Attempted murder charge

If you have been charged with attempted murder, the Los Angeles criminal lawyers at Lluis Law can help you. We have been fighting together with our clients for more than four decades to safeguard their rights and obtain their freedom.

In this article we explain everything related to the topic. The elements that constitute the crime of attempted murder, the penalties and the possible defenses available in California.


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Charge of attempted murder in California 

This crime is typified in Penal Code 664/187 (a), which defines it as the attempt to kill another person without success. 

To constitute the crime of attempted murder, two fundamental elements are required:

  1. The perpetrator took a direct but ineffective step to murder another person;
  2. The defendant intended to murder that person.

The attempted murder can also be committed against a fetus and is equally punishable by law. 

Direct step

A direct step passage refers to the determination to kill another. It is not just the planning of the murder but the overt action of killing. So, having failed, it was due to an external factor, not the person’s decision. 

An example of direct step is basically shooting someone or stabbing them in the chest. It is also considered an attempted murder to pay another to commit the crime.

Buying or loading a firearm is not considered a direct step. That would be more like preparing for the murder.

Intentionality to kill

As for the intention to kill, prosecutors must demonstrate the defendant’s stated intention to murder. Intention to harm or injure is not enough. 

In determining intent, the type of injury caused and its location are very important. Injuries to the upper body generally suggest more intent to kill.

The attempted murder is divided into two types, as is the crime of murder Penal Code 187 (a) CP: L 

1. Attempted first degree murder (when premeditated and deliberate).

2. Attempted second degree murder (includes all other types of this crime).

Punishments for attempted murder

The attempted murder is punishable by prison terms and fines. Attempted first-degree murder may be punishable by life sentence in a state jail. 

There is the possibility of obtaining parole for the sentenced person. However, if the crime was committed against a public servant (police, firefighter, lifeguard and others) the minimum mandatory sentence is 15 years. 

Instead, attempted second-degree murder is punishable by prison terms of between five, seven and nine years. Incarceration must also be served in a state prison.

The additional sanctions for this crime (in first and second degree) are: 

  • Restitution of damages to victims.
  • Payment of a fine of up to $ 10,000.
  • Loss of the right to property, possession or purchase of a firearm (Penal Code 29800).

Recidivism act (three strikes)

Since we are talking about a violent crime, attempted murder charge in California will count as a criminal record fault. As provided by the law of “Three strikes”. 

This means that individuals convicted two or more times will face a life sentence on their third conviction. Even if the third felony conviction is still not a fault / strike.

For example, whoever commits an attempted murder will have accumulated a strike. If you commit a new felony, it will add a second fault. Therefore, the person will be sentenced to double the time required by law.

If you are charged and convicted a third time for a felony, you will have completed all three strikes. You will then be punished with life imprisonment and must serve a mandatory minimum sentence of 25 years in state prison.

Criminal association (street gang)

In addition to the penalty enhancers mentioned above, California Law provides other penalties. The 186.22 (a) CP imposes additional sentences for criminal street gang.

The punishment increases for

“Any person convicted of a serious crime committed for the benefit of or under the direction of, or in association with a criminal street gang (…)”.

To prove the crime, the prosecutor must clearly establish that:

  • The defendant is an active part of a criminal street gang.
  • In doing so, the defendant was aware that gang members are involved in criminal gang activities.
  • The defendant deliberately assisted and promoted criminal conduct by gang members to:
  1. Committing a crime directly or;
  2. Help and plan a serious crime.

If the person is found guilty of one charge of attempted murder and the crime is gang related the penalty will increase. 

The additional punishment for the crime of attempted murder he/she will face will be 15 years to life in state prison. 

Use of firearm 

If, in addition to being charged with attempted murder, you used a weapon, you will face an increased sentence. This is established in the Penal Code 12022.53 PC. The consecutive additional sentence would be: 

  • 10 years in prison for “using” a firearm;
  • 20 years in prison for shooting a firearm and;
  • 25 years to life in prison for murdering another person or causing great bodily harm with a weapon.

Immigration consequences of this crime

The attempted murder has serious implications for foreigners or legal immigrants. Being accused of this crime implies deportation from the country. Fortunately at Lluis Law we are also expert immigration lawyers.

We regularly attend to these types of cases. Depending on the circumstances, it is sometimes possible to obtain a cancellation of deportation or any other immigration relief.

Related crimes

Some other crimes may accompany the attempted murder or be related to the prosecution. Among the most common we can mention the following: 

  • Attempted voluntary manslaughter. When the event takes place “in the heat of passion or in a sudden dispute.” Then the name of the crime of attempted murder is changed. 

Evidence must demonstrate that:

  1. It was in the heat of an argument or;
  2. Based on the belief that you should act in self defense.

The sentence for attempted voluntary homicide provides for a maximum prison sentence of 5 ½ years.

  • Grand theftIt is theillegal taking of property worth more than $ 950, often carrying firearms.
  • “Shoot an inhabited home or a busy car.” This crime is contemplated in Penal Code 26100 PC. For a prosecutor it will amount to an assassination attempt.
  • Domestic violence crimesSometimes, depending on the circumstances of the event, the accused may be convicted of one count of attempted murder. If the prosecutor manages to prove the intention to murder the spouse or partner.
  • Assault with a deadly weapon. It is the use of any object used to cause bodily harm to another. 
  • Torture (California Penal Code Section 206).

In California, the assassination attempt also involves the so-called kill zone theory. In other words, a person can also be found guilty of murdering any other person in the same place. 

For example, shooting at a moving vehicle but instead of killing the target, kill a passerby.

attempted murder with knife

Possible defenses for attempted murder

The most common legal defenses against an attempted murder charge are as follows: 

  • The defendant did not intend to specifically murder the victim. To be convicted of this crime in California, it must be proven that there was a specific intention to kill that person. 
    • The defendant’s intention was to harm him but not kill him. 
    • He/she wanted to scare only the victim so the crime can be assault (PC 240) or assault with a deadly weapon (PC 245).
  • There was no direct step. The defendant may even have prepared the plan and purchased the weapon. But if he is arrested before executing the act, there is no attempted murder. 

Or, the defendant participated in the planning of the act but abandoned the plans. This could change the classification of the crime.

  • Wrong identification of the accused. Sometimes people are accused of their resemblance to the true perpetrator of the crime. Other times they are apprehended by the police as they transit through the scene. 
  • The defendant acted in self defense. When his/her physical integrity was threatened, the client defended himself/herself and acted accordingly. A person who is a death threat has the right to defend himself.

What can we do at Lluis Law for you?

At Lluis Law we are aware of what an attempted murder charge means to you and your family. If you have been arrested or are under investigation for this crime or any other, come with us.

We can offer you a free consultation to discuss your case and see how we can help you. We will clarify all your doubts and offer you the solutions you are waiting for.

We have a combined experience of over 50 years dealing with these matters with complete success and good results. 

If you decide to hire us, you can count on an aggressive and competent defense that will be with you accompanying you at every stage of the process.

Remember that being accused of attempted murder does not mean that you have already been convicted. When we take a case, we guarantee the protection of the rights of our clients with absolute willingness and honesty.