(June 1999)
by Thomas
Lundy
It has long been
assumed that an attempt to commit an offense is a lesser included of the
completed crime. (See People v. Vanderbilt (CA 1926) 199 C 461, 464 [249
P 867].) Most recently, this assumption was utilized by the California Supreme
Court in People v. Martinez (CA 1999) 20 C4th 225, 241 [83 CR2d 533] to
reduce a conviction of kidnapping to attempted kidnapping. (20 C4th at 241.)
While the Supreme Court correctly observed that a judgment may be reduced to a
lesser included offense per California Penal Code § 1181(6), it engaged in no
discussion of how or why attempted kidnapping is a lesser offense of completed
kidnapping. In point of fact, attempted kidnapping includes the crucial element
of specific intent not included in the completed offense. In the Martinez
case this difference was crucial in that the jury could have considered
Martinez’ substantial intoxication to negate such intent while intoxication
was not available to negate the general intent required for the completed crime
of kidnapping.
Accordingly, when the
intent for attempted kidnapping includes an element not included in the
completed offense, it may be a "cognate" (lesser related offense),
but it is not a lesser included as defined by the elements test in California.
(See People v. Lohbauer (CA 1981) 29 C3d 364, 369 [173 CR 453] [to be
"necessarily included" the lesser offense must be within the
statutory definition of the charged offense].)
This distinction has
been recognized in Michigan where the Michigan Criminal Jury Instructions (2nd
Ed. 1998/1999 Supp.) includes the following commentary: "Because the
elements of an attempt are not duplicated in the completed offense, the
court need not instruct on attempt unless there is evidence indicating that
only an attempt was committed. Attempt is a cognate rather than a necessarily
included offense. (People v. Adams (MI 1982) 330 NW2d 634.)."
Nor does California
Penal Code § 1159 make an attempt a lesser included offense. It provides that
the defendant may be found guilty of "any offense, the commission of which
is necessarily included in that which he is charged, or of an attempt to
commit the offense." Nothing in California Penal Code § 1159 recognizes
an attempt as a lesser included offense. To the contrary, by use of the
disjunctive term "or" the statute indicates a recognition that an
attempt is not "necessarily included" in the charged offense.
In sum, because an
attempt is only a lesser offense under the "cognate evidence test" to
which California does not ascribe (see People v. Birks (CA 1998) 19 C4th
108, 133-34 [77 CR2d 848]), an attempt is not a lesser included offense when
the intent element of the lesser offense is greater than that of the greater
offense.
PRACTICE NOTE: If it is held that
an attempt is not a lesser included this may be a two edged sword.
TRIAL: The
downside of an attempt not being a lesser included is that those defendants
seeking lesser instructions may be precluded from doing so. On the other hand,
defendants who want an all-or-nothing verdict may be able to do so by arguing
that an attempt is not subject to the Barton (People v. Barton
(CA 1995) 12 C4th 186 [47 CR2d 569]) requirement of instruction even over
defense objection.
APPEAL: On appeal it certainly
would benefit defendants such as Mr. Martinez who have been
"convicted" of an attempt offense by the appellate court without a
juror determination as to a required element of the offense. In such cases, the
appellate court would have to issue and outright reversal rather than simply
reducing the conviction to the lesser. On the other hand, if an attempt is not
a lesser included of the completed crime, then there is no sua sponte duty to
instruct and, hence, the failure to instruct would not be error.
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