California Penal Code Section 664 defines the inchoate – meaning incomplete – crime of attempt. Penal Code Section 187 defines the crime of murder, either in the first or second degree.
Therefore, an attempted murder under California law is known as a 664/187, a combination of the crime of attempt and the crime of murder. As the name implies, no one has to actually be killed for the defendant to be charged and convicted of attempted murder.
This article discusses some of the interesting aspects of the violent crime of attempted murder under California law including the required mental state of the defendant which the government must prove in order to secure a conviction.
Intent to Kill Someone
The most important defining element of an attempted murder charge is the intent to kill. Recall that a defendant can be convicted of second-degree murder without having the intent to kill. See CALCRIM 600 Attempted Murder Jury Instructions.
A sufficiently reckless act which is inherently dangerous to human life and evidences an indifference to the value of life can give rise to a murder charge when someone is killed, even if the defendant had no intention to kill or even hurt anyone. Also recall that even a first-degree murder conviction can be secured absent an explicit intent to kill.
If the defendant engages in another inherently dangerous felony such as robbery, burglary, arson, etc. and someone is killed, the so-called “felony murder rule,” allows for a first-degree murder conviction.
Attempt, however, requires the specific intent to kill. While the defendant may be guilty of a number of other crimes for attempting to carry out a dangerous act, he or she is not guilty of attempted murder unless the prosecution can prove that the defendant intended to kill one or more victims.
Direct Step to Accomplish Murder
The second distinguishing element of attempted murder is the requirement that the defendant take a “direct step,” toward accomplishing the murder.
It is not simply enough that the defendant intended to kill another person. They must take some tangible action toward accomplishing that goal before a charge of attempted murder under California Penal Code Section 664/187 can be sustained.
A direct step must be more than simply planning or plotting to commit the murder. For that reason, buying a weapon, learning the location of the victim, hypothesizing about ways to commit the murder, etc. are not direct steps; they are merely planning.
In short, a direct step is any action which, had outside forces not intervened, would have led to the murder occurring. This can include shooting a gun in the direction of the intended victim, paying a hitman to kill the victim, or any other action which would lead to the victim's death.
Kill Zone Theory
On a related note, California is one of many jurisdictions which accepts the “kill zone” theory of attempt liability. This scenario usually involves a defendant who tries to kill one intended victim but carries out the attempted murder in such a way that other victims would almost certainly be placed in substantial jeopardy.
This is the case where a defendant plants a bomb or other explosive device in a location where he or she knows the intended victim, but also other unrelated third parties, are likely to be.
A kill zone theory could also be used to prosecute a defendant who shoots into a large crowd with the specific intent only to hit one victim, but by the nature of the shooting knows or should know that many other individuals are likely to be killed. A related crime, California Penal Code 246 PC, makes it a felony to willfully discharge a firearm at any inhabited dwelling or occupied. California Penal Code 26100 PC makes drive-by shooting a crime.
Defenses for PC 664/187 Attempted Murder
Defenses to a charge of attempted murder under Penal Code Section 664/187 focus on undermining the government's proof as to these elements, particularly the defendant's specific intent to kill.
A defendant charged with attempted murder may also have a number of affirmative defenses which completely negate the charge. One of the most common is self-defense.
Even if the proof would otherwise indicate that the defendant took an action which was likely to result in the victim's death, if it can be established that the alleged victim was in fact the initial aggressor and the degree of force used by the defendant was reasonably necessary to protect their own life, a self-defense claim may be successful.
Even if the degree of force was unreasonable, known as “imperfect” self-defense, the defendant may be able to use proof of his attempt at self-defense to negate the intent element of attempted murder.
Los Angeles Attempted Murder Defense Attorney
Like murder, attempted murder comes in first and second degrees. The penalties differ according to which degree is proved. Attempted first-degree murder is punishable by life in prison. Attempted second-degree murder is punishable by five, seven, or nine years in the state prison.
If you, or someone you know, is charged with the serious California crime of attempted murder, contact our team of experienced Los Angeles criminal defense attorneys for an initial consultation.
Eisner Gorin LLP is a top-ranked criminal defense law firm located at 1875 Century Park E #705, Los Angeles, CA 90067. Our main office is nest to the Van Nuys Court at 14401 Sylvan St #112 Van Nuys, CA 91401.
We have a track record of success defense clients against all types of violent crime charges. We need to thoroughly review all the details of your case in order to determine to appropriate defense strategy. Contact our office for a consultation at (877) 781-1570.