When determining whether a crime is factually impossible, can a defendant be convicted of an attempted grand theft by false pretenses?

California, United States of America


The following excerpt is from People v. Rizo, 22 Cal.4th 681, 94 Cal.Rptr.2d 375, 996 P.2d 27 (Cal. 2000):

When determining whether the commission of a crime is factually impossible, we do not concern ourselves "with the niceties of distinction between physical and legal impossibility...." (People v. Meyers (1963) 213 Cal.App.2d 518, 523, 28 Cal.Rptr. 753.) Instead, we focus on the elements of the crime and the intent of the defendant. Where a defendant has the requisite criminal intent but "elements of the substantive crime [are] lacking" due to "circumstances unknown" to him, he can only be convicted of attemptand not the substantive crime itself. (People v. Rojas (1961) 55 Cal.2d 252, 257-258, 10 Cal.Rptr. 465, 358 P.2d 921 [because the property was not actually stolen, defendants were guilty of attempted receipt of stolen property]; see also People v. Camodeca (1959) 52 Cal.2d 142, 147, 338 P.2d 903 [because the victim was not deceived by and did not rely on the false representations, defendant was guilty of attempted grand theft by false pretenses].) If, however, the evidence at trial is sufficient to establish all elements of the crime, then the defendant may be found guilty of the substantive crime. (See People v. Braz (1997) 57 Cal. App.4th 1, 7-8, 66 Cal.Rptr.2d 553.)

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