Under Penal Code § 664/187(a) PC, attempted murder in California is when the perpetrator intends to kill the victim and takes a direct step towards killing the person, but the victim does not die. Attempted first-degree murder is punished by life in state prison. The sentence for attempted second-degree murder is punished by 5, 7, or 9 years in state prison.
(First-degree murder (Penal Code 187 PC) is premeditated and willful. Second-degree is all other types of murder.)
- Trying to poison someone to death, but the victim survives
- Stabbing someone in the chest with intent to kill, but the victim survives
- Strangling someone with intent to kill, but the victim survives
In this article, our California criminal defense attorneys1 will answer the following key questions about attempted murder law:
- 1. How does California law define attempted murder?
- 2. What are the best defenses to attempted murder charges?
- 3. What is the sentence for PC 664/187?
- 4. What are other crimes that can be charged along with attempted murder?
Attempt murder is trying but failing to kill another human being.2 In California, the two elements of this violent crime are:
- The defendant took at least one direct (but ineffective) step toward killing another person; and
- The defendant intended to kill that person (“malice aforethought”).3
Note that a fetus is considered a person for the purposes of this law.
1.1. A direct step
A ‘direct step’ requires more than simple planning. It is putting the plan into motion. It means the murder would have occurred had an outside factor not interfered.4
This direct action can be almost anything. Examples include:
- Stabbing someone in the chest
- Shooting a gun toward someone
- Paying a hitman to kill someone5
1.2. Intention to kill
Prosecutors must prove intent to kill. Intent to main or injure is not enough if there was a lack of intent to kill.6 In many cases, there are no injuries at all. So prosecutors rely on overall circumstances to show intent.7
When shooting into a group of people, all prosecutors have to prove is the intention to kill someone. Not any particular person.8 “Although a primary target often exists and can be identified, one is not required.” 9
1.2.1. Kill zone theory
California recognizes the kill zone theory of attempted murder liability. This means that defendants are liable for anyone they may inadvertently kill while attempting to kill a specific target.10
To be convicted under this kill zone premise, the defendant does not even need to know that others are in the kill zone.11
2.1. No specific intent to kill
Attempted murder in California is a specific intent crime. If the defendant did not intend to kill someone, no attempted murder occurred. Perhaps the defendant only intended to:
- Maim the alleged victim (mayhem – PC 203),12 or
- Scare the alleged victim (assault – PC 240) or assault with a deadly weapon – PC 245)13
Unless the state can prove the defendant intended to kill, the attempt murder charge should not be sustained.
2.2. No direct step
Even if the defendant prepared an elaborate plan to kill someone – bought the weapons, wrote down exactly how the murder will take place, and made arrangements for disposing of the body – if the defendant is caught before executing that next step, then no attempted murder took place.
Or, if the defendant does the above preparations and then abandons the plans, no attempted murder took place.14
It only becomes attempted murder when the defendant takes a direct step.15 Though if the defendant abandons the murder plan after taking a direct step, the criminal defense attorney may be able to persuade the prosecutor to reduce the charge during a plea negotiation. Abandoning the plan demonstrates regret and remorse.
Mistaken identity could arise in many attempted murder cases. Perhaps the defendant resembles the true culprit. Or perhaps the defendant drives a similar car to the one used. Or perhaps the defendant was just in the wrong place at the wrong time.
Defense attorneys know how to effectively investigate a case. As long as they can raise a reasonable doubt, the charge should be dropped.
California’s self-defense laws allow people to use reasonable force to defend themselves or another person if they reasonably believe that bodily harm is imminent. If people reasonably believe they are about to be killed, they can legally kill their assailant.
Plus according to California case law and jury instructions, crime victims may stand their ground. There is no duty to retreat first.16
Helpful evidence in these cases includes eyewitness accounts, surveillance video, and medical records of the injuries inflicted.
2.5. False accusations
A potential defense to any criminal charge is that the defendant was falsely accused. In attempted murder cases, the criminal defense attorney would try to find evidence of the accuser’s motivations to lie and would impeach his/her credibility.
Attempted murder is always a felony in California. In general, the sentencing for attempted murder is half of what the punishment would be for murder (the completed crime).17
3.1. Attempted first-degree murder
Attempted first-degree murder means the defendant acted willfully, deliberately, and with premeditation. An attempted 1st-degree murder conviction carries a sentence of:
- Life imprisonment in California State Prison, and
- The possibility of parole. (Determined at a parole board “lifer” hearing.)18
Defendants must serve at least fifteen (15) years if the victim was an on-duty:
- Peace officer / police officer/ law enforcement officer,
- Firefighter, or
- Other protected person19
3.2. Attempted second-degree murder
Attempted second-degree murder in California means any attempted murder that does not count as first-degree murder. In other words, the attempt was not deliberate and premeditated. An attempted 2nd-degree murder conviction carries a sentence of:
- 5 years in prison,
- 7 years in prison, or
- 9 years in prison20
3.3. Additional penalties
|Monetary penalties|| |
|Loss of gun rights||Lifetime ban under PC 29800 (felon with a firearm)21|
|Three-strikes law||Attempted murder is a violent felony under California’s three-strikes law.22 Therefore, a conviction counts as a strike on the defendant’s criminal record.23 |
A second strike carries a double sentence.24 A third strike carries 25 years to a life sentence in state prison.25
|Gang enhancement (PC 186.22)||Gang-related attempted murder carries an additional sentence. Fifteen (15) years to life in prison. This runs consecutively with the attempt murder sentence.26|
|10-20-life “use a gun and you’re done” law (PC 12022.53)||Attempt murder with a gun carries enhanced penalties: |
|Immigration consequences||Attempt murder is an aggravated felony. Therefore, non-citizens convicted of it face deportation.28|
There are many criminal charges related to PC 664/187 attempt murder law violations. The following may accompany or replace attempted murder charges.
4.1. Shooting at an inhabited dwelling or occupied car
Shooting at an inhabited dwelling or occupied car (PC 246) indicates an intent to kill the occupant(s). Therefore, prosecutors often charge PC 246 defendants with the additional crime of attempt murder.
4.2. Drive-by shooting
Similarly, committing a drive-by shooting (PC 26100) is attempted murder if no one dies. The logic is the same as above. Firing a gun towards people indicates intent to kill at least one.
Torture (PC 206) is inflicting great bodily harm intending to cause cruel or extreme pain. There is a fine line between intent to cause “cruel or extreme pain” and an intent to kill. So prosecutors could charge someone whose conduct amounts to torture with attempt murder as well.
4.4. Attempted voluntary manslaughter
Voluntary manslaughter (PC 192(a)) is killing done in “the heat of passion or upon a sudden quarrel”.29 An attempted murder charge can reduce down to attempted voluntary manslaughter if:
- The defendant made the attempt in the heat of passion, or
- The defendant had an honest but unreasonable belief that the attempt was in self-defense.30
An attempted PC 192(a) conviction carries a maximum five-and-a-half-year prison sentence.31
4.5. California’s domestic violence offenses
California domestic violence law could give rise to attempted murder charges. This occurs if the defendant and victim are intimate partners. Such as spouses or significant others. And one attempts to kill the other.
4.6. Attempted aiding a suicide
Aiding a suicide (PC 401) is a crime even if the victim does not die.32 The line between attempt murder and aiding suicide can be blurry.
For example, pushing a suicidal friend off a building at the friend’s request is attempted murder (if the friend does not die). But supplying someone with a gun to shoot himself is attempted aiding a suicide (if the person does not die).
Attempted aiding a suicide carries lighter felony penalties than attempt murder.33
4.7. Soliciting someone to commit a crime
Solicitation of a crime (PC 653f) is appointing another person to commit certain crimes, such as murder.34 It is a felony and carries up to nine years in prison.35
4.8. Aggravated battery
Aggravated battery (PC 243(d)) is battery causing serious bodily injury. This crime may be filed as a misdemeanor or a felony, depending on the circumstances and the extent of the injuries.36
4.9. Assault with a deadly weapon
Assault with a deadly weapon (PC 245(a)(1)) is attacking another person with a deadly weapon. This crime can be charged as a misdemeanor or a felony, carrying up to 4 years in jail or prison.
Contact us for further assistance
Our criminal defense lawyers have local offices in Los Angeles County, San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco and San Jose.
- Our California criminal defense murder attorneys have local officers throughout the state.
- Judicial Council Of California Criminal Jury Instruction (CALCRIM) 600. See also People v. Davis (1994) 7 Cal.4th 797, 814-815.; People v. Medrano (2019) 42 Cal. App. 5th 1001.
- See same.
- CALCRIM 600.
- People v. Superior Court (2007) 41 Cal.4th 1, 9. The following are examples of murder preparation. They are not direct steps in an attempt murder case buying a knife, loading a gun, Googling “murder for hire”. Note that a “direct step” does not have to include any physical touching of the intended victim. A person can get convicted of attempted murder simply by putting a plan to kill into action, even if no physical contact is made.
- People v. Osband (1996) 13 Cal. 4th 622; People v. Balderas (1985) 41 Cal. 3d 144. The location of any injuries is important. Upper body injuries are more indicative of premeditated murder intent. That is because the vital organs are located there. Lower body injuries instead indicate intent to injure. Even if the defendant did intend to kill, prosecutors may struggle to prove it.
- People v. Lawrence (2009) 177 Cal.App.4th 547, 557; facts based on People v. Lee (1987) 43 Cal.3d 666.
- People v. Stone (2009) 46 Cal.4th 131, 140. People v. Smith, (2005) 37 Cal.4th 733.
- See same.
- See same at 137; People v. Mariscal, Cal. App. LEXIS 259 (2020).
- People v. Vang (2001) 87 Cal.App.4th 554, 564.
- California Penal Code 203 PC.
- California Penal Code 240 PC.
- CALCRIM 600.
- See same.
- CALCRIM 3470 & 505; People v. Blessett (2018) 22 Cal. App. 5th 903.
- California Penal Code 189 PC. People v. Bright (1996) 12 Cal.4th 652.
- California Penal Code 664 PC.
- See same.
- See same.
- California Penal Code 672, 29800 & 1203.1 PC.
- California Penal Code 667 PC.
- California Penal Code 1192.7(c) PC.
- See same.
- See same.
- California Penal Code 186.22 PC; People v. Perez, 9 Cal. 5th 1 (2020).
- California Penal Code 12022.53 PC.
- 8 USC 1227.
- California Penal Code 192(a) PC.
- People v. Van Ronk (1985) 171 Cal.App.3d 818, 824-825.
- California Penal Code 193 & 644 PC.
- California Penal Code Section 401 PC.
- See same.
- California Penal Code 653(f) PC.
- See same.
- California Penal Code 243(d)