What Is Criminal Attempt Under California Penal Code 664?
“California Penal Code 664” is one of the most frequently searched statute numbers in California criminal law, and for good reason — attempt liability shows up in nearly every homicide, theft, and violent-crime fact pattern on the Bar Exam. Getting the mens rea rule right here is worth more points than almost any other single doctrine in the crimes outline.
Criminal attempt, in one sentence: under California Penal Code §§ 21a and 664, attempt requires a specific intent to commit the target crime plus a direct but ineffectual act done toward its commission, going beyond mere preparation, and it always demands specific intent even where the completed crime does not.
Elements of Attempt
California codifies attempt at Penal Code § 21a, requiring:
- Specific intent to commit the underlying crime; and
- A direct but ineffectual act done toward its commission — going beyond mere preparation.
Penal Code § 664 then sets the punishment, typically calibrated to a fraction of the sentence for the completed offense, with special (often harsher) rules for attempted murder given its severity.
| Framework | Standard for the “act” element |
|---|---|
| California (§ 21a) | Direct but ineffectual act toward commission |
| MPC / modern majority | Substantial step strongly corroborating purpose |
| Common law (minority) | Dangerous proximity to success |
California’s “direct but ineffectual act” standard functions much like the substantial-step test: courts look for acts proximate to completion — lying in wait with a weapon, acquiring specialized tools, or approaching the target with the crime imminently underway — rather than remote preparatory acts like merely researching or purchasing ordinary supplies.
Attempt Always Requires Specific Intent — Even for Reckless or Malice-Based Crimes
This is the highest-yield trap in the entire topic. The mens rea of the completed crime never controls the mens rea of the attempt. Attempted murder requires intent to kill, even though murder itself can rest on depraved-heart recklessness under California’s malice-aforethought doctrine — there is no such thing as “attempted depraved-heart murder.” The attempt charge always upgrades the required mental state to purpose or knowledge as to the criminal result.
Factual Impossibility vs. Legal Impossibility
California follows the near-universal rule that factual impossibility is not a defense, while legal impossibility is a defense.
- Factual impossibility (no defense): the facts differ from what the defendant believed, but the crime would have occurred had the facts been as believed. Examples: an empty safe, an unloaded gun, baking soda mistaken for drugs.
- Legal impossibility (defense available): even if the defendant’s conduct unfolded exactly as intended, no crime would result. Example: a defendant who believes hunting season is closed, but it is actually open.
A simple test resolves nearly every fact pattern: if the facts had been as the defendant believed, would a crime have been committed? Yes means factual impossibility (no defense). No means legal impossibility (defense available).
Abandonment: Rarely a Winning Defense
Once specific intent and a direct act concur, the attempt is complete under the traditional rule, and subsequent abandonment does not undo it — it may only mitigate sentencing. A meaningful minority of jurisdictions, following the Model Penal Code, recognize complete and voluntary renunciation as an affirmative defense, but the change of heart must be genuine, not driven by fear of capture or unexpected difficulty. Bar exam hypos frequently offer sympathetic last-minute-hesitation facts precisely to test whether students will wrongly award an abandonment defense that the jurisdiction does not actually recognize.
Merger With the Completed Crime
Attempt merges into the completed offense: a defendant cannot be convicted of both attempt and the completed crime for the same conduct. If the facts show the crime was actually finished, any attempt conviction based on that same conduct must be vacated. This differs sharply from conspiracy, which never merges — a distinction tested constantly in multi-theory fact patterns.
Worked Example: Bar Exam Attempt Hypo
Facts: Believing a house is occupied, Raul breaks a window and climbs inside at night, tools in hand, intending to steal a safe he mistakenly believes is in the living room. In fact, the house is vacant and has no safe. Police arrest Raul as he searches the room.
Analysis: Raul is guilty of attempted larceny (and likely burglary as a separate crime). He had the specific intent to steal the safe, and breaking in plus actively searching for it constitutes a direct, ineffectual act well beyond mere preparation. That no safe actually existed is factual impossibility, which is no defense — the law asks whether the crime would have occurred had the facts matched Raul’s belief, and here it would have.
Common Mistakes to Avoid
- Applying the completed crime’s mens rea (recklessness, negligence) to the attempt charge instead of requiring specific intent.
- Misclassifying factual impossibility as a defense — an unloaded gun or an empty safe never excuses liability.
- Granting an abandonment defense in a jurisdiction that does not recognize it, based only on sympathetic facts.
- Forgetting that attempt requires intent as to the conduct itself, not just the result.
- Convicting a defendant of both attempt and the completed crime for identical conduct — a merger violation.
FAQ
What mens rea does California require for attempt?
Specific intent to commit the target crime — always, even where the completed crime allows a lesser mental state like recklessness. Attempted murder, for example, requires intent to kill.
Is factual impossibility a defense to attempt in California?
No. If the crime would have been completed had the facts matched the defendant’s belief, factual impossibility provides no defense — an unloaded gun or an empty safe does not excuse liability.
Can a defendant be convicted of both attempt and the completed crime?
No. Attempt merges into the completed offense, so a conviction for both based on the same conduct cannot stand; the attempt conviction must be vacated.
Key Takeaways
- California Penal Code §§ 21a and 664 require specific intent plus a direct but ineffectual act toward the crime.
- Attempt always requires specific intent, regardless of the completed crime’s mens rea requirement.
- Factual impossibility is never a defense; legal impossibility is a defense.
- Abandonment is generally not a defense once a direct act occurs, absent a jurisdiction-specific renunciation rule.
- Attempt merges into the completed offense — no dual conviction for the same conduct.
This article is educational and is not legal advice. Consult a licensed California attorney about your situation.
Related guides
- inchoate crimes in California
- California Penal Code 653f solicitation
- murder and manslaughter in California