F 6.00

F 6.00 n1 Whether Factual Impossibility Precludes Conviction For Attempt (PC 21a & PC 664).

It has been reasoned that an attempt to commit a crime should not be punished if success was “obviously impossible” — such as an attempt to kill another by witchcraft. (See Perkins and Boyce, Criminal Law (3d Ed. 1982) Ch. 6, § 3, p. 628.)

However, in California it has been held that if the defendant had the specific intent to complete the target crimes, the impossibility of completing the crimes does not exonerate him from attempting those offenses. (Hatch v. Superior Court (2000) 80 CA4th 170 [94 CR2d 453].) As the court in People v. Meyers (63) 213 CA2d 518, 523 [28 CR2d 753], stated: “The courts of this state have not concerned themselves with the niceties of distinction between physical and legal impossibility, but have focused their attention on the question of the specific intent to commit the substantive offense. The hypothesis of the rule established in this state is that the defendant must have the specific intent to commit the substantive offense, and that under the circumstances, as he reasonably sees them, he does the acts necessary to consummate the substantive offense; but because of circumstances unknown to him, essential elements of the substantive crime are lacking. [Citations.] It is only when the results intended by the actor, if they happened as envisaged by him, would still not be a crime, then and only then, can he not be guilty of an attempt.”

Thus, a defendant may be found guilty of attempted receipt of stolen property although the property is in fact not stolen (People v. Rojas (61) 55 C2d 252, 258 [10 CR 465]), of attempted possession of a controlled substance although the substance is in fact talcum powder (People v. Siu (54) 126 CA2d 41, 43-44 [271 P2d 575]) and of attempted rape if he intended to rape a live person although unbeknownst to him the victim was dead (People v. Thompson (93) 12 CA4th 195, 202-203 [15 CR2d 333]); see also People v. Reed (96) 53 CA4th 389 [61 CR2d 658] [defendant was guilty of attempted molestation of a child under 14 (PC 664/288, subd. (a)) although his intended victims did not in fact exist but were instead fictitious constructs of a detective posing as the mother of 12- and 9-year-old victims].)

In sum, “[a] defendant is guilty of an attempt if the evidence shows he had the specific intent to commit the substantive offense and under the circumstances as he believed them to be took actions to consummate the substantive offense, even though circumstances unknown to him made completion of the substantive offense impossible.” (Hatch, 80 CA4th at 187; see also People v. Thompson, supra, 12 CA4th at 203; compare People v. Rizo (2000) 22 C4th 681 [94 CR2d 375] [defendant guilty of completed offense when impossibility related to a matter which was not an element of the offense].)

See also FORECITE F 4.033 n1.

RESEARCH NOTES

See Annotation, Impossibility of consummation of substantive crime as defense in criminal prosecution for conspiracy or attempt to commit crime, 37 ALR3d 375 and Later Case Service.

F 6.00 n2 Attempt: Distinction Between Solicitation And Attempt.

Mere acts of solicitation are not sufficient to constitute an attempt. (People v. Lafontaine (78) 79 CA3d 176 [144 CR 729]; People v. Adami (73) 36 CA3d 452 [111 CR 544].)

There is much confusion over the distinctions between solicitation, attempt and conspiracy. Under the Model Penal Code a solicitation may be a “substantial step in a course of conduct planned to culminate in [the] commission of the crime” for the purpose of proving an attempt. (Model Penal Code § 5.01(1)(c) and (2)(g) (1962).) There is some disagreement with this view, however. The Memorandum to Virginia Model Jury Instructions — Criminal, Attempts and Solicitations No. 6, states, “[s]olicitation does not amount to a direct act towards the commission of the crime….Where the inciting to crime does proceed to the point of some overt act in the commission of the offense, it becomes an attempt….” (Citing Wiseman v. Commonwealth (25) 130 SE 249 [143 Va. 631]. Emphasis added.) However, others are of the opinion that mere solicitation is not enough of an overt act to constitute an attempt. As stated by Perkins, “[t]he usual statement is to the effect that, although a few cases have held otherwise, a solicitation is not an attempt….” (R. Perkins, Perkins on Criminal Law, p. 525 (2d ed. 1969.) A more definite distinction can be drawn when the solicitor does not merely solicit another to commit the crime, but plans to actually assist in the commission of the crime. In these instances there is a specific intent to commit the crime, which may rise to the level of attempt. To prove solicitation, one must only show the solicitor intended someone else to commit the crime. “The solicitation of another to commit a crime is an attempt to commit that crime if, but only if, it takes the form of urging the other to join with the solicitor in perpetrating that offense, — not at some future time or distant place, but here and now, and the crime is such that it cannot be committed by one without the cooperation or submission of another, such as bribery or buggery. Where such cooperation or submission is an essential feature of the crime itself, the request for it now is a step in the direction of the offense.” (Id.)

(See also FORECITE F 6.35 n4.)