Defending Against Attempted Murder Charges in California (Penal Code § 664/187)

Facing an Attempted Murder Charge? You Could Be Looking at Life in Prison.

Being charged with attempted murder in California is one of the most serious legal situations a person can face. Under Penal Code §§ 664 and 187, even an unsuccessful act of violence that shows intent to kill can result in life imprisonment. And because the law does not require that anyone actually died, the prosecution can push forward with maximum penalties based on intent and circumstances alone.

At The Nieves Law Firm, we know the gravity of these charges. Our criminal defense attorneys represent clients throughout the Bay Area facing attempted murder allegations, including those involving premeditation, weapons enhancements, and law enforcement victims. If your future is on the line, this guide will help you understand the law, your rights, and the defense options available.

What is Attempted Murder in California?

Attempted murder is a combination of two California laws:

• Penal Code § 187 defines murder as the unlawful killing of a human being with “malice aforethought.”
• Penal Code § 664 punishes individuals who attempt but fail to commit a crime, including murder.

Put together, attempted murder means you:

1. Took a direct step toward killing another person, and
2. Intended to kill (express malice aforethought)

That “direct step” must go beyond mere planning or preparation. It could be firing a weapon, stabbing someone, poisoning their drink, or any other action that would likely result in death had it not been interrupted or failed.

Key Elements the Prosecution Must Prove

To convict someone of attempted murder, prosecutors must prove:

• Intent: You specifically intended to kill another person
• Overt Act: You took a direct but ineffective step toward that killing
• Malice: You acted with “malice aforethought,” meaning a conscious desire to unlawfully kill

Mere threats, fights, or reckless endangerment are not enough to qualify as attempted murder. There must be specific intent to kill and a substantial step taken toward doing it.

Penalties for Attempted Murder in California

Standard Attempted Murder (Penal Code § 664/187)

• Penalty: Up to life in state prison with the possibility of parole, depending on the circumstances
• Attempted murder generally carries half the sentence of a completed murder, unless aggravating factors apply

Willful, Deliberate, and Premeditated Attempted Murder

• Penalty: Life in prison with the possibility of parole
• Prosecutors must charge and prove premeditation—you planned the murder in advance

Attempted Murder of a Peace Officer, Firefighter, or Custodial Staff

• Penalty: 15 years to life in prison, no early release before 15 years
• Applies if:
  • The defendant knew or should have known the victim was a public servant
  • The victim was engaged in official duties at the time

Attempted Murder vs. Other Crimes

Attempted Murder vs. Assault With a Deadly Weapon (PC § 245)

• Assault with a deadly weapon requires intent to injure, not kill
• Attempted murder requires specific intent to kill

Attempted Murder vs. Attempted Voluntary Manslaughter

• Manslaughter involves heat of passion or provocation
• Attempted murder involves premeditated or malicious intent

The difference in intent is critical. A skilled defense lawyer may argue for a lesser charge when intent to kill isn’t clear.

Enhancements That Can Increase the Sentence

California law allows additional penalties (enhancements) for:

Use of a Firearm (PC § 12022.53)

• 10 years for use of a firearm
• 20 years for firing it
• 25 years to life for causing great bodily injury

Gang Enhancements (PC § 186.22)

• Longer prison terms if the crime was committed for the benefit of a criminal street gang

Great Bodily Injury Enhancements (PC § 12022.7)

• Additional 3 to 6 years if the act caused serious injury

Enhancements can turn an already severe charge into a virtual life sentence.

What Most People Get Wrong About Attempted Murder Charges

“No One Died, So It’s Not That Serious”

Wrong. Attempted murder is treated with nearly the same severity as first-degree murder. The only difference is the outcome—not the intent.

“I Didn’t Plan It—It Was a Split-Second Decision”

Even impulsive actions can qualify if the prosecution can show you intended to kill, regardless of whether it was planned in advance.

“They Started the Fight”

Self-defense might apply, but if you went beyond neutralizing a threat and attempted to kill, prosecutors may still charge you.

“I Can Just Plead to Something Lower”

Sometimes, yes—but only if your defense team aggressively challenges the intent element or the overt act. Otherwise, prosecutors will push for maximum penalties.

Common Legal Defenses to Attempted Murder Charges

Each case is different, but successful defenses often include:

Lack of Intent to Kill

You acted recklessly or with intent to harm, not to kill. This could reduce charges to assault or attempted manslaughter.

No Direct Act

You may have made a plan or a threat, but didn’t take a substantial step toward carrying out the murder.

Mistaken Identity

You were falsely identified at the scene or blamed for someone else’s actions.

Self-Defense or Defense of Others

You were defending yourself or someone else from a real threat of harm and did not intend to kill.

Police Misconduct or Flawed Investigation

Evidence may be suppressed if law enforcement violated your rights during arrest or questioning.

FAQs About Attempted Murder Charges in California

Can I be charged with attempted murder if the victim wasn’t injured?

Yes. Injury is not required. The charge is based on intent and action, not the result.

What’s the minimum sentence for attempted murder?

It depends on the facts, but in premeditated or public servant cases, you face life in prison (with parole after 7 to 15 years or more).

Can a juvenile be charged with attempted murder?

Yes. Minors may be charged and tried as adults for serious crimes like attempted murder, especially if weapons or gangs are involved.

Is there any way to avoid a life sentence?

Yes. An experienced defense attorney may reduce the charge through:

• Challenging the evidence
• Negotiating a plea to a lesser offense
• Showing lack of intent
• Demonstrating mitigating circumstances

Can I get bail if I’m charged with attempted murder?

Possibly, but bail amounts are typically very high, and the court may deny bail entirely depending on the facts and criminal history.

Accused of Attempted Murder in California? Don’t Wait, Call The Nieves Law Firm.

Attempted murder charges under Penal Code §§ 664/187 can derail your life permanently, even if no one was seriously injured. If you or someone you love is facing accusations, it’s critical to get legal representation immediately.

Contact The Nieves Law Firm today for a confidential consultation. We will investigate your case, evaluate possible defenses, and help you fight for the best possible outcome, whether that means dismissal, reduction, or acquittal at trial.