish attempted crimes?

There are three main reasons why the law punishes attempted crimes. These are:

  1. to deter others from trying to break the law,
  2. because of the idea that criminal liability should not be removed because bad luck prevented an offense, and
  3. attempted crimes often cause some type of harm that warrants punishment.
Man in Handcuffs
The right legal defense can help get attempted crime charges reduced or dismissed.

4. Are there legal defenses?

A defendant can beat an attempt charge with a good legal defense.

Three common defenses are:

  1. no act in furtherance of the attempted crime,
  2. no intent to commit a crime, and/or
  3. abandonment.

4.1. No act in furtherance of the attempted crime

Recall that an accused is only guilty under this statute if he took some direct step toward committing the target offense. This means it is always a defense for an accused to say that he did not perform this step/act. Perhaps, for example, the defendant's actions only amounted to planning or thinking of a crime.

4.2. No intent to commit a crime

Also recall that a prosecutor must prove that a defendant intended to commit some crime for an attempt conviction. Therefore, it is a smart legal defense for an accused to show that he never had this intent.

4.3. Abandonment

Abandonment is a legal defense to an attempt charge where the accused shows that:

  • while he may have intended to commit a crime (and took an act to further it),
  • he withdrew from or abandoned his actions.

The defense shows that the accused changed his mind and did not want to commit a crime. Note that the abandonment, though, must be voluntary to work. An accused cannot abandon a crime just because he believes he will get caught,

5. What are the penalties?

The punishment for an attempted crime is:

  • one half of the jail term and/or fine
  • that would have been given if the crime was completed.4

Note that if the offense a defendant attempts to commit is punishable by:

then the attempt is punishable by custody in prison for up to nine years.5

Also note that if a defendant is charged with attempted murder that was:

  • willful, and
  • deliberate

then he could be sentenced to life in prison.6

6. Are there immigration consequences?

A conviction under these laws may have negative immigration consequences.

Certain California crimes can result in a non-citizen being:

Examples of these crimes include:

California criminal law says that:

  • if a defendant commits an attempted crime, and
  • the target offense could have resulted in deportation or an inadmissible status,

then the attempt will result in the same.7

So, if an accused is guilty of attempting to commit a crime involving moral turpitude or an aggravated felony, he will suffer damaging immigration consequences.

7. Can a person get a conviction expunged?

A person may be able to get an expungement of an attempt conviction.

A defendant is entitled to an expungement if he successfully completes either:

  • probation, or
  • his term in county jail (whichever is applicable).

Note that an expungement is generally not available if a defendant is sentenced to custody in state prison.

Penal Code 1203.4 PC says an expungement releases an individual from many of the hardships associated with a conviction.

8. Does a conviction affect gun rights?

A conviction under this statute may have a negative impact on a defendant's gun rights.

California law says that some crimes (e.g., felonies) will result in the defendant losing his right to:

  • own a gun, or
  • possess a gun.

If an accused attempted one of these types of crimes, then he will lose his gun rights. However, if a target crime does not result in a loss of these rights, then the attempt will not either.

9. Are there related offenses?

There are three crimes related to attempt. These are:

  1. conspiracy – PC 182,
  2. solicitation – PC 653f, and
  3. aiding and abetting – PC 31

9.1. Conspiracy – PC 182

Penal Code 182 PC is the California statute that defines criminal conspiracy. This section makes it a crime if:

  1. someone agrees with one or more other persons to commit a crime, and
  2. one of the parties commits an act to further that agreement.

The main differences between an attempted crime and conspiracy are:

  • an attempt does not require an agreement with another person, and
  • an act to further a conspiracy does not have to be as direct a step as one that furthers an attempt.

As to the last point, preparation is enough to further a conspiracy. But it is not enough to further an attempt.

9.2. Solicitation – PC 653f

Penal Code 653f PC makes it a crime to solicit someone, or ask them, to commit certain California criminal offenses.

Note that unlike an attempt case, the defendant in a solicitation case is not trying to break a law. He is asking another to do so.

9.3. Aiding and abetting – PC 31

Penal Code 31 PC assigns criminal liability to anyone who:

  • encourages,
  • facilitates, or
  • aids in the commission of a crime.

Again, unlike in an attempt case, a defendant in these cases is not technically trying to break a law. Rather, he commits a crime because he helps another in committing an offense.

For additional help...

california criminal defense attorneys
Call us for help at (855) LAW-FIRM

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.

For information on attempt crimes in Nevada and Colorado, please see our articles on:


Legal References:

  1. California Penal Code 21a PC and CALCRIM No. 460 - Attempt Other Than Attempted Murder. See also People v. Toledo (2001) 26 Cal.4th 221.

  2. CALCRIM No. 460 - Attempt Other Than Attempted Murder.

  3. See same.

  4. California Penal Code 664 PC.

  5. See same.

  6. See same.

  7. Hernandez v. Lynch (9th Cir. 2016) 831 F.3d 1127.

Free attorney consultations...

The attorneys at Shouse Law Group bring more than 100 years collective experience fighting for individuals. We're ready to fight for you. Call us 24 hours a day, 365 days a year at 855-LAW-FIRM for a free case evaluation.

Regain peace of mind...

Shouse Law Defense Group has multiple locations throughout California. Click Office Locations to find out which office is right for you.

Office Locations

Shouse Law Group has multiple locations all across California, Nevada, and Colorado. Click Office Locations to find out which office is right for you.

Call us 24/7 (855) 396-0370