An attempted murder charge in California is one of the most serious felonies a person can face. Unlike many other violent crimes, a conviction does not require that anyone was actually killed. The prosecution only needs to prove that the defendant took a direct step toward killing someone with the intent to do so. A conviction can result in a sentence ranging from five years in state prison to life with the possibility of parole, and that range expands significantly when sentence enhancements apply.
What follows covers how California law defines attempted murder, how courts distinguish between first and second degree charges, what the penalties look like at each level, and what defense strategies are available. If you or someone you know is facing these charges, the attempted murder defense attorneys at Manshoory Law Group can review the specifics of your situation.
How California Law Defines Attempted Murder
Under California Penal Code 664 and Penal Code 187, attempted murder requires the prosecution to prove two distinct elements beyond a reasonable doubt:
- Specific intent to kill: The defendant must have had a deliberate and conscious purpose to take the life of another person. An intent to injure or seriously harm is not sufficient. The prosecution must establish that the goal of the act was death.
- A direct, ineffectual act toward killing: The defendant must have taken at least one concrete step toward carrying out the killing, beyond mere preparation or planning. Simply buying a weapon or making a threat is generally not enough. The act must move directly toward execution of the intent.
This is an important distinction from other violent offenses. Pointing a loaded firearm at someone and pulling the trigger, even if the gun misfires or the shot misses, can satisfy both elements. In contrast, assault with a deadly weapon under Penal Code 245 does not require any intent to kill, which is why it carries significantly lower penalties. The line between these charges often becomes the central issue in the defense strategy.
California courts have also recognized the “kill zone” theory: a defendant who attempts to kill a primary target by using lethal force in a manner that creates a zone of fatal harm for everyone in the area can face attempted murder charges for each person in that zone, even if only one person was the intended target.
First Degree vs Second Degree Attempted Murder
California divides attempted murder into two degrees, and the distinction between them is based almost entirely on whether the underlying act was carried out in a willful, deliberate, and premeditated manner, meaning the perpetrator must have consciously intended to kill, carefully weighed the decision beforehand, and planned the act in advance rather than acting impulsively or in the heat of the moment.
First Degree Attempted Murder
A charge rises to first degree when the prosecution can prove the defendant planned or deliberated the killing in advance. Premeditation does not require days or weeks of planning. California courts have found premeditation in situations where the decision to kill was made moments before the act, as long as there was a rational, considered intent rather than a purely impulsive reaction. Attacks on peace officers or firefighters in the performance of their duties are automatically charged as first degree under Penal Code 664(e).
Second Degree Attempted Murder
Second degree applies when the intent to kill existed but the act was not premeditated. A sudden attack in the heat of an argument that the prosecution argues was intended to kill, without advance planning, is the typical second degree scenario. The absence of premeditation does not make the charge minor. Second degree attempted murder is still a serious felony and a strike offense under California law.
Comparison of first and second degree attempted murder:
| First Degree | Second Degree | |
| Base sentence | Life with possibility of parole | 5, 7, or 9 years (state prison) |
| Parole eligibility | Minimum 7 years served | After serving 85% of sentence |
| Premeditation required | Yes | No |
| Three strikes | Yes, counts as strike | Yes, counts as strike |
Penalties and Sentencing for Attempted Murder in California
First Degree Attempted Murder
A conviction for first degree attempted murder carries a sentence of life in state prison with the possibility of parole. The defendant must serve a minimum of seven calendar years before becoming eligible for parole consideration. In practice, parole boards evaluate a wide range of factors, and many individuals serve substantially longer before release is granted.
Second Degree Attempted Murder
Second degree attempted murder carries a determinate sentence of five, seven, or nine years in state prison. The court selects one of these three terms based on aggravating and mitigating factors. Because this is a violent felony and a strike offense, the defendant must serve at least 85 percent of the sentence before becoming eligible for release.
Both degrees are classified as serious and violent felonies under California’s Three Strikes Law. A person with a prior strike conviction who is convicted of attempted murder will receive a doubled sentence. A person with two prior strikes faces 25 years to life. For a detailed explanation of how strike priors affect sentencing, see the discussion of California’s three strikes law.
Sentence Enhancements That Increase Penalties
The base sentence for attempted murder is only the starting point in California’s sentencing framework, as several sentencing enhancements can add years or even decades to the original term, and in certain circumstances the application of these enhancements is mandatory, meaning the court has no discretion to set them aside regardless of the specific facts or mitigating circumstances of the case.
Firearm Enhancements (Penal Code 12022.53)
California’s “10-20-life” firearm enhancement law applies directly to attempted murder convictions. The three thresholds are:
- Using a firearm during the offense: +10 years
- Personally and intentionally discharging a firearm: +20 years
- Personally and intentionally discharging a firearm and causing great bodily injury: +25 years to life
All three enhancements run consecutive to the base sentence, meaning they are added on top of the underlying attempted murder term, not served alongside it.
Gang Enhancement (Penal Code 186.22)
If the prosecution can establish that the attempted murder was committed for the benefit of, at the direction of, or in association with a criminal street gang, an additional 10 years is added for a second degree conviction. For first degree attempted murder with a gang finding, the minimum parole eligibility date increases to 15 years.
Attempted Murder of a Peace Officer (Penal Code 664(e))
When the victim is a peace officer, firefighter, paramedic, or other specified public safety personnel acting in the line of duty and the defendant knew or reasonably should have known the victim’s status, the charge is automatically first degree and carries a minimum parole eligibility of 15 years. If the act was premeditated, the minimum parole eligibility increases to 25 years.
Great Bodily Injury Enhancement (Penal Code 12022.7)
If the victim suffered great bodily injury as a direct result of the attempted murder, California law allows for an additional three to six years to be added on top of the base sentence, with the precise number of years determined by the court based on the overall severity of the injuries sustained and the specific circumstances surrounding how those injuries were inflicted.
Attempted murder is one of the most vigorously prosecuted charges in California, but the prosecution’s burden is also higher than many people realize. The requirement to prove specific intent to kill beyond a reasonable doubt creates several viable avenues for defense.
Absence of Intent to Kill
This is the most commonly raised defense. If the evidence supports that the defendant intended to injure rather than kill, or acted recklessly without a specific intent to cause death, the charge may not be supported. An expert in wound patterns, trajectory analysis, or the mechanics of the alleged act can be critical in establishing that the facts are inconsistent with an intent to kill.
Self-Defense and Defense of Others
California law permits the use of force, including lethal force, when a person reasonably believes they or someone else faces an imminent threat of death or great bodily injury. If the defendant acted in response to a genuine and reasonable threat, self-defense may completely negate criminal liability. The boundaries of California’s self-defense law are more nuanced than most people realize, and the legal standards for self-defense in California are worth understanding in detail.
Mistaken Identity
Eyewitness testimony is one of the most frequently challenged forms of evidence in criminal cases. Misidentification is a leading cause of wrongful conviction in the United States. When the prosecution’s case rests heavily on a witness’s identification of the defendant, cross-examination of the identification procedure, lighting conditions, witness reliability, and any suggestive police conduct can undermine the foundation of the case.
Challenging the Overt Act Element
The prosecution must prove that the defendant took a direct step toward the killing, not merely prepared for it. In cases where the alleged act was ambiguous or where the defendant stopped before completing the act, arguing that no sufficient overt act occurred can be an effective challenge to the charge itself.
Voluntary Intoxication
While voluntary intoxication is not a defense to general criminal intent, California allows it to be raised to negate the specific intent required for attempted murder. If the defendant was so intoxicated that they were incapable of forming the specific intent to kill, the attempted murder charge may not be provable, though this may still result in conviction on a lesser offense.
Frequently Asked Questions
How many years do you get for attempted murder in California?
Second degree attempted murder carries five, seven, or nine years in state prison. First degree attempted murder carries a life sentence with parole eligibility after a minimum of seven years. Sentence enhancements for firearm use, gang involvement, or the status of the victim can add decades on top of the base sentence. For context on how these sentences compare to completed homicide charges, see the overview of murder, homicide, and manslaughter in California.
Is attempted murder a strike in California?
Yes. Both first and second degree attempted murder are classified as serious and violent felonies under Penal Code 1192.7 and 667.5. Any attempted murder conviction counts as a strike, which means a subsequent felony conviction will result in a doubled sentence, and a second attempted murder conviction could trigger a 25-years-to-life sentence under the three strikes law.
Can attempted murder charges be reduced?
Yes, in some circumstances. If the evidence does not support specific intent to kill, a charge may be reduced to assault with a deadly weapon, mayhem, or another violent felony. In cases involving heat of passion or imperfect self-defense, a reduction to attempted voluntary manslaughter may be possible. These reductions require strong factual support and typically arise from effective pretrial litigation or negotiation.
What is the difference between attempted murder and assault with a deadly weapon?
The central difference is intent. Attempted murder requires proof that the defendant specifically intended to cause death. Assault with a deadly weapon under Penal Code 245 requires only that the defendant willfully committed an act with a deadly weapon likely to cause great bodily injury. A person can be convicted of assault with a deadly weapon even if they had no intent to kill. This makes the intent element in attempted murder both harder to prove and more important to challenge.
Can you get parole for attempted murder in California?
Yes, but the timeline depends on the degree of the conviction and any applicable minimums. Second degree attempted murder requires serving 85 percent of the sentence before parole eligibility. First degree attempted murder requires serving a minimum of seven calendar years, with that minimum extending to 15 or 25 years when gang or peace officer enhancements apply. The parole board evaluates conduct, rehabilitation, and risk factors before granting release. For more on how parole works compared to probation, see the difference between parole and probation.
Facing Attempted Murder Charges in California
Attempted murder charges move quickly and carry consequences that follow a person for the rest of their life. The difference between a life sentence and a determinate term, or between a conviction and an acquittal, frequently comes down to how early and how aggressively the defense was engaged. The specific intent requirement, the overt act element, and the availability of enhancements all create points where a skilled defense attorney can make a meaningful difference in the outcome.
If you are facing attempted murder charges or are under investigation for a violent offense, contact Manshoory Law Group for a free case analysis. The attorneys at Manshoory Law have handled serious violent felony cases throughout Southern California and can assess your situation, identify your strongest defenses, and start building your case from day one.