The concept of attempted murder seems pretty straightforward, but in practice, proving the charge in a California courtroom can be reasonably complex and come down to the tiniest details. If you have been accused of attempted murder in San Diego, a skilled criminal defense lawyer like Peter M. Liss can help.
What is Attempted Murder in California?
Attempted murder charges are filed when the victim is still alive after an attempt is made at their life. It is important to note that thinking or talking about killing someone is not the same as attempting murder. Additionally, if someone is nearly killed, the person accused of the crime must have intended to end their life.
For example, if John hates Tom and hits Tom with his car while traveling at 15 miles per hour, there may be enough evidence to show that John intentionally harmed Tom, but not that he attempted to murder him, even if John previously stated that he wanted Tom dead. Many people may wish ill on their enemies, but few are willing to take efforts to actually murder those they dislike. For this reason, attempted murder charges can be difficult for the prosecution to prove without a confession.
Proving an Attempted Murder Charges
For the prosecution to prove attempted murder occurred under California Penal Code section 664/187(a) (PC), they must be able to show the defendant specifically intended to kill. California state law requires the prosecutors to not only show that an attempt was made to harm someone, but that there was a specific intent to kill another person and a direct step taken towards that goal.
In a case where someone was shot at once and hit in the leg, for example, it would be tough for the prosecution to prove that the defendant was attempting to kill the person when the wound was so far away from the head and vital organs —unless the defendant fired the gun from a long distance.
Similarly, even if someone wrote a manifesto describing how they planned to kill their neighbor and they swore they would actually do it, they could not be charged with attempted murder unless they took a step towards the act.
Attempted Murder Sentences in California
The penalties for attempted murder vary based on what type of murder charge would be filed if the attempt were successful. First-degree murder charges are filed when the crime had malice aforethought, meaning the act was deliberate and premeditated Alternatively, if the offense involved torture, poison, explosives, a weapon of mass destruction, armor-penetrating ammunition, or the murderer was lying in wait, first-degree murder may be charged. Second-degree murder charges are used in cases that do not meet the requirements for a first-degree crime.
For first-degree attempted murder, the maximum penalty is life imprisonment with the possibility of parole. If the victim was a firefighter or police officer, anyone convicted of first-degree attempted murder must serve a minimum sentence of 15 years to be eligible for parole. In second-degree attempted murder cases, the maximum penalty is 9 years in state prison. A skilled defense lawyer can sometimes manage to have first-degree attempted murder charges reduced to second-degree charges, which can significantly reduce the potential penalty you may face.
Both degrees of attempted murder are considered serious violent crimes that will subject you to a strike on your record under the state’s three strikes law. If you have a prior strike on your record, you must serve 85 percent of your prison sentence before becoming eligible for parole. If you have two previous strikes, you may be sentenced to life imprisonment, even if the charges were only second-degree.
What About Other Attempted Crimes?
California Penal Code section 664 (PC) applies to all attempted crimes aside from murder without a specific penal code, such as attempted extortion under 524 (PC). This section covers everything from major felony offenses, like rape, and minor misdemeanor theft offenses. Like attempted murder, these cases require the prosecution to show that someone intentionally made an actual attempt to commit a crime that was not completed.
In other words, if you hopped on someone else’s bike and started to ride away before you were stopped, you can’t be charged with attempted theft if you simply mixed up that person’s bicycle and your own. Additionally, if you wanted to steal someone’s bike, walked up to the bike, but decided not to steal it before taking any step towards taking the bike, you are not guilty of attempted theft. If you didn’t intend to commit the crime or made no effort to actually do so, but have been charged with 664 (PC), your criminal attorney is likely to be able to fight the charges successfully, given the lack of evidence against you.
All “attempted” crimes outside of murder carry a sentence half as long as you would get if you successfully committed the actual crime. So if you were sentenced for an attempt to steal a bicycle and the prosecutor sought the maximum sentence, you could face up to three months in jail and a $500 fine, rather than the six months in jail and $1000 fine petty theft ordinarily carries.
Your Criminal Defense Attorney Makes a Big Difference
Of course, one of the most important things you can do if you have been charged with attempted murder is to invoke your right to silence. If you tell the police you were trying to kill someone and wished you succeeded, it will be much harder, and potentially impossible, for your attorney to argue that you did not actually intend to kill that person.
That being said, there are other ways your defense lawyer may help you fight these charges as well, which could include arguing that you were acting in self-defense or that there is simply not enough evidence to show you committed the crime. In other cases, your best option will be pleading the charges down to a similar, but lesser offense, such as voluntary manslaughter, involuntary manslaughter, assault with a deadly weapon or aggravated battery.
Whatever the specific circumstances of your attempted murder case, criminal defense attorney Peter M. Liss can help. Please call his office at (760) 643-4050 to schedule a free consultation.