LIO III(A) Whether An Attempt Is Always A Lesser Included Of The Completed Offense People v. Bailey (2012) 54 CA4th 740 includes the following passage:
In support of the claim that attempt is a lesser included offense of any completed crime, the Attorney General relies on cases that have stated generally that “it is not conceivable that any crime can be committed in the absence of an attempt to commit it.” (People v. Vanderbilt (1926) 199 Cal. 461, 463–464 [249 P. 867]; see In re Sylvester C. (2006) 137 Cal.App.4th 601, 609 [40 Cal. Rptr. 3d 461] [“attempt is a lesser included offense of any completed crime”]; People v. Meyer (1985) 169 Cal. App. 3d 496, 506 [215 Cal. Rptr. 352] [“every substantive criminal offense necessarily includes the attempt to commit it”]; but see People v. Kinsey (1995) 40 Cal.App.4th 1621, 1627, fn. 4 [47 Cal. Rptr. 2d 769]; People v. Strunk (1995) 31 Cal.App.4th 265, 271 [36 Cal. Rptr. 2d 868] [“an attempt is a specific intent crime and does not fit within the definition of a necessarily included offense of a general intent crime”].) Moreover, the Attorney General points to cases in which we reduced a general intent offense to an attempt to commit that offense. (People v. Martinez (1999) 20 Cal.4th 225, 241 [83 Cal. Rptr. 2d 533, 973 P.2d 512] [kidnapping reduced to attempted kidnapping]; People v. Kelly (1992) 1 Cal.4th 495, 528 [3 Cal. Rptr. 2d 677, 822 P.2d 385] [rape reduced to attempted rape].)
However, “[t]he law of ‘attempt’ is complex and fraught with intricacies and doctrinal divergences.” (Moorman v. Thalacker (8th Cir. 1996) 83 F.3d 970, 974.) “As simple as it is to state the terminology for the law of attempt, it is not always clear in practice how to apply it.” (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8 [58 Cal. Rptr. 3d 421, 157 P.3d 1017].) Thus, “[w]e must not generalize in the law of attempt.” (U.S. v. Berrigan (3d Cir. 1973) 482 F.2d 171, 187.) Although the above cases relied on by the Attorney General have stated or applied the general principle that attempt is a lesser included offense of any completed crime, it is not applicable here, where the attempted offense includes a particularized intent that goes beyond what is required by the completed offense.
In so ruling, the Bailey court impliedly overruled the long assumed rule that an attempt to commit a general intent crime is always a lesser included of the completed offense. (See cases cited in Bailey, above.) This is so because a general intent offense, by definition, does not include a specific intent mens rea and, therefore, an attempt to commit a general intent offense necessarily “includes a particularized intent that goes beyond what is required by the completed offense. (Ibid.)
This view is also supported by the analysis in U.S. v. Ramirez-Martinez (9th Cir. 2001) 273 F3d 903, 913-15. In that case, the Ninth Circuit held that the charges were duplicitous because they included both the completed offense (8 USC 1324 – transportation of illegal alien) and an attempt to commit that same offense. The court concluded that the completed offense and the attempt were separate and distinct crimes. “. . . [A]ttempting to transport, which requires specific intent, and actual transportation, which requires a showing of general intent, are separate and distinct crimes.” (Id. at 12627.) Accordingly, rather than merely reducing the conviction to an attempt, the court reversed all the convictions. (Ibid.) In so doing, the court effectively held that the attempt and the completed offense were not included within each other.
This distinction has been recognized in Michigan where the Michigan Criminal Jury Instructions (2nd Ed. 1998/1999 Supp.) includes the following commentary: “Because the elements of an attempt are not duplicated in the completed offense, the court need not instruct on attempt unless there is evidence indicating that only an attempt was committed. Attempt is a cognate rather than a necessarily included offense. (People v. Adams (MI 1982) 330 NW2d 634.)”
Nor does PC 1159 make an attempt a lesser included offense. It provides that the defendant may be found guilty of “any offense, the commission of which is necessarily included in that which he is charged, or of an attempt to commit the offense.” Nothing in PC 1159 recognizes an attempt as a lesser included offense. To the contrary, by use of the disjunctive term “or,” the statute indicates a recognition that an attempt is not “necessarily included” in the charged offense.
In sum, because an attempt is only a lesser offense under the “cognate evidence test” to which California does not ascribe (see People v. Birks (1998) 19 CA4th 108, 133-34), an attempt is not a lesser included offense when the intent element of the lesser offense is greater than that of the greater offense.
If it is held that an attempt is not a lesser included, this may be a two-edged sword. On appeal it certainly would benefit defendants such as Mr. Martinez who have been “convicted” of an attempt offense by the appellate court without a juror determination as to a required element of the offense. On the other hand, if an attempt is not a lesser included of the completed crime, then there is no sua sponte duty to instruct.
At trial, those defendants seeking lesser instructions may be precluded from doing so. On the other hand, defendants who want an all-or-nothing verdict may be able to do so by arguing that an attempt is not subject to theBarton (People v. Barton (1995) 12 CA4th 186) requirement of instruction even over defense objection.
NOTE: The cases have recognized that certain crimes may not be attempted; e.g., assault (In re James M. (1973) 9 CA3d 517, 521-22); involuntary manslaughter (People v. Broussard (1977) 76 CA3d 193, 196-97); reckless causing of a fire (In re Kent (1986) 181 CA3d 721, 723-24).
On the other hand, under Bailey an attempt is a lesser offense of a completed specific intent offense. (See, e.g., People v. Davidson (2008) 159 CA4th 205 [attempted murder is LIO of murder (PC 187)].)
LIO III(B) Are There Any Necessarily Included Lessers To Attempted Murder: See FORECITE F 8.66 n3.
LIO III(C) Degree Of Attempted Murder:
ALERT: See FORECITE F 8.67 n2 [Federal Constitution Requires Treatment Of Unpremeditated Attempted Murder As Separate Offense Rather Than Enhancement]. [After Douglas add:] (But see FORECITE F 8.67 n2)
PC 664(a) prescribing the punishment for life imprisonment for an attempt to commit murder that is “willful, deliberate and premeditated” does not establish a greater degree of attempted murder but, rather, sets forth a penalty provision prescribing an increased sentence to be imposed upon the defendant’s conviction of attempted murder when the additional special circumstance is found. (People v. Bright (96) 12 C4th 652, 669 [49 CR2d 732]; see also, People v. Douglas (90) 220 CA3d 544, 549 [269 CR 579].) Accordingly, PC 995 may be invoked to challenge the sufficiency of evidence to support the premeditation and deliberation enhancement when it is alleged with an attempted murder charge. (Huynh v. Superior Court (96) 44 CA4th 1261 [52 CR2d 246].) On the other hand, a jury verdict which does not specify whether or not the attempt was premeditated does not bar on double jeopardy grounds a retrial of the separate penalty allegation. (People v. Bright, 12 C4th at 671.)
Additionally, in light of People v. Wims (95) 10 C4th 293 [41 CR2d 241], there is an issue as to whether instructional errors relating to PC 664(a) are subject to the federal constitutional constraints of due process and trial by jury. (6th and 14th Amendments.) (See Bright, 12 C4th at 692, dis. opn. of Kennard, J.) [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-685.]
LIO III(D) PC 459 — Burglary: Attempted burglary is not a lesser included when the defendant’s hand actually extended inside the building. (People v. Aguilar (89) 214 CA3d 1434, 1435-36 [263 CR 314].)
LIO III(E) HS 11352 — Possession of Controlled Substance for Sale: Attempted possession of a controlled substance for sale is a lesser included offense of possession for sale when there is an agreement or contract to purchase, but the defendant never achieves actual or constructive possession of the controlled substance. (Armstrong v. Superior Court (90) 217 CA3d 535, 540 [265 CR 877].)
LIO III(F) VC 23152(a) — Attempted Driving Under the Influence May Be a Lesser Included Offense of Driving Under the Influence: Where the defendant attempted to start the car and it rolled 15-20 feet but never started, the jury could have convicted the defendant of either driving under the influence or attempted driving under the influence. (People v. Garcia (89) 214 CA3d Supp 1, 3 [262 CR 915].) In so holding, the Garcia court recognized that the provisions of PC 664 and PC 1159 regarding attempts and lesser included offenses apply to attempted crimes which are not specifically made punishable by provisions of the Penal Code but rather by provisions of the Vehicle Code or Health & Safety Code. (Garcia 214 CA3d Supp 2-3.)
LIO III(G) HS 11379.6(a) — Manufacture Of Controlled Substance: Although no case has specifically so held, presumably the possession of the raw chemicals necessary for manufacture of a controlled substance with intent to manufacture — but without commencing the manufacturing process — would be sufficient to convict the defendant of an attempt to violate HS 11379.6(a). (See FORECITE F 12.09.1 and F 12.09.3.)