Attempted California Sex Crimes: PC 664 Law, Penalties & Criminal Defense Lawyers: Attempt Allegations Related to CA Sex Crimes. Sex Crimes Criminal Defense Lawyers Explains Penal Code 664
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Updated: 3 days ago
This summary of attempt sex crimes discusses law, penalties, and common defense related to California attempt sex crimes (i.e., attempt rape, attempt oral copulation, etc.). For further information, contact our sex crimes criminal defense lawyers for a free case evaluation.
PC 664 “Attempt” Law
To “attempt” 'a crime means 'to affirmative take a substantial and direct step towards the commission of a target offense, couple with the specific intent to commit that target offense' (PC 664 Abbrev & Paraphrased). Mere contemplation or agreement to commit a crime is not an "attempt" to commit that crime.
Note: The California penal code for attempt definition is found at CPC 664. For attempted sex crimes, the district attorney will charge the target offense with the prefix “PC664” to designate that the allegation is an “attempted” crime.
The distinction between an attempted sex crime and a non-attempted sex crime (i.e., a completed crime) is very important, especially in terms of the punishment associated with the specific offense (See Incarceration Below).
Example: The crime of lewd and lascivious act upon a child under fourteen (PC288(a)-F) carries a maximum eight (8) year prison sentence; however, the crime of attempt lewd and lascivious act upon a child under fourteen (PC664-PC288(a)) carries a maximum four (4) year prison sentence.
Substantial Step Defined: As stated, an “attempted” sex crime requires an affirmative and substantial step element to prove the defendant’s guilt.
A “substantial step" towards the commission of the target offense means the defendant purposefully took some non-incidental action to effectuate the crime beyond mere contemplation or agreement. In other words, the action that the defendant took was significant (i.e., substantial).
Example: John is charged with attempt aggravated kidnapping to commit rape (PC664-PC209(b)). To prove John took a “substantial step” towards the commission of this sex offense, the district attorney could produce evidence that John recently purchased hand and feet restraints to effectuate disabling his rape victim.
Compare: If John merely discussed kidnapping to commit rape, without more, the district attorney would not be able to prove John took a substantial step towards the commission of PC209(b), and therefore, John’s sex crimes criminal charges should be dismissed.
A “substantial step towards the commission of the target offense” is decided on a case-by-case basis. However, the following factual allegations would likely constitute a substantial step towards the commission of the target offense:
Obtaining “Date Rape” drugs just prior to an attempt rape allegation (PC664-PC261)
Obtaining a “spy camera” just prior to an attempt “revenge porn” allegation (PC664-PC647(J)(4)).
Driving to a location to meet a prostitute in an attempted prostitution allegation (PC664-PC647(b)).
Pulling the pants off a victim in an attempt rape (PC664-PC261(a)), attempt oral copulation (PC 664-PC287), attempt sodomy (PC664-PC286), or attempt sexual penetration by object allegation (PC664-PC289).
Secreting a child from public view in an attempt lewd act upon a child under fourteen allegation (PC664-PC288(a) or PC664-PC288.5(a) allegation).
Specific Intent Requirement: An attempt sex crimes allegation requires the district attorney to prove the defendant specifically intended to commit the target offense (i.e., the defendant meant to commit a sex offense).
Example: Dr. Loomis, a gynecologist, takes a substantial step towards touching a child's genitals during a routine medical exam; however, Dr. Loomis does not act with specific intent to sexually arouse herself or the child during the examination. Therefore, Dr. Loomis is not guilty of child molestation.
Every sex case is different in terms of what the district attorney must prove was the defendant’s specific intent at the time of his or her action.
Example: In an attempt sexual battery case (PC664-PC243.4), the district attorney must prove that the defendant meant to touch another person for the purpose of sexually gratifying either the person touched or the criminal defendant. Whereas, in an attempt indecent exposure case (PC664-PC314), the district attorney must prove that the defendant meant to expose his or her genitals to another person without the other person’s consent.
Note: Specific intent to prove the defendant intended to commit the target offense can sometimes be difficult without the defendant’s confession. Therefore, the circumstances of the case are usually used to prove the defendant’s intent.
Example: David takes off his clothes and walks into a girls’ dormitory to “flash” the sorority girls. Unbeknownst to David, the dormitory is empty at the time of his entry. A video recording of David’s nude entry into the sorority house is played at David’s criminal trial for attempted indecent exposure (PC664-PC314).
Result: The fact that David took his clothes off before he entered the girls’ dormitory demonstrates, by circumstantial evidence (i.e., the circumstances surrounding the allegation), David’s intent to exposure himself to the sorority girls.
Overt Act Shows Specific Intent: A defendant’s intent to commit a sex crime is usually shown by an “overt act” made by the defendant in furtherance of committing the target offense.
An "overt act" is some affirmative act on the part of the defendant, which is beyond incidental, that clearly and objectively demonstrates the defendant’s intent. This is similar to a "substantial step" to prove attempt (See Above), but an "overt act" element is used to prove the defendant's state of mind when he or she acted.
Example: David hides his IP address with an encryption device when he tries, but fails, to download child pornography videos (PC664-PC311.11). David never uses the encryption device when he downloads non-child pornography videos.
Result: David’s use of an encryption device to hide his IP address only when he tries to download child porn is an "overt act" which is not incidental to the normal process of downloading videos, and which proves, by circumstantial evidence, that David is aware that the videos he is trying to download include obscene materials depiction a minor.
Note: In the above example, David's encryption of his IP address may be used as evidence of his substantial step towards commission of the target offense (i.e., possession of child pornography) and his "overt act" that proves his intent to possess the child pornography.
What constitutes an “overt act” in an attempt sex crimes case is considered on a case-by-case basis, but clear examples would include the following:
Forcefully trying to grab a minor child’s vagina or penis without medical purpose, or reasonably innocent purpose, in an attempt aggravated sexual abuse of a child case (PC664-PC269)
Secretly placing a “date rape” drug in a person’s beverage in an attempt rape by intoxication case (PC664-PC261(a)(3)).
Driving to a location to meet a known minor for lewd act in an attempt to meet a minor for lewd act case (PC664-PC288.4).
Penalties for Attempt Crimes
Incarceration: The length of maximum incarceration for an attempt sex offense is half the length of maximum incarceration related to the target offense.
Example: The crime of rape by force or fear (PC261(a)) carries a maximum sentence of eight (8) years in state prison, but the crime of attempt rape by force or fear (PC664-PC261(a)(2)) carries a maximum sentence of four (4) years in state prison.
For maximum incarceration periods related to target sex offenses, see the following:
Note: Felony sex crimes incarceration periods vary drastically depending on the offense, but most misdemeanor sex offenses carry a one (1) year maximum jail sentence.
Sex Offender Registration: The length of sex offender registration under California’s three tier system (PC 290 Registration) does not change when the defendant is convicted of an attempt sex offense, as opposed to a target sex offense. For more information, see Sex Offender Registration Requirements & California’s Tier System for Registered Sex Offenders.
Example: The crime of misdemeanor oral copulation of a minor, whose age is within ten (10) years of the defendant’s age (PC287(b)) is a tier one sex offender registration case (10 years) regardless of whether the sex offense is charged as an attempt offense with the prefix “664.” (PC 290(c)).
Exception: When the defendant is charged with the crime of murder in the commission of an attempted designated sex offense, the defendant’s sex offender registration period is for life (Tier 3) [PC 290(d].
These tier three designated attempted sex offenses include attempt oral copulation (PC187/PC664-PC287), attempt sexual penetration (PC187/PC664-PC289), attempt child molestation (PC187/PC664-PC288(a)), attempt sodomy (PC187/664-PC286), and attempt rape (PC 187/PC664-PC261).
Note: Some California attempt sex crimes do not require sex offender registration. These non-sex offender registrable attempt sex offenses include both felony and misdemeanor offenses, including misdemeanor prostitution (PC664-PC647(b)), misdemeanor statutory rape (P664-PC261.5), misdemeanor revenge porn (PC664-PC647(J)(4)), misdemeanor operate brothel (PC664-PC315), and felony statutory rape (PC664-PC261.5(D)).
Probation & Parole Periods: The probation or parole periods are the same regardless of whether the defendant is convicted of the target sex offense or an attempt of the target sex offense. For more information, see Parole & Probation for CA Sex Crimes.
Defense to Attempt Sex Crimes
The defense of an attempt sex crime is typically easier than the defense of a completed sex crime. This is because the “attempt” of a sex offense requires the district attorney to prove the defendant’s mental state during the commission of the offense without having facts that obviously prove the defendant mental state.
Example: John is charged with attempted indecent exposure (PC664-PC314) when he walks onto a public beach in the nude. No beachgoers are present; therefore, the district attorney will have a difficult time proving that John knew he was on a public beach (as opposed to a private nude beach) because no beachgoers are present to verify John’s purported mistaken belief.
Also, the “overt act” required to be proved by the district attorney in attempt sex cases is often ambiguous.
Example: In an attempt prostitution allegation (PC664-PC647(b)), John’s purported “overt act” is his driving to meet a prostitute at a hotel. When John arrives at the hotel, he is confronted and arrested by law enforcement, but he never meets the alleged prostitute.
Result: In the example above, it is difficult for the district attorney to prove that John’s “overt act” of driving to meet the prostitute was anything more than mere preparation to subsequently, and possibly, engage in prostitution.
Remember, the district attorney must prove the elements of the underlying sex offense in addition to the “attempt” elements to prove an attempt sex offense.
Example: In an attempt to commit sodomy case (PC664-PC286), the district attorney must prove the defendant specifically intended to, but failed, to anally penetrate the alleged victim; however, without actual anal penetration, it’s difficult for the district attorney to prove what the defendant’s intent was more than sexual battery, a much less severe sex crime than sodomy.
Military Diversion: For current and former members of the United States military, some attempt sex crimes, including felony sex crimes, may be “diverted.” Diversion is a criminal court process whereby the defendant’s criminal charges are dismissed if the defendant completes probation-like diversion terms. For more information, see Military Diversion for California Sex Crimes.
Note: Other diversion programs, such as Judicial Diversion, District Attorney Diversion, or Mental Health Diversion are available for some misdemeanor non-PC sex offender registerable attempt sex offenses. For more information, See Judicial Diversion & Mental Health Diversion for California Sex Crimes.
Plea Negotiations: Because the incarceration periods are vastly reduced for attempt crimes in California, as compared to completed target offense crimes, the “attempt” moniker is often used in plea negotiations related to sex offenses.
Example: In a lewd and lascivious act upon a child under fourteen case (Felony-PC288(a)). The district attorney and the defendant’s criminal defense attorney might strike a negotiated plea bargain (with defendant’s consent) whereby the district attorney agrees to reduce the criminal charge to attempt lewd act on child (PC664-PC288(a)), in exchange for the defendant’s guilty plea.
Result: The defendant’s maximum sentence after a PC664-288(a) conviction is four (4) years, as opposed to eight (8) years for a conviction of the completed offense. This will also result in lower incarceration exposure if the defendant violates a term of any probation sentence.
To learn more about attempt sex crimes, including punishment and defenses related to California penal code 664, contact our sex crimes criminal defenses today for a free consultation. Our team of highly experienced, dedicated, and successful criminal defense lawyers have handled every type of felony and misdemeanor sex crime.
Our criminal defense lawyers handle lewd acts (PC288(a) & PC288.5), oral cop (PC287), sodomy (PC286), incest (PC285), child porn possession (PC 311), indecent exposure (PC314), annoy or molest a minor (PC647.6), statutory rape (PC261.5), prostitution (PC647(b)), revenge porn (PC 647(J)), pimping (PC266h), sexual penetration (PC289), aggravated sexual abuse of child (PC 269), gang rape (PC264.1), and more. Call today!
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