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

California Penal Code § 664 PC makes it a crime to attempt to commit a felony or misdemeanor but then fail to achieve the criminal objective. An attempt generally carries half the sentence you would have received had you succeeded in committing the intended crime.

Examples of attempted crimes are:

• trying to commit rape, but the victim escapes before any sexual act.
• walking into a bank with a gun ready to commit burglary, but running out after getting nervous.
• attempting to set a car on fire (arson), but fleeing from the scene after being spotted.
• attempting to commit murder with a knife, but the victim survives the stabbing

In this article, our California criminal defense attorneys discuss the following topics re. attempt crimes:

• 1. Elements of 664 PC
• 2. Defenses
• 3. Penalties
• 4. Immigration
• 5. Expungements
• 6. Gun Rights
• 7. Related Offenses
• Additional Resources

1. Elements of 664 PC

The elements of attempted crimes are spelled out in California Jury Instruction “CALCRIM” 460. For you to be convicted under Penal Code 664 PC, prosecutors must prove beyond a reasonable doubt that:

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

Concerning the second element, the “direct act” must be an actual step toward committing the crime. It is more than merely:

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

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.¹

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. Soon authorities catch Manuel with his equipment and charge him 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. Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with attempted crimes. In our experience, the following three defenses have proven very effective with prosecutors, judges, and juries at getting these charges reduced or dismissed.

1) There Was No Act in Furtherance of the Attempted Crime

You are not guilty under 664 PC if you took no direct step toward committing the target offense. Perhaps, for example, your actions only amounted to planning or thinking of a crime.

With this particular defense, we would meet with the prosecutors and show them that their evidence falls short of proving you took any direct steps. If they realize there is “reasonable doubt,” then the state could dismiss the case without a trial.

2) You Had No Intent to Commit a Crime

“Lack of intent” to commit a crime is one of the strongest defenses we rely on. This is because prosecutors cannot prove in a tangible way what was going on in your brain.

Therefore, we can raise all sorts of possibilities of what you were thinking – if anything at all – that runs counter to criminal intent.

3) You Abandoned the Crime

Abandonment is a defense to an attempt charge if we can show that you changed your mind before the crime was committed.

For the abandonment defense to work, it must have been voluntary. Suddenly withdrawing from a crime just because you see police in the distance and are scared you will get caught does not count.

To prove abandonment, we would compile all the relevant evidence showing your intent such as text messages, voicemails, surveillance video, etc. Once the D.A. sees that you changed your mind in time, they may drop the charge immediately.

3. Penalties

Under California Penal Code 664 PC, the punishment for an attempted crime is one-half of the prison/jail term and fine that would have been given if the crime was completed.

If the offense you attempted to commit is punishable by life in prison or the death penalty, then the sentence is up to nine years in prison.

However, if you are charged with an attempted murder that was willful and deliberate, then you could be sentenced to life in prison.²

4. Immigration

If you are convicted in California of an attempted crime involving moral turpitude or an attempted aggravated felony, you risk being deported.³ That is why non-citizens who have been arrested should hire counsel to try to get their charges reduced to something non-deportable.

5. Expungements

You may be able to get an expungement of a California attempt conviction if you successfully complete either:

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

Once your case is expunged from your criminal record, it should no longer appear on your background check.⁴

6. Gun Rights

A California conviction of an attempt felony or domestic violence offense can strip you of your gun rights for life. However, gun rights may be restored through a governor’s pardon.⁵

7. Related Offenses

Conspiracy – 182 PC

Penal Code 182 PC prohibits criminal conspiracy in California. This occurs when:

1. you agree 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:

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

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

Solicitation – 653f PC

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

Note that, unlike an attempt case, you are not trying to break a law in a solicitation case. Instead, you are asking another to do so.

Aiding and Abetting – 31 PC

Penal Code 31 PC makes it a California crime if you encourage, facilitate, or aid in the commission of a crime. Accomplices face the same criminal liability as the “principal” that the accomplices aided and abetted.

Additional Resources

For more in-depth information, refer to these scholarly articles:

• Criminal Attempts – Overview by Yale Law Journal.
• Trying, Acting and Attempted Crimes – In-depth explainer by Law and Philosophy.
• Attempted Crimes – Detailed discussion by American Journal of Comparative Law.
• Criminal Attempt and the Theory of the Law of Crimes – Philosophy and Public Affairs.
• Criminal Attempts at Common Law – Pertinent case law discussed by the University of Pennsylvania Law Review.

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