California Criminal Jury Instructions (CALCRIM) (2017)

460. Attempt Other Than Attempted Murder

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E. ATTEMPT
460.Attempt Other Than Attempted Murder (Pen. Code, § 21a)
[The defendant is charged [in Count ] with attempted
<insert target offense>.]
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant took a direct but ineffective step toward
committing <insert target offense>;
AND
2. The defendant intended to commit <insert target
offense>.
Adirect step requires more than merely planning or preparing to
commit <insert target offense> or obtaining or arranging
for something needed to commit <insert target offense>. A
direct step is one that goes beyond planning or preparation and shows
that a person is putting his or her plan into action. A direct step
indicates a definite and unambiguous intent to commit
<insert target offense>. It is a direct movement towards the commission
of the crime after preparations are made. It is an immediate step that
puts the plan in motion so that the plan would have been completed if
some circumstance outside the plan had not interrupted the attempt.
[A person who attempts to commit <insert target offense>
is guilty of attempted <insert target offense> even if, after
taking a direct step towards committing the crime, he or she abandoned
further efforts to complete the crime or if his or her attempt failed or
was interrupted by someone or something beyond his or her control. On
the other hand, if a person freely and voluntarily abandons his or her
plans before taking a direct step toward committing
<insert target offense>, then that person is not guilty of attempted
<insert target offense>.]
To decide whether the defendant intended to commit
<insert target offense>, please refer to the separate instructions that I
(will give/have given) you on that crime.
[The defendant may be guilty of attempt even if you conclude that
<insert target offense> was actually completed.]
New January 2006; Revised August 2013, February 2015
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BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the crime of attempt
when charged, or, if not charged, when the evidence raises a question whether all
the elements of the charged offense are present. (See People v. Breverman (1998)
19 Cal.4th 142, 154 [77 Cal.Rptr.2d 870, 960 P.2d 1094].)
If the jury is instructed on attempted criminal threat, give the following third
element, as required by People v. Chandler (2014) 60 Cal.4th 508, 525 [176
Cal.Rptr.3d 548, 332 P.3d 538], along with CALCRIM No. 1300, Criminal Threat.
3. The intended criminal threat was sufficient under the circumstances to
cause a reasonable person to be in sustained fear.
If an attempted crime is charged, give the first bracketed paragraph and choose the
phrase “this crime” in the opening line of the second paragraph. If an attempted
crime is not charged but is a lesser included offense, omit the first bracketed
paragraph and insert the attempted target offense in the opening line of the second
paragraph.
Give the bracketed paragraph that begins with “A person who attempts to commit”
if abandonment is an issue.
If the attempted crime is murder, do not give this instruction; instead give the
specific instruction on attempted murder. (People v. Santascoy (1984) 153
Cal.App.3d 909, 918 [200 Cal.Rptr. 709]; see CALCRIM No. 600, Attempted
Murder.)
Do not give this instruction if the crime charged is assault. There can be no attempt
to commit assault, since an assault is by definition an attempted battery. (In re
James M. (1973) 9 Cal.3d 517, 522 [108 Cal.Rptr. 89, 510 P.2d 33].)
If instructing on attempt to escape, see People v. Bailey (2012) 54 Cal.4th 740,
748–752 [143 Cal.Rptr.3d 647, 279 P.3d 1120] [specific intent to escape and intent
to avoid further confinement required].
AUTHORITY
• Attempt Defined. Pen. Code, §§ 21a, 664; People v. Toledo (2001) 26 Cal.4th
221, 229–230 [109 Cal.Rptr.2d 315, 26 P.3d 1051].
• Conviction for Charged Attempt Even If Crime Is Completed. Pen. Code,
§ 663.
Secondary Sources
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, §§ 56–71.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, § 141.20 (Matthew Bender).
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RELATED ISSUES
Insufficient Evidence of Attempt
The court is not required to instruct on attempt as a lesser-included offense unless
there is sufficient evidence that the crime charged was not completed. (People v.
Aguilar (1989) 214 Cal.App.3d 1434, 1436 [263 Cal.Rptr. 314]; People v. Llamas
(1997) 51 Cal.App.4th 1729, 1743–1744 [60 Cal.Rptr.2d 357]; People v. Strunk
(1995) 31 Cal.App.4th 265, 271–272 [36 Cal.Rptr.2d 868].)
Legal or Factual Impossibility
Although legal impossibility is a defense to attempt, factual impossibility is not.
(People v. Cecil (1982) 127 Cal.App.3d 769, 775–777 [179 Cal.Rptr. 736]; People
v. Meyer (1985) 169 Cal.App.3d 496, 504–505 [215 Cal.Rptr. 352].)
Solicitation
Some courts have concluded that a mere solicitation is not an attempt. (People v.
Adami (1973) 36 Cal.App.3d 452, 457 [111 Cal.Rptr. 544]; People v. La Fontaine
(1978) 79 Cal.App.3d 176, 183 [144 Cal.Rptr. 729], overruled on other grounds in
People v. Lopez (1998) 19 Cal.4th 282, 292–293 [79 Cal.Rptr.2d 195, 965 P.2d
713].) At least one court disagrees, stating that simply because “an invitation to
participate in the defendant’s commission of a crime consists only of words does
not mean it cannot constitute an ‘act’ toward the completion of the crime,
particularly where the offense by its nature consists of or requires the requested
type of participation.” (People v. Herman (2002) 97 Cal.App.4th 1369, 1387 [119
Cal.Rptr.2d 199] [attempted lewd acts on a child under Pen. Code, § 288(c)(1)]; see
People v. Delvalle (1994) 26 Cal.App.4th 869, 877 [31 Cal.Rptr.2d 725.)
Specific Intent Crime
An attempted offense is a specific intent crime, even if the underlying crime
requires only general intent. (See People v. Martinez (1980) 105 Cal.App.3d 938,
942 [165 Cal.Rptr. 11].) However, an attempt is not possible if the underlying
crime can only be committed unintentionally. (See People v. Johnson (1996) 51
Cal.App.4th 1329, 1332 [59 Cal.Rptr.2d 798] [no attempted involuntary
manslaughter].)
461–499. Reserved for Future Use
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