Section 460 | CALCRIM (Jury Instructions)

(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].)
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).
461–499.
Reserved for Future Use
AIDING AND ABETTING
CALCRIM No. 460
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[An immediate ability to carry out the threat is not required.]
[An electronic communication device includes, but is not limited to: a
telephone, cellular telephone, pager, computer, video recorder, or fax
machine.]
[Immediate family means (a) any spouse, parents, and children; (b) any
grandchildren, grandparents, brothers and sisters related by blood or
marriage; or (c) any person who regularly lives in the other person’s
household [or who regularly lived there within the prior six months].]
New January 2006; Revised August 2006, June 2007, February 2015, February
2016, March 2018, September 2020, September 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
A specific crime or the elements of any specific Penal Code violation that might be
subsumed within the actual words of any threat need not be identified for the jury.
(See People v. Butler (2000) 85 Cal.App.4th 745, 758 [102 Cal.Rptr.2d 26