CA Penal Code 664

Attempted Murder

In California, the punishment for attempted murder, CA Penal Code 664[1] is nearly as severe as that for actual murder, CA Penal Code 187.  In order to be convicted of attempted murder the prosecutor must prove the two elements of the crime beyond a reasonable doubt:

  1. That you took at least one direct step towards killing another person
  2. That you intended to kill that person

As is the case in all murder cases, a fetus is defined as a person.

If the prosecutor can successfully convince a jury that you are guilty then you will face severe charges.  You can either be charged with first-degree attempted murder and second-degree attempted murder.

First-degree attempted murder pertains to cases that are willful, deliberate, and premeditated.  If convicted of first-degree attempted murder you will face:

  • Life in prison with the possibility of parole
  • Victim restitution
  • Up to $10,000 in fines
  • No longer have the right to carry, own, possess, or acquire a firearm
  • A “strike” in accordance to California’s Three Strikes Laws

Second-degree attempted murder pertains to cases that are not willful, deliberate, or premeditated.  If you are convicted of second-degree attempted murder then you will face:

  • Either five, seven, or nine years in state prison
  • Victim restitution
  • Up to $10,000 in fines
  • No longer have the right to carry, own, possess, or acquire a firearm
  • A “strike” in accordance to California’s Three Strikes Laws

If the prosecutor can prove that you committed your attempted murder in order to benefit a gang then you will face an additional 15-years-to-life sentence in succession to your prior charges.

If you use a gun then you will face additional penalties in addition and consecutively as follows:

  • If you used a gun – 10-years
  • If you fired a gun – 20-years
  • If you killed someone or caused them great bodily harm – 25-years-to-life

Prosecuting Attempted Murder

As previously mentioned, in order to be convicted of attempted murder the prosecutor must prove the following elements of the crime beyond a reasonable doubt:

  1. That you took at least one direct step towards killing another person
  2. That you intended to kill that person

In order to understand how the prosecutor will build their case against you it is essential to have a full and complete understanding of the law itself.

Firstly, the law states that in order to be guilty of attempted murder you must have performed at least one direct step towards murdering another person.  It’s important to note that the direct step must be more than simply planning to kill another person, it must be an actual step towards the murder of that person.  For instance, shooting at someone, purposefully hitting someone with an automobile; basically, the direct step must be something that could kill a person if there wasn’t an outside influence.

The next element of the crime requires that you intended to kill another person.  This simply means that your attempt to kill someone was not an accident.

Finally, it’s important to note that there does not need to specificity in your attempted murder, just that you attempted to kill somebody.

If the prosecutor can prove the above listed elements of the crime beyond a reasonable doubt to the court then you will be convicted of attempted murder in accordance to CA Penal Code 664.

Defending Attempted Murder

There are several common legal defenses that a skilled criminal defense attorney can present to the courts to prove your innocence.  The first legal defense we’ll explore is if you were falsely accused.  Because of the nature of the crime it is very common for people to be falsely accused of attempted murder; false accusations are the leading cause of wrongful convictions in this country.  When a weapon is used, which is often the case in attempted murder cases, people become fixated on the weapon and not on the face of the person holding the weapon.

A skilled criminal defense attorney will make this clear to the jury in an attempt to showcase any uncertainty that witnesses have in identifying you as the criminal.  If the jury is not convinced beyond a reasonable doubt that you are the guilty party then you will not be convicted for attempted murder.

The next legal defense that your criminal defense attorney will explore is whether or not you were acting in self-defense.  In California there are laws to protect citizens from be prosecuted for acting in self-defense.  However, it’s important to note that you are only protected under California self-defense laws when you:

  • Reasonably believe that you or another person is in imminent harm, and
  • You don’t use excessive force to defend yourself when you fight back

Another valid legal defense is to prove that you did not make a direct step to kill someone.  A direct step is required to be convicted of attempted murder, meaning you must go beyond the planning stages and implement the plan you had to kill a person.  If you never made that direct step then you cannot be convicted of attempted murder.

If you are facing attempted murder charges then it’s imperative to talk to a criminal defense attorney immediately.  The punishments following a conviction are severe and life-changing, but are avoidable.  Seppi Esfandi is an Expert in Criminal Law with over 16 years of experience defending clients for a myriad of charges, including attempted murder.

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References

[1] Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows:

(a)If the crime attempted is punishable by imprisonment in the state prison, the person guilty of the attempt shall be punished by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense attempted. However, if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. If the crime attempted is any other one in which the maximum sentence is life imprisonment or death, the person guilty of the attempt shall be punished by imprisonment in the state prison for five, seven, or nine years. The additional term provided in this section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact.

(b)If the crime attempted is punishable by imprisonment in a county jail, the person guilty of the attempt shall be punished by imprisonment in a county jail for a term not exceeding one-half the term of imprisonment prescribed upon a conviction of the offense attempted.

(c)If the offense so attempted is punishable by a fine, the offender convicted of that attempt shall be punished by a fine not exceeding one-half the largest fine which may be imposed upon a conviction of the offense attempted.

(d)If a crime is divided into degrees, an attempt to commit the crime may be of any of those degrees, and the punishment for the attempt shall be determined as provided by this section.

(e)Notwithstanding subdivision (a), if attempted murder is committed upon a peace officer or firefighter, as those terms are defined in paragraphs (7) and (9) of subdivision (a) of Section 190.2, a custodial officer, as that term is defined in subdivision (a) of Section 831 or subdivision (a) of Section 831.5, a custody assistant, as that term is defined in subdivision (a) of Section 831.7, or a nonsworn uniformed employee of a sheriff’s department whose job entails the care or control of inmates in a detention facility, as defined in subdivision (c) of Section 289.6, and the person who commits the offense knows or reasonably should know that the victim is a peace officer, firefighter, custodial officer, custody assistant, or nonsworn uniformed employee of a sheriff’s department engaged in the performance of his or her duties, the person guilty of the attempt shall be punished by imprisonment in the state prison for life with the possibility of parole.

This subdivision shall apply if it is proven that a direct but ineffectual act was committed by one person toward killing another human being and the person committing the act harbored express malice aforethought, namely, a specific intent to unlawfully kill another human being. The Legislature finds and declares that this paragraph is declaratory of existing law.

(f)Notwithstanding subdivision (a), if the elements of subdivision (e) are proven in an attempted murder and it is also charged and admitted or found to be true by the trier of fact that the attempted murder was willful, deliberate, and premeditated, the person guilty of the attempt shall be punished by imprisonment in the state prison for 15 years to life. Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not apply to reduce this minimum term of 15 years in state prison, and the person shall not be released prior to serving 15 years’ confinement.

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