Is Attempted Assault a Crime In California ?
In In re James M., the Supreme Court held that attempted assault is not recognized and punishable as a crime in California.
The court noted that at common law and under section 240, assault is defined as an attempted battery.
An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." ( 240.)
The court stated, "the abstract concept of an attempted assault is not necessarily a logical absurdity." ( In re James M., supra, 9 Cal. 3d at p. 521.)
However, the court held attempted assault is not a crime in California because, inter alia, "no offense known as attempt to assault was recognized in California at the time that statutory definition of assault was adopted." ( Id. at p. 522.)
The court pointed out "attempt" was omitted from the original statutory definition of assault and noted neither section 664 nor its predecessor had been enacted at the time the predecessor to section 240 was enacted. the court found a clear manifestation of legislative intent "for an attempt to commit a battery without present ability to go unpunished." (In re James M., supra, 9 Cal. 3d at p. 522.)
The court rejected the contention that attempted assault is made criminal under section 664 because "the legislative intent not to punish batteries attempted without present ability prevails over the general criminal attempt provisions of section 664." (9 Cal. 3d at p. 522.)
In re James M. should not be interpreted to hold that the absence of language specifically criminalizing attempt within any statutory definition of an offense indicates a specific legislative intent not to punish an attempt to commit the offense, which legislative intent prevails over the general provision in section 664. Otherwise, section 664 would be meaningless.
It does not necessarily follow that every solicitation is an attempted conspiracy. the crime of solicitation is complete when the solicitation is made, i.e., when the soliciting message is received by its intended recipient. It is immaterial that the object of the solicitation is never consummated, or that no steps are taken towards its completion. ( People v. Cook (1984) 151 Cal. App. 3d 1142, 1145 [199 Cal. Rptr. 269].)
Unlike assault, which is statutorily defined as an attempted battery, section 653f makes no mention of attempted conspiracy.
Further, unlike the original statutory definition of assault as explained in In re James M., section 653f was enacted after section 664.
The Legislature presumably was aware of section 664, criminalizing an attempt to commit any crime, when it enacted section 653f.
We conclude the absence of language expressly exempting section 653f from the ambit of section 664, in effect at the time section 653f was enacted, suggests the Legislature did not intend to foreclose convictions for attempted solicitation.