California Penal Code § 187(a) PC defines homicide or murder as “the unlawful killing of a human being, or a fetus, with malice aforethought.” Attempting to commit a crime is a crime in California and throughout the United States. California Penal Code § 664 PC states that “every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration shall be punished…”
A criminal attempt is punished as one half the sentence of the completed crime. Examples of attempted acts that rise to the level of a criminal offense include
- walking into a liquor store with a gun about to commit robbery but leaving abruptly after getting nervous.
- trying to commit the crime of rape but the victim escapes before the commission of any sexual act.
- attempting to set a house on fire but fleeing from the scene after being discovered by its occupants.
Attempted murder occurs where a person intends to kill another human being, takes a direct step towards completing the act, but the intended victim does not die. Attempted first-degree murder is punishable by life in state prison. Attempted second-degree murder is punishable by five, seven, or nine (5,7,9) years in state prison.
Like murder under Penal Code § 187 PC, attempted murder is separated into two degrees of seriousness or severity. First-degree attempted murder is premeditated and willful with second-degree attempted murder reserved for all remaining types of attempted murder.
In California, the two elements of the crime include the defendant intending (having malice aforethought) to kill another person and taking at least one direct step towards killing that person. In California, a fetus is considered a person when analyzing the applicability of the law of attempted murder.
A ‘direct step’ requires going beyond a simple plan to commit the crime. It requires putting the plan in forward motion. A ‘direct step’ means the murder would have occurred but for the occurrence of an outside factor. Stabbing someone or shooting a gun are ‘direct steps’ toward committing a crime. In contrast, buying a knife or loading a gun are not ‘direct steps‘ toward committing a crime.
The prosecution must prove that the perpetrator had the intent to kill. The intent to maim or injure is not enough to constitute attempted murder. In proving that murder was intentional, the location of the victim’s injuries is important. Upper body injuries near vital organs are more indicative of an intent to kill while lower-body injuries are indicative of an intent to injure. If there are no injuries, the prosecution must rely on using the circumstances of the act to prove the requisite intent.
The prosecution is only required to prove the intention to kill someone rather than a specific person. California follows the “kill zone” theory of attempted murder liability which makes a defendant liable for anyone they may inadvertently kill while attempting to kill a specific target.
Attempted murder is a violent felony under California’s three-strikes law which means that a conviction counts as a strike on the defendant’s criminal record. The attorney that any defendant hires may be crucial to achieving the best possible result. John Patrick Dolan has forty years of criminal defense experience. Contact Dolan Law Offices today at 760-775-3739 or 562-824-4007 to discuss your situation or find out more online here.
