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Attempted Crime

Not all criminal behavior is followed through to completion. An attempted crime, however, can still result in damaging legal charges. Often, an attempt to commit a given crime is treated with the same severity by the court as the completed crime. Those accused of attempting to commit a crime are in no way exempt in their need to retain an experienced attorney to handle the charge. An attempt crime charge is every bit as serious as being charged with the crime itself, making a lawyer equally necessary under both circumstances. Many times, the fact that the crime was not followed through to completion was usually the result of unforeseeable, outside circumstances. For this reason, the court is inclined to treat the case with the same gravity as if the crime had been successfully committed. They are not inclined to show a great deal of mercy to the accused on account of incompletion.

In order to defend yourself against an attempted crime charge and ensure all of your rights are protected in court, you must consult with a knowledgeable California criminal defense attorney who has successfully defended such charges in the past. Attorney Lynn Gorelick has represented those charged with crimes in California for over 30 years. Her entire career has been devoted to criminal defense. After a thorough investigation into your charges, she is prepared to explore all available legal avenues to defend against them. The sooner you retain an attorney to fight the attempted crime charge, the better your chances of beating it.

What Is An Attempted Crime?

In criminal law, an attempt is defined as the combined intent to commit a crime and substantial actions taken in the effort to complete it. The charge applies in cases where the crime did not ultimately occur, but there is evidence of intent and conduct toward completing it. California law characterizes such conduct as "an ineffectual act done toward commission [of the crime.]" The reason why the crime did not ultimately occur may vary widely, including the following scenarios:

  • Crime may simply have failed, despite the best efforts of the orchestrating individual
  • Crime was ultimately prevented by a third-party including law enforcement or the victim themselves (where applicable)
  • Crime was abandoned despite substantial steps already having been taken toward completing it

In the absence of a "guilty act," the accused can be prosecuted solely on the basis of their criminal intent and steps they took toward completing it. Although punishment may be less severe in some cases, precisely because the accused did not complete the crime, other cases may see a punishment of equal severity. This could depend greatly on the judge, jury, and jurisdiction of the case.


With intent being one of the two major prongs of prosecution, it is worth questioning how the prosecutor would go about proving some as abstract and intangible as intent. There is sometimes only a thin line between intent and conduct because a great deal of intent can be inferred from conduct. For example, if the attempted crime is burglary and the accused is shown on camera trying to pick the lock of the home, this could be construed as intent in addition to criminal conduct.

As a crime of specific intent, an attempt to commit a crime cannot be inferred from acts of recklessness or negligence. In the absence of specific intent the accused is not guilty. This happens when the actions that were interpreted as criminal intent and conduct actually occurred by mistake, oversight, or ignorance. For example, in a case of attempted shoplifting, the accused is seen doing homework at a bookstore where they were also looking at a number of books. While repacking their backpack, the person unknowingly puts one of the store's books in their bag, mistaking it for one of their own textbooks. They are stopped by the store's security guard. Ultimately, they are not guilty of attempted petty theft because they did not actually intend to steal anything.

A"Direct But Ineffectual Step"

Under California law, a direct step must:

1. Indicate a definite and unambiguous intent to commit the target offense; and

2. Be an immediate step that puts the plan to commit the offense into motion, so that the plan would have been completed if some outside circumstance had not interrupted it.

Defenses to Attempted Crime Charges


Because the prosecution's argument hinges on the establishment of intent and conduct, your criminal defense attorney will attempt to refute either of these tenents, or both if possible. After consulting with your attorney, they will investigate the ins and outs of your case, seeing if it is possible to raise the argument of no concrete intent. Without intent to commit the crime, you are not guilty of the attempted crime charge. Even if the prosecution points to steps that were taken in the alleged interest of committing the crime, your defense attorney may be able to argue that the act was inadvertent, accidental or done without the knowledge that it was criminal in nature.

The prosecution cannot convict you for a crime committed unintentionally, and this fact can be a great service to those charged with attempted crimes, if circumstances provide evidence for this argument. Although attempted crime charges depend greatly on the element of intent, proven intent on its own will not win a conviction. If there were no concrete and substantial steps taken toward committing the crime, this could constitute a defense to the charge. Even if a person thinks about, discusses, and mentally plans a crime robbery, for example but ultimately never takes any tangible steps toward committing it, such as purchasing a gun, enlisting a getaway driver, etc, the prosecution may not be able to convict him or her on the basis of their thoughts and intent alone. There is no punishment for thinking about doing illegal things. Only if and when the state has reason to believe the person is about to go through ith committing the crime do they hope to intervene. They are not interested in prosecuting every "fizzled out' criminal intention or thought their citizens have ever had, even if there is some record of that intent.

It should be noted that preparation to commit a crime may or not be viewed by the court as a substantial step. In the robbery example, scoping out the exit routes of a bank or the positioning of its security cameras may be considered preparation that does not rise to the level of a "substantial step."

Penalties For Attempted Crimes in California

The California Penal Code states that a convicted attempt to commit a crime can be punished by a prison sentence up to half the maximum sentence of the completed crime. It may also be punished by a fine up to half the maximum fine for the completed crime. This will vary by the crime, of course. If the crime carries a normal penalty of up to 5 years in prison and a fine of $10,000, a conviction for attempting the same crime could result in, at maximum, 2 and a half years in prison and a fine of $5,000.

Some crimes such as murder and attempted murder will carry understandably steep penalties. Attempted murder under certain circumstances could still carry a life imprisonment sentence. If the crime carries a potential sentence of either life in prison or the death penalty, the maximum sentence will be five (5), seven (7) or nine (9) years in California state prison. If one is convicted of attempting either willful, deliberate and premeditated murder, or the murder of a peace officer, firefighter or custodial officer, they may be sentenced to life in state prison with the possibility of parole. Alternatively, they will receive a sentence of fifteen (15) years to life in state prison, and will not be eligible for parole until they have served at least 15 years of the sentence.

Difference Between Conspiracy and Attempt

Attempted crime is distinct from conspiracy or solicitation to commit a crime. Although these offenses are related and similar in certain aspect, they are legally distinct. Under California law, a conspiracy is when: an agreement is made between one or more parties with the specific intent to commit a crime, and any person involved in the agreement commits an overt act in furtherance of the agreement, but not the crime itself. Both conspiracy and attempt rely on the component of an overt act or substantial act made in the interest of the crime, however indirectly. While attempted crime charges are usually levied against a single person who acts alone in the furtherance of their unique intent, a conspiracy charge can be levied against two or more people who have agreed to commit a crime after at least one of them takes a step committing it If the crime is successfully toward completed then the charge of conspiracy does not apply, and the group of those involved will be charged with the crime itself and not the conspiracy to complete it.