Review of California Penal Code 664/187 Attempted Murder Laws and Best Defenses
California Penal Code 664/187 PC describes the crime of attempted murder as when someone has an intent to kill another person, and takes a direct step to kill them, but the victim survives.
In other words, the intended crime of murder was not completed, but an attempted murder charge must include the crucial element of an intent to kill.
Just like Penal Code 187 PC murder charges, PC 664/187 attempted murder is divided into two degrees.
There is a “first-degree attempted murder” where the alleged offense was premeditated and willful. A ‘second-degree” charge would include any other form of attempted murder.
Put simply, attempted murder means someone tried but failed to kill a human being. A prosecutor will have to prove two crucial factors to convict someone, including that the defendant took a direct step towards killing another person and had intent to kill them, known as malice aforethought.
A “direct step” has to be more than planning to murder another person. A direct step is any type of action that would actually complete the crime of murder.
For example, shooting a weapon at the victim but missing or hiring another person to kill them.
Some related California charges could be filed in addition to or instead of Penal Code 664/187 attempted murder, including:
- Penal Code 16100 PC – drive-by shooting,
- Penal Code 246 PC – shooting at inhabited dwelling or car,
- Penal Code 192(a) – voluntary manslaughter,
- Penal Code 653f – solicitation to commit a crime.
For additional information, our Los Angeles criminal defense attorneys are providing a review below.
Two Different Types of Attempted Murder Charges
A lot of people don't realize that there are two different types of California Penal Code 664/187 PC attempted murder charges:
- first-degree attempted murder – this is where an individual plan on killing somebody, premeditates it, thinks about it, sets up a plan and goes and attempts to kill somebody but falls short and doesn't kill that person. That is first-degree attempted murder with premeditation and deliberation. The particular individual who is convicted of that charge will be sentenced to 15 to life. If there are additional allegations like gun allegations, that can take that 15 to life up to a much higher number.
- second-degree attempted murder – this is the other charge when there is no premeditation and deliberation. There's no real thought to it — maybe it's a sudden quarrel, people become angry and somebody makes a decision to try to kill another person. So, it's still attempted murder but there's no premeditation and deliberation. Under that circumstance, the person would be facing a potential prison sentence, but would not be facing that life behind it.
So, obviously there's a huge difference. A lot of times what you'll see happening in Los Angeles county when someone is charged with the first-degree attempted murder with premeditation and deliberation allegation is in there.
Negotiation with Prosecutor
A lot of times if the prosecutors want to negotiate with that person and offer them something less than 15 to life, they will strike the premeditation and deliberation allegation and just have the person plead to an attempted murder charge.
Then the person will be looking at much less time, usually a high time on that would be 11 years for attempted murder with premeditation and deliberation.
It's a violent felony meaning a defendant would serve 85% of it, but of course, in today's jail system, they might not serve 85% of it because of the overcrowding and the issues that are going on there.
So, that's certainly one way to deal with an attempted murder case where a person is looking at 15 to life, if they drop it down to the other attempted where 15 to life is not applicable, they could also charge, for example, an assault with a deadly weapon and get rid of the attempted murder allegations all together.
But I see sometimes, someone gets offered a deal and they don't have the 15 to life behind it, but they're still looking a lot of time and they start arguing, well, I didn't do that.
Why are they charging me with that? And I have to explain to them, the reason they're going that is because they've decided on a certain amount of times that they think is what you should do in prison and they're manipulating the charges so they can get to that particular amount of time.
That's the way they do it a lot of times when they're trying to figure out what a fair sentence is when somebody is charged with attempted murder in Los Angeles county.
Attempted first-degree murder is punished by life in state prison. Attempted second-degree murder is punished by 5, 7, or 9 years in state prison.
Best Defenses for PC 664/187 Attempted Murder Charges
It all depends on the circumstances of the case. What I tell my clients a lot of times is the way you have to look at what the prosecutors do when they're thinking about evaluating a case.
They don't necessarily look at the charges that hard, but more looking at what sentence they think the person should get.
Then they use the facts and circumstances of the case and different charges that apply to the case, to work out an offer to settle the case. If you look at it in those terms, it makes a lot more sense.
Defenses to attempted murder charges under PC 664/187 will focus on challenging the prosecutor's elements of the crime, especially on the crucial factor of specific intent to kill.
There may also be other defenses, such as a reasonable argument of self-defense, where we might be able to show proof the alleged victim was actually the aggressor and you only used force to protect yourself.
Even in a situation where the degree of force was not considered reasonable, which is commonly known as an imperfect self-defense, you might be able to use the attempt as at self-defense to challenge the critical intent element of attempted murder.
Other factors that prosecutors are going to look at is your criminal record and whether or not somebody was hurt, which can alter our defense strategy.
If somebody fires a weapon and hits the person and nearly kills them and that person has horrible injuries, that's certainly going to be a much more significant factor than a situation where someone is shot at, the bullets miss and they have no injuries whatsoever.
Both situations are serious, but the one where somebody is significantly hurt is obviously going to be treated more harshly where the one where somebody doesn't get hurt.
So, if you or a loved one is charged with attempted murder in California and there's a premeditation and deliberation allegation, you need help.
You need a criminal defense attorney to figure out how to deal with the case:
- whether to fight the case;
- take the case to trial, or
- whether or not a resolution is the best solution for you.
Pick up the phone. Ask for a meeting with Ron Hedding. I've been practicing criminal defense now for almost three decades. I stand at the ready to help you.
Hedding Law Firm is based in Los Angeles County at 16000 Ventura Blvd #1208 Encino, CA 91436. Contact our office for a free case consultation at (213) 542-0979.