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Accusations of attempting an unlawful killing of an individual, including a fetus, with intent to do so, could result in a charge of attempted murder. This is one of the most severely punished offenses under state law.

If you are facing allegations of attempted murder, you could benefit from speaking with an experienced criminal defense attorney who handles attempted murder cases as soon as possible. The guidance of a Martinez attempted murder lawyer could be useful even if you have not yet been formally charged with a crime.

The Required  Elements of Attempted Murder

As in all other crimes, attempted murder has elements that the prosecution must prove beyond a reasonable doubt in order to obtain a conviction of attempted murder. With this particular offense, the prosecution only has two elements to prove:

  • The defendant must have taken a direct step towards killing another person (or fetus) that was ineffective. Threats are not enough.  Direct action must be taken that would lead a reasonable person to believe that a murder is likely to occur.
  • The defendant  must have acted with the preconceived intention of killing the other person (or fetus). This intention is known as malice aforethought.

Direct Steps are required:

To secure a conviction for attempted murder, the state must prove beyond a reasonable doubt that the defendant took at least one direct action toward the killing of another person. This step requires more than planning a murder or discussing the possibility of killing someone. While acts of preparation, like loading a gun or buying an axe, are not considered direct steps, any action that could directly lead to a person’s death could qualify. This could include anything from firing a weapon to driving a motor vehicle at another person.

A direct step must show that a person was putting their plan into action and that there was an unambiguous intent to kill. It applies when an individual has made a move toward committing the crime after the initial preparations were made.

A person who attempts to commit a murder by taking a direct step toward the killing can still be found guilty of attempted murder even if:

  • they abandon further efforts to complete the crime
  • the attempt fails
  • the attempt is interrupted by someone
  • the attempt is interrupted by something beyond their control

However, if a person voluntarily abandons their plan before taking a direct step toward the murder then that person cannot be found guilty of attempted murder. A direct step can make the difference between spending life in prison or not.

Intent to Kill

Attempted murder is a crime of intent. In other words, a person cannot accidentally attempt to commit murder. The defendant’s specific intentions toward the victim are important in this case, as it is not enough for an individual to have intended to injure another person. Instead, a conviction for attempted murder requires the specific intent to kill the victim.

It can be difficult for state prosecutors to prove what the intent was of the defendant at the time the alleged attempted murder occurred.   If an  injury has occurred as a result of the actions of the defendant, and not a murder, the state will often point to the location of the wound to signify defendant’s intent to kill the victim. For example, injuries to the head are much more likely to have been made with the intent to kill than wounds to the hands or feet.

However, not every attempted murder case will involve physical injuries. It is up to the prosecution to establish through circumstantial evidence that a person had the intent to kill. Circumstantial evidence is evidence that is not tangible, and takes into account such things as defendant’s proximity to the victim at the time of the attempted murder, or what the defendant said to the victim while engaged in the act. An experienced attempted murder lawyer in Martinez could refute the circumstantial evidence at trial, possibly casting reasonable doubt on the prosecution’s case.

Kill Zone

An instruction on the kill zone theory can be given in instances where the circumstances of the attack on the primary target, including the type and extent of the force used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm. A zone of fatal harm is one where the defendant intended to kill everyone present in the zone to ensure the primary target’s death.  To determine if the defendant intended to kill the secondary victim(s) the prosecution must prove that the only reasonable conclusion from the use of lethal force was that the defendant intended to create this kill zone and the secondary victim was within the kill zone. The jury is instructed to consider:

  • the type of weapon used
  • the number of shots fired
  • the distance between the defendant and the secondary victim
  • the distance between the secondary victim and the primary target

Potential Penalties for Attempted Murder

Attempted murder is always treated as a felony under California law, but there are two different degrees of attempted murder. Each degree carries a different range of potential penalties. An experienced Martinez lawyer could craft the strongest defense possible for either degree of attempted murder.

First-Degree Attempted Murder

First-degree attempted murder only applies in limited situations. This charge is limited to those defendants that act deliberately, willfully, and with premeditation. A conviction carries a maximum sentence of life with the possibility of parole. Defendants would face a minimum of 15 years in state prison if the alleged victim was a firefighter, police officer, or other type of protected person and a minimum of 7 years if the victim was anyone else.

Second-Degree Attempted Murder

Second-degree attempted murder offenses cover any conduct that does not qualify as first-degree attempted murder. This could involve the death of a victim as a result of defendant’s driving while intoxicated, or any reckless behavior that a reasonable person should know could cause death to an individual. A conviction of second-degree attempted murder could lead to a sentence of five, seven, or nine years in state prison.

Speak to a Martinez Attempted Murder Attorney Today

If you have been accused of attempted murder, you could be facing a life-altering prison sentence. While this is an extremely stressful situation, it could be possible to reduce the charges, reduce the penalty, or beat the case and avoid a conviction altogether with the help of an experienced attempted murder lawyer at The Nieves Law Firm. Call The  Nieves Law Firm today for your free, 30 minute confidential consultation.

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