Updated June 5, 2020
Penal Code 664/187(a) PC defines the crime of attempted murder in California. This is where the perpetrator intends to kill someone and takes a direct step towards killing the person, but the intended victim does not die. Attempted first-degree murder is punished by life in state prison. Attempted second-degree murder is punished by 5, 7, or 9 years in state prison.
Like murder (Penal Code 187 PC), attempted murder is divided into two degrees. First-degree attempted murder is premeditated and willful. Second-degree is all other types of attempted 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
Four most common strategies for fighting PC 664/187 charges are to show that:
- The defendant had no intent to kill;
- The defendant took no direct step to kill;
- The defendant was misidentified; or
- The defendant acted in self-defense
In this article, our California criminal defense attorneys will explain:
- 1. What is attempted murder in California?
- 2. What are the most common defenses to this charge?
- 3. What is the sentencing under 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 the crime are:
- The defendant took at least one direct (but ineffective) step towards 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 towards someone
- Paying a hitman to kill someone5
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”
1.2. Intention to kill
Prosecutors must prove intent to kill. Intent to main or injure is not enough.
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.6
In many cases, there are no injuries at all. So prosecutors rely on overall circumstances to show intent.
Example: Police are chasing Charles. Charles stops about 20 feet from the police. He points his gun at them and fires. He misses. Then his gun jams before he can fire again. Here, the police remained uninjured. But the act of shooting at the police could suggest an intent to kill.7
All prosecutors have to prove is the intention to kill someone. Not any particular person. “Although a primary target often exists and can be identified, one is not required.”8
Example: Nicholas participated in a drive-by shooting. He and a fellow gang-member pulled up to a spot. A group of rival gang members was congregating there. Nicholas fired a shot into the group.
The court convicted Nicholas of attempt murder. He had no intent to shoot a specific target. But shooting into the group was sufficient.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.
Example: The defendant places a bomb on a commercial airplane. The defendant intends to kill a specific passenger. But the bombing ensures the deaths of everyone on board. The bomb does not go off. But the court could convict the defendant of attempt murder for every passenger.10
To be convicted under this kill zone premise, the defendant does not even need to know that others are in the kill zone.
Example: The court convicts the defendant of 11 counts of attempt murder. He had shot at multiple residences. The defendant intended to kill two specific individuals. Not all 11 occupants. But he got 11 convictions since they were all in the kill zone. The court stated:
“In this case, defendants manifested a deliberate intention to unlawfully take the lives of others when they fired high-powered, wall-piercing, firearms at inhabited dwellings. The fact they could not see all of their victims did not somehow negate their express malice or intent to kill as to those victims who were present and in harm’s way, but fortuitously were not killed.”11
There are a variety of legal defenses that apply to Penal Code sections 664 and 187 PC. Some of the most common include the following.
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 But 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. And according to California case law and jury instructions, crime victims may stand their ground. There is no duty to retreat first.16
Example: Ella is walking down an empty street in L.A. Suddenly a masked man appears and holds her up with a knife to her neck. A black-belt in karate, Ella takes down the masked man, grabs the knife, and stabs him in the heart. The robber dies. Here, Ella reasonably believed her life was in jeopardy because the robber was holding a knife to her neck. So she acted with reasonable force by using deadly force on him. As the victim, Ella had no legal duty to try to run away first.
Helpful evidence in these cases includes eyewitness accounts, surveillance video, and medical records of the injuries inflicted.
Attempted murder is a felony under California law. Like murder (PC 187), this violent crime has two degrees.17
3.1. First-degree attempted murder
First-degree attempted murder means the defendant acted willfully, deliberately, and with premeditation. A 1st-degree attempt 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,
- Firefighter, or
- Other protected person19
3.2. Second-degree attempted murder
Second-degree attempted murder means any attempted murder that does not count as first-degree murder. A 2nd-degree attempt murder conviction carries a sentence of:
- 5 years in prison,
- 7 years in prison, or
- 9 years in prison20
3.3. Additional penalties
Both first- and second-degree attempt murder also carry:
- Victim restitution,
- A maximum $10,000 fine, and
- Loss of gun rights. (It is a crime to be a felon with a firearm (PC 29800).21
3.4. California’s three strikes law
A second strike carries a double sentence.24 A third strike carries 25 years to a life sentence in state prison.25
3.5. Criminal street gang enhancement
Gang-related attempted murder carries an additional sentence. Fifteen (15) years to life in prison. This runs consecutively with the attempt murder sentence. Learn more about California’s criminal street gang sentencing enhancement (PC 186.22).26
3.6. 10-20-life “use a gun and you’re done”
Attempt murder with a gun carries enhanced penalties. This is the 10-20-life “use a gun and you’re done” law (PC 12022.53). Defendants face an additional sentence of:
- 10 years in prison for using a gun,
- 20 years for firing a gun, or
- 25 years-to-life for killing another person with a gun. Or for causing great bodily injury to another person while using a gun.27
3.7. 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 attempt 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 break the law.34 It is a felony and carries up to nine years in prison.35
Contact us for further assistance
Our criminal defense lawyers have local offices in: Los Angeles County. The San Fernando Valley. Pasadena. Long Beach. Orange County. Ventura. San Bernardino. Rancho Cucamonga. Riverside. San Diego. Sacramento. Oakland. San Francisco. San Jose. And throughout California.
In Colorado? See our article on Attempt Murder in Colorado.
In Nevada? See our article on Attempt Murder in Nevada.
¿Habla español? Visite nuestro sitio Web en español sobre el delito de intento de asesinato de California.
- Our California criminal defense murder attorneys have local Los Angeles law offices in. Beverly Hills. Burbank. Glendale. Lancaster. Long Beach. Los Angeles. Pasadena. Pomona. Torrance. Van Nuys. West Covina. And Whittier. We have additional law offices located throughout the state in: Orange County. San Diego. Riverside. San Bernardino. Ventura. San Jose. Oakland. The San Francisco Bay area. And several nearby cities.
- Judicial Council Of California Criminal Jury Instruction (CALCRIM) 600. See also People v. Davis (1994) 7 Cal.4th 797, 814-815.; People v. Medrano, 42 Cal. App. 5th 1001, 256 Cal. Rptr. 3d 200 (2019).
- See same.
- CALCRIM 600.
- People v. Superior Court (2007) 41 Cal.4th 1, 9.
- People v. Osband (1996) 13 Cal. 4th 622, 919 P.2d 640; People v. Balderas (1985) 41 Cal. 3d 144, 711 P.2d 480.
- 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.
- 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, 232 Cal. Rptr. 3d 164.
- California Penal Code 189 PC.
- 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.