It's not a long opinion -- nine (double-spaced) pages, including the caption. But as I read through it, I kept getting lost in what seems to me to be a very, very easy case.
I understand that there are some crimes that you can't be charged with "attempting" to commit since the very definition of the crime includes an attempt. For example, you can't be charged with attempting to commit an assault with a deadly weapon since the underlying crime of assault is statutorily defined as an "unlawful attempt, coupled with
a present ability[,] to commit a violent injury on the person of another" (emphasis added). In short, there's no such thing as an attempt to commit an attempt. Everyone agrees on this.
The defendant here, Mr. Collins, was charged with "lewd act upon
a child under the age of 14 (Pen. Code, § 288, subd. (a); counts 1–3), assault
with intent to commit rape (§ 220; count 4), attempted aggravated sexual
assault of a child (§§ 664/269, subd. (a)(1); counts 5–6), aggravated sexual
assault of a child (§ 269, subd. (a)(1); count 7), forcible rape of a minor 14
years of age or older (§ 261, subd. (a)(2); counts 8–10, 12, 14), and forcible oral
copulation upon a minor 14 years of age or older (§ 288a, subd. (c)(2)(C);
counts 11, 13, 15).
The jury found defendant guilty of all charges except assault with
intent to commit rape, count 4, for which he was instead convicted of the
lesser included offense of simple assault in violation of section 240." Mr. Collins then argued on appeal that there's no such crime of "attempted" aggravated sexual assault of a child..
But that's obviously wrong, and it's easy to explain why. Section 269(a)(1) of the Penal Code says you're guilty of "aggravated sexual assault" if the victim's under 14 and more than 7 years younger than you and you "rape" the victim in violation of Section 261(a)(2) or (6). Those latter sections in turn say that it is rape if you have sexual intercourse with the victim through force, duress or threats. And Section 664 says that you can be charged with an attempt if you attempt to commit any crime but fail.
That's it. Done. The definition of the substantive crime doesn't include an "attempt" provision so you can indeed be guilty of an attempt. In other words, you can be convicted of "attempted" rape of a child just like you can be convicted of "attempted" rape of an adult. Actual rape requires commission of the underlying offense (the intercourse). Attempts do not. Simple as that. There's lots of stuff in Justice Margulies' opinion surrounding this point, but it's really that simple. Yet, at times, I honestly lost track of where Justice Margulies was going as I read the opinion. In this case, shorter and simpler may have also been better.
