GGPDE_2020-38_Attempted_Completed_Crimes_2176826

JACKIE LACEY DISTRICT ATTORNEY LOS ANGELES COUNTY DISTRICT ATTORNEY’S OFFICE ONEMINUTE BRIEF COPYRIGHT © 2020 LOS ANGELES COUNTY DISTRICT ATTORNEY’S OFFICE. ALL RIGHTS RESERVED. MAY BE REPRODUCED FOR NON -COMMERCIAL PROSECUTORIAL, LAW ENFORCEMENT AND EDUCATIONAL PURPOSES ONLY . 1MB@da.lacounty.gov NUMBER : 2020-38 DATE : 11-05-20 BY: Devallis Rutledge TOPIC : Attempted/Completed Crimes ISSUE : Can a defendant be convicted of an attempt to commit a crime, even when the evidence establishes that the crime was in fact completed? Per PC § 664, most attempts to commit crimes are punishable by one-half the sentence prescribed for the target crimes (except as provided in other statutes, and for attempted murders, which have specifically -prescribed punishments). But police officers, prosecutors, magistrates, judges or jurors may occasionally make the mist ake of viewing the evidence as proving only an attempt to commit a particular crime, when the evidence as established clearly shows that the crime was actually committed by the defendant. In such circumstances, can a conviction for attempt be upheld? In most cases, the short answer is, “Yes.” “Any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was perpetrated by such person in pursuance of such attempt, unless the court, in its discretion, discharges the jury and directs such person to be tried for such crime.” PC § 663. “Under section 663, a defendant can be convicted of an attempt to commit a crime, even though the crime was completed . Further, evidence tending to prove that the crime was completed, even though not absolute proof of the crime of attempt, gives rise to a reasonable inference that the perpetrator intended to commit that crime.” People v. Rundle (2008) 43 Cal.4th 76, 138, fn. 28, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22. ● For example : Wesley John Robins was the getaway driver for a woman who went into This information was current as of publication date. It is not intended as legal advice. It is recommended that readers check for subsequent developments, and consult legal advisors to ensure currency after publication. Local policies and procedures regarding application should be observed. LADA ONE -MINUTE BRIEF NO. 20 20-38 PAGE 2 a store and shoplifted “a large quantity of clothing.” When the woman was confronted outside by the store’s loss -prevention officer, both she and Robins used force or threats against the LPO to try to retain the clothing, which they ultimately discarded before jumping into their waiting vehicle and speeding a way. This converted the theft into an “Estes robbery” (see 1MB 2008 - 04: the use of force to retain stolen property or to escape apprehension during asportation elevates a theft to a robbery. People v. Estes (1983) 147 Cal.App.3d 23). The preliminary hearing magistrate mistakenly held Robins to answer only for attempted robbery (apparently because defendants were unsuccessful in escaping with the goods) ; the prosecutor tried Robins only for attempted robbery; and he was convicted of atte mpted robbery . Affirming Robins’ conviction on appeal , the Court of Appeal first pointed out that the evidence actually showed a completed Estes robbery, because once force or fear is used in an effort to retain stolen property or to escape , the Estes robbery is complete , “even if the thief is ultimately unsuccessful in escaping with the goods.” People v. Robins (2020) 44 Cal.App.5th 413, 419. Next, citing PC § 663, the court ruled that “commission of the completed robbery does not preclude conviction of the attempted robbery….” Id., at 422. ● Courts are required to give jury instructions on attempt as a lesser -included offense of a charged crime if supported by the evidence. People v. Breverman (1998) 19 Cal.4th 142, 154; CALCRIM 460. However, courts should not give jury instructions on attempts where the nature of the charged crime precludes a viable attempt charge. People v. Johnson (1996) 51 Cal.App.4th 1329, 1332 ( there is no such crime as “attempted involuntary manslaughter ”); People v. Bean (1989 ) 213 Cal.App.3d 639, 642 (no such crime as “attempted petty theft with a prior ”); In re Kent W. (1986) 181 Cal.App.3d 721, 724 (no such crime as “attempted reckless causing of a fire ”); and In re James M. (1973) 9 Cal.3d 517, 522 ( “no such crime as attempted assault ”). BOTTOM LINE : Except where an attempt to commit a crime is not a logical or legal possibility, a defendant may be convicted of an attempt to