Legal Impossibility to Complete the Crime
In People v. Reed (1996) 53 Cal. App. 4th 389 [61 Cal. Rptr. 2d 658], the court concluded the defendant was guilty of attempted molestation of a child under age 14 ( 664, 288, subd. (a)) although his intended victims did not in fact exist but were instead fictitious constructs of a detective posing as the mother of 12and nine-year-old victims.
The Reed court reasoned, at 53 Cal. App. 4th pages 396 through 397, that liability for an attempted crime does not require a "present ability" to complete the crime, nor is it necessary that the crime be factually possible.' ( People v. Grant (1951) 105 Cal. App. 2d 347, 356 [233 P.2d 660])."
IT STATED: "This rule of law is particularly important in determining culpability for intent crimes. Our courts have repeatedly ruled that persons who are charged with attempting to commit a crime cannot escape liability because the criminal act they attempted was not completed due to an impossibility which they did not foresee: 'factual impossibility is not a defense to a charge of attempt.' ( People v. Peppars (1983) 140 Cal. App. 3d 677, 688 [189 Cal. Rptr. 879].)" (Reed at p. 396.)
In Reed, the defendant attempted to distinguish prior cases by arguing the intended victims were "imaginary."
The Reed court rejected the defendant's argument, stating at page 397 that defendant's argument rested on "a distinction without a difference.
Applying the established 'perception' standard set out above, if the circumstances had been as defendant believed them to be, he would have found . . . two girls under fourteen available for him to engage in lewd and lascivious conduct with them.
Defendant's failure to foresee that there would be no children waiting does not excuse him from the attempt to molest. Defendant showed no honest and reasonable, or even unreasonable, belief that his actions would have a legal outcome.
Thus, defendant's mistake of fact was not a defense to the crime of attempting to molest girls under 14 years of age." ( Reed, supra, 53 Cal. App. 4th at p. 397.)