Attempt

Attempt is the crime of (1) intending to commit a crime and (2) taking significant but ultimately ineffective steps toward committing that crime. “Attempt” is also referred to as one of the “inchoate” crimes along with Solicitation and Conspiracy. These inchoate crimes (incomplete crimes) often carry harsh penalties and are based on the potential to commit a crime.

Attempt is a separate crime that can be charged on its own. Attempt Law is intended to punish a person who tries to commit a crime (e.g., murder, rape, robbery) but ultimately fails. The punishment for attempt depends on the seriousness of the crime attempted. Attempt is usually punished in California by a sentence equal to one-half of the completed crime. An attempted crime is a lesser included offense of a completed crime; if the prosecutor proves the completed crime, the attempt crime is included. In other words, a person can be convicted of attempted murder or murder, but not both.

In California, Attempt Law is defined in Penal Code sections 21a, 663 and 664. Attempt to commit a crime consists of basically two elements:

Specific intent to commit the crime, and
A direct but ineffective step done towards its commission.

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 demonstrates a definite and clear intent to commit the crime. Mere preparation or discussion is not a direct step. The direct step must come close to completion of the crime—it must be a “substantial step.” For example, a direct or substantial step towards committing murder would be the defendant buying a gun or bullets or ammunition shortly after telling the victim, “I am going to shoot you when I see you next time.” In an attempted murder case, the prosecutor could introduce this evidence to prove the defendant's intent to commit murder. Or, shooting at (but missing) a person while yelling out “I'll kill you,” would also be considered a substantial step towards the completion of the crime.

In most attempt cases, there will be grounds to argue that the elements of the attempted crime were not proved. There are two additional key defenses to attempt crimes that may be available depending on the circumstances of the case: 1) Abandonment or Renunciation, and 2) Impossibility. See also, Abandonment, Impossibility, Renunciation, Last Proximate Act Test, Probable Desistance Test, Substantial Step Test and Dangerous Proximity Test. Click here for more information about Attempt Crimes.