What do I do if a loved one is charged with attempted murder?

If a loved one is charged with attempted murder, he or she is likely sitting in jail pre-trial. Because attempted first degree murder carries a life sentence in California, Courts are unlikely to release someone so charged despite the bail reform laws and new case law like In re Humphrey. That said, the first thing to have your lawyer argue is to have your loved one released pre-trial. There are several reasons to do so. First, there is a substantial chance that the Judge may release your loved one on bail with conditions like a stay away order and a search and seizure clause. Second, the prosecutor will surely object and provide his or her reasons, giving you insight into what the prosecutor believes makes his or her case stronger. Third, if your loved one has a strong case, the Judge may make comments at the bail hearing that help convince the prosecutor to reduce charges or even dismiss the case.

California Penal Code section 187(a) is the charge of murder. “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” (Pen. Code, § 187, subd. (a).) California Penal Code section 664 defines an attempted crime, and specifically discusses attempted murder.

“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.” (Pen. Code, § 664, subd. (a) [bold added].)

The California Criminal Jury Instructions for attempted murder, CalCrim 600, state as follows:

“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);


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.]”

The punishment for attempted first degree murder is 7 years to life in state prison. The punishment for attempted second degree murder is 5, 7, or 9 years. 7 years is the presumptive term and the aggravated term is 9 years, whereas the mitigated term is 5 years. Technically, a Judge could also grant someone convicted of attempted murder probation, but that is highly unlikely given the gravity of the offense and the backlash that particular Judge would take in the local community.

Case Law Ltd.’s Jeffrey L. Mendelman has successfully defended against charges of attempted murder.