Accused Of Attempting To Commit A Crime?

San Diego Criminal Defense Lawyer

The attempt to commit a crime is itself a crime. Attempt law is designed to punish a person who tries, but fails, to commit a crime. When an individual comes dangerously close to completing a criminal act – but doesn’t in fact commit it – they may be charged with attempt.

For a criminal attempt charge to be filed, there must exist both the intent to commit a criminal act, and some action taken in furtherance of the crime. A person must go beyond just preparation to commit a crime, and cross over into actually perpetrating it. Preparation is thinking about committing a crime, talking about it, or otherwise making plans to do it, while perpetration is acting to put the plan into motion. Many people are shocked to learn that they can be convicted of attempt even if they changed their minds about committing the crime, and voluntarily abandoned the attempt.

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The Definition of “Attempt” Under California Law

San Diego criminal defense lawyer gregory garrisonAttempt law is defined in California Penal Code sections 21a, 663, and 664. There are two basic elements of attempt to commit a crime: Specific intent to commit the target crime, and a direct but unsuccessful step toward its commission.

California Penal Code 21a prohibits all attempt crimes, except attempted murder (PC 664 and PC 187). Attempted robbery, drug distribution, burglary, and battery are some examples of attempt crimes you could be charged with under PC 21a.

There must be a definite, clear intent to commit the crime that goes beyond merely thinking or talking about it. A direct step toward the commission of the crime is required – which must indicate a definite and unambiguous intent to commit the target offense – and be an intermediate step that puts the plan into motion.

Penalties For Attempt Crimes In San Diego

In California, punishment for an attempted crime is typically a sentence that equals one-half of the sentence for the completed crime. If the prosecutor proves the completed crime, the attempt crime is included – meaning that a person can be convicted of attempted murder or murder, but not both.

Exceptions Include:

  • Deliberate, premeditated attempted murder is punishable by imprisonment in the state prison for life with the possibility of parole.
  • Misdemeanor attempts are punishable in county jail by one-half of the imprisonment term prescribed upon a conviction of the underlying offense.
  • Attempts to commit crimes for which the maximum sentence is life in prison or death are punishable in state prison for five, seven, or nine years.

Defenses to Attempt

In the majority of attempt cases, there are grounds to argue that the elements of the attempted crime remain unproven. Additionally, two other defenses may be available: Abandonment and Impossibility.

Abandonment Defense

This defense applies to all incomplete – or inchoate – offenses, such as conspiracy, attempt, and solicitation. The term “renunciation” can be used interchangeably with the term “abandonment.” A defendant can assert the abandonment defense if it can be demonstrated that he voluntarily and completely withdrew from the commission of a crime before its completion. This is not considered a valid defense in instances where the defendant stopped the criminal act to avoid apprehension, decided to pursue an alternate victim, or determined that the crime was too difficult or dangerous to commit.

Impossibility Defense

The defense of impossibility applies when the defendant attempted to commit a crime, but failed to do so only because the crime was impossible to commit. This defense applies strictly to legal impossibility, and not factual impossibility situations.

Legal impossibility is traditionally considered a legitimate defense for a person being prosecuted for criminal attempt. This occurs when a defendant completes all of his intended acts, but those acts fail to fulfill all of the elements of a crime in common law. Even if the defendant believed he was violating the law – if he actually wasn’t – he has not committed a crime. The underlying rationale behind the impossibility defense is that attempting to do something that is not a crime cannot be considered an attempt to commit a crime.

On the other hand, committing an act that is considered factually impossible is not a valid defense. This applies when the facts demonstrate that the intended crime was impossible to commit, but the defendant believed that the crime was possible. Since the defendant was actually trying to commit the charged crime, factual impossibility won’t absolve him of guilt. He can still be convicted of an attempted crime – even if it was never actually possible that the crime could take place – as long as he believed that he was in fact capable of committing the crime.

Free Consultation

It’s possible to be charged with a crime, even if you failed to actually commit it. Attempt is a serious charge, and choosing the right attorney can mean the difference between incarceration and freedom. Criminal attorneys at the Law Office of Gregory Garrison are aggressive and experienced, having handled hundreds of serious criminal matters in and around San Diego County. If you are facing charges that involve an attempt to commit a crime, arrange a free consultation with a San Diego criminal defense lawyer from our firm right away.

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