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Attempted Crimes: Penal Code § 664 PC and Penal Code § 21(a) PC

Crimes involving attempt are among the most misunderstood offenses covered under the California Penal Code. Not only is it inconceivable to many that one can be charged with a crime if the alleged offender abandons the plan and walks away without actually committing the underlying action, additionally, it is easy to confuse the crime of attempt with those of solicitation and conspiracy.

Elements of Attempt
Under PC 21(a), there are two elements of the crime of attempt:
• The specific intent to commit a California crime, and
• The taking of a direct but ineffective step towards the commission of that underlying crime.

Specific intent is an important factor. It is impossible to be convicted of attempting to commit an unintentional crime, which means acts based on negligence or recklessness are excluded as attempt crimes. Consequently, for example, there is no such offense as attempted involuntary manslaughter.

The direct step must be something other than mere planning or preparation. In prosecuting attempt crimes, district attorneys look to unambiguous steps beyond planning that move the defendant towards the crime, and ones that had not an intervening event occurred would have led to the commission of the underlying crime. Even if the accused abandons the plans after taking a direct step towards the crime’s commission, the case may be prosecuted.

Under PC 664, there is a general rule for those convicted of attempt crimes. The judge will determine would the sentence would have been had the defendant committed the underlying crime, and halves the sentence. This 50 percent rule applies to both jail time and any monetary fine applicable. One exception is if the underlying offense carries the death penalty or life imprisonment. If so, the maximum sentence is five, seven or nine years in state prison.

A large number of attempt cases hinge on the issue of what is a direct step? What exactly is an act in furtherance of a crime, if it is not thinking about, planning and preparing for that crime? The answer is that determination is made on a case-by-case basis.

Additionally, the prosecution must prove the defendant had the requisite intent to commit the crime. Because direct evidence is often lacking to prove intent, the prosecution typically uses acts and behavior to imply intent. Thus, intent and the direct step towards the crime are interwoven and provide some opportunity for an experienced defense counsel to attack the prosecutor’s theory of the case.

One similarity between attempt and solicitation is that the underlying crime need not be completed. The elements of solicitation, as found in California Penal Code § 653(f), are:
• The defendant requested another person to commit a specific crime or alternately join with the defendant in the commission of that crime,
• With the intent the crime be committed, and
• The other person received the communication with the request to commit the crime.

Under some circumstances, some courts have held it is possible to charge a person with both attempt and solicitation for the same set of actions.

Under California Penal Code § 182, conspiracy requires:
• The defendant intentionally entered into an agreement with another to commit a crime, and
• The defendant committed an overt act in furtherance of that crime.

The overt act need not in in itself be criminal, but it must be more than simply agreeing to commit the crime.

Incomplete crimes, also known as inchoate offenses, of attempt, solicitation and conspiracy are complex issues, which carry serious legal penalties upon conviction. If you have been charged with such a crime or suspect you are the target of an investigation, you need the immediate counsel of an experienced criminal defense attorney.

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