I've been defending California Penal Code 664/187 attempted murder cases for nearly 30 years in Los Angeles. The way you get a not guilty verdict is to take the case to a jury, and you can show that your client is innocent. 

It is interesting that I put that because technically, the prosecutors have to prove a client guilty of attempted murder. The jury should return a not guilty verdict if they can't do it. 

Many people don't realize that the defense doesn't have to prove anything.  The defendant is assumed innocent.  If the prosecutors can't prove the charges in an attempted murder case, a jury must find the defendant not guilty.

But, of course, you've got the barrier of the government has charged the person with attempted murder.  The person is there with their attorney and a jury pool; when they come in, looks at the person and says, well, this person must have done something, otherwise they wouldn't have gone to all of this trouble. 

So, that's one of the first things I have to do at a jury trial, as my client's advocate, to show the prosecutor and the jury that just because someone has been arrested, it doesn't mean they're guilty, and the prosecutor must prove that case. 

I tell the prosecutor that right before the jury, as we deal with a trial.  I let them know that if you can’t prove my client guilty, my client must be found not guilty if you can't meet the elements of the jury instructions for attempted murder.

That's the key, and that's why I wrote this post.  What you want to do is look at those jury instructions.  Our Los Angeles criminal defense attorneys will review this topic in more detail below in this article.

What is PC 664/187 Attempted Murder?

California Penal Code 664/187 PC defines the crime of attempted murder as when somebody has the intent to kill someone, took a direct step to kill them, but the victim survives.

Put simply, the intended crime of murder was not completed, but an attempted murder charge has to include the critical element of an intent to kill.  Just like Penal Code 187 PC murder, PC 664/187 attempted murder is divided into two degrees.

A “first-degree attempted murder” is when the offense was premeditated and willful. A ‘second-degree” includes any other form of attempted murder. It means somebody tried but failed to kill a human being. The prosecution has two crucial factors they must prove for a conviction:

• defendant took a direct step towards killing someone, and
• defendant had the intent to kill them, known as malice aforethought.

A “direct step” must be more than planning a murder. It has to be some action that would complete the crime, such as shooting at them but missing. In short, a direct step is any action that, had outside forces not intervened, would have led to the murder occurring. 

This can also include paying a hitman to kill the victim or any other action which would lead to the victim's death. There are several related charges in California that could be filed in addition to, or instead of, Penal Code 664/187 attempted murder, including:

• 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.

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

Proving the Elements of an Attempted Murder Case

The prosecutors have to prove certain things.  They're called elements of a crime.  So, they're going to have to establish an attempted murder case, that when the defendant did whatever they did, they were trying to kill the other person. 

Defenses to a charge of attempted murder under California Penal Code Section 664/187 focus on undermining the government's proof of these elements, precisely, the defendant's specific intent to kill.  A defendant charged with attempted murder may also have several affirmative defenses which negate entirely the charge, such as self-defense. 

So, if the defendant does certain things that are inconsistent with trying to kill the other person, then that can be used to argue that they're not guilty of the attempted murder.  That's one of the elements that has to be proven.  Often, that can be a challenging element for the prosecutors to prove. 

Another thing that I see happening that is important to note is the element of trying to kill a person. You're going to have to be using some force, and the person may have to nearly die to prove the elements of attempted murder. 

Real Attempted Murder Case Example

But sometimes, we have to look beyond the elements.  Sometimes, it's a who-done-it case.  In other words, we can make the argument you don't even have the right person.  How do you even know this is the person that tried to shoot the alleged victim.

For example, I had a case recently in Riverside County.  My client was charged with attempted murder, plus he had some criminal record, so he was facing the rest of his life in prison. 

Once you get the attempted murder for 15 to life, once you get the gun use, because they were claiming he shot the victim multiple times, and you add in some other things like a prior criminal record, if the person has strikes – now you're looking at an immense amount of time.  That's why the prosecutors have a lot of leverage in these attempted murder cases. I've tried them all over the place. 

The last one I did in Riverside county is an excellent example of a who-done-it case because my client was charged. However, the victim had their back to the shooter, and when the 9-1-1 operator asked the victim, did you see who shot you, and he said no, and later he changed his story and said, I did see who shot me, but I didn't want to tell the 9-1-1 operator.  I took that apart very quickly.  I was able to get a not guilty verdict.

Jury Trials in Attempted Murder Cases

But, of course, you still have to try the case.  You have to get in front of a jury.  You have to show the jury the problems with the prosecutor's case, and that case had been tried once before with a hung jury. So, it was the same facts, but you never know what a jury will do—twelve people from the community.  You don't know those people.  They come in with certain biases.

Sometimes good for the defense; occasionally bad for the defense.  As the defense attorney, it's up to you to ferret that out and figure out which of these jurists will be fair to your client and which will not be fair to your client. Then, you chose the jury, and ultimately, in the end, you're arguing to that jury that your client should be found not guilty.

So, if you want the best – I don't care if your case is a who-done-it case or an identification case where there are witnesses. Still, they're having trouble identifying your client, or maybe it's one of those cases where there's no question your client did whatever violent act. They're claiming it is attempted murder, but they were defending themselves.  It was self-defense. 

The other person was using deadly force against them or threatening them, had a weapon, whatever the case may be, and was defending themselves.

So, if someone comes at you in California with deadly force and you use deadly force to defend yourself, and you do so lawfully, you can be found not guilty, even if you were the one that shot the person or stabbed the person, or whatever it is that they're claiming you did that was unlawful.

Learn How the Hedding Law Firm Can Help You

I'm telling you right now when it comes to an attempted murder case, where you're facing the rest of your life in prison – either you or your loved one – your attorney, makes a huge difference.

Some of these cases can go either way, and if you don't have the best attorney – if your attorney is not as good or better than the prosecutor – you have a real problem.  You need a criminal attorney to figure out how to deal with the case:

• whether to fight the attempted murder allegations;
• take the case to trial, or
• whether or not a plea bargain is the best solution for you.

I've been doing this for 30 years.  I've worked for the DA's office; I've worked for a Superior court judge, and I've worked for people just like you or your loved one as a defense attorney since the early 1990s, winning cases just like yours.  Sometimes we win them; sometimes, we negotiate them.

If you want to know how to get a not guilty verdict, I've given you an idea, and one of the biggest things that are crucial is that your attorney can go to war against the prosecutors and fight to get the result you must have. Hedding Law Firm is based in Los Angeles County, and we offer a free case consultation by phone or use our contact form.

Related Content: Why Are Jury Instructions Important to a California Trial?