An attempt to commit a crime is incomplete, as described in Penal Code 664. Murder, as defined under PC 187, is the unlawful killing of another human being or fetus. Thus, a combination of the two, Penal Code 664/187, describes the failed killing of another individual because the perpetrator was intercepted, someone prevented the crime, or the victim did not die after an attempt was made on his/her life.
Convictions on attempted murder charges result in significant penalties. The Los Angeles Criminal Attorney team in this article discusses the aspects of attempted murder. They include the elements of the offense, the defenses you can assert, and the penalties if convicted.
Murder Under California Law
Attempted murder hinges on the intended crime, murder. It is best first to understand murder as addressed under Penal Code 187.
Murder is the unlawful killing of another human being or fetus with malice aforethought. Two aspects stand out in this definition:
- Unlawful killing — Referring to an illegal or unjustified killing.
- Malice aforethought — Refers to a specific intent to kill another or engage in conduct with depraved indifference to human life.
Prosecutors can charge you with murder in any of the following categories. The charges depend on the circumstances of the case.
- First-degree murder — A deliberate, premeditated, and intentional killing of another individual with malice.
- Second-degree murder — This murder lacks premeditation. According to PC 187, any murder not in the first degree is considered second-degree murder.
- Capital murder — Killing of protected individuals, killing for financial gain, killing more than one victim, killing to prevent an individual from testifying, or killing motivated by racial, religious, nationality, or color bias.
- Felony murder — Killing of another while committing a felony. Senate Bill 1437 addresses felony murder.
Note: Prosecutors can only charge you with attempted murder in the first or second degree.
Prosecution of Attempted Murder
Attempting to kill another implies you took a direct step to accomplish your specific intention to kill your target. You are not guilty of murder if you attempt to commit an unintentional crime like involuntary manslaughter.
Involuntary manslaughter is the unlawful killing of another individual because of acting negligently, that is, without due caution.
A jury will only find you guilty if prosecutors prove the following elements of the crime.
- You aimed to kill the victim, and
- You took a direct step toward killing the victim.
An Intent to Kill
Attempted murder charges require a specific intent to kill. The intention to injure another is insufficient to prove the specific intent to kill.
Proving you had a specific intent to kill another individual is not easy.
Prosecutors resort to the location of the victim’s injuries to prove this intent. Injuries to the upper body indicate a premeditated intent to kill because the upper body houses vital organs. Injuries to the lower body are indicative of an intention to injure.
In cases where a defendant endangered several people, shooting in a crowd of people, prosecutors will have difficulty proving an intent to kill a specific individual. In this case, prosecutors rely on the firing of several individuals as proof of the intention to kill.
Attempted murder charges rely heavily on the direct step. A Penal Code 664/187 violation is complete when you take a direct step to accomplish the murder.
A specific intent to kill another is not enough. Prosecutors must show that you took tangible steps to accomplish your intentions. Put simply, a direct step entails any action that, had outside forces not intervened, would have killed your target. There is no limit to the actions that meet this threshold.
Some examples include:
- Paying a hitman.
- Stabbing another individual severally,
- Aiming and shooting a gun at the victim
A direct step goes beyond planning or plotting to murder another individual. Therefore, the following actions are merely plans and not direct steps:
- Purchasing a knife.
- Discussing ways to commit murder.
- Researching on murders for hire.
- Hypothesizing on ways to carry out a murder.
- Loading a firearm.
- Learning the victim’s location.
Further, a direct step needs no physical contact with the targeted victim. Putting a plan in motion is sufficient to warrant attempted murder charges.
Kill Zone Theory
The kill zone theory extends culpability to defendants for individuals exposed to the risk of death but were not the target victims. Under this theory, you will be held criminally liable for victims who almost died while you were attempting to murder another.
Two likely scenarios fit the kill zone theory:
- A case of someone placing a bomb or an explosive device in a location where the target is expected to be — Whereas the bomb or explosive device is meant for a specific individual, if other individuals are exposed to the risk of death when the device goes off, you will face attempted murder charges for the exposed group in addition to the target.
- In drive-by shooting incidents — The shooting has to be in a crowded area, or other individuals must be placed in harm's way while shooting at the target.
Further, the shooting matters: firing at the crowd, hoping to kill the target, will likely result in a conviction under this theory. However, If the defendant fires a single shot at the target in a crowded area, the prosecution will have a tough time securing a conviction.
A conviction under this theory does not require you to know that other individuals were present in the kill zone.
Legal Defenses You Can Assert
As grave as the offense is, an attempt on another person’s life is not indefensible. The circumstances inform the ideal defense for your case. The top defense strategies target the elements of the case, while others explain away your actions as anything but an attempt on the victim's life to kill. They all work to create reasonable doubt.
Engage with your defense attorney to determine what defense suits your case.
Here is a look at the common defenses your attorney could raise.
No Intent to Kill
Prosecutors must demonstrate to the court a specific intent to kill the victim since an attempt on another’s life is a specific intent crime. If you did not intend to kill the alleged victim, you are not guilty of attempted murder.
With the lack of a specific intent to kill, your actions could be explained away as an intention to maim, scare, or assault the victim with a deadly weapon. These three are offenses.
- Maiming, a crime under PC 203,
- Scaring another, an offense under PC 240, or
- Assaulting another with a deadly weapon, an offense under PC 245, result in less-harsh penalties, unlike convictions of attempted murder.
In a plea agreement deal, prosecutors could require you to plead guilty to any of the above offenses in exchange for them dropping the attempted murder charges.
You Did Not Take a Direct Step
By asserting you took a direct step, you acknowledge going to great lengths to plan a murder. You could have studied your target’s patterns and known the perfect opportunity to strike. You could have gone further and bought a firearm, hired a getaway vehicle, or even researched an assassin. However, if you did not take a direct step to actualize your plans, you are not guilty under PC 664/187.
This defense is particularly useful in cases where defendants abandon the crime despite going to great lengths to plan it. Prosecutors bear the burden of proving you took a direct step.
In plea bargain discussions, your attorney could convince the prosecution to drop the attempted murder charges by pointing out that you abandoned your plans, regret your actions, and are remorseful. Should the prosecution agree, you could be required to plead guilty to a lesser charge.
You Acted in Self Defense
You have the right to stand your ground and defend yourself against imminent danger without retreating. However, a claim of defending another or self-defense is only viable if:
- You reasonably believed you or another individual were at risk of suffering great bodily harm or in danger of being killed,
- You reasonably believed that the use of force was necessary to defend yourself or a third party from the threat.
- You used force that was no more than necessary to protect yourself or someone else.
This defense is beneficial in cases where the alleged victim threatens you or another, and you use force to defend yourself or another, only for the alleged victim to claim you attempted to kill him/her. Surveillance footage, eyewitness accounts, and medical records of the injuries you or someone else sustained are pivotal in proving you acted in self-defense.
Misidentifying an individual as the perpetrator of an attempt on the victim’s life occurs for several reasons. Some of the common reasons include the following:
- The victim only saw a vehicle similar to the defendant’s and claimed it was the defendant who made an attempt on their life,
- The victim could have offered a general description that the defendant fit, or
- Informed by their previous misunderstandings, the victim points at the defendant as the culprit.
Defense attorneys employ several options to challenge the identification of the defendant as the perpetrator. It starts with an independent investigation to ascertain the truth and using the results when cross-examining the eyewitness or the victim. The investigations will also include establishing your alibi when the crime occurred.
Further, the investigation will likely show the victim’s ill will toward the defendant, which calls into question the authenticity of their claim.
The actual offender could present himself/herself as an eyewitness and accuse you of being the actual culprit. In doing so, attention shifts to you and away from them. If so, independent investigations conducted by your attorney should unearth the facts of the case and subsequently challenge the eyewitness’ testimony during cross-examination.
Penalties for Attempted Murder
An attempt on another’s life is a felony. Penalties issued upon conviction depend on the circumstances of the case. The courts consider whether:
- You were convicted of first or second-degree attempted murder,
- Your actions aimed at furthering gang activity, or
- You used a firearm.
Attempted murder convictions result in half the sentences imposed on murder convictions.
Attempted First-Degree Murder
Attempted murder in the first degree means you acted willfully, deliberately, and with premeditation.
Attempted first-degree murder convictions result in life in prison with the possibility of parole. However, you must serve at least 15 years if the victim was an on-duty protected individual before you are eligible for parole.
Protected persons include:
- Police officers, peace officers, and firefighters.
- Prosecutors, judges, or members of the jury.
- EMTs responding to an emergency, and
- Any other protected individual.
Attempted Second-Degree Murder
Second-degree attempted murder cases lack premeditation. Like in murder cases, all cases that do not fall into the attempted first-degree murder category fall into the second-degree attempted murder category.
Convictions for attempted second-degree murder result in 5, 7, or 9 years in prison.
The judge will impose a maximum fine of $10,000. Additionally, he/she could require you to pay victim restitution, whose figure he/she will determine.
A Strike Under California’s Three Strikes Law
Under California’s Three Strikes Law, any individual convicted of a violent felony listed under this law earns a strike on his/her criminal record. The statute details the punishments a defendant convicted of violent felonies would receive.
An attempt on another’s life is a strikeable felony.
If the attempted murder earns your first strike, your penalties remain unchanged. A second strike on your record will double the sentence issued for the attempted murder conviction. Third strikes carry a 25-year-to-life prison sentence.
Attempted murders conducted in furtherance of gang activity carry additional sentences issued per Penal Code 186.22. Convictions are punishable by an additional 15 years to life in prison to be served consecutively with the penalties for the attempted murder charge.
Use of a Gun Enhancements
Using a firearm in an attempt on another’s life attracts enhanced penalties under Penal Code 12022.53 upon conviction. You risk facing the following penalties upon conviction.
- 10 years in prison if you used a gun.
- 20 years if you fired the firearm, or
- 25 years to life if you caused another to suffer great bodily harm.
Impact of an Attempted Murder Conviction on Gun Rights
An attempted murder conviction adversely impacts gun rights and a non-citizen's status in the country.
The state will repossess your guns on conviction. You will lose your right to bear arms. You risk additional penalties under PC 29800 should officers find you possessing a firearm following your conviction. You risk imprisonment for up to three years for a PC 29800 violation.
As for non-citizens, deportation is likely. Attempted murder is a deportable offense. Convictions mean the state will deport you to your country of origin and mark you as inadmissible. You will be denied re-entry to the U.S.
Crimes Prosecutors Can Charge You With Alongside Attempted Murder
Prosecutors can choose several additional violations to charge you with depending on the circumstances of your case and which violation they are likely to secure a conviction for. The common offenses include the following:
- Torture — A crime under PC 206.
- Shooting at an occupied vehicle or inhabited dwelling — A crime under PC 246.
- Drive-by-shooting — A crime under PC 26100.
- Solicitation to commit an offense — A violation of PC 653f.
Penal Code 206 makes it an offense to intentionally inflict great bodily injury on another individual to cause extreme suffering and pain for revenge, sadistic intentions, or extortion.
You are guilty of the crime if prosecutors prove:
- You inflicted great physical injury on the victim.
- When inflicting the injuries, you intend to cause extreme or cruel pain and suffering for extortion, persuasion, revenge, or sadistic purposes.
You can commit torture through a single act or a series of actions.
You risk facing a life sentence with the possibility of parole if convicted of a felony offense. The life sentence is imposed because the statute considers a defendant’s intent to cause pain for sadistic pursuits and not because the victim suffered extreme pain.
Shooting at an Occupied Vehicle or Inhabited Dwelling
Penal Code 246 makes it an offense to discharge a gun at an inhabited dwelling or occupied car.
PC 246’s definition of the crime provides the elements of the offense, which the prosecution must prove:
- You willfully and maliciously discharged a gun, and
- You shot the firearm at either;
- An occupied vehicle, aircraft, building, or
- An inhabited house-car, house, or camper
Convictions result in:
- Six months to a year in jail or 3, 5, or 7 years in prison, and
- A fine of up to $10,000 or both.
- Formal probation instead of time imprisonment.
- Sentence enhancements as outlined under PC 186.22 and PC 12022.53
It is a crime punishable under PC 26100 to shoot from a car or engage in a drive-by shooting. You also risk prosecution for enabling this behavior by allowing an individual with a gun to enter your vehicle.
PC 26100’s definition requires prosecutors to prove the following elements of the crime:
- You allowed another individual to bring a firearm into your vehicle, or
- You permitted your passenger to fire the gun from inside your car as the car’s owner.
Alternatively, a jury will find you guilty if prosecutors prove the following:
- You willfully and maliciously discharged a firearm from within your vehicle, or
- You deliberately and maliciously shot at another individual from within your vehicle
Drive-by-shooting is a wobbler offense. Prosecutors can charge you with misdemeanor or felony violations.
Letting another person bring a firearm into your car is a misdemeanor offense. If convicted, you risk six months in jail, a fine of up to $1,000, or both.
The offense is either a misdemeanor or a felony if:
- You fire a gun from a vehicle, or
- Allow your passenger to shoot a firearm from within your car
Misdemeanors attract a jail sentence of up to one year, a fine of up to $1,000, or both. On the other hand, felonies attract a prison sentence of up to three years, a fine not exceeding $10,000, or both.
Solicitation to Commit a Crime
PC 653f criminalizes the solicitation of individuals to commit particular crimes. You are criminally liable under this statute if you promote, assist, facilitate, command, encourage, recruit, promote, invite, offer, urge, implore, plead, try to obtain, or entice another individual to commit a crime, in this case, murder.
Prosecutors must demonstrate to the jury that:
- You asked another person to murder another,
- You intended to commit the murder, and
- The individual you solicited received communication of your request to murder another
The solicited individual does not have to commit the crime or even agree to commit the offense for your actions to constitute a crime. You are guilty even if the individual rejects your request.
PC 653f violations are wobblers depending on which offense you solicited the individual to commit. So, since murder is a felony, soliciting another to kill another becomes a felony.
Misdemeanor violations are punishable by a jail sentence not exceeding six months, a fine of up to $1,000, or both. However, felony penalties increase because of the seriousness of the offense.
A conviction for solicitation of murder means up to nine years in prison, a fine of up to $10,000, or both.
Find an Experienced Los Angeles Criminal Defense Attorney Near Me
A conviction on attempted murder charges will result in significant consequences. Other than imprisonment and fines, your life post-conviction will also suffer. Your ability to mingle freely within your social circles and secure employment or credit upon release will be affected. It is in your best interest to immediately engage a defense attorney. An experienced attorney’s help in fighting the charges improves your chances of a favorable legal outcome.
For assistance, call the Los Angeles Criminal Attorney team at 424-333-0943 today. Let our attorneys review your case and determine your best legal option. Call us for more information.