Under Penal Code § 664/187(a) PC,attempted murder in California is when the perpetrator intendsto kill the victim and takes a direct step towards killing the person, but the victim does not die.Attempted first-degree murderis punished bylife 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
- Trying topoisonsomeone to death, but the victim survives
- Stabbingsomeone in the chest with intent to kill, but the victim survives
- Stranglingsomeone 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?
Intention to kill is a key element of attempted murder in California.
1. How does California law define attempted murder?
Attempt murder istryingbutfailingto kill another human being.2In California, the twoelements of this violent crime are:
- The defendant took at least onedirect (but ineffective) step toward killing another person; and
- The defendantintendedto 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’ requiresmorethan simple planning. It is putting the plan intomotion.It means the murder would haveoccurredhad an outside factor not interfered.4
Thisdirect actioncan 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 mustproveintent to kill. Intent to main orinjure is not enough if there was a lack of intent to kill.6In many cases, there are no injuriesat all. So prosecutors rely on overallcircumstances to show intent.7
When shooting into a group of people, all prosecutors have to prove is the intention to kill someone. Not anyparticularperson.8 “Although a primary target often exists and can beidentified, one is not required.” 9
1.2.1. Kill zone theory
California recognizes thekill zonetheory of attempted murder liability. This means that defendants are liable for anyone they may inadvertently killwhile attempting to kill a specific target.10
To be convicted under thiskill zone premise, the defendant does not even need to know that others are in the kill zone.11
2. What are the best defenses to attempted murder charges?
2.1. No specific intent to kill
Attempted murder in California is aspecific intentcrime. If the defendant did notintendto kill someone, no attempted murder occurred. Perhaps thedefendantonly intended to:
- Maimthe alleged victim (mayhem – PC 203),12or
- Scarethe alleged victim (assault – PC 240)orassault with a deadly weapon – PC 245)13
Unless the state can prove the defendantintendedto kill, the attempt murder charge should not be sustained.
2.2. No direct step
Even if the defendantpreparedan 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 thenabandonsthe plans, no attempted murder took place.14
It only becomes attempted murderwhen the defendant takes adirect step.15 Though if the defendant abandons the murder plan aftertaking a direct step, the criminal defense attorney may be able to persuade the prosecutor to reduce the charge during a plea negotiation.Abandoningthe plan demonstrates regret and remorse.
2.3. Misidentification
Mistaken identity couldarisein many attempted murder cases. Perhaps the defendantresemblesthe true culprit. Or perhaps the defendant drives a similarcarto the one used. Or perhaps the defendant was just in thewrongplace at the wrong time.
Defense attorneys know how to effectivelyinvestigatea case. As long as they can raise areasonabledoubt, the charge should be dropped.
2.4. Self-defense
California’s self-defense laws allow people to usereasonableforce to defend themselves or another person if they reasonably believe that bodily harm is imminent. If people reasonably believe they are about to bekilled, they can legally kill their assailant.
Plus according to California case law and jury instructions, crime victims may stand their ground. There is noduty to retreatfirst.16
Helpful evidence in these cases includeseyewitnessaccounts, 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.
Attempt murder is a felony in California under PC 664/187.
3. What is the sentence for PC 664/187?
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 inCalifornia State Prison, and
- The possibility of parole. (Determined at aparole board “lifer” hearing.)18
Defendants must serve at leastfifteen (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 murderis aviolent felonyunderCalifornia’s three-strikes law.22Therefore, a conviction counts as astrikeon the defendant’s criminal record.23 A secondstrikecarries a double sentence.24A thirdstrikecarries 25 years to a life sentence in state prison.25 |
| Gang enhancement (PC 186.22) | Gang-related attempted murder carries anadditionalsentence.Fifteen (15) years to life in prison. This runsconsecutivelywith the attempt murder sentence.26 |
| 10-20-life “use a gun and you’re done” law (PC 12022.53) | Attempt murderwith a gun carries enhanced penalties:
|
| Immigration consequences | Attempt murder is anaggravated felony. Therefore,non-citizensconvicted of it facedeportation.28 |
4. What are other crimes that can be charged along with attempted murder?
There are many criminal charges related toPC 664/187attempt murder law violations. The following mayaccompanyor replace attempted murder charges.
4.1. Shooting at an inhabited dwelling or occupied car
Shooting at an inhabited dwelling or occupied car (PC 246)indicatesan intent to kill the occupant(s). Therefore, prosecutors often charge PC 246 defendants with theadditionalcrime of attempt murder.
4.2. Drive-by shooting
Similarly, committing adrive-by shooting (PC 26100)is attemptedmurderif no one dies. Thelogicis the same as above. Firing a gun towards peopleindicatesintent to kill at least one.
4.3. Torture
Torture (PC 206)is inflicting great bodily harmintendingto cause cruel or extreme pain. There is a fine linebetweenintent to cause “cruel or extreme pain” and an intent to kill. So prosecutors could charge someone whoseconductamounts to torture with attempt murder as well.
4.4. Attempted voluntary manslaughter
Voluntary manslaughter (PC 192(a))iskillingdone in “the heat of passion or upon a sudden quarrel”.29Anattemptedmurder charge can reduce down to attempted voluntary manslaughter if:
- The defendant made theattemptin the heat of passion, or
- The defendant had an honest but unreasonable belief that theattemptwas in self-defense.30
An attempted PC 192(a) convictioncarriesa maximum five-and-a-half-year prison sentence.31
4.5. California’s domestic violence offenses
California domestic violence lawcould give rise toattemptedmurder charges. This occurs if the defendant and victim areintimatepartners. Such asspousesor significant others. And oneattemptsto kill the other.
4.6. Attempted aiding a suicide
Aiding a suicide (PC 401)is acrimeeven if the victim does not die.32The line between attempt murder andaidingsuicide can be blurry.
For example, pushing a suicidal friend off a building at the friend’s request isattempted murder (if the friend does not die). But supplying someone with a gun to shoot himself isattemptedaiding a suicide (if the person does not die).
Attempted aiding a suicide carrieslighterfelony penalties than attempt murder.33
4.7. Soliciting someone to commit a crime
Solicitation of a crime (PC 653f)isappointing another person to commit certain crimes, such as murder.34It is afelonyand 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 misdemeanoror afelony, 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 localoffices 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.
Legal References
- Our California criminal defense murder attorneys have local officers throughout the state.
- Judicial Council Of California Criminal Jury Instruction (CALCRIM) 600. See alsoPeople 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 murderpreparation. They arenot 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 locationof any injuries is important.Upper bodyinjuries are more indicative of premeditated murder intent. That is because thevital organs are located there. Lower bodyinjuries instead indicate intent to injure. Even if the defendant did intend to kill, prosecutors maystruggleto prove it.
- People v. Lawrence(2009) 177 Cal.App.4th 547, 557; facts based onPeople 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)
FAQs
§ 664/187(a) PC - Attempted Murder - California Law? ›
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.
What is California Penal Code 664 187 a PC? ›California defines Penal 664/187(a) PC defines attempted murder as the attempted unlawful killing of another person, or a fetus, with malice aforethought.
What is the penal code for attempted in California? ›Penal Code § 664 PC is the California statute that defines criminal attempt. An attempted crime is when a person tries to break the law but for whatever reason, fails to achieve the criminal objective.
What is penal code 664 Cal Crim? ›Penal Code § 664.
However, if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole.
Murder is considered by many to be the most serious criminal offense that one can commit. While there are a variety of crimes that fit under the broad category of Homicide, Murder under California Penal Code Section 187 PC specifically deals with the intentional killing of another.
What is the punishment for PC 664 187 A? ›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.
What is California Penal Code Section 641.3 PC? ›Penal Code 641.3 PC makes it a crime for an employer to take a bribe from someone to influence a decision. Simply put, this statute makes it illegal for an employee to take a bribe from someone in exchange for using their employment position to benefit the other person.
What are the elements of attempt crime? ›Attempt is therefore comprised of three elements: (1) intent to commit a crime; (2) conduct that constitutes a substantial step toward completing the crime and (3) a failure to complete the crime.
What are the defenses to attempt crimes? ›Aside from failure of proof defenses to attempt act and intent, two potential defenses to attempt are legal impossibility and voluntary abandonment. Factual impossibility means the defendant cannot complete the crime because the facts are not as the defendant believes them to be.
How is an attempt to commit a crime defined? ›Attempting to commit a crime is itself a crime. "Attempt" is the crime of (1) intending to commit a crime and (2) taking significant but ultimately ineffective steps toward committing that crime. Attempt is also referred to as one of the "inchoate" crimes along with solicitation and conspiracy.
What is the statute of limitations on attempted homicide in California? ›
Capital crimes, including murder, manslaughter, and other violent crimes have no statute of limitations in California.
What is the sentence for PC 664 211? ›For example: A defendant charged with second degree robbery (PC 211) faces up to six years in prison, but a person charged with attempted second-degree robbery (PC 664/211) faces up to three years in prison.
What is considered a serious felony in California? ›Any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm. Attempted murder. Assault with intent to commit rape or robbery. Assault with a deadly weapon or instrument on a peace officer.
How much time can you get for a 187? ›' If you're convicted under Section 187, you can be sentenced to life without the possibility of parole in a state prison and pay a fine of $10,000. Murder is also punished under California's “Three Strikes” system. [2] If you get three “strikes” on your record, you'll serve a minimum of twenty-five years in prison.
What does attempted 187 mean? ›California Penal Code Section 664/187 – Attempted Murder
The crime of “attempted murder” is covered under California Penal Code Section 664/187. In general terms, if you attempt to kill someone, but they don't die, then you will be facing a violent crime charge of attempted murder.
Where does 187 come from? The slang use of 187 is a reference to Penal Code 187 in the law code of the state of California. Penal Code 187 defines and outlaws the act of murder. Although the exact coiner is unknown, one of the earliest uses of the slang 187 was found in the 1992 song “Deep Cover” by Dr.
Is 1 count PC 664 288 a felony? ›California Penal Code § 288 PC sets forth the crime of lewd and lascivious acts with a child. Commonly referred to as child molestation, this is broadly defined as any touching of a child under the age of 14 when done for sexual purposes. A conviction is a felony punishable by 3, 6 or 8 years in state prison.
What is PC 640 California Penal Code? ›California Penal Code 640(d)(1) - Misdemeanor
Willfully disturbing others on or in a system facility or vehicle by engaging in boisterous or unruly behavior. Note: This crime is specific to transit vehicles and transit property.
California Penal Code [CPC] §207(a) – Kidnapping – Penal Code Section 207(a) makes it illegal to take someone, by means of force or fear, into any other California county, or any other state, or country.
What is California Penal Code 626.10 a PC? ›Under PC 626.10, it's a crime for someone to bring certain types of weapons onto school grounds. A violation of PC 626.10 is a wobbler that can be charged as a misdemeanor or felony crime.
What is California Penal Code Section 148 a PC? ›
Penal Code 148(a) describes resisting arrest as any criminal conduct that resists, delays, or obstructs any peace officer in the course of their official duties. Penal Code 148 PC makes it a crime to willfully resist a police officer while performing their duties.
What is California Penal Code Section 136.2 PC? ›Under California Penal Code Section 136.2 PC, the Court will typically issue a protective order against a defendant who has been charged with a crime of domestic violence. The protective order may prohibit any contact or may be a “Level One” protective order that allows peaceful contact between the parties.
Why do we punish attempt crimes? ›The foremost purpose behind our criminal code is to prevent crime. It makes logical sense that we would want to deter individuals because this could prevent crime from ever occurring. By punishing attempts, individuals are deterred from even trying to attempt the crime, but not from taking the substantial step.
What is the common law for attempt? ›Under the common law it is a crime to attempt to commit any misdemeanor or felony. The basic components of attempt are: a specific intent to commit a crime and. an act that takes a step toward completing the crime.
What are the three legal tests for the actus reus of attempt? ›Resistance Requirement. Corroboration Requirement. Victim's prior sexual history.
What are the 6 legal defenses excuses for a crime? ›Excuse defenses are used when the actor's mental state or belief demonstrate that he should not be held responsible for the criminal act. Excuse defenses include insanity, diminished capacity, duress, mistake, infancy and entrapment.
What are the 4 types of defenses? ›When it comes to criminal cases, there are usually four major criminal defense strategies that criminal attorneys employ: innocence, constitutional violations, self-defense, and insanity.
What is an example of failure of proof defense? ›A failure-of-proof defense is when a party argues that the other party has not provided enough evidence to prove an essential fact in their claim or defense. For example, in a criminal trial, the prosecution must prove beyond a reasonable doubt that the defendant committed the crime.
What is Pinkerton rule? ›The Pinkerton rule determines when an individual can be convicted of a substantive crime they didn't directly commit. It upholds that all conspiracy members are liable for their co-conspirators' substantive crimes intended to further the conspiracy.
What is an incomplete attempt? ›What Is an Incomplete Crime? Inchoate crimes, which are more commonly referred to as “incomplete” or “attempted” crimes, are crimes that involve the intent to commit a specific criminal offense.
What is a wobbler? ›
A wobbler is a special class of crimes involving conduct that varies widely in its level of seriousness. Wobbler statutes cover a wide range of offenses, including assault with a deadly weapon, vehicular manslaughter, money laundering, and defacements of property with graffiti.
What is the 10 year statute of limitations in California? ›A lawsuit is barred unless it is filed within 10 years of substantial completion. A shorter time may apply once the defect is discovered.
How long do you have to press charges in California? ›For most misdemeanor crimes, the prosecution must file charges within one year from the date the offense was allegedly committed. If the crime is a felony, the prosecution generally has three years to file charges from the date the offense was allegedly committed.
What is the penal code 799 in California? ›799. (a) Prosecution for an offense punishable by death or by imprisonment in the state prison for life or for life without the possibility of parole, or for the embezzlement of public money, may be commenced at any time.
Is 664 211 a strike? ›For example, the crime of attempted robbery, charged under PC 664/211, is classified as a felony, because the underlying crime of robbery is classified as felony. This is also true for the classification of a crime as being a Three Strike Crimes or a non Three Strike crime.
What is the Penal Code 664 459 in California? ›In this scenario, you could face charges of Penal Code 664/459 attempted burglary due to the fact to were trying to open the front door with intent burglarize the house, and your act was considered a substantial and direct step towards the completion of the burglary.
How much is bail for PC 211? ›How much is bail for robbery, second degree (PC 211)? The bail amount for robbery, second degree is $50,000.
Does California still have a 3 strikes law? ›How does the Three Strike Rule work? In California, prison sentencing for three-strike defendants must be longer and more severe than those without prior strikes for the same felony. If you are convicted of three or more violent or serious felonies, your prison sentence could be 25 years to life.
What's the least worst felony? ›Felony convictions are often offenses that include an element of violence and are detrimental for the victims and society. Felonies are classified based on their severity and related punishments. In general, Class 1 felonies are the most serious, while Class 6 felonies are the least serious.
What is the most common violent felony? ›Aggravated assault is the most common type of violent crime. It includes criminal behavior that involves an attack on someone with the intent to cause injury. It may or may not include the use of a weapon.
What does 126 mean for cops? ›
| Code | Description |
|---|---|
| 126 | Intercept suspects |
| 127 | Proceed with caution |
| 128 | No siren, no flashing |
| 129 | Request back up |
The law enforcement radio code 999 means “Officer needs emergency help,” but, in this case, it's not in reference to an officer in need. It's a reference to children in need.
What is the police code 186 in California? ›Participating in a Gang under California Penal Code Section 186.22(a) PC is a "wobbler" offense that can be prosecuted as either a felony or a misdemeanor. If charged as a misdemeanor, the maximum punishment is a year in jail and if charged as a felony, the maximum punishment is three years in prison.
What is 664 459 PC? ›Burglary is described under California Penal Code 459 PC, and attempted crimes are defined under Penal Code 664 PC. You rarely see attempted burglary filed because whenever the authorities think someone's trying to burglarize a location, it's so easy to do it, especially a residential burglary.
What is the sentence for attempted voluntary manslaughter in California? ›Penalties for attempted voluntary manslaughter are substantially less severe than the penalties for attempted murder which could result in life in prison. The penalties for attempted voluntary manslaughter in California include the following: Three, six, or up to eleven years in the state prison.
What is the CA PC for false imprisonment? ›California Penal Code 236 PC defines false imprisonment as the unlawful violation of the personal liberty of someone else. To violate someone's person's liberty means a sustained restriction of their freedom using violence, duress, fraud, deceit.
What is California civil code 640? ›Section 640 - Appointment of person agreed upon by parties as referee; person appointed if parties do not agree (a) The court shall appoint as referee or referees the person or persons, not exceeding three, agreed upon by the parties.
What is Penal Code 166 A in California? ›Under PC 166(a)(1) this occurs when you create a disturbance or noise in court to purposefully interrupt the court proceeding. Under PC 166(a)(4) this occurs when you willfully failed to follow court orders or willful failure to swear in as a witness or answer questions without a legal exemption.
What is California Penal Code 417 PC? ›Under California Penal Code Section 417 PC, it is a crime to publicly brandish a weapon or firearm.
What is the Penal Code 187? ›§ 187. “ Murder” defined, CA PENAL § 187
(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.
Is 632 PC a felony? ›
Penal Code 632 PC eavesdropping can be charged as a misdemeanor or felony crime.
What is California Penal Code Section 192 a attempted voluntary manslaughter? ›If you're convicted of Voluntary Manslaughter, you face a term of up to eleven years in a state prison and a fine of up to $10,000. Furthermore, Voluntary Manslaughter is punishable under California's “Three Strikes” system.
What is the minimum sentence for involuntary manslaughter in California? ›Legal Penalties
Involuntary manslaughter is always a felony offense in California. If you are convicted of violating California Penal Code Section 192(b), the legal penalties include 2, 3, or 4 years in a California state prison, felony probation, and a fine up to $10,000.
California Penal Code 192(a)defines voluntary manslaughter: Manslaughter is an unlawful killing of a human being without malice. Voluntary manslaughter occurs upon a sudden quarrel or heat of passion.
What are the four elements of false imprisonment? ›False imprisonment has four elements:
intent, actual confinement in boundaries not of the plaintiff's choosing, a causal link, and. awareness of the confinement.
Elements of the crime
intentionally detained, restrained, or confined another person; the restraint made the victim stay or go somewhere for a period of time; victim did not give their consent and was harmed; the conduct was a significant factor in causing victim's harm.
Penal Code § 236 PC defines the California crime of “false imprisonment” as unlawfully restraining, detaining, or confining a person against his or her will. The offense can be charged as either a misdemeanor or felony and is punishable by up to three years in jail.