California Attempted and Completed Crimes

When the district attorney files charges, the difference between an attempted crime and a completed crime controls nearly every downstream decision, from bail arguments to plea bargaining leverage to the final sentence that a judge can lawfully impose. California recognizes attempt liability because the Legislature wants to punish dangerous conduct even when outside forces, such as police intervention, a jammed firearm, or a victim’s unexpected resistance, prevent the harm the defendant intended. However, the distinction between attempted and completed crimes in California ensures that penalties are typically reduced when no actual harm results, reflecting the lower level of moral culpability.

Understanding how attempted crimes are charged and sentenced is a crucial aspect of navigating the criminal process. Defense attorneys must carefully analyze each element to protect clients from overly harsh outcomes and leverage reduced culpability in negotiations.

California codifies the crime of attempt in Penal Code § 21a, which requires two components:

• Specific intent to commit the target offense.
• A direct but ineffective step that goes beyond preparation and would have completed the crime “but for” an outside interruption.

Under the statute, merely making plans, buying supplies, or “casing” a location is not enough. The act must unequivocally demonstrate commitment, as defined under California's attempted and completed crimes law, for example, pulling the ski mask over one’s face while advancing toward the teller window. Once a defendant crosses that line, later abandonment is no defense.

Section 664 is the backbone of California’s penalty scheme for inchoate offenses. Its key provisions include:

• General Rule. If the completed offense is punishable in state prison, the attempt is punishable by one-half of the term prescribed for the consummated crime.
• Misdemeanors. Attempts to commit misdemeanors carry one-half of the county jail term otherwise authorized.
• Fine-Only Offenses. A fine may not exceed half of the maximum fine for the completed crime.
• Crimes Punishable by Life Imprisonment or Death (excluding murder). An attempt is punished by five, seven, or nine years in state prison.
• Willful, Deliberate, Premeditated Attempted Murder. Life imprisonment with the possibility of parole.
• Attempted Murder of Protected Persons (peace officers, firefighters, custody staff). Life with the possibility of parole, and if premeditated, 15 years to life.

Because these sentencing rules are statutory, judges have no discretion to exceed the maximum or fall below the mandatory minimums, unless a specific alternative program, such as Mental Health Diversion, applies.

The Judicial Council’s model instruction for “Attempt Other Than Murder” distills § 21a into jury language:

• Direct Step. The act must “go beyond planning or preparation and show that a person is putting the plan into action.”
• Intent. Jurors must find the defendant specifically intended to bring about the target crime, even if the completed offense would otherwise be a general-intent crime (e.g., arson or rape).
• Abandonment. Evidence that the defendant abandoned the plan after the direct step is irrelevant unless abandonment occurred before that direct step.
• Factual Impossibility. It is no defense that the crime was impossible under the facts (e.g., the “victim” was an undercover officer).

These points often generate fertile cross-examination. For instance, surveillance video may show a defendant walking toward a burglarized storefront but turning around before attempting to touch the lock, an ambiguous behavior that might be argued as mere preparation rather than a direct step.

A crime is complete when every legal element, act, intent, and causation has occurred. Consider these examples:

• The moment a shoplifter passes all points of sale with concealed merchandise, commercial burglary is complete.
• When a drug seller hands fentanyl to a buyer in exchange for cash, the sale of a controlled substance is complete even if police immediately arrest both parties.
• In crimes involving injury (battery, murder), completion requires that the victim suffer the prohibited harm, bodily injury, or death.

If any element is missing, no property is removed, no money is exchanged, and no injury is inflicted, the charge drops into the attempt territory. The prosecution may still proceed, but the evidentiary focus shifts to intent and the direct step.

• CALCRIM 460 Attempt (Non-Homicide). This instruction tracks § 21a and is read in cases like attempted burglary, attempted robbery, or attempted grand theft auto. Jurors learn that solicitation, fantasy, or equivocal acts do not suffice; they must pinpoint a definitive move toward the crime.
• CALCRIM 600 Attempted Murder. Because murder has unique mental-state requirements, CALCRIM 600 highlights:
  • Express malice. A conscious intent to kill.
  • “Kill zone” doctrine—liability for secondary victims within the lethal zone created to murder a primary target.
  • No transferred intent. Unlike completed murder, implied malice will not support attempted murder.

The instruction also references § 663, confirming that a defendant may still be convicted of attempt even if evidence shows the killing occurred, so long as the court chooses not to discharge the jury.

Because § 664 sets only the base term, practitioners must also evaluate enhancements and alternative sentencing statutes:

• Weapon Use Enhancements. A firearm used in an attempted robbery can add 10 years (Pen. Code § 12022.53(b)) or even 20 to 25 years to life, depending on the discharge.
• Great Bodily Injury. If an attempted assault causes serious injury, § 12022.7 can add 3 to 6 years, even though the underlying crime remains an “attempt.”
• Gang Enhancements. Attempts committed “for the benefit of, at the direction of, or in association with” a gang can add 2 to 10 years under § 186.22(b).
• Strike Consequences. Attempts to commit a serious or violent felony are counted as strikes under the Three Strikes law, which doubles the sentence for future offenses and requires at least 80 percent of the sentence to be served in custody.

Sentencing courts must first select the appropriate triad (e.g., five/seven/nine) or halve the completed-crime triad (e.g., two/four/six becomes one/two/three) under California's sentencing rules for attempted and completed crimes. They then add or maintain enhancements as per Penal Code § 654 and California Rules of Court, Rule 4.420.

Even though the prison exposure is lower, attempt convictions can carry severe side effects:

• Professional Licensing. California boards often treat an attempt the same as the completed offense when the underlying crime shows moral turpitude (e.g., burglary for contractors, fraud for nurses).
• Immigration. Many aggravated felony and crime-involving-moral-turpitude provisions in 8 U.S.C. § 1227 apply equally to attempts.
• Restitution. Victims may claim restitution for actual losses (such as broken doorframes and medical bills) even when the intended harm did not materialize.
• Firearms Prohibition. A felony attempt triggers the lifetime firearm ban in Penal Code § 29800.

Defense counsel must therefore examine not only time in custody but also downstream impacts on a client’s career, status, and finances.

Skilled defense practice in the Los Angeles Superior Court often turns on undermining one of the § 21a elements:

• Lack of Specific Intent. Showing the client acted recklessly, impulsively, or under duress can defeat specific intent.
• No Direct Step. Demonstrating that the alleged act was still in the “planning” phase can compel dismissal or at least reduce the charge.
• Factual Impossibility vs. Legal Impossibility. While impossibility is usually not a defense, if the act, even if thoroughly carried out, would not constitute a crime (legal impossibility), acquittal is required.
• Abandonment Before Direct Step. Evidence that the client voluntarily ceased the plan before crossing the line can negate liability altogether.
• Entrapment. Overbearing police inducement may shield a defendant who otherwise lacks predisposition.

Each theory demands early investigation, cell-tower records, surveillance footage, and social-media context to craft a narrative that resonates with judges and juries in downtown Van Nuys or the Airport courthouse. An aggressive motions practice under Penal Code § 995 can also force the prosecution to reveal deficiencies before trial.

Prosecutors often file both the attempted and the completed counts in the alternative, knowing one will be dismissed at sentencing. Strategic engagement before the first court appearance can:

• Persuade the filing deputy to select the less serious attempt charge.
• Secure own-recognizance release by emphasizing the lower statutory maximum.
• Preserve diversion eligibility where the completed crime would be statutorily excluded.
• Document mitigating facts, addiction treatment, and mental health diagnoses, crucial for probation office recommendations.

Because every courthouse, from Clara Shortridge Foltz to East Los Angeles, has distinct local practices, retaining counsel familiar with both courthouse culture and the intricacies of § 664 is critical to maximizing favorable outcomes.

If you or a loved one faces accusations of an attempted or completed crime in Los Angeles County, swift action can dramatically influence the result. Former prosecutor Michael Kraut leverages more than 14 years of experience inside the District Attorney’s Office to identify weaknesses in the state’s evidence and capitalize on the sentencing advantages that § 664 provides.

Call (323) 464-6453 or use our secure online contact form for a confidential, 24-hour consultation. Your defense begins the moment you choose experienced counsel committed to protecting your freedom and future.