California Penal Code 664 and Law of Attempts

In this article by Darren Chaker, California penalizes the attempted commission of crimes. Criminalizing an attempt to make a terrorist threat is consistent with the rationale behind punishing attempts throughout California’s penal law.

One of the purposes of the criminal law is to protect society from those who intend to injury it. When it is established that the defendant intended to commit a specific crime and that in carrying out his intention he committed an act that caused harm or sufficient danger of harm, it is immaterial that for some collateral reason he could not complete the intended crime. (People v. Camodeca (1959) 52 Cal.2d 142, 147.)

The purpose of the law of attempts is to punish offenders who intend to commit a crime and make a direct, unequivocal act in furtherance of its commission, but are unable to complete the substantive crime because they fail or are somehow prevented or intercepted. (People v. Dillon (1983) 34 Cal.3d 441,453-455; People v. Meaders (1983) 148 Cal.App.3d 1155,1159.) Section 21a states, “[a]n 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.” (See also People v. Carpenter (1997) 15 Cal.4th 312, 387; People v. Marshall (1997) 15 Cal.4th 1, 36.) The act undertaken toward commission of the offense must be more than mere preparation and “must be a direct movement after the preparation that would have accomplished the crime if not frustrated by extraneous circumstances.” (People v. Carpenter, supra, 15 Cal.4th at p. 387; accord, People v. Memro (1985) 38 Cal.3d 658, 698.) If criminal intent clearly appears, only slight acts in furtherance of the criminal design are necessary to constitute an attempt. (People v. Memro, supra, 38 Cal.3d at p. 698.)

Section 664 provides in part: “Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts….” We punish attempts to commit the vast majority of substantive crimes. (People v. Carpenter, supra, 15 Cal.4th at p. 387 [attempted rape]; People v. Mayfield (1997) 14 Cal.4th 668 [attempted murder]; People v. Reed (1996) 53 Cal.App.4th 389 [attempted molestation of a child]; People v. Kinsey (1995) 40 Cal.App.4th 1621 [attempted injury upon a cohabitant]; People v. Lewis (1993) 21 Cal.App.4th 243 [attempted manslaughter]; *15 People v. Valencia (2001) 86 Cal.App.4th 201 [attempted burglary]; People v. Mullins (1992) 6 Cal.App.4th 1216 [attempted kidnaping]; People v. Meaders (1983) 148 Cal.App.3d 1155 [attempted subornation of perjury].)

However, courts have also found some crimes may not be attempted because the elements of the offense conflict with the specific intent element required for an attempt (People v. Johnson (1996) 51 Cal.App.4th 1329 [no crime of attempted involuntary manslaughter because one cannot intend to commit an unintentional killing]; In re Kent (1986) 181 Cal.App.3d 721 [no crime of attempted recklessly causing a fire because one cannot intend to unintentionally cause a fire]) or because the language of the statute indicates the Legislature intended to punish certain attempts and purposefully omit other attempts (In re James M. (1973) 9 Cal.3d 517, 522 [no crime of attempted assault because Legislature chose to criminalize attempts, coupled with a present ability to commit a violent injury on the person of another, and chose to not criminalize attempts without a present ability]). This Court has not often been persuaded to limit the law of attempts. (People v. Dillon, supra, 34 Cal.3d at p. 453.)

The nature of attempts is that they are always less than the completed crime. The purpose of punishing attempts is to protect society from the completed criminal acts the offender intends to commit. (People v. Dillon, supra, 34 Cal.3d at pp. 453-455.) An offender is not required to satisfy every element of the substantive offense. (People v. Carpenter, supra, 15 Cal.4th at p. 387 [[attempted rape does not require touching]; People v. Mayfield, supra, 14 Cal.4th at p. 769 [attempted murder does not require a death]; People v. Kinsey, supra, 40 Cal.App.4th at p. 1627 [attempted injury upon a cohabitant does not require a traumatic condition].

[A]ttempted subordination of perjury does not require perjury ( *16 People v. Meaders (1983) 148 Cal.App.3d 1155 [197 Cal.Rptr. 1]), attempted detention and concealment of children does not require detention or concealment (People v. Milne (1882) 60 Cal. 71), and attempted drunk driving does not require driving (People v. Garcia (1989) 214 Cal.App.3d Supp. 1 [262 Cal.Rptr. 915]). People v. Kinsey, supra, 40 Cal.App.4th at p. 1627.)

In fact, an offender may be convicted of an attempt even if none of the elements of the underlying crime have been satisfied. (People v. Dillon, supra, 34 Cal.3d at p. 453.) All that is required is that the offender have the specific intent to commit the crime and makes a direct act towards committing the offense, which demonstrates the offender is “putting his or her plan into action.” (People v. Kipp (1998) 18 Cal.4th 349, 376; People v. Carpenter, supra, 15 Cal.4th at p. 387.)

Impeachment With Prior Felony Conviction

As illustrated by Darren Chaker in other articles, under Article I, section 28, subdivision...

Penal Code Section 1203.4 are Convictions for Immigration Purposes

Darren Chaker found when a conviction is expunged, under 1203.4(a), does not change the...

California Fourth Amendment Waiver

An improper term of probation should be challenged, per Darren Chaker. Regardless of the...