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The definitions for attempt crimes vary from state to state, but generally, attempted offenses occur when an individual has an actual intent to commit a crime (in legal terms, specific intent), and takes direct action towards completion of the crime. Typically, an individual will have failed to complete the crime, but this is not necessarily required. One common example of an attempted crime would be attempted murder, where an individual must have the intent to kill another individual, then take action towards that end but fall short of actually doing so.

Because, by their vary nature, attempt crimes are typically incomplete, establishing the intent of an individual is often the key to securing a conviction. Thus, in the example above, it is important to note that it would not be enough for an individual to intend only harm or even serious harm to a victim, for purposes of an attempted murder conviction.

In some jurisdictions, the actions or acts taken for an attempted crime must go beyond "mere preparation" for the offense. However, other jurisdictions permit a conviction based on a wider range of actions taken towards completing a crime.

A common issue that arises very often for a Los Angeles criminal defense attorney is when his client is charged not with having committed a crime but with an attempt to commit a crime. Common examples of these attempted crimes are attempted murder, attempted rape, attempted robbery and attempted receiving stolen property.

These types of attempt crimes come up in many different scenarios and in this blog I discuss certain issues that are common in attempt crime cases. The information contained in this blog should not replace a consultation with a criminal defense attorney who has knowledge of your particular case. If you or a loved one is being charged attempt, you will need to discuss your with a who can advise you as to the important aspects of your case.

ELEMENTS OF ATTEMPTAn attempt crime is committed when a person forms a specific intent to commit a crime, this specific intent is coupled with a direct, act that goes towards the commission of that crime.

In order for a person to be charged with an attempt crime, that person has to do the following:

(1) Possess a specific intent to commit a criminal act; and

(2) Commit a direct act done towards the completion of that particular criminal act.

The act in furtherance of the criminal act does not need to be a major move towards the completion of that crime. For instance in a robbery it is enough that the person acquires the tools necessary to complete the robbery, that person doesn’t actually have to go to the scene of where the robbery takes place and change his mind or be stopped by the police. The crime of attempted robbery has occurred once the person forms the intent to commit the act and also obtains a gun to go do it.

Another common example usually involves undercover police officers who persuade a person to purchase what they claim to be a stolen item. Since the item is not actually stolen but belongs to the Police, the person can be charged with the crime of attempted receiving stolen property rather than actually receiving stolen property because the item was not in fact stolen.

A similar attempt crime is charged when the undercover police officer sells what is purported to be drugs to a person.

If the attempt crime is attempted murder, a person may not be charged with a varying degree of attempted murder such as first or second degree, they can however be charged with attempted voluntary manslaughter which is a lesser included crime of murder.

THE INTENT ELEMENT OF AN ATTEMPT CRIME The intent to commit a specific crime required for a criminal attempt charge to be filed must be coupled with an act in furtherance of the crime. This act must be done simultaneously to the formulation of the intent.

Intent is very difficult to prove for a prosecutor in a criminal case. How does one go about proving what is in another person’s head? Only by the other person telling them what they had in their head or by circumstantial evidence of criminal conduct. These issues arise a lot in attempt cases and that is why it is crucial to have a criminal defense attorney represent you on your case.

THE ACT ELEMENT OF AN ATTEMPT CRIMEAs stated above in addition to having the intent to commit a criminal act, the person being charged with the crime of attempt must actually take a step towards committing the criminal act in question.

The act must be overt and unequivocal. It must constitute the beginning of the consummation of the attempted crime. Mere preparation to commit a crime is not enough it must be an act that goes towards the completion of the crime. However, even a slight act in furtherance the commission of a criminal act will suffice for an attempt crime to be charged.

The general rule of thumb when evaluating whether an act constitutes an overt act in furtherance if a crime that can be considered for an attempt crime to be charged is as follows: Would the act ordinarily result in the completion of the crime, except for the interruption by some outside force?

If the answer is yes then the crime of attempt may be charged. Prior to answering this question about your particular case, it is best to consult a criminal defense attorney who will know how to best advise you.

PUNISHMENT FOR ATTEMPT CRIMES The various punishments and sentencing ranges for attempt crimes depends on the punishment prescribed for the crime attempted. Logically a person is in much bigger trouble if he is being charged with the crime of attempted murder than if that same person was being charged with attempted receiving stolen property or attempted possession of a controlled substance.

The ranges punishments for attempts to commit crimes are set out in the California Penal Code and vary just as much as the punishments for the actual crime attempted.

Some crimes are governed by the California penal code specifically. Most however are not, and the general rules of punishments for attempted criminal acts are as follows:

An attempt to commit a willful, deliberate, and premeditated murder, as is punishable by imprisonment in the state prison for life with the possibility of parole.

If the attempted murder is on a police officer, then the attempted murder is generally punishable by imprisonment in the state prison for life with the possibility of parole;

An attempt to commit any other criminal act for which the maximum sentence is life imprisonment or death is punishable by imprisonment in state prison for five, seven, or nine years;

An attempt to commit a criminal act for which the maximum penalty is not life imprisonment or death, is punishable by imprisonment in state prison for one-half the prison term for the attempted crime;

An attempt to commit a criminal act for which the punishment is imprisonment in county jail is punishable by imprisonment in county jail for no more than one-half the jail term for the attempted crime; and

An attempt to commit a crime for which the punishment is a fine is punishable by a fine of no more than one-half the largest fine that can be imposed for the attempted crime.


RCW 9A.28.020Criminal attempt. (1) A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime.

     (2) If the conduct in which a person engages otherwise constitutes an attempt to commit a crime, it is no defense to a prosecution of such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission.

     (3) An attempt to commit a crime is a:

     (a) Class A felony when the crime attempted is murder in the first degree, murder in the second degree, arson in the first degree, child molestation in the first degree, indecent liberties by forcible compulsion, rape in the first degree, rape in the second degree, rape of a child in the first degree, or rape of a child in the second degree;

     (b) Class B felony when the crime attempted is a class A felony other than an offense listed in (a) of this subsection;

     (c) Class C felony when the crime attempted is a class B felony;

     (d) Gross misdemeanor when the crime attempted is a class C felony;

     (e) Misdemeanor when the crime attempted is a gross misdemeanor or misdemeanor.

Completing a crime is usually needed before you're charged and possibly convicted. Back out before finishing, and you can't be found guilty. However, did you know certain acts done in preparing for a crime can be crimes themselves? These are called inchoate crimes.

Inchoate crimes, also called incomplete crimes, make certain acts illegal even though no actual harm's done. Inchoate crimes serve to punish and deter people from crime. Three main inchoate crime types are: Attempt Conspiracy Solicitation Criminal Attempt

Criminal attempt is trying to commit a crime and failing. This is often seen as the most serious inchoate crime because the person may have came close to completing the crime. For example, a person that shoots to kill another but misses may be charged with attempted murder. If his aim was better and he succeeded, the charge would be murder.

Criminal attempt has three main elements: Specific intent Actions to commit the crime Failure to commit the crime

A criminal attempt charge requires a person to have had specific intent to commit the actual crime. If the crime almost happened by accident, it's not attempt. For example, a hunter who almost shoots another person must have intended to kill for it to be attempted murder.

Actions close and connected to the crime are also required. It can't be just acts that prepare for the crime. For example, if you buy a gun, thinking about a bank robbery in a few months, your acts are probably too far removed from the actual crime to amount to attempted robbery. However, if you drove to a bank to rob it and you're arrested before leaving the car, you've gone far enough to commit attempted robbery.

Failing to commit the crime is the last element. Once the crime is done, you're charged with the actual crime, and not attempt. Criminal Conspiracy

Criminal conspiracy is when two or more people agree to commit a crime. This crime is used to charge multiple people planning or doing illegal activities. Conspiracy is different because you can be charged with the actual crime and the conspiracy to commit it. For example, if you plan with others to kill someone, you can be charged with murder and conspiracy to commit murder.

Criminal conspiracy main elements are: Two or more people Agreement to commit a crime An overt or open act to carry out the plan

You can't be charge with conspiracy unless someone else agrees to commit the crime. In many states, proof of the agreement is enough to charge everyone involved. Some states require an overt act towards carrying out the plan, such as buying needed materials. Criminal Solicitation

Criminal solicitation is when one person commands, encourages or asks another to commit a crime. A common example is prostitution. The crime is complete when one person asks another to commit an illegal act.

Solicitation main elements are: Intent to have someone else commit a crime An act to induce the other person

In order to charge someone with solicitation, the person must have the specific intent to try to induce another person to commit a crime. He must also commit some act to induce the other person, such as using certain key words or phrases specific to the crime. A person can't be charged with the actual crime solicited and criminal solicitation. Defenses to Inchoate Crimes

There are defenses to inchoate crimes. These vary by state laws and crime type. Common defenses include: Abandonment Legal impossibility Factual impossibility

Abandonment means you completely and voluntarily stop all actions towards completing the actual crime. For conspiracy, you also have to try preventing the crime from happening. Do this by informing the police in time or doing something to stop the crime.

Legal impossibility means what the person intends to do isn't actually a crime. For example, if a person intends to shoot a target on a tree but misses and almost hits someone, it's not attempted murder since his intention isn't illegal.

Factual impossibility means circumstances made it impossible to commit the intended crime. These are usually circumstances the person attempting the crime isn't even aware of. For example, if a person tries to shoot someone with a broken gun. Most states don't allow this defense since the person still has the specific intent to commit an illegal act. Questions for Your Attorney

Can a person be charged with criminal attempt every time he tries to commit a crime but fails? If I'm involved in a drug dealing conspiracy, what can I do to avoid punishment if I decide what I am doing is wrong? If a spouse attempts to poison her husband but accidentally uses a substance that isn't toxic, will the defense of factual impossibility prevent her from being charged with attempted murder?

A person is guilty of an attempt to commit a crime when such person, with the intention to actually commit the crime, does an act which is a substantial step toward the commission of the crime, but not the actual commission of the crime.  Therefore, an attempt to commit a crime consists of two elements:

(1) an intent to engage in crime; and

(2) a conduct constituting a substantial step towards commission of the crime.

A statute may forbid an attempt to commit a specified crime.  An attempt to commit a crime, when punishable, is an offense that is separate and distinct from the crime that was attempted.  To qualify as a substantial step, something more than mere preparation should be done.  Preparation alone, or a mere statement of the person’s intent to commit a crime, is not sufficient to constitute an attempt.  However, the step should be lesser than the actual commission of the crime.  To establish attempt, the alleged conduct must support the person’s criminal intention to commit the crime.  The person must have engaged in some activity that is a substantial portion of the crime.  An attempt must be an action on the part of the person that comes very close to the accomplishment of the desired results.  A person who fails to commit the attempted crime is also regarded to have attempted to commit the crime.

Intent is an important element when determining whether an attempt to commit a crime has occurred.  The person making the attempt should have the intention to complete the acts that constitutes the crime.  It is the intent to commit the crime, not the possibility of success that determines whether the person’s act or omission constitutes the crime of attempt.  A person can be convicted for an attempt to commit a crime only when such person has a direct and specific intent.  Therefore, acts done as a result of negligence or recklessness cannot be considered as an attempt to commit the crime as there is no intention to commit the crime



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