Attempting to commit an offense is a criminal offense in itself. And despite what you might think, often, being found guilty can subject you to harsh consequences as though you had completed the offense. The foundation of the criminal law on attempted crimes boils down to the suspect's intent.
The logic here is if you tried to commit a crime, you did have the required intent to execute illegal action, but some external factor merely prevented you from doing so. It could be that you changed your mind after taking significant steps to complete the offense, you were caught before completing the crime, or your firearm chamber was not loaded. Consequently, California law imposes consequences consistent with a carried out offense, even for an incomplete or attempt of the actual offense.
Attempted Crimes Statute In California
According to California’s PC Section 21(a) and 664, trying to commit an offense is illegal even if your attempt does not go through. As some people sometimes say, the law does not reward unsuccessful criminals. An attempt crime has two primary elements:
- You specifically intended to carry out or execute a given offense
- You did a direct, though ineffectual act towards the commission of that crime
The burden to demonstrate beyond a reasonable doubt that you met the above two elements and therefore should be convicted lies with the prosecution. The element of intent applies to the underlying/target offense— that is, the offense you would have committed if your attempt had been successful.
On the other hand, the direct but ineffectual act element generally means you had taken significant steps towards completing the offense. Pointing a firearm at the victim that you intended to shoot or appearing at the house you intended to burglar shows you had taken significant steps towards completing the crime. The following are not considered direct, ineffectual actions:
- Preparing to commit an offense
- Thinking about an offense
- Planning an offense
As illustrated above, direct, ineffectual action must demonstrate an explicit intent to execute the target crime and be an immediate action that places the plan to execute the crime into motion.
California's most commonly charged attempted crimes include attempted rape, attempted robbery (prosecuted under PC 211 and PC 664), attempted murder (prosecuted under PC 664/PC 187), attempted kidnapping, attempted burglary, and others. It is critical to remember that attempted crimes are prosecuted under PC 664 and not under the law of the target crime. This means the crime of attempted murder will be prosecuted under 664 PC, not Penal Code 187.
California law punishes any attempt to commit a criminal offense for three primary reasons. These reasons include:
- Due to the notion that criminal responsibility need not be withdrawn because bad luck averted a crime from taking place
- To discourage other people from attempting to violate the law
- Attempted offenses usually cause some kind of damage or harm that justifies punishment
Note that if you pretended to help another person commit an offense but contacted law enforcement to purposely arrest the person in the act, you could still be prosecuted for an attempted offense. All the prosecutor needs to do is prove you intended to execute the offense or aid in the perpetrator's attempt to execute the offense. In this case, you may be charged with aiding and abetting an attempted crime. But an experienced lawyer may be capable of showing that you only pretended to assist the perpetrator or you had to assist the perpetrator because of a threat.
Also, note that the prosecution cannot charge you with both an attempted offense and the target crime if you were not successful in committing the target crime. But it can charge you with another crime alongside the attempt charges. For instance, if a police officer caught you with an unlicensed firearm as you were entering a bank, the prosecution could charge you with illegal possession of a gun and attempted bank robbery.
The Consequences for Attempted Crimes Are Just As Harsh
The consequences for attempting to commit a criminal offense in California are lesser than they would be if you had completed the crime. Generally, you would face half of the fine and incarceration period you would have faced if you had completed the crime.
Remember, if the target offense is punished by the death penalty or life imprisonment, the attempt to commit that target crime is punished by nine, seven, or five years in prison. Also, keep in mind that if you have been charged with attempted murder and the killing was deliberate, willful, and premeditated, you could face a life imprisonment sentence with the possibility of parole.
A conviction of an attempted crime can have adverse consequences to your immigration status. Certain crimes can lead to an immigrant being labeled inadmissible or deported if found guilty. These offenses include aggravated felonies and crimes of moral turpitude. The state’s criminal law dictates that if you are guilty of an attempted offense and the intended crime could have led to being labeled inadmissible or deportation, the attempt would lead to the same punishment. Therefore, if you are convicted of trying to commit an aggravated felony or a crime of moral turpitude, you will face detrimental immigration consequences.
A conviction for an attempted crime may also adversely impact your gun rights. The state’s law provides that some offenses, for instance, felonies, will lead to the accused losing their legal right to possess or own a firearm. If you were caught attempting to commit any of these crimes, you would lose your firearm rights. But if an intended offense does not lead to the loss of gun rights, the attempt would not either.
The good news is that you can have your conviction record of an attempted crime expunged. You have the right to expunge your conviction record if you complete either your county jail term or probation, whichever applies. Keep in mind that you do not have the right to an expungement if you were sentenced to state prison instead of jail. PC 1203.4 says that a conviction record expungement releases a person from most of the challenges linked to a conviction.
Attempted Crime Charges Require a Solid Defense Strategy, Just Like The Target Crime
At times you may try to commit an offense without knowing it, meaning you lacked the intent to commit the crime. Remember that one of the elements the prosecution must prove for a conviction to occur is the specific intent to execute the crime. Therefore, if you did not know you were attempting to perpetrate a criminal act, the judge cannot find you guilty since you did not intend to execute the underlying offense. Lacking the intent to carry out the underlying criminal offense is one of the legal defenses to attempted crime charges. Other legal defenses include:
You Did Not Make a Significant Step Towards Committing The Target Offense
Note that you are only guilty of an attempted crime if you took a direct, ineffectual step towards committing the intended crime, for instance, telling another person about the offense or simply buying supplies meant to be utilized in the execution of the offense. This means if you can always argue, as a legal defense, that you did not do this act. It could be, for instance, your actions only rose to the level of thinking of or planning a crime.
The Legal Impossibility Defense
You can argue the legal impossibility defense if facing attempt charges. Legal impossibility occurs when someone completes all their intended action, but the sum of their actions does not amount to an offense. Put otherwise; you seek to do an act that is not, in fact, illegal.
On the contrary, if you try committing an offense that is merely not possible anymore (the means required to effectuate the offense are unavailable or the subject matter has been destroyed), you cannot argue the legal impossibility defense as a valid legal defense against your attempted crime charges.
Some of the legal impossibly examples include:
- Hunting a deer— say you shoot a stuffed deer believing it was an actual deer. Assume also that the act of hunting deers is unlawful in California. In this case, you have not committed any crime by shooting a stuffed deer since the law does not illegalize shooting stuffed deer.
- Going fishing— say you go fishing to a lake you believe is illegal and prohibited. You come to realize that fishing is not prohibited in that lake. In this case, you cannot be prosecuted for a criminal offense of attempted or completed fishing.
- Receiving stolen property— assume you receive a stolen item but find out the item is not actually stolen. In this case, you have not committed any crime because the item was not stolen, and therefore, the legal impossibility defense would apply.
In the mentioned examples, these acts you do or intend to do would, in fact, not be an offense, and thus, legal impossibility could be argued as a legal defense against attempt charges. The legal liability defense can eventually relieve you of criminal responsibility.
The Crime You Were Attempting to Commit Does Not Include Intent as One of the Required Elements
As we discussed above, almost all offenses have an element of specific intent. But, the state's law recognizes given malice crimes as well as strict liability offenses, whereby committing the wrongful act in itself eliminates the requirement for specific intent to be there. An attempted crime falls short of an offense related to these forms of strict liability offenses or offenses where explicit intent is not a necessary element of the target crime.
The Abandonment Defense
Abandonment is a valid defense to attempt charges where you show that, even though you may have had the intention to commit an offense (and took a step towards executing it), you abandoned or withdrew from your actions.
This defense seeks to show that you changed your mind and aborted your plan to commit an offense. However, keep in mind that the withdrawal or abandonment ought to be voluntary for this legal defense to work. You cannot abandon an offense only because you believe you will be caught.
Your Identity Was Mistaken for Another Person
Various factors may lead to the victim or eyewitness misidentifying the actual perpetrator of a crime. With the help of your lawyer, you can raise the mistaken identity defense by establishing an alibi. If you have a valid alibi that places you in a different place when the supposed attempted crime was committed, and you have witnesses to verify the alibi, the judge should not convict you. It could be that the victim or eyewitness misidentified you because of poor lighting, anxiety, stress, limitation in their memory, and many other factors.
The Prosecutor Has Insufficient Poof
Remember, we mentioned that the prosecution must prove two elements beyond a reasonable doubt for the judge to convict you of an attempted offense. If it fails to prove even one element, the judge may be convinced that there is no sufficient evidence to convict you. Your lawyer could poke holes in the prosecution’s evidence, enough to make the judge discredit the proof and drop the charges against you.
The Police Made an Unlawful Arrest in Violation of Your Constitutional Rights
The state’s search and seizure laws protect the residents against unreasonable intrusion by law enforcement officers based on the Fourth Amendment to the United States Constitution and state law. The Fourth Amendment rule prohibits a police officer from executing a search or seizure without a valid search warrant. If an officer searches your person or property or seizes your property without a search warrant, the search or seizure is deemed illegal, so is the evidence obtained. If you have been accused of an attempted crime after the police conducted an unlawful search, your lawyer can seek to have the illegally-acquired proof excluded from trial by filing the motion to suppress.
These are just a few legal defenses that apply to attempted crime charges. Additional defenses could be available based on the underlying crime and the facts and circumstances surrounding your crime.
You Can Face Attempt Charges Together or Alongside Another Crime
In California, various crimes are related to attempt charges. This means the prosecution can charge you with another crime alongside or instead of attempt charges. The relationship arises because the crimes share various elements. Crimes related to attempt charges include:
PC 653f, Solicitation
PC 653f makes it an offense to solicit a person or require them to commit various crimes. Unlike an attempted crime, the person accused of solicitation is not trying to violate a law. They are asking someone else to do so.
If you violate PC 653f, you will be punished based on what crime you are supposed to have required another person to commit. For instance, soliciting a person to sell or transport an illegal drug is a misdemeanor punishable by six months in jail and a maximum fine of one thousand dollars. Soliciting a person to commit a forcible sex offense is a felony punishable by a maximum fine of ten thousand dollars and four years in prison.
PC 182, Conspiracy
Penal Code 182 is the state's law that describes the crime of conspiracy. You commit conspiracy if you agree with one/several other people to commit an offense, and one of you does something to further the agreement. The primary differences between conspiracy and attempting to commit a crime are:
- A step towards furthering criminal conspiracy need not be as direct as a step that furthers an attempted crime, and
- Attempting to commit an offense does not need any agreement with someone else
Regarding the first point, preparation is sufficient to further the criminal conspiracy, while it is insufficient to further an attempted crime.
Conspiracy to commit a felony is punishable by whatever consequences the underlying felony carries. By this, it means if, for instance, you are guilty of conspiracy to commit rape, you will be subject to a prison sentence of up to eight years, which is the punishment for rape. If you conspired to commit two or several crimes, you would face the consequences for the crime with the most severe consequences.
PC 31, Aiding and Abetting
PC 31 makes it a crime for you to encourage, facilitate, or aid in the commission of an offense. Again, unlike attempt charges, the accused in an aiding and abetting case is not technically attempting to violate a law. Instead, they commit an offense because they help someone else commit a crime.
If you are found guilty of aiding and abetting, you will be considered a principal to the offense and are subject to the same consequences and penalties as though you personally committed the crime. The only exception to this rule applies to murder charges.
Find an Experienced Criminal Defense Lawyer Near Me
Irrespective of whether the prosecution has charged you with an attempted or completed offense, a skilled criminal attorney at Los Angeles Criminal Lawyer can assist you in understanding and protecting your rights. We know the ins and outs of California's legal system, and we can assist you in navigating even the most severe crimes if prosecuted in Los Angeles. To know much about how we can help you, please call us at 310-502-1314 right away.
