Information on the crime of attempted murder is found at California penal code sections 664 and 187(a). Essentially, penal code 664 explains the prison sentence for attempted murder, and PC 187(a) explains what conduct constitutes murder.
Neither PC 664, nor PC 187(a) explain what an “attempt” is; however, this article will explain exactly what constitutes the crime of attempted murder, the punishment for attempted murder, and the legal defenses to attempted murder. For further information, contact our Inland Empire criminal defense lawyers today.
What is Attempt: To begin, to “attempt” a crime means to take a substantial step towards the commission of the crime, coupled with the specific intent to commit that crime. If the crime that is attempted is effectuated, then the defendant is not charged with attempt, but rather, he is charged with the target offense.
Essentially, this means that to “attempt a murder” means that a defendant genuinely tried to kill another person, but the defendant failed in his effort. For example, if David slings a rock at Goliath with the plan to kill Goliath with the rock, but Goliath is not killed by David’s rock, then David could be charged with attempt murder. However, if David’s rock kills Goliath as David intended, then David may be charged with murder, not attempted murder.
Substantial Step: A substantial step towards the commission of an offense means something more than a trivial effort towards the target offense. Whether or not the defendant took a substantial step towards the commission of murder depends on the tier of fact (Jury), but common examples that usually qualify as a “substantial step” includes, purchasing a weapon or equipment for the purpose of committing murder, making diagrams or plans to be used in the commission of a murder, preparing post-murder escape plans or provisions, preparing plans or purchasing equipment for secreting the murder victim, and more.
Murder Defined: The crime of murder has a technical definition that incorporates different mental states required for murder and different levels of murder (i.e., first degree murder, second degree murder).
For simplicity, the crime of murder can occur in several ways:
1) a killing that occurs with specific intent to kill a person (first degree murder);
2) a killing that occurs with the intent to severely harm another person, but with conduct that actually kills the person harmed (second degree murder);
3) a killing that occurs as a result of the defendant’s reckless conduct (second degree murder); and
4) a killing that occurs during the commission of an inherently dangerous felony (first degree murder).
Note: For a more in-depth discussion of what conduct constitutes murder, and the different levels of murder, please see Murder: Law, Penalty, & Defense.
Attempted First Degree Murder: An attempted first-degree murder occurs where the defendant willfully, deliberately, and with premeditation, attempts to kill another person but fails in her effort to kill that person. For example, when a defendant hires a hitman to kill her husband, and the hitman is unsuccessful in his effort to kill husband, then wife may be charged with first-degree attempted murder.
Attempted Second Degree Murder: An attempted second-degree murder occurs where the defendant tries to kill another person, but where the defendant did not act with premeditation. For example, where a defendant is in a bar fight that was not pre-planned, and the defendant stabs another person in the fight, but the person that the defendant stabbed does not die, then the defendant might be charged with second-degree attempted murder. This is because the defendant did not premediate to kill his combatant.
Note: Premeditation does not require lengthy planning or time-consuming effort. Whether or not the defendant premediated in an attempted murder case is an issue for the trier of fact (jury). Premeditation generally means that the defendant did not have sufficient time to reflect on her actions and the consequences, but this “reflection time” can be quite short.
For example, in the above bar fight example, if the defendant left the bar to retrieve a knife from his car, then returned to the bar to stab his combatant, then the defendant will likely be charged with premediated first-degree attempt murder, as opposed to second-degree attempted murder.
Attempted Murder Punishment
Note: The California penal code section for attempted murder is a combination of two penal code sections: 1) the crime of attempt, found at penal code section 664, and 2) the crime of murder, found at penal code section 187(a); thus, PC 664/187(a). For purposes of criminal charges, the district attorney will generally file the crime of attempted murder as PC664/187(a)-F, with the “F” designating the fact that attempted murder is a felony crime.
Attempted Murder in the First Degree: if the crime attempted is willful, deliberate, and premeditated murder…, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole.
Attempted Murder in the Second Degree: If the crime attempted is any other one in which the maximum sentence is life imprisonment or death, the person guilty of the attempt shall be punished by imprisonment in the state prison for five (5), seven (7), or nine (9) years.
Note: Both attempted murder in the first-degree, and attempted murder in the second-degree, are charged as PC664/187(a)-F in California.
Note: For most crimes that are attempted, but not achieved, the maximum punishment is half of the incarceration allowed for the target offense; however, California has carved out a special sentencing structure for attempted murder crimes. For example, the crime of criminal threats carries a maximum prison sentence of three years; therefore, attempted criminal threats carries out a maximum prison sentence of eighteen (18) months in prison. But with murder crimes, there is no way of serving “half a life sentence;” therefore, California law has set out the maximum number of years in prison specifically for attempted murder crimes.
Special Cases: In some special cases, the defendant may be sentenced to life in prison even if the defendant would otherwise be sentenced according to second-degree attempted murder laws (i.e., 5, 7, or 9 years). This situation occurs where the defendant attempts to kill another person, which would have qualified as a “special circumstances” murder case if the attempted murder was successful. This includes, but is not limited to, attempted murder of a police officer who is on duty as a police officer and the defendant is aware of this fact, attempted murder of an inmate custodial officer while the custodial officer is employed as such and the defendant is aware of this fact, and more (PC 664(e)).
Note: It is not uncommon for a defendant to be charged with attempted murder (PC 664/187(a)) and other crimes simultaneously, such as conspiracy to commit murder (PC182/187(a)), destroying evidence (PC 135), armed criminal action (PC 25800), and more.
Suspended Sentence: A suspended prison sentence, or a prison sentence that is not actually served unless and until the defendant violates some term of her out-of-prison condition, is not available in PC 664/187(a) cases. A suspended sentence is also commonly called a “joint suspended” sentence. Also, a “Split Prison Sentence” is not allowed after a PC 664/187(a) conviction.
Probation Sentence: A probation sentence is a period of supervision instead of a prison sentence. A probation sentence is allowed in attempted murder cases in the second degree. However, a probation sentence is not guaranteed. Whether or not the judge or district attorney agrees to a probation sentence after a PC 664/187(a) attempted murder conviction depends on many factors, including the facts of the case, the defendant’s criminal history, the terms of any plea bargain between the defendant and the district attorney, and more.
Probation Sentence Terms: A probation sentence is uncommon after a conviction for attempted murder in the second degree, but a probation sentence is possible. If the judge agrees to a probation sentence after a penal code section 664/187(a) conviction, then the defendant will be required to fulfill “conditions of probation.” The conditions vary from case to case, but most probation conditions include: 1) commit no crime, 2), pay restitution), pay fines, abide by the terms of a criminal protective order, and more.
Note: A felony probation sentence for an attempted murder conviction is supervised by a felony probation officer (formal probation). Any willful violation of the terms of the defendant’s probation can lead to a violation of probation criminal charge and the defendant may be incarcerated as if she was not granted probation in the first place.
California Strike Offense: An attempted murder conviction is a “strike” offense under California’s Three Strikes Sentencing Law. A strike crime is among California’s most egregious crimes (See PC 1192.7 & PC 667.5 for List of California “Strike” Crimes). When a defendant collects “strike” convictions, then subsequent criminal convictions carry enhanced penalties and lengthier prison sentences. This means that a defendant who is convicted of attempted murder of the second degree, and who has previously suffered a strike conviction, may have her prison sentence exceed the prison time that is otherwise set for PC 664/187(a) in the second degree.
For example, if the defendant has two prior strike convictions for the crime of robbery (PC 211), and then the defendant is subsequently convicted of second-degree attempted murder, then the defendant may face life in prison, as opposed to the maximum prison incarceration for PC 664/187(a) in the second degree. This is because a PC 664/187(a) conviction would be third strike for the defendant and California Three Strikes Law provides for a life sentence upon the conviction of a third strike crime. See Three Strikes Law for more information.
Additional Penalties: In addition to the penalties listed above, if convicted of PC664/187(a)-F, the defendant will face all of the following penalties: immigration consequences (for non-U.S. citizens), professional licensing consequences, military service consequences, civil lawsuits, criminal protective orders (CPO), loss of education grants, loss of firearm ownership and possession rights, parole restrictions (if sentenced to prison), and more.
Bail: Bail is an amount of money or property that is staked with the court, usually through a bail agent, and which is intended to secure the defendant’s presence in court during the pretrial proceedings if the defendant is otherwise released from custody. Bail in attempted murder in the second cases is $500,000 in San Bernardino County. Bail amounts may be increased or decreased based on factors beyond the scope of this article. For more information, see How to Bail out of Jail.
Defense to Attempted Murder
Every attempted murder case is different, therefore, every defense to an attempted murder criminal charge is unique to each case. With that said, most PC 664/187 cases incorporate one or more of the following defenses: alibi defense, coerced confession, illegal search and seizure, self-defense, defense of others, entrapment (murder for hire cases), insanity, insufficient evidence to prove an “attempt,” and more.
Self-Defense: Self-defense is probably the most commonly used defense against attempted murder charges. Self-defense is the justified use of force against another person. For more technical definition of self-defense, please Self-Defense in Criminal Cases.
Note: The crime of murder (PC 187(a)) allows for certain defenses that the crime of attempted murder does not allow: For example, a “heat of passion” defense might apply to a murder charge to reduce the murder charge to voluntary murder, but there is no “heat of passion” defense in an attempted murder case. The same is true for the defense of “imperfect self-defense.” For more information on these topics, see Murder: Law, Penalty, & Defense.
Statute of Limitations: There is no statute of limitations defense in attempted murder cases in California. This means that the district attorney may file PC 664/187(a) charges against the defendant at any time, and no matter how long in the past the alleged attempted murder occurred.
Post-Conviction Relief: If the defendant is convicted of attempted murder under penal code 667/187, then the defendant may have several post-conviction options, including appeal of the conviction, motion for certificate of rehabilitation, motion for modification of probation terms, motion for early release on probation or parole, withdraw of a guilty plea, defense of an alleged violation of probation, and more.
Note: A PC 664/187(a) attempted murder conviction cannot be expunged (PC 1203.4). Similarly, an attempted murder conviction cannot be reduced from a felony to a misdemeanor (PC 17(b)).
For more information on the crime attempted murder, contact our criminal defense attorneys today for a free consultation.
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