Attempted Crimes: Penal Code § 664 PC and Penal Code § 21(a) PC

Understanding Attempt Crimes in California

Crimes involving attempt are among the most misunderstood offenses covered under the California Penal Code. Not only is it inconceivable to many that one can be charged with a crime if the alleged offender abandons the plan and walks away without actually committing the underlying action, additionally, it is easy to confuse the crime of attempt with those of solicitation and conspiracy.

Elements of Attempt

Under PC 21(a), there are two elements of the crime of attempt:

• The specific intent to commit a California crime, and
• The taking of a direct but ineffective step towards the commission of that underlying crime.

Specific Intent and Direct Step

Specific intent is an important factor. It is impossible to be convicted of attempting to commit an unintentional crime, which means acts based on negligence or recklessness are excluded as attempt crimes. Consequently, for example, there is no such offense as attempted involuntary manslaughter.

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Legal Scenario: What Would You Do?

Scenario

You were arrested outside a jewelry store after police found bolt cutters and a ski mask in your bag, even though you never actually entered the store or took anything. The prosecutor is now charging you with attempted burglary under Penal Code § 664 and § 459.

How can I be charged with a crime I never actually committed?

Attorney's Answer

Under California Penal Code § 664, a person can be convicted of an attempt crime if they had the specific intent to commit the offense and took a direct but ineffective step toward completing it — this goes beyond mere preparation. Penal Code § 21(a) defines an attempt as requiring both intent and a direct, unequivocal act toward the commission of the crime, meaning the prosecution must prove you moved past planning into action. The penalties for an attempted crime are typically half the sentence of the completed offense, though attempted murder carries its own sentencing structure. A strong defense would challenge whether your actions truly constituted a 'direct step' rather than mere preparation, which is a critical distinction that can mean the difference between a conviction and a dismissal.

This is general information only. Contact us for advice specific to your situation.

The direct step must be something other than mere planning or preparation. In prosecuting attempt crimes, district attorneys look to unambiguous steps beyond planning that move the defendant towards the crime, and ones that had not an intervening event occurred would have led to the commission of the underlying crime. Even if the accused abandons the plans after taking a direct step towards the crime’s commission, the case may be prosecuted.

Penalties