Attempt Law & Defense
The law on the crime of attempt is found at California penal code section 664. Most attempt crimes use the code section for attempt (664) followed by the code number for the crime that is attempted. For example, the criminal code section for murder is PC 187(a); therefore, the code section for attempted murder is PC 664/187(a).
The crime that is attempted is also called the target crime. For example, in the crime of attempted murder, the target crime is murder. To attempt a crime means the defendant tried, but failed, to actually commit the target crime.
To prove that the defendant is guilty of an attempt crime the prosecutor must prove that the defendant took a substantial step towards the commission of the target crime, coupled with the specific intent to complete the target crime. In other words, attempt crimes have both a physical element and a mental element.
For example: If a defendant stabs a person, with the specific intent to kill that person, but that person does not actually die, the defendant could be charged with attempted murder under PC 664/187(a).
However, if a defendant stabs a person with the specific intent to injure the person, and the person stabbed does not die, the defendant should not be charged with attempted murder because the defendant did not have the specific intent to kill the person, but rather, the intent to injure the person.
A substantial step towards the commission of the target crime means that the defendant had to have done something, beyond mere preparation, that demonstrates the defendant's intent to commit the target crime.
For example, if the defendant intends to burglarize a house, and he or she actually tries to open the door of a house, while intending to commit that burglary, the defendant should be charged with attempted burglary (PC 664/459) because opening a door to a house while, intending to burglarize that house would be considered a substantial step towards the completion of the target crime (the burglary). On the other hand, if the defendant intends to burglarize a house, but does nothing more than drive around a neighborhood looking for a house to burglarize, the act of driving around the neighborhood would not likely be considered a substantial step towards the target crime, and therefore, attempted burglary should not be charged in this situation.
The substantial step towards the commission of the target offense is always considered on a case by case basis.
Sentence for Attempt Crimes
If a person is found guilty of an attempt crime, he or she may face up to half the jail or prison sentence of the target crime.
For example: Felony welfare fraud carries a prison sentence of up to three years. Therefore, if a person is convicted of felony attempted welfare fraud, the defendant may face up to eighteen months in prison because eighteen months is half of three years.
The "half" equation is applied to all criminal charges for attempt crimes except attempt murder. For the sentence associated with an attempt murder conviction (PC 664/187), please see information on attempted murder.
Attempt crimes can be classified as either misdemeanors or felonies depending on what crime the defendant was attempting to commit.
For example, the crime of attempted robbery, charged under PC 664/211, is classified as a felony, because the underlying crime of robbery is classified as felony.
This is also true for the classification of a crime as being a Three Strike Crimes or a non-Three Strike crime. For example, the crime of perjury (PC 118) is a non-strike felony crime, therefore, the crime of attempted perjury (PC 664/118) is also a non-strike crime.
Probation Sentence: A probation sentence is a period of supervision (in lieu of jail or prison). Probation sentences for attempt crimes may be summary probation (for misdemeanor convictions) or felony probation (for felonies). Probation sentences carry terms of probation that must be followed in order to stay out of jail. Probation sentences, split prison sentences, and suspended prison sentences, might be allowed in some attempt crimes convictions. Whether or not a probation sentence, a split prison sentence, or a suspended prison sentence is available upon a conviction of an attempt crime depends largely on the target crime that was attempted and the defendant's criminal history.
Moral Turpitude: Most attempt crimes are considered moral turpitude crimes. Crimes of moral turpitude are crimes that are considered morally wrong. Crimes of moral turpitude carry extra consequences for licensed professionals and immigrants. Licensed professionals, such as doctors, dentists, lawyers, nurses, etc., may have his or her professional licensed suspended or revoke upon a conviction for an attempt crime; non-United States citizens may be deported from the U.S. or denied reentry upon a conviction for an attempt crime.
Other punishments for attempt crimes may include: loss of rights (including the loss of the right to own or possess a firearm for felony attempt crimes), harsh probation or parole terms, civil lawsuits, restraining orders, mandatory classes (DUI, NA, anger management, etc.), mandatory registration (gang, arson, sex, and drug crimes), and more.
Defense to PC 664/
Common defenses to attempt charges include insufficient evidence to prove specific intent, insufficient evidence to prove a substantial step towards the crime, insanity, statute of limitations, intoxication, self defense, defense of others, mistake of fact, coerced confessions, illegal search and seizure, claim of rights, and more.
For more information on the common defenses to PC 664 crimes, please visit defenses.
To learn more about California attempt crimes, and PC 664, contact our experienced criminal defense attorneys today for a free consultation. Our successful attorneys have defended hundreds of felony and misdemeanor crimes, including PC 664 attempt crimes. We are available seven days a week to explain your rights and review your defense options. Call today!
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Other Common Attempt Crimes
- PC 664/207 Attempt Kidnapping
- PC 664/261 Attempted Rape
- PC 664/484 Attempted Theft
- VC 664/10851(a) Attempted Vehicle Theft