California PC 664/187 – Attempted Murder Laws
Attempted murder is serious offense where one can face the rest of their in California state prison. Contrary to popular belief, one need not touch another to justify an attempted murder conviction. Instead, the charge merely requires you to act with willful and deliberate means to kill another person. In other words, attempted murder can be characterized as a failed attempt at first degree murder. Additionally, the charge requires one to make a substantial step towards completing the killing where mere planning is insufficient. Furthermore, the penalties and prison term increases if other factors are proven – i.e., use of a firearm, prior prison term, prior strike conviction, being a part of a criminal street gang.
Attempted Murder Defined by Statute
In California, the crime of attempted murder is defined respectively through two statutes, Penal Code 664 pc and Penal Code 187 pc. In relation to both statutes, attempted murder is formally defined as, “The attempted unlawful killing of another, or fetus, with malice aforethought.”
Elements of the Crime
Pursuant to CALCRIM 600, in order for someone to be found guilty of attempted murder, the prosecutor must prove each element beyond a reasonable doubt:
- Defendant took a direct and ineffective step towards killing another;
- Defendant intended to kill that person.
What are the Legal Defenses to Attempted Murder?
- You abandoned your efforts to kill prior to the act going beyond your control.
- You did not have the specific intent to kill but rather accidentally killed someone.
- You did not have the intent to kill but only cause great bodily injury which accidentally resulted in death.
- You did not make a “substantial step” towards completing the murder but instead only planned or arranged it before it exceeded your control. This is defense requires a careful factual examination of the circumstances.
- You were falsely accused by someone for an ulterior motive such as child custody or revenge.
- You were mistakenly identified as the suspect who committing the crime. Unfortunately there are numerous instances where individuals are misidentified and common factors for mis-identification include: cross-racial identification, poor lighting, or the traumatic over event affected the witness’s memory or recollection of the suspect.
What is the Punishment for Attempted Murder?
A conviction for attempted murder will almost guarantee incarceration in California state prison. In fact, one can face up to life in prison depending upon the circumstances of a particular case. Factors include:
- Criminal Street Gang
- Prior Prison Term
- Prior Strike Conviction
- Use of a Firearm
Criminal Defense Investigation
An attempted murder accusations requires a full defense investigation into the prosecutor’s evidence. The Law Offices of John D. Rogers will explore and can employ defense investigators to examine the evidence, question witnesses, and photograph the crime scene. Often times, law enforcement conduct a poor investigation leaving behind critical exculpatory evidence. Furthermore, we have access to a number of defense experts to testify on behalf of our clients. Experts include:
- DNA Experts
- Eye-witness / Memory Experts
- Crime Scene Reconstructionist
- Firearm / GSR Experts
- Cell Phone & GPS Tracking
- Psychiatrist & Psychologists
- Former Police Officers Turned Gang Experts
The Law Offices of John D. Rogers additionally conducts a full and extensive investigation on the following:
- Conduct criminal background checks on all the prosecutor’s witnesses
- Locate and obtained video surveillance from local businesses in the area of the incident
- Question the prosecutor’s witnesses because law enforcement likely missed crucial evidence that can be used for your defense
- Obtain the complaints of the police officers involved if misconduct is shown
- Photograph all crime scenes
- Obtain alibi evidence to prove your innocence
Attempted Murder Examples
Dan was upset with his friend because his friend owned him money. Dan grabbed a gun and loaded it and placed it in back waistband. When he saw his friend he pointed the gun at him and pulled the trigger but he missed. Dan was apprehended and charged with attempted murder. In this case, the prosecutor will argue that Dan planned the killing by loaded his weapon and approaching his friend after being motivated for the money owned. Furthermore, Dan actually pulled the trigger evidencing his intent to kill.
Dan was driving his car when he saw his girlfriend kissing another man. He pulled over quickly and reached for his gun in the backseat. He thought about killing both of them while the car was still idling. On a second thought, Dan put the gun away and continued to keep driving. In this case, Dan will not be guilty because he made not substantial step. Instead, Dan arranged and planned the murder but made no step dangerously close to success in murder his girlfriend and her lover.
Dan planned to kill his friend because his friend was a material witness against him in a child custody dispute with his ex-wife. Dan showed up to his friend’s house and knocked on the door. His friend answer where Dan immediately shot his friend 4 times in the chest and ran way. His friend managed to survive and gave a statement to a detective stating, “I was dark outside so I couldn’t see the shooter well. But I think it was Dan because no one else would do something like this.” In this case, Dan would unlikely be convicted of attempted murder because the witness cannot make an absolute identification of the shooter. The fact that Dan may be the only one to do something like this is speculation.