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Attempted Crimes in California – Penal Code 664 and 21(a)

Posted by Sam Israels | Jan 21, 2020

California Penal Code Sections 664 and 21(a) are the statutes that descried attempted crimes. In other words, attempting to commit a crime is itself a crime, and a separate offense that can be charged on its own.

This means if you attempt to commit a crime, but are unsuccessful in completing it, you could be charged with the “attempt” of the specific crime.

California's attempted crime laws are primarily designed to penalize anyone who tries to commit a crime, but fails to complete it. In fact, prosecution for attempted crimes is fairly common in Los Angeles County Criminal Courts. 

An attempt crime is generally described as any act of attempting to commit a crime.  These type of cases are typically prosecuted in a situation where it can be proven you had a specific intent to commit a certain crime, and took a direct step to commit it.

This means it's possible to be convicted for the “attempt,” even in a situation where you changed your mind at any point before completing the crime.

Penal Code 21(a) criminalizes all attempt crimes, but does not cover attempted murder, which is defined under Penal Code 664 and 187.

Let's review some common examples, which include attempted robbery, burglary, or rape. Let's take a situation where you have intent to commit burglary of a home. You make an attempt to enter through the front door, but a neighbor observes your actions and shouts out and you run away from the scene.

In this scenario, you could face charges of Penal Code 664/459 attempted burglary due to the fact to were trying to open the front door with intent burglarize the house, and your act was considered a substantial and direct step towards the completion of the burglary.

This same theory also applies to other attempted crimes, such as rape, when a victim is successful in escaping before sexual intercourse occurs.

A substantial step towards the commission of the crime means you did more than just prepare. Legal penalties for an attempt crime depend on the nature of the attempted crime, but typically punished by a one-half the sentence of the completed crime.

To give readers more useful information about attempted crimes, our criminal defense lawyers are providing an outline below.

Definition of a California Attempted Crime

California Penal Code 21(a) defines an attempt and includes two elements of the crime listed under CALCRIM 460 Jury Instructions, meaning these factors must be proven by the prosecutor to obtain a conviction:

  • You had a specific intent to commit a crime, and
  • You took a direct but ineffective step toward committing it

You can't be guilty of an attempt crime unless it can be proven you had specific intent to commit the underlying offense.

What is a Direct Step?

A “direct step,” which is also known as an act in furtherance, is described as an overt act that is more than preparation to commit a crime.

It's conduct showing you are putting the plan into action. It's conduct that clearly demonstrates an intent to commit the crime, such as some type of direct action towards committing the crime.

Again, making plans or engaging in a discussion to commit a crime is not a direct step, which has to be conduct that is close to completing the crime. In other words, a significant step in completing the crime.

A direct step has to show a definite intent to commit the crime and an immediate step that puts the plan to commit the crime in motion.

Common California Attempt Crimes

Penal Code 664/187 – Attempted Murder
Penal Code 664/459 – Attempted Burglary
Penal Code 664/211 – Attempted Robbery
Penal Code 664/261 – Attempted Rape
Penal Code 664/484 – Attempted Theft
Penal Code 664/207 – Attempted Kidnapping
Penal Code 664/455 – Attempted Arson
Vehicle Code 664/10851 – Attempted Vehicle Theft

Penalties for California Crimes

California Penal Code 664 PC describes legal penalties for an attempted crime and they will always depend on the underlying crime. In other words, the type of crime you were attempting to commit. An attempt crime can be either misdemeanor or felony offense, depending on what crime you were attempting to commit. In most cases, an attempt crime will carry the following penalties:

  • One half of the county jail or California state prison sentence for the underlying crime, and
  • One half the fines for the underlying crime

For instance, if convicted of attempting to commit a felony crime carrying a jail sentence of up to 4 years in a California state prison and a fine of $5,000, you could be sentenced to 2 years in jail, and a $2,500 fine.

If the attempted crime carries a life in prison or the death penalty, you are facing up to a 9-year sentence. If convicted of premeditated attempted murder of police or firefighter, you are facing a life sentence in prison the possibility of parole after 15 years.

Fighting Attempted Crime Charges in California

If accused of an attempted crime under California Penal Code 21(a), our Los Angeles criminal defense attorneys can use a wide range of strategies in an attempt to obtain the best possible outcome.

Every case is unique and will need to be closely examined in order to determine an appropriate defense. However, some of the most common defenses against allegations of an attempt crime include:

Lack of intent to commit the crime defense

Recall the elements of the crime above that it must be proven you had a specific intent to commit the crime. This crucial element can often be difficult to prove because it requires evidence of your intent beyond any reasonable doubt. We might be able to make a reasonable argument that cast doubt on specific intent or there is insufficient evidence to prove it. If successful, you could have a good chance at avoiding a conviction.

Lack of a direct step to commit the crime defense

Again, recall the “direct step” discussed above where the prosecutor has the burden of proof to show you committed an act of furtherance of the attempted crime. Planning to commit a crime is not sufficient for a conviction. In fact, even preparing is not enough.

You can't be guilty of an attempt crime unless you took a direct step to commit it. It has to be an actual overt act, or a substantial step to complete the crime. We might be able to make an argument there was no direct step to complete the crime, or there was an abandonment of the attempt crime.

If you are accused of any type of an attempted crime, call our Los Angeles criminal defense lawyers to review the case and options.

Cron, Israels & Stark is a criminal defense law firm with a team of highly experienced lawyers and a record of success. We are located at 11755 Wilshire Blvd, 15th Floor, Los Angeles, CA 90025. We also have an office located at 401 Wilshire Blvd #1200, Santa Monica, CA 90401. 

About the Author

Sam Israels

Sam J. Israels is a Law Firm partner with the Law Offices of Cron, Israels, & Stark. Mr. Israels received his J.D. degree from the Santa Clara University School of Law. Mr. Israels also previously worked at the Los Angeles Office of the City Attorney. He is admitted to practice law in the State o...

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