Penal Code § 664 PC – “Attempted Crimes” in California

It is often said that the law does not reward the unsuccessful criminal. Penal Code § 664 PC makes it a crime to “attempt” to commit a criminal act. An attempted crime is when a person tries to break the law but, for whatever reason, fails to achieve the criminal objective.

An attempt is generally punished as one-half the sentence of what the sentence would have been had the crime been completed.

The language of the statute reads:

664. 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.

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 showing that there was:

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

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:

• attempted misdemeanor, or
• attempted felony.

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

• 1. Is attempting to commit a crime itself a crime in California?
• 2. What are some examples of attempted crimes?
• 3. Why do we punish attempted crimes?
• 4. Are there legal defenses?
  • 4.1. No act in furtherance of the attempted crime
  • 4.2. No intent to commit a crime
  • 4.3. Abandonment
• 5. What are the penalties for PC 664?
• 6. Are there immigration consequences?
• 7. Can a person get a conviction expunged?
• 8. Does a conviction affect gun rights?
• 9. Are there related offenses?
  • 9.1. Peeking while loitering – PC 647i
  • 9.2. Federal “video voyeurism” law – 18 U.S. Code 1801
  • 9.3. Trespassing – PC 602

1. Is attempting to commit a crime itself a crime in California?

Yes. Attempting to commit a crime, even when the attempt fails, is itself a crime under Penal Code 664 PC. As is sometimes said, the law does not reward an unsuccessful criminal.

A prosecutor must prove two things to convict a defendant of an attempted crime. 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:

• attempt to commit murder (unlawful under Penal Code 187 PC),
• attempted robbery (unlawful under Penal Code 664/211 PC), and
• attempt to commit rape.

Note that an 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.

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 for PC 664?

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:

• life in prison, or
• the California death penalty

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

Also note that if a defendant is charged with an 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:

• deported, or
• marked as inadmissible.

Examples of these crimes include:

• crimes involving moral turpitude, and
• aggravated felonies.

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 (for example, 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 targeted 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…

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:

• “How Nevada Law Treats ‘Attempted Crimes’ (NRS 193.330),” and
• “Criminal attempt (Colorado 18-2-101 C.R.S.)”.

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