ATTEMPT CRIMES IN CALIFORNIA REQUIRE MORE THAN MERE PREPARATION
A recent decision of the California First District Court of Appeal provides a welcome refresher course concerning the crime of attempt. The case reinforces the principle that an attempt under California law requires more than mere preparation to commit a crime – there is no offense except when the defendant commits an unequivocal act or acts that, unless frustrated by some external circumstance, would result in the accomplishment of the intended offense.
In an article authored by Ted Cassman & Raphael Goldman published and posted by Mary Frances Prevost on http://www.californiacriminallawyerblog.com, Cassman and Goldman offer an in depth analysis as to the ruling which established that Attempt Crimes in California Still Require an Unequivocal Act beyond Mere Preparation.
In People v. Luna, No. A119768, __ Cal. Rptr. 3d __, 2009 WL 106660 (Jan. 15, 2009), the court considered the case of Manuel Luna, who was found driving a car that contained piping, glue, fittings, butane, a butane burner and approximately $1200 in cash – that is, all of the things necessary to manufacture hashish except for one crucial ingredient: “grocery bags full of marijuana.” Id. at * 1. Luna testified at trial that he bought the equipment with the intention of manufacturing hashish, but claimed that he never attempted to purchase marijuana after acquiring the equipment. Id. Luna was convicted under Penal Code § 664 of attempting to manufacture hashish in violation of Health & Safety Code § 11379.6.
“The elements of a criminal attempt are “[(1)] a specific intent to commit the crime, and [(2)] a direct but ineffectual act done toward its commission.” Id. at *2 (citing Penal Code § 21a; People v. Toledo 26 Cal. 4th 221, 229 (2001)). The Luna court observed that the first element was not in question because the appellant testified that it had been his intention to manufacture hashish when he purchased the equipment. Id. Thus, the key dispute [wa]s the second component of an attempt crime. That is, whether appellant’s actions had progressed to the point where they could be considered a direct but ineffectual act done towards [the crime’s] commission, i.e., an overt ineffectual act which is beyond mere preparation yet short of actual commission of the crime. Id. (quotation marks omitted, second alteration in original).
The Luna court noted the principle that “[w]here the intent to commit the crime is clearly shown, an act done toward the commission of the crime may be sufficient for an attempt even though that same act would be insufficient if the intent is not as clearly shown.” Id. at *3 (quoting People v. Bonner, 80 Cal. App. 4th 759, 764 (2000)). Nonetheless, even under that minimal standard, the court found evidence against Luna to be insufficient to support the attempt conviction.
The case turned on the question of whether Luna’s acts were merely preparation to commit a crime, or instead constituted a course of conduct that would have resulted in the commission of a crime absent some external intervention. The Luna court relied heavily on guidance from the California Supreme Court distinguishing mere preparation from acts that constitute attempt:
[T]here is a material difference between the preparation antecedent to an offense and the actual attempt to commit it. The preparation consists of devising or arranging the means or measures necessary for the commission of the offense, while the attempt is the direct movement toward its commission after the preparations are made. In other words, to constitute an attempt the acts of the defendant must go so far that they would result in the accomplishment of the crime unless frustrated by extraneous circumstances.
Id. (quoting People v. Memro, 38 Cal. 3d 658, 698 (1985); emphasis in original). The Luna court noted in an aside that California therefore departs from the Model Penal Code and jurisdictions that follow its standard; those jurisdictions permit a conviction for attempt premised upon mere preparatory acts, but in California such acts are insufficient. Id. at *3 n.1.
The prosecution argued in favor of affirmance, relying on cases in which courts of appeal affirmed convictions for manufacturing methamphetamine when the defendants had completed only portions of the manufacturing process. Id. at *4 (citing People v. Lancellotti, 19 Cal. App. 4th 809 (1993)). The Luna court, however, distinguished its case from those cases involving incomplete manufacturing processes: “while the manufacturing process need not be complete, it must at least be started.” Id. at *5 (emphasis in original).
The court found “no act – not even a slight act – on the part of appellant that goes beyond preparation and can be regarded as an unequivocal overt act which can be said to be a commencement of the commission of the intended crime.” Id. (quotation marks omitted). When Luna was arrested, he had no ability to manufacture hashish – in large part because he had not yet acquired a necessary ingredient, marijuana. Id. The court acknowledged that “the line between preparation and an attempt is often indistinct.” Id. But it had no trouble discerning the line here: this line has not been crossed where the prosecution’s evidence shows that a defendant is still engaged in preparatory acts and that there is a complete inability to take even initial steps toward producing the finished product. After all, “planning the offense” and “devising, obtaining or arranging the means for its commission” are merely aspects of preparation. Id. (quoting People v. Dillon, 34 Cal. 3d 441, 452 (1983)). “[T]he acts undertaken by appellant were too preliminary to indicate with any certainty that ‘a crime [was] about to be consummated absent an intervening force . . . .’” Id. (quoting Dillon, 34 Cal. 3d at 454-55).
The Luna case serves as a check on the expansion of criminal liability. Even though it was undisputed that the defendant intended to break the law, his conduct was still deemed to be at a preliminary stage. It was preparatory only, because further preparation was necessary – i.e., the purchase of a necessary ingredient – before he could actually attempt to manufacture hashish. The court reached a just result, and one that is worth keeping in mind when our clients are accused of attempt.
By Ted Cassman & Raphael Goldman
Posted On: January 29, 2009 by Mary Frances Prevost