The law on the crime of attempt is found at California penal code section 664. Most attempt crimes use the penal code section for attempt (664) followed by the specific code section for the crime that is attempted. For example, the criminal code section for the crime of murder is PC 187(a); therefore, the code section for attempted murder is PC 664/187(a).

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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.

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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 (the act of trying to commit the target offense) and a mental element (the specific intent to commit the target offense).

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For example: If a defendant stabs a person (the act of stabbing), with the specific intent to kill that person (the mental element), but the victim does not actually die from the stabbing, 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 (not kill), 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 defendant only had the specific intent to injure the person.

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A substantial step towards the commission of the target crime means that the defendant has to do something, beyond mere preparation, that demonstrates the defendant's intent to commit the target crime.

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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 clear step forward 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 clear step towards the target crime of burglary, and therefore, attempted burglary should not be charged in this situation.

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The substantial step towards the commission of the target offense is always considered on a case by case basis.

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Sentence for Attempt Crimes

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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.

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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.

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The "half equation" is applied to all criminal charges for attempt crimes except attempt murder, which can be up to fifteen years in prison for first degree murder (PC 664/187(a)).

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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.

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Probation Sentence: A probation sentence is a period of supervision, with or without actual jail. Probation sentences for attempt crimes may be summary probation (for misdemeanor assault convictions) or felony probation (for felony assault convictions). Probation sentences carry terms of probation that must be followed in order to stay out of jail (work release or house arrest options may sometimes be allowed in lieu of actual jail if a jail sentence was actually ordered; this depends on the target offense, the facts of the case, and the defendant's criminal history.

 

Note: Probation sentences, split prison sentences, and suspended prison sentences, might be allowed in some attempt crimes convictions. Whether or not these options are available in any PC 664 case depends largely on the target crime, the facts of the case, and the defendant's criminal history.

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Moral Turpitude: Most attempt crimes are considered crimes involving moral turpitude. 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.

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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, and more.

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Defense to PC 664

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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, consent, claim of right, and more. For more information on the common defenses to attempt crimes, please see Defenses to Crimes.

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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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909-913-3138​

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