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Attempted Murder Law in California Penal Code 664 187 a PC

July 2, 2021 California Penal Code

Attempted murder is defined in California Penal Code 664/187(a) PC as a crime in which the perpetrator intends to kill someone and takes a direct step towards killing the person, but the intended victim did not die. First-degree attempted murder is punished by life in California state prison. Attempted murder in the second-degree is punished by 5, 7, or 9 years in state prison.


The Penal Code 664/187(a) in California State defines attempted murder as follows:

The attempted unlawful killing of another person, or a fetus, with malice aforethought.

Attempted murder, like murder (Penal Code 187 PC),  is categorized into two degrees.  First-degree attempted murder is charged when the act is premeditated and willful. Second-degree encompasses all other types of attempted murder.


Possible Defenses to an Attempted Murder charge

The five top legal strategies for combating PC 664/187(a) charges are to demonstrate in court that:

  1. The accused had no intent to kill;
  2. The accused took no direct step to kill;
  3. The accused was misidentified;
  4. The accused acted in self-defense; or
  5. The accused was falsely accused

In this article, the California criminal defense attorneys at Spodek Law Group will answer the following frequently asked questions (faqs) about attempted murder cases:

  1. What is the definition of attempted murder according to California law?
  2. What are the most effective defenses to 664/187 PC?
  3. What sentences come with a conviction for attempted murder in the state of California?
  4. What are other crimes that can be charged in connection with attempted murder?



What is the definition of attempted murder according to California law?

Attempt murder is trying but failing to take the life of another human being.  In the State of California, the two elements of this violent crime are that the defendant took at least one direct, albeit ineffective, step towards killing another human being, and that the defendant intended to kill that person.  This latter element is known as “malice aforethought”.

Note that a fetus is considered a human being for the purposes of this law.


Defining Terms used in the Legal Definition of Attempted Murder

A direct step

The term ‘direct step’ speaks of more than simply making plans. It involves doing something that unmistakably shows you were putting your plan into motion.  In other words, the murder would likely have occurred if an outside factor not interfered.

This direct action can be almost anything including but not limited to stabbing someone in the chest, shooting a gun towards a person, or paying taking out a hit on a person.

There are some other acts that are considered “murder preparation”.  These are not “direct steps”  in an attempt murder case.  They could be such actions as buying a knife, loading a firearm, or Googling “murder for hire”.

It is important to note that a “direct step” need not include any physical touching of the intended victim to be considered evidence of intent in court.  Simply putting a plan to kill into action is enough for a defendant to get convicted of attempted murder even if no physical contact is made.


Intention to kill

The District Attorney must demonstrate intent to kill.  Intent to maim or injure is not sufficient if there was a lack of intent to commit a murder.  The location of any injuries is an important detail. Upper body injuries go further in demonstrating premeditated murder intent, since the vital organs are located in this area.

Lower body injuries indicate intent to injure rather than intent to kill. Even if the defendant did intend to commit a murder, prosecutors may struggle to prove it.  In cases where there are no injuries, prosecuting attorneys must rely on overall circumstances to demonstrate the defendant’s intent.

Also, prosecutors are only burdened to prove the intention to kill someone. It could be anyone or any group of people and does not need to be any particular individual. While a primary target often exists and can be identified, one is not necessary to get the conviction.

Kill zone theory

The State of California recognizes the kill zone theory of attempted murder liability. According to this theory, defendants are liable for anyone they may have inadvertently killed while attempting to kill an identified target.

For a charge under this kill zone premise to hold, the defendant does not even need to be aware that others are in the kill zone.

What are the most effective defenses to 664/187 PC?

A number of legal defense strategies apply to Penal Code sections 664 and 187 PC.  The most common and useful attempted murder defenses are detailed here.

The “No specific intent to kill” defense

According to the California penal code, attempted murder is a specific intent crime. If the defendant did not have an intent to kill anyone, then no attempted murder took place.  Perhaps the defendant only intended to maim the alleged victim (mayhem – PC 203), frighten the alleged victim (assault – PC 240), or commit an assault with a deadly weapon ( PC 245).

If the state cannot show that the defendant intended to kill, the attempt murder charge cannot be sustained.

The “No direct step” defense

Even though the defendant may have prepared an elaborate plan to kill someone  (they may have purchased weapons, written out a plan of exactly how the murder would take place, and made arrangements for disposing of the body), if the defendant is caught before executing that next step, then no attempted murder occurred.

If, on the other hand, the defendant makes preparations and then abandons the plans, no attempted murder took place.   In this circumstance, the criminal defense attorney may be able to persuade the prosecutor to lower the charge during a plea negotiation.  Abandoning the plan is clear evidence of regret and remorse.

The “Misidentification” defense

Mistaken identity could be a factor in many attempted murder cases. It is possible that the defendant resembles the true culprit, drives a similar vehicle to the one used, or was just in the wrong place at the wrong time.  Skilled defense attorneys know how to effectively investigate their cases.  As long as they can raise a reasonable doubt, the charge would have to be dropped.

The “Self-defense” defense

California’s self-defense legislation allows people to emply reasonable force to defend themselves or another person if they reasonably believe that they are under threat of bodily harm. If a person reasonably believes they are about to lose their life, they can legally kill their assailant.  In fact, according to California case law and jury instructions, crime victims can stand their ground . In other words, there is no duty to retreat first for self-defense to help the defendant’s case.

Useful evidence in these cases includes eyewitness accounts, surveillance video footage, and medical records of the injuries inflicted.

The “False accusations” defense

A potential defense to any criminal charge is that the defendant was falsely accused. In attempt murder cases, the criminal defense attorney would try to find evidence of the accuser’s motivations to lie and would impeach his/her credibility.

What sentences come with a conviction for attempted murder in the state of California?

Attempted murder is a felony according to the California Penal Code. Generally speaking, the penalty is half of what the punishment would be for murder, (that is, the completed crime). Similarly to murder (PC 187), this violent crime has two degrees

First-degree attempted murder, meaning the defendant acted willfully, deliberately, and with premeditation.  A first-degree attempt murder conviction carries a sentence of life in prison in California State Prison, and the possibility of parole.

Second-degree attempted murder in California encompasses all attempted murder charges that do not count as first-degree murder. Simply put, the attempt was not deliberate and premeditated. A second-degree attempt murder conviction carries a sentence of, 5  , 7   or, 9 years in prison.

Additional penalties

First- and second-degree attempt murder charges both carry  victim restitution, a fine of a maximum of $10,000, and loss of gun rights.


California’s three-strikes law

Attempted murder is classed as a violent felony under California’s three-strikes law, so a conviction counts as a strike on the person’s criminal record.

The 10-20-life “use a gun and you’re done” provision

An attempt murder case involving a gun carries enhanced penalties.  Convicted felons face an additional sentence of 10 years in prison for using a gun, 20 years for firing that gun, or 25 years-to-life for killing another person with the gun or for causing great bodily injury to another person while using a gun.

The Immigration consequences connected to an attempted murder conviction

Attempt murder is an aggravated felony, so non-citizens convicted of it will likely be deported from the country.


What are other crimes that can be charged in connection with attempted murder?

Numerous criminal charges can be connected with PC 664/187 attempt murder law violations. Here are some of the most common ones.

  • Shooting at an inhabited dwelling or occupied car (PC 246)
  • Drive-by shooting (PC 26100)
  • Torture (PC 206)
  • Voluntary manslaughter (PC 192(a))
  • California’s domestic violence offenses
  • Aiding a suicide (PC 401)
  • Solicitation of a crime (PC 653f)
  • Aggravated battery (PC 243(d))

Contact Spodek Law Group for further assistance

Our criminal defense lawyers serve clients all over Los Angeles County, The San Fernando Valley, Pasadena, Long Beach, San Diego, Sacramento, Orange County, Rancho Cucamonga, Riverside, Oakland, San Francisco, San Jose, Ventura, San Bernardino  and throughout the Golden State.




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