Attempted Murder

Simply put, attempted murder is the intent to kill a person combined with a “direct” but unsuccessful step toward killing that person.

WHAT MUST THE PROSECUTOR ESTABLISH TO PROVE YOU GUILTY OF ATTEMPTED MURDER

In order to prove you guilty of attempted murder, the prosecutor must establish beyond a reasonable doubt the following:

  1. You intended to kill a person (or a fetus);
  2. You took at least one direct but unsuccessful step toward killing that person or fetus

Let’s take a closer look at the elements:

You “intended” to kill

The intent element requires that the defendant meant to kill a targeted victim. Wanting to scare or injure a person is not enough to meet the standard.  Intent to kill can be proven circumstantially.  For example, injuries on the upper part of the victim’s party where the vital organs located can be circumstantial evidence of intent to kill.  ON the other hand, injuries on the lower part of the victim’s body may indicate that you only intended to harm but not kill the victim.

You intended to kill “a person”

The law of attempted murder does not require that you intended to kill a specific person, so long as you intended to kill a person. For example, Jack walks into a gay bar and fires his gun into the dancing crowd.  A few people in the crown get injured but nobody dies.  Jack can still be charged with attempted murder even though he did not target a specific victim.  Now imagine that Jack plants a bomb in the club intending to kill Jill.  The bomb severely injures the rest of the occupants in the club.  In this scenario, Jack can be charged with attempted murder under the “kill zone” theory.  Jack knew that the bomb would likely kill Jill as well as others in the club.  In other words, he created a “kill zone” and hence is liable for the causalities of this kill zone.

You took a “direct” but unsuccessful step

The prosecutor has to prove that you took at least one action toward killing your target. Mere planning (i.e. finding out where an intended victim lives) or preparing (i.e. buying a weapon) does not suffice. The action must be something that could have resulted in death (i.e. hiring someone to kill, attacking someone with a weapon).  For example, Jack intends to Kill Jill.   He buys the killing weapon, writes down exactly how he is going to accomplish the act, and even plans a place to bury Jill’s body after the act.  Before Jack is able to take a concrete action to actualize his plan, he is caught.  Arguably, Jack’s conduct did not extend beyond mere preparation.  Thus, he is possibly not guilty of attempted murder.  Now imagine that Jack completely abandons his plan to kill Jill.  In this scenario too Jack did not take a concrete first step to actualize his intent to kill and thus is not guilty of attempted murder.  Next imagine that Jack sneaks into Jill’s apartment with a loaded gun.  As he approaches Jill’s apartment, he has a change of heart and abandons his plan.  In this scenario, Jack can still be charged with attempted murder.  Although he abandoned his plan, he undertook a direct step—sneaking into Jill’s apartment with a loaded gun—toward the commission of the crime.  However, because Jack did abandon his plan to kill, his attorney may be able to convince the prosecutor to reduce his charge to a lesser charge.

PENALTIES FOR ATTEMPTED MURDER

Under Penal Code 187, attempted murder is a felony separated into first and second-degree attempted murder.

First-degree attempted murder

A conviction for Frist degree Attempted Murder-- the willful, deliberate, and premeditated attempt to kill another person--carries a life sentence in California state prison with the possibility of parole. A conviction for first-degree attempted murder of a police officer will result in serving a minimum of 15 year of that sentence.

Second-degree attempted murder

A conviction for second-degree attempted murder—an attempted murder that is not willful, deliberate, and premeditated—carries a California State prison sentence of five, seven, or nine-years.

Additional penalties:

A conviction for attempted murder may also include penalties such as:

  • A fine of up to $10,000
  • Restitution to the victim
  • Loss of the right to own, possess, or acquire a firearm

In addition, you are vulnerable to penalties under the following sentencing enhancements:

California's three strikes law:

Attempted murder is a violent felony and a conviction will mean a "strike" on your criminal record. A later felony conviction will be classified as a "second strike" which means that the sentence would be twice as long as otherwise required by law. A third felony strike would result in a mandatory minimum sentence of 25 years-to-life in a California state prison.

Penal Code 186.22 PC California's criminal street gang sentencing enhancement

Penal Code 186.22, California's criminal street gang sentencing enhancement, adds punishment for "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” If your charge of attempted murder qualifies for the criminal street gang sentence enhancement, you could face 15-years-to-life in a California state prison in addition and consecutive to the sentence for attempted murder.

Penal Code 12022.53 PC California's "10-20-life 'use a gun and you're done" law

Under penal Code 12022.53, California's 10-20-life "use a gun and you're done" law, using a gun during the commission of an attempted murder can bring a sentencing enhancement of an additional and consecutive

  • 10 years in prison for "using" a gun
  • 20 years for firing a gun, and
  • 25 years-to-life for killing another person with a gun orfor causing great bodily injury to another person while using a gun.

LEGAL DEFENSES TO ATTEMPTED MURDER

There are a number of legal defenses to a charge of “Attempted Murder” under Penal Code 664 and 187.   They include

Lack of "specific intent" to kill

Ac conviction for “Attempted Murder” under California law requires proof that a defendant specifically intended to kill somebody.  One possible defense is that the defendant did not intend to kill, but was instead attempting to scare or injure the victim.   A lesser charge of mayhem, assault, or assault with a deadly weapon may be possible in this scenario.

Lack of a "direct step" to try to kill

A conviction under California’s “Attempted Murder” law requires more than intent. A direct action toward the fulfillment of the intent is also necessary. Wanting to kill someone, planning to kill someone, even purchasing a weapon with the intent of using it to kill someone is not necessarily a “direct step” under California’s attempted murder law.

Abandonment of the plan to kill

If a defendant creates a plan to kill someone, but freely and voluntary abandons that plan before taking a direct step, then there has not been a violation of California’s “attempted murder” law.

Wrongful Arrest or False Accusation

Mistaken identity, faulty eyewitness identification, and assuming guilt-by-association to a gang are common reasons for wrongful arrests for attempted murder.

Self-defense

Under California law, reasonable force is allowed if necessary to defend oneself or another if there is a reasonable belief that imminent bodily harm will otherwise occur.  The law also allows deadly force to be resisted or countered by deadly force.

HOW CAN WE HELP YOU

Actual Case:  In People v. Byron D., (Case No. NA099427), the defendant, Mr. D., was charged with multiple counts against a peace officer including attempted murder. At preliminary hearing, Negin successfully argued that Mr. D. had no specific intent to kill, and that any altercation that may have resulted between the officer and Mr. D occurred in the heat of the moment with no intent on the part of Mr. D to target and harm the officer.  The preliminary hearing judge dismissed the attempted murder charge.  Now, Mr. D. was no longer looking at a lifetime allegation.  Negin also discovered that the officer had been severely injured as a combat soldier in Afghanistan.  Negin’s investigator also discovered that the officer suffered and had been receiving treatment for severe Post Traumatic Stress Disorder (PTSD).  For Negin, this discovery suggested that the officer’s PTSD might have triggered certain hallucinations or exaggerations resulting in a false police report.  Negin carefully and strategically used the officer’s record of PTSD to negotiate on behalf of Mr. D.  As a result of Negin’s efforts, Mr. F received a reduced sentence, far less than what he would have received had he gone to trial and been convicted.

Negin’s Strategy: Negin’s success in the above case and others stems from her thoroughness as a researcher of law and facts.  Negin spent hours researching various case-law precedents that applied to Mr. D’s conduct or that distinguished his conduct from that typically seen in attempted murder cases.  This thoroughness Negin will conscientiously apply to the facts and circumstances of your case.

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