Attempted Murder Lawyers – California Penal Code 664 PC 664

Are You Looking for an Attempted Murder Lawyer in California?

Under California Penal Code section 664, if you attempt to kill another person, then you can be charged with the serious crime of attempted murder. Attempted murder is punished based on whether the crime was committed with or without premeditation. Attempted murder with premeditation is called attempted first degree murder and carries an automatic sentence of life in prison with the possibility of parole after 7 years. Attempted murder without premeditation is called attempted second degree murder and is punished by either 5, 7, or 9 years in state prison. . If you have been charged with attempted murder, you need to speak to a skilled attempted murder lawyer right away.

Call the attempted murder attorneys at Wallin & Klarich today at (877) 466-5245 to receive expert legal advice about your case. Be sure to read on to learn more about attempted murder laws so that you can be fully informed about your charges.

Why Hire Wallin & Klarich?

The success of our attempted murder defense firm has helped us achieve the highest of merits, including a 5 out of 5 AV rating on Lawyers.com, a 10 out of 10 rating on AVVO.com, and an A+ rating from the Better Business Bureau.

For over 40 years, the attempted murder lawyers at Wallin & Klarich have helped many people like you who have been charged with this crime. Here are just a few testimonials provided by some of our previous clients who wanted to share their stories:

“I was verbally assaulted with a friend outside a taco shop in Los Angeles County. In fear of our safety, I went to my car and pulled out a gun I use for security at work and shot one of the assailants. I was arrested and charged with Attempted Murder and was facing LIFE in prison. I hired Wallin & Klarich to represent me. Wallin & Klarich worked aggressively to build my defense. I knew I should have just left the scene when I got in my car to get my gun as I had time to do so, but I wasn’t of my right mind at the time and just responded to the verbal assault in the manner I did. I was willing to accept some responsibility but not LIFE in prison! In the end, Wallin & Klarich attained an offer to plead to assault with a weapon and be placed on PROBATION! I snapped that up right away and have been home enjoying my wife and children ever since. Wallin & Klarich gave me my family back. Thank you.”

J.C.G.

—–

“I was arrested and charged with 1st Degree Murder for the killing of a man and Attempted Murder of another in a connection with a gang-related shooting in a neighborhood in San Bernardino County. Even though the evidence was stacked against me and I was facing 2 LIFE terms, my family took the chance on hiring a private attorney. We were referred to Wallin & Klarich. Wallin & Klarich assigned one of its partners to my case. After lengthy discussions and analysis of the evidence and law, my attorney advised me that the best we could hope for getting the charges reduced to voluntary manslaughter, which would prevent any LIFE terms and give me a chance at life again after serving a determinate sentence. I agreed and was very happy to hear that I had a chance to redeem myself after serving my punishment as the other inmates and the public defender didn’t give me any hope at all of seeing the light of day. After several months of aggressive negotiations, Wallin & Klarich was able to attain a plea bargain to voluntary manslaughter and a determinate sentence! I was able to avoid LIFE in prison and look forward my rehabilitation and eventual release at a relative young age still. Thank you Wallin & Klarich for believing in me.”

A.S.

—–

“I was referred to Wallin & Klarich after being charged with 1st Degree Murder along with 2 other defendants as a result of a drug deal gone bad in Riverside County. I was roped into the thumping of a friend at the hands of crazed parolee and his sidekick. I feared for my life at the time and didn’t stop them even though I should have. I will regret that decision the rest of my life as they beat my friend to death and left him for dead in an abandoned field wrapped in a tarp. Wallin & Klarich made tireless efforts to prepare my defense and pushed hard for a reduced charge and sentence along with my testimony against the others….but to no avail. I was prepared to take responsibility for my actions but we were forced to go to trial. The trial lasted a month with countless witnesses being called. Wallin & Klarich aggressively cross-examined the DA’s witnesses and in closing argued to the jury that I had acted out of fear and duress. Wallin & Klarich presented a reasonable and plausible defense….they presented the facts without the hype! In the end, my co-defendants were found guilty of all of the charges and the jury deadlocked on my charges, which would lead to a possible 2nd trial. With that knowledge, the DA’s finally backed off the 1st degree murder charges and offered me a lesser charge to avoid a 2nd trial. After lengthy discussions with my attorney and family, I accepted the plea bargain….which is what we had been striving for before trial. I would recommend Wallin & Klarich to others charges with serious crimes.”

S.W.

Call Wallin & Klarich Today

You can place your trust in Wallin & Klarich. Our knowledgeable California attempted murder lawyers are committed to defending your rights and your freedom. Call us today for immediate help on your case.

For more information on attempted murder laws, read below or simply pick up the phone and speak to one of our skilled attempted murder attorneys today.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation.

---

Attempted murder prosecution

A crime is “attempted” when you have the specific intent to complete the substantive crime and take a deliberate step toward completing it. As applied to murder, a prosecutor must prove two elements to convict you of attempted murder:

1. You took a deliberate step toward killing another person; AND
2. You specifically intended to kill that person.

Attempted murder is completed and committed as soon as you take that deliberate step. You do not need to actually kill the person. Moreover, if you take a deliberate step towards killing another and later decide not to go through with your actions, you can be found guilty of attempted murder.

Under Penal Code section 664, once the prosecutor proves the two elements listed above, he must then prove the degree of murder that he alleges you attempted. Look over our Murder Overview page (Click Here) for a review of the degrees of murder.

Attempted murder defenses

Most of the same defenses that apply to murder and Penal Code section 189 apply to attempted murder. So, if you did not intend to kill someone or acted out of self-defense, you cannot be convicted.

Just as with murder, certain defenses can mitigate attempted murder charges. Both the imperfect self-defense and heat of passion defense can reduce your charges from attempted murder to attempted voluntary manslaughter.

Abandonment is a defense specific to attempted crimes. If you freely and voluntarily abandon your plan to kill before taking a deliberate step toward killing another person, then you cannot be found guilty of attempted murder.

Attempted murder punishment and sentencing

Under Penal Code section 664, attempted crimes normally carry half of the sentence that the substantive crime would carry, except for attempted homicide crimes. The sentence for attempted homicide varies depending on the degree of homicide that you attempt.

• Attempted first-degree murder: If your attempted murder was willful, deliberate, and premeditated, you could face first-degree attempted murder charges. If convicted, you face life in state prison with the possibility of parole.
• Attempted second-degree murder: You face up to nine years in state prison if you are convicted of attempted second-degree murder.
• Attempted voluntary manslaughter: With the exclusion of attempted murder, you face half of the sentence for a crime if you attempted to commit that crime. So, since voluntary manslaughter carries a punishment of three, six or 11 years in state prison, you face up to five-and-a-half years in prison for a conviction of attempted voluntary manslaughter.

Other penalties for attempted murder include a $10,000 fine, the loss of your right to own or possess a firearm, and restitution to the victim.
Additionally, because attempted murder is a strike offense, you are subject to additional penalties such as a strike under the Three-Strikes Law, gun enhancements, and fines.

California Cases Relating to Attempted Murder

California courts have issued many rulings that explain different aspects of how the law of attempted murder is applied. If you or a loved one is facing accusations for attempted murder, it is important that you are familiar with these court decisions. We have listed the cases below.

Attempted Murder Cases

1. Attempted Murder In General
2. Intent for Attempted Murder
3. Malice
4. Prosecutor Misconduct
5. Premeditation and Deliberation
6. Solicitation for Attempted Murder
7. Motive
8. Felony Murder Doctrine and Attempt
9. Provocative Act Murder
10. Admissibility of Evidence
11. Sufficiency of Evidence
12. Included and Related Offenses
13. Jury Instructions for Attempted Murder
14. Defenses to Attempted Murder
15. Sentencing for Attempted Murder
16. Review and Appeal of Attempted Murder Cases
17. Attempted Voluntary Manslaughter

 

Attempt Crimes Generally

1. Attempt Crimes Generally
2. Weight and Sufficiency of Evidence
3. Elements of Attempt Offenses
4. Intent
5. Mere preparation does not constitute attempt
6. Equal Protection
7. Double Jeopardy
8. Construction with other laws
9. Legislative Intent
10. Nature of the Offense
11. Included Offenses

Wallin & Klarich Criminal Defense Attorneys

If you are facing attempted murder charges, you face accusations that bring a heavy burden upon you and your family. The consequences of an attempted murder conviction can be life altering. The attempted murder defense team at Wallin & Klarich has over 40 years successfully defending clients accused of attempted murder.

Wallin & Klarich has offices in Orange County, Los Angeles, Torrance, Sherman Oaks, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, our seasoned team has the knowledge, ability, and experience to help you get through your case.

Call us today at (877) 4-NO-JAIL (877-466-5245).

We will get through this together.

---

 

Attempted Murder In General

Under California law, no criminal liability attaches to an initial remote actor for an unlawful killing that results from an independent intervening cause, that is, a superseding cause.  Torres v. City of Los Angeles, C.A.9 (Cal.)2008, 548 F.3d 1197, certiorari denied 129 S.Ct. 1995, 173 L.Ed.2d 1086.

When a defendant is accused of attempted murder based on acts taken without any specific target in mind, the information does not necessarily have to name a specific victim; it would be sufficient to allege enough facts to give notice of the incident referred to and that the defendant is charged with attempted murder.  People v. Stone (2009) 92 Cal.Rptr.3d 362, 46 Cal.4th 131, 205 P.3d 272, on remand 2009 WL 3358436, unpublished, review denied.

A defendant who intends to kill one person will be liable for multiple counts of murder where multiple victims die, but only one count of attempted murder where no one dies.  People v. Stone (2009) 92 Cal.Rptr.3d 362, 46 Cal.4th 131, 205 P.3d 272, on remand 2009 WL 3358436, unpublished, review denied.

Guilt of attempted murder must be judged separately as to each alleged victim, whether the alleged victim was particularly targeted or randomly chosen.  People v. Stone (2009) 92 Cal.Rptr.3d 362, 46 Cal.4th 131, 205 P.3d 272, on remand 2009 WL 3358436, unpublished, review denied.

Attempted premeditated murder and attempted unpremeditated murder are not separate offenses; attempted murder is not divided into different degrees.  People v. Favor (2012) 143 Cal.Rptr.3d 659, 54 Cal.4th 868, 279 P.3d 1131, rehearing denied, petition for certiorari filed 2012 WL 6804132.

If a defendant is accused of attempted murder of someone, although not necessarily a specific person, it would be sufficient for the indictment to allege enough facts to give notice of the incident referred to and that the defendant is charged with attempted murder.  People v. Perez (2010) 112 Cal.Rptr.3d 310, 50 Cal.4th 222, 234 P.3d 557, on remand 2010 WL 3932937, unpublished.

Once a jury found the necessary mental state was established to find defendant guilty of aiding and abetting an assault with a deadly weapon by gang members defendant had called after the victim had insulted defendant’s girlfriend, the jury could also find defendant guilty of attempted premeditated murder which the jury found was a natural and probable consequence of the assault with a deadly weapon.  People v. Hoang (App. 4 Dist. 2006) 51 Cal.Rptr.3d 509, 145 Cal.App.4th 264, review denied.

Jury was not required to find that premeditated attempted murder was a natural and probable consequence of defendant’s carjacking and robbery to convict defendant for attempted murder under “natural and probable consequences” doctrine, predicated on victim’s being pushed from cliff by either defendant or his confederate; it was sufficient to find that attempt on victim’s life was willful, deliberate, and premeditated.  People v. Cummins (App. 2 Dist. 2005) 25 Cal.Rptr.3d 860, 127 Cal.App.4th 667, review denied.

Jury could reasonably conclude that target robbery and carjacking were still in progress when victim was pushed off cliff, to support conviction of defendant for attempted murder under “natural and probable consequences” doctrine, where defendant drove victim in trunk of car, continued to take his money by use of his bank cards, and was in process of doing harm to victim when he was pushed from cliff.  People v. Cummins (App. 2 Dist. 2005) 25 Cal.Rptr.3d 860, 127 Cal.App.4th 667, review denied.

Carjacking victim’s being pushed off cliff was not unanticipated, and thus evidence supported conviction of defendant for attempted murder, under the “natural and probable consequences” doctrine, even if defendant’s confederate, rather than defendant, pushed victim off cliff; defendant and confederate forced their way into victim’s vehicle while armed, defendant bound victim and placed him in trunk, defendant drove car and took victim’s bank cards, defendant used taser gun on victim, and defendant participated in forcing victim to proceed to edge of cliff.  People v. Cummins (App. 2 Dist. 2005) 25 Cal.Rptr.3d 860, 127 Cal.App.4th 667, review denied.

Attempted murder requires intent to kill, but does not require premeditation.  People v. Parks (App. 2 Dist. 2004) 12 Cal.Rptr.3d 635, 118 Cal.App.4th 1, as modified, review withdrawn.

Death was not a disproportionate penalty in capital murder prosecution arising from a brutal execution-style murder and an attempted murder, despite mitigating evidence that defendant’s prior offenses were nonviolent in nature, that he had troubled and abusive childhood, and that he committed murder while intoxicated by cocaine.  People v. Taylor (2001) 113 Cal.Rptr.2d 827, 26 Cal.4th 1155, 34 P.3d 937, rehearing denied, certiorari denied 122 S.Ct. 2681, 536 U.S. 967, 153 L.Ed.2d 852.

Like first degree murder, attempted first degree murder requires a finding of premeditation and deliberation.  People v. Villegas (App. 4 Dist. 2001) 113 Cal.Rptr.2d 1, 92 Cal.App.4th 1217, review denied.

The three categories of evidence for a reviewing court to consider with respect to premeditation and deliberation necessary for attempted first degree murder are: (1) prior planning activity; (2) motive; and (3) the manner of killing.  People v. Villegas (App. 4 Dist. 2001) 113 Cal.Rptr.2d 1, 92 Cal.App.4th 1217, review denied.

The true test for premeditation and deliberation for attempted first degree murder is not the duration of time as much as it is the extent of the reflection; thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.  People v. Villegas (App. 4 Dist. 2001) 113 Cal.Rptr.2d 1, 92 Cal.App.4th 1217, review denied.

Statute providing that if attempted murder is willful, premeditated and deliberate, penalty will be life in prison without parole, does not divide attempted murder into degrees;  it establishes a penalty provision to increase punishment.  Huynh v. Superior Court (App. 4 Dist. 1996) 54 Cal.Rptr.2d 336, 45 Cal.App.4th 891, modified on denial of rehearing, review denied.

Additional penalty allegations of statute defining penalties for attempted murder require proof at preliminary hearing.  Huynh v. Superior Court (App. 4 Dist. 1996) 54 Cal.Rptr.2d 336, 45 Cal.App.4th 891, modified on denial of rehearing, review denied.

In order to prove defendant committed attempted murder, there must be sufficient evidence of attempt to commit murder plus direct but ineffectual act toward its commission.  People v. Morales (App. 1 Dist. 1992) 7 Cal.Rptr.2d 358, 5 Cal.App.4th 917, rehearing denied and modified, review denied.

Both malice and intent to kill are elements of attempted murder.  People v. Visciotti (1992) 5 Cal.Rptr.2d 495, 2 Cal.4th 1, 825 P.2d 388, rehearing denied, certiorari denied 113 S.Ct. 267, 506 U.S. 893, 121 L.Ed.2d 196, rehearing denied 113 S.Ct. 646, 506 U.S. 1016, 121 L.Ed.2d 575, habeas corpus denied 58 Cal.Rptr.2d 801, 14 Cal.4th 325, 14 Cal.4th 1089A, 926 P.2d 987, modified on denial of rehearing, as modified, certiorari denied 117 S.Ct. 2521, 521 U.S. 1124, 138 L.Ed.2d 1022, habeas corpus granted in part 288 F.3d 1097.

Assault with deadly weapon is not lesser included offense of attempted murder with use of deadly weapon, as attempted murder can be committed without using deadly weapon.  People v. Richmond (App. 2 Dist. 1991) 3 Cal.Rptr.2d 252, 2 Cal.App.4th 610.

Attempted second-degree murder does not exist.  People v. Jones (App. 4 Dist. 1991) 286 Cal.Rptr. 163, 234 Cal.App.3d 1303.

Transferred intent doctrine was inapplicable as means of imposing liability for attempted murder, in case where defendant missed intended victim and injured bystander;  defendant committed completed crime against intended victim which was as serious as greatest level of culpability which could be achieved by transferring that intent to his unintended victim, thereby obviating need to apply doctrine.  People v. Calderon (App. 4 Dist. 1991) 283 Cal.Rptr. 833, 232 Cal.App.3d 930, review denied.

Murder of the first degree necessitates finding of express malice on part of perpetrator, as does offense of attempted murder.  In re Sergio R. (App. 2 Dist. 1991) 279 Cal.Rptr. 149, 228 Cal.App.3d 588, review denied.

Legislature did not create different degrees of attempted murder by imposing different penalties depending on factors involved in commission of the offense.  People v. Douglas (App. 1 Dist. 1990) 269 Cal.Rptr. 579, 220 Cal.App.3d 544, review denied, certiorari denied 111 S.Ct. 2833, 501 U.S. 1220, 115 L.Ed.2d 1002.

Defendant’s culpability for attempted murder as aider and abettor necessarily depends on commission of that crime by perpetrator.  People v. Patterson (App. 4 Dist. 1989) 257 Cal.Rptr. 407, 209 Cal.App.3d 610.

Former crime of assault with intent to commit murder and crime of attempted murder require specific intent to kill, and cannot be based on mere implied malice even though implied malice would sustain charge of murder itself.  People v. Coleman (1989) 255 Cal.Rptr. 813, 48 Cal.3d 112, 768 P.2d 32, rehearing denied, certiorari denied 110 S.Ct. 1501, 494 U.S. 1038, 108 L.Ed.2d 635.

Based upon policy decision that both first and second-degree murder potentially were serious enough to warrant life imprisonment and that any attempt to murder deserved equal penalty, rational basis existed to punish all attempted murders equally;  as result, there was no violation of equal protection.  People v. Flores (App. 5 Dist. 1986) 223 Cal.Rptr. 465, 178 Cal.App.3d 74, review denied.

In view of force and actual injury, including chopping off victim’s hands, the defendant was properly charged with, convicted of and sentenced for attempted murder rather than more specific offense of assault with intent to commit murder, an offense not charged.  People v. Singleton (App. 4 Dist. 1980) 169 Cal.Rptr. 333, 112 Cal.App.3d 418.

Just as proof of assault with a deadly weapon does not itself provide the basis for an inference of intent to murder, so proof of arson of an inhabited building does not itself provide the basis for an inference of attempted murder, more is needed to establish murderous intent, which cannot be presumed solely from the commission of some other crime, but must be affirmatively proved by direct evidence or by solid inference.  People v. Belton (App. 2 Dist. 1980) 164 Cal.Rptr. 340, 105 Cal.App.3d 376.

Assault with intent to commit murder is form of attempted murder specifically punishable under § 217, and thus offense of defendants, who were shown to have attempted murder solely by assault with intent to commit murder, was punishable pursuant to such section and not this section which provides generally for punishments of attempts and which excepts application where provision is made by law for punishment of attempt, and punishment of defendants was not unconstitutional as they could only be punished under lesser penalties of the assault statute.  People v. Montano (App. 2 Dist. 1979) 158 Cal.Rptr. 47, 96 Cal.App.3d 221.

Where victim was attacked on basis of his membership in rival street gang, frequency with which such gang attacks result in homicide justified trial court in finding that homicide was “reasonable and natural consequence” to be expected in any such attack, and thus defendant was guilty of aiding and abetting attempted murder regardless of his awareness that either of codefendants had deadly weapons in their possession.  People v. Montano (App. 2 Dist. 1979) 158 Cal.Rptr. 47, 96 Cal.App.3d 221.

Elements of attempted murder are the intent to murder a human being and a direct but ineffectual act in furtherance of such intent, such act being more than mere preparation.  People v. Adami (App. 1 Dist. 1973) 111 Cal.Rptr. 544, 36 Cal.App.3d 452.

Back to Top

 

Intent for Attempted Murder

Under California law, murder and attempted murder both require an unlawful killing with malice aforethought, although malice is implied when a killing results from an intentional act, the natural consequences of which are dangerous to human life, and the act is deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.  Torres v. City of Los Angeles, C.A.9 (Cal.)2008, 548 F.3d 1197, certiorari denied 129 S.Ct. 1995, 173 L.Ed.2d 1086.

Under California law, attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.  Fellows v. Dexter, C.D.Cal.2008, 551 F.Supp.2d 969.

The mental state required for attempted murder is the intent to kill a human being, not a particular human being.  People v. Stone (2009) 92 Cal.Rptr.3d 362, 46 Cal.4th 131, 205 P.3d 272, on remand 2009 WL 3358436, unpublished, review denied.

Evidence that defendant repeatedly and intentionally discharged a shotgun loaded with antipersonnel, multiprojectile ammunition at close range toward his victims in a manner that could have inflicted a mortal wound was sufficient to support an inference of an intent to kill and sustain convictions for attempted murder, even if defendant lacked a motive and did not kill some of his wounded victims.  People v. Houston (2012) 144 Cal.Rptr.3d 716, 54 Cal.4th 1186, 281 P.3d 799, modified on denial of rehearing, petition for certiorari filed 2012 WL 6804134.

The variance between the information charging defendant with attempted murder of the named occupant of a house, and the proof at trial that defendant fired into the house with intent to kill whoever was inside because he mistakenly believed a gang member lived there, was not material and did not require reversal of the conviction, in light of the prosecutor’s many statements, both pretrial and during trial, that the basis for the attempted murder charge was defendant’s intent to kill whoever was in the house.  People v. Amperano (App. 2 Dist. 2011) 131 Cal.Rptr.3d 92, 199 Cal.App.4th 336, review denied.

Firing a gun toward a victim at a close range in a manner that could have inflicted a mortal wound had the bullet been on target supports an inference of intent to kill, as required for attempted murder.  People v. Ramos (App. 2 Dist. 2011) 122 Cal.Rptr.3d 49, 193 Cal.App.4th 43.

Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.  People v. Ramos (App. 2 Dist. 2011) 122 Cal.Rptr.3d 49, 193 Cal.App.4th 43.

Intent to unlawfully kill and express malice, as required for attempted murder, are, in essence, one and the same.  People v. Ramos (App. 2 Dist. 2011) 122 Cal.Rptr.3d 49, 193 Cal.App.4th 43.

The crime of murder does not always require specific intent to kill, but the crime of attempted murder does.  People v. Ramos (App. 2 Dist. 2011) 122 Cal.Rptr.3d 49, 193 Cal.App.4th 43.

Evidence of intent to kill, as required for attempted murder, is usually inferred from defendant’s acts and the circumstances of the crime.  People v. Ramos (App. 2 Dist. 2011) 122 Cal.Rptr.3d 49, 193 Cal.App.4th 43.

Defendant’s act of firing a single shot at a group of eight people with specific intent to kill was only a single offense of attempted murder, rather than eight offenses, since defendant did not use a means of force calculated to kill everyone in the group, even though the bullet traveled on and struck two other objects after striking a victim’s finger, where defendant did not target any particular individual or individuals.  People v. Perez (2010) 112 Cal.Rptr.3d 310, 50 Cal.4th 222, 234 P.3d 557, on remand 2010 WL 3932937, unpublished.

Guilt of attempted murder must be judged separately as to each alleged victim, whether the alleged victim was particularly targeted or randomly chosen.  People v. Perez (2010) 112 Cal.Rptr.3d 310, 50 Cal.4th 222, 234 P.3d 557, on remand 2010 WL 3932937, unpublished.

Evidence at trial that defendant fired a single bullet at a group of eight persons, including seven peace officers, from a distance of 60 feet was sufficient to establish that he acted with intent to kill someone in the group he fired upon, as required to support conviction of one offense of premeditated attempted murder of peace officer.  People v. Perez (2010) 112 Cal.Rptr.3d 310, 50 Cal.4th 222, 234 P.3d 557, on remand 2010 WL 3932937, unpublished.

Intent to unlawfully kill and express malice, as would support attempted murder, are, in essence, one and the same.  People v. Perez (2010) 112 Cal.Rptr.3d 310, 50 Cal.4th 222, 234 P.3d 557, on remand 2010 WL 3932937, unpublished.

Evidence was sufficient to support finding that attempted murder defendant had specific intent to kill passenger in vehicle who was seated directly behind person who was killed; it was reasonable to infer that appellant saw both individuals inside vehicle, which passed on right side of truck in which defendant was sitting in right front passenger seat such that, when defendant fired into vehicle, both murder victim and attempted murder victim were directly in defendant’s line of fire.  People v. Leon (App. 2 Dist. 2010) 104 Cal.Rptr.3d 601, 181 Cal.App.4th 452, review denied.

For an attempted murder that is willful, deliberate, and premeditated, although each defendant must have the intent to kill, a defendant may be vicariously liable for the premeditated and deliberate component of the mens rea of an accomplice.  People v. Concha (2009) 101 Cal.Rptr.3d 141, 47 Cal.4th 653, 218 P.3d 660, on remand 107 Cal.Rptr.3d 272, 182 Cal.App.4th 1072, modified on denial of rehearing, review denied.

For attempted murder, the distinct elements of an act and an intent are related; usually, whether a defendant harbored the required intent to kill must be inferred from the circumstances of the act.  People v. Lawrence (App. 5 Dist. 2009) 99 Cal.Rptr.3d 324, 177 Cal.App.4th 547, review denied.

Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.  People v. Lawrence (App. 5 Dist. 2009) 99 Cal.Rptr.3d 324, 177 Cal.App.4th 547, review denied.

Evidence supported inference that defendant had express malice necessary to support convictions for attempted murder, as defendant had express intent to kill victim by intentionally creating a zone of harm or kill zone, in that she set fires at both the front and back of house, and attempted murder victims, who were in house at time defendant set the fires, were within that zone of harm.  People v. Adams (App. 5 Dist. 2008) 86 Cal.Rptr.3d 915, 169 Cal.App.4th 1009, rehearing denied, review denied.

Intent to kill necessary to a charge of attempted murder of a victim other than the primary victim may, in an appropriate case, be established by proving that defendant acted with “concurrent” intent as to the other victim; the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within the “kill zone.”  People v. Bragg (App. 3 Dist. 2008) 75 Cal.Rptr.3d 200, 161 Cal.App.4th 1385, review denied, post-conviction relief denied 2012 WL 6726679.

When a defendant is charged with multiple counts of attempted murder, whether the defendant acted with specific intent to kill must be judged separately as to each alleged victim.  People v. Smith (2005) 37 Cal.Rptr.3d 163, 37 Cal.4th 733, 124 P.3d 730, habeas corpus denied 2010 WL 1660240, certificate of appealability denied 2011 WL 39113.

Under statute providing for increased punishment for attempted murder committed with willfulness, deliberation, and premeditation, attempted murderer who is guilty as aider and abettor, but who did not personally act with willfulness, deliberation, and premeditation, is sufficiently blameworthy to be punished with life imprisonment; where natural-and-probable-consequences doctrine does not apply, such attempted murderer necessarily acts willfully, and he or she also necessarily acts with mental state at least approaching deliberation and premeditation.  People v. Lee (2003) 3 Cal.Rptr.3d 402, 31 Cal.4th 613, 74 P.3d 176, rehearing denied, certiorari denied 124 S.Ct. 1680, 541 U.S. 947, 158 L.Ed.2d 374.

Conviction for attempted willful, deliberate, and premeditated murder was supported by evidence that defendant lunged with knife at victim as she walked toward building entrance and stuck it into her abdomen, causing wound that posed substantial risk of death, that force of impact felt to victim like being struck by a train, and that defendant told officer at scene that he had felt like stabbing someone and that victim just happened to be in wrong place at wrong time.  People v. Moore (App. 3 Dist. 2002) 117 Cal.Rptr.2d 715, 96 Cal.App.4th 1105, review denied, habeas corpus denied 2008 WL 2915078.

Intent required for crimes of assault with intent to commit murder and of attempted murder should be described to jury as intent to “kill” another.  People v. Coleman (1989) 255 Cal.Rptr. 813, 48 Cal.3d 112, 768 P.2d 32, rehearing denied, certiorari denied 110 S.Ct. 1501, 494 U.S. 1038, 108 L.Ed.2d 635.
Back to Top

 

Malice is Required for Attempted Murder

Trial court did not erroneously allow jury to find defendant guilty of attempting to murder on implied malice theory; in instructing on attempted murder, court referred to elements of murder, which included implied malice, and said that those elements apply when crime is attempted but court also instructed that attempt required specific intent to commit crime and that crime of attempted murder required specific intent to commit murder.  People v. Carpenter (1997) 63 Cal.Rptr.2d 1, 15 Cal.4th 312, 935 P.2d 708, rehearing denied, certiorari denied 118 S.Ct. 858, 522 U.S. 1078, 139 L.Ed.2d 757.

Attempted murder requires express malice, i.e., intent to kill.  People v. Carpenter (1997) 63 Cal.Rptr.2d 1, 15 Cal.4th 312, 935 P.2d 708, rehearing denied, certiorari denied 118 S.Ct. 858, 522 U.S. 1078, 139 L.Ed.2d 757.

Although malice may be express or implied with respect to charge of murder, implied malice is insufficient basis upon which to sustain charge of attempted murder.  People v. Chinchilla (App. 2 Dist. 1997) 60 Cal.Rptr.2d 761, 52 Cal.App.4th 683, review denied.
Back to Top

 

Prosecutor’s Misconduct

Prosecutor committed misconduct in arguing to jury that defendant, charged with four counts of attempted murder for shooting once at owner of vehicle defendant had attempted to steal and once more at three others who had helped owner thwart theft, could be convicted of all four counts on “zone of danger” theory; court did not instruct on this theory of concurrent intent, prosecutor did not define zone of danger as it related to intent, and argument incorrectly stated that attempted murder was committed as to all persons in group simply because gunshot was fired indiscriminately at them.  People v. Anzalone (App. 4 Dist. 2006) 45 Cal.Rptr.3d 876, 141 Cal.App.4th 380, modified on denial of rehearing, review denied.

Prosecutor’s references, during closing argument at guilt phase of prosecution for capital murder and attempted murder, to “tricks” or “moves” used by defense to wwwnstrate confusion or uncertainty of surviving victim were not an improper personal attack on defense counsel’s integrity.  People v. Taylor (2001) 113 Cal.Rptr.2d 827, 26 Cal.4th 1155, 34 P.3d 937, rehearing denied, certiorari denied 122 S.Ct. 2681, 536 U.S. 967, 153 L.Ed.2d 852.

References by prosecutor to surviving victim’s suffering, during closing argument at guilt phase of prosecution for capital murder and attempted murder, did not improperly place victim impact evidence before the jury; prosecutor was merely calling jury’s attention to fact that surviving victim’s physical state naturally made him susceptible to minor mistakes in his testimony, and jury was well aware from other testimony that surviving victim suffered from severe paralysis and pain as result of charged incident.  People v. Taylor (2001) 113 Cal.Rptr.2d 827, 26 Cal.4th 1155, 34 P.3d 937, rehearing denied, certiorari denied 122 S.Ct. 2681, 536 U.S. 967, 153 L.Ed.2d 852.
Back to Top

 

Premeditation and Deliberation

Confrontation clause violation in the admission of police detective’s opinion testimony that defendant had shot rival gang member as retaliation for murder of member of defendant’s gang, which testimony was based on improper hearsay from unavailable witness, was not harmless error with respect to jury’s finding that attempted murder had been premeditated, where detective’s testimony was the only evidence illustrating defendant’s premeditation.  Hernandez v. McGrath, E.D.Cal.2009, 595 F.Supp.2d 1111, appeal after new sentencing hearing 2012 WL 2391165, unpublished.

Under California law, premeditation and deliberation require more than an intent to kill and must result from careful thought and weighing of consideration, although process does not require any extended period of time.  Fellows v. Dexter, C.D.Cal.2008, 551 F.Supp.2d 969.

Under California law, there is no distinction between attempted murder and completed first degree murder for purposes of determining whether there is sufficient evidence of premeditation and deliberation.  Fellows v. Dexter, C.D.Cal.2008, 551 F.Supp.2d 969.

In general, attempted murder is punishable by imprisonment for a term of five, seven, or nine years; however, if either the defendant or an accomplice formed the intent to kill with premeditation and deliberation, punishment for the attempted murder is increased to life imprisonment with possibility of parole.  People v. Gonzalez (2012) 142 Cal.Rptr.3d 893, 54 Cal.4th 643, 278 P.3d 1242, habeas corpus denied 2013 WL 247607.

The crime of attempted murder is not divided into degrees, and a finding of willful, deliberate, and premeditated attempted murder is necessary only for purposes of sentence enhancement.  People v. Ramos (App. 2 Dist. 2011) 122 Cal.Rptr.3d 49, 193 Cal.App.4th 43.
Back to Top

 

Solicitation of Attempted Murder

Inmate who wrote and posted letter requesting that intended recipient cause woman whom inmate had impregnated to have a miscarriage was guilty of attempted solicitation of murder, where letter was intercepted by corrections officer and never reached intended recipient.  People v. Saephanh (App. 5 Dist. 2000) 94 Cal.Rptr.2d 910, 80 Cal.App.4th 451.

Attempted solicitation of murder is a crime.  People v. Saephanh (App. 5 Dist. 2000) 94 Cal.Rptr.2d 910, 80 Cal.App.4th 451.
Back to Top

 

Motive for Attempted Murder

To convict for murder or attempted murder, evidence of motive is not required to establish intent to kill.  People v. Smith (2005) 37 Cal.Rptr.3d 163, 37 Cal.4th 733, 124 P.3d 730, habeas corpus denied 2010 WL 1660240, certificate of appealability denied 2011 WL 39113.

Motive is not an element of the crimes of murder and attempted murder, but evidence of motive is often probative of intent to kill.  People v. Smith (2005) 37 Cal.Rptr.3d 163, 37 Cal.4th 733, 124 P.3d 730, habeas corpus denied 2010 WL 1660240, certificate of appealability denied 2011 WL 39113.
Back to Top

 

Felony murder and Attempted Murder

Because the felony-murder rule requires a killing, the rule is inapplicable to attempted murder, as well as aiding and abetting an attempted murder.  In re Lucero (App. 3 Dist. 2011) 132 Cal.Rptr.3d 499, 200 Cal.App.4th 38, rehearing denied, review denied.

The fact that, in separate trial of abettor of attempted robbery in which cashier was murdered, jury apparently treated robbery and murder as separate crimes by finding accomplice guilty only of abetting attempted robbery, was not evidence in felony murder trial of gunman who shot cashier, and thus was not relevant to whether lesser included offense instruction on second degree murder was required.  People v. Wilson (2008) 73 Cal.Rptr.3d 620, 43 Cal.4th 1, 178 P.3d 1113, rehearing denied, certiorari denied 129 S.Ct. 904, 555 U.S. 1105, 173 L.Ed.2d 120.

A robbery, as a predicate for felony murder, is not complete until the perpetrator reaches a place of temporary safety which is not the scene of the robbery.  People v. Wilson (2008) 73 Cal.Rptr.3d 620, 43 Cal.4th 1, 178 P.3d 1113, rehearing denied, certiorari denied 129 S.Ct. 904, 555 U.S. 1105, 173 L.Ed.2d 120.

First degree felony murder based on robbery requires only that the victim be killed during the course of a robbery, accidentally or otherwise, not that the victim be killed for the purpose of the robbery.  People v. Wilson (2008) 73 Cal.Rptr.3d 620, 43 Cal.4th 1, 178 P.3d 1113, rehearing denied, certiorari denied 129 S.Ct. 904, 555 U.S. 1105, 173 L.Ed.2d 120.

Felony-murder rule is inapplicable to attempted murder as well as aiding and abetting attempted murder.  People v. Patterson (App. 4 Dist. 1989) 257 Cal.Rptr. 407, 209 Cal.App.3d 610.
Back to Top

 

Provocative Act Murder

Under California law, to satisfy the actus reus element of provocative act murder, the defendant or one of his confederates must commit an act which provokes a third party into firing the fatal shot.  Torres v. City of Los Angeles, C.A.9 (Cal.)2008, 548 F.3d 1197, certiorari denied 129 S.Ct. 1995, 173 L.Ed.2d 1086.

California’s “provocative act murder theory” can be applied in situations in which criminal defendants neither kill nor intend to kill, but cause a third party to kill in response to their life-threatening provocative acts.  Torres v. City of Los Angeles, C.A.9 (Cal.)2008, 548 F.3d 1197, certiorari denied 129 S.Ct. 1995, 173 L.Ed.2d 1086.
Back to Top

 

Admissibility of Evidence

Trial court acted within its discretion under the statute permitting the trial court to determine whether probative value of evidence is substantially outweighed by probability of undue prejudice, in admitting recordings from telephone wiretaps in which defendants discussed gang activities including retaliating against a rival gang, in prosecution for criminal street gang activity and two counts of attempted premeditated murder based on a drive-by shooting.  People v. Arauz (App. 2 Dist. 2012) 149 Cal.Rptr.3d 211, 210 Cal.App.4th 1394, review filed.

Trial court’s error in instructing jury that evidence of defendant’s prior shootings of a girlfriend and an ex-girlfriend could be considered to show a “characteristic method, plan or scheme” in a first degree attempted murder by shooting another girlfriend, when the trial court had rejected the prosecution’s request to admit the evidence for that purpose, was harmless under even the most rigorous standard of prejudice, where the same evidence had been admitted to prove defendant’s motive, intent, lack of mistake, and propensity to commit the offense.  People v. Johnson (App. 1 Dist. 2010) 110 Cal.Rptr.3d 515, 185 Cal.App.4th 520, review denied.

Any error in trial court’s admission of evidence of defendant’s prior shootings of a girlfriend and an ex-girlfriend to show propensity was harmless to defendant’s convictions of attempted first degree murder of another girlfriend and related charges and enhancements, since the evidence of guilt was extremely strong, a lesser verdict was extremely unlikely given the strong evidence of premeditation and deliberation, and there was no genuine defense under defendant’s mistaken identity theory; defendant and girlfriend were engaged in conversation in parking lot just before girlfriend was shot, all of the percipient witnesses testified defendant was the only person near her at the time, and defendant fled immediately after the shooting.  People v. Johnson (App. 1 Dist. 2010) 110 Cal.Rptr.3d 515, 185 Cal.App.4th 520, review denied.

Trial court’s error in prosecution for attempted murder in allowing irrelevant evidence regarding victim’s four week pregnancy at time of attack was harmless in light of evidence of defendant’s violence toward victim; defendant shot at victim twice, beat her repeatedly about the head with the butt of his rifle and then with a wooden rod until it broke, dragged her by her hair, and gagged and bound her.  People v. Cash (2002) 122 Cal.Rptr.2d 545, 28 Cal.4th 703, 50 P.3d 332, rehearing denied, certiorari denied 123 S.Ct. 1270, 537 U.S. 1199, 154 L.Ed.2d 1039.

Question posed by state at guilt phase of prosecution for capital murder and attempted murder to the physician for surviving victim, as to whether a traumatized rape victim might block memories of the incident, was responsive to hypothetical question asked on cross-examination by defense as to whether a traumatized person might suffer impairment of perceptive ability and was not an improper “preview” of penalty phase evidence relating to defendant’s prior commission of forcible rape.  People v. Taylor (2001) 113 Cal.Rptr.2d 827, 26 Cal.4th 1155, 34 P.3d 937, rehearing denied, certiorari denied 122 S.Ct. 2681, 536 U.S. 967, 153 L.Ed.2d 852.

Crime scene photographs depicting handcuffed victims and videotape showing crime scene at the time investigators first arrived were admissible in prosecution for capital murder and attempted murder to support surviving victim’s testimony regarding circumstances of crime and testimony by victims’ son about shocking scene he encountered, to establish that a murder had in fact occurred, and to support prosecutor’s theory of a planned robbery, regardless of whether photographs were cumulative of other evidence or whether other evidence was available to establish state’s case.  People v. Taylor (2001) 113 Cal.Rptr.2d 827, 26 Cal.4th 1155, 34 P.3d 937, rehearing denied, certiorari denied 122 S.Ct. 2681, 536 U.S. 967, 153 L.Ed.2d 852.

Record showed that trial court was well aware of its responsibilities to weigh probative value against potentially prejudicial effect of crime scene photographs and videotape in prosecution for capital murder and attempted murder, and therefore no express statement concerning that weighing process was required, where trial court excluded several photographs as potentially prejudicial following extensive hearing outside jury’s presence, and it privately viewed videotape and suggested editing changes to excise certain potentially prejudicial portions.  People v. Taylor (2001) 113 Cal.Rptr.2d 827, 26 Cal.4th 1155, 34 P.3d 937, rehearing denied, certiorari denied 122 S.Ct. 2681, 536 U.S. 967, 153 L.Ed.2d 852.

Physician’s testimony was admissible, at guilt phase of prosecution for capital murder and attempted murder, to show extensiveness of surviving victim’s injuries and to confirm that, despite those injuries, surviving victim could accurately recall charged incident.  People v. Taylor (2001) 113 Cal.Rptr.2d 827, 26 Cal.4th 1155, 34 P.3d 937, rehearing denied, certiorari denied 122 S.Ct. 2681, 536 U.S. 967, 153 L.Ed.2d 852.

Any error, at guilt phase of prosecution for capital murder and attempted murder, in admitting physician’s testimony concerning extensiveness of surviving victim’s injuries was harmless in light of overwhelming evidence of defendant’s guilt.  People v. Taylor (2001) 113 Cal.Rptr.2d 827, 26 Cal.4th 1155, 34 P.3d 937, rehearing denied, certiorari denied 122 S.Ct. 2681, 536 U.S. 967, 153 L.Ed.2d 852.
Back to Top

 

Sufficiency of evidence

The “kill zone” theory was not a proper theory of attempted murder liability for two defendants who fired ten nine-millimeter shots into a crowded building where a party was being held to retaliate after one of them was punched by someone at the party, where the shots only killed two victims, absent evidence that ten shots could have been sufficient to kill everyone in the area where the defendant’s assailant was located, and absent evidence that defendants selected the assailant or anyone else as their primary target. Cal.  People v. McCloud (App. 2 Dist. 2012) 149 Cal.Rptr.3d 902, 211 Cal.App.4th 788, review filed.

Defendant’s act of firing ten nine-millimeter shots into a crowd at a party was sufficient to support only eight attempted murder convictions in addition to defendant’s two murder convictions for the two shots that killed two victims, thus precluding retrial on more than eight counts of attempted murder after reversal of his convictions on other grounds, absent evidence that defendant specifically intended to kill two or more victims with a single shot.  People v. McCloud (App. 2 Dist. 2012) 149 Cal.Rptr.3d 902, 211 Cal.App.4th 788, review filed.

Evidence, including defendant’s admissions, was sufficient to establish that defendant participated in group that attacked intended victim, a member of a rival gang, as required for convictions of first-degree provocative act murder arising from intended victim’s shooting of one accomplice, attempted murder, and attempted residential burglary; defendant admitted that rode in car to intended victim’s apartment the night of shooting, that accomplice, who was shot and killed by intended victim, rode with him, that accomplice attempted to climb apartment and was shot, and that defendant tried to drag accomplice away, but got scared when he heard police sirens. Cal.  People v. Mejia (App. 2 Dist. 2012) 149 Cal.Rptr.3d 815, 211 Cal.App.4th 586, review filed.

Jury’s finding that defendant fired at least four shots at four rival gang members, in convicting him of four counts of attempted murder, was supported by substantial evidence, including an eyewitness’s testimony that she saw defendant fire two shots, a second witness’s testimony that he heard six to eight shots, and evidence that the weapons found in the rival gang members’ possession soon after the shooting did not include any firearms.  People v. Garcia (App. 4 Dist. 2012) 138 Cal.Rptr.3d 855, 204 Cal.App.4th 542.

Jury’s finding that defendant intended to kill victim, in convicting him of attempted murder, was supported by substantial evidence, including victim’s testimony that he heard gunshots “whistling past [him], so [he] ran the other way,” and evidence that defendant fired seven times at victim as victim ran.  People v. Ramos (App. 2 Dist. 2011) 122 Cal.Rptr.3d 49, 193 Cal.App.4th 43.

Jury’s finding that defendant intended to kill a six-month-old infant in setting his apartment on fire, in convicting defendant of attempted murder, was supported by substantial evidence, including evidence that defendant murdered infant’s mother, that infant’s playpen was next to mother’s bloodstained bed, and that defendant placed flammable materials on a stove and turned it on, and defendant’s admission that he heard a baby crying that night.  People v. Booker (2011) 119 Cal.Rptr.3d 722, 51 Cal.4th 141, 245 P.3d 366, rehearing denied, certiorari denied 132 S.Ct. 455, 181 L.Ed.2d 297.

Sufficient evidence supported trial court’s finding of the premeditation and deliberation necessary for attempted first degree murder conviction; defendant and shooting victim were members of rival gangs and had previous altercations, defendant was carrying a loaded gun with him at time of the incident, and defendant fired at least six shots from a distance of about 25 feet into victim’s vehicle.  People v. Villegas (App. 4 Dist. 2001) 113 Cal.Rptr.2d 1, 92 Cal.App.4th 1217, review denied.

Sufficient evidence supported trial court’s finding of the malice necessary for attempted first degree murder conviction; defendant did not have a reasonable belief in the need for self-defense, shooting victim did not have a weapon, and victim’s conduct in getting out of his truck was not sufficiently provocative that it would cause an ordinary person to act rashly.  People v. Villegas (App. 4 Dist. 2001) 113 Cal.Rptr.2d 1, 92 Cal.App.4th 1217, review denied.

Evidence that was sufficient to show that defendant and codefendant conspired to kill victim also supported conviction for attempted murder; evidence defeated any suggestion that spontaneous argument resulted in victim’s shooting, and evidence supporting defendant’s claim that he and codefendant may have conspired to commit only nonfatal assault was undermined by fact that victim was shot in the head.  People v. Tran (App. 6 Dist. 1996) 54 Cal.Rptr.2d 905, 47 Cal.App.4th 759, modified on denial of rehearing, review denied.

Evidence was sufficient to establish defendant’s intent to commit murder so as to support his conviction for attempted murder, even if defense theory that defendant was operating in alcoholic blackout was true, since jury was free to believe expert’s testimony that defendant, while in alcoholic blackout, still could appreciate what was happening.  People v. Morales (App. 1 Dist. 1992) 7 Cal.Rptr.2d 358, 5 Cal.App.4th 917, rehearing denied and modified, review denied.

There was sufficient evidence to support finding that defendant had reckless intent to kill and to support attempted murder convictions;  there was testimonial evidence that defendant was a gang member, at least one of attempted murder victims was a member of rival gang, gangs hated each other and had a violent relationship, car in which defendant was a passenger slowed down and/or stopped as it approached victims, occupants of car stared at victims for 10 to 20 seconds before firing, gangs retaliated for killing deaths of fellow gang members and it could be inferred that defendant intended to kill rival gang member in retaliation for death of member of his gang.  People v. Woods (App. 2 Dist. 1991) 277 Cal.Rptr. 269, 226 Cal.App.3d 1037, rehearing denied and modified.

Evidence was not sufficient to sustain conviction for attempted murder as aider and abettor;  although evidence showed that defendant participated in armed robbery, and evidence further showed that shot was fired by someone other than defendant, which hit victim in face, there was no further evidence of specific intent to kill.  People v. Patterson (App. 4 Dist. 1989) 257 Cal.Rptr. 407, 209 Cal.App.3d 610.

Evidence that defendant, having threatened to kill constable’s employee, was carrying .22-caliber rifle loaded with high-speed cartridge, and having entered constable’s land on which constable was working about 250 or 300 yards distant, with employee about 30 yards farther away, walked towards constable, and, after going about 100 yards, stopped and appeared to be loading rifle, but did not aim rifle at any time, and that employee fled and that defendant continued towards constable, who took possession of rifle without resistance, was insufficient to show “attempt” to murder employee.  People v. Miller (1935) 2 Cal.2d 527, 42 P.2d 308.
Back to Top

 

Included and Related Offenses

Attempted murder is a lesser included offense of murder.  People v. Davidson (App. 2 Dist. 2008) 70 Cal.Rptr.3d 913, 159 Cal.App.4th 205, review denied, certiorari denied 129 S.Ct. 1044, 555 U.S. 1156, 173 L.Ed.2d 475, habeas corpus denied 2010 WL 429930.

A defendant who intends to kill one person will be liable for multiple counts of murder where multiple victims die, but only one count of attempted murder where no one dies.  People v. Stone (2009) 92 Cal.Rptr.3d 362, 46 Cal.4th 131, 205 P.3d 272, on remand 2009 WL 3358436, unpublished, review denied.

A person who intends to kill can be guilty of the murder of each person actually killed, even if the person intended to kill only one.  People v. Stone (2009) 92 Cal.Rptr.3d 362, 46 Cal.4th 131, 205 P.3d 272, on remand 2009 WL 3358436, unpublished, review denied.

A person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind.  People v. Stone (2009) 92 Cal.Rptr.3d 362, 46 Cal.4th 131, 205 P.3d 272, on remand 2009 WL 3358436, unpublished, review denied.

Attempted murder of fetus was not lesser included offense of charged murder of human being against defendant who struck pregnant woman, resulting in immediate premature live birth and death of child one month later; crime of murder of human being did not include as element murder of fetus, and operative pleading specifically charged defendant with murder of human being, not fetus.  People v. Taylor (App. 3 Dist. 2004) 14 Cal.Rptr.3d 550, 119 Cal.App.4th 628, rehearing denied, review denied, habeas corpus denied 2008 WL 4532531, affirmed 400 Fed.Appx. 221, 2010 WL 4117066.

Assault with deadly weapon is not lesser included offense of attempted murder with use of deadly weapon, as attempted murder can be committed without using deadly weapon.  People v. Richmond (App. 2 Dist. 1991) 3 Cal.Rptr.2d 252, 2 Cal.App.4th 610.

Defendant in prosecution for felony-murder and attempted second-degree robbery was not entitled to instruction on attempted theft or larceny as lesser included offenses;  defendant admitted that he knew comrade was carrying gun and knew comrade had used gun to take money from drug customers in the past, and comrade used gun, while record was devoid of evidence suggesting that defendant believed comrade’s robbery plan excluded use of force or fear.  People v. Denis (App. 2 Dist. 1990) 273 Cal.Rptr. 724, 224 Cal.App.3d 563, review denied.

Assault with deadly weapon is not lesser-included offense to crime of attempted murder.  People v. Gragg (App. 2 Dist. 1989) 264 Cal.Rptr. 765, 216 Cal.App.3d 32, review denied.

Defendant, who was charged with attempted murder, impliedly consented to jury’s consideration of lesser related offense of battery with serious bodily injury and waived any objection to such charge based on lack of notice by not objecting to proposed instructions, verdict forms, or in any other way claiming unfair surprise, when asked to state any objection.  People v. Toro (1989) 254 Cal.Rptr. 811, 47 Cal.3d 966, 766 P.2d 577, rehearing denied.
Back to Top

 

Jury Instructions for Attempted Murder

The pattern jury instruction on the “kill zone” theory of attempted murder liability is misleading and should probably be revised, since its repeated references to a “zone of risk” incorrectly suggest to the jury that a defendant can create a kill zone merely by subjecting individuals other than the primary target to a risk of fatal injury. Cal.  People v. McCloud (App. 2 Dist. 2012) 149 Cal.Rptr.3d 902, 211 Cal.App.4th 788, review filed.

Defendant could be convicted of attempted first-degree murder, even if jury was not given verdict form allowing it to specifically find that crime was willful, deliberate and premeditated, where jury was instructed that such finding was required in order to convict of first degree offense and verdict form allowed jury to fix degree of offense;  by finding that defendant had committed first-degree attempted murder, jury found to be true allegation that defendant acted willfully, deliberately and with premeditation.  People v. Dominguez (App. 4 Dist. 1992) 6 Cal.Rptr.2d 55, 4 Cal.App.4th 516, modified, review denied.

Trial court’s failure to specifically instruct jury that intent to kill is element of attempted murder did not prejudice defendant, where there was no question that jury was aware that specific intent to kill was element of attempted murder;  jury was instructed that defendant must have specific intent to commit crime, and murder had been defined for jury.  People v. Visciotti (1992) 5 Cal.Rptr.2d 495, 2 Cal.4th 1, 825 P.2d 388, rehearing denied, certiorari denied 113 S.Ct. 267, 506 U.S. 893, 121 L.Ed.2d 196, rehearing denied 113 S.Ct. 646, 506 U.S. 1016, 121 L.Ed.2d 575, habeas corpus denied 58 Cal.Rptr.2d 801, 14 Cal.4th 325, 14 Cal.4th 1089A, 926 P.2d 987, modified on denial of rehearing, as modified, certiorari denied 117 S.Ct. 2521, 521 U.S. 1124, 138 L.Ed.2d 1022, habeas corpus granted in part 288 F.3d 1097.

Rule that jury should not be instructed on implied malice in trial for assault with intent to commit murder applies equally to attempted murder, since intent to kill is also element of attempted murder.  People v. Visciotti (1992) 5 Cal.Rptr.2d 495, 2 Cal.4th 1, 825 P.2d 388, rehearing denied, certiorari denied 113 S.Ct. 267, 506 U.S. 893, 121 L.Ed.2d 196, rehearing denied 113 S.Ct. 646, 506 U.S. 1016, 121 L.Ed.2d 575, habeas corpus denied 58 Cal.Rptr.2d 801, 14 Cal.4th 325, 14 Cal.4th 1089A, 926 P.2d 987, modified on denial of rehearing, as modified, certiorari denied 117 S.Ct. 2521, 521 U.S. 1124, 138 L.Ed.2d 1022, habeas corpus granted in part 288 F.3d 1097.

Trial court was required to instruct jury, in trial for attempted murder as aider and abettor, that crime of attempted murder requires proof of express malice and specific intent to kill;  trial court could not rely on felony-murder or implied malice theory, as there was no killing.  People v. Patterson (App. 4 Dist. 1989) 257 Cal.Rptr. 407, 209 Cal.App.3d 610.

Assault with intent to murder instructions as whole could not have led jury to believe that it could determine guilt without finding express malice, despite statement in instructions indicating that murder intended need only be second degree;  instructions expressly stated that assault with intent to murder requires express malice and specific intent to murder, not specific intent to kill.  People v. Walker (1988) 253 Cal.Rptr. 863, 47 Cal.3d 605, 765 P.2d 70, rehearing denied, certiorari denied 110 S.Ct. 1500, 494 U.S. 1038, 108 L.Ed.2d 635.
Back to Top

 

Defenses to Attempted Murder

An unforeseen circumstance which prevents the commission of crime attempted is not a matter of defense when defendant is charged with the crime of attempt.  People v. Grant (App. 1951) 105 Cal.App.2d 347, 233 P.2d 660.

Abandonment, defenses  

Abandonment of intent is only a defense if attempt to commit crime is freely and voluntarily abandoned before act is put in process of final execution.  People v. Claborn (App. 3 Dist. 1964) 36 Cal.Rptr. 132, 224 Cal.App.2d 38.

Failure to complete crime because of threatened arrest or appearance of police is not such a free and voluntary act as to constitute abandonment of attempt to commit crime.  People v. Walker (1948) 33 Cal.2d 250, 201 P.2d 6, certiorari denied 69 S.Ct. 744, 336 U.S. 940, 93 L.Ed. 1098.
Back to Top

 

Sentencing for Attempted Murder

The question of whether defendant’s shooting of a residential robbery victim was incidental to the robbery, and thus whether defendant’s sentences for attempted murder and robbery were subject to the statutory prohibition against multiple punishment for crimes arising from an indivisible course of conduct, was a factual question for the trial court.  People v. Phong Bui (App. 1 Dist. 2011) 121 Cal.Rptr.3d 754, 192 Cal.App.4th 1002, review denied.

Evidence at trial that defendant fired a single bullet at a group of eight persons, including seven peace officers, from a distance of 60 feet was sufficient to establish that he acted with intent to kill someone in the group he fired upon, as required to support conviction of one offense of premeditated attempted murder of peace officer.  People v. Perez (2010) 112 Cal.Rptr.3d 310, 50 Cal.4th 222, 234 P.3d 557, on remand 2010 WL 3932937, unpublished.

Defendant convicted of attempted premeditated murder under “natural and probable consequences” doctrine and kidnapping during commission of carjacking was properly sentenced to consecutive life terms, since evidence supported finding of separate objectives for crimes; defendant drove victim to site where victim was pushed off cliff either by defendant or his confederate, he helped lead victim to precise location where attempt was made, and he was present when victim was pushed.  People v. Cummins (App. 2 Dist. 2005) 25 Cal.Rptr.3d 860, 127 Cal.App.4th 667, review denied.

Sufficient evidence supported gang enhancement of sentence for defendant convicted of attempted first degree murder and mayhem; two gang experts testified concerning defendant’s association with the gang, two predicate offenses existed, and a pattern of gang activity was shown.  People v. Villegas (App. 4 Dist. 2001) 113 Cal.Rptr.2d 1, 92 Cal.App.4th 1217, review denied.

Trial court properly imposed a 15-years-to-life sentence for gang enhancement allegation and a 24-years-to-life sentence for intentionally and personally discharging a firearm and proximately causing great bodily injury, following defendant’s conviction for attempted first degree murder and mayhem; crime was premeditated and deliberate, defendant committed the crime in association with gang activity, and defendant intentionally and personally shot at the victim, who was left paralyzed.  People v. Villegas (App. 4 Dist. 2001) 113 Cal.Rptr.2d 1, 92 Cal.App.4th 1217, review denied.

It was within the exclusive province of the prosecution to decide which sentence enhancement to allege against defendant charged with attempted first degree murder and mayhem.  People v. Villegas (App. 4 Dist. 2001) 113 Cal.Rptr.2d 1, 92 Cal.App.4th 1217, review denied.

Sentence of 40 years to life for attempted first degree murder and mayhem convictions did not constitute cruel and unusual punishment, even though the 17-year-old defendant had no significant prior criminal record; defendant’s actions in shooting at victim and leaving victim paralyzed were premeditated and unprovoked, defendant was member of a gang, and defendant committed the violent crime with a firearm.  People v. Villegas (App. 4 Dist. 2001) 113 Cal.Rptr.2d 1, 92 Cal.App.4th 1217, review denied.

Proper sentence for third strike offender on conviction of attempted premeditated murder was 25 years to life.  People v. Dozier (App. 2 Dist. 2000) 93 Cal.Rptr.2d 600, 78 Cal.App.4th 1195, rehearing denied, review denied.

Defendant convicted of attempted willful, deliberate, and premeditated murder, which is punishable by indeterminate term of life imprisonment with possibility of parole, has minimum term of seven calendar years, for purposes of sentence-doubling provision of Three Strikes Law which applies where defendant has prior serious or violent felony conviction, as separate statute requires that defendant sentenced to indeterminate term of life imprisonment with possibility of parole serve at least seven years, unless some other statute establishes longer minimum term.  People v. Jefferson (1999) 86 Cal.Rptr.2d 893, 21 Cal.4th 86, 980 P.2d 441.

Remand for resentencing was necessary where trial court clearly expressed its resolve to give both defendant and codefendant the same length of sentence for conspiracy to commit first-degree murder and attempted murder, where codefendant’s sentence had to be reduced after trial court impermissibly imposed two enhancements for the same crime, and where, even if there were sufficient stated reasons for defendant’s actual sentence, different sentences could be inequitable and unjustified after trial court expressed its intent to give both defendants same sentence.  People v. Tran (App. 6 Dist. 1996) 54 Cal.Rptr.2d 905, 47 Cal.App.4th 759, modified on denial of rehearing, review denied.

Penal Code provision prescribing punishment of life imprisonment with possibility of parole for attempt to commit murder that is willful, deliberate and premeditated does not establish greater degree of attempted murder but, rather, sets forth a penalty provision prescribing increased sentence, i.e., a greater base term, to be imposed upon defendant’s conviction of attempted murder when the additional specified circumstances are found true by trier of fact.  People v. Bright (1996) 49 Cal.Rptr.2d 732, 12 Cal.4th 652, 909 P.2d 1354, certiorari denied 116 S.Ct. 2527, 518 U.S. 1006, 135 L.Ed.2d 1051.

Jury’s specific findings were sufficient to warrant life sentence for attempted murder;  jury determined, inter alia, that the attempted murder was committed willfully, deliberately and with premeditation.  People v. Douglas (App. 1 Dist. 1990) 269 Cal.Rptr. 579, 220 Cal.App.3d 544, review denied, certiorari denied 111 S.Ct. 2833, 501 U.S. 1220, 115 L.Ed.2d 1002.

Punishment for attempted second-degree murder of five, seven or nine-year determinate terms was neither out of all proportion nor clearly extraordinary penalty.  People v. Flores (App. 5 Dist. 1986) 223 Cal.Rptr. 465, 178 Cal.App.3d 74, review denied.

Defendant who choked and stabbed victim until she fell motionless was properly sentenced for attempted murder rather than for assault with intent to commit murder.  People v. Gibbs (App. 2 Dist. 1983) 193 Cal.Rptr. 681, 145 Cal.App.3d 794.

Trial court did not err in sentencing defendant, who was convicted of attempted murder in the first degree, under the general attempt statute, rather than under the statute governing assault with intent to commit murder, since the elements of premeditation and deliberation were prerequisites to defendant’s conviction, and those elements were unnecessary to establish an assault with intent to commit murder.  People v. Cardenas (1982) 184 Cal.Rptr. 165, 31 Cal.3d 897, 647 P.2d 569.

Where repeal of § 217 governing offense of assault with intent to commit murder was intended to insure that all attempted murders would be punished under this section regardless of whether they involved assaults and legislative purpose was not to eliminate sanctions for persons committing acts formerly proscribed by assault with intent to commit murder statute (§ 217), repealing § 217 did not operate retroactively to mitigate sentences of persons who committed assaults with intent to commit murder before January 1, 1981, effective date of repealing § 217.  People v. Murtishaw (1981) 175 Cal.Rptr. 738, 29 Cal.3d 733, 631 P.2d 446, certiorari denied 102 S.Ct. 1280, 455 U.S. 922, 71 L.Ed.2d 464.

Section 12308 specifying that “Every person who explodes, ignites, or attempts to explode or ignite any destruction device or any explosive with intent to commit murder is guilty of felony, and shall be punished by imprisonment in state prison for period of three, four, or five years” applied to conduct of defendant, who allegedly mailed bomb packages to victims;  neither § 217 proscribing assault with intent to commit murder nor this section proscribing attempted first-degree murder applied to sentencing of defendant.  People v. Barnum (App. 1 Dist. 1980) 169 Cal.Rptr. 840, 113 Cal.App.3d 340.

Where defendant was convicted of crimes including attempted murder with use of a firearm and assault with a deadly weapon coupled with use of a firearm, defendant’s basic sentence should have been based on § 217, relating to assault with intent to commit murder rather than under this section.  People v. Gray (App. 1 Dist. 1979) 154 Cal.Rptr. 555, 91 Cal.App.3d 545.

Punishment for attempted murder was imprisonment from one to 20 years regardless of whether murder attempted would have been, if completed, either first or second degree;  crime of attempted murder is not divided into degrees and thus no modification of judgment so as to designate degree of attempted murder was necessary.  People v. Wein (App. 2 Dist. 1977) 137 Cal.Rptr. 814, 69 Cal.App.3d 79.
Back to Top

 

Review and Appeal of Attempted Murder Cases

Trial court’s error in giving jury instruction on “kill zone” theory of attempted murder was not harmless to any of defendant’s 46 attempted murder convictions for firing ten shots at a crowded building where a party was being held, even though one of the shots resulted in a nonfatal injury to a partygoer, where two fatal shots resulted in separate murder convictions, the other seven shots did not hit anyone, and the prosecution’s only argument for a finding of specific intent to kill was based on the misapplication of the kill zone theory, absent evidence that defendant specifically targeted the partygoer he injured. Cal.  People v. McCloud (App. 2 Dist. 2012) 149 Cal.Rptr.3d 902, 211 Cal.App.4th 788, review filed.

Like first degree murder, attempted first degree murder requires a finding of premeditation and deliberation; the test on appeal is whether a rational trier of fact could have found premeditation and deliberation beyond a reasonable doubt based upon the evidence presented.  People v. Ibarra (App. 4 Dist. 2007) 61 Cal.Rptr.3d 22, 151 Cal.App.4th 1145, review denied.

In reviewing an attempted first degree murder conviction, the test on appeal is whether a rational trier of fact could have found premeditation and deliberation beyond a reasonable doubt based upon the evidence presented.  People v. Villegas (App. 4 Dist. 2001) 113 Cal.Rptr.2d 1, 92 Cal.App.4th 1217, review denied.
Back to Top

 

Attempted Voluntary Manslaughter

Defendant charged with attempted voluntary manslaughter, as lesser offense of attempted murder, was not entitled to instruction on “attempted involuntary manslaughter,” as there was no such crime, which would necessarily be based on internally contradictory premise that one could intend to commit unintentional killing. People v. Johnson (App. 3 Dist. 1996) 59 Cal.Rptr.2d 798, 51 Cal.App.4th 1329, review denied.

Attempted manslaughter was not exempt from mandatory three-year consecutive sentence for infliction of great bodily injury in commission of felony, even though manslaughter was exempt, as attempted manslaughter was separate offense not expressly excluded from statute, and statute had been reenacted after judicial decisions established that attempted manslaughter was not exempted from mandatory sentence without alteration of that section of statute. People v. Lewis (App. 1 Dist. 1993) 25 Cal.Rptr.2d 827, 21 Cal.App.4th 243, review denied.

Attempted voluntary manslaughter is not a legal absurdity and constitutes a crime in California.  People v. Van Ronk (App. 3 Dist. 1985) 217 Cal.Rptr. 581, 171 Cal.App.3d 818, review denied.

Law did not recognize crime of attempted involuntary manslaughter. People v. Van Broussard (App. 1 Dist. 1977) 142 Cal.Rptr. 664, 76 Cal.App.3d 193.

Attempted voluntary manslaughter and voluntary manslaughter are two different offenses.  In re A.G. (App. 1 Dist. 2011) 122 Cal.Rptr.3d 291, 193 Cal.App.4th 791.

Intent to kill is an element of the crime of attempted voluntary manslaughter.  People v. Montes (App. 5 Dist. 2003) 5 Cal.Rptr.3d 800, 112 Cal.App.4th 1543, modified on denial of rehearing.

Three-year sentence enhancement for defendant convicted of attempted manslaughter did not result in sentence incongruous with that which could have been imposed had he completed offense, and thus there was no basis to imply legislative intent to exempt attempted manslaughter from statute which required sentence enhancement for infliction of great bodily harm in commission of felony, even though manslaughter was exempt from enhancement statute;  attempted manslaughter and manslaughter were separate offenses, infliction of great bodily injuries could be considered as factor in aggravation in sentencing, and if convicted of manslaughter, defendant could have been sentenced to 11 years in prison.  People v. Lewis (App. 1 Dist. 1993) 25 Cal.Rptr.2d 827, 21 Cal.App.4th 243, review denied.

Sentencing range for attempted manslaughter, enhanced three years for intentional infliction of great bodily harm, of four and one-half to eight and one-half years, was not disproportionate to sentencing range for assault with deadly weapon, similarly enhanced, of five to seven years.  People v. Lewis (App. 1 Dist. 1993) 25 Cal.Rptr.2d 827, 21 Cal.App.4th 243, review denied.

Even if anomalous sentence resulted from defendant’s conviction for attempted manslaughter and resulting three-year sentence enhancement, reversal was not required based upon fact that punishment for attempted manslaughter could exceed one-half of that for completed offense;  reversal would only be required if punishment for attempted manslaughter was disproportionate to that for manslaughter.  People v. Lewis (App. 1 Dist. 1993) 25 Cal.Rptr.2d 827, 21 Cal.App.4th 243, review denied.

Incongruous sentence can never result where victim of attempted manslaughter survives attack, as any term imposed for attempted manslaughter, enhanced for infliction of great bodily harm, will always be less than next higher term for manslaughter.  People v. Lewis (App. 1 Dist. 1993) 25 Cal.Rptr.2d 827, 21 Cal.App.4th 243, review denied.

Attempted voluntary manslaughter, which is a lesser included offense of assault with intent to commit murder, is punishable under this section fixing penalties for attempts not punishable under other statutes, rather than under § 217 fixing penalty for assault with intent to commit murder.  People v. Heffington (App. 3 Dist. 1973) 107 Cal.Rptr. 859, 32 Cal.App.3d 1.
Back to Top

 

Court Cases Relating to Attempt Crimes, generally

In order to sustain conviction for attempt to commit crime under California law, the perpetrator’s act must go beyond mere preparation, and it must show that perpetrator is putting his or her plan into action, but act need not be last proximate or ultimate step toward commission of substantive crime.  Wilson v. Woodford, C.D.Cal.2010, 682 F.Supp.2d 1082.

Under California law, when defendant acts with requisite specific intent, that is, with intent to engage in conduct and/or bring about consequences proscribed by attempted crime, and performs act that goes beyond mere preparation and shows that perpetrator is putting his or her plan into action, defendant may be convicted of criminal attempt.  Lavea v. Woodard, N.D.Cal.2008, 555 F.Supp.2d 1036.

Crime of attempted murder was complete when, with the intent to kill two teenagers whom defendant believed were in a group gathered outside of house, defendant fired shots into the group, and thus defendant could be convicted of attempted murder even though, unbeknownst to him, the two individuals he intended to kill were not in the group.  People v. Anh-Tuan Dao Pham (App. 3 Dist. 2011) 121 Cal.Rptr.3d 458, 192 Cal.App.4th 552, rehearing denied, review denied.

Under the “slight-acts rule,” whenever the design of a person to commit crime is clearly shown, slight acts in furtherance of the design will constitute an attempt.  People v. Tillotson (App. 4 Dist. 2007) 69 Cal.Rptr.3d 42, 157 Cal.App.4th 517, review denied, appeal after new sentencing hearing 2009 WL 1879227, unpublished.

The slight-acts rule for an attempted crime applies to the crime of attempted murder.  People v. Superior Court (2007) 58 Cal.Rptr.3d 421, 41 Cal.4th 1, 157 P.3d 1017.

Whenever the design of a person to commit crime is clearly shown, slight acts in furtherance of the design will constitute an “attempt.”  People v. Superior Court (2007) 58 Cal.Rptr.3d 421, 41 Cal.4th 1, 157 P.3d 1017.

Between preparation for the attempted crime and the attempt itself, there is a wide difference; “preparation” consists in devising or arranging the means or measures necessary for the commission of the offense, and “attempt” is the direct movement toward the commission after the preparations are made.  People v. Superior Court (2007) 58 Cal.Rptr.3d 421, 41 Cal.4th 1, 157 P.3d 1017.

When a defendant acts with the requisite specific intent, that is, with the intent to engage in the conduct and/or bring about the consequences proscribed by the attempted crime, and performs an act that goes beyond mere preparation and shows that the perpetrator is putting his or her plan into action, the defendant may be convicted of criminal attempt.  Kim v. Superior Court (App. 2 Dist. 2006) 39 Cal.Rptr.3d 338, 136 Cal.App.4th 937, as modified.

Evidence was sufficient to support juvenile’s adjudication as delinquent on ground that he committed crime of attempt to aid, advise or encourage another to commit suicide; juvenile encouraged victim to commit suicide, advised her to do so by ingesting up to 100 pills of an over-the-counter sleeping medication all at once, and actively participated in her actual suicide attempt by helping her to obtain the pills, combining at least two bottles of pills together, and handing them to her.  In re Ryan N. (App. 1 Dist. 2001) 112 Cal.Rptr.2d 620, 92 Cal.App.4th 1359, review denied.

There is no requirement that a defendant charged with an attempt to commit the crime of aiding, advising or encouraging another to commit suicide be shown to have supplied the victim with a lethal means actually capable of inflicting death; indeed, in the case of an attempt, all that is required is that the defendant actually intend the suicide, and participate in bringing it about in such a way as to make the intended suicide apparently possible.  In re Ryan N. (App. 1 Dist. 2001) 112 Cal.Rptr.2d 620, 92 Cal.App.4th 1359, review denied.

“Attempt” connotes intent to accomplish its object, both in law and in ordinary language.  People v. Smith (App. 3 Dist. 1997) 67 Cal.Rptr.2d 604, 57 Cal.App.4th 1470, modified on denial of rehearing, review denied.

Attempt to commit crime is shown by specific intent to commit that crime and direct but ineffectual act toward that crime’s commission.  People v. Keister (App. 4 Dist. 1996) 54 Cal.Rptr.2d 431, 46 Cal.App.4th 1318, review granted and cause transferred 57 Cal.Rptr.2d 456, 924 P.2d 97.

Attempt conviction does not require proof of elements of substantive offense.  People v. Keister (App. 4 Dist. 1996) 54 Cal.Rptr.2d 431, 46 Cal.App.4th 1318, review granted and cause transferred 57 Cal.Rptr.2d 456, 924 P.2d 97.
Back to Top

 

Weight and sufficiency of evidence

There was sufficient evidence under the slight-acts rule to hold defendant, who hired detective posing as assassin to kill his sister and made payment, to answer to charge of attempted murder; defendant wanted sister killed, secured agreement for killing, and made down payment, which put his plan into action; disapproving , 36 Cal.App.3d 452, 111 Cal.Rptr. 544.  People v. Superior Court (2007) 58 Cal.Rptr.3d 421, 41 Cal.4th 1, 157 P.3d 1017.

Multiple counts of attempt can arise from a single act which goes beyond mere preparation; such multiple counts are dependent, however, on wwwnstration of sufficient evidence to prove beyond a reasonable doubt that the offender had multiple purposes accompanying the single act.  People v. Bonner (App. 4 Dist. 2000) 95 Cal.Rptr.2d 642, 80 Cal.App.4th 759, modified on denial of rehearing, review denied.
Back to Top

 

Elements of Attempt Offenses

Legal elements of an “attempt” are intent to commit a crime, execution of some overt act in pursuance of the intention, and failure to consummate the crime.  U. S. v. Baker, S.D.Cal.1955, 129 F.Supp. 684.

Defendant can be convicted of an attempt to commit a crime even though the crime, in fact, was completed.  People v. Rundle (2008) 74 Cal.Rptr.3d 454, 43 Cal.4th 76, 180 P.3d 224, rehearing denied, as modified, certiorari denied 129 S.Ct. 569, 555 U.S. 1014, 172 L.Ed.2d 433.

To prove an attempt, there must be proof of both specific intent to commit the crime and a direct, but ineffectual, act done toward its commission.  People v. Lenart (2004) 12 Cal.Rptr.3d 592, 32 Cal.4th 1107, 88 P.3d 498, rehearing denied.

Defendant may be found guilty of an attempt to commit an offense necessarily included in that with which he or she has been charged and is on trial.  In re Ryan N. (App. 1 Dist. 2001) 112 Cal.Rptr.2d 620, 92 Cal.App.4th 1359, review denied.

An attempt to commit a crime requires a specific intent to commit the crime and a direct but ineffectual act done toward its commission; the act must go beyond mere preparation, and it must show that the perpetrator is putting his or her plan into action, but the act need not be the last proximate or ultimate step toward commission of the substantive crime.  People v. Kipp (1998) 75 Cal.Rptr.2d 716, 18 Cal.4th 349, 956 P.2d 1169, rehearing denied, certiorari denied 119 S.Ct. 1055, 525 U.S. 1152, 143 L.Ed.2d 61.

In order to justify conviction for attempt to commit crime, it is not necessary that overt act proved should be ultimate step towards commission of crime, and it is sufficient if it was first or some subsequent step in direct movement toward such consummation.  People v. Seach (App. 3 Dist. 1963) 30 Cal.Rptr. 499, 215 Cal.App.2d 779.

In order to establish attempt to commit crime, it must appear that defendant had specific intent to commit crime and did direct, unequivocal act toward that end, and preparation alone is not enough, and some appreciable fragment of crime must have been accomplished.  People v. MacEwing (App. 2 Dist. 1963) 30 Cal.Rptr. 476, 216 Cal.App.2d 33.

Other than forming the requisite criminal intent, to be convicted of an attempt, a defendant need not commit an element of the underlying offense.  People v. Medina (2007) 61 Cal.Rptr.3d 677, 41 Cal.4th 685, 161 P.3d 187, on remand 2007 WL 4532686, unpublished.

Whether acts done in contemplation of the commission of a crime are merely preparatory or whether they are instead sufficiently close to the consummation of the crime, so as to constitute an attempt, is a question of degree and depends upon the facts and circumstances of a particular case.  People v. Superior Court (2007) 58 Cal.Rptr.3d 421, 41 Cal.4th 1, 157 P.3d 1017.

The purpose of requiring an overt act to convict for an attempted crime is that until such act occurs, one is uncertain whether the intended design will be carried out.  People v. Superior Court (2007) 58 Cal.Rptr.3d 421, 41 Cal.4th 1, 157 P.3d 1017.

Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.  People v. Superior Court (2007) 58 Cal.Rptr.3d 421, 41 Cal.4th 1, 157 P.3d 1017.

Act done toward commission of a crime, required to support conviction for attempt, must be more than mere preparation; it must show that the perpetrator is putting his or her plan into action.  People v. Bonner (App. 4 Dist. 2000) 95 Cal.Rptr.2d 642, 80 Cal.App.4th 759, modified on denial of rehearing, review denied.

Act done toward commission of a crime, required to support conviction for attempt, need not be the last proximate or ultimate step toward commission of the crime.  People v. Bonner (App. 4 Dist. 2000) 95 Cal.Rptr.2d 642, 80 Cal.App.4th 759, modified on denial of rehearing, review denied.
Back to Top

 

Intent

Evidence tending to prove that a crime was completed, even though not absolute proof of the crime of attempt, gives rise to a reasonable inference that the perpetrator intended to commit that crime.  People v. Rundle (2008) 74 Cal.Rptr.3d 454, 43 Cal.4th 76, 180 P.3d 224, rehearing denied, as modified, certiorari denied 129 S.Ct. 569, 555 U.S. 1014, 172 L.Ed.2d 433.

Sufficient evidence supported conclusion that defendant intended to kill bar patron, rather than merely incapacitate her, thereby supporting his conviction for attempted murder, committed soon after killing of bartender; bartender had been shot and killed on floor in manner indicating defendant intended to leave no witnesses, bar patron entered bar and encountered defendant who pointed gun and ordered her onto floor in similar fashion as bartender, patron grabbed hold of gun and fled, and defendant followed her outside rather than attempt to escape.  People v. Lenart (2004) 12 Cal.Rptr.3d 592, 32 Cal.4th 1107, 88 P.3d 498, rehearing denied.

Attempt to commit a crime has two elements of intent to commit the crime and a direct ineffectual act done toward its commission, which must not be mere preparation but a direct movement after preparation that would have accomplished crime if not frustrated by extraneous circumstances.  People v. Carpenter (1997) 63 Cal.Rptr.2d 1, 15 Cal.4th 312, 935 P.2d 708, rehearing denied, certiorari denied 118 S.Ct. 858, 522 U.S. 1078, 139 L.Ed.2d 757.

Conviction for attempted murder requires proof of specific intent to kill.  People v. Purata (App. 4 Dist. 1996) 49 Cal.Rptr.2d 664, 42 Cal.App.4th 489, rehearing denied, review denied.

Statutory scheme of both Texas and California required proof of specific intent to kill in order to satisfy elements of attempted murder, and so defendant’s conviction for attempted murder in Texas constituted strike for purposes of sentencing pursuant to California law;  although conviction for murder in Texas may be supported by either intentionally or knowingly causing death of individual, specific intent requirement of attempted murder insured that intent to support conviction was intentional and not merely knowing.  People v. Purata (App. 4 Dist. 1996) 49 Cal.Rptr.2d 664, 42 Cal.App.4th 489, rehearing denied, review denied.

Law considers “attempt” to be specific intent to commit substantive crime plus direct, equivocal act toward that end and intent alone is not enough.  Young v. Superior Court In and For San Joaquin County (App. 3 Dist. 1967) 61 Cal.Rptr. 355, 253 Cal.App.2d 848.

Where a crime remains unfinished and participant is charged with attempt, there must be a direct ineffectual act done towards the commission of the crime, and a specific intent to commit that crime.  People v. Michaels (App. 2 Dist. 1961) 13 Cal.Rptr. 900, 193 Cal.App.2d 194.

To establish attempt, it must appear that defendant had specific intent to commit crime and did direct, unequivocal act toward that end;  and preparation is not enough but some appreciable fragment of crime must have been accomplished.  People v. Fulton (App. 2 Dist. 1961) 10 Cal.Rptr. 319, 188 Cal.App.2d 105.

Elements of an attempt to commit a crime are a specific intent to commit the crime and a direct but ineffectual act done toward its commission.  People v. Ray (App. 3 Dist. 1960) 9 Cal.Rptr. 678, 187 Cal.App.2d 182.

Mere intention to commit a crime does not of itself amount to an “attempt”, and some act done toward accomplishment of the intended crime is necessary, but if a person formulates the intent and then does something more which is the usual course of natural events would result in the commission of a crime, the attempt is complete, even though the intended crime could not have been completed, due to some extrinsic fact unknown to person who intended it.  People v. Siu (App. 1 Dist. 1954) 126 Cal.App.2d 41, 271 P.2d 575.
Back to Top

 

Preparation

At most a mere preparation for “Jamaica Switch,” not going far enough to constitute attempt, was shown where evidence revealed that, while alleged victim had procured bank book and gone to bank, no further steps had taken place.  People v. Orndorff (App. 2 Dist. 1968) 67 Cal.Rptr. 824, 261 Cal.App.2d 212.

Preparation alone is not sufficient to justify conviction for attempt to commit specific crime, but there must be some appreciable fragment of crime committed, and it must be in such progress that will be consummated unless interrupted by circumstances independent of will of attemptor.  People v. Franquelin (App. 1952) 109 Cal.App.2d 777, 241 P.2d 651.

“Preparation” is devising or arranging means or measures necessary for commission of criminal offense, whereas “attempt” is direct movement toward commission after preparations are made.  People v. Franquelin (App. 1952) 109 Cal.App.2d 777, 241 P.2d 651.
Back to Top

 

Equal protection

An aider and abettor charged with attempted murder who was aware of the perpetrator’s intent to kill before the offense is not similarly situated, for equal protection purposes, to an aider and abettor charged with attempted murder as a reasonably foreseeable consequence of felony assault under a natural and probable consequence theory, and thus, unavailability of voluntary-intoxication defense, with respect to issue whether attempted murder was reasonably foreseeable consequence of felony assault under natural and probable consequence theory, does not violate equal protection; voluntary intoxication implicates subjective intent, and while the two theories for aider and abettor liability share a knowledge and intent requirement, which is subjective in nature, the natural and probable consequence theory requires more, i.e., that after jury finds knowledge and intent, it must also determine, based on objective test, whether attempted murder is natural and probable consequence of felony assault.  People v. Curry (App. 3 Dist. 2007) 70 Cal.Rptr.3d 257, 158 Cal.App.4th 766, modified on denial of rehearing, review denied.
Back to Top

 

Double jeopardy

Convictions for both assault with deadly weapon and unwillful, deliberate, premeditated attempted murder did not violate double jeopardy; each governing California statute required proof of additional element not found in the other, and thus crimes did not constitute “same offense.”  Massie v. Henry, C.A.9 (Cal.)2001, 19 Fed.Appx. 585, 2001 WL 1105429, Unreported.

Enhancement of assault and attempted murder defendant’s sentence on ground that great bodily injury was inflicted did not violate double jeopardy; California enhancement statute required proof of element which was not found in assault and attempted murder statutes.  Massie v. Henry, C.A.9 (Cal.)2001, 19 Fed.Appx. 585, 2001 WL 1105429, Unreported.

Increased sentence for attempted murder committed with premeditation was functional equivalent of element of greater offense than offense covered by jury’s guilty verdict, and thus Fifth Amendment double jeopardy barred retrial of premeditation issue following Court of Appeal’s ruling that evidence was insufficient to find premeditation on part of attempted murder defendant.  People v. Seel (2004) 21 Cal.Rptr.3d 179, 34 Cal.4th 535, 100 P.3d 870, on remand 2005 WL 361323, unpublished.

Although Apprendi required that premeditation and gang enhancements alleged against attempted murder defendant had to be submitted to jury and proved beyond reasonable doubt, since they increased or potentially increased sentence beyond statutory maximum, Apprendi did not also require that enhancements be considered for all purposes as elements of greater offense, and thus no double jeopardy violation occurred when trial court granted defendant’s motion for new trial as to enhancements only based on its determination that enhancements found by jury had not been proven beyond reasonable doubt.  Porter v. Superior Court (2009) 97 Cal.Rptr.3d 103, 47 Cal.4th 125, 211 P.3d 606.

Trial of defendant, for murder of victim who died after defendant was convicted of attempted murder of same victim, based on same acts, did not violate double jeopardy prohibition.  People v. Davidson (App. 2 Dist. 2008) 70 Cal.Rptr.3d 913, 159 Cal.App.4th 205, review denied, certiorari denied 129 S.Ct. 1044, 555 U.S. 1156, 173 L.Ed.2d 475, habeas corpus denied 2010 WL 429930.

Reinstatement of defendant’s attempted murder conviction, which had been dismissed upon his conviction for murder of same victim based on same acts, did not violate double jeopardy prohibition, since dismissal was not “acquittal” based on insufficiency of evidence, and defendant was not tried twice for attempted murder; trial court stated that it was dismissing because of murder conviction and that if murder conviction were overturned on appeal, original conviction would be revived by operation of law.  People v. Davidson (App. 2 Dist. 2008) 70 Cal.Rptr.3d 913, 159 Cal.App.4th 205, review denied, certiorari denied 129 S.Ct. 1044, 555 U.S. 1156, 173 L.Ed.2d 475, habeas corpus denied 2010 WL 429930.
Back to Top

 

Construction with other laws

Testimony on behalf of detectives by expert, who was called as gang specialist and was regularly employed to give expert opinions in court about gangs, was inadmissible in suspect’s § 1983 action challenging his warrantless arrest for murder and attempted murder charges that were later dismissed; expert failed to provide written expert report to suspect.  Torres v. City of Los Angeles, C.A.9 (Cal.)2008, 548 F.3d 1197, certiorari denied 129 S.Ct. 1995, 173 L.Ed.2d 1086.

Detective who was least involved in investigation of shooting from vehicle, and had been told by another detective that suspect had been positively identified as passenger in vehicle, had objectively reasonable good-faith belief that probable cause existed for arrest of suspect, as required to establish detective’s qualified immunity from suspect’s Fourth Amendment claim based on his warrantless arrest on murder charges that were later dismissed; detective reasonably relied on allegedly false statement by other detective regarding suspect’s identification.  Torres v. City of Los Angeles, C.A.9 (Cal.)2008, 548 F.3d 1197, certiorari denied 129 S.Ct. 1995, 173 L.Ed.2d 1086.

Issue of whether detectives, who arrested suspect without a warrant for murder charges that were later dismissed, were protected by qualified immunity from suspect’s § 1983 action challenging arrest was for jury; material issue of fact existed as to whether reasonable officers would have relied on information in detectives’ possession without further verification.  Torres v. City of Los Angeles, C.A.9 (Cal.)2008, 548 F.3d 1197, certiorari denied 129 S.Ct. 1995, 173 L.Ed.2d 1086.

Based on information detectives had at time of suspect’s arrest, issue of whether detectives had probable cause to believe that suspect was passenger in car from which shots were fired, and had acted in concert with shooter with conscious disregard for human life, was for jury, in suspect’s § 1983 action challenging his warrantless arrest for murder and attempted murder charges that were later dismissed; general description of passenger, impermissibly suggestive photo identification of suspect, and lack of evidence as to passenger’s culpability precluded finding of probable cause as a matter of law.  Torres v. City of Los Angeles, C.A.9 (Cal.)2008, 548 F.3d 1197, certiorari denied 129 S.Ct. 1995, 173 L.Ed.2d 1086.

Absent evidence that detective in charge of investigating gang-related shooting acted as a supervisor, she could not be held liable under § 1983 for any Fourth Amendment violation resulting from suspect’s warrantless arrest by other officers on murder charges that were later dismissed.  Torres v. City of Los Angeles, C.A.9 (Cal.)2008, 548 F.3d 1197, certiorari denied 129 S.Ct. 1995, 173 L.Ed.2d 1086.

Detective who was not present when suspect was arrested, did not instruct other detectives to arrest suspect, and was not consulted by other detectives before arrest lacked “integral participation” in alleged Fourth Amendment violation, for purposes of suspect’s § 1983 action challenging his warrantless arrest for murder and attempted murder charges that were later dismissed.  Torres v. City of Los Angeles, C.A.9 (Cal.)2008, 548 F.3d 1197, certiorari denied 129 S.Ct. 1995, 173 L.Ed.2d 1086.
Back to Top

 

Legislative intent

Purpose of statute providing life sentence for attempted murder under specified circumstances is to impose increased punishment for attempted murder proportionate to culpability of the crime, when murder that was attempted was willful, deliberate, and premeditated.  People v. Lee (2003) 3 Cal.Rptr.3d 402, 31 Cal.4th 613, 74 P.3d 176, rehearing denied, certiorari denied 124 S.Ct. 1680, 541 U.S. 947, 158 L.Ed.2d 374.
Back to Top

 

Nature of offense

Whenever design of a person to commit a crime is clearly shown, slight acts done in furtherance thereof constitute an “attempt.”  People v. Raffington (1950) 220 P.2d 967, 98 Cal.App.2d 455, certiorari denied 71 S.Ct. 292, 340 U.S. 912, 95 L.Ed. 659;  People v. Fiegelman (1939) 91 P.2d 156, 33 Cal.App.2d 100.

When a defendant acts with the requisite specific intent, that is, with the intent to engage in the conduct and/or bring about the consequences proscribed by the attempted crime, and performs an act that goes beyond mere preparation and shows that the perpetrator is putting his or her plan into action, the defendant may be convicted of criminal attempt.  In re Sylvester C. (App. 2 Dist. 2006) 40 Cal.Rptr.3d 461, 137 Cal.App.4th 601.

An attempt to commit a crime consists of a specific intent to commit the crime, and a direct but ineffectual act done towards its commission; commission of an element of the underlying crime other than formation of intent to do it is not necessary.  People v. Herman (App. 1 Dist. 2002) 119 Cal.Rptr.2d 199, 97 Cal.App.4th 1369.

That an invitation to participate in the defendant’s commission of a crime consists only of words does not mean it cannot constitute an “act” toward the completion of the crime for purposes of attempt, particularly where the offense by its nature consists of or requires the requested type of participation.  People v. Herman (App. 1 Dist. 2002) 119 Cal.Rptr.2d 199, 97 Cal.App.4th 1369.

A failed, prevented or intercepted attempt to commit an offense is itself an offense, ordinarily punishable by imprisonment for one-half the term of imprisonment that would be imposed upon conviction of the completed offense.  People v. Toledo (2001) 109 Cal.Rptr.2d 315, 26 Cal.4th 221, 26 P.3d 1051.

When a defendant acts with the requisite specific intent, that is, with the intent to engage in the conduct or bring about the consequences proscribed by an attempted crime, and performs an act that goes beyond mere preparation and shows that the defendant is putting his or her plan into action, the defendant may be convicted of criminal attempt.  People v. Toledo (2001) 109 Cal.Rptr.2d 315, 26 Cal.4th 221, 26 P.3d 1051.

Where a defendant has the requisite criminal intent, but elements of the substantive crime are lacking due to circumstances unknown to him, he can only be convicted of attempt, and not the substantive crime itself.  People v. Rizo (2000) 94 Cal.Rptr.2d 375, 22 Cal.4th 681, 996 P.2d 27.

Attempt to commit a crime consists of a specific intent to commit the crime, and a direct but ineffectual act done towards its commission; commission of an element of the underlying crime other than formation of intent to do it is not necessary.  People v. Jones (App. 2 Dist. 1999) 89 Cal.Rptr.2d 485, 75 Cal.App.4th 616, rehearing denied, review denied.

To amount to an “attempt”, the act or acts must go further than mere preparation ; they must be such as would ordinarily result in the crime except for the interruption.  People v. York (App. 4 Dist. 1998) 71 Cal.Rptr.2d 303, 60 Cal.App.4th 1499, time for grant or denial of review extended.

An innocuous fact cannot propel one’s conduct into the circle of an attempt, which requires a direct, unequivocal action essential to complete the intended crime, short of the ultimate criminal act itself, and passive acquiescence of an ambiguous nature and intent is not unequivocal action.  People v. York (App. 4 Dist. 1998) 71 Cal.Rptr.2d 303, 60 Cal.App.4th 1499, time for grant or denial of review extended.

“Attempt” is direct, but ineffectual, act toward commission of crime.  People v. Hill (App. 6 Dist. 1997) 68 Cal.Rptr.2d 375, 58 Cal.App.4th 1078, rehearing denied, review denied.

Intent must usually be derived from all circumstances of attempt, including defendant’s actions.  People v. Chinchilla (App. 2 Dist. 1997) 60 Cal.Rptr.2d 761, 52 Cal.App.4th 683, review denied.

To establish attempt to commit crime, there must be present specific intent to commit that crime and direct act done toward its commission.  People v. Van Broussard (App. 1 Dist. 1977) 142 Cal.Rptr. 664, 76 Cal.App.3d 193.

An “attempt” is a specific intent to commit a substantive crime plus a direct, unequivocal act toward that end.  People v. Gallegos (App. 4 Dist. 1974) 114 Cal.Rptr. 166, 39 Cal.App.3d 512.

To constitute an attempt, preparation alone is not enough but some appreciable fragment of the crime must have been accomplished and it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter.  People v. Adami (App. 1 Dist. 1973) 111 Cal.Rptr. 544, 36 Cal.App.3d 452.

An attempt to commit a crime may occur when defendant’s criminal goal is frustrated by extraneous circumstances.  People v. Heffington (App. 3 Dist. 1973) 107 Cal.Rptr. 859, 32 Cal.App.3d 1.

After a defendant has done all acts necessary under normal conditions to commit a crime, he is culpable for an attempt if he is unsuccessful because of an extraneous or fortuitous circumstance;  however, an over act, which, when added to requisite intent, is sufficient to bring about a criminal attempt, need not be the last proximate or ultimate step towards commission of the substantive crime.  People v. Staples (App. 2 Dist. 1970) 85 Cal.Rptr. 589, 6 Cal.App.3d 61.

In order to establish an attempt, it must appear that defendant had a specific intent to commit a crime and did a direct, unequivocal act toward that end;  preparation alone is not enough and some appreciable fragment of the crime must have been accomplished.  People v. Bowlby (App. 1955) 135 Cal.App.2d 519, 287 P.2d 547.

“Attempt” to commit a crime is the direct movement toward commission after preparations are made, and must be manifested by acts which would end in consummation of particular offense unless frustrated by extraneous circumstances.  People v. Von Hecht (App. 1955) 133 Cal.App.2d 25, 283 P.2d 764.
Back to Top

 

Included offenses

Allegations of a firearm sentencing enhancement were to be ignored in determining necessarily included offenses to a charge of attempted murder.  People v. Bragg (App. 3 Dist. 2008) 75 Cal.Rptr.3d 200, 161 Cal.App.4th 1385, review denied, post-conviction relief denied 2012 WL 6726679.

After trial court acquitted defendant of attempted murder and all lesser included offenses, it lacked jurisdiction to convict defendant of attempted voluntary manslaughter; once judgment was rendered, trial judge was without authority to change or modify or correct judgment except for purely clerical errors.  People v. Parks (App. 2 Dist. 2004) 12 Cal.Rptr.3d 635, 118 Cal.App.4th 1, as modified, review withdrawn.

Defendant’s conviction for attempted voluntary manslaughter as a lesser included offense of attempted murder required reversal; trial court acquitted defendant of attempted murder, which constituted an acquittal of all lesser included offenses, and defendant never gave his express or implied consent to a conviction on a lesser related offense.  People v. Parks (App. 2 Dist. 2004) 12 Cal.Rptr.3d 635, 118 Cal.App.4th 1, as modified, review withdrawn.

Under either the statutory elements test or the accusatory pleading test, assault with a firearm is not a lesser included offense of attempted murder.  People v. Parks (App. 2 Dist. 2004) 12 Cal.Rptr.3d 635, 118 Cal.App.4th 1, as modified, review withdrawn.
Back to Top

*Attempted Murder Cases and Attempt Crimes Generally (2013). WestLaw Next. Retrieved from http://next.westlaw.com on April 12, 2013.