In California, violent crimes are taken seriously. Crimes like attempted murder attract severe consequences like life sentences without parole. It is suitable to hire an attorney once you are accused, to increase the possibility of achieving the best results like dismissal or lower charges. At the Orange County Criminal Defense Attorney Law Firm, we are standby to review your case and develop efficient defense strategies.

Legal Definition of Attempted Murder in California

In California, attempted murder crime is defined under Penal Codes 664 or 187(a). Under these statutes, attempted murder is defined as a failed attempt to kill someone by taking a direct step towards killing the target person. There are different ways that someone can attempt to murder someone. Some of the examples are as follows:

  • Trying to poison someone to death
  • Stabbing someone
  • Strangling someone

Elements of Crime in Attempted Murder Charges in California

In California attempted murder charges, there are two elements of the crime that a prosecutor must prove to prosecute a suspect for this crime. These elements are as follows:

  • You took a direct step to kill someone else
  • You had an intention to kill someone (malice afterthought)

Please note, a fetus is considered to be a person under this statute. Therefore, any failed attempt to kill a fetus can have you charged for attempted murder.

Below is a detailed view of the common terms that stands out in the definition provided above.

  1. Direct Step

To be convicted for attempted murder, the prosecution must demonstrate that you took a "direct step" towards killing your target victim. The prosecution must prove that you did not only prepare to commit the crime and instead took a step to perpetuate the action.

Preparing for an act means that you either thought to undertake the activity, talked about it, or planned to commission it. On the other hand, perpetuating the action involves taking an act that puts your plan in motion and results in a particular result, which consists of taking another person's life.

Different actions qualify as a direct step to attempted murder. These actions are as follows:

  • Ambushing, tracking, or stalking your target victim hoping for an opportunity to execute your action
  • Luring the victim to come to a specific place or taking a particular action that will make it possible to murder the target victim
  • Breaking into or sneaking into the target victim's residence or any place that would likely help you accomplish your action
  • Engaging in the construction of a material that can help in achieving your goal. This includes a material like a part of a bomb that you probably have started to put together
  • Paying or convincing someone to kill someone. This also involves convincing someone unknowingly to carry out a crucial part of your crime

  1. Intention to Kill

You cannot accidentally attempt to murder someone else. Therefore, the prosecution has the burden to prove that you intended to kill someone else to prosecute you for this crime. The prosecutor should not only prove that you intended to kill, but you had the intention to kill the specific victim(accuser).

Therefore, when someone wants to do something, it means that they had the mental desire and will to act in a particular way to accomplish a specific goal. Therefore, there should be an intention to act (taking a direct step) and intent to kill to claim an instance of attempted murder.

When a prosecutor is proving that you had the intention to kill the target victim, there must be enough circumstances that would naturally lead to this conclusion. For instance, hitting someone in the head with a lead pipe is enough to demonstrate the intention to kill a person. Therefore, if the injuries presented by the accuser are not enough to prove an intention to kill him or her, the prosecutor might find it challenging to establish an instance of attempted murder. 

Please note, you can be prosecuted for attempted murder even if there is no specific target intended to be killed. For instance, a defendant places a bomb in a commercial plane intending to kill a particular passenger, but the bomb fails to go off. This defendant can still be charged for attempted murder for every passenger on board. This kind of situation is referred to as the kill zone theory. 

Penalties for Attempted Murder in California

Attempted murder is a felony under California laws. Similar to murder, attempted murder has two degrees. This includes first and second-degree attempted murder. Let's have a look at the potential penalties for both first and second-degree attempted murder. 

First-Degree Attempted Murder

In first-degree attempted murder charges, the defendant must have acted willfully, deliberately, and should have premediated how to accomplish the action. If you are convicted with first-degree attempted murder, the potential penalties include:

  • Life imprisonment in a California state prison
  • Possibility of parole

Convicted defendants such as peace officers, firefighters, or other protected people should serve at least fifteen years in prison if they committed this crime while on-duty. 

Second-degree Attempted Murder

A person is convicted for a second-degree attempted murder if the action was not premeditated, deliberate, and willful. This crime's potential punishment includes imprisonment in state prison for five, six, or nine years.

Additional Penalties for Attempted Murder in California

There are other penalties imposed on an attempted murder convict apart from imprisonment. This includes:

  • Restitution to the victim
  • Loss of the right to acquire, own or possess a firearm
  • A maximum fine of $10,000

You are also at risk of different sentencing enhancement once you are convicted for attempted murder in California. These enhanced punishments are as follows. 

  1. California's Three Strikes Law

Under California's three-strikes law, attempted murder is considered a violent felony. Therefore, if you are convicted for this crime, a strike is included in your criminal record. For a second time conviction, a second strike is included in your record, and you are at risk of a double sentence. For a third time conviction, the potential sentence consists of a 25 years-to-life sentence in state prison. 

  1. Criminal Street Gang Enhancement

If your attempt murder charges were intended to further the interest of a gang, you would be at risk of an additional sentence of 15 years in prison. This sentence will run consecutively with your attempted murder sentence.

  1. 10-20-life Use of a Gun and You're Done

Attempting to murder someone with a gun can also play a part in your enhanced penalties. Under this law, you can face an additional sentence of:

  • Ten years of imprisonment if you were using a gun
  • Twenty years if you fired the gun
  • Twenty-five-to-life for killing someone with a gun or causing significant bodily injury on the plaintiff using the gun

  1. Immigration Consequences

Since attempted murder is an aggravated felony, a non-citizen convicted of this crime can face deportation. 

What You Need to Know About Parole in California

Parole is a form of supervised release program that applies to felony convicts in California. This kind of release does not apply to a convict unless released from the prison. Once you have been placed under parole, you will agree to abide by particular terms and conditions. However, one is released based on several factors that determine whether one is eligible for release or not. These factors are as follows:

  • The severity of your attempted murder crime
  • The motivation for committing your crime
  • Whether you violated prison rules and regulations
  • Signs of remorse
  • Psychological evaluation
  • Inmate's lack of insight
  • Whether the inmate violated prison rules and regulations
  • The victim's attitude towards the inmate
  • Chances of the inmate to successfully integrate with the society

Once you are found eligible for parole, the parole board will impose specific terms and conditions upon your release. Some of the common terms and conditions set on parolees are as follows:

  • Restriction from leaving the state without a formal permit
  • Submission to an unwarranted search and seizure on you or your property
  • Reporting to parole agent once you have been released from prison
  • Follow all your parole's agent written and verbal instructions
  • Immediately inform your parole agent once you receive a ticket or arrested
  • Restriction from possessing or using firearms or bullets

There are also specific conditions that might be imposed on you after your parole release. This includes staying away within 100 yards from the target victim's place of employment or residence.  You might also be restricted from using the internet or associating with any known gang member.

Suitable Legal Defenses for Attempted Murder Charges

You need the help of an attorney once you are accused of an attempted murder crime charge. A reliable attorney should adopt relevant criminal legal arguments to either dismiss your case or reduce your charges to a less severe case. Your attorney will adopt specific defenses depending on your case's facts and the evidence that the prosecution has on you. The following are potential defenses that will help in your attempted murder charges.

Self- Defense or Defense of Others

You could use self-defense as your legal defense if you used reasonable force to protect yourself or another person from serious injury or death threats. Anyone can respond to these threats with deadly force and is usually referred to as "standing your ground." Unfortunately, this kind of self-defense is not used in California. However, they recognize the "Castle doctrine.".

The castle doctrine allows people to use deadly force to protect their property, whether a private residence, a place of business, or other real property. However, despite the chance to use force to protect your property, this rule does not apply when the individuals are no longer in their property. The law is also applicable only if the force used against the intruder is proportional to a reasonably feared harm. The jury should assess the defendant's self-defense claim while determining whether it is sufficient enough to be considered valid in court. 

Abandonment of the Criminal Act

Under the elements of the crime needed to prosecute anyone for an attempted crime, there must be a direct step towards commissioning your intended action. Therefore, if you took no straightforward step into killing another person, you cannot be convicted for attempted murder. In other words, if you abandoned your initial plan to kill another person, then you are innocent of attempt murder charges.

No Intent to Kill

Besides not taking a direct step to kill someone, you can be considered innocent of attempted murder if you had no intention to kill someone else. Perhaps you intended to maim or scare the alleged victim, but your actions were mistaken to be an attempt to murder him or her. In this case, you can disapprove of the fact that you had no intention to kill and end up being charged with less severe charges under Penal Code 203: Mayhem, Penal Code 240: Assault, or Penal Code 245: Assault with a deadly weapon. 

Mistaken Identity

Misidentification could easily arise in an attempted case. Perhaps the plaintiff was mugged in a dark alley and could not identify the actual perpetrator. In this case, suspects are placed in a police lineup, and the plaintiff plus eyewitnesses should identify the real perpetrator. Since the plaintiff and eyewitnesses depend on the perpetrator's vague descriptions, you can be easily mistaken to be the actual perpetrator, especially if most of the illustrations are similar to yours.

If you are charged based on misidentification, you should provide relevant evidence proving that you are not the actual perpetrator. One of the best ways to disapprove of your involvement in the criminal action is by providing proof like your phone record, credit card report, and receipts to demonstrate your non-involvement in the crime.

Insufficient Evidence

Sometimes overzealous police officers adopt insufficient evidence and try to use it to charge someone with a crime like attempted murder. In this kind of situation, your attorney can pinpoint the weakness of the evidence provided by the prosecution team and use it against them. That's why the court allows both sides to scrutinize the evidence that they present to determine whether it is credible enough. If the court finds out that there is insufficient evidence presented against you, they might decide to drop the case presented against you. 

Lack of Possibility in Your Actions

In an impossibility defense, the accused usually agrees to have committed the act, but instead claim that the murder would not have been successful even if everything went as planned. For example, if you are accused of attempting murder with a non-function replica gun, the murder could never have happened. In this case, there is factual evidence that a replica gun cannot kill anyone, hence making this defense valid for use.

Police Misconduct

Sometimes law enforcement officers are involved in some misconduct during arrest or interrogation. For instance, if the police were involved in illegal search or seizure, forcible interrogation, or denial of an attorney, you can use these instances as a legal defense.

Ideally, the court will not dismiss your case based on an instance of police misconduct, but it will not accept any evidence collected through these circumstances. This might leave insufficient evidence that would make it possible to dismiss the charges made against you. 

Insanity Defense

California courts can accept insanity as a legal defense as long as you were insane while attempting to kill someone else. The court usually uses the term McNaughton's rule while defining insanity. You and your attorney should provide relevant evidence demonstrating your insanity and that you could not understand the nature of your criminal action while attempting to kill the plaintiff.

Lack of Witness Credibility

A witness can have a motive to lie in your case. Therefore, your attorney should work to uncover any inconsistency in the story presented by the witness and have their testimonies dropped by the court. A witness testimony without credibility can lead to lesser charges or have your charges dropped, depending on the extent of proof provided by your attorney.

Crimes Related to Attempted Murder in California

Several criminal charges are related to attempted murder in California. These charges may either accompany or replace attempt murder charges. Your attorney can reduce your attempt murder charges to any of these charges if they attract a lower penalty. These crimes are as follows. 

Penal Code 246: Shooting at an Occupied Car or Inhabited Dwelling

Under California Penal Code 246, it is a crime to discharge a firearm in an occupied building, inhabited dwelling, or an occupied vehicle, aircraft, or housecraft. You could be charged with this crime even if you didn't know that someone was inside the house or apartment. All that matters is that someone is currently using the structure as a residence.

Shooting at an inhabited dwelling or occupied car is a California felony. This attracts a potential consequence that includes:

  • Formal probation
  • Either six months to one year in county jail or three, five, or seven years in state prison
  • A maximum fine of $10,000

Penal Code 26100: Drive-by Shooting

Under California Penal Code 26100, it is a crime to discharge a firearm from your car or allow another person to fire a gun from your vehicle. This kind of offense can be a misdemeanor, a wobbler, or a straight felony.

You could face a misdemeanor charge if you allowed a person to bring a gun into your vehicle. The potential penalties include:

  • Custody in a county jail for six months
  • A maximum fine of $1,000

On the other hand, you can face wobbler charges if someone else fires a gun from your vehicle or allows a passenger to shoot a gun from your car. The potential penalties for a misdemeanor charge include a maximum of one year in county jail and a maximum fine of $1,000. A felony charge attracts a possible punishment of a maximum of three years in state prison and a fine of up to $10,000. 

Finally, you can face a  straight felony if another person shoots another person from your car. The potential punishment includes:

  • A maximum of seven years of custody in state prison
  • A fine of up to $10,000

Penal Code 401: Attempted Aiding a Suicide

California Penal Code 401 makes it a crime to help or encourage someone else to commit suicide. This kind of offense is a California felony and is punishable by:

  • A fine of up to $10,000
  • Imprisonment for a maximum of three years

There are also chances of being placed under formal probation other than serving a prison term. 

Penal Code 192(c): Voluntary Manslaughter 

Under Penal Code 192(c), it is illegal to drive unlawfully or negligently and end up causing another person's death. The kind of penalties that result from voluntary manslaughter depends on whether your actions were out of gross or ordinary negligence.

If your actions were out of gross negligence, you are charged as a wobbler. A misdemeanor sentence attracts a maximum of one year in county jail while a felony sentence attracts six years in state prison.

If your actions were out of ordinary negligence, you are charged with a misdemeanor. This attracts a maximum sentence of one year in county jail.

Penal Code 653(f): Solicitation of a Crime

Under California Penal Code 653(f), it is a crime to solicit someone else to commit a criminal offense. The kind of penalties resulting from this kind of offense depends on the underlying offense you asked someone else to do. If you are convicted of solicitation of murder, the potential penalties include three, six, or nine years in state prison and a maximum fine of $10,000. 

Find an Attempted Murder Attorney Near Me

Attempted murder is one of the most challenging charges you could face. It can ruin your life regardless of whether you are convicted or not. A qualified and experienced defense attorney could offer useful legal advice and service. At the Orange County Criminal Defense Attorney, we are committed to proving prejudicial errors and uncover any technicalities that would reduce your sentence or dismiss your case. Contact us today at 714-740-7848 and schedule a consultation with us.