Attempted murder is a failed attempt at killing another. As the name suggests, defendants facing attempted murder charges are accused of taking a direct step to kill another but failing to kill their victim. These actions are punishable under Penal Code 664.
Attempted murder is a violent felony. The law details hefty and consequential penalties for defendants found guilty of the crime. It is thus in your best interest to seek legal representation if you or a loved one faces attempted murder charges. At California Criminal Lawyer Group, our experienced attorneys are ready to offer the best legal advice and defense if you are accused of attempted murder in Santa Ana. The following article details what attempted murder is, its penalties, and the possible legal defenses.
Attempted Murder as Defined Under Penal Code 664
PC 664 defines attempted murder as an action taken by the perpetrator towards killing another. Further, the perpetrator must have an intention to kill the victim. This definition presents two elements the prosecution must prove beyond reasonable doubt for you to be found guilty of the crime.
- You took a direct step, though ineffective, to kill another
- You intended to kill another — This intention is referred to as malice aforethought
Let us break down the elements to understand the crime better.
Taking a Direct Step
When you make an effort to achieve or complete an activity, you have attempted to execute or complete the action. From this definition, the step is pivotal. This definition is upheld under PC 664.
Penal Code 664 requires the DA to prove that you took a direct step to actualize your intention to kill another. While planning and preparing to kill another is considered, what is significant and consequential is taking steps to actualize your plans.
Preparation could include:
- Having a knife ready
- Loading a firearm
- Sending another to lure the victim to the kill site, or
- Buying a shovel, tape, and ropes if you intend to bind the victim and dispose of his/her body after killing them.
Additionally, looking for an assassin also counts as part of the preparation.
Actions that fit taking a direct step include taking aim and shooting toward the victim, stabbing the victim, or paying a hitman to finish the job.
It is worth pointing out that physical contact is not necessary to establish your guilt. All that is needed is demonstrating that you took a step to put the plan to kill another in motion.
Intention to Kill
Since the victim is not dead, prosecutors rely on the location of the victim’s injuries to prove intent.
Note: It is not sufficient that a victim suffered significant bodily harm. The DA must establish that you aimed to kill the person.
Injuries to the upper body point to premeditation aiming to kill the victim since the upper body contains vital organs like the brain, heart, lungs, and liver. On the other hand, injuries inflicted on the lower part of the body indicate an intent to injure and not kill.
Note: Even if a defendant aimed to kill the victim and missed and struck the victim’s lower body part, the assumption is that the intent was to injure and not kill the victim. Therefore, it is a challenge for the prosecution to prove otherwise.
In some instances, the victim does not sustain injuries. If so, the prosecution relies on the circumstances in the case to demonstrate intent. This is common in cases where the defendant tried and failed to inflict harm, for example, shooting at the victim and missing the shot.
It is also worth pointing out that your intention should be to kill. Therefore, you will not be found guilty if your actions were accidental.
Persons
California law considers both individuals and fetuses as persons. Further, prosecutors do not have to prove you had a targeted victim. The victim in the case could be the target. However, this is not a requirement.
It also follows that you aimed at killing a person.
Kill Zone Theory
You would be liable for attempted murder if another were inadvertently killed while trying to kill another. This situation is described as the kill zone theory. The kill zone theory is adopted as a legal doctrine but not established in law. Judges use this theory to instruct juries to aid their determination of guilt in attempted murder cases.
The kill zone theory predominantly features situations when there was an attempt on a victim’s life while in a crowd. This theory also extends to murder cases when another is killed in a group.
In a murder case, if an individual intended to kill another but ends up killing another, other than the target, the doctrine transfers the murderous intent to the actual victim. If the defendant kills the target victim and accidentally kills another, they are liable for both deaths. He/she will face murder charges for both victims.
Conversely, if the defendant faces attempted murder charges on the lives of two or more individuals, the intent to kill is examined independently. The intention to kill the target victim is not transferable to another — intent in attempted murder is specific.
Classification of Attempted Murder
Recall that a Penal Code 644 violation is an attempt at killing another. Since this violation is predicated on killing another, it is best to address the various forms of murder.
Murder is the actual killing of another with malice aforethought. Under California statute PC 187, murder can take two forms, namely:
- First-degree murder, or
- Second-degree murder
Both forms require malice aforethought.
Malice describes a desire to harm another, and aforethought describes your state of mind. Both are important to establish premeditation in a murder case, a pivotal element for a conviction.
Malice can be expressed or implied. Express malice is established when a defendant’s intent to kill another is clear. For implied malice, the prosecution will rely on the following actions:
- The killing was a result of deliberate actions by the defendant
- The defendant's actions naturally caused a risk or were dangerous to human life
- The defendant knew of the danger posed to another’s life and acted with conscious disregard for human life.
First-Degree Murder
First-degree murder occurs in any of the following ways:
- Lying in wait
- Willfully, intentionally, premeditating killing another
- Torturing your victim to death
- Using poison, an explosive, a destructive device, a weapon of mass destruction, or armor-piercing ammunition
- Killing another while committing a felony (felony murder)
Note: Capital murder is punishable as first-degree murder in exceptional circumstances. PC 190.2 provides 20 scenarios that are considered capital murder offenses. The exceptional circumstances include:
- Gang killing
- Killing two or more victims
- Killing for financial gain
- Drive-by shooting
- Killings motivated by race, religion, color, or nationality
- Killing a judge, juror, police officer, prosecutor, firefighter, or an elected official
Felony murder, on the other hand, is the killing of another while committing a dangerous felony.
Second-Degree Murder
Second-degree murders are non-deliberate killings that lack premeditation. However, these killings are willful. This definition is broad. Therefore, all killings that do not meet the first-degree murder threshold fall in the second-degree murder category.
For example, a defendant shoots at a crowd and kills someone.
Felony murder can also be in the second degree. Any killing of another while committing a violent felony, and whose killing does not meet the first-degree threshold is second-degree felony murder.
Defenses to Challenge an Attempted Murder Charge
Attempted murder charges result in significant penalties. It is thus in your best interest to have an ideal representation. Here are a few defenses your attorney can use in the trial.
Lack of Specific Intent to Kill
Penal Code 664 requires prosecutors to prove that you had the intent to kill another. Only then can you be found guilty of attempted murder. Therefore, if you intended to scare or maim the victim or another, you are liable for other charges, not attempted murder charges. The same standard is held in situations where your actions were accidental.
With the lack of a specific intent to kill, the likely charges for your actions should be a:
- PC 203 violation, if you intended to maim another,
- PC 240 violation for planning to scare the victim or another
- PC 245 violation, an assault with a deadly weapon charge
You Did Not Take a Direct Step
Making a step to kill another is pivotal in establishing your guilt, regardless of the preparations you took. You could have bought a firearm, made plans to execute your target, made post-murder preparation like how and where to dispose of the body, or sourced an assassin. However, if you took no direct action to put the plans in motion, you are not guilty of attempted murder.
Two ways hinder defendants from making a direct step towards actualizing a murder. The defendant could have been caught before taking immediate action, or he/she abandoned the idea at the planning stage.
Self-Defense or in Defense of Others
You can only use self-defense or defense of another as a strategy if the force you used was reasonable given the threat you faced. Further, the threat must be significant enough to risk human life. An experienced defense attorney will demonstrate to the court that the alleged victim’s or another’s actions risked killing you. Thus, you responded to deter the alleged victim from causing you or another significant harm.
California Criminal Lawyer Group hires private investigators to establish the truth. The investigations will be supported by eyewitness accounts, surveillance footage, and medical records, all of which will be presented in your defense.
Case of Mistaken Identity
There are several ways a defendant can be misidentified as the culprit. The defendant and the perpetrator could look alike or have similar physical characteristics that could cause an eyewitness to single out the defendant as the perpetrator. In other cases, a defendant’s vehicle could match one leaving the incident scene. These instances hamper the prosecutor’s case to your advantage since they create reasonable doubt.
Therefore, your attorney will use the mistaken identity defense to challenge the prosecution’s case.
Victim of False Accusation
This defense is appropriate in situations where you fall victim to false accusations.
Instances of false accusations are common and could lead to prosecution and subsequent conviction, especially if additional circumstantial evidence links you to the crime scene. Eyewitnesses give false accounts as retaliation, a reaction of anger, jealousy, or hatred. Ex-spouses, too, falsely accuse their partners with the incentive of winning a child custody battle or divorce.
Factually Innocent
Factual innocence is applicable where you were not present at the scene, nor is there evidence of you hiring a third party to kill another.
Several reasons are to blame if you are innocent yet face prosecution under PC 664. You could be a victim of entrapment, police, or prosecutorial misconduct.
Prosecutors and law enforcement officers could succumb to the pressure to expedite the case. This creates inadequate investigations, false arrests, coerced confessions, intimidation, and suppressed evidence. All actions compromise a defendant’s chance to prove his/her innocence.
If you fall victim to the abovementioned tactics, you need an experienced attorney to uncover your case's irregularities, inconsistencies, and illegalities. If so uncovered, trust that your attorney will use the factual innocence defense to challenge the attempted murder charges.
Penalties Following and Attempted Murder Conviction
Attempted murder is a felony punishable by prison time and fines. The severity of the penalties is founded on the charges that led to your conviction.
Attempted First-Degree Murder
Recall that first-degree murder requires premeditation. This element is also critical for your conviction for attempted first-degree murder charges. You will be found guilty if you acted willfully, intentionally, and with premeditation.
A conviction on attempted murder in the first degree will result in life imprisonment with the possibility of parole.
If the victim was a protected individual and was discharging his/her duty at the time of the incident, you must serve a minimum of fifteen years before being eligible for parole. Protected individuals include police officers, firefighters, peace officers, judicial or elected officials, or individuals employed by the state or federal government.
Attempted Second-Degree Murder
Any attempted murder that does not meet the attempted first-degree murder threshold is a second-degree attempted murder case.
You will likely face five, seven, and nine years in prison if convicted.
For both attempted first and second-degree murder charges, the judge could impose victim restitution, a fine of up to $10,000.
Further, as per PC 29800, convicted felons lose their gun rights. Thus a conviction will result in you forfeiting your guns and losing the possibility of owning or possessing a gun post-conviction. Should you have one, you will be criminally liable under PC 29800.
Note: A conviction adversely affects your immigration status. Attempted murder is a crime of moral turpitude. A guilty verdict leads to deportation and inadmissibility to the US.
Sentence Enhancements
Judges issue additional penalties in certain situations. The penalties also vary based on the circumstances. They include:
- Strikes pursuant to California’s Three Strikes Law
- Street gang enhancements
- 10-20–life and you are done if you used a gun
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A Strike Under California’s Three Strikes Law
Attempted murder is a strikeable offense. You will receive a strike on your criminal record upon conviction.
If the PC 664 violation is the first strike on your record, your penalties will remain as issued by the judge. Should your attempted murder conviction result in a second strike, you will receive double the sentences issued. If your current conviction leads to a third strike, you will face 25-years-to-life in prison.
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Street Gang Enhancements
Judges will issue gang enhancement penalties if you attempt to murder another to further gang-related activities.
Prosecutors must prove that:
- You actively participated in a criminal street gang — Active participation means engaging in gang activities and not just in name or as a passive member
- You knew that the gang members participated in gang crimes
- You willfully furthered, assisted, of promoted felony gang conducts
Criminal street gangs are identifiable as organizations with three or more individuals with identifiable symbols and involved in at least one of the activities listed as criminal offenses in California as a group.
Convictions result in 15-year-long prison sentences. You will serve the 15 years consecutively with the prison sentences issued for the attempted murder crime.
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10-20–Life And You Are Done For The Use of a Gun
When using a firearm in an attempted murder case, the judge will use Penal Code 12022.53 to issue additional penalties. However, Senate Bill 620, which came to effect in January 2018, made issuing or dismissing sentence enhancements under PC 12022.53 a matter of judicial discretion instead of a mandatory provision. Therefore, a judge can issue or dismiss the penalties if they believe the decision is in the interest of justice.
According to the law, the use of a gun in an attempt to kill another:
- A judge will add ten years to your prison sentence for using a gun — The firearm need not be loaded. Using the butt of a gun to hit the victim is enough to warrant ten years.
- 20 years for firing a firearm, and
- 25 years to life for seriously injuring the victim
Crimes Likely to be Charged Alongside an Attempted Murder Charge
Prosecutors exercise their discretion in determining what additional charges they prefer. In other instances, the offenses serve as alternatives if they believe they cannot secure a guilty verdict for attempted murder.
Torture
It is an offense to inflict significant bodily injury to another, causing them to suffer extreme pain as an act of revenge, aiming to achieve sadistic pursuits, or persuading the victim to fulfill your requests.
Torture is a felony punishable by a life sentence with the possibility of parole to be served in prison.
Soliciting Another to Commit an Offense
Soliciting charges are introduced when you hire a hitman. It is an offense to solicit another to commit a criminal crime and kill another. Soliciting means communicating, engaging, and requesting a third party to kill another.
PC 653f is a felony violation if you solicit another to commit murder. The offense is punishable by a prison sentence of up to 9 years and a fine of no more than $10,000.
Aggravated Battery
When you touch or strike another in an offensive or harmful manner and the touch results in serious bodily harm to the victim, you are liable for charges of aggravated battery, a Penal Code 243d violation.
For instance, while confronting the victim, you break his/her nose or wrist or crack open their skull. Prosecutors will charge you with a PC 243d violation. This offense is likely an alternative to attempted murder charges, especially if the DA cannot prove your intent to kill the victim.
Aggravated only requires the prosecutors to prove that:
- You illegally touched another in an offensive or harmful manner, and
- The alleged victim suffered severe physical injuries owing to the touching
If so proven, you can be charged with a misdemeanor if it is a first-time offense. However, if you have a criminal record, the DA could be inclined to pursue felony charges.
If convicted on misdemeanor charges, you will spend up to one year in jail and pay $1,000 in fines. On the other hand, a conviction on a felony charge results in four years in jail (as opposed to prison) and a fine of up to $10,000.
Find an Experienced Santa Ana Criminal Defense Attorney Near Me
Looking for legal help for an attempted murder charge in Santa Ana?
The California Criminal Lawyer Group is ready to help. We have a proven track record of providing legal representation to individuals facing attempted murder cases that have ended in acquittals or reduced charges. Contact our team today at 714-844-4151 for a free case evaluation. It is in your best interest to hire adequate legal representation to fight off the attempted murder charges to secure the best legal outcome. Our team’s experience is what you need in this fight.