Penal Code 21: Attempt Crimes in California

I. PC 21: Attempt Crimes

Legal Definition: An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.

To be found guilty under PC 21, the prosecution must prove that:

1. You took a direct step toward committing the target crime, but you were unsuccessful;

AND

2. You had intended to commit the target crime that you were unsuccessful in attempting.

II. What does this mean?

An attempt crime requires the ability to make a step towards committing the act. Simply discussing or planning to commit the crime, does not apply as a step towards the act. For example, you call a friend and decide you want them to assist you with robbing a bank. This, by itself, is not an attempted crime. Merely discussions, or talks, is not sufficient to show you made the sufficient steps necessary to commit that crime.

If you actually successfully commit the crime, then you would not be charged with an attempted crime. Instead, you would be charged for the underlying offense, not an attempted crime. A direct step is defined as something that goes beyond mere preparation for or planning a crime. It can move from planning to an actual attempt crime based on whether you follow through with actions that lead towards completion of the crime, even if it isn’t a completed crime yet. For example, for an attempted Robbery charge, purchasing a gun, getting duct tape, and scoping out the place you plan to rob, would be an attempt. Merely discussing a robbery is more akin to a Conspiracy crime, not an Attempt crime.

III. Penalties

You cannot be charged, by itself, with an Attempt crime, so there is not an actual punishment for it. Instead, an Attempt crime is essentially ½ of the punishments you could face for the underlying offense. For example, an Attempted violation under PC 288(a), which is normally a 3, 6, or 8 year State Prison Sentence, but would instead be an 18 month, 3, or 4 years in State Prison, if it was an Attempt Crime.

This also applies to the fines you face, so if your fine for the underlying offense is $1000, your max fine for an attempted version of that crime would only be $500. Whether this is a strike offense under the Three Strikes Law, depends on the crime attempted. This is the same for people who are not citizens in the United States dealing with Immigration issues or for people looking for Professional License affects are all based on the underlying crime.

IV. Common Defenses

1. Statute of Limitations
2. Violation of Rights
3. Insufficient Evidence
4. Entrapment

If you abandon the crime, during the attempt, there is a chance that the abandonment can act to prove there is insufficient evidence to find you guilty of the crime. This can happen if you plan with another to commit a crime, and then don’t make a substantial step towards completing the crime, and instead have a change of heart. You cannot simply walk away, as the attempted crime has already taken place. Instead, you have to show that you freely and voluntarily gave up your plan to commit the crime before taking the direct step towards the commission of that offense. Once the plan is set into motion, you can no longer abandon the crime, as the attempt is done.

This can happen if, let say you do rob a place, and when you go in, pull out your gun, you see a police officer inside. Then you change your mind and run. At that point, you’ve already gone into the substantial step towards commission, and cannot abandon now. It would be too late at that point. If you did complete that robbery, then on the way outside, you change your mind and return the money stolen, then you wouldn’t be charged with an attempt crime, but the completed crime itself. At that point, you’ve committed that robbery, even if you change your mind after doing it. You cannot be charged with an Attempt crime and the underlying offense together, it’s either you did it, or failed to complete the act. But you would still be liable for a criminal charge.

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