Attempted Murder

Attempted Murder Laws in California: Penal Code 664/187

In California, you can face severe criminal liability for an offense even if no one is actually hurt or killed.

Under California Penal Code Sections 664 and 187, a person commits attempted murder when they harbor a specific intent to kill another human being and take a direct, unequivocal step toward completing that killing but fail to accomplish it.

The legal baseline for a "664/187" charge rests entirely on two distinct factors that prosecutors must establish: express intent to kill and an overt action that goes far beyond mere preparation.

Unlike completed murder charges—where individuals can sometimes be convicted for highly reckless behavior (implied malice) or under the felony-murder rule without an explicit intent to take a life—attempted murder always requires a specific, premeditated, or conscious desire to terminate a human life.

Legal Definition of Penal Code 664/187

The legal framework combines California's general attempt statute (Penal Code 664) with the state's murder statute (Penal Code 187).

California Penal Code Section 187(a) defines the underlying crime of murder:

“Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.”

California Penal Code Section 664 outlines the statutory language for inchoate (incomplete) crimes:

“Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows: If the crime attempted is punishable by imprisonment in the state prison, or by imprisonment in a county jail, the person guilty of the attempt shall be punished by imprisonment in the state prison or in a county jail, respectively, for a term of one-half the term of imprisonment prescribed upon a conviction of the offense so attempted...”

Key Elements the Prosecutor Must Prove

According to the CALCRIM 600 judicial jury instructions, a prosecutor must prove two essential elements beyond a reasonable doubt to secure an attempted murder conviction:

1. The defendant took at least one direct step toward killing another person.

2. The defendant possessed the specific intent to kill that person (express malice).

What qualifies as a direct step? A direct step goes beyond planning or preparation. It is an unequivocal act that sets the plan in motion, meaning the murder would have been completed if an outside force or unexpected intervention had not stopped it.

Penalties and Sentencing Guidelines

Attempted murder is an incredibly serious violent felony in California, subjected to strict sentencing structures. Like completed murder, it is divided into first-degree (premeditated, willful, and deliberate) and second-degree categories.

Offense Type	Classification	Sentence Duration (California State Prison)	Enhancements / Parole Conditions
Attempted First-Degree Murder	Felony	Life imprisonment	Eligible for parole after serving a minimum of 7 calendar years.
Attempted Second-Degree Murder	Felony	5, 7, or 9 years	Determinant sentence based on mitigating or aggravating factors.
Attempted Murder of a Peace Officer	Violent Felony	Life imprisonment	Mandatory minimum of 15 years before parole eligibility if the officer was on duty.

Statutory Sentencing Enhancements

A defendant's actual prison sentence can skyrocket past the baseline guidelines if specific statutory enhancements apply to the incident:

• The "10-20-Life" Gun Law (PC 12022.53): Using a firearm adds a mandatory 10 years. Firing the weapon adds 20 years. Causing great bodily injury or paralysis with a firearm adds an extra 25 years to life to the sentence.

• Criminal Street Gang Enhancement (PC 186.22): If the prosecution proves the attempt was executed to benefit, promote, or assist a criminal street gang, an automatic 15-years-to-life minimum parole eligibility window is triggered.

• California Three Strikes Law: As a violent felony, an attempted murder conviction constitutes a "strike." This means serving 85% of the sentence before being eligible for early release credits.

Legal Defenses Against PC 664/187 Charges

An aggressive criminal defense strategy focuses heavily on exploiting gaps in the prosecution's digital, forensic, or circumstantial evidence regarding the defendant's state of mind.

• Lack of Specific Intent to Kill: This is often the strongest defense. If a defendant fired a weapon downward to scare someone, or struck another person during a heated bar fight to injure or defend themselves, they may be guilty of assault with a deadly weapon, but they cannot legally be convicted of attempted murder.

• Mere Preparation vs. A Direct Step: If law enforcement intercepts a suspect who bought a firearm, drew maps, or wrote a manifesto detailing how they plan to kill someone, they cannot be convicted under PC 664/187 if they were arrested before translating those plans into an overt physical movement toward the target.

• Lawful Self-Defense or Defense of Others: You are legally permitted to use proportional deadly force if you reasonably believe that you or another individual face an imminent threat of death or great bodily injury.

• Imperfect Self-Defense: If you genuinely believed you were in imminent danger, but that belief was objectively unreasonable, this defense negates the malice element required for attempted murder, potentially reducing the charges down to attempted voluntary manslaughter.

The "Kill Zone" Theory Explained

California courts recognize a unique doctrine of attempt liability known as the "Kill Zone" theory. This applies when a defendant targets a specific individual but chooses a mechanism of attack so destructive or widespread that everyone in the immediate geographic vicinity is placed in equal peril.

Under this theory, a prosecutor can charge a defendant with multiple counts of attempted murder for bystander victims, even if the defendant didn't know them or explicitly want them dead. Classic examples include:

• Detonating an explosive device in a vehicle to kill the driver while passengers are inside.

• Opening fire with an automatic weapon into a tightly packed crowd to hit a single rival gang member.

Hypothetical Case Study

During a bitter custody dispute, Marcus drives to his ex-wife's home. He conceals a loaded revolver in his jacket, approaches the kitchen window, and sees his ex-wife standing by the counter.

Marcus draws the weapon, aims at her chest, and pulls the trigger. However, the firing pin malfunctions, causing the weapon to misfire. Hearing the metallic click, his ex-wife flees to a back bedroom and dials 911. Marcus panics, drops the weapon, and is arrested blocks away.

The Application of Law

Even though his ex-wife did not suffer a single physical scratch, Marcus can be convicted of attempted first-degree murder. His actions meet every legal threshold:

1. Specific Intent: He drove to the home with a loaded gun and aimed at a vital organ, demonstrating a clear express purpose to kill.

2. Direct Step: Pulling the trigger is an unequivocal overt act. Had the mechanical firing pin not failed unexpectedly (an outside intervening force), the murder would have occurred.

Frequently Asked Questions (FAQs)

Can I be convicted of attempted murder if the alleged victim did not sustain any physical injuries?

Yes. Physical harm or injury is not a required element of California Penal Code 664/187. The offense is legally complete the moment you take a direct step toward committing a killing with the requisite criminal intent; the target's escape unharmed due to poor aim, a jammed weapon, or quick reflexes does not shield you from liability.

How does the prosecution prove a defendant's intent to kill if they never admitted to it?

Because prosecutors can rarely obtain direct confessions or written evidence of a defendant's internal motivations, they rely heavily on circumstantial evidence. They look at physical actions, such as aiming a deadly weapon at a victim's vital organs, making explicit verbal threats before an assault, or purchasing specialized killing tools, to infer intent.

What is the legal difference between planning a murder and attempting a murder under California law?

Planning involves preparatory steps such as researching a target's schedule, buying weapons, or writing out a conceptual strategy, none of which constitute direct steps. An attempt only occurs when preparation crosses the line into execution—meaning you perform an action that sets the actual killing process directly into motion.

Can a reckless driving incident that almost kills someone result in an attempted murder charge?

Generally, no. While highly reckless driving that results in a near-fatal crash can lead to charges such as assault with a deadly weapon or reckless driving causing injury, it rarely qualifies as attempted murder because the driver lacked the specific, conscious intent to cause a fatality.

What is imperfect self-defense and how does it help a Penal Code 664/187 case?

Imperfect self-defense applies when you harbor an honest, genuine belief that you must use deadly force to protect your life, but that belief is objectively unreasonable to an outside observer. While it does not completely absolve you of criminal wrongdoing, it effectively negates the element of malice, lowering an attempted murder charge down to attempted voluntary manslaughter.

What should I do if police detectives want to question me regarding a shooting or violent altercation?

You must immediately refuse to answer any questions or provide a statement without a defense attorney present, and explicitly invoke your Fifth Amendment rights. Law enforcement officers often use open-ended interviews to secure incriminating timelines or implied admissions of intent that can later destroy an otherwise valid self-defense argument at trial.

Related California Laws and Statutes

Violent crime indictments involving PC 664/187 frequently feature additional, overlapping charges under these California statutes:

• Penal Code 192(a) – Voluntary Manslaughter: An intentional killing that occurs during a sudden quarrel, heat of passion, or under an honest but unreasonable belief in the need for self-defense.

• Penal Code 245(a)(2) – Assault with a Deadly Weapon: Criminalizes committing an assault upon another individual using a firearm or any other instrument capable of producing great bodily injury.

• Penal Code 246 – Shooting at an Inhabited Dwelling or Occupied Car: Makes it a severe felony to maliciously discharge a firearm at any building, house, tent, or vehicle that is occupied or inhabited.

• Penal Code 26100 – Drive-By Shooting / Discharging a Firearm from a Vehicle: Penalizes drivers or passengers who knowingly permit others to bring firearms into a vehicle or willfully discharge a weapon at individuals outside the vehicle.

If you or someone you know is facing an investigation or active charges for attempted murder in Los Angeles County, swift legal action is imperative.

Contact the experienced defense firm of Eisner Gorin LLP at 818-781-1570 to set up a comprehensive case consultation.

Related Legal Topics

• Attempted Crimes
• Federal Attempt Murder