Penal Code § 664 PC – “Attempted Crimes” in California

Penal Code § 664 PC is the California statute that defines criminal attempt. An attempted crime is when you try to break the law but, for whatever reason, fail to achieve the criminal objective.

An attempt is generally punished as one-half the sentence of what the sentence would have been had the felony or misdemeanor been completed.

Examples

• trying to commit rape, but the victim escapes before any sexual act.
• walking into a bank with a gun ready to commit burglary, but running out after getting nervous.
• attempting to set a car on fire (arson), but fleeing from the scene after being spotted.
• attempting to commit murder with a knife, but the victim survives the stabbing

Our California criminal defense attorneys will highlight the following in this article:

• 1. Elements
• 2. Defenses
• 3. Penalties
• 4. Immigration
• 5. Expungements
• 6. Gun Rights
• 7. Related Offenses
• Additional Resources

1. Elements

The elements of attempt crimes are spelled out in California Jury Instruction 460. For you to be convicted under Penal Code 664 PC, prosecutors must prove beyond a reasonable doubt the following two elements of the crime:

1. You intended to commit a certain crime, and
2. You performed a direct act toward committing that crime.¹

With regard to the second element, the “direct act” must be an actual step toward committing the crime. It is more than merely:

• thinking about a crime,
• planning a crime, or
• preparing to commit a crime.²

A direct step must:

1. show a definite intent to commit the target offense, and
2. be an immediate step that puts the plan to commit the offense into motion.³

Example: Manuel is thinking about making some extra money by making and selling hashish (concentrated cannabis). He purchases some equipment for this purpose, but he does not assemble it. He also does not buy any marijuana, which is necessary to produce hashish. Soon authorities catch Manuel with his equipment and charge him with attempted manufacture of a controlled substance (under Health and Safety Code11379.6 HS).

Here, Manuel is likely not guilty of attempt. His actions are only preparations and do not equate to a direct step towards manufacturing hashish. A direct step would have taken place, though, if Manuel assembled the equipment he purchased, and bought large quantities of marijuana.

2. Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with attempts. In our experience, the following three defenses have proven very effective with prosecutors, judges, and juries at getting these charges reduced or dismissed.

There Was No Act in Furtherance of the Attempted Crime

Recall that you are only guilty under this statute if you took some direct step toward committing the target offense. This means it is always a defense to say that you did not perform this step/act. Perhaps, for example, your actions only amounted to planning or thinking of a crime.

With this particular defense, we would meet with the prosecutors and show them that their evidence falls short of proving you took any direct steps. If they realize there is “reasonable doubt,” then the state could dismiss the case without a trial.

You Had No Intent to Commit a Crime

A prosecutor must prove that you intended to commit some crime for an attempt conviction. Therefore, it is a smart legal defense to show that you never had this intent.

“Lack of intent” is one of the strongest defenses we rely on. This is because prosecutors cannot prove in a tangible way what was going on in your brain. Therefore, we can raise all sorts of possibilities of what you were thinking – if anything at all – that runs counter to criminal intent.

You Abandoned the Crime

Abandonment is a legal defense to an attempt charge where you show that:

• while you may have intended to commit a crime (and took an act to further it),
• you withdrew from or abandoned his actions.

The defense shows that you changed your mind and did not want to commit a crime. Note that the abandonment, though, must be voluntary to work. You cannot abandon a crime just because you believe you will get caught.

To prove that you abandoned any criminal activity, we would compile all the relevant evidence showing your intent such as text messages, voicemails, surveillance video, etc. Once the D.A. sees that we can show you abandoned the attempt in time, they may drop the charge immediately.

3. Penalties

The punishment for an attempted crime is one-half of the jail term and/or fine that would have been given if the crime was completed.⁴

Note that if the offense you attempt to commit is punishable by

• life in prison or
• the California death penalty,

then the attempt is punishable by custody in prison for up to nine years.⁵

However, if you are charged with an attempted murder that was

• willful and
• deliberate,

then you could be sentenced to life in prison.⁶

4. Immigration

If you are convicted of an attempted crime involving moral turpitude or an attempted aggravated felony, you risk being deported. That is why non-citizens who have been arrested should hire counsel to try to get their charges reduced to something non-deportable.

5. Expungements

You may be able to get an expungement of an attempt conviction if you successfully complete either:

• probation, or
• your term in county jail (whichever is applicable).

Note that an expungement is generally not available if your sentence includes custody in state prison.

6. Gun Rights

A California conviction of an attempt felony or domestic violence offense can strip you of your gun rights for life. However, gun rights may be restored through a governor’s pardon.

7. Are there related offenses?

Conspiracy – PC 182

Penal Code 182 PC is the California statute that defines criminal conspiracy. This section makes it a crime if:

1. you agree with one or more other persons to commit a crime, and
2. one of the parties commits an act to further that agreement.

The main differences between an attempted crime and conspiracy are:

• an attempt does not require an agreement with another person, and
• an act to further a conspiracy does not have to be as direct a step as one that furthers an attempt.

As to the last point, preparation is enough to further a conspiracy. Though it is not enough to further an attempt.

Solicitation – PC 653f

Penal Code 653f PC makes it a crime to solicit someone, or ask them, to commit certain California criminal offenses.

Note that, unlike an attempt case, you are not trying to break a law in a solicitation case. You are asking another to do so.

Aiding and abetting – PC 31

Penal Code 31 PC assigns criminal liability to you if you:

• encourage,
• facilitate, or
• aid in the commission of a crime.

Again, unlike in an attempt case, you are not technically trying to break a law in an aiding and abetting case. Rather, you commit a crime because you help another committing an offense.

Additional Resources

For more in-depth information, refer to these scholarly articles:

• Criminal Attempts – Overview by Yale Law Journal.
• Trying, Acting and Attempted Crimes – In-depth explainer by Law and Philosophy.
• Attempted Crimes – Detailed discussion by American Journal of Comparative Law.
• Criminal Attempt and the Theory of the Law of Crimes – Philosophy and Public Affairs.
• Criminal Attempts at Common Law – Pertinent case law discussed by the University of Pennsylvania Law Review.

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