§ PC 664/187(a) – Attempted Murder – California Law & Sentencing

Under California Penal Code § 664/187(a) PC, attempted murder is intending to kill the victim and taking a direct step towards killing them, 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.)

Examples 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

In this article, our California criminal defense attorneys¹ address the following attempt murder topics:

• 1. Elements
• 2. Defenses
• 3. Penalties
• 4. Related Crimes
• Additional Reading

1. Elements

California Criminal Jury Instruction “CALCRIM” 600 spells out the elements of attempt murder.² For you to be convicted of violating PC PC 664/187(a), prosecutors must prove the following two elements beyond a reasonable doubt:

1. You took at least one direct (but ineffective) step toward killing another person; and
2. You intended to kill that person (“malice aforethought”).³

These elements are discussed below. (Note that a fetus is considered a person for the purposes of this law.)

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

Intention to Kill

Prosecutors must prove intent to kill. Intent to maim 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

Kill Zone Theory

California recognizes the kill zone theory of attempted murder liability. This means that you are liable for anyone you may inadvertently kill while attempting to kill a specific target.¹⁰

To be convicted under this kill zone premise, you do not even need to know that others are in the kill zone.¹¹

2. Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with violent crimes, including attempted murder. In our experience, the following five defenses have proven very effective with prosecutors, judges, and juries.

 You Had No Specific Intent to Kill

Attempted murder in California is a specific intent crime. If you did not intend to kill someone, no attempted murder occurred. Perhaps you 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 you intended to kill, the attempted murder charge should not be sustained.

You Took No Direct Step

Even if you 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 – no attempted murder took place if:

• you are caught before executing that next step or
• you abandon the plan.¹⁴

If you abandon the murder plan after taking a direct step, your 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.¹⁵

You Were the Victim of Misidentification

Mistaken identity could arise in many attempted murder cases. Perhaps you resemble the true culprit. Or perhaps you drive a similar car to the one used. Or perhaps you were just in the wrong place at the wrong time.

Defense attorneys know how to investigate these cases to raise a reasonable doubt.

You Acted in Self-Defense

California’s self-defense laws allow you to use reasonable force to defend yourself or another person if you reasonably believe that bodily harm is imminent. If you reasonably believe you are about to be killed, you can legally kill your assailant.

Plus, according to California case law and jury instructions, you may stand your 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.

You Were Falsely Accused

A potential defense to any criminal charge is that you were falsely accused. In attempted murder cases, your criminal defense attorney would try to find evidence of your accuser’s motivations to lie and would impeach their credibility.

3. Penalties

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

Attempted First-Degree Murder

Attempted first-degree murder means you 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

You must serve at least 15 years if the victim was an on-duty:

• Peace officer / police officer/ law enforcement officer,
• Firefighter, or
• Other protected person¹⁹

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

Additional Punishments

The following table shows additional and collateral penalties that attach to attempt murder convictions.

Attempted Murder Consequences in California
Monetary penalties	Victim restitution Up to $10,000 in fines
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 your 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 of 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: 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
Immigration consequences	Attempt murder is an aggravated felony. Therefore, non-citizens convicted of it face deportation.28

4. Related Crimes

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.

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

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. Therefore, prosecutors could charge someone whose conduct amounts to torture with attempt murder as well.

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 be reduced down to attempted voluntary manslaughter if:

1. You made the attempt in the heat of passion, or
2. You 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

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). However, supplying someone with a gun to shoot themself is attempted aiding a suicide (if the person does not die).

Attempted aiding a suicide carries lighter felony penalties than attempt murder.³³

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

Aggravated Battery

Aggravated battery (PC 243(d)) is inflicting unlawful physical force 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

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 four years in jail or prison.

Additional Reading

For more in-depth information, refer to the following scholarly articles:

• California’s SB 1437 and Its Applicability to Attempted Murder Liability – Hastings J. Crime & Punishment.
• Second Degree Murder and Attempted Murder: Clear’s Efforts to Maneuver the Slippery Slope – John Marshall Law Review.
• Getting Lucky, Getting Even, or Getting Away with (Attempted) Murder: The Punishment of Failed Attempts – Public Affairs Quarterly.
• With Malice Toward All: The Increased Lethality of Violence Reshapes Transferred Intent and Attempted Murder Law – University of South Florida Law Review.
• Attempted Murder: Should Specific Intent to Kill Be Required – Baylor Law Review.

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Legal References