Penal Code § 664/187(a) - Attempted Murder

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1. What is Penal code § 664/187(a) ?

In California, Penal Code § 664/187(a) defines the crime of attempted murder. This statute combines the attempt to commit a crime under Penal Code § 664 and the specific crime of murder under Penal Code § 187(a). Attempted murder occurs when a person intends to kill another and takes a direct step toward doing so, but for some reason, the killing does not happen. Even though the victim does not die, the law treats this act as a serious offense, and it is always charged as a felony.

Elements of Attempted Murder Under Penal Code 664/187(a)

To secure a conviction for attempted murder, the prosecution must prove two essential elements beyond a reasonable doubt:

A Direct Step Toward Committing Murder: The defendant must have taken at least one direct step toward killing another person. A direct step goes beyond mere planning or preparation; it is an act that shows the person was actively attempting to commit the murder. Examples of a direct step include firing a gun at someone, stabbing someone with intent to kill, or paying someone to kill a victim. A “direct step” would have led to the murder had an external factor not intervened.
Intent to Kill: The defendant must have had the specific intent to kill the victim. Attempted murder is a “specific intent” crime, meaning that the defendant must have been acting with the intention to cause death. It is not enough to intend to harm or scare the victim—there must be clear evidence that the defendant wanted to kill. This can be proven by the defendant’s actions, statements, or the circumstances surrounding the crime.

First-Degree vs. Second-Degree Attempted Murder

California law distinguishes between first-degree and second-degree attempted murder based on the level of premeditation and deliberation involved:

First-Degree Attempted Murder: This involves willful, deliberate, and premeditated intent to kill. A conviction for first-degree attempted murder carries harsher penalties, including life imprisonment with the possibility of parole.
Second-Degree Attempted Murder: This refers to attempted murder without premeditation. The defendant still intended to kill, but the act was not premeditated or planned out in advance. Second-degree attempted murder typically results in lighter penalties than first-degree attempted murder but still carries severe consequences, including up to 9 years in prison.

The Kill Zone Theory

California also recognizes the Kill Zone Theory, which holds that a person can be charged with attempted murder even if they did not intend to kill a specific individual, as long as they created a situation where multiple people were at risk of being killed. This often applies in cases where a defendant fires a weapon into a crowd, intending to kill one person but putting others in danger. Under this theory, the defendant can be held liable for attempting to kill anyone within the “kill zone.”

Penal Code 664/187(a) defines the crime of attempted murder in California and imposes harsh penalties for those found guilty. To be convicted, the prosecution must prove that the defendant took a direct step toward committing the murder and had the specific intent to kill. The penalties for first-degree attempted murder include life imprisonment with the possibility of parole, while second-degree attempted murder carries up to 9 years in prison. However, several defenses, including lack of intent, self-defense, and abandonment, may be available to reduce or dismiss these charges.

Penal Code § 664/187(a) Law Reads As Followed:

664. 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 attempted crime is punishable by death or life imprisonment, the person guilty of the attempt shall be punished by imprisonment in the state prison for five, seven, or nine years.
If the attempted crime is willful, deliberate, and premeditated murder, the person guilty of the attempt shall be punished by imprisonment in the state prison for life with the possibility of parole.
If the attempted crime is any other offense, the person guilty of the attempt shall be punished by imprisonment for one-half the term of imprisonment prescribed upon a conviction of the offense attempted.

2. What are Examples of Penal Code § 664/187(a) ?

California Penal Code § 664/187(a) covers the crime of attempted murder. To be convicted under this statute, a person must have taken a direct step toward killing another person with the intent to kill, but the killing was unsuccessful or prevented. The law imposes harsh penalties for attempted murder, often carrying the same weight as if the crime had been completed. To better understand how Penal Code § 664/187(a) works, here are some examples that illustrate scenarios where someone might be charged with attempted murder.

Example 1: Firing a Gun with Intent to Kill

John gets into an argument with a rival, Mike, at a bar. In the heat of the argument, John pulls out a gun and fires several shots toward Mike. However, Mike manages to dodge the bullets and escape unharmed. Even though Mike wasn’t killed or even injured, John can be charged with attempted murder under Penal Code § 664/187(a) because he took a direct step—firing the gun—and intended to kill Mike.

Potential Penalty: If convicted of first-degree attempted murder (willful, deliberate, and premeditated), John could face life in prison with the possibility of parole.

Example 2: Stabbing Someone with Intent to Kill

Sarah believes her co-worker, Lisa, has been sabotaging her work. One day, in a fit of rage, Sarah grabs a knife and stabs Lisa in the back. Lisa survives the attack after receiving immediate medical attention. Although Lisa did not die, Sarah can be charged with attempted murder because the act of stabbing Lisa shows both the intent to kill and a direct step toward carrying out the murder.

Potential Penalty: Sarah may be convicted of second-degree attempted murder (without premeditation) and face 5, 7, or 9 years in prison.

Example 3: Hiring a Hitman

Mark wants to get rid of his business competitor, Tom, and decides to hire a hitman to kill him. Mark pays the hitman in advance and provides him with all the details about Tom’s schedule and whereabouts. However, before the hitman can complete the murder, the police intervene and arrest both Mark and the hitman. Mark can be charged with attempted murder because hiring someone to commit a murder is considered a direct step toward the act.

Potential Penalty: Since this case likely involves premeditation, Mark could be sentenced to life in prison with the possibility of parole if convicted of first-degree attempted murder.

Example 4: Shooting into a Crowd (Kill Zone Theory)

David wants to kill his neighbor, but he knows the neighbor is frequently surrounded by a group of friends in the neighborhood park. Determined to kill his neighbor, David opens fire on the group of people, intending to hit his neighbor but potentially harming anyone nearby. Under California’s Kill Zone Theory, David can be charged with attempted murder not only for his neighbor but for everyone in the group, as his actions endangered their lives.

Potential Penalty: If found guilty of multiple counts of first-degree attempted murder, David could face life in prison for each victim, potentially serving consecutive sentences.

Example 5: Driving a Car into a Crowd

During a protest, Emily becomes enraged and decides to drive her car through a group of demonstrators. Several people are injured, but fortunately, no one is killed. Although Emily’s actions resulted in injuries, the intent to cause death by driving her car into the crowd could lead to attempted murder charges, especially if prosecutors can prove that her goal was to kill.

Potential Penalty: If convicted of attempted second-degree murder, Emily could face up to 9 years in prison for each individual she intended to kill.

Example 6: Attempted Poisoning

Carl is angry with his spouse, Maria, and decides to poison her drink in an attempt to kill her. Maria drinks the poison but realizes something is wrong and rushes to the hospital, where doctors are able to save her. Even though Carl’s attempt to kill Maria was unsuccessful, he can still be charged with attempted murder because he took a direct step by poisoning her drink with the intent to cause her death.

Potential Penalty: If convicted of first-degree attempted murder, Carl could face life in prison with the possibility of parole.

Example 7: Attempting to Strangle

After a heated argument, Jim attacks his roommate, Chris, and begins to strangle him. Jim stops the attack when someone else enters the room, and Chris survives the assault. Jim can be charged with attempted murder because strangulation is a direct step toward killing someone, and the intent to kill can be inferred from Jim’s actions.

Potential Penalty: Depending on whether the prosecution proves premeditation, Jim could be sentenced to 5, 7, or 9 years for second-degree attempted murder or life in prison for first-degree attempted murder.

Example 8: Attempted Murder in a Domestic Violence Incident

In a domestic violence situation, Kelly is attacked by her partner, who attempts to shoot her during a heated confrontation. Kelly manages to disarm her partner before any shots are fired. Even though Kelly wasn’t shot, her partner can be charged with attempted murder because pointing a gun and attempting to fire it is considered a direct step toward committing the crime.

Potential Penalty: If convicted of second-degree attempted murder, Kelly’s partner could face a prison sentence of 5, 7, or 9 years.

3. What Are Common Defenses Against Penal Code § 664/187(a) ?

Facing charges of attempted murder under Penal Code § 664/187(a) in California is a serious legal matter, as the penalties for a conviction can be severe, including life imprisonment. However, there are several legal defenses that can be used to challenge these charges. Attempted murder requires the prosecution to prove beyond a reasonable doubt that the defendant took a direct step toward killing someone and intended to kill. If either of these elements is missing, the charge may not hold.

Here are some common defenses that a criminal defense attorney may use to fight charges of attempted murder under Penal Code § 664/187(a):

1. Lack of Intent to Kill

One of the essential elements of attempted murder is the intent to kill. The prosecution must prove that the defendant specifically intended to take another person’s life. If the defendant did not have the intention to kill, they cannot be convicted of attempted murder, even if their actions resulted in harm.

Example: If the defendant was involved in a physical altercation and intended only to hurt or scare the victim, not kill them, this could be a defense. For instance, if the defendant swung a weapon but was only attempting to injure the victim, not end their life, the charge may be reduced to assault with a deadly weapon or another lesser offense.

2. No Direct Step Toward the Killing

Another key element of attempted murder is taking a “direct step” toward completing the crime. A direct step means that the defendant’s actions moved beyond mere preparation and showed that they were actively attempting to commit the murder. If the prosecution cannot prove that the defendant took this step, the attempted murder charge may be challenged.

Example: If the defendant planned or prepared for a murder (such as by purchasing a weapon), but never actually took any direct steps toward carrying out the crime (such as confronting the victim or making an attempt to use the weapon), this may not qualify as attempted murder. A defense attorney could argue that the defendant was merely preparing, which is not enough to be convicted of attempted murder.

3. Self-Defense or Defense of Others

California’s self-defense laws allow individuals to use reasonable force to protect themselves or others from imminent harm. If the defendant acted in self-defense or in defense of someone else, they may have a valid defense against attempted murder charges. To succeed in this defense, the defendant must have reasonably believed that they or another person were in immediate danger of being killed or seriously injured.

Example: If someone attacked the defendant with a weapon, and the defendant responded by using deadly force to protect themselves, the defense could argue that the defendant was acting in self-defense. Even if the defendant’s actions could have resulted in the attacker’s death, they may not be convicted of attempted murder if the force used was reasonable under the circumstances.

4. Mistaken Identity

Mistaken identity is a common defense in attempted murder cases, especially when the crime occurs in a chaotic situation or the defendant is misidentified by witnesses. In cases where the defendant was not the actual perpetrator, a defense attorney may work to prove that the defendant was falsely accused due to a misunderstanding or misidentification.

Example: If the attempted murder occurred in a dark or crowded place, and the defendant was wrongfully identified as the attacker, they may have been in the wrong place at the wrong time. The defense could present alibi evidence or challenge the credibility of eyewitness testimony to raise doubt about the defendant’s involvement.

5. False Accusation

In some cases, defendants are falsely accused of attempted murder due to personal conflicts, revenge, or other motives on the part of the accuser. A defense attorney can work to uncover evidence that suggests the accusation is false or motivated by an ulterior motive. This defense is often used when there is little or no physical evidence linking the defendant to the crime, and the prosecution’s case relies primarily on the testimony of the alleged victim or witnesses.

Example: A bitter dispute between neighbors might lead one party to falsely accuse the other of attempted murder, exaggerating an altercation. The defense could investigate the accuser’s background and possible motivations to prove that the allegations are unfounded.

6. Abandonment of the Plan

If a defendant voluntarily abandons their plan to commit murder before taking a direct step to carry it out, this could be a valid defense to attempted murder charges. Abandonment demonstrates that the defendant changed their mind before actually attempting to kill someone. However, this defense only applies if the defendant abandoned the plan on their own and not because they were interrupted or stopped by outside forces.

Example: If someone plans to shoot another person but has a change of heart before confronting the victim and leaves the scene, the defense could argue that the defendant voluntarily abandoned the attempt, and no attempted murder occurred.

7. Inability to Carry Out the Crime (Factual Impossibility)

In rare cases, a defendant may argue that it was factually impossible to carry out the murder, meaning that, even if the defendant intended to kill the victim and took a direct step, the crime could not have been completed due to circumstances beyond the defendant’s control.

Example: If someone fires a gun at another person, not realizing that the gun is unloaded or malfunctioning, the defense could argue that the murder could not have occurred, even though the intent was there. However, it is important to note that factual impossibility is not always a strong defense, as California law generally focuses on intent and direct actions rather than the ultimate success of the crime.

8. Insanity Defense

In some cases, a defendant may plead not guilty by reason of insanity if they were suffering from a severe mental disorder at the time of the crime and could not understand the nature of their actions or that their actions were wrong. Successfully raising an insanity defense can be challenging and usually requires substantial medical evidence.

Example: If the defendant was suffering from a diagnosed mental illness that caused them to believe they were acting in self-defense against an imaginary threat, their defense attorney might argue that they lacked the mental capacity to form the intent to kill, which is required for attempted murder.

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4. What Are The Penalties for Violating Penal Code § 664/187(a) ?

California Penal Code § 664/187(a) defines the crime of attempted murder, which involves taking a direct step toward killing someone with the intent to do so, but failing to complete the act. Even though the murder did not occur, the penalties for attempted murder are severe and can include life imprisonment in certain cases. The penalties vary depending on whether the attempted murder is classified as first-degree or second-degree, whether specific enhancements apply, and whether the crime involved special circumstances, such as the use of a firearm or targeting a protected individual.

Below is a breakdown of the penalties for violating Penal Code § 664/187(a).

1. First-Degree Attempted Murder

First-degree attempted murder occurs when the defendant acts with willfulness, deliberation, and premeditation—in other words, they planned the murder in advance and carried out actions with a clear intent to kill. The penalties for first-degree attempted murder are particularly harsh due to the seriousness of the crime.

Life imprisonment with the possibility of parole: A conviction for first-degree attempted murder can result in a sentence of life in prison with the possibility of parole. This means that after serving a minimum portion of the sentence, the defendant can apply for parole, but release is not guaranteed.
Mandatory minimum sentence: If the victim of the attempted murder was a peace officer, police officer, firefighter, or another protected individual who was performing their duties at the time of the crime, the defendant must serve at least 15 years in prison before being eligible for parole.

2. Second-Degree Attempted Murder

Second-degree attempted murder applies when the defendant attempted to kill someone without premeditation. In these cases, the intent to kill is still present, but the crime was not planned in advance or carried out in a deliberate manner. The penalties for second-degree attempted murder are less severe than those for first-degree attempted murder but still carry significant prison sentences.

Prison sentence of 5, 7, or 9 years: A conviction for second-degree attempted murder typically results in a prison sentence ranging from 5 to 9 years. The exact sentence will depend on the specifics of the case, including any aggravating or mitigating factors.

3. Sentence Enhancements for Attempted Murder

Several factors can lead to sentence enhancements in attempted murder cases, which result in longer prison terms. These enhancements are often applied when the crime involves specific circumstances, such as the use of a firearm, involvement in gang-related activity, or causing great bodily harm to the victim.

Use of a firearm: Under California’s “10-20-life” law (Penal Code § 12022.53), defendants convicted of attempted murder face additional prison time if a gun was used in the commission of the crime:
- 10 years for using a firearm,
- 20 years for discharging a firearm, and
- 25 years to life if the firearm discharge caused great bodily injury or death.
Gang-related attempted murder: If the attempted murder was committed for the benefit of a gang (under Penal Code § 186.22), an additional 15 years to life may be added to the defendant’s sentence.
Great bodily injury: If the defendant’s actions resulted in great bodily injury to the victim, an additional 3 to 6 years may be added to the sentence.
Prior convictions: If the defendant has prior convictions, especially for violent felonies, the penalties can be significantly increased under California’s Three Strikes Law. A second strike results in double the sentence, and a third strike could lead to 25 years to life in prison.

4. Fines and Restitution

In addition to prison time, a conviction for attempted murder under Penal Code § 664/187(a) may result in significant financial penalties:

Fines: The court may impose fines of up to $10,000.
Restitution: The defendant may also be ordered to pay victim restitution to cover the medical expenses, lost wages, and other costs incurred by the victim as a result of the attempted murder.

5. Impact on Gun Rights

Attempted murder is classified as a violent felony in California, which carries a lifetime ban on firearm possession. Under Penal Code § 29800, individuals convicted of attempted murder are permanently prohibited from owning, possessing, or purchasing firearms. Violating this prohibition can lead to additional felony charges and further prison time.

6. Three Strikes Law

Attempted murder is a strike offense under California’s Three Strikes Law. This means that a conviction for attempted murder will count as a strike on the defendant’s criminal record. If the defendant already has one strike, the sentence for a new attempted murder conviction will be doubled. If the defendant has two prior strikes, they could face a sentence of 25 years to life for a third strike, even if the third crime is less serious.

7. Deportation for Non-Citizens

Attempted murder is considered an aggravated felony under U.S. immigration law. Non-citizens convicted of attempted murder face deportation or removal proceedings and will likely be barred from re-entering the United States in the future. This is a severe consequence for immigrants, even if they have legal residency status or other ties to the country.

8. Probation Eligibility

Attempted murder is generally not eligible for probation. Due to the seriousness of the crime, defendants convicted of attempted murder almost always face state prison time. However, in rare circumstances, the court may consider probation for second-degree attempted murder if mitigating factors significantly reduce the severity of the case, although this is uncommon.

5. What Are the Related Offenses To Penal Code § 664/187(a)?

California Penal Code § 664/187(a) defines the crime of attempted murder, which occurs when a person takes a direct step toward killing another individual with the intent to kill, but the murder is not completed. While attempted murder is a severe offense, there are several related crimes that may also apply depending on the specific circumstances of the case. These related offenses often involve similar actions or intents and can sometimes be charged alongside or instead of attempted murder.

Below is an overview of some of the most common related offenses to Penal Code § 664/187(a).

1. Penal Code § 187 PC – Murder

Penal Code § 187 PC is California’s law that defines murder as the unlawful killing of another person with malice aforethought. While attempted murder involves trying but failing to kill someone, a completed murder under § 187 PC results in the death of the victim. Murder can be charged as either first-degree or second-degree, depending on the presence of premeditation and other factors.

First-degree murder involves willful, deliberate, and premeditated killing.
Second-degree murder involves killing without premeditation but still with malice aforethought.

2. Penal Code § 192 PC – Manslaughter

Manslaughter under Penal Code § 192 PC is the unlawful killing of another person without malice aforethought. This differs from murder in that manslaughter often occurs in the heat of passion or as a result of reckless actions without the intent to kill. If a defendant is accused of attempted murder but the prosecution cannot prove intent to kill, the charge may be reduced to attempted voluntary manslaughter under Penal Code § 192(a).

Voluntary manslaughter involves killing someone during a sudden quarrel or in the heat of passion.
Involuntary manslaughter involves unintentional killing due to reckless or negligent behavior.

3. Penal Code § 245(a)(1) PC – Assault with a Deadly Weapon

Under Penal Code § 245(a)(1) PC, assault with a deadly weapon (ADW) involves attacking or attempting to harm another person using a weapon or force likely to cause great bodily injury. If the prosecution cannot prove the intent to kill required for attempted murder, the charge may be reduced to assault with a deadly weapon, especially in cases where the defendant’s actions involved the use of a weapon.

Example: If someone attacks another person with a knife but there is no clear intent to kill, they could be charged with assault with a deadly weapon rather than attempted murder.

4. Penal Code § 206 PC – Torture

Torture under Penal Code § 206 PC involves inflicting great bodily harm with the intent to cause extreme pain and suffering. Torture is a serious felony, and in some cases, the line between torture and attempted murder can blur. If the defendant’s intent was to inflict pain rather than kill, they may face charges for torture instead of attempted murder.

Example: A person repeatedly beats and injures someone to cause pain and suffering without intending to kill them. This could result in charges for torture rather than attempted murder.

5. Penal Code § 422 PC – Criminal Threats

Under Penal Code § 422 PC, criminal threats occur when a person threatens to kill or seriously harm another person, causing them to fear for their safety. While criminal threats do not involve an actual attempt to kill, the intent to cause fear can sometimes lead to related charges. In cases where threats escalate into actions that are intended to harm or kill, attempted murder charges may be added.

Example: If someone threatens to kill a person and then takes steps to carry out the threat, such as brandishing a weapon, they could face both criminal threats and attempted murder charges.

6. Penal Code § 246 PC – Shooting at an Inhabited Dwelling or Occupied Vehicle

Penal Code § 246 PC makes it illegal to shoot at an inhabited dwelling or occupied vehicle. Firing a gun at a building or vehicle where people are present, even if no one is hit, can be considered attempted murder if the intent to kill is proven. If intent to kill cannot be established, the defendant may still face charges under § 246 for shooting at a dwelling or vehicle.

Example: A person fires shots into a home intending to kill the occupants, but no one is injured. This could result in attempted murder charges or charges for shooting at an inhabited dwelling under Penal Code § 246.

7. Penal Code § 26100 PC – Drive-By Shooting

A drive-by shooting under Penal Code § 26100 PC occurs when a person fires a gun from a moving vehicle at another person or location. If the drive-by shooting is aimed at killing someone but the attempt fails, the defendant may face both attempted murder and drive-by shooting charges.

Example: A gang member participates in a drive-by shooting, aiming at rival gang members but failing to hit anyone. They could face charges for both attempted murder and committing a drive-by shooting.

8. Penal Code § 451 PC – Arson

Under Penal Code § 451 PC, arson is the intentional setting of a fire to a structure, forest land, or property. If a person sets a fire with the intent to kill someone inside a building, they could face charges of both arson and attempted murder. The key distinction is whether the defendant’s primary goal was to cause death or just damage.

Example: A person sets fire to a building where they know people are inside, intending to kill them. This could result in both arson and attempted murder charges.

9. Penal Code § 653f PC – Solicitation of Murder

Solicitation of murder under Penal Code § 653f PC involves hiring or encouraging another person to commit murder. Even if the murder is not completed, the person who solicited the crime can be charged with both solicitation and attempted murder, depending on how far the plan progressed.

Example: A person hires a hitman to kill someone, but the hitman is caught before the murder occurs. The person who hired the hitman can be charged with solicitation and attempted murder.

10. Penal Code § 401 PC – Aiding or Encouraging Suicide

Under Penal Code § 401 PC, it is illegal to aid, advise, or encourage someone to commit suicide. In certain cases, this can blur the line with attempted murder, particularly if the defendant’s actions directly contributed to an attempted killing. The difference lies in the defendant’s intent—whether they were helping someone commit suicide or actively trying to kill the person.

Example: A person provides another with the means to commit suicide, but the individual survives. Depending on the circumstances, this could result in charges for aiding suicide or attempted murder.

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