California’s Penal Code Sections 21(a) and 664 define attempted crimes laws. An attempted crime is the offense of making a direct step towards committing a crime. It is a distinct crime on its own, and it attracts one-half of the penalties of the complete crime or a unique set of penalties if accused of attempted murder under Penal Code Section 664. Common attempted crimes charged under Penal Code 21(a) include attempted robbery, battery, burglary, rape, or theft.
There are legal consequences for attempting a crime, even if you are unsuccessful. An attempted crime is classified as an “inchoate” (incomplete) crime. The defendant violates the law by taking a punishable step towards committing a crime, only that these steps are ineffective or unsuccessful.
Attempted Crime Defined
An attempt to commit a crime is a criminal offense, even if an attempt fails. The law protects the public and deters potential criminals by imposing harsh punishment even on defendants whose attempts to commit a crime are unsuccessful.
Examples
A potential robber sneaks up at a woman walking down a deserted path. He points a gun at her and demands to have her handbag. The woman attacks the man with pepper spray and runs while yelling for help. The police arrive at the scene and arrest the man for attempted robbery. The above incident proves both intent and a direct step towards committing a crime.
In another example, a would-be arsonist tries to break and enter a jewelry store belonging to an ex-spouse after the usual work hours. The accused has petrol, matches, and protective gear. Unknown to him, security personnel monitor the store from another room. One of the security guys calls the cops while the other carefully approaches the burglar and points a gun at him. Again, the crime was unsuccessful, but the defendant is still guilty of attempted arson.
Failure to Complete
California laws make it a crime to make a conscious decision to break the law, take steps towards committing an offense and accomplish your motives or fail. Essentially, an offense is only an attempted crime if the perpetrator fails to complete it. If the crime is completed, it is no longer an attempted offense.
Moreover, a defendant cannot simultaneously face charges for an attempted and completed crime. However, the prosecution can impose other charges that attract an entirely different set of penalties. For instance, a robber who attempts to steal the valuables of a woman walking down a deserted path can also face charges for the unlawful possession of a firearm if he was using an unlicensed gun.
The only exception applies when the concept of transferred intent comes into play. For instance, an employee deranged by the anger of not receiving a promotion intends to kill her boss. She packs a gun in her clutch bag, walks into her employer’s office, and discharges the gun. Accidentally, the bullet misses the target but ends up hitting a co-worker who succumbs to injuries on the spot. The defendant’s intent to kill the employer is transferred to the co-worker. Therefore, the accused can face charges for both the murder of her colleague and the attempted murder of her boss.
Elements of an Attempted Crime
An attempt is an inchoate crime where the accused intends to commit a crime and takes an active step in furthering the crime but fails.
The prosecution must prove two essential elements beyond a reasonable doubt for you to be convicted of an attempted crime. These elements include:
- You intended to commit an offense prohibited by the law
- You took a direct step towards committing the crime
Let us have a look at some of the key terms used in describing the offense of attempting a crime:
Intent
“Intention” is the mental element in the commission of a crime. It is the plan with which a defendant acts to commit an offense. “General intent” is presumed with a defendant’s acts like overspeeding on street roads. On the other hand, specific intent refers to planning how to commit an offense.
Inchoate crimes like an attempted crime, conspiracy, and solicitation, and actual crimes like larceny, embezzlement, and first-degree murder require the prosecution to prove that the defendant had the “specific” intent to commit a crime.
Sometimes, defendants make it easy for the prosecution to prove intent by confessing to their crime. Otherwise, a prosecutor can establish intent by combing through the evidence, the words or actions of the defendant, the circumstances around an offense, or even the accounts of eyewitnesses.
Direct Step
A “direct step” refers to an actual act towards committing a crime. Essentially, this step puts the “intent” to commit a target offense into motion.
A direct step towards the commission of a crime can include any of the following actions:
- Thinking about ways to commit a crime
- Planning how to accomplish the offense
- Preparing to carry out the crime
Even if an accused intended to commit a crime, they are not guilty of the offense or an attempted offense if they do not make any direct steps. The prosecution must establish the second element to find the accused guilty of an attempted crime beyond a reasonable doubt.
Penalties for an Attempted Crime
An attempted crime penalty can leave you paying hefty fines and spending time behind bars. There are three main reasons why the law is not lenient on persons who attempt to commit crimes. They include:
- To discourage others from attempting to commit crimes
- A defendant is still criminally liable even if their attempt to commit a crime was unsuccessful
- Justice cannot be served to the victims of attempted crimes unless the defendant is punished
Generally, the penalty for attempting a crime in California is one-half the punishment for the complete crime. A defendant must face the repercussions of their actions whether their strategies fail or a crime is not successful because they were intercepted or prevented from accomplishing their mission.
Penal Code Section 21a Exceptions
A few exceptions apply when the accused is charged with attempting certain crimes. These exceptions mainly touch on murder, criminalized under Penal Code 187. Murder is a felony, whether charged as first-degree or second-degree murder.
Here are the exceptions to expect when charged with attempted murder:
First-Degree Attempted Murder
Penal Code 664/187(a) describes first-degree attempted murder as the crime of intending to kill another person or fetus, taking a direct step towards committing the offense, but the victim survives. One of the main characteristics of first-degree attempted murder is that the accused premeditates and commits the offense deliberately. Common examples of first-degree attempted murder are when the accused poisons, stabs, or strangles the victim, but they do not die.
If the defendant willfully and deliberately premeditates committing murder but fails, the punishment for the offense is as follows:
- A life sentence in state prison with the possibility of parole
If a defendant is convicted of attempted first-degree murder against a protected person like a peace officer, law enforcement officer, or firefighter, the laws impose a mandatory 15-year sentence. While the penalty allows the possibility of parole, the accused cannot be considered for parole until they serve the mandatory sentence.
Second-Degree Attempted Murder
Under the homicide laws, second-degree murder is described as the unlawful killing of another person without premeditation or deliberation but with a malicious afterthought. Any attempt to end a human life that is not classified as first-degree attempted murder will typically fall under second-degree attempted murder.
Common examples of second-degree murder include a chronic DUI offender getting behind the wheel and killing a pedestrian or negligently discharging a firearm in an occupied location and accidentally killing someone. If any of the above crimes happen, but the victim(s) survive, the defendant will face charges for second-degree attempted murder.
The penalty for the offense is as follows:
- Incarceration in state prison for 5, 7 or 9 years
Attempted Murder in Affiliation with a Gang
If an attempted murder case involves criminal street gang activities, a defendant’s sentence is subject to enhancement under Penal Code Section 186.22. The judge will consider imposing the penalty for first-degree or second-degree murder and include the sentence enhancement.
Other Penalties
An attempted crime conviction can impact the immigration status of non-U.S. citizens. If you are found guilty of attempting to commit an aggravated felony or an offense that involves moral turpitude, you risk deportation and being marked as inadmissible into the country. Generally, if the complete crime would have affected your immigration status, the attempted offense will also result in the same.
Furthermore, a conviction for attempting to commit a felony can affect your gun rights. Again, if the complete crime would have impacted your gun rights, the attempted crime will also result in the same.
Best Defenses for an Attempted Crime
Fighting attempted crime charges can be challenging, especially if the evidence against you proves you are guilty beyond a reasonable doubt. However, a skilled attorney will always take advantage of any struggles the prosecution faces, especially with proving the elements of a crime.
Here are some of the defenses your attorney can use:
Lack of Intent
One of the essential elements the prosecution must prove beyond a reasonable doubt is that the defendant had the intent to commit a crime but failed. Based on the circumstances around the alleged offense, a skilled attorney can raise arguments to cast doubt about the accused's intentions.
Proving the element of intent is often challenging for prosecutors. A reliable attorney will ensure that the prosecution bears the burden of proof as expected by the law or back down if they lack sufficient evidence. If arguing the lack of intent is successful, there is a good chance the court will drop your charges.
No Direct Step towards Committing the Crime
For the prosecution to convict you of an attempted crime, they must prove that you made at least one step towards the commission of a crime. If you did not further the offense, the mere intention or deliberation of wrongdoing is insufficient to get convicted.
Abandonment/Renunciation of an Attempted Crime
Another common defense that an attorney can use is that you willfully change your mind before committing the crime. This means that your attempt to take a step towards committing the crime was not intercepted, prevented, or a failure. Also, you had a good chance of going through with your intentions but chose to abandon your motives.
It is crucial to understand that the abandonment defense cannot work if you renounce your intentions because you encountered challenges with the commission of an offense. For instance, you cannot claim to have abandoned the crime if you fled the scene because of fear of being caught. However, your attorney can convince the court to drop the charges if everything worked according to plan, but you opted not to attempt or complete the crime.
Impossibility Defense
The impossibility defense can come in handy if unexpected circumstances prevent a crime from happening. Your attorney can only use this defense if a situation presents a legal impossibility and not a factual one.
A simple example of factual impossibility is holding a store’s cashier at gunpoint only to find that he does not have a cent. If a robbery is made impossible because of the “fact” that the cashier has no money, the defendant is still guilty of attempted robbery.
On the other hand, an attorney can argue using the impossibility defense if there is a legal impossibility of committing a crime. For instance, a man approaches a girl dressed in what looks like a school uniform. He believes she is under 18 but still lures her into his home, where he attempts to have “consensual” sex. In the real sense, the girl is 23 and legally able to consent. Therefore, there is a legal impossibility of the accused facing charges for attempted statutory rape.
The penalties for an attempted crime conviction can have far-reaching effects. Apart from spending time behind bars and paying hefty fines, most defendants have to live with a permanent criminal record, especially if sentenced to state prison. With so much on the line, your best chance of achieving a desirable outcome is to work with a skilled criminal defense attorney. The right expert will have the skills to choose the best defenses and table strong arguments that can have your charges reduced or dropped.
Offenses Related To Penal Code 21(a)
The offenses related to an attempted crime are mainly inchoate crimes. These are offenses that require the defendant to take at least one punishable step towards the commission of the target offense.
Conspiracy — Penal Code 182
Conspiracy refers to a scenario where the defendant intends to commit a crime in the company of one or more people. For the plan to succeed, one of the involved parties needs to make at least one step towards the furtherance of a crime. Often, plans to commit the offense fail when one party does not make the agreed-upon step designed to help advance or accomplish the crime.
A conviction for conspiracy carries the same punishment for the underlying crime. If the defendant faces robbery charges, the punishment will include serving a sentence of up to 9 years in state prison. The one-half penalty does not apply. This is because in a conspiracy case, “preparing” to commit a crime counts as a step towards the furtherance of an offense.
Aiding and Abetting — Penal Code 31
Aiding and abetting is the offense of facilitating, aiding, or encouraging the commission of a crime. The offense makes you an accomplice or someone who is “in on” the crime. Aiding and abetting is similar to an attempted crime in the sense that the defendant must have some involvement in seeing a crime through.
Under Penal Code 31, the penalty for the person who commits a crime directly and the one who aids and abets is the same. For instance, if you aid in the commission of murder, you will receive punishment under Penal Code 187.
Solicitation to Commit a Crime — Penal Code 653f
Under Penal Code 653f, it is unlawful to solicit another person to commit a crime. The prosecution can impose misdemeanor or felony charges, depending on the type of crime a defendant requests someone else to commit. Common examples of solicitation include asking an eyewitness to tell lies during a trial or requesting a friend to help you ferry controlled substances across state lines.
Find a Los Angeles Criminal Defense Attorney Near Me
Facing charges for an attempted crime under Penal Code 21(a) or 664 can hurt your freedom, livelihood, and future. It is in your best interests to enlist a skilled attorney as soon as possible and begin building the best defense strategy. At Los Angeles Criminal Attorney, we give a voice to defendants. Let us discuss your case and begin working on the best way to achieve a favorable outcome. You can reach one of our skilled attorneys for a 100% free and no-obligation consultation by calling us at 424-333-0943.
