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
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
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].
• 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,
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).
CALCRIM No. 460 AIDING AND ABETTING