Under Penal Code 21a PC, you could be convicted of an attempted crime in the California criminal court process if both of the following are true:
- You specifically intended to commit a certain crime; and
- You performed a direct (but ineffective) act toward committing that crime.1
Many people are surprised to learn that they can be convicted of “attempt” even if they changed their minds about committing the crime and voluntarily abandoned further efforts to complete it.2
Here are some examples of people who might be convicted of attempted crimes in California:
- A man tries to commit the crime of Penal Code 261 PC rape against a woman, but she fights him off and escapes before he can actually engage in sexual intercourse with her.
- A woman walks into a bank armed and wearing a mask, with intent to commit Penal Code 211 PC robbery . But when she sees that there are three security guards rather than just one at the bank, she gets nervous and decides not to go through with the robbery.
- A man puts a gun through the window of a car and demands that the driver exit the vehicle—but the driver speeds away, preventing the man from completing the crime of Penal Code 215 PC carjacking.
As a general matter, if you are convicted of an attempted crime in California, you will face a prison/jail sentence that is half as long as the sentence you would have received if you had been convicted of the underlying offense.3
If the crime you are alleged to have attempted carries a sentence of life in prison or the California death penalty, then you will be sentenced to five (5), seven (7) or nine (9) years.5
And if you are charged with attempted murder that was willful, deliberate and premeditated—you could be sentenced to life in prison.6
The most common legal defenses to attempted crimes charges under California Penal Code 21a include:
- You did not specifically intend to commit the underlying offense;
- You didn't commit an act in furtherance of the attempted crime; and/or
- You cannot be convicted of attempt for a crime that does not have intent as one of its elements.7
In order to help you better understand the concept of the “attempted crime” in California law, our California criminal defense attorneys will address the following:
- 1. Legal Definition of an Attempted Crime in California
- 2. Penalties for Attempt under Penal Code 664 PC
- 3. Legal Defenses to PC 21a Attempted Crime Charges
- 4. The Difference between Attempt and Conspiracy
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
The legal definition of attempt under California Penal Code 21a PC has only two “elements of the crime” (that is, facts that the prosecutor must be able to prove in order for you to be guilty of the offense).
These elements are:
- You specifically intended to commit a California crime; and
- You took at least one direct step toward the commission of that crime.8
This may sound simple—but, in fact, understanding and proving these elements can be quite challenging.
And as Palm Springs criminal defense attorney Michael Scafiddi9 explains:
“One of the tricky things about the legal definition of an attempted crime is that the two main elements are closely related to each other. An obvious step toward committing a crime can be proof that a person had the intent to commit that crime. And, on the flip side, a person's proven intent to commit a crime can allow an otherwise potentially innocent act to be interpreted as a step toward committing that crime.”
Specific intent to commit a crime
You are not guilty of the crime of attempt in California unless you specifically intended to commit the underlying offense.10
Example: Sasha is shopping at a department store with her toddler son. She is sampling perfumes when her son develops a bloody nose.
Sasha immediately tries to find a package of tissues in her purse. While she is doing this, she carelessly puts a bottle of expensive perfume she had been considering buying into her purse. By the time her son's nose stops bleeding, she has forgotten about the bottle of perfume.
A security guard who observed all this on video stops Sasha and looks in her purse. She is accused of attempted petty theft (shoplifting).
But Sasha did not actually intend to steal the perfume. Thus, she is not guilty under California attempted crime law.
It is important to note that you can commit the crime of attempt even if you change your mind about the crime—that is, even if you eventually lose the intent to commit the offense—as long as you did have the requisite intent at the time that you took a step toward committing the crime.11
Example: Ed rents an office that is located directly above a bank vault. His plan is to violate Penal Code 459 PC, California's burglary law, by breaking into the vault and stealing money.
Ed buys drilling tools and a linoleum rug. He begins drilling several holes into the floor of his office and covers them with the rug when he is not working on them.
Then Ed begins to suspect that his landlord knows what he is up to. He stops the drilling and decides not to go forward with the burglary.
But Ed may still be guilty of attempted burglary—even though he voluntarily abandoned his plan to commit that crime. Because he did initially have the intent to commit it, and took concrete steps toward doing so, his behavior meets the legal definition of a PC 21a attempt.12
Direct step toward the commission of a crime
The other key element of an attempted crime is the performing of an act—a direct step—toward the commission of the crime.13
For this element, it is key that the act be an actual step toward committing the crime—and NOT mere planning or preparation for it.14
A direct step must:
- Indicate a definite and unambiguous intent to commit the target offense; and
- Be an immediate step that puts the plan to commit the offense into motion, so that the plan would have been completed if some outside circumstance had not interrupted it.15
Example: Manuel is having trouble finding a job. He purchases some equipment that could be used to manufacture hashish (concentrated cannabis). At this time Manuel is thinking of maybe trying to earn money by manufacturing hashish.
But Manuel does not go ahead and purchase large quantities of marijuana, which would be necessary for producing hashish. He doesn't assemble the equipment he purchased And he re-considers his decision to buy the equipment and starts to think making hashish would be a poor choice.
Then Manuel is caught with the equipment, arrested and charged with attempted manufacture of a controlled substance.
But his actions are only preparations and don't rise to the level of a direct step toward manufacturing hashish. The fact that he hasn't yet assembled the equipment or purchased marijuana is key, because without these actions the manufacture could not take place. Thus, he is not guilty of attempted drug manufacture.16
That said, you can be convicted of an attempted crime even if it was never actually possible that the crime would take place—so long as you believed that you were in fact going to be able to commit the crime.17
Example: Larry, who owns an agricultural chemical company, agrees to sell methylamine to a man who says that he intends to use it to manufacture methamphetamine.
It turns out this man is an undercover police informant. Larry is arrested and charged with attempted sale of chemicals for purposes of drug manufacture.
Larry can be convicted of this attempt crime even though the actual underlying offense could never have occurred, since the police informant would not have used the methylamine to manufacture meth. What matters is that Larry thought he was taking concrete steps toward committing that crime.18
For most attempted crimes, the potential penalties—set forth in California Penal Code 664—will be:
- Half the potential state prison or county jail sentence for the underlying offense; and/or
- Half the maximum potential fine for the underlying offense.19
So, for example, if you are convicted of attempting to commit a California felony that carries a maximum jail sentence of three (3) years and a maximum fine of ten thousand dollars ($10,000), you will face a maximum jail sentence of eighteen (18) months and a maximum fine of five thousand dollars ($5,000).
There are a few exceptions to this general rule, though. These are:
- If the crime you are convicted of attempting carries a potential sentence of either life in prison or the death penalty, your maximum sentence will be five (5), seven (7) or nine (9) years in California state prison.20
- If you are convicted of attempting either willful, deliberate and premeditated murder, or the murder of a peace officer, firefighter or custodial officer, you will be sentenced to life in state prison with the possibility of parole.21
- If you are convicted of attempting the willful, deliberate and premeditated murder of a peace officer, firefighter or custodial officer, you will receive a sentence of fifteen (15) years to life in state prison, and will not be eligible for parole until you have served at least 15 years of the sentence.22
The penalties under Penal Code 664 PC for attempted crimes in California are quite steep for victimless crimes—which is what most attempts are.
But don't despair. An experienced California criminal defense lawyer understands the best strategies for beating attempt charges. These can include the following common legal defenses:
You didn't have the specific intent to commit the particular crime
If you didn't specifically intend to commit the particular crime, you are not guilty of an attempted crime.23
So if you took a step toward committing the crime inadvertently, or if you took the step not knowing or intending that it would lead to the crime, you should not be convicted of attempt.
You didn't perform an act in furtherance of the alleged attempted crime
This may be the single most powerful potential defense against PC 21a attempt charges in California.
Guilty thoughts are just those—thoughts. Thinking about robbing a bank is not a prosecutable offense.
And mere preparations to commit a crime are not prosecutable offenses either. Checking out the bank's security and potential escape routes doesn't rise to the level of an act that can justify an attempted robbery charge.
Until you take an actual step toward committing the crime, you are not guilty of attempt under California Penal Code 21a.24
You can't be convicted of attempting an unintentional crime
This is a very important principle regarding attempted crimes in California. Because an attempt under California law requires specific intent to commit a crime, it is a logical impossibility to attempt to commit an unintentional crime.25
This means that you are not guilty of attempt if you are accused of attempting to commit a crime based on reckless or negligent acts, such as:
People are often confused about the difference between Penal Code 21a attempts, and Penal Code 182 conspiracy.
You commit the crime of conspiracy when:
- You make an agreement with one or more other people to commit a crime; and
- You, or one of the people you made the agreement with, commits an overt act in furtherance of the agreement.27
So, on the one hand, conspiracy requires an agreement with another person, while attempt does not.
On the other hand, the “overt act” in furtherance of the conspiracy does not need to be as direct a step toward committing the crime as the act required for an attempt.28 It can be a mere act of preparation to commit the crime, for example, even though planning or preparation is not enough to make one guilty of attempt.29
Example: Manuel, from our example above, was not guilty of attempted drug manufacture for purchasing certain equipment needed to manufacture hashish.
But let's say that—before purchasing the equipment—Manuel makes a deal with his friend Lorraine. They decide that they will manufacture hashish together and split the profits from selling it. They agree that Lorraine will buy the marijuana needed for the manufacturing and Manuel will buy the equipment.
So Manuel goes out and buys the equipment.
In this case, both Manuel and Lorraine would be guilty of conspiracy to commit a crime.
Call us for help…
For questions about “attempt” 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.
Arrested in Nevada? See our article on Nevada attempt crimes.
Penal Code 21a PC – Legal definition of an attempted crime. (“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.”)
Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 460 – Attempt Other Than Attempted Murder (Pen. Code, § 21a). (“[A person who attempts to commit <insert target offense> is guilty of attempted <insert target offense> even if, after taking a direct step towards committing the crime, he or she abandoned further efforts to complete the crime or if his or her attempt failed or was interrupted by someone or something beyond his or her control. On the other hand, if a person freely and voluntarily abandons his or her plans before taking a direct step toward committing <insert target offense>, then that person is not guilty of attempted <insert target offense>.]”)
Penal Code 664 PC – Punishment for attempted crimes. (“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, or by imprisonment pursuant to subdivision (h) of Section 1170, the person guilty of the attempt shall be punished by imprisonment in the state prison or in a county jail, respectively, 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 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 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 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.”)
CALCRIM 460 – Attempt Other Than Attempted Murder (Pen. Code, § 21a). (“However, an attempt is not possible if the underlying crime can only be committed unintentionally. (See People v. Johnson (1996) 51 Cal.App.4th 1329, 1332 [59 Cal.Rptr.2d 798] [no attempted involuntary manslaughter].)”)
Penal Code 21a PC – Legal definition of an attempted crime, endnote 1, above.
See also CALCRIM 460 – Attempt Other Than Attempted Murder (Pen. Code, § 21a). (“[The defendant is charged [in Count ] with attempted <insert target offense>.] To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant took a direct but ineffective step toward committing <insert target offense>; AND 2. The defendant intended to commit <insert target offense>.”)
Palm Springs criminal defense attorney Michael Scafiddi uses his former experience as an Ontario Police officer to represent clients through the Inland Empire, including at the courthouses in San Bernardino, Riverside, Rancho Cucamonga, Hemet, Banning, Fontana, Joshua Tree, Barstow, Palm Springs and Victorville.
CALCRIM 460 – Attempt Other Than Attempted Murder (Pen. Code, § 21a), endnote 8, above.
People v. Staples (1970) 6 Cal.App.3d 61, 69. (“However, it would seem that the character of the abandonment in situations of this type, whether it be voluntary (prompted by pangs of conscience or a change of heart) or nonvoluntary (established by inference in the instant case), is not controlling. The relevant factor is the determination of whether the acts of the perpetrator have reached such a stage of advancement that they can be classified as an attempt. Once that attempt is found there can be no exculpatory abandonment.”)
Based on the facts of the same.
CALCRIM 460 – Attempt Other Than Attempted Murder (Pen. Code, § 21a), endnote 8, above.
CALCRIM 460 – Attempt Other Than Attempted Murder (Pen. Code, § 21a). (“A direct step requires more than merely planning or preparing to commit <insert target offense> or obtaining or arranging for something needed to commit <insert target offense>. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a deﬁnite and unambiguous intent to commit <insert target offense>. It is a direct movement towards the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt.”)
Based on the facts of People v. Luna (2009) 170 Cal.App.4th 535.
CALCRIM 460 – Attempt Other Than Attempted Murder (Pen. Code, § 21a). (“Although legal impossibility is a defense to attempt, factual impossibility is not.”)
Based on the facts of People v. Meyer (1985) 169 Cal.App.3d 496.
Penal Code 664 PC – Punishment for attempted crimes, endnote 3, above.
CALCRIM 460 – Attempt Other Than Attempted Murder (Pen. Code, § 21a), endnote 8, above.
CALCRIM 460 – Attempt Other Than Attempted Murder (Pen. Code, § 21a), endnote 7, above.
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.")
California Jury Instructions - Criminal "CALJIC" 6.10 Conspiracy and Overt Act—Defined [contrast with legal definition of an attempted crime]. ("A conspiracy is an agreement entered into between two or more persons with the specific intent to agree to commit the crime of [[or] ] and with the further specific intent to commit that crime [[or] ], followed by an overt act committed in this state by one [or more] of the parties for the purpose of accomplishing the object of the agreement. Conspiracy is a crime. In order to find a defendant guilty of conspiracy, in addition to proof of the unlawful agreement and specific intent, there must be proof of the commission of at least one of the acts alleged in the __________ to be [an] overt act[s] and that the act found to have been committed was an overt act. It is not necessary to the guilt of any particular defendant that [he] [she] personally committed an overt act [if [he] [she] was one of the conspirators when the alleged overt act was committed]. The term "overt act" means any step taken or act committed by one [or more] of the conspirators which goes beyond mere planning or agreement to commit a crime and which step or act is done in furtherance of the accomplishment of the object of the conspiracy. To be an "overt act", the step taken or act committed need not, in and of itself, constitute the crime or even an attempt to commit the crime which is the ultimate object of the conspiracy. Nor is it required that the step or act, in and of itself, be a criminal or an unlawful act.")
CALCRIM 460 – Attempt Other Than Attempted Murder (Pen. Code, § 21a), endnote 14, above.