Conviction on 3 Separate Crimes of Attempt

In State v. Walters (1991) 311 Or. 80 804 P.2d 1164, the Oregon Supreme Court addressed a case where the defendant had attempted to entice a young girl into his van. The defendant in that case had suffered a prior conviction involving nearly identical circumstances in which he had successfully kidnapped, sodomized and raped a young child. In the Walters case, the defendant was charged with three counts of attempt arising from the single act. He was convicted of attempted kidnapping, attempted rape and attempted sodomy. On review following the conviction, the Oregon Supreme Court determined, based upon Walters's prior conviction, that the evidence established he intended to commit three separate felonies on the victim. The court noted that Oregon followed the substantial-step test of the Model Penal Code in determining whether an act has gone beyond mere preparation and thus constituted an effort to commit a crime. The court concluded that since Walters had taken a substantial step in the commission of the offenses and had three separate identifiable objectives when he committed the act, he could reasonably be convicted of three separate crimes of attempt. Thereafter, on federal habeas corpus, the Ninth Circuit Court of Appeals overturned the convictions on two of the counts. ( Walters v. Maass (9th Cir. 1995) 45 F.3d 1355.) The federal court appeared to agree with the concept that where a substantial step is taken in the commission of an offense, such act can lead to multiple counts of attempt provided there is sufficient evidence to show separate purposes or intentions accompanying the act. The federal court found there was sufficient evidence to prove an intention to kidnap but found, based upon the record before it, insufficient evidence to prove the intention to rape or to sodomize. It therefore granted habeas corpus as to the latter two attempts. The crime of attempt occurs when there is a specific intent to commit a crime and a direct but ineffectual act done towards its commission. ( 21a.) "An attempt connotes the intent to accomplish its object, both in law . . . and in ordinary language." (People v. Smith (1997) 57 Cal. App. 4th 1470, 1481 67 Cal. Rptr. 2d 604.) The act required must be more than mere preparation, it must show that the perpetrator is putting his or her plan into action. That act need not, however, be the last proximate or ultimate step toward commission of the crime. (People v. Kipp (1998) 18 Cal. 4th 349, 376 75 Cal. Rptr. 2d 716, 956 P.2d 1169.) Where 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. (People v. Staples (1970) 6 Cal. App. 3d 61, 68 85 Cal. Rptr. 589.)