Attempted Murder Prosecution | Orange County Attempted Murder Lawyer

Attempted Murder Prosecution PC 664 – Orange County Attempted Murder Lawyer

How can I be found guilty of attempted murder in California?

In California, attempted murder is a serious charge that can result in a life sentence in state prison. Fortunately, the Orange County attempted murder lawyers at Wallin & Klarich are here to help. We have over 40 years of experience successfully defending people accused of attempted murder. We can help you fight for your freedom.

Under California Penal Code section 664, you can be found guilty for merely attempting a crime. Attempting a crime is a crime in and of itself. It is irrelevant that you did not complete the substantive crime.

What is murder?

If you read the Murder Practice Area page on this site, you know the basics of homicide charges in California. To recap, there are five types of homicide:

First-degree murder is the intentional, premeditated, and deliberate killing of another person with malice. California Penal Code section 189.
Second-degree murder is the intentional killing of another person with malice, but not covered by Penal Code section 189.
Voluntary manslaughter is the killing of another without malice, usually upon a sudden quarrel or a heat of passion. California Penal Code 192.
Involuntary manslaughter is the unintentional killing of another while behaving negligently or engaging in a crime not rising to the level of a felony. California Penal Code 192.
Vehicular manslaughter is the unintentional killing of another while driving a vehicle and engaging in an unlawful act not arising to a felony, with gross negligence; or driving a vehicle and engaging in a lawful act which might produce death, in a lawful manner, with gross negligence. California Penal Code 192.

We cover the meaning of malice at length on our Murder Practice Page. In general, an act is done with malice when there appears to be no excuse, reason, or justification for the action—that only a malicious person would have done it.

Our experienced Orange County Attempted Murder Lawyers explain what the prosecution needs to prove to find you guilty of attempted murder in Orange County, California. — To find you guilty of attempted murder in California, the prosecution must prove you took one step toward killing someone, and you intended to kill the person.

What does it mean to attempt murder?

To attempt a murder means that you took a direct step in accomplishing the killing of another person and specifically intended to kill another person. This means that you cannot attempt an unintentional crime, such as attempted involuntary manslaughter. If you did not intend to murder another person, then you cannot be convicted of attempted murder.

What will the prosecutor need to show to prove me guilty of attempted murder?

To prove that you are guilty of attempted murder, the prosecutor must prove that:

You took at least one direct step toward killing another person (or a fetus); AND
You intended to kill that person.

For your benefit, we have attached the Penal Code sections and jury instructions for attempted murder below. For information on general jury instructions given in every criminal case, please Click Here.

Taking one step toward killing another person

When it comes to murder, a direct step is an action that sets a plan to kill another person in motion. It is more than mere planning or preparation—it is an action taken to further that plan. It indicates a definite and unambiguous intent to kill.

How can the prosecution prove “intent to kill?”

As for the second element, the prosecutor must prove that you intended to kill another person. In most cases, the prosecutor will try to prove that you specifically intended to kill a particular person, but that is not always the case. Attempted murder convictions have been found for acts that endanger a group of people, but not a specific person; such as a drive-by shooting, where the shooter fires a gun at a group of people intending to kill the entire group, but not aiming at a specific person.

Attempted murder is completed as soon as you commit the deliberate step. Even if you abandon your plan to kill, you can be found guilty if you already took the deliberate step towards killing another person. As you can see, most of the legal argument revolves around what was the deliberate step towards killing another person.

After proving that you intended to kill and you took a direct step to do so, the prosecutor must prove the degree of murder you attempted. The prosecutor can charge you with attempted first-degree murder, attempted second-degree murder, or attempted voluntary manslaughter.

Kill Zone theory

A defendant can be convicted of attempted murder for anyone who is in the zone of harm even if that person was not the specific target under a ‘kill zone’ theory of attempted murder. For instance, if the defendant places a bomb on an airplane intending to kill one specific passenger, but potentially endangering everyone on the plane he could be prosecuted for the attempted murder of other passengers on the plane under a kill zone theory.

The circumstances must support that a potential victim was in the zone of potential harm for a kill zone theory of prosecution. In a situation where the defendant fired one single shot at a rival gang member in a crowded area, it would be difficult for the prosecution to convict the defendant for the attempted murder of other people at the party under a kill zone theory.

Let us show you how we protect our own.

With over 40 years of experience defending clients facing attempted murder charges in California, we will be with you when you call. — You don’t have to face this stressful process alone. We will get through this together. 1(877) 4-NO-JAIL (1-877-466-5245).

The team of experienced Orange County attempted murder lawyers at Wallin & Klarich can fight the charges against you to help keep you out of jail. Attempted murder is a serious charge and you need an expert in your corner. With offices in Orange County, Los Angeles, Torrance, Sherman Oaks, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, Wallin & Klarich has over 40 years of experience successfully defending clients facing attempted murder accusations. Let us use our experience to defend you too.

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

We will get through this together.

California Law Pertaining to Attempted Murder

PC 21a. Attempt to commit crime; specific intent and ineffectual act.
PC 664. Attempts; punishment.
PC 187. Murder defined.
PC 188. Malice, express malice, and implied malice defined.
PC 189. Murder; degrees.
PC 192. Manslaughter; voluntary, involuntary, and vehicular.

Penal Code § 21a. Attempt to commit crime; specific intent and ineffectual act.

An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.

Penal Code § 664. Attempts; punishment.

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

(a) If the crime attempted is punishable by imprisonment in the state prison, or by imprisonment pursuant to subdivision (h) of Section 1170, the person guilty of the attempt shall be punished by imprisonment in the state prison or in a county jail, respectively, for one-half the term of imprisonment prescribed upon a conviction of the offense attempted. However, if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. If the crime attempted is any other one in which the maximum sentence is life imprisonment or death, the person guilty of the attempt shall be punished by imprisonment in the state prison for five, seven, or nine years. The additional term provided in this section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact.

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

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

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

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

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

(f) Notwithstanding subdivision (a), if the elements of subdivision (e) are proven in an attempted murder and it is also charged and admitted or found to be true by the trier of fact that the attempted murder was willful, deliberate, and premeditated, the person guilty of the attempt shall be punished by imprisonment in the state prison for 15 years to life. Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not apply to reduce this minimum term of 15 years in state prison, and the person shall not be released prior to serving 15 years’ confinement.
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Penal Code § 187. Murder defined.

(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.

(b) This section shall not apply to any person who commits an act that results in the death of a fetus if any of the following apply:

(1) The act complied with the Therapeutic Abortion Act, Article 2 (commencing with Section 123400) of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code.

(2) The act was committed by a holder of a physician’s and surgeon’s certificate, as defined in the Business and Professions Code, in a case where, to a medical certainty, the result of childbirth would be death of the mother of the fetus or where her death from childbirth, although not medically certain, would be substantially certain or more likely than not.

(3) The act was solicited, aided, abetted, or consented to by the mother of the fetus.

(c) Subdivision (b) shall not be construed to prohibit the prosecution of any person under any other provision of law.
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Penal Code § 188. Malice, express malice, and implied malice defined.

Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow-creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice.
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Penal Code § 189. Murder; degrees.

All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.

As used in this section, “destructive device” means any destructive device as defined in Section 16460, and “explosive” means any explosive as defined in Section 12000 of the Health and Safety Code.

As used in this section, “weapon of mass destruction” means any item defined in Section 11417.

To prove the killing was “deliberate and premeditated,” it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.
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Penal Code § 192. Manslaughter; voluntary, involuntary, and vehicular.

Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:

(a) Voluntary–upon a sudden quarrel or heat of passion.

(b) Involuntary–in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.

(1) Except as provided in subdivision (a) of Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.

(2) Driving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence.

(3) Driving a vehicle in connection with a violation of paragraph (3) of subdivision (a) of Section 550, where the vehicular collision or vehicular accident was knowingly caused for financial gain and proximately resulted in the death of any person. This provision shall not be construed to prevent prosecution of a defendant for the crime of murder.

This section shall not be construed as making any homicide in the driving of a vehicle punishable that is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner.

“Gross negligence,” as used in this section, shall not be construed as prohibiting or precluding a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice, consistent with the holding of the California Supreme Court in People v. Watson, 30 Cal. 3d 290.1.
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California Jury Instructions Relating to Attempted Murder.

CALCRIM 600. Attempted Murder (PC 21a, 663, 664).
CALCRIM 601. Attempted Murder: Deliberation and Premeditation (PC 21a, 189, 664(a)).
CALCRIM 602. Attempted Murder: Peace Officer, Firefighter, Custodial Officer, or Custody Assistant (PC 21a, 664(e)).
CALCRIM 603. Attempted Voluntary Manslaughter: Heat of Passion–Lesser Included Offense (PC 21a, 192, 664).
CALCRIM 604. Attempted Voluntary Manslaughter: Imperfect Self-Defense–Lesser Included Offense (PC 21a, 192, 664).

Judicial Council of California Criminal Jury Instruction 600 Attempted Murder (Pen. Code, §§ 21a, 663, 664).

The defendant is charged [in Count ] with attempted murder.

To prove that the defendant is guilty of attempted murder, the People must prove that:

1 The defendant took at least one direct but ineffective step toward killing (another person/ [or] a fetus); AND

2 The defendant intended to kill (that/a) (person/ [or] fetus).

A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt.

[A person who attempts to commit murder is guilty of attempted murder even if, after taking a direct step toward killing, he or she abandons further efforts to complete the crime, or his or her attempt fails or is interrupted by someone or something beyond his or her control. On the other hand, if a person freely and voluntarily abandons his or her plans before taking a direct step toward committing the murder, then that person is not guilty of attempted murder.]

[A person may intend to kill a specific victim or victims and at the same time intend to kill everyone in a particular zone of harm or “kill zone.” In order to convict the defendant of the attempted murder of <insert name or description of victim charged in attempted murder count[s] on concurrent-intent theory>, the People must prove that the defendant not only intended to kill <insert name of primary target alleged> but also either intended to kill <insert name or description of victim charged in attempted murder count[s] on concurrent-intent theory>, or intended to kill everyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill <insert name or description of victim charged in attempted murder count[s] on concurrent-intent theory> or intended to kill <insert name or description of primary target alleged> by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of <insert name or description of victim charged in attempted murder count[s] on concurrent-intent theory>.]

[The defendant may be guilty of attempted murder even if you conclude that murder was actually completed.]

[A fetus is an unborn human being that has progressed beyond the embryonic stage after major structures have been outlined, which occurs at seven to eight weeks of development.]

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct on the elements of the crime of attempted murder when charged, or if not charged, when the evidence raises a question whether all the elements of the charged offense are present. (See People v. Breverman (1998) 19 Cal.4th 142, 154 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [discussing duty to instruct on lesser included offenses in homicide generally].)

The second bracketed paragraph is provided for cases in which the prosecution theory is that the defendant created a “kill zone,” harboring the specific and concurrent intent to kill others in the zone. (People v. Bland (2002) 28 Cal.4th 313, 331 [121 Cal.Rptr.2d 546, 48 P.3d 1107].) “The conclusion that transferred intent does not apply to attempted murder still permits a person who shoots at a group of people to be punished for the actions towards everyone in the group even if that person primarily targeted only one of them.” (Id. at p. 329.)

The Bland court stated that a special instruction on this issue was not required. (Id. at p. 331, fn.6.) The bracketed language is provided for the court to use at its discretion.

Give the next-to-last bracketed paragraph when the defendant has been charged only with attempt to commit murder, but the evidence at trial reveals that the murder was actually completed. (See Pen. Code, § 663.)

Related Instructions

CALCRIM Nos. 3470– 3477, Defense Instructions.

CALCRIM No. 601, Attempted Murder: Deliberation and Premeditation.

CALCRIM No. 602, Attempted Murder: Peace Officer, Firefighter, Custodial Officer, or Custody Assistant.

CALCRIM No. 603, Attempted Voluntary Manslaughter: Heat of Passion—Lesser Included Offense.

CALCRIM No. 604, Attempted Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense.

AUTHORITY

• Attempt Defined. Pen. Code, §§ 21a, 663, 664.

• Murder Defined. Pen. Code, § 187.

• Specific Intent to Kill Required. People v. Guerra (1985) 40 Cal.3d 377, 386 [220 Cal.Rptr. 374, 708 P.2d 1252].

• Fetus Defined. People v. Davis (1994) 7 Cal.4th 797, 814–815 [30 Cal.Rptr.2d 50, 872 P.2d 591]; People v. Taylor (2004) 32 Cal.4th 863, 867 [11 Cal.Rptr.3d 510, 86 P.3d 881].

• Kill Zone Explained. People v. Stone (2009) 46 Cal.4th 131, 137–138 [92 Cal.Rptr.3d 362, 205 P.3d 272].

• Killer Need Not Be Aware of Other Victims in Kill Zone. People v. Adams (2008) 169 Cal.App.4th 1009, 1023 [86 Cal.Rptr.3d 915].

• This Instruction Correctly States the Law. People v. Lawrence (2009) 177 Cal.App.4th 547, 556-557 [99 Cal.Rptr.3d 324].

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, §§ 53–67.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140, Challenges to Crimes, § 140.02[3]; Ch. 141, Conspiracy, Solicitation, and Attempt, § 141.20; Ch. 142, Crimes Against the Person, § 142.01[3][e] (Matthew Bender).

LESSER INCLUDED OFFENSES

Attempted voluntary manslaughter is a lesser included offense. (People v. Van Ronk (1985) 171 Cal.App.3d 818, 824–825 [217 Cal.Rptr. 581]; People v. Williams (1980) 102 Cal.App.3d 1018, 1024–1026 [162 Cal.Rptr. 748].)

RELATED ISSUES

Specific Intent Required

“[T]he crime of attempted murder requires a specific intent to kill ….” (People v. Guerra (1985) 40 Cal.3d 377, 386 [220 Cal.Rptr. 374, 708 P.2d 1252].)

In instructing upon the crime of attempt to commit murder, there should never be any reference whatsoever to implied malice. Nothing less than a specific intent to kill must be found before a defendant can be convicted of attempt to commit murder, and the instructions in this respect should be lean and unequivocal in explaining to the jury that only a specific intent to kill will do.

(People v. Santascoy (1984) 153 Cal.App.3d 909, 918 [200 Cal.Rptr. 709].)

Solicitation

Attempted solicitation of murder is a crime. (People v. Saephanh (2000) 80 Cal.App.4th 451, 460 [94 Cal.Rptr.2d 910].)

Single Bullet, Two Victims

A shooter who fires a single bullet at two victims who are both in his line of fire can be found to have acted with express malice toward both victims. (People v. Smith (2005) 37 Cal.4th 733, 744 [37 Cal.Rptr.3d 163, 124 P.3d 730].)

No Attempted Involuntary Manslaughter

“[T]here is no such crime as attempted involuntary manslaughter.” (People v. Johnson (1996) 51 Cal.App.4th 1329, 1332 [59 Cal.Rptr.2d 798].)

Transferred and Concurrent Intent

“[T]he doctrine of transferred intent does not apply to attempted murder.” (People v. Bland (2002) 28 Cal.4th 313, 331 [121 Cal.Rptr.2d 546, 48 P.3d 1107].) “[T]he defendant may be convicted of the attempted murders of any[one] within the kill zone, although on a concurrent, not transferred, intent theory.” (Id.)
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Judicial Council of California Criminal Jury Instruction 601 Attempted Murder: Deliberation and Premeditation (Pen. Code, §§ 21a, 189, 664(a)).

If you find the defendant guilty of attempted murder [under Count ], you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation.

(The defendant/<insert name or description of principal if not defendant>) acted willfully if (he/she) intended to kill when (he/she) acted. (The defendant/<insert name or description of principal if not defendant>) deliberated if (he/she) carefully weighed the considerations for and against (his/her) choice and, knowing the consequences, decided to kill. (The defendant/<insert name or description of principal if not defendant>) premeditated if (he/she) decided to kill before acting.

[The attempted murder was done willfully and with deliberation and premeditation if either the defendant or <insert name or description of principal> or both of them acted with that state of mind.]

The length of time the person spends considering whether to kill does not alone determine whether the attempted killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time.

The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find this allegation has not been proved.

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the sentencing enhancement. (Apprendi v. New Jersey (2000) 530 U.S. 466, 475–476, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435]; Pen. Code, § 664(a).) Give this instruction when an enhancement for deliberation and premeditation is charged.

This instruction must be given with CALCRIM No. 600, Attempted Murder.

AUTHORITY

• Willful, Deliberate, and Premeditated Murder. Pen. Code, § 189.

• Willful, Deliberate, and Premeditated Attempted Murder. Pen. Code, § 664(a).

• Premeditation and Deliberation Defined. People v. Anderson (1968) 70 Cal.2d 15, 26–27 [73 Cal.Rptr. 550, 447 P.2d 942]; People v. Bender (1945) 27 Cal.2d 164, 183–184 [163 P.2d 8]; People v. Daugherty (1953) 40 Cal.2d 876, 901–902 [256 P.2d 911].

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, §§ 53–67.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140, Challenges to Crimes, § 140.02[3]; Ch. 141, Conspiracy, Solicitation, and Attempt, §§ 141.20[2], 141.21; Ch. 142, Crimes Against the Person, § 142.01[1][e], [g], [3][e] (Matthew Bender).

RELATED ISSUES

Accomplice Liability

An aider and abettor is subject to this penalty provision where the principal attempted a willful, deliberate, and premeditated murder even though the accomplice did not personally deliberate or premeditate. (People v. Lee (2003) 31 Cal.4th 613, 622–623 [3 Cal.Rptr.3d 402, 74 P.3d 176]; People v. Laster (1997) 52 Cal.App.4th 1450, 1473 [61 Cal.Rptr.2d 680].) The accomplice must still share the intent to kill. (People v. Lee, supra, 31 Cal.4th at pp. 623–624.)

See the Related Issues Section to CALCRIM No. 521, Murder: Degrees for discussion of “deliberate and premeditated.”
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Judicial Council of California Criminal Jury Instruction 602 Attempted Murder: Peace Officer, Firefighter, Custodial Officer, or Custody Assistant (Pen. Code, §§ 21a, 664(e)).

If you find the defendant guilty of attempted murder [under Count ], you must then decide whether the People have proved the additional allegation that (he/she) attempted to murder a (peace officer/firefighter/custodial officer).

To prove this allegation, the People must prove that:

1 <insert officer’s name, excluding title> was a (peace officer/firefighter/custodial officer/custody assistant/nonsworn uniformed employee of a sheriff’s department) lawfully performing (his/her) duties as a (peace officer/firefighter/custodial officer/custody assistant/nonsworn uniformed employee of a sheriff’s department);

AND

2 When the defendant attempted the murder, the defendant knew, or reasonably should have known, that <insert officer’s name, excluding title> was a (peace officer/firefighter/custodial officer/custody assistant/nonsworn uniformed employee of a sheriff’s department) who was performing (his/her) duties.

[A person who is employed as a police officer by <insert name of agency that employs police officer> is a peace officer.]

[A person employed by <insert name of agency that employs peace officer, e.g., “the Department of Fish and Game”> is a peace officer if <insert description of facts necessary to make employee a peace officer, e.g, “designated by the director of the agency as a peace officer”>.]

[The duties of (a/an) <insert title of peace officer, firefighter, custodial officer, custody assistant or nonsworn uniformed employee of a sheriff’s department> include <insert job duties>.]

[A firefighter includes anyone who is an officer, employee, or member of a (governmentally operated (fire department/fire protection or firefighting agency) in this state/federal fire department/federal fire protection or firefighting agency), whether or not he or she is paid for his or her services.]

[A custodial officer is someone who works for a law enforcement agency of a city or county, is responsible for maintaining custody of prisoners, and helps operate a local detention facility. [[A/An] (county jail/city jail/<insert other detention facility>) is a local detention facility.] [A custodial officer is not a peace officer.]]

[A person designated as (a/an) (correctional officer/jailer/<insert similar title>) employed by the county of <insert name of county designated by Penal Code section 831.5(a)> is a custodial officer.]

[A custody assistant is a person who is a full-time, non-peace officer employee of the county sheriff’s department who assists peace officer personnel in maintaining order and security in a custody detention, court detention, or station jail facility of the sheriff’s department.]

[For the purpose of this instruction, a nonsworn uniformed employee of a sheriff’s department is someone whose job includes the care or control of inmates in a detention facility. [A prison, jail, camp, or other correctional facility used for the confinement of adults or both adults and minors/ <insert other applicable definition from Penal Code section 289.6(c)>is a detention facility for the purpose of this definition.]]

<When lawful performance is an issue, give the following paragraph and Instruction 2670, Lawful Performance: Peace Officer.>

[A peace officer is not lawfully performing his or her duties if he or she is (unlawfully arresting or detaining someone/ [or] using unreasonable or excessive force in his or her duties). Instruction 2670 explains (when an arrest or detention is unlawful/ [and] when force is unreasonable or excessive).]

<When lawful performance is an issue, give the following paragraph and Instruction 2671, Lawful Performance: Custodial Officer.>

[A custodial officer is not lawfully performing his or her duties if he or she is using unreasonable or excessive force in his or her duties. Instruction 2671 explains when force is unreasonable or excessive.]

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the sentencing enhancement. (Apprendi v. New Jersey (2000) 530 U.S. 466, 475–476, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].)

In order to be “engaged in the performance of his or her duties,” a peace officer or custodial officer must be acting lawfully. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217 [275 Cal.Rptr. 729, 800 P.2d 1159].) “[D]isputed facts bearing on the issue of legal cause must be submitted to the jury considering an engaged-in-duty element.” (Ibid.) If excessive force is an issue, the court has a sua sponte duty to instruct the jury that the defendant is not guilty of the offense charged, or any lesser included offense in which lawful performance is an element, if the defendant used reasonable force in response to excessive force. (People v. Olguin (1981) 119 Cal.App.3d 39, 46–47 [173 Cal.Rptr. 663].) On request, the court must instruct that the prosecution has the burden of proving the lawfulness of the arrest beyond a reasonable doubt. (People v. Castain (1981) 122 Cal.App.3d 138, 145 [175 Cal.Rptr. 651].) If lawful performance of a peace officer is an issue, give the bracketed paragraph on lawful performance of a peace officer and the appropriate portions of CALCRIM No. 2670, Lawful Performance: Peace Officer. If lawful performance of a custodial officer is an issue, give the bracketed paragraph on lawful performance of a custodial officer and the appropriate portions of CALCRIM No. 2671, Lawful Performance: Custodial Officer.

The jury must determine whether the alleged victim is a peace officer. (People v. Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The court may instruct the jury on the appropriate definition of “peace officer” from the statute (e.g., “a Garden Grove Regular Police Officer and a Garden Grove Reserve Police Officer are peace officers”). (Ibid.) However, the court may not instruct the jury that the alleged victim was a peace officer as a matter of law (e.g., “Officer Reed was a peace officer”). (Ibid.) If the alleged victim is a police officer, give the bracketed sentence that begins with “A person employed as a police officer.” If the alleged victim is another type of peace officer, give the bracketed sentence that begins with “A person employed by.”

Penal Code section 664(e) refers to the definition of peace officer used in Penal Code section 190.2(a)(7), which defines “peace officer” as “defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12.”

Penal Code section 664(e) refers to the definition of firefighter used in Penal Code section 190.2(a)(9), which defines “firefighter” “as defined in Section 245.1.”

The court may give the bracketed sentence that begins, “The duties of (a/an) <insert title ….> include,” on request. The court may insert a description of the officer’s duties such as “the correct service of a facially valid search … warrant.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1222 [275 Cal.Rptr. 729, 800 P.2d 1159].)

In the bracketed definition of “local detention facility,” do not insert the name of a specific detention facility. Instead, insert a description of the type of detention facility at issue in the case. (See People v. Flood (1998) 18 Cal.4th 470, 482 [76 Cal.Rptr.2d 180, 957 P.2d 869] [jury must determine if alleged victim is a peace officer]; see Penal Code section 6031.4 [defining local detention facility].)

AUTHORITY

• Attempted Murder on a Peace Officer or Firefighter. Pen. Code, § 664(e).

• Peace Officer Defined. Pen. Code, § 830 et seq.

• Firefighter Defined. Pen. Code, § 245.1.

• Custody Assistant Defined. Pen. Code, § 831.7.

• Nonsworn Uniformed Employee of Sheriff’s Department Defined. Pen. Code, § 664(e).

• Custodial Officer as Referenced in Pen. Code, § 664, Defined. Pen. Code, §§ 831(a) and 831.5(a).

Secondary Sources

3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, § 241.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141, Conspiracy, Solicitation, and Attempt, §§ 141.20[2], 141.21; Ch. 142, Crimes Against the Person, § 142.01[3][e] (Matthew Bender).
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Judicial Council of California Criminal Jury Instruction 603 Attempted Voluntary Manslaughter: Heat of Passion—Lesser Included Offense (Pen. Code, §§ 21a, 192, 664)

An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill someone because of a sudden quarrel or in the heat of passion.

The defendant attempted to kill someone because of a sudden quarrel or in the heat of passion if:

1 The defendant took at least one direct but ineffective step toward killing a person;

2 The defendant intended to kill that person;

3 The defendant attempted the killing because (he/she) was provoked;

4 The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment;

AND

5 The attempted killing was a rash act done under the influence of intense emotion that obscured the defendant’s reasoning or judgment.

Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection.

In order for a sudden quarrel or heat of passion to reduce an attempted murder to attempted voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time.

It is not enough that the defendant simply was provoked. The defendant is not allowed to set up (his/her) own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than judgment.

[If enough time passed between the provocation and the attempted killing for a person of average disposition to “cool off” and regain his or her clear reasoning and judgment, then the attempted murder is not reduced to attempted voluntary manslaughter on this basis.]

The People have the burden of proving beyond a reasonable doubt that the defendant attempted to kill someone and was not acting as a result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of attempted murder.

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct on attempted voluntary manslaughter on either theory, heat of passion or imperfect self-defense, when evidence of either is “substantial enough to merit consideration” by the jury. (See People v. Breverman (1998) 19 Cal.4th 142, 153–163 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [discussing charge of completed murder]; People v. Barton (1995) 12 Cal.4th 186, 201 [47 Cal.Rptr.2d 569, 906 P.2d 531] [same].)

Related Instructions

CALCRIM No. 511, Excusable Homicide: Accident in the Heat of Passion.

CALCRIM No. 570, Voluntary Manslaughter: Heat of Passion—Lesser Included Offense.

CALCRIM No. 604, Attempted Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense.

AUTHORITY

• Attempt Defined. Pen. Code, §§ 21a, 664.

• Manslaughter Defined. Pen. Code, § 192.

• Attempted Voluntary Manslaughter. People v. Van Ronk (1985) 171 Cal.App.3d 818, 824–825 [217 Cal.Rptr. 581]; People v. Williams (1980) 102 Cal.App.3d 1018, 1024–1026 [162 Cal.Rptr. 748].

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, § 208.

RELATED ISSUES

Specific Intent to Kill Required

An attempt to commit a crime requires an intention to commit the crime and an overt act towards its completion. Where a person intends to kill another person and makes an unsuccessful attempt to do so, his intention may be accompanied by any of the aggravating or mitigating circumstances which can accompany the completed crimes. In other words, the intent to kill may have been formed after premeditation or deliberation, it may have been formed upon a sudden explosion of violence, or it may have been brought about by a heat of passion or an unreasonable but good faith belief in the necessity of self-defense.

(People v. Van Ronk (1985) 171 Cal.App.3d 818, 824 [217 Cal.Rptr. 581] [citation omitted].)

No Attempted Involuntary Manslaughter

There is no crime of attempted involuntary manslaughter. (People v. Johnson (1996) 51 Cal.App.4th 1329, 1332 [59 Cal.Rptr.2d 798].)

See the Related Issues section to CALCRIM No. 570, Voluntary Manslaughter: Heat of Passion—Lesser Included Offense.
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Judicial Council of California Criminal Jury Instruction 604 Attempted Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense (Pen. Code, §§ 21a, 192, 664)

An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill a person because (he/she) acted in imperfect (self-defense/ [or] defense of another).

If you conclude the defendant acted in complete (self-defense/ [or] defense of another), (his/her) action was lawful and you must find (him/her) not guilty of any crime. The difference between complete (self-defense/ [or] defense of another) and imperfect (self-defense/ [or] defense of another) depends on whether the defendant’s belief in the need to use deadly force was reasonable.

The defendant acted in imperfect (self-defense/ [or] defense of another) if:

1 The defendant took at least one direct but ineffective step toward killing a person.

2 The defendant intended to kill when (he/she) acted.

3 The defendant believed that (he/she/ [or] someone else/<insert name of third party>) was in imminent danger of being killed or suffering great bodily injury.

AND

4 The defendant believed that the immediate use of deadly force was necessary to defend against the danger.

BUT

5 At least one of the defendant’s beliefs was unreasonable.

[Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.]

Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have actually believed there was imminent danger of death or great bodily injury to (himself/herself/ [or] someone else).

In evaluating the defendant’s beliefs, consider all the circumstances as they were known and appeared to the defendant.

[If you find that <insert name or description of alleged victim> threatened or harmed the defendant [or others] in the past, you may consider that information in evaluating the defendant’s beliefs.]

[If you find that the defendant knew that <insert name or description of alleged victim> had threatened or harmed others in the past, you may consider that information in evaluating the defendant’s beliefs.]

[If you find that the defendant received a threat from someone else that (he/she) reasonably associated with <insert name or description of alleged victim>, you may consider that threat in evaluating the defendant’s beliefs.]

The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant not guilty of attempted murder.

BENCH NOTES

Instructional Duty

Perfect Self-Defense

Most courts hold that an instruction on imperfect self-defense is required in every case in which a court instructs on perfect self-defense. If there is substantial evidence of a defendant’s belief in the need for self-defense, there will always be substantial evidence to support an imperfect self-defense instruction because the reasonableness of that belief will always be at issue. (See People v. Ceja (1994) 26 Cal.App.4th 78, 85–86 [31 Cal.Rptr.2d 475], overruled in part in People v. Blakeley (2000) 23 Cal.4th 82, 91 [96 Cal.Rptr.2d 451, 999 P.2d 675]; see also People v. De Leon (1992) 10 Cal.App.4th 815, 824 [12 Cal.Rptr.2d 825].) The court in People v. Rodriguez disagreed, however, and found that an imperfect self-defense instruction was not required sua sponte on the facts of the case where the defendant’s version of the crime “could only lead to an acquittal based on justifiable homicide,” and when the prosecutor’s version of the crime could only lead to a conviction of first-degree murder. (People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1275 [62 Cal.Rptr.2d 345]; see also People v. Williams (1992) 4 Cal.4th 354, 362 [14 Cal.Rptr.2d 441, 841 P.2d 961] [in a rape prosecution, the court was not required to give a mistake-of-fact instruction where the two sides gave wholly divergent accounts with no middle ground to support a mistake-of-fact instruction].)

In evaluating whether the defendant actually believed in the need for self-defense, the jury may consider the effect of antecedent threats and assaults against the defendant, including threats received by the defendant from a third party that the defendant reasonably associated with the aggressor. (People v. Minifie (1996) 13 Cal.4th 1055, 1065, 1069 [56 Cal.Rptr.2d 133, 920 P.2d 1337].) If there is sufficient evidence, the court should give the bracketed paragraphs on prior threats or assaults on request.

Related Instructions

CALCRIM Nos. 3470– 3477, Defense instructions.

CALCRIM No. 571, Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense.

CALCRIM No. 603, Attempted Voluntary Manslaughter: Heat of Passion—Lesser Included Offense.

AUTHORITY

• Attempt Defined. Pen. Code, §§ 21a, 664.

• Manslaughter Defined. Pen. Code, § 192.

• Attempted Voluntary Manslaughter. People v. Van Ronk (1985) 171 Cal.App.3d 818, 824–825 [217 Cal.Rptr. 581]; People v. Williams (1980) 102 Cal.App.3d 1018, 1024–1026 [162 Cal.Rptr. 748].

• Imperfect Self-Defense Defined. People v. Flannel (1979) 25 Cal.3d 668, 680–683 [160 Cal.Rptr. 84, 603 P.2d 1]; People v. Barton (1995) 12 Cal.4th 186, 201 [47 Cal.Rptr.2d 569, 906 P.2d 531]; In re Christian S. (1994) 7 Cal.4th 768, 773 [30 Cal.Rptr.2d 33, 872 P.2d 574]; see People v. Uriarte (1990) 223 Cal.App.3d 192, 197–198 [272 Cal.Rptr. 693] [insufficient evidence to support defense of another person].

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, § 208.

3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, § 73.11 (Matthew Bender).

RELATED ISSUES

See the Related Issues section to CALCRIM No. 603, Attempted Voluntary Manslaughter: Heat of Passion—Lesser Included Offense and CALCRIM No. 571, Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense.
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*California Law Pertaining to Attempted Murder and California Jury Instruction Relating to Attempted Murder (2013). WestLaw Next. Retrieved from https://next.westlaw.com on April 12, 2013.