What does California have to prove for an attempted murder charge?

Attempted murder in California requires proof that you took a direct step toward killing someone with the specific intent to kill that person, not just an intent to hurt them. Under Penal Code sections 664 and 187, the usual sentence is 5, 7, or 9 years in state prison, but it rises to life with the possibility of parole if premeditation is charged and proved.

What prosecutors must prove

California defines an attempt generally as a "specific intent to commit the crime, and a direct but ineffectual act done toward its commission" (Penal Code section 21a). Murder itself is "the unlawful killing of a human being, or a fetus, with malice aforethought" (Penal Code section 187). Put together, attempted murder requires a direct step toward killing a specific person, taken with the actual intent that the person die.

That intent requirement is stricter than it is for a completed murder. A completed killing can be murder on implied malice alone, meaning a conscious disregard for human life, without any actual wish that the victim die. As the California Supreme Court explained in People v. Bland (2002) 28 Cal.4th 313, implied malice cannot support an attempted murder conviction, and the defendant "must intend to kill the alleged victim, not someone else." An intent to kill one person does not transfer to someone else the way it can when a killing is completed. Evidence that you intended only to injure, frighten, or warn someone is not, by itself, enough for an attempted murder conviction, whatever else it might support. The standard jury instruction on the elements is CALCRIM No. 600.

Why premeditation changes the sentence so much

Penal Code section 664 sets two different outcomes for the same charge. If the attempt was not willful, deliberate, and premeditated, the punishment is "imprisonment in the state prison for five, seven, or nine years." If it was, and that fact is charged in the accusatory pleading and admitted or found true, the punishment becomes "imprisonment in the state prison for life with the possibility of parole" (Penal Code section 664(a)). California's courts have described this premeditation finding as a penalty provision rather than a separate degree of attempted murder, but in practice it often decides whether you face a set term of years or a life sentence.

"Deliberate" and "premeditated" carry the same meaning here as they do for first degree murder under Penal Code section 189: a cold, calculated decision to kill, reached before the act, rather than a decision made rashly or under the influence of a violent impulse. The standard instruction on this finding, CALCRIM No. 601, tells the jury the amount of time involved can be brief, as long as it reflects actual reflection rather than unconsidered reaction. The firm's page on first degree murder covers the same planning, manner, and motive factors prosecutors use to argue premeditation.

Proving intent without a completed killing

Because no one died, prosecutors build intent to kill from circumstantial evidence. What commonly matters:

• The weapon used and whether it was capable of killing.
• Where an injury or shot was aimed, such as the head or chest rather than a limb.
• The number of shots, blows, or stab wounds.
• Statements made before or after the act, including threats or a stated reason.
• Whether you had the opportunity to kill but stopped, and why.
• Your relationship with the alleged victim and any history between you.

When a defendant fires at a group or into an area where more than one person could be killed, prosecutors sometimes argue a "kill zone" theory: that the method used shows an intent to kill everyone in the zone of harm in order to be sure of killing the primary target, which can support an attempted murder charge as to each person in that zone even though only one person was targeted by name. The California Supreme Court recognized this theory in the same Bland decision, then narrowed it in People v. Canizales (2019) 7 Cal.5th 591. Under the current instruction, the jury must find that the only reasonable conclusion from the defendant's use of lethal force is that the defendant intended to create a kill zone, and that the person named in the count was inside it; force that merely endangered everyone in the area is not enough.

Common defenses in an attempted murder case

Because specific intent to kill is its own element, disputing that intent is usually central to the defense, separate from disputing that you were the person who acted at all. Common arguments include:

• Self-defense or defense of another, if you actually and reasonably believed you or someone else faced an imminent threat of death or great bodily injury that required deadly force, and used no more force than was reasonably necessary. See the firm's answer on being charged after shooting a home intruder for how California's home-intruder presumption works.
• No specific intent to kill, for example evidence the act was meant to scare or warn, or was reckless rather than targeted.
• Heat of passion or sudden quarrel, or an actual but unreasonable belief that you needed to defend yourself, which does not excuse the act but can reduce it to the lesser charge of attempted voluntary manslaughter; see the firm's answer on attempted voluntary manslaughter as a lesser charge.
• Mistaken identity or insufficient evidence connecting you to the act.
• Freely and voluntarily abandoning the plan before taking any direct step toward the killing. Once a direct step has been taken, giving up afterward is not a defense.

Liability can also extend to someone who aided and abetted the attempt, but only if that person shared the intent to kill. An attempted murder verdict cannot rest on the natural and probable consequences theory, and if the person who acted premeditated, the life term can apply to an aider who shared the intent to kill without personally premeditating (see the bench notes to CALCRIM Nos. 600 and 601). See the firm's answer on whether helping someone else can lead to a California murder charge for how accomplice liability works for homicide offenses generally.

What changes the answer

• A firearm. Under Penal Code section 12022.53, if it is alleged and admitted or found true, personally using a gun during the attempt adds a consecutive 10 years, intentionally firing it adds 20 years, and firing it in a way that causes great bodily injury or death to someone other than an accomplice adds 25 years to life, on top of the sentence for the attempt itself. A judge can strike the enhancement in the interest of justice; see the firm's answer on dismissing a firearm enhancement at sentencing.
• The intended victim's job. If that person was a peace officer, firefighter, or certain custodial officer or jail staff member performing their duties, and you knew or reasonably should have known that, section 664(e) sets a life-with-parole term even without premeditation, and section 664(f) raises that to 15 years to life if premeditation is also charged and proved.
• Whether the charging document actually alleges premeditation. The life term under section 664(a) only applies when the premeditation allegation is specifically pled and admitted or found true, not merely implied by the facts.
• Prior strikes, and future ones. One prior serious or violent felony conviction that is pled and proved doubles the term, or the minimum term of a life sentence, and two or more can bring a much longer sentence under California's Three Strikes law (Penal Code section 667(e)). Because attempted murder is listed as both a serious felony and a violent felony (section 1192.7(c)(9) and section 667.5(c)(12)), a conviction also counts as a strike in any later case.

Every case turns on how the specific facts match these elements. Bring your police report and any charging document to the Law Offices of David S. Chesley to go over what the prosecution will need to prove, and reach the firm at (800) 755-5174.