California PC 664/187(a) outlines the crime of attempted murder. You may face attempted murder charges if you intend to kill a victim and take direct steps towards killing the person, but the person does not die. Attempted murder can fall under two categories: first-degree and second-degree. Attempted murder in the first degree is punishable by life imprisonment of five, seven, or nine years in a California state prison. If you face attempted murder charges, the Chula Vista Criminal Attorney can help you create a solid defense to fight the charges.
Definition of Attempted Murder Under California Law
California law defines the crime of attempted murder as trying but failing to kill another person. The prosecutor must prove two elements to charge you with attempted murder:
- The prosecutor must prove that you took at least one direct step towards killing someone else, but the step was ineffective
- The prosecutor must also prove that you intended to kill the victim, commonly known as malice aforethought.
For this law, it is essential to note that a fetus is considered a person.
Taking A Direct Step Towards Killing A Person
Taking a direct step towards killing someone means that you did more than planning a person's killing. It means that you went ahead and put your plan into motion. It means that if an external factor had not interfered with your actions, the murder would have occurred. Taking a direct move towards killing someone can be signified by several acts:
- Stabbing another person in the chest
- Shooting a gun towards the victim
- Paying someone else to kill the victim
The following actions do not qualify as direct steps in an attempted murder case but are merely examples of murder preparation:
- Loading your gun
- Buying a weapon like a knife
- Searching the internet for people you can hire to murder someone
It is important to note that taking a direct step does not require physically touching the intended victim. You can face attempted murder charges as long as you put a plan to kill into action, even if you were not in contact with the victim.
Proving The Intent To Kill
The prosecutor must prove beyond reasonable doubt that the defendant had an intent to kill. Intent to injure or maim the victim is not enough to make the defendant face attempted murder charges. When proving the intent to kill, the prosecutor will consider the location of the injuries inflicted on the victim. For example, if you inflict wounds on the victim's upper body, this indicates your intent to kill the victim. This is because the majority of the vital organs, like the heart, are located in the upper body.
If you attack a victim and inflict injuries on their lower body, this mainly indicates an intent to injure but not an intent to kill. Even if you intended to kill, the prosecutor might have a challenge proving it if you only inflicted injuries on a victim's lower body.
In most cases of attempted murder, there are no injuries at all. Therefore, the prosecutor typically relies on circumstantial evidence to prove the defendant's intent to kill. For example, the police may be pursuing you when you suddenly stop, point your gun at the police, and fire, but the bullet misses them, and before you can fire a second shot, your gun jams. Even if you failed in injuring the officer, the act of shooting at them indicates that you had an intent to kill. The prosecutor does not need to prove that you intended to kill a specific person. The law only requires them to prove that you intended to kill someone.
In most cases of attempted murder, a primary target exists, and it is easy to identify. However, a specific target is not a requirement when assigning attempted murder charges. For example, if you fire a shot into a group of people, you may face attempted murder charges. You would face attempted murder charges even if you did not intend to shoot a specific person. Shooting into a group of people is enough to attract attempted murder charges. California law recognizes the kill zone theory regarding attempted murder charges. This means that you will be responsible for any other person you may inadvertently kill as you try to kill your specific target.
For example, you may place a bomb in a commercial airplane, intending to kill a particular passenger. The bombing could lead to the death of every passenger in the plane. However, the bomb does not go off, and therefore no one dies because of your actions. The court may convict you of the attempted murder of every person in the plane because if the bomb went off, there is a possibility that everyone in the plane would have died.
To face charges under the kill zone theory, you do not need to have known that other people were in the kill zone. For example, you may shoot at several residences intending to kill two target persons. However, in total, ten people were in the kill zone. Even if you only intended to kill two people, the prosecutor might charge you with ten counts of attempted murder for all the people in the kill zone. The fact that you could not see the other occupants will not negate your malice and intent to kill them.
The Penalties For Attempted Murder Under California Law
Attempted murder attracts felony charges under California law. However, the crime attracts less severe penalties than the crime of murder. The punishment a defendant faces for attempted murder is usually half the penalty the defendant would face for murder. Just like murder crime under California PC 187, attempted murder has two degrees. Therefore, the penalties you face will vary depending on whether you commit first–degree attempted murder or second–degree attempted murder.
First–Degree Attempted Murder
You will face first–degree attempted murder if the prosecutor proves that you acted deliberately, willfully, and with premeditation. The punishment for first–degree attempted murder includes:
- Life imprisonment in a state prison in California
- There is a possibility of parole, but this is determined through a parole board hearing.
If you commit attempted murder on the following victims while on duty, you must serve at least fifteen years in prison:
- A police officer or peace officer or law enforcement officer
- A firefighter
- Other protected persons
Any other form of attempted murder that does not qualify as first–degree attempted murder qualifies as a second–degree murder. You would face second–degree murder charges if your attempt to kill the victim were not premeditated or deliberate. The consequences for a second–degree murder include:
- Imprisonment of five years in a state prison
- Seven years in a state prison
- Nine years in a state prison
The length of imprisonment will vary depending on the specific facts of your case. For a first–degree and second–degree attempted murder, you will face additional penalties that include:
- A fine that does not exceed $10,000
- Paying restitution to the victim for all the losses the victim may have incurred because of your actions
- Losing your gun rights
California PC 29800 makes it illegal for convicted felons to possess or own a firearm.
California Three Strikes Law
After a conviction of attempted murder, you will get a strike on your record according to California's three-strikes law. If you commit a subsequent crime and you get an additional strike, you become a second striker. As a second striker, you will get a double sentence for any offense you commit. The third strike on your criminal record carries a minimum imprisonment of 25 years to life imprisonment in state prison.
Gang Related Attempted Murder
Gang-related attempted murder will attract a criminal gang enhancement, meaning that you will get an additional fifteen years to life imprisonment in a state prison in California. PC 186.22 outlines everything that you need to know about criminal gang enhancement. If you execute the crime of attempted murder using a gun, you will face enhanced charges under the 10-20-life use a gun, and you are done rule. According to this enhancement, you will face an additional sentence of:
- Ten years imprisonment if you use a gun
- You will face 20 years imprisonment if you fire a gun
- A penalty enhancement of 25 years to life imprisonment will apply if you kill someone else with a gun.
This penalty enhancement will also apply if you use a gun to cause substantial bodily injury to another person.
Adverse Immigration Consequences
A conviction of attempted murder could have negative immigration consequences because it is an aggravated felony. If you are non –citizen, a conviction of attempted murder could lead to deportation from the United States. In addition, a conviction of the crime could also render you inadmissible into the United States.
Fighting Attempted Murder Charges
There are several legal defenses that you can use to fight attempted murder charges. Some of the typical defenses that you can use to fight charges under PC 664/187 are:
You Had No Specific Intent To Kill The Victim
The prosecutor needs to prove that you had a specific intent to kill the victim for them to accuse you of attempted murder. No attempted murder occurred if you had no intention to kill the victim. You can prove with the help of your criminal defense attorney that you had no specific intent to kill the victim, but you only intended to:
- Scare the alleged victim
- Maim the alleged victim
If you intended to maim the victim, you might face charges under PC 203, mayhem, instead of attempted murder charges. If you only intended to scare the victim, you may face assault charges under PC 203 or assault with a deadly weapon under PC 245. The attempted murder charges will not be sustained if the state cannot prove that you intended to kill the victim.
You Didn’t Take A Direct Step To Kill The Victim
Another element of the crime of attempted murder is that the defendant must have taken a direct step to kill the victim. As long as you didn’t take a direct step, you cannot face charges even if you planned to kill the victim, acquired the necessary weapons, planned how to kill them and how to dispose of their body. If you do not go ahead and attempt to execute your plan to kill the victim but failed, then no attempted murder occurred.
No attempted murder occurs if you make all the preparations outlined above, but you abandon the plan to kill the victim. A crime only becomes attempted murder if you take a direct step. If you leave the murder plan after taking a direct step, your criminal defense attorney can try to negotiate with the prosecutor to reduce your charges and offer you a plea bargain. The fact that you abandoned the murder plan means that you demonstrated remorse and regret.
In many attempted murder cases, mistaken identity is a common occurrence. Perhaps you resemble the actual culprit, and the victim misidentifies you. Maybe you drive a vehicle that resembles the one that was used during the execution of attempted murder. Perhaps you were just in the wrong place at the wrong time, and you end up facing charges for a crime that you didn’t commit. Your criminal defense attorney will effectively investigate your case. The charges against you will be dropped if the attorney can raise a reasonable doubt regarding your conviction. The prosecutor might even be willing to drop your charges.
You Acted In Self–Defense or Defense of Another Person
California law allows people to use force while defending themselves or another person. For this defense to apply, you must have believed that you or another person was at risk of imminent harm. A person can attack and kill their assailant if they think that they are about to kill them. When you are in the face of harm or danger, there is no duty to retreat first. You can go ahead and stand your ground in self-defense.
For example, you might be walking in a park when a masked man comes to you and holds up a knife to your neck. You manage to bring down the masked man, take the knife from him and stab him in the chest. In this scene, you indeed took a direct step to kill the man. However, you only did this because you believed that your life was in jeopardy.
After all, the robber was holding a knife to your neck. You had no legal duty to try to run away first. When using the self-defense argument, it should be evident that you did not use more force than was necessary under the circumstances. This defense will hold if there is the presence of witness accounts, surveillance videos, and medical records indicating the injuries you suffered.
You Were Falsely Accused
The victim can also accuse you falsely of attempted murder, yet you did not commit the crime. Your attorney will help you gather all the necessary evidence to prove that you were falsely accused. Your attorney will find evidence that explains the accuser's motive to lie. For example, the victim may accuse you falsely out of jealousy, revenge, or any other motive. If it turns out that you did not commit the crime, the judge will drop your charges.
Certain crimes under California law are related to the offense of attempted murder. These offenses are typically charged alongside the crime of attempted murder. The crimes may also replace attempted murder charges depending on a case's circumstances. The related crimes include:
Shooting At An Inhabited Dwelling Or Occupied Vehicle
Under California PC 246, it is a crime to discharge a firearm at an occupied vehicle or an inhabited dwelling. You may face charges under PC 246 if you also discharge a gun at an inhabited house car like a camper, RV, or occupied aircraft. The prosecutor has to prove several elements to charge you under PC 246:
- You intentionally and maliciously shot a firearm
- You shot the firearm at either an inhabited house or house car, inhabited camper, occupied motor vehicle, occupied building, or occupied aircraft.
Willfully committing the act means that you did the act on purpose or maliciously. It also means that you acted with an unlawful intent to annoy, defraud, injure, or disturb another person. If you shoot your firearm entirely by accident, the prosecutor cannot accuse you of acting willfully or maliciously. According to the law, a firearm is any weapon from which a projectile is expelled or discharged through combustion or by force of an explosion. The crime of shooting an inhabited vehicle or inhabited structure is a felony offense under California law. The potential punishment for the violation include:
- Formal or felony probation
- Imprisonment of six months to one year in a California county jail or imprisonment of three, five, or seven years in a state prison
- A fine not exceeding $10,000
Because the violation of PC 246 is a violent firearm offense, it could result in losing your gun rights. Some of the defenses that you can use to fight charges under PC 246 include:
- You discharged the gun by accident
- You acted in self-defense or defense of someone else
- Mistaken identity or false accusation
California PC 26100 defines the crime of drive-by shooting. You may violate PC 26100 if you maliciously discharge a firearm from your vehicle or if you allow someone else to bring a firearm to your car. The prosecutor has to prove that:
- You willfully and maliciously shot at another person from inside your vehicle
- You allowed another individual to bring a gun to your car and shoot the gun from within the car
It is important to note that the vehicle does not have to be moving for you to be accused under this statute. Under this statute, the following qualify as a motor vehicle:
- Passenger vehicle
- Motor scooter
- School bus
- Commercial vehicle
The violation of PC 26100 can be charged as either a misdemeanor, a wobbler, or an outright felony, depending on your case's circumstances. You will face misdemeanor charges if you allow another individual to bring a gun to your vehicle. The penalties will include:
- Imprisonment of six months in a county jail
- A fine not exceeding $1000
The crime becomes a wobbler if someone fires a gun from your vehicle or you allow a passenger to shoot a gun from your car. The crime is a straight felony if you shoot a gun at another person while in a vehicle. In this case, the offense will be punishable by:
- A jail time of up to seven years in a state prison
- A fine that does not exceed $10,000
Torture, PC 206
You may face torture charges under PC 206 if you inflict substantial bodily injury on a victim to cause extreme suffering or pain for persuasion, revenge, or any other sadistic aim. Torture is a felony offense under California law. The crime is punishable by life imprisonment in state prison, with a possibility of parole. The main reason for this severe punishment is not because the victim suffered pain but because the defendant intended to inflict pain on the victim for sadistic purposes.
A conviction of torture will also have negative immigration consequences. Therefore, a conviction could lead to deportation or being marked inadmissible into the United States if you are a non-US citizen. In addition, after a conviction of torture, you cannot get an expungement of your criminal record.
With the help of an experienced attorney, you can use the following legal defenses to fight torture charges:
- You did not have a criminal intent
- At the time you committed the offense, you were legally insane
- You acted in self-defense
Other Related Offenses
Other crimes related to attempted murder are:
- California domestic violence offenses
- Attempted voluntary manslaughter
- Aggravated battery
- Soliciting someone to commit a crime
- Attempted aiding a suicide
Find A Criminal Attorney Near Me
Attempted murder is a serious offense under California law with severe potential consequences. Therefore, it is advisable to contact a reliable criminal attorney immediately after an arrest for the crime. For reliable defense and legal representation, contact the Chula Vista Criminal Attorney. Call us at 619-877-6894 and talk to one of our attorneys.