Attempted Murder Sentence PC 664 – Orange County Criminal Defense Attorneys

Attempted murder sentence: What will be your punishment if convicted of attempted murder?

California Penal Code section 664 explains that the punishment for attempting a crime is usually half of the sentence for committing the substantive crime. This is true for most crimes, but not for murder.

On our Prosecution Page, we explain that the prosecutor must prove that you attempted to kill someone and the degree of murder in order for you to be convicted of attempted murder. A killing is first-degree murder where it is intentional, deliberate, and premeditated. All other intentional killing, unless mitigated to manslaughter, is second-degree murder.

Attempted murder sentence for attempted first-degree and second-degree murder

If you are found guilty of attempted first-degree murder or attempted second-degree murder, you will be sentenced to prison.

The consequences of being convicted of attempted murder are life altering. Speak to us today. 1(877) 4-NO-JAIL.

Under Penal Code 664, if the prosecutor proves that you attempted first-degree murder, your punishment will be imprisonment in state prison for life with the possibility of parole. In order to sentence you to life with the possibility of parole, the prosecutor must prove that the killing would have been a first-degree murder if it were completed. You will not be eligible for parole until you have served at least 85% of the 7 year minimum term in state prison

Under section 664, if the prosecutor proves that you attempted second-degree murder, then you will be punished by imprisonment in state prison for five, seven, or nine years.

Sentence for attempted voluntary manslaughter


If the prosecutor proves that you attempted voluntary manslaughter, you face half of the sentence that you would have faced for a voluntary manslaughter conviction. Because completed acts of voluntary manslaughter are punishable by imprisonment in the state prison for three, six, or eleven years, your sentence will be one and one-half, three, or five and one-half years in state prison for attempted voluntary manslaughter.

For your attempted second-degree murder and attempted voluntary manslaughter convictions, the judge may grant probation instead of a prison sentence. The California Rules of Court Rule 4.414 describes the criteria that the judge must consider when determining whether to grant probation or impose a prison sentence.

If you are sentenced to prison, the judge has discretion to determine whether to impose the upper, middle, or lower sentence on you. When determining which sentence to impose, the judge must follow California Rules of Court Rule 4.421 and 4.423. These sentencing rules are provided below. A list of all of the California Rules of Court sentencing rules is available here.

Additional punishment if convicted of attempted murder

Along with the prison terms described above, California laws subjects you to the following additional penalties if you are convicted of attempted murder:

  • Penal Code 12022.53, California’s gun enhancement laws will result in an additional sentence for attempted murder involving a firearm. If the alleged attempted murder involved a firearm, you face the following additional sentences:
    1. 10 additional years in state prison for using a gun, but not firing it;
    2. 20 additional years in state prison for firing a gun; and
    3. 25 years to life imprisonment if you caused great bodily injury to someone by using the gun.
    4. Under Penal Code section 667.5, an attempted murder conviction is a strike on your record. Under California’s Three-Strikes Law, attempted murder is a violent felony and counts either as a qualifying strike or the third-strike that carries a 25 years to life in prison sentence.
    5. Under Penal Code section 186.22, California’s criminal street gang enhancement, subjects you to an additional 15 years-to-life in prison sentence. The prosecutor must show that the attempted murder was in furtherance of gang activity for Penal Code section 186.22 to apply.
    6. Penal Code section 672 also subjects you to a $10,000 fine for an attempted murder conviction.
    7. Under Penal Code section 12021, you will lose your right to own or possess a firearm if convicted of attempted murder.

     

    Let us show you how we protect our own. We can help you today

    If you or someone you loved one faces attempted murder charges, contact an attorney at Wallin & Klarich today. With offices in Orange County, Los Angeles, Torrance, Sherman Oaks, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, the attorneys at Wallin & Klarich have over 30 years of experience successfully defending clients accused of attempted murder. We will aggressively seek every possibility to reduce your punishment.

    Call us today at 1(877) 4-NO-JAIL or (877) 466-5245.

    We will get through this together.

    With over 30 years of experience aggressively fighting for our clients facing murder and attempted murder charges, we will be with you when you call.

    Speak to our experienced attempted murder defense attorneys today. 1(877) 4-NO-JAIL.

     

    Specific California Rules of Court for Attempted Murder Sentencing

    Rule 4.414.  Criteria affecting probation


    Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant.

    (a) Facts relating to the crime

    Facts relating to the crime include:

    (1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime;

    (2) Whether the defendant was armed with or used a weapon;

    (3) The vulnerability of the victim;

    (4) Whether the defendant inflicted physical or emotional injury;

    (5) The degree of monetary loss to the victim;

    (6) Whether the defendant was an active or a passive participant;

    (7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur;

    (8) Whether the manner in which the crime was carried out wwwnstrated criminal sophistication or professionalism on the part of the defendant; and

    (9) Whether the defendant took advantage of a position of trust or confidence to commit the crime.

    (Subd (a) amended effective January 1, 2007; previously amended effective January 1, 1991.)

    (b) Facts relating to the defendant

    Facts relating to the defendant include:

    (1) Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct;

    (2) Prior performance on probation or parole and present probation or parole status;

    (3) Willingness to comply with the terms of probation;

    (4) Ability to comply with reasonable terms of probation as indicated by the defendant’s age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors;

    (5) The likely effect of imprisonment on the defendant and his or her dependents;

    (6) The adverse collateral consequences on the defendant’s life resulting from the felony conviction;

    (7) Whether the defendant is remorseful; and

    (8) The likelihood that if not imprisoned the defendant will be a danger to others.

    (Subd (b) amended effective January 1, 2007; previously amended effective January 1, 1991, and July 1, 2003.)

    Rule 4.414 amended effective January 1, 2007; adopted as rule 414 effective July 1, 1977; previously amended effective January 1, 1991; previously renumbered effective January 1, 2001; previously amended effective July 1, 2003.

    Advisory Committee Comment

    The sentencing judge’s discretion to grant probation is unaffected by the Uniform Determinate Sentencing Act (§ 1170(a)(3)).

    The decision whether to grant probation is normally based on an overall evaluation of the likelihood that the defendant will live successfully in the general community. Each criterion points to evidence that the likelihood of success is great or small. A single criterion will rarely be determinative; in most cases, the sentencing judge will have to balance favorable and unfavorable facts.

    Under criteria (b)(3) and (b)(4), it is appropriate to consider the defendant’s expressions of willingness to comply and his or her apparent sincerity, and whether the defendant’s home and work environment and primary associates will be supportive of the defendant’s efforts to comply with the terms of probation, among other factors.
    Back to Top


    Rule 4.421.  Circumstances in aggravation


    Circumstances in aggravation include factors relating to the crime and factors relating to the defendant.

    (a) Factors relating to the crime

    Factors relating to the crime, whether or not charged or chargeable as enhancements include that:

    (1) The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness;

    (2) The defendant was armed with or used a weapon at the time of the commission of the crime;

    (3) The victim was particularly vulnerable;

    (4) The defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission;

    (5) The defendant induced a minor to commit or assist in the commission of the crime;

    (6) The defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process;

    (7) The defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed;

    (8) The manner in which the crime was carried out indicates planning, sophistication, or professionalism;

    (9) The crime involved an attempted or actual taking or damage of great monetary value;

    (10) The crime involved a large quantity of contraband; and

    (11) The defendant took advantage of a position of trust or confidence to commit the offense.

    (12) The crime constitutes a hate crime under section 422.55 and:

    (A) No hate crime enhancements under section 422.75 are imposed; and

    (B) The crime is not subject to sentencing under section 1170.8.

    (Subd (a) amended effective May 23, 2007; previously amended effective January 1, 1991, and January 1, 2007.)

    (b) Factors relating to the defendant

    Factors relating to the defendant include that:

    (1) The defendant has engaged in violent conduct that indicates a serious danger to society;

    (2) The defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness;

    (3) The defendant has served a prior prison term;

    (4) The defendant was on probation or parole when the crime was committed; and

    (5) The defendant’s prior performance on probation or parole was unsatisfactory.

    (Subd (b) amended effective May 23, 2007; previously amended effective January 1, 1991, and January 1, 2007.)

    (c) Other factors

    Any other factors statutorily declared to be circumstances in aggravation.

    (Subd (c) amended effective May 23, 2007; adopted effective January 1, 1991; previously amended effective January 1, 2007.)

    Rule 4.421 amended effective May 23, 2007; adopted as rule 421 effective July 1, 1977; previously renumbered effective January 1, 2001; previously amended effective January 1, 1991, and January 1, 2007.

    Advisory Committee Comment

    Circumstances in aggravation may justify imposition of the upper of three possible prison terms. (Section 1170(b).)

    The list of circumstances in aggravation includes some facts that, if charged and found, may be used to enhance the sentence. The rule does not deal with the dual use of the facts; the statutory prohibition against dual use is included, in part, in rule 4.420.

    Conversely, such facts as infliction of bodily harm, being armed with or using a weapon, and a taking or loss of great value may be circumstances in aggravation even if not meeting the statutory definitions for enhancements.

    Facts concerning the defendant’s prior record and personal history may be considered. By providing that the defendant’s prior record and simultaneous convictions of other offenses may not be used both for enhancement and in aggravation, section 1170(b) indicates that these and other facts extrinsic to the commission of the crime may be considered in aggravation in appropriate cases. This resolves whatever ambiguity may arise from the phrase “circumstances in aggravation . . . of the crime.” The phrase “circumstances in aggravation or mitigation of the crime” necessarily alludes to extrinsic facts.

    Refusal to consider the personal characteristics of the defendant in imposing sentence would also raise serious constitutional questions. The California Supreme Court has held that sentencing decisions must take into account “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.” In re Rodriguez (1975) 14 Cal.3d 639, 654, quoting In re Lynch (1972) 8 Cal.3d 410, 425. In In re Rodriguez the court released petitioner from further incarceration because “[I]t appears that neither the circumstances of his offense nor his personal characteristics establish a danger to society sufficient to justify such a prolonged period of imprisonment.” (Id. at 655.) (Footnote omitted, emphasis added.) “For the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” (Pennsylvania v. Ashe (1937) 302 U.S. 51, 55, quoted with approval in Gregg v. Georgia (1976) 428 U.S. 153, 189.)

    The scope of “circumstances in aggravation or mitigation” under section 1170(b) is, therefore, coextensive with the scope of inquiry under the similar phrase in section 1203.

    The 1990 amendments to this rule and the comment included the deletion of most section numbers. These changes recognize changing statutory section numbers and the fact that there are numerous additional code sections related to the rule, including numerous statutory enhancements enacted since the rule was originally adopted.

    Former subdivision (a)(4), concerning multiple victims, was deleted to avoid confusion; cases in which that possible circumstance in aggravation was relied on were frequently reversed on appeal because there was only a single victim in a particular count.

    Old age or youth of the victim may be circumstances in aggravation; see section 1170.85(b). Other statutory circumstances in aggravation are listed, for example, in sections 1170.7, 1170.71, 1170.75, 1170.8, and 1170.85.
    Back to Top


    Rule 4.423.  Circumstances in mitigation


    Circumstances in mitigation include factors relating to the crime and factors relating to the defendant.

    (a) Factors relating to the crime

    Factors relating to the crime include that:

    (1) The defendant was a passive participant or played a minor role in the crime;

    (2) The victim was an initiator of, willing participant in, or aggressor or provoker of the incident;

    (3) The crime was committed because of an unusual circumstance, such as great provocation, that is unlikely to recur;

    (4) The defendant participated in the crime under circumstances of coercion or duress, or the criminal conduct was partially excusable for some other reason not amounting to a defense;

    (5) The defendant, with no apparent predisposition to do so, was induced by others to participate in the crime;

    (6) The defendant exercised caution to avoid harm to persons or damage to property, or the amounts of money or property taken were deliberately small, or no harm was done or threatened against the victim;

    (7) The defendant believed that he or she had a claim or right to the property taken, or for other reasons mistakenly believed that the conduct was legal;

    (8) The defendant was motivated by a desire to provide necessities for his or her family or self; and

    (9) The defendant suffered from repeated or continuous physical, sexual, or psychological abuse inflicted by the victim of the crime, and the victim of the crime, who inflicted the abuse, was the defendant’s spouse, intimate cohabitant, or parent of the defendant’s child; and the abuse does not amount to a defense.

    (Subd (a) amended effective May 23, 2007; previously amended effective January 1, 1991, July 1, 1993, and January 1, 2007.)

    (b) Factors relating to the defendant

    Factors relating to the defendant include that:

    (1) The defendant has no prior record, or has an insignificant record of criminal conduct, considering the recency and frequency of prior crimes;

    (2) The defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime;

    (3) The defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process;

    (4) The defendant is ineligible for probation and but for that ineligibility would have been granted probation;

    (5) The defendant made restitution to the victim; and

    (6) The defendant’s prior performance on probation or parole was satisfactory.

    (Subd (b) amended effective May 23, 2007; previously amended effective January 1, 1991, and January 1, 2007.)

    Rule 4.423 amended effective May 23, 2007; adopted as rule 423 effective July 1, 1977; previously renumbered effective January 1, 2001; previously amended effective January 1, 1991, July 1, 1993, and January 1, 2007.

    Advisory Committee Comment

    See comment to rule 4.421.

    This rule applies both to mitigation for purposes of motions under section 1170(b) and to circumstances in mitigation justifying the court in striking the additional punishment provided for an enhancement.

    Some listed circumstances can never apply to certain enhancements; for example, “the amounts taken were deliberately small” can never apply to an excessive taking under section 12022.6, and “no harm was done” can never apply to infliction of great bodily injury under section 12022.7. In any case, only the facts present may be considered for their possible effect in mitigation.

    See also rule 4.409; only relevant criteria need be considered.

    Since only the fact of restitution is considered relevant to mitigation, no reference to the defendant’s financial ability is needed. The omission of a comparable factor from rule 4.421 as a circumstance in aggravation is deliberate.

Back to Top

*Specific California Rules of Court for Attempted Murder Sentencing. (2013). WestLaw Next. Retrieved from http://next.westlaw.com on April 12, 2013.

Was This Article Helpful? Please Share it.

Contact Us

  1. (required)
  2. (valid email required)
  3. Captcha
 

cforms contact form by delicious:days

Case Results