ATTEMPT

Attempting to commit a crime is itself a crime. Attempt is the crime of (1) intending to do 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 (meaning incomplete crimes) 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 designed to punish a person who tries to commit a crime (e.g., attempted murder, attempted rape, and attempted robbery) but fails to actually complete the crime. 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.

California Attempt Law
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. It is a direct movement towards the commission of the crime after preparations are made. 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.

Punishment and Penalties
The punishment for the crime of attempt is a lesser punishment than for the completed crime. In California, every person who attempts to commit a crime, but fails, or is prevented or intercepted in its preparation, is generally punishable by one-half the term of imprisonment that applies to a conviction for the attempted crime. However, there are exceptions, including:

• Willful, deliberate, and premeditated murder attempts are punishable by imprisonment in the state prison for life with the possibility of parole.
  
• Attempts to commit crimes for which the maximum sentence is life imprisonment or death are punishable in state prison for five, seven, or nine years.
  
• Attempts to commit misdemeanors are punishable in county jail by a term not exceeding one-half the term of imprisonment prescribed upon a conviction of the offense attempted.

Defenses to Attempt
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.

1. Abandonment - The abandonment defense applies to all inchoate offenses (e.g., conspiracy, attempt and solicitation). “Renunciation” is frequently interchanged with the term “abandonment.” A defendant can assert an abandonment defense if he can show that he completely and voluntarily withdrew from the crime before it was completed. The defense is not valid where the defendant decided that the crime was too difficult to commit, where he stopped in the middle to avoid apprehension or where he withdrew so he could focus on a different victim.
   
2. Impossibility – The impossibility defense applies when a defendant has attempted to commit the crime but unexpected circumstances have prevented the crime from occurring. This defense applies only to legal impossibility situations and not factual impossibility situations. An example of a factual impossibility defense to an attempted robbery is a case in which the defendant tries to steal someone’s wallet, but when he puts his hand in the victim’s pocket, he finds there is no wallet. The defendant will claim it was impossible to have stolen the wallet because the victim was not carrying a wallet. This type of impossibility (factual) defense is not accepted in California. An example of a valid legal impossibility defense to attempted rape is a case in which the defendant has consensual sexual relations with a woman be thinks is under the age of eighteen (who is actually 25), believing it is illegal to do so, when in fact there is no law against consensual sexual relations with an adult.

Aggressive & Experienced Los Angeles Criminal Lawyers
In California, it is possible to be charged for a crime even if you did not actually commit the crime. And the penalties can be harsh! Attempt charges are very serious criminal charges. Check out the experience and track record of any criminal defense attorney you consider hiring. Choosing the right attorney could mean the difference between freedom and incarceration.

The Los Angeles criminal defense attorneys at Stephen G. Rodriguez & Associates are aggressive and experienced attorneys. We have handled hundreds and hundreds of serious criminal matters in and around Los Angeles County. Call us for a free and absolutely confidential consultation!

Law Offices of Stephen G. Rodriguez
633 West 5th Street
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Los Angeles, California 90071

Telephone
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