You will face attempted murder charges when you intentionally participate in actions to cause the death of another person but ultimately fail in the execution of the act. This offense encompasses a deliberate and premeditated endeavor on your part to bring about the demise of another human being. The key differentiation between attempted murder and murder lies in the fact that, in the case of attempted murder, your intended victim does not meet their demise as a consequence of the actions you undertake.

Bakersfield attorneys at California Criminal Lawyer Group break down the offense. Read on to familiarize yourself with the crime under California law, the penalties if convicted, and the defenses you can raise to challenge the charges. 

Attempted Murder Under California Law

Penal Code 664 recognizes that if a person attempts to commit a crime but is unsuccessful or prevented from completing it, he/she would face punishment involving imprisonment or fines, taking into account the severity and nature of the intended offense. The penalties for attempted crimes are generally less severe than those for successfully executed offenses.

Regarding murder, Penal Code 187 defines it as the intentional and unlawful killing of a human being or a fetus with premeditated malice. However, the section includes exceptions for situations involving the death of a fetus. These include:

  • Instances where the act is carried out by a licensed physician under circumstances where the mother's life is at risk or
  • If the act complies with the Therapeutic Abortion Act.

Consequently, under California law, an attempted murder is commonly referred to as a PC 664/187 violation, representing the combination of the offenses of attempted murder and murder.

Elements Prosecutors Must Prove in Attempted Murder Cases

In an attempted murder case, you, as the defendant, should be aware that the prosecution typically carries the burden of proving the following elements beyond a reasonable doubt:

  • Specific intent — The prosecution must demonstrate that you had a deliberate and conscious objective or purpose to unlawfully cause the demise of another individual.
  • Direct act — Prosecutors need to establish that you took an overt and unambiguous step towards the commission of the murder. This action must go beyond mere preparation and exhibit your intent to end a life.
  • Malice aforethought — The concept of malice aforethought is crucial in murder cases. In your attempted murder case, the prosecution must demonstrate that you possessed a mental state indicating a willingness to unlawfully terminate another person's life.
  • Awareness of the attempt — The prosecution is tasked with proving that you were fully aware that your actions had the potential to result in the victim's death. This element helps distinguish between mere preparatory steps and a genuine attempt to commit the crime.

Let us look at each element in detail.

     a) Specific Intent to Kill

The intent to kill is the mental state encompassing the desire and objective to unlawfully terminate another person's life. This intent signifies a deliberate and conscious aim to cause the death of an individual and serves as a critical element in charges of murder and attempted murder.

The intent to maim or injure alone is insufficient to establish attempted murder. The distinguishing factor lies in the specific intent to cause death. In these cases, prosecutors rely on the overall circumstances surrounding the case to demonstrate the intent to kill. This includes considering the complete context of the incident, irrespective of whether there are actual injuries or if the attempted act fails to result in harm.

To establish the presence of intent to kill, prosecutors rely on various types of evidence, including:

  • A defendant’s actions, statements, prior threats, and
  • Other circumstances that indicate a conscious desire to inflict fatal harm on another individual.

     b) Direct or Overt Act

A "direct step" implies engaging in a concrete and specific action directly tied to carrying out the intended murder. It indicates a tangible progression towards committing the unlawful act, suggesting a high likelihood that the crime would have been completed if not for some intervening factor or circumstance.

You must actively initiate the execution of the plan to meet the requirement of a direct step. This means going beyond mere planning or preparation. This signifies that the murder would have taken place if there had not been an external factor that prevented its full realization.

The specific nature of a direct step varies depending on the particular circumstances of your case. It could involve actions such as:

  • Acquiring or preparing a weapon.
  • Conducting surveillance on the intended victim.
  • Arranging a meeting or
  • Confronting or engaging in any other conduct that directly contributes to the execution of your murder plan, for example, paying a hitman.

     c) The Kill Zone Theory

In an attempted murder case, invoking the "kill zone theory" becomes significant in establishing your intent and determining the extent of your culpability. The theory suggests that if you engage in conduct where the intended victim is within a defined area of harm and show a conscious disregard for human life by targeting that area, it is evidence of your intent to kill.

Prosecutors argue that under the “kill zone theory," when you intentionally direct your actions toward a group of individuals close to the primary target, it indicates your intent to kill the primary victim and any other individuals within the kill zone. This allows prosecutors to attribute your actions toward multiple potential victims as proof of your intent to cause death.

By employing the kill zone theory, prosecutors can comprehensively portray your intent and the perilous nature of your actions, even if you do not directly harm all individuals within the designated area. It underscores your willingness to create a kill zone and showcases a conscious disregard for human life and a clear intent to inflict lethal harm.

Some common scenarios where the kill zone theory is relevant include:

  • Opening fire in a crowded public area, for example, a concert venue, shopping mall, or park, where multiple individuals are present. The prosecution will argue that you created a kill zone. The theory suggests that by targeting the location, you demonstrated a specific intent to cause harm or death to anyone within that area.
  • In cases where you commit a drive-by shooting, where you shoot at a specific group of individuals or a particular vehicle, courts invoke the kill zone theory. The prosecution will argue that you intended to create a zone of harm around the targeted individuals or vehicle, indicating a specific intent to kill.
  • If you plant or detonate an explosive device in a crowded area, for example, a market or public transportation hub, the prosecution will employ the kill zone theory. Prosecutors will argue that you intended to create a zone of harm to cause mass casualties.
  • In cases where an individual meticulously plans and executes an attack on a specific group or individual, for example, laying in wait or setting up a trap, the kill zone theory applies. The prosecution will contend that you deliberately created a kill zone, demonstrating your intent to cause fatal harm to the targeted individuals.

Degrees of Attempted Murder

For you to face attempted first-degree murder charges, the prosecution must establish elements similar to those required for first-degree murder. These elements include proving that:

  • You possessed a specific intent to cause the death of another person.
  • Engaged in deliberate and willful actions, and
  • Demonstrated premeditation.

The prosecution needs to demonstrate that you had a definitive and undeniable intention to commit first-degree murder, regardless of whether the actual killing took place.

The difference between attempted first-degree murder and attempted second-degree murder lies in the presence of premeditation and deliberation. Attempted first-degree murder involves more planning and careful thought before the act, indicating a more calculated and purposeful endeavor to cause someone's death. On the other hand, attempted second-degree murder generally lacks the elements of premeditation and deliberate intent, suggesting a less planned or impulsive attempt to cause harm to another person.

Defenses You Can Raise in Attempted Murder Cases

You can raise several defenses in an attempted murder case, depending on the specific circumstances. Consult your criminal defense attorney to settle on the ideal defense strategy.

Some of the common defenses include the following:

     a) Lack of Intent

Asserting a lack of intent in an attempted murder case involves claiming that you, as the defendant, did not possess the specific intent required for the crime.

This defense strategy challenges the prosecution's case by presenting evidence or arguments that raise doubts about your state of mind at the time of the offense. It emphasizes a conscious desire or purpose that did not drive your actions to cause someone's death. By asserting a lack of intent, you aim to challenge the elements of the crime and weaken the prosecution's case against you.

     b) You Acted in Self-defense or Defense of Others

The self-defense or defense of others defense strategy argues that you acted to protect yourself or someone else from imminent harm, including the threat of death or serious bodily injury. This defense strategy aims to justify your actions by asserting that they were necessary and reasonable.

You can provide the following types of proof to support acting in your own defense or the defense of others:

  • Imminent threat — Show evidence or provide testimony that establishes the existence of an immediate threat of death or serious bodily harm that you reasonably believed was about to occur. This can include witness statements, physical evidence, or other relevant documentation supporting your claim.
  • Proportional response — Demonstrate that your actions were proportionate to the perceived threat. Given the circumstances, this means showing that your use of force was not excessive or unreasonable. The evidence could include witness testimony, expert opinions, or other relevant information supporting your response's reasonableness.
  • Lack of alternative options — Argue that you had no reasonable opportunity to retreat or avoid the threat and that using force was necessary to protect yourself or others. This can be supported by presenting evidence of the situation, including physical barriers, witness testimony, or any other relevant information demonstrating the lack of a viable alternative.
  • Prior threats or history of violence — Provide evidence of earlier threats or a history of violence from the alleged victim. This supports your claim that you reasonably believed using force was necessary for self-defense or the defense of others.
  • The credibility of witnesses — Challenge the credibility of the prosecution's witnesses by identifying inconsistencies, biases, or ulterior motives that casts doubt on their reliability. This can weaken the prosecution's case and strengthen your self-defense or another person’s defense.

     c) You Took a Direct Step

The "lack of taking a direct step" defense requires arguing that you did not take concrete and unequivocal action toward the commission of the attempted murder. This defense strategy aims to contest the prosecution's claim that you had progressed beyond mere preparation or planning and had moved towards the actual execution of the crime.

By asserting the lack of taking a direct step, you suggest that your actions did not demonstrate a firm and immediate intent to commit murder. This defense strategy seeks to challenge the prosecution's evidence regarding your level of involvement in the attempted murder and the establishment of the necessary mental state required for the offense.

     d) You Were Mistakenly Identified as the Culprit

The mistaken identity defense asserts that you did not attempt to kill the victim. This defense strategy challenges the prosecution's identification of you as the perpetrator and contends that someone else was responsible for the crime. To support the mistaken identity defense, you can present the following types of evidence:

  • Alibi — Provide evidence or witnesses that can confirm your presence elsewhere at the time of the attempted murder, making it impossible for you to have committed the crime.
  • Surveillance footage or documentation — Look for any available surveillance footage or other documentation that captures the incident or the presence of the actual perpetrator. If this evidence exists and can demonstrate a different individual involved, it can support your claim of mistaken identity.
  • Witness testimony — Gather witnesses who can testify that you were not present at the crime scene or that they saw someone else committing the offense. Eyewitness accounts or testimony from individuals who can provide an alternative identification can support the mistaken identity defense.
  • Forensic evidence — Analyze any forensic evidence related to the case, for example, fingerprints, DNA, or ballistics, to determine if it matches your profile. If there is evidence that points to a different individual, it can help establish that you were not the one responsible for the attempted murder.
  • Inconsistencies in witness statements — Scrutinize the statements of witnesses to identify any discrepancies, contradictions, or biases that could doubt their reliability. Challenging the credibility of witnesses identifying you as the perpetrator can weaken the prosecution's case.

     e) You Were Falsely Accused

The false accusations defense asserts that you have been wrongly accused of attempted murder. This defense strategy aims to challenge the credibility and reliability of the prosecution's evidence and witnesses by claiming that the allegations against you are unfounded and based on false statements or motives.

To support the false accusation defense, you can provide the following types of evidence:

  • Alibi evidence — Present evidence, like witness testimony, surveillance footage, or documentation that establishes your presence elsewhere during the alleged crime. This can undermine the prosecution's claim that you were involved in the attempted murder.
  • Inconsistent statements — Identify inconsistencies or contradictions in the statements provided by the alleged victim or other witnesses. These inconsistencies can cast doubt on the accuracy and credibility of their accusations.
  • The motive to lie — Present evidence or arguments that suggest the alleged victim or other witnesses have a reason to accuse you falsely. This can include personal vendettas, ulterior motives, or other factors explaining their willingness to provide false statements.
  • Character evidence — Provide evidence of your good character, reputation, or past behavior that contradicts the allegations made against you. This can involve testimonies from friends, family members, colleagues, or others who can vouch for your character and integrity.
  • Expert testimony — You should seek expert witnesses, like forensic experts or psychologists. They will provide professional opinions or analyses that support your defense. They can evaluate the evidence, assess the credibility of witnesses, or offer alternative explanations for the events in question.
  • Third-party evidence — Gather additional evidence, for example, physical evidence, surveillance footage, phone records, or any other relevant documentation that can support your claim of false accusations or contradict the prosecution's version of events.

Penalties You Could Face Upon Conviction for Attempted Murder

If convicted of attempted first-degree murder, you could face the following penalties:

  • Life imprisonment in prison with the possibility of parole.

If the victim of attempted murder was an on-duty:

  • Peace officer.
  • Police officer.
  • Law enforcement officer.
  • Firefighters or other protected people.

You could be required to serve at least fifteen (15) years before being eligible for parole. This mandatory minimum sentence reflects the seriousness with which the law treats acts of violence against those in public service and protection positions.

If convicted of attempted second-degree murder, you could face the following penalties:

  • 5, 7, or 9 years in prison.

Additional Penalties

Additional penalties include the following:

     a) Monetary Penalties 

  • Victim restitution.
  • Fines of up to $10,000.

     b) A Strike Under California’s Three Strikes Law

A conviction for attempted murder has the potential to result in the application of a strike under the Three Strikes Law. This law establishes stricter penalties for individuals with previous convictions for serious or violent felonies.

Since attempted murder is classified as a serious and violent felony, individuals convicted of attempted murder with one or more prior strikes on their criminal record face enhanced consequences, including longer periods of incarceration.

Note: Applying the Three Strikes Law is contingent upon the unique circumstances of the case and your criminal history.

     c) Gang Enhancement

If you are found guilty of gang-related attempted murder in California, you will be subject to an additional sentence according to Penal Code 186.22. The prosecution must demonstrate that the attempted murder was committed for:

  • The benefit of.
  • Under the direction of, or
  • In affiliation with a criminal street gang for the extra penalty to apply.

In cases of gang-related attempted murder, the supplementary sentence is 15 years to life imprisonment. This means that the additional penalty will be served consecutively in addition to the sentence for the attempted murder offense itself.

Consecutive sentencing implies that you will first complete the full term for the attempted murder charge and subsequently commence serving the additional sentence related explicitly to the gang-related aspect.

     d) 10-20-life

If you are convicted of attempted murder and it is determined that you personally and intentionally used a firearm during the commission of the offense, you will face additional sentencing enhancements under PC 12022.53.

The enhancements depend on the circumstances of your case and the type of firearm involved. Here are the mandatory minimum sentences established by the law:

  • Using a firearm can lead to 10 years in prison.
  • Firing the gun increases the prison sentence to 20 years.
  • Causing severe bodily harm can result in 25 years to life in prison.
  • Taking a life using a firearm could lead to 25 years to life imprisonment.

These enhancements are applied in addition to the penalties for attempted murder itself.

Further Consequences of a Conviction

Loss of Gun Rights

Convictions for felonies, like attempted murder, can result in significant consequences, including losing gun rights. Under Penal Code 29800, individuals convicted of a felony offense, including attempted murder, face a lifetime ban on owning, possessing, or having custody or control of firearms.

Impact on Immigration Status

Convictions for attempted murder are classified as aggravated felonies under immigration law. Consequently, non-citizens found guilty of attempted murder are subject to deportation or removal from the country. The aggravated felony designation carries serious immigration consequences, and non-citizen defendants need to be aware of the potential immigration implications when facing charges related to attempted murder.

Find a Criminal Defense Attorney Near Me

If you are facing an attempted murder charge and believe you have a strong defense, it is crucial to take action immediately. Consult an experienced Bakersfield defense attorney specializing in criminal law to assess your case and develop a solid defense strategy tailored to your circumstances.

At California Criminal Lawyer Group, our skilled defense attorneys will provide valuable guidance, protect your rights, and advocate on your behalf. They will help you gather evidence, interview witnesses, and challenge the prosecution's case to ensure the best possible outcome for your situation. Contact us at 661-750-8230 for more information.