A charge under California Penal Code sections 664 and 187 — attempted murder — carries five, seven, or nine years in state prison when the act was not premeditated, and life in state prison with the possibility of parole when it was. Section 187 defines murder as the unlawful killing of a human being with malice aforethought. Section 664 sets the punishment for trying but failing to complete a crime. Together they treat a failed killing nearly as seriously as a completed one, and the charge counts as a strike, triggers steep firearm and gang enhancements, and, for non-citizens, qualifies as an aggravated felony under federal immigration law.
What the Prosecution Has to Prove
Two elements, both beyond a reasonable doubt. The defendant specifically intended to kill another person, and the defendant took at least one direct but ineffective step toward carrying out the killing.1Justia. CALCRIM No. 600 – Attempted Murder
Specific intent means the defendant actually wanted the victim dead. Intent to hurt or scare is not enough. Recklessness is not enough. Knowledge that death was likely is not enough. If someone fires during a fight aiming to intimidate rather than to kill, the prosecution has a problem.
The direct step has to be more than planning or preparation. Buying a weapon, watching a target, or researching a schedule are preparation. Pulling the trigger, swinging the knife, or putting poison in the food are direct steps. Cases are frequently won or lost on which side of that line the defendant’s conduct falls.
First-Degree vs. Second-Degree Attempted Murder
The single biggest factor in sentencing is whether the attempted murder was willful, deliberate, and premeditated. When it was, the charge functions as first-degree attempted murder. When it was not, it is second-degree.
Deliberation means the defendant weighed the reasons for and against killing. Premeditation means the defendant decided to kill before acting. A cold, calculated decision made quickly still qualifies; 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 Planning activity, a clear motive, or a methodical manner of attack all support a finding of premeditation.
Premeditation is not something a judge can add at sentencing. It has to be formally charged in the accusatory pleading and either admitted by the defendant or found true by the jury.3California Legislative Information. California Penal Code 664 – Attempted Crime Punishment If the jury convicts of attempted murder but rejects the premeditation allegation, sentencing drops into the far shorter second-degree range.
Prison Time by Degree
Without a premeditation finding, second-degree attempted murder carries a determinate state prison sentence of five, seven, or nine years.3California Legislative Information. California Penal Code 664 – Attempted Crime Punishment The upper term of nine years requires aggravating facts admitted by the defendant or found true beyond a reasonable doubt by the jury.
With a premeditation finding, 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 eligibility rules, the defendant must serve at least seven years before the Board of Parole Hearings will consider release. “Possibility of parole” is not a guarantee of it; the board weighs the crime’s severity, the prisoner’s conduct and rehabilitation, and whether release would endanger public safety. Many inmates serve well past the minimum, and some are never released.
The floor climbs when the victim is a peace officer, firefighter, custodial officer, or certain other public safety personnel performing their duties, and the defendant knew or reasonably should have known the victim’s role. If that attempted murder was also premeditated, the minimum parole eligibility rises to 15 years with no credits available to reduce it.3California Legislative Information. California Penal Code 664 – Attempted Crime Punishment
Enhancements That Stack on Top
The base sentence is often just the beginning. California law adds consecutive prison time when certain circumstances are present, and in attempted murder cases the enhancements frequently outweigh the underlying term.
Firearm Enhancements Under PC 12022.53
The “10-20-Life” statute applies directly to attempted murder and adds mandatory consecutive time based on what the defendant did with the gun:
- Personal use of a firearm adds 10 years, even if the gun was unloaded or inoperable.4California 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 are consecutive, served after the base sentence. A person convicted of premeditated attempted murder who fires and causes serious injury is looking at life plus 25 to life. Courts have discretion to strike a firearm enhancement in the interest of justice, but the starting presumption is that it applies.
Great Bodily Injury Enhancement
When the defendant personally inflicts great bodily injury and no firearm enhancement applies, Penal Code 12022.7 adds three consecutive years. That figure rises to five if the injury causes a coma or permanent paralysis, or if the victim is 70 or older.5California Legislative Information. California Penal Code 12022.7 – Great Bodily Injury Enhancement In domestic violence situations, the enhancement runs from three to five years.
Gang Enhancement
If the attempted murder was committed to benefit a criminal street gang, Penal Code 186.22 tacks on more time. Because attempted murder qualifies as a violent felony, the gang enhancement is 10 consecutive years in the standard scenario.6California Legislative Information. California Penal Code 186.22 – Gang Enhancements For a life sentence, the defendant cannot be paroled until at least 15 calendar years have been served.
Attempted Murder Is a Strike
Attempted murder is listed as a serious felony under Penal Code 1192.7(c)(9),7CDCR. Serious Offenses Defined and that makes it a strike under the Three Strikes law. The strike stays on the record permanently. A second strike doubles the prison term for any future felony. A third strike can bring 25 years to life on a new felony, even one that would ordinarily be minor. The strike designation also cuts off certain early-release options for anyone later sentenced as a second or third striker.
Defenses
Because the crime requires specific intent to kill, defenses generally aim to undercut intent, justify the conduct, or reduce the charge to attempted voluntary manslaughter. The theory chosen often shapes the entire trial.
Self-Defense
Someone who honestly and reasonably believed they were in imminent danger of being killed or suffering great bodily injury may use deadly force to defend themselves or others. If the jury accepts self-defense, the defendant is acquitted. The circumstances must be enough to make a reasonable person fear for their life, and the defendant must have actually acted out of that fear rather than anger or revenge.
Imperfect Self-Defense
This is the real battleground in many cases. Imperfect self-defense applies when the defendant genuinely believed they faced imminent death or great bodily injury and that deadly force was necessary, but at least one of those beliefs was objectively unreasonable. It does not acquit. It reduces the charge to attempted voluntary manslaughter, and the prosecution has to disprove it beyond a reasonable doubt.8Justia. CALCRIM No. 604 – Attempted Voluntary Manslaughter Imperfect Self-Defense It does not apply when the defendant created the danger through their own wrongful conduct. Starting a fight and then claiming fear when the other person fought back will not qualify.
Heat of Passion
If the defendant was provoked into acting rashly and without reflection, the charge may drop to attempted voluntary manslaughter based on sudden quarrel or heat of passion. The provocation must be enough to cause an average person to act without deliberation, and the defendant must have actually acted under the immediate influence of that intense emotion.9Justia. CALCRIM No. 603 – Attempted Voluntary Manslaughter Heat of Passion Heat of passion is broader than anger; it covers any violent or intense emotion that overwhelms judgment. Timing matters. If enough time passed for an average person to cool down, the reduction does not apply. Again, the prosecution has to disprove it beyond a reasonable doubt to keep the attempted murder charge.
No Intent to Kill
Sometimes the strongest defense is that the defendant never intended to kill anyone. An assault causing serious injury is not attempted murder if the intent was to harm rather than to kill. A reckless act that could have killed someone but was not aimed at death falls short of the specific intent requirement. Recklessness, negligence, and even knowledge that death was likely cannot substitute for actual intent to kill.
Restitution and Fines
A conviction triggers mandatory financial obligations on top of prison. The court must impose a restitution fine of at least $300 and up to $10,000 for a felony,10California Legislative Information. California Penal Code 1202.4 – Restitution and separately must order full restitution to the victim for every economic loss caused by the crime, including medical care, mental health counseling, lost wages, property damage, and relocation costs. Victim restitution is not discretionary; the order covers every determined loss, with a mechanism to set the amount later if it cannot be calculated at sentencing. The restitution order accrues interest at 10 percent per year from sentencing. In cases involving shootings or stabbings, medical bills alone can run into the hundreds of thousands of dollars.
Immigration Consequences for Non-Citizens
Under federal immigration law, murder is an aggravated felony, and that classification reaches attempts. An aggravated felony conviction triggers mandatory detention, bars nearly all forms of relief from deportation (including asylum and cancellation of removal), and produces permanent inadmissibility after removal. A lawful permanent resident convicted of an aggravated felony faces removal with essentially no lawful path back into the United States. These consequences apply regardless of how long the person has lived in the country or whether they have citizen family members.