How Do Criminal Defense Lawyers Win Attempted Murder Cases?

Posted by Ronald D. HeddingNov 21, 2022

I've tried many California Penal Code 664/187 PC attempted murder cases over my 30-year career, and I can tell you right now, when you start to assess these cases, you look at what the elements are of the crime and then you compare it to what evidence the prosecutors have to try to prove the case.

Penal Code 664 defines the crime of attempt.  Penal Code 187 defines the crime of murder, either in the first or second degree.  Thus, an attempted murder under California law is referred to as a 664/187, combining the crime of attempt and murder.

As the name of this serious crime suggests, nobody has to be killed for someone to be charged and convicted of attempted murder, but the prosecutor has to prove the defendant's mental state.

The most crucial factor in an attempted murder charge is the intent to kill, but someone could still be convicted of second-degree murder without having this intent.

For example, suppose there was a severe reckless act that is inherently dangerous to human life and shows an indifference to the value of life could give rise to a murder charge when someone is killed, even if the defendant had no intention to kill or even hurt anybody. 

But, an attempt requires the specific intent to kill.  While someone could be guilty of several other crimes for attempting to carry out a dangerous act, they are not guilty of attempted murder unless the prosecution can prove they intended to kill one or more victims.

The second distinguishing factor of attempted murder is the requirement that someone take a direct step toward completing the murder.  Having intent alone is not enough. They have to take some tangible action toward accomplishing that goal before a charge of PC 664/187 can be supported.

In other words, a direct step has to be more than simply planning or plotting to commit a murder.  Thus, buying a weapon is not a direct step but only planning. For example, direct action would include shooting a gun toward the intended victim. Let's review this topic further below.

Insufficient Evidence to Prove Intent to Kill

One way I see attempted murder cases won, and I've won many of them, is to convince the prosecutor that they cannot prove that your client intended to kill the victim.

Also, take the case to a jury trial if the prosecutors won't listen and convince the jury that the prosecutors cannot prove their case and have not proved their case because they can't prove that the defendant intended to kill the victim.

Sometimes they can easily prove that, but there are attempted murder cases where there's a situation where the person breaks off the attack on the alleged victim.  If that occurs, the argument becomes, how can this person possibly be of the mind to kill the person if they stopped the attack?

Breaking Off the Attack - Example

A perfect example is I've had a case where two guys fight in the back seat over a gun and roll out into an ally; one guy gets the gun and shoots the other guy.

Defenses for Penal Code 664/187 Attempted Murder

The other guy falls to the ground.  He's got an injury, but it's not an injury that will kill him.  The guy who has the gun still has the gun in his hand. 

Instead of continuing to shoot the loaded gun at the person, he breaks off the attack, gets in the vehicle he was in, and drives away.  Prosecutors charged that case as an attempted murder case.

Usually, when you shoot somebody with a gun, the prosecutors will have a pretty good argument that you were trying to kill that person.  That's just the way these cases work. 

If somebody is shooting a gun at somebody, the prosecutors can usually get their conviction.  But in this case, the person was still moving alive, and the defendant did not try to finish the job. 

That was a not-guilty verdict.  That's the type of case you can beat them on because the prosecutors are unreasonable.  They should realize what they have to prove; in that scenario, they couldn't prove the person who tried to kill the alleged victim.

Also, if you can mount a self-defense argument, that's a way to beat the prosecutors in an attempted murder case.  If someone is trying to kill you and you end up using lethal force back, there's a good argument that you were trying to defend yourself. 

What are the Related Crimes?

Many related charges could be filed in addition to, or instead of, Penal Code 664/187 attempted murder, including the following:

  • Penal Code 16100 PC – drive-by shooting,
  • Penal Code 246 PC – shooting at inhabited dwelling or car,
  • Penal Code 192(a) PC – voluntary manslaughter,
  • Penal Code 653f PC – solicitation to commit a crime.

Contact an Attempted Murder Defense Professional

So, as you can see, these cases spin on their facts.  In other words, what happened?

Attempted Murder Defense Lawyer in Los Angeles

What defenses are available, and can you win the case?  That's one of the biggest things that hiring one of the best criminal defense attorneys will do for you. 

That is, it will give you someone who knows how to win.

I've been doing this now for nearly 30 years.  I've worked for the District Attorney's office.  I've worked for a superior court judge.  I've worked for the State Bar of California.

Since the 1990s, I've worked for people just like you, fighting these attempted murder cases, being successful, getting wins and if I can't get a win in a jury trial or it's not a good idea to go to a jury trial, what I will do is negotiate a plea for you. We will try to get something less than attempted murder that carries 15 to life.

If you need the best, pick up the phone and ask for a meeting with Ron Hedding.  We are located in Los Angeles, California, and we provide a free case evaluation by phone or fill out the contact form.