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.)

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For almost two decades Darren Chaker regularly has worked with defense attorneys and high net worth people on a variety of sensitive issues from Los Angeles to Dubai. With a gift of knowledge about the First Amendment and big firm expertise in brief research and writing, Darren Chaker puts his knowledge to use for law firms and non-profit organizations. When it comes to forensics and social media investigations Darren Chaker has advanced training to connect the dots where issues arise related to Twitter, Instagram, Snapchat, or Facebook, Instagram, and similar apps. When the dots need to be disconnected, Darren Chaker has extensive training in counter-forensic methods with an emphasis on network security, secure communications, combined with experience with implementing and deploying policy control, encryption, anonymization, data integrity, policy control features in large scale infrastructures. Additional training in malware analysis, Security Operating system security and hardening (Linux, Windows, Solaris), Firewalls, Intrusion detection systems, hacker, counter-hack methods, encryption, forensics, web application security is also employed for his client base. Since history is written by winners, here are a few wins: In 2005, Darren Chaker invalidated a California criminal statute aimed at suppressing speech. In Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, is a case Darren Chaker personally handled and laid the ground work to allow appellate counsel to strike down a statute based on First Amendment rights. Subsequent to winning before the 9th Circuit, the State challenged the decision before the United States Supreme Court. Darren Chaker retained a former US Supreme Court Clerk and head of United States Supreme Court litigation for a major firm, Joshua Rosenkranz. The New York attorney defeated the State's petition to review the Ninth Circuit ruling causing multiple states to rewrite their own flawed statute since they were premised the California statute Darren Chaker struck down. Darren Chaker personally litigated Chaker v. Crogan for 7 of its 10-year lifespan. Darren Chaker’s victory invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law, but also nullified a similar Washington statute as well. (De La O v. Arnold-Williams, 2006 WL 2781278) and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). The case has been cited hundreds of times and continues to be a leading authority on viewpoint discrimination. In 2010, Darren Chaker prevailed in Nathan Enterprises Corp. v. Chaker, 2010 Cal. App. Unpub. LEXIS 7604, through his counsel Timothy Coates who has prevailed multiple times before the United States Supreme Court. also prevailed for Darren Chaker where the Court of Appeal affirmed an anti-SLAPP ruling where the underlying conduct was found to have been within those protected by his First Amendment rights. In 2012 Darren Chaker prevailed on a First Amendment issue before the Texas Attorney where issued Opinion 2012-06088 where he established the right to obtain the names of peace officers regardless of undercover status. The Texas Attorney General opinion has been used as authority thousands of times by citizens and news agencies to learn more about Texas peace officers. In 2016, Darren Chaker was victorious in US v. Chaker (9th Cir. 2016) 654 F.App'x 891, 892. The ACLU, Electronic Frontier Foundation, First Amendment Coalition, Cato Institute, and the University of Florida reversed a conviction premised on First Amendment rights where blog postings were at issue. In 2017, Darren Chaker prevailed in a RICO lawsuit aimed at suppressing speech filed by San Diego attorney Scott McMillan. In McMillan v. Chaker (S.D.Cal. Sep. 29, 2017, No. 16cv2186-WQH-MDD) 2017 U.S.Dist.LEXIS 163990 the court found by blogging did not constitute extortion as no demand for money to cease blogging was made. The judge found the case to be meritless, stating in part, “The Court concludes that these factual allegations are insufficient to establish that Defendant Darren Chaker obtained something of value from Plaintiffs…. The motion to dismiss the cause of action under 18 U.S.C.§ 1962(c) filed by Defendant Darren Chaker is granted.” In 2020, San Diego attorney Scott McMillan lost a heavily litigated appeal believing the court erred in dismissing his lawsuit against Darren Chaker. Mr. Chaker was represented by former Los Angeles federal judge Stephen Larson. The Ninth Circuit in McMillan v. Chaker (9th Cir. 2020) 791 F.App'x 666, affirmed the dismissal of a RICO lawsuit premised on alleged defamation of Scott McMillan. The court stated in part, “Plaintiffs failed to allege extortionate conduct because there are no allegations that Mr. Chaker obtained property from Plaintiffs that he could “exercise, transfer, or sell. ”See Scheidler, 537 U.S. at 405. Plaintiffs’ claim also fails because there are no allegations to support the “with [Plaintiffs’] consent” element. United Bhd. of Carpenters & Joiners of Am., 770 F.3d at 843.” In sum, Scott McMillan filed a lawsuit in direct conflict with established United States Supreme Court precedent and lost – twice. Also, in 2020, Darren Chaker was sued for defamation by Las Vegas attorney Thomas Michaelides. When Darren Chaker became aware of the lawsuit, he retained Olson, Cannon, Gormley, Angulo & Stoberski to defend him. Darren Chaker found a court order Mr. Michaelides submitted to Google that was reported to Several inconsistencies were noticed on the court order submitted to Google. Most notably the court docket does not show Mr. Michaelides submitted an order to the court for the judge’s signature. The court docket does not reflect the court ever signed the order Mr. Michaelides submitted to Google. Ultimately, the Nevada court dismissed the lawsuit and sanctioned Mr. Michaelides $51,000 for suing Darren Chaker for conduct within his First Amendment rights and for filing a meritless lawsuit. See forged order and judgment against Thomas Michaelides here. Darren Chaker donates time to post-conviction relief organizations to seal arrests and convictions to increase opportunity for those who were convicted of crimes, conducts research and brief writing on First Amendment issues, and also enjoys promoting non-profit organizations such as the ACLU and various domestic violence shelters through his resources within the entertainment industry, including Jason Statham and Eric Roberts. Darren Chaker also enjoys traveling, being a phenomenal father, and forwarding his education with post graduate degree work.