A charge under California Penal Code sections 664 and 187 is attempted murder, a felony that carries five, seven, or nine years in state prison in the second degree and life with the possibility of parole in the first degree. Section 187 defines murder as the unlawful killing of a human being with malice aforethought, and Section 664 is the general attempt statute that sets punishment when someone tries but fails to complete a crime. Read together, they treat an unsuccessful attempt to kill nearly as seriously as a completed killing, and the charge is a strike under the Three Strikes law before any enhancements are added.
What the Prosecution Has to Prove
Two elements, both beyond a reasonable doubt. The defendant must have specifically intended to kill another person, and the defendant must have taken at least one direct but ineffective step toward carrying out that killing.1Justia. CALCRIM No. 600 – Attempted Murder
Specific intent to kill is narrower than it sounds. Intending to hurt, scare, or even seriously injure someone is not the same as wanting them dead. If a gun goes off during a fight and the shooter aimed to intimidate rather than kill, the prosecution has a problem. Words, choice of weapon, and the location of any wounds all become evidence of what the person was actually trying to accomplish.
The “direct step” requirement also carries weight. Buying a weapon, watching a target, or researching a schedule is preparation, not an attempt. Pulling the trigger, swinging the knife, or putting poison in food is a direct step. Many cases turn on exactly where that line falls.
First Degree Versus Second Degree
The single biggest sentencing variable is whether the attempt was willful, deliberate, and premeditated. If it was, the sentence is a life term. If it was not, the sentence is a determinate number of years.
Deliberation means the defendant weighed the decision to kill, considering the reasons for and against. Premeditation means the defendant decided to kill before acting. A cold, calculated decision made quickly still counts; a rash, impulsive act does not, even if it was intentional. The test is the depth of the reflection, not its length.2Justia. CALCRIM No. 601 – Attempted Murder Deliberation and Premeditation
Premeditation must be charged in the accusatory pleading and either admitted or found true by the jury. A judge cannot tack it on at sentencing.3California Legislative Information. California Penal Code 664 – Attempted Crime Punishment If the jury convicts of attempted murder but rejects premeditation, sentencing drops into the shorter range below.
Second-Degree Sentence: Five, Seven, or Nine Years
Without a premeditation finding, attempted murder carries a determinate state prison term of five, seven, or nine years.3California Legislative Information. California Penal Code 664 – Attempted Crime Punishment Courts generally impose the middle term of seven years unless the circumstances justify something higher or lower.4California Legislative Information. California Penal Code 1170 – Determinate Sentencing
The upper term of nine years requires aggravating facts admitted by the defendant or found true beyond a reasonable doubt by the jury. The lower term of five years is presumed when the defendant experienced childhood trauma, was a youth at the time of the offense, or was a victim of intimate partner violence or human trafficking that contributed to the crime.4California Legislative Information. California Penal Code 1170 – Determinate Sentencing Even without those specific findings, the judge keeps discretion to pick the low term when other mitigation warrants it.
First-Degree Sentence: Life With the Possibility of Parole
When the jury finds the attempt was willful, deliberate, and premeditated, the sentence is life in state prison with the possibility of parole.3California Legislative Information. California Penal Code 664 – Attempted Crime Punishment Under California’s general parole rules, the person must serve a minimum of seven years before the Board of Parole Hearings even considers release. Parole eligibility is not parole; the board weighs the severity of the crime, conduct and rehabilitation in custody, and public safety. Many prisoners serve far longer than the minimum, and some are never released.
The exposure jumps when the victim is a peace officer, firefighter, custodial officer, or certain other public safety personnel acting in the line of duty, and the defendant knew or reasonably should have known the victim’s role. A premeditated attempt against such a victim pushes the minimum parole eligibility to 15 years, with no credits allowed to shorten that floor.3California Legislative Information. California Penal Code 664 – Attempted Crime Punishment
Enhancements That Stack on Top
The base term is often just the start. California adds consecutive prison time when certain facts are proven, and the add-ons can dwarf the underlying sentence.
Firearm Enhancements
Penal Code 12022.53, the “10-20-Life” law, applies directly to attempted murder:
- Personal use of a firearm adds 10 years, even if the gun was unloaded or inoperable.5California Legislative Information. California Penal Code 12022.53 – Firearms Enhancements
- Intentionally firing the weapon adds 20 years.
- Firing and causing great bodily injury or death adds 25 years to life.
These terms run consecutively, so a premeditated attempted murder with a shooting that caused serious injury can mean life plus 25 to life. Judges have discretion to strike a firearm enhancement in the interest of justice, but the presumption is that it applies.
Great Bodily Injury
When a firearm enhancement does not apply, personally inflicting great bodily injury adds three consecutive years under Penal Code 12022.7. The add-on rises to five years if the injury causes a coma or permanent paralysis, or if the victim is 70 or older.6California Legislative Information. California Penal Code 12022.7 – Great Bodily Injury Enhancement In domestic violence cases, the range is three to five years.
Gang Enhancements
If the attempt was committed to benefit a criminal street gang, Penal Code 186.22 adds 10 consecutive years because attempted murder is a violent felony.7California Legislative Information. California Penal Code 186.22 – Gang Enhancements When the base is a life sentence, the gang finding sets a minimum of 15 calendar years before parole eligibility.
Strike Consequences
Attempted murder is listed as a serious felony under Penal Code 1192.7(c)(9), which makes it a strike.8CDCR. Serious Offenses Defined The strike stays on the record permanently. Any future felony conviction becomes much more serious: a second strike doubles the term for the new offense, and a third strike can carry 25 years to life even when the new felony is relatively minor. Being sentenced as a second or third striker also closes off certain early-release programs.
Restitution and Fines
A felony conviction carries a mandatory restitution fine of at least $300 and up to $10,000.9California Legislative Information. California Penal Code 1202.4 – Restitution On top of that, the court must order full victim restitution for every economic loss caused by the crime: medical bills, mental health counseling, lost wages, property damage, relocation costs. The order accrues interest at 10 percent per year from the date of sentencing, and the court can set the final amount later if it cannot be calculated at sentencing. In cases involving shootings or stabbings, medical costs alone can run into the hundreds of thousands.
Defenses
Because the charge rises or falls on specific intent to kill, defense work usually targets intent, justifies the conduct, or pushes the charge down to attempted voluntary manslaughter.
Self-Defense
A person who honestly and reasonably believes they are in imminent danger of death or great bodily injury can use deadly force. If the jury accepts complete self-defense, the result is acquittal. The belief has to be both genuine and objectively reasonable, and the defendant has to have acted out of that fear rather than anger or revenge.
Imperfect Self-Defense
Many attempted murder cases are really fought here. Imperfect self-defense applies when the defendant actually believed in the need for deadly force but that belief was objectively unreasonable. It does not acquit. It reduces the conviction to attempted voluntary manslaughter.10Justia. CALCRIM No. 604 – Attempted Voluntary Manslaughter Imperfect Self-Defense The prosecution must disprove it beyond a reasonable doubt. It is not available to someone who created the dangerous situation through their own wrongful conduct, like starting a fight and then claiming fear when the other side fought back.
Heat of Passion
If adequate provocation caused the defendant to act rashly and without reflection, the charge can be reduced to attempted voluntary manslaughter. The provocation must be strong enough that an average person would have acted without deliberation, and the defendant must actually have been acting under that intense emotion.11Justia. CALCRIM No. 603 – Attempted Voluntary Manslaughter Heat of Passion Enough time to cool off defeats the reduction. The prosecution bears the burden of disproving heat of passion beyond a reasonable doubt.
No Specific Intent to Kill
Sometimes the straightforward defense is the right one: the defendant did not intend to kill. Assault that causes serious injury is not attempted murder if the goal was to hurt rather than to kill. Recklessness, negligence, or even knowing that death was likely is not enough; the prosecution has to prove the actual intent to end the victim’s life. When the physical evidence is ambiguous about what the defendant was trying to accomplish, this is often where the fight is.
If You Are Not a U.S. Citizen
Attempted murder is an aggravated felony under federal immigration law. A conviction triggers mandatory detention, bars nearly all forms of relief from deportation (including asylum and cancellation of removal), and results in permanent inadmissibility after removal. A lawful permanent resident convicted of an aggravated felony faces removal with essentially no path back, regardless of how long they have lived in the country or whether their family are citizens.