“Attempted Robbery” in California – How Is It Defined?

In California, attempted robbery is when you intend to use force or fear to take someone’s property from them, and you then perform an act in furtherance of the robbery. It is a violent felony that carries up to 3 years in prison. However, there are some strong legal defenses that I can raise to fight the charge.

What are the “attempted robbery” laws in California?

An attempted robbery happens when you intend to rob someone, and you then take an action towards committing the crime but do not complete it.

In California, the crime of robbery is prohibited by California Penal Code section 211 PC. The elements of the crime are:

• you took personal property that was not your own,
• the property was in the possession of someone else,
• the property was taken from the other person or from their immediate presence,
• the property was taken against that person’s will,
• you used a means of force or fear to take the property or to prevent the other person from resisting, and
• you intended to permanently or materially deprive the owner of the property at the time you used force or fear to get it.¹

It is first-degree robbery if any of the following factors were in play:

• the victim is a driver or a passenger in a bus, taxi, subway, or other form of transportation for hire,
• the robbery took place in an inhabited dwelling, house, trailer, or boat, or
• the victim was using, or had just finished using, an ATM when the robbery took place.²

It is second-degree robbery in all other situations.³

The robbery does not have to be completed or successful to break the law, though. Attempted crimes are also illegal in California.

California Penal Code 664 PC provides the legal definition for attempted crimes. Prosecutors have to show that you:

• took a direct but ineffective step towards committing the offense, and
• intended to commit the crime.⁴

The direct step has to be more than merely thinking, planning, or preparing to commit the crime of robbery. Instead, it has to put the specific intent to commit the crime into motion.⁵

What are the penalties for a conviction?

The penalties for a conviction on attempted robbery charges are one-half of what would have been imposed, had the offense been committed.⁶ Because robbery is a serious felony, rather than a misdemeanor, the penalties of a conviction for an attempted robbery are still severe. They involve lengthy stints in state prison rather than county jail.

If you attempted to commit a first-degree robbery, therefore, a conviction would carry up to:

• 18 months, 2 years, or 3 years in California state prison, and/or
• $5,000 in fines.⁷

If it was an attempted second-degree robbery, a conviction would carry up to:

• 1 year, 1.5 years, or 2.5 years in state prison, and/or
• $5,000 in fines.⁸

There are also sentencing enhancements that can increase the repercussions and the prison sentence for an attempted robbery conviction. These include:

• there was a great bodily injury during the offense (Penal Code 12022.7 PC),
• a strike under California’s three strikes law as a violent felony, and
• a gun was used (Penal Code 12022.53 PC).

Are there any legal defenses?

In my experience, there are several strong legal defenses to criminal charges of attempted robbery. The most common include:

• there was no intent to commit the crime,
• there was no act in furtherance of the offense,
• mistaken identity,
• you abandoned the attempt, and
• the property was not in the victim’s immediate presence.

No intent to commit the offense

California’s criminal law requires that the prosecutor prove that you intended to commit a robbery. They have to prove this beyond a reasonable doubt.

Most of the time, the prosecutor has to infer your intent from your physical actions. When the crime was merely attempted, not completed, this can be difficult. Throwing doubt on your true intentions can be a strong defense.

There was no act in furtherance of the robbery

To prove a case of attempted robbery, the prosecutor has to show that there was an act in furtherance of the offense. A strong legal defense is to show that your conduct never moved the robbery forward.

For example: Jeremy buys a mask, a gun, and a bag with a dollar sign on it to rob a store. He is still deciding which store to rob when police arrest him. Jeff has yet to take a step in furtherance of the robbery – so far he has just prepared to commit the crime.

Mistaken identity

Mistaken identity can also be a strong defense to an attempted robbery allegation. Victims often struggle to identify a robber, even if the offense was completed. Uncompleted or aborted robberies are even more likely to lead to a case of mistaken identities.

You abandoned the attempt

An important legal defense to an attempted crime is abandonment. You abandon a crime by taking a voluntary act that ends your role in its commission. This can happen even after you have already taken a direct act in furtherance of a robbery.

The abandonment defense becomes complicated when there is more than one person conspiring to commit a crime.

The property was not in the victim’s immediate presence

Robbery requires the property to be either:

• on the victim’s person or body, or
• in the victim’s immediate presence.

The presence of the victim when the property is taken is one of the things that makes robbery different from theft. By arguing that the victim was not adequately present, I can try reducing your charges to a theft offense. Convictions for these offenses are often less severe.

Are there related offenses?

Some offenses under California law that are related to attempted robbery include:

• petty theft (Penal Code 484 PC),
• grand theft (Penal Code 487 PC),
• solicitation to commit robbery (Penal Code 653f PC), and
• conspiracy to commit robbery (Penal Code 182 PC).

Theft

Theft is the crime of taking someone else’s property, without the owner’s consent, and with the intent to permanently deprive them of it.

In California, there are 2 types of theft, depending on the value of the property:

1. petty theft, which covers up to $950, and
2. grand theft, which covers more than $950.

The 2 differences between theft and robbery are:

1. robbery requires the presence of the owner of the property at the commission of the offense, and
2. theft does not require the use of fear or force.

Solicitation

Solicitation is the crime of asking someone else to commit a crime, with the intent that the crime actually be committed. Soliciting a robbery is different from attempting one because – in the solicitation case – you would not have been the person trying to take the property. Instead, you would be accused of getting someone else to take the property, for them.

Conspiracy

Conspiracy is the crime of agreeing with at least one other person to commit a crime, and then one of the conspirators committing an act in furtherance of that agreement.

Conspiracy to commit a robbery is similar to attempting to commit one. However, in a conspiracy case, you did not necessarily have to be the person who acted in furtherance of the crime.

Additional reading

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

• Robbery, Recidivism, and the Limits of the Criminal Justice System – Marquette Law Review.
• Federal Sentencing: The Need for a New Test for the Abduction Enhancement in the Context of Robbery – West Virginia Law Review.
• Criminal Law – Taking and Force: A Time Dependent Relationship in Establishing Robbery – Suffolk University Law Review.
• Robbery – Mental Element at Time of Force or Putting in Fear – Dickinson Law Review.
• Evaluation of a victim’s response to an attempted robbery: The effect of victim gender – Legal and Criminology Psychology.

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