SERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
F 460 Attempt Other Than Attempted Murder
TABLE OF CONTENTS
F 460.1 Attempt Other Than Attempted Murder: Title And Identification Of Parties
F 460.1 Inst 1 Attempt Other Than Attempted Murder—Title
F 460.1 Inst 2 Identification Of Prosecution And Defendant
F 460.2 Attempt Other Than Attempted Murder: Tailoring To Facts: Persons, Places, Things And Theories
F 460.2 Inst 1 Attempt: Deletion Of Argumentative And Duplicative Language
F 460.3 Attempt Other Than Attempted Murder: Language That Is Argumentative, Confusing, Etc.
F 460.3 Inst 1 No Duty To Decide
F 460.4 Attempt Other Than Attempted Murder: Burden Of Proof Issues
F 460.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 460.4 Inst 2 Attempt: Avoiding Burden Shifting Sentence Structure
F 460.5 Attempt Other Than AttSERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
F 441 NOTES
TABLE OF CONTENTS
F 441 Note 1 Whether An Attempt Charge May Be Based on A Mere Solicitation
Return to Series 400 Table of Contents.
F 441 Note 1 Whether An Attempt Charge May Be Based On A Mere Solicitation
See FORECITE F 460 Note 1.
empted Murder: Elements And Definitions [Reserved]
F 460.6 Attempt Other Than Attempted Murder: Defense Theories [Reserved]
F 460.7 Attempt Other Than Attempted Murder: Preliminary Fact Issues [Reserved]
F 460.8 Attempt Other Than Attempted Murder: Unanimity/ Duplicity/ Multiplicity [Reserved]
F 460.9 Attempt Other Than Attempted Murder: Lesser Offense Issues [Reserved]
Notes
F 460 Note 1 Whether an Attempt Charge May Be Based on Mere Solicitation
F 460 Note 2 Attempt Instruction Restates Common Meaning Of Attempt
Return to Series 400 Table of Contents.
F 460.1 Attempt Other Than Attempted Murder: Title And Identification Of Parties
F 460.1 Inst 1 Attempt Other Than Attempted Murder—Title
See generally FORECITE F 200.1.2 Note 2; CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 460.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 460.2 Attempt Other Than Attempted Murder: Tailoring To Facts: Persons, Places, Things And Theories
F 460.2 Inst 1 Attempt: Deletion Of Argumentative And Duplicative Language
*Modify CC 460 as follows:
[DELETE PARAGRAPH 4]
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 460.3 Attempt Other Than Attempted Murder: Language That Is Argumentative, Confusing, Etc.
F 460.3 Inst 1 No Duty To Decide
*Modify CC 460, paragraph 5 as follows [added language is underlined]:
To decide, if you can, 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.
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 460.4 Attempt Other Than Attempted Murder: Burden Of Proof Issues
F 460.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 460.4 Inst 2 Attempt: Avoiding Burden Shifting Sentence Structure
*Re: CC 460, paragraph 4, sentence 2, replace with:
Alternative # 1:
The prosecution is required to prove beyond a reasonable doubt that the defendant intended to commit _______________ <insert target offense> at the time he/she is alleged to have taken a direct but ineffective step toward committing that offense. If you have a reasonable doubt whether the prosecution has met this burden, you must vote to acquit.
Alternative # 2:
*Modify CC 460, Element 2 as follows [added language is underlined]:
2. When he/she did so, the defendant intended to commit __________ <insert target offense>.
Points and Authorities
See FORECITE F 404.5 Inst 1 [improper to shift burden as to an element of the charge].
F 460.5 Attempt Other Than Attempted Murder: Elements And Definitions [Reserved]
F 460.6 Attempt Other Than Attempted Murder: Defense Theories [Reserved]
F 460.7 Attempt Other Than Attempted Murder: Preliminary Fact Issues [Reserved]
F 460.8 Attempt Other Than Attempted Murder: Unanimity/Duplicity/Multiplicity [Reserved]
F 460.9 Attempt Other Than Attempted Murder: Lesser Offense Issues [Reserved]
F 460 Note 1 Whether An Attempt Charge May Be Based On A Mere Solicitation
People v. Adami (1973) 36 CA3d 452, 457 concluded that a solicitation alone is not sufficient to establish an attempt. [Adami was subsequently disapproved in People v. Superior Court (Decker) (2007) 41 C4th 1 but the Supreme Court did not resolve the question of whether a solicitation alone is an attempt. (Id. at 12.).] Other decisions, however, have held that an attempt charge may be based on a mere solicitation. (See, e.g., People v. Herman (2002) 97 CA4th 1369, 1387; People v. Delvalle (1994) 26 CA4th 869, 877.)
F 460 Note 2 Attempt Instruction Restates Common Meaning Of Attempt
The California Supreme Court has declared that CJ 6.00 [now CC 460] “merely restates the common meaning of ‘attempt.’ To attempt an act is to ‘try’ or ‘endeavor to do or perform’ the act. (Webster’s New Internat. Dict. (2d ed. 1958) p. 177.)” (People v. Cain (1995) 10 CA4th 1, 44.)
