What Defenses Are Available for PC 664/187 Attempted Murder?

Posted by Ronald D. HeddingNov 28, 2022

This is a good question because if you get charged with California Penal Code 664/187 attempted murder with premeditation and deliberation, you're looking at 15 to life, so you want to make sure there are any defenses available to you that you utilize them.

The first defense I would say, having defended these cases now for 30 years, is that you're not the person that committed the crime.  They can't identify you.

They don't have any DNA evidence.  They don't have a gun – whatever the case may be – it's a who dun-it-case, and your argument is, you're not the one who did it, and they can't prove it. 

Perhaps the person making the allegation against you is motivated to lie, and we can impeach their credibility.

Maybe you've got an alibi.  You were somewhere else at the time of the crime.  That's one defense, which is that you're not the perpetrator. Perhaps you are a victim of misidentification.

Perhaps your appearance is similar to the perpetrator's, or you drive a similar car. Maybe you were just in the wrong place at the wrong time.

We aim to raise reasonable doubt, convince the prosecution that they can't obtain a conviction, and drop the case. Perhaps in your defenses, we can use eyewitnesses or have surveillance video to support your story.


The next defense would probably be self-defense.  Maybe you did something that arguably amounts to attempted murder – you fired a weapon at somebody, tried to stab somebody, brutally attacked and injured somebody – whatever the case may be as far as what the prosecutors are claiming – but you argue that it's a circumstance where you were defending yourself. 

You can show that you were defending yourself and that the defense was reasonable and lawful; then, you can mount a self-defense claim.  You can also claim the protection of others. 

You can also claim other defenses that relate to the facts and circumstances surrounding your case.  So, that's what you've got to think about when assessing whether you can pull off a self-defense claim in an attempted murder charge.

Lack of Intent

I would say, probably the last general defense in an attempted murder case, that you didn't intend to kill the person.  That happens a lot. 

If somebody breaks off an attack on a person, they might argue that they weren't trying to kill anybody.  They were angry and lost their temper, but they didn't continue to attack the person. 

Attempted murder is a specific intent crime. If the defendant didn't intend to kill someone, then no attempted murder occurred. Perhaps we can argue that you only intended to maim the alleged victim as defined under Penal Code 203 PC mayhem.

Perhaps we can argue that you only intended to scare the victim as defined under Penal Code 240 PC assault laws. Maybe we can reduce the charge to Penal Code 245(a)(1) assault with a deadly weapon. Unless a prosecutor can prove the defendant intended to kill, the attempted murder charge can't be supported.

No Direct Step

Suppose a defendant made a plan to kill someone. They bought a gun and even wrote details of how it would happen on paper.

They even scouted locations to dump the body, but their plan was discovered before they could execute it. Perhaps they made detailed plans, had second thoughts, and decided to abandon the project.

It's only attempted murder when the defendant takes a direct step to complete it. This would include shooting at them or stabbing them with a knife. A plan only is not enough.

What is Attempted Murder?

Under California Penal Code 664/187 PC, attempted murder is when someone intends to kill a victim and takes a direct step towards killing them, but the victim does not die.

California Penal Code 664/187 attempted murder

Attempted first-degree murder is punishable by life in state prison. The sentence for attempted second-degree murder is punishable by five, seven, or nine years in state prison.

Put simply, attempting murder is trying but failing to kill somebody. Two crucial elements of the crime must that must be proven for a conviction, including:

  • A defendant took a direct step towards killing another person; and
  • Defendant intended to kill that person with malice aforethought.

A direct step requires more than just planning it. It requires putting a plan into action and that a murder would have occurred.

This direct step includes a wide range of conduct, such as shooting a weapon at someone or stabbing them with a knife. Direct action doesn't have to include any physical touching.

To obtain a conviction, prosecutors must prove an intent to kill. This means the location of a victim's injuries, such as injuries around the vital organs, is essential.

In some attempted murder cases, there are no injuries, and prosecutors must rely on the prevailing circumstances to prove intent to kill the victim.

Criminal Lawyer Specializing in Attempted Murder Defense

There are many murder and attempted murder charges being filed throughout Los Angeles county. Unfortunately, there's little difference between Penal Code 664/187 PC attempted murder and Penal Code 187 PC murder. 

Of course, you face more time if you're charged with murder.  But the problem with attempted murder is if it's planned, premeditated, and deliberated, then you face a minimum of 15 to life. 

You may be facing additional time depending on exactly what happened, whether a weapon was used, whether someone was hit, whether there was gang activity and a whole host of other potential enhancements that the prosecutors can use. 

And the most prominent bone of contention, I think, where having a great criminal defense attorney on your side is whether or not the prosecutors can prove that you were trying to kill the other person. Because for attempted murder, you have to have a specific intent to kill.  Many defenses are available.  For example, if:

  • you were using drugs or alcohol at the time of the incident;
  • whether it be a shooting, a stabbing, or how the attempted murder was supposedly effectuated.

You can use that as a defense and say look, I cannot form the specific intent to kill because I was so intoxicated. 

That defense is typically not available on any other crime, but when it comes to a specific intent crime, like attempted murder, then these types of defenses are available.  So, that's one angle to look at.

Other defenses would be self-defense and defense of others.  You could also argue that you did not commit the crime you were charged with. So that's another angle, depending on the evidence in the case.

If, on the other hand, the prosecutors have the evidence to prove the criminal case against you, then we may want to put together a mitigation package.

This is where we show the other end of what's going on because, in these attempted murder cases and most criminal cases, the police usually don't thoroughly investigate and look at all of the defense evidence. 

They're only looking at evidence to prosecute the person.  So, we try to give the prosecutors the other side of the coin as it relates to the evidence against you. 

Sometimes I'll even do the preliminary hearing in an attempted murder case to try to damage the prosecutor's case. But, again, not necessarily because we're going to be able to get it dismissed, although I certainly try to do that; if we can damage the case and show some weaknesses in their case, then we can use that to try to work out a better resolution.

Another thing we try to do to mitigate this is we'll get character letters.  Provide those to the prosecutors. So if you have a job or volunteer work that you're involved with, we're going to show the other available evidence. 

We also want to show the other side of a particular person and try to show the prosecutor that they're a good person.  They can do good things in society and shouldn't be given a sentence of 15 to life or more.

Reviewing the Facts and Circumstances

You have to look at the facts and circumstances of the case so you can figure out what type of defense makes sense to you.

Attempted Murder Defense Attorney in Los Angeles

It would be best if you had somebody like me who's been doing this for 30 years and have defended many of these cases because I'm going to let you know whether or not your defense makes sense and whether I think you have a good chance to win based on that particular defense.

Attempted murder is a severe charge.  It would be best if you had a serious attorney. It would be best if you had somebody who is going to fight for you and somebody with the skill level to win one of these cases, number and; and number two, the knowledge and know-how to know when to fight the case and when to negotiate the case.

So, if you want the best, you've come to the right place.  Let me put my decades of experience to work for you – the thousands of cases I've defended and had much success with.

Pick up the phone now and ask for a meeting with Ron Hedding.  I stand at the ready to help you. The Hedding Law Firm provides a free case evaluation by phone or fill out the contact form.