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Criminal Defense Information for Attempt (Cal. Penal Code s. 664)

  1. What is an Attempt?
  2. What are the necessary elements to be found guilty of Attempt?
  3. What is the sentence / punishment for Attempt?
  4. What are possible defenses to charges of Attempt?
  1. What is an Attempt?

    An Attempted crime is one in which:

    1. A specific intent to commit a crime existed; and
    2. A direct but ineffective act is done toward committing the crime.

    Cal. Pen. Code s. 21a Opens in New Window.

    In other words, the defendant tried to commit a crime but failed to finish or complete the crime.

  2. What are the necessary elements to be found guilty of Attempt?

    To prove the defendant is guilty of an Attempted crime, the state must show that the defendant:

    1. Had a specific intent to commit a crime existed; and
    2. Made a direct but ineffective act toward committing the crime.

    The precise direct act required under #2 above will vary depending on the underlying crime charged.

    Cal. Pen. Code s. 21a Opens in New Window.

  3. What is the sentence / punishment for Attempt?

    Many crimes specify specific punishments for attempts to carry out the crime. As it would be too tedious to list all those here, this section will address the general penalties for Attempts.

    Cal. Pen. Code s. 664 Opens in New Window lays out the punishment for Attempts that are not specified elsewhere in the Penal Code. In general, Attempts are punishable by up to half the maximum allowable punishment for the underlying crime. Therefore, if the Attempt is for an underlying misdemeanor, the maximum sentence would be six months in jail and up to half the maximum fine for that crime.

    If the attempt is willful, deliberate, and premeditated murder, though, the sentence will be imprisonment for life with the possibility of parole. If the attempt is for any other crime where the maximum punishment is life in prison or death, the sentence for the Attempt will be five, seven, or nine years in prison.

    Additionally, if the attempted murder is against a peace officer, firefighter, or custodial officer who is on duty and the defendant should have known the victim was one of these people, the sentence will be life in prison with possibility of parole. Cal. Pen. Code s. 664 (e) Opens in New Window.

  4. What are possible defenses to charges of Attempt?

    To prove someone attempted to commit a crime, the state (through its prosecutors) must prove beyond a reasonable doubt that the defendant intended to commit the crime and that the defendant took at least one direct step in the commission of that crime. The exact "direct step" the defendant took will vary depending on the underlying crime the prosecutor alleges the defendant attempted. Therefore, defenses to any crime start with negating one or more of the elements of the crime. Additionally, some crimes allow for “affirmative” defenses which, if the defendant can prove the defense applies, will result in a verdict of “not guilty” even if the prosecutor proves the defendant met each of the elements of the crime.

    If the prosecutor can prove all the elements of the Attempt, however, the defendant must prove that one or more justifications for his actions existed (i.e., it is the defendant’s burden to prove an affirmative defense). In general, some of these justifications include:

    • Alibi;
    • Duress / Threats;
    • Necessity;
    • Accident;
    • Entrapment; and
    • Statute of Limitations.
See also, Conspiracy.