Individuals in some situations undertake to carry out a crime. However, for some reason, they fail to pull off the crime. The question posed in this situation is, are the individuals criminally culpable?
Yes, they are. California’s criminal justice system does not only punish individuals who commit crimes. It also punishes the attempt to commit an offense. Taking action to carry out a crime, albeit unsuccessful, is an attempted crime and a criminal offense. Therefore, it is never a defense that you did not commit a crime just because it was unsuccessful. As you will see detailed in this article, an attempted crime attracts adverse consequences if convicted. Therefore, having a criminal defense attorney is pivotal for your defense in an attempted crime case.
Attempted Crimes Under Law
The word attempt points to a non-actualized crime. Prosecutors rely on intent and direct action towards committing the crime. It also follows that an accidental act does not amount to attempting to commit a crime. This is because accidental actions lack intent.
Under PC 664, you will only be found guilty of an attempted crime if it is proven that:
- You intended to commit a crime — Intent can be specific or general. Both are considered in an attempted crime charge. General intent refers to taking action without the intent to achieve a particular objective. On the other hand, if you take action intending to realize a precise result, your intention is categorized as specific.
Additionally, prosecutors could also introduce transferred intent. This intention is evident when you intend to commit a crime against one individual but end up hurting another.
For example, you plan and attempt to kidnap a lady and shoot and injure the husband in the process. In this case, you could face charges for the attempted kidnapping of the lady and attempted murder of the husband.
- You took direct action towards committing the crime — Direct action, in this case, encompasses explicit intention and an immediate step that rolls the plan to commit a crime in motion. Therefore, thinking, planning, or preparing to execute a crime is insufficient to support the attempted charge. There should be a subsequent, direct action.
- You failed to complete the crime — Failure to complete is the critical consideration under PC 664. Actualizing the crime results in charges under the specific law you violated. An attempt is a distinct and separate offense. That means you cannot be simultaneously charged for an attempt and the actualized crime.
All attempted crimes are prosecuted under PC 664 and not the specific statute of the target crime. However, the courts also consider the precise statute to determine whether the facts in your case match what the specific law prescribes as the elements to be proven for a conviction. Further, prosecutors, informed by the facts of the case, decide which charges to pursue. Some of the standard attempted crime charges include:
- Attempted murder — Attempting to kill another. The target crime is murder, an offense under PC 187. The attempt, however, is a violation of PC 664
- Attempted rape — Refers to the use of fraud, threats, or force to have non-consensual sex with the victim. Rape is a violation of PC 261
- Attempted robbery — Making an effort to take another’s property through force or fear. If you were successful, you would have faced robbery charges under PC 211
A defendant could argue that since I failed in actualizing a crime, I’m innocent. However, your actions in the attempted crime result in negative consequences to the victim(s). Therefore, punishing you for the attempt aims to deter other individuals from engaging in similar behavior and penalizes you for the trauma or harm caused to the victim(s).
The consensus in the criminal justice system is that any attempt to commit a crime warrants punishment to prevent individuals from avoiding criminal culpability because the crime was not actualized.
Possible Penalties For Violating PC 664
A conviction for an attempted crime results in fines and/or prison sentences. The penalties are half those prescribed under the specific statute of the target crime.
Here is a look at the penalties issued in the three common attempted crimes to better understand the provisions of PC 664.
Attempted Murder
Prosecutors have to prove whether your attempt to murder another is in the first or second degree.
If you willfully acted with the premeditation of killing the surviving victim, you will be charged with attempted first-degree murder. Murder is punishable by life imprisonment without the possibility of parole.
If the victim were a peace officer or a protected individual, you would serve a minimum of 15 years.
Attempting to commit first-degree murder results in up to nine years to life in prison with the possibility of parole upon conviction. Additionally, you will have to pay restitution and a fine of up to $5,000
Attempting to commit second-degree murder results in 5, 7, or 9 years. Under PC 187, committing a second-degree murder is an offense punishable by 20 years to life without the possibility of parole.
Attempted Rape
Should the DA pursue a felony rape charge under 261, a conviction results in eight years in prison and an additional three to five years in prison if the victim suffered significant bodily harm. Therefore an attempt to commit rape will result in a four-year prison sentence and an additional one and a half to two and a half years in prison if the victim suffered great bodily harm.
Under PC 261, if the victim is a minor below 18 years, a conviction results in an 11-year prison sentence, and 13 years if the minor was below 14 years at the time of the alleged offense. It, therefore, follows if you are convicted for attempted rape on a minor who is younger than 18 years of age, you will serve a five and a half prison sentence and six and a half years in prison if the minor was below 14 years.
Attempted Robbery
Robbery is a felony under PC 211, and a guilty conviction is punishable by harsh sentences. Penalties issued for attempted robbery are equally severe.
As is the case of murder, robbery too is either in the first or second degree. Robbery in the first degree occurs if any of the following three situations are true:
- The victim was a cable car, taxi, bus, subway, trackless trolley (or of similar transportation for hire) passenger or driver
- The incident took place immediately after or when the victim was using an ATM
- The robbery took place in an inhabited trailer, boat, or house
Second-degree robbery is any robbery that fails to meet the above criteria of first-degree robbery.
You will serve up to 18 months, two or three years in prison, and part with $5,000 in fines for attempting to commit first-degree robbery. If found guilty of attempting to commit second-degree robbery, you will be sentenced to one, five, or two and a half years in prison with a fine requirement not exceeding $5,000.
You could also face sentence enhancement if the victim suffered great bodily injury, you used a gun, or you have a strike in your criminal record for a previous offense.
Additional Consequences of an Attempted Crime Conviction
While time behind bars and fines are the immediate consequences most consider, they are not the only ones. A conviction results in adverse outcomes for your citizenship status and gun rights.
Should the crime you are accused of committing fall under the deportable offenses, and you have not achieved citizenship status, you will be deported to your country of origin and marked inadmissible. This means you will be denied re-entry to the US because deportable crimes are categorized under crimes involving moral turpitude and aggravated felonies.
Examples of crimes of moral turpitude include but are not limited to burglary, murder, embezzlement, perjury, robbery, and rape. Aggravated felonies, on the other hand, include murder, rape, and kidnapping.
Under California law, an attempt to commit the above offenses is equally a deportable offense.
Additionally, California law bars felons from owning or possessing guns. If you are convicted of a felony charge for attempting to commit a crime, you will lose your gun rights. Therefore, owning or possessing a gun will be an offense.
Fighting Attempted Crime Charges
The halving of penalties for the target crimes does not eliminate the severity of a conviction's consequences. You, therefore, need to fight the charges to secure a not guilty conviction or reduced penalties should the jury find you guilty. Having an attorney for your defense increases the possibility of the best legal outcome for your case.
Defense strategies are case-specific. However, attorneys use common defenses to most attempted crimes. They include the following.
Lack of Intent to Commit a Crime
Prosecutors bear the burden of proof, and in this case, the DA should prove your intent for you to be found guilty. Failure to prove intent creates an opportunity to challenge the case under the lack of intent to commit said crime.
Abandonment of the Crime
Abandoning a crime points to you changing your mind to not proceed with actualizing the offense although you had intended to commit the offense. Your attorney should also demonstrate that your withdrawal was voluntary and not just because of the belief that you would be arrested.
Lack of Direct Action in Furtherance of the Offense
You are only guilty of an attempted crime if you took direct action to further the offense. Therefore, your attorney can challenge the DA’s case if the prosecutors fail to prove you took direct action. It can be argued you only thought or participated in the planning of the crime.
Legal Impossibility
California accepts legal impossibility and not factual impossibility defenses, with impossibility describing unexpected circumstances that prevented you from carrying out the crime.
Legal impossibility refers to a situation where a defendant believes his/her actions to be illegal when said action is not unlawful. Legal impossibility is founded on the principle that an act is not an offense unless a law exists prohibiting the act.
For example, a defendant has consensual relations with a lady he believes to be 18 years old. The defendant further believes he has committed an offense, attempted rape. In actuality, the lady is 24 years old, and there is no law prohibiting sexual relations between consenting adults. Therefore, the defendant cannot be found guilty because his belief is a legal impossibility.
Conversely, when a defendant fails to complete a crime because the facts are not as he/she believed them to be, this is a case of factual impossibility. For example, a defendant tries to rob another of his wallet. However, on putting his hand in the victim’s pocket, he discovers there is no wallet. The defendant cannot argue that he couldn't steal the wallet because the victim was not carrying one.
What Offenses are Related to Attempted Crime?
Offenses similar to attempted crime but legally distinct include conspiracy, solicitation, and aiding & abetting. Here is a more detailed look at each crime.
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Conspiracy
Conspiracy (or solicitation) and attempt are often mistaken to mean attempted crime. The two are similar in certain situations and are related. However, each is legally distinct.
California law considers conspiracy, as any agreement arrived at by two or more persons with the intent to commit a crime and a party to the arrangement, takes an overt step in furtherance of the agreement but not the offense itself.
From the above definition, conspiracy requires several parties to agree to commit a crime, and at least one takes concrete action in furtherance of the agreement but not the offense itself. On the other hand, an attempt does require an overt act in furtherance of the crime.
For example, preparation is enough to further the agreement but not the crime. Therefore, preparation is substantial in determining your guilt but not enough in an attempt case.
Additionally, like an attempt, the suspects will not be charged with conspiracy but the crime itself if the offense is actualized. Conspiracy allegations are prosecuted under PC 182.
Conspiracy to commit a crime is punishable as a misdemeanor or a felony. Misdemeanor and felony offenders receive the penalties prescribed for the underlying offense. For example, if charged with a conspiracy to commit rape, you will serve up to eight years in prison, a penalty prescribed for violating PC 261.
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Solicitation
Soliciting is encouraging, requesting, or demanding an individual take part in criminal conduct with the intention to contribute or facilitate the commission of the crime. PC 653f makes it a crime to solicit another to commit an offense.
Common examples of solicitations include:
- Tasking another to collect stolen property
- Asking a witness to falsify their testimony under oath
- Requesting another to take part in a robbery
- Asking an individual to engage in sex in exchange for money
To prove solicitation, prosecutors must prove that:
- The accused requested another to commit an offense listed under PC 653f
- The defendant intended to commit the crime
- The requested party received communication from the accused asking for their participation in the crime
The penalties issued for solicitation depend on the offense the defendant requested another to commit.
For example, suppose the defendant is accused of soliciting another to commit murder. In that case, the solicitation is a felony punishable by up to nine years in prison and a potential fine not exceeding $10,000.
You will face misdemeanor charges for solicitation of the sale or distribution of controlled substances. A conviction results in a jail sentence not exceeding six months and a potential fine of no more than $1,000.
Should the DA pursue solicitation changes for any other offense listed under PC 653f other than the two listed above, you could face misdemeanor or felony penalties upon conviction. Misdemeanors are punishable by a 12-month jail sentence while up to three years in jail for a felony conviction.
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Aiding and Abetting
Aiding and abetting is a PC 31 violation. DAs pursue PC 31 violation charges for individuals who facilitate, encourage or assist in the commission of an offense. PC 31 punishes anyone who was in on the crime. Meaning any role you played in the commission of a crime is enough to institute criminal proceedings against you, no matter how insignificant. However, mere knowledge of the crime is not adequate for a conviction for aiding and abetting.
Some of the common examples of aiding and abetting include the following.
- Driving the getaway vehicle from the scene of the crime
- Serving as a lookout as your accomplices carry out the crime
- Keeping a vehicle’s engine running to enable a quick getaway after committing the crime.
Take note: aiding and abetting is a serious offense. If convicted, you will face similar penalties as those who participated in the crime.
Contact an Experienced Criminal Defense Attorney Near Me
It is possible to be charged even if you did not commit the crime. The penalties are equally severe. Therefore, choosing the ideal attorney makes the difference in having a reasonable legal outcome. The Leah Legal team is experienced in handling criminal defense, including attempted crimes. Rely on us if you face charges for an attempted crime in Van Nuys. Contact our team today at 818-484-1100 for a free and confidential consultation.