Attempted Murder Law in California – Penal Code 664/187 PC

The violent crime of attempted murder is one of the most severe crimes a person can be charged with. Suppose the prosecutors can prove that the subject defendant deliberated and premeditated before trying to kill another person. In that case, the judge must sentence that person to 15 to life in state prison.

Under these circumstances, the sentenced person will have to serve eighty-five percent of fifteen years before they are eligible to be paroled. Further, it is possible the Parole Board could never let them out of custody. Therefore, these cases can be just as severe as murder cases, and they require the best, most experienced criminal defense attorneys to defend them.

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The critical thing that the prosecutors must prove before convicting a person of attempted murder is that they had the specific intent to kill another person. This is where the defense against this crime can usually be established.

A person often attacks another person but then breaks off the attack because they realize the other person is no longer a threat. Under these circumstances, the defense would have a good argument that the defendant did not harbor the specific intent to kill because they broke off the attack before actually inflicting enough damage to kill the other party.

Law on Attempted Murder Cases 

According to California, Penal Code Section 664/187, an attempt is considered a specific intent crime. The prosecution must prove beyond a reasonable doubt that the defendant acted intentionally and deliberately and that there was a substantial step towards the commission of the crime.

The usual scenario in these cases involves one person firing a weapon at another person. Under these circumstances, the prosecutors would have a solid argument to prove that the shooter was trying to kill the other person. However, depending on what came before the actual shooting, there still could be a defense for the shooter.

If a person acted deliberately and intentionally with extreme disregard for human life to inflict fatal bodily injury, that person would likely be charged with attempted murder. Under the right circumstances, this is another angle for the prosecutors to charge a person with attempted murder. For example, if someone crazily drives a car and runs over another person, I have seen the prosecutors charge attempted murder and want a significant sentence for the subject defendant.

However, they will have to prove more than just reckless driving; they will have to show the subject driver acted so wanton and with a depraved heart to go past mere negligence and go into a zone where very few sane people will travel.

Although attempted murder is lesser than murder charges, the penalties are still severe, and a conviction may result in many years in prison. As your lawyer, we investigate the costs and do everything to dispute and contest all the evidence presented against you. (Lack of intent or self-defense is the most common defense to attempted murder).

We can guarantee competent, persistent, and aggressive representation with our 75 years of combined experience and outstanding legal skills and strategy. Get in touch with us and set up a free consultation.

Elements of the Crime for Attempted Murder

To find a person guilty of attempted murder, the government must prove that:

  1. The person took at least a direct but ineffective step toward killing another person;
  2. The defendant intended to kill that person.

A direct step is defined as an act that is more than planning or preparing to commit murder; it is an overt act in furtherance of a plan to commit murder. In other words, it is an act that puts a person's intent to murder into motion. Additionally, a person can still be found responsible for attempted murder even if after they made a direct step, they abandoned their plan, or their plan failed.

As you might guess, some of the laws and circumstances surrounding an attempted murder case be complex and not easy to understand. Therefore, it is always best to consult with an expert who has handled these cases, knows how to defend them, and can give you an honest assessment of what you are facing and what must be done to protect you under your particular case.

California Criminal Jury Instruction 600 For Attempted Murder

Over the last twenty-five years, I've defended many of them regarding attempted murder charges under California Penal Code Section 664/187.  The jury instructions look pretty straightforward, but they're not that simple because once you dig into these cases, there's a lot more going on.

There's a lot more than meets the eye.  So, when the jury instructions are given to a jury, they're told the defendant is charged with attempted murder.  To prove a defendant guilty of attempted murder, the prosecution has to show the following two elements:

  • The defendant took at least one direct but ineffective step towards killing another person;
  • The defendant intended to kill that person.

Let's break these things down because they're not that easy, and it's not that clear. When it comes to taking a step toward killing somebody, a perfect example that the prosecutors could get if they could prove, either through direct or circumstantial evidence, that somebody fired a weapon at another person and missed them, and the person then got away.

That would certainly be a step towards trying to kill somebody if you're firing a weapon at somebody.  But a lot of these cases are not that simple.  Even take the simple firing of a gun at somebody.  If somebody else is firing a weapon at you and you fire back at them, that's self-defense.  That's not guilty.

So, it's not always that clear-cut, and there are all sorts of different defenses that can be utilized when it comes to these attempted murder cases.  Sometimes people do certain things that don't rise to the level of being a significant-enough substantial step to get somebody for attempted murder, and there are all sorts of examples.

You have to get with your criminal defense attorney and go over these jury instructions because these jury instructions will control whether or not a person is found guilty or not guilty when they're put in front of a jury. So, these Cal Crim 600 jury instructions are the ones that the judicial council uses, and there are all sorts of different bench notes and different angles that can be used.  One of the most prominent angles that I use in these attempted murder cases is that you have to have the intent to kill the person.

If you get in a fight with somebody and you beat them several times, and then you break off your attack, that's not attempting to kill somebody, if you remember, way back when the Reginald Benny case, that poor guy got attacked by a bunch of people.

They beat him senselessly.  It was horrible news, but I think they were found not guilty because they broke the attack off.  They didn't keep going until this gentleman was dead.  That's a huge issue.  If somebody stops an attack and can't prove that they intended to kill the other person, then there's no way they'll get him for attempted murder.

The second element is exactly what I'm talking about: you have to kill the person.  If you're trying to hurt somebody, which is a horrible example, but it's true, if you shoot him in the leg, you're not trying to kill that person. So, all different crazy circumstances have gone on in my career over twenty-five years and out there in Los Angeles County, a bustling metropolis. 

So, suppose somebody does not intend to kill another person. In that case, there's no way that they're going to be able to be convicted of attempted murder because you're looking at 15 to live just for attempted murder alone. If you use a weapon, there are all sorts of weapon enhancements.  There's a lot of stuff regarding these attempted murder cases and being able even to prove a direct step towards killing somebody.

That means you have to plan it.  You have to think about it.  You have to arrange it.  If somebody's not thinking about it and planning it, they're not going to get convicted of attempted murder.  Now certainly, somebody can very spontaneously and quickly come up with a plan to kill somebody. Still, if it's just a spontaneous act depending on the circumstances, that's another angle to attack an attempted murder case.

Lack of Intent

Having practiced in Los Angeles for 26 years and handling thousands of attempted murder-related offenses, I have a good idea of the number one defense. I have a pretty good idea of the number one defense.  Of course, you have to look at the facts of the case and see what happened and then make an excellent effort to decide what the best defense will be for the case if it's a case that you're going to fight.

The number one defense I've seen is that the person did not intend to kill the other person.  These attempted murders (CALCRIM 600) cases are tricky because if you get convicted, you're looking at a 15 to life sentence just for that charge alone.

So, that gives the prosecutors a pretty big hammer against anybody they charge with attempted murder. They're pretty harsh with these cases. But there's more than meets the eye many times, and the police haven't done an excellent investigation.  They've only tried to bring out evidence about the defendant being guilty versus investigating the overall case to find out what happened.

That's where the defense comes in to talk to the client in the case and get all of the information.  Of course, some of the communication might be great information. Some news might not be as good as we would like, but we want to get all of it to decide on the best course of action if you're charged with attempted murder because of the severe nature of the charge.

We get all the information from the client first.  Then we'll investigate to see if any witnesses need to be talked to.  I can help my investigator with that.  Of course, I will tell the investigator what questions to ask and what angle we're looking at.

Negotiation with Prosecutor for Lesser Charges

I've tried many attempted murder cases in Los Angeles County and the San Fernando Valley courthouses and had a lot of success.  Sometimes the prosecutors over-file these cases, as defined under California Penal Code 664/187.

It's some fight.  Maybe it's assault with a deadly weapon.  Perhaps it's self-defense.  But for some reason, these guys charge attempted murder. It gives them much power because a defendant in a single attempted murder charge is looking at 15 to life. Adding a gang enhancement behind that adds an extra ten years on the back of the sentence.

So, the prosecutors now have a lot of power, and if you don't play ball with them or negotiate with them, you could get convicted. If you get convicted of attempted murder, the judge doesn't have discretion.  They must give you 15 to life.

Also, in conjunction with all this, we will need the police report.  We're going to need to see precisely what investigation the police have done, what they're claiming happened, what the witnesses are saying, and lastly, what I like to get is a perspective from the prosecutor.

Best Defense to Attempted Murder Charge in California

So, I will challenge the prosecutor and say, why do you think my client is suitable for attempted murder? Then I'll be quiet and listen and take notes.  Let's see what the other side has to say about it.

Once we have all that information, we can formulate our game plan — our attack plan.  Is it going to be a case that's going to be fought through to a jury trial, or is it going to be a case that we need to negotiate — try to work out some resolution — maybe get a lesser charge?

So, that's what we're looking at.  A lot of times, cases are over-filed.  They shouldn't be charged with attempted murder.  They should be charged with something else.  But if you want to try to convince the prosecutors of that, you will have to have a good argument.

We need an argument that makes sense, an argument that challenges some of the elements of an attempted murder case under Penal Code 664/187, and to do that, usually, what I see as the best defense is, look, the person didn't intend to kill the other person.

Real Attempted Murder Case Example

I can give you a perfect example of a case that I just did.  I was able to get my client an accessory after the fact, and she was able to avoid that attempted murder conviction.  It's a scenario where she was simply a driver, so that was one form of defense — that she didn't shoot anybody.  She didn't intend to kill anybody.

But also, we looked at what the defendant, who was the one that supposedly was the one trying to kill the other party, did in the case.  He did shoot the other party after they wrestled for a gun, but after the initial shooting, the defendant got command of the gun and had it in his hand.

The other defendant had been shot but could still move around and stand up, and the one defendant with the gun went right up to him and did not shoot him.  He left.  One-shot.  So, how can they prove an attempted murder case in that scenario?

He had the opportunity to finish the job of killing the person, and he didn't take it.  That shows his intent, and of course, that reverberates back to my client, who never had the intention to kill anybody but did drive the person who shot the gun away from the scene.

Getting Attempted Murder Charges Reduced or Dismissed

I've handled hundreds of cases related to attempted murder charges.  I've been successful.  I've gotten not guilty verdicts.  I've gotten cases dismissed at the preliminary hearing.  Some of these attempted murder charges were reduced to lower charges, whether assault with a deadly weapon or some other charge.

If you can't sustain a conviction for attempted murder, then your best bet is to hire an attorney who will fight for you — who will challenge the prosecutor's evidence. Sometimes at the preliminary hearing, the prosecutors will call their witnesses.  That gives the defense in these attempted murder cases a chance to cross-examine the witnesses.

Sometimes to attack their credibility and sometimes destroy them as a witness altogether, and without that witness, the prosecution's case often falls to pieces. So, if you're looking to find an attorney who will fight for you or your loved one who is charged with attempted murder in the San Fernando Valley, you've got to get somebody who is a warrior.

A lawyer who knows what it takes to win a case knows how to deal with the prosecutors and judges in the San Fernando Valley courthouses and who can break a case down.

Close Review of the Evidence

Review of the Evidence in California Attempted Murder Cases
The first step to defend an attempted murder case is a close review of evidence and talk to the prosecutor.

The first thing I do when I'm hired on these cases is, I've got to review all the evidence.  I have to talk to the prosecutor to see what their position is.  Now I'm going to go to my client and say I reviewed the evidence.  Here's what I see.

Here's what the prosecutor is claiming.  What's our position?  I listen to what they have to say, and then we will talk about the best course of action moving forward. Because in an attempted murder case, my client and I have got to be on the same page.  We've got to be driving towards the same result.

Do we have a self-defense claim?  Is this a situation where the charges have been over-filed?  Or do they have the correct amounts, and do we need to do damage control. These are all things I'm looking at; I'm thinking about and making the right decision at the right time, so my client can end up with the best possible result.

If you or a loved one is charged with attempted murder, pick up the phone.  Ask to speak to Ron Hedding.  You'll be talking to somebody who's been down the road you're about to travel and had a lot of success protecting rights, freedom, reputation, and future.

Contact an Experienced Criminal Lawyer

So, really what I do is because there are so many different angles – self-defense – and being able to attack the elements of an attempted murder case and being able to show that the other party did some dangerous things and that you might have just been trying to defend yourself or defend another person.

That can be a defense when it comes to an attempted murder charge.  So, I have you come in; we go over everything.  We figure out exactly what needs to be done to defend you based on the circumstances you or a loved one find yourself in.  Contact the Hedding Law Firm for help.

That Penal Code Section 664/187 is not an easy one to prove, and if it is established, it's horrible consequences for the defendant, and that's why you have to get the best criminal defense attorney by your side to protect your rights, your freedom, your reputation, assert all motions available and challenge the prosecutors every step of the way.