CALCRIM No. 600. Attempted Murder (Pen. Code, §§ 21a, 663, 664)

Judicial Council of California Criminal Jury Instructions (2023 edition)

Download PDF

G. ATTEMPT

600.Attempted Murder (Pen. Code, §§ 21a, 663, 664)

The defendant is charged [in Count ] with attempted murder.

To prove that the defendant is guilty of attempted murder, the People

must prove that:

1. The defendant took at least one direct but ineffective step toward

killing (another person/ [or] a fetus);

AND

2. The defendant intended to kill (that/a) (person/ [or] fetus).

Adirect step requires more than merely planning or preparing to commit

murder or obtaining or arranging for something needed to commit

murder. A direct step is one that goes beyond planning or preparation

and shows that a person is putting his or her plan into action. A direct

step indicates a definite and unambiguous intent to kill. It is a direct

movement toward the commission of the crime after preparations are

made. It is an immediate step that puts the plan in motion so that the

plan would have been completed if some circumstance outside the plan

had not interrupted the attempt.

[A person who attempts to commit murder is guilty of attempted murder

even if, after taking a direct step toward killing, he or she abandons

further efforts to complete the crime, or his or her attempt fails or is

interrupted by someone or something beyond his or her control. On the

other hand, if a person freely and voluntarily abandons his or her plans

before taking a direct step toward committing the murder, then that

person is not guilty of attempted murder.]

[The defendant may be guilty of attempted murder even if you conclude

that murder was actually completed.]

[A fetus is an unborn human being that has progressed beyond the

embryonic stage after major structures have been outlined, which

typically occurs at seven to eight weeks after fertilization.]

[A person may intend to kill a primary target and also [a] secondary

target[s] within a zone of fatal harm or “kill zone.” A “kill zone” is an

area in which the defendant used lethal force that was designed and

intended to kill everyone in the area around the primary target.

In order to convict the defendant of the attempted murder of

<insert name or description of victim charged in attempted

365

murder count[s] on concurrent-intent theory>, the People must prove that

the defendant not only intended to kill <insert name of

primary target alleged> but also either intended to kill

<insert name or description of victim charged in attempted murder count[s]

on concurrent-intent theory>, or intended to kill everyone within the kill

zone.

In determining whether the defendant intended to kill

<insert name or description of victim charged in attempted murder count[s]

on concurrent-intent theory>, the People must prove that (1) the only

reasonable conclusion from the defendant’s use of lethal force, is that the

defendant intended to create a kill zone; and (2) <insert

name or description of victim charged in attempted murder count[s] on

concurrent-intent theory> was located within the kill zone.

In determining whether the defendant intended to create a “kill zone”

and the scope of such a zone, you should consider all of the

circumstances including, but not limited to, the following:

[• The type of weapon used(;/.)]

[• The number of shots fired(;/.)]

[• The distance between the defendant and <insert name

or description of victim charged in attempted murder count[s] on

concurrent-intent theory>(;/.)]

[• The distance between <insert name or description of

victim charged in attempted murder count[s] on concurrent-intent

theory> and the primary target.]

If you have a reasonable doubt whether the defendant intended to kill

<insert name or description of victim charged in attempted

murder count[s] on concurrent-intent theory> or intended to kill

<insert name or description of primary target alleged> by

killing everyone in the kill zone, then you must find the defendant not

guilty of the attempted murder of <insert name or

description of victim charged in attempted murder count[s] on concurrent-

intent theory>.]

New January 2006; Revised December 2008, August 2009, April 2011, August 2013,

September 2019, April 2020

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct on the elements of the crime of

attempted murder when charged, or if not charged, when the evidence raises a

question whether all the elements of the charged offense are present. (See People v.

CALCRIM No. 600 HOMICIDE

366

Breverman (1998) 19 Cal.4th 142, 154 [77 Cal.Rptr.2d 870, 960 P.2d 1094]

[discussing duty to instruct on lesser included offenses in homicide generally].)

The second bracketed paragraph is provided for cases in which the prosecution

theory is that the defendant created a “kill zone,” harboring the specific and

concurrent intent to kill others in the zone. (People v. Bland (2002) 28 Cal.4th 313,

331 [121 Cal.Rptr.2d 546, 48 P.3d 1107].) “The conclusion that transferred intent

does not apply to attempted murder still permits a person who shoots at a group of

people to be punished for the actions towards everyone in the group even if that

person primarily targeted only one of them.” (Id. at p. 329.)

The Bland court stated that a special instruction on this issue was not required. (Id.

at p. 331, fn. 6.) The bracketed language is provided for the court to use at its

discretion.

Give the next-to-last bracketed paragraph when the defendant has been charged only

with attempt to commit murder, but the evidence at trial reveals that the murder was

actually completed. (See Pen. Code, § 663.)

Penal Code section 188, as amended by Statutes 2018, ch. 1015 (S.B. 1437),

became effective January 1, 2019. The amendment added “malice shall not be

imputed to a person based solely on his or her participation in a crime.” The natural

and probable consequences doctrine as the basis for attempted murder may be

affected by this statutory change.

Related Instructions

CALCRIM Nos. 3470-3477, Defense Instructions.

CALCRIM No. 601, Attempted Murder: Deliberation and Premeditation.

CALCRIM No. 602, Attempted Murder: Peace Offıcer, Firefighter, Custodial Offıcer,

or Custody Assistant.

CALCRIM No. 603, Attempted Voluntary Manslaughter: Heat of Passion - Lesser

Included Offense.

CALCRIM No. 604, Attempted Voluntary Manslaughter: Imperfect Self-

Defense - Lesser Included Offense.

AUTHORITY

• Attempt Defined. Pen. Code, §§ 21a, 663, 664.

• Murder Defined. Pen. Code, § 187.

• Specific Intent to Kill Required. People v. Guerra (1985) 40 Cal.3d 377, 386

[220 Cal.Rptr. 374, 708 P.2d 1252].

• Fetus Defined. People v. Davis (1994) 7 Cal.4th 797, 814-815 [30 Cal.Rptr.2d

50, 872 P.2d 591]; People v. Taylor (2004) 32 Cal.4th 863, 867 [11 Cal.Rptr.3d

510, 86 P.3d 881].

• Kill Zone Explained. People v. Canizales (2019) 7 Cal.5th 591, 607-608 [248

Cal.Rptr.3d 370, 442 P.3d 686]; People v. Stone (2009) 46 Cal.4th 131, 137-138

[92 Cal.Rptr.3d 362, 205 P.3d 272].

HOMICIDE CALCRIM No. 600

367

• This Instruction Correctly States the Law of Attempted Murder. People v.

Lawrence (2009) 177 Cal.App.4th 547, 556-557 [99 Cal.Rptr.3d 324].

LESSER INCLUDED OFFENSES

Attempted voluntary manslaughter is a lesser included offense. (People v. Van Ronk

(1985) 171 Cal.App.3d 818, 824-825 [217 Cal.Rptr. 581]; People v. Williams (1980)

102 Cal.App.3d 1018, 1024-1026 [162 Cal.Rptr. 748].)

RELATED ISSUES

Specific Intent Required

“[T]he crime of attempted murder requires a specific intent to kill . . . .” (People v.

Guerra (1985) 40 Cal.3d 377, 386 [220 Cal.Rptr. 374, 708 P.2d 1252].)

In instructing upon the crime of attempt to commit murder, there should never

be any reference whatsoever to implied malice. Nothing less than a specific

intent to kill must be found before a defendant can be convicted of attempt to

commit murder, and the instructions in this respect should be lean and

unequivocal in explaining to the jury that only a specific intent to kill will do.

(People v. Santascoy (1984) 153 Cal.App.3d 909, 918 [200 Cal.Rptr. 709].)

Solicitation

Attempted solicitation of murder is a crime. (People v. Saephanh (2000) 80

Cal.App.4th 451, 460 [94 Cal.Rptr.2d 910].)

Single Bullet, Two Victims

A shooter who fires a single bullet at two victims who are both in his line of fire

can be found to have acted with express malice toward both victims. (People v.

Smith (2005) 37 Cal.4th 733, 744 [37 Cal.Rptr.3d 163, 124 P.3d 730]. See also

People v. Perez (2010) 50 Cal.4th 222, 225 [112 Cal.Rptr.3d 310, 234 P.3d 557].)

No Attempted Involuntary Manslaughter

“[T]here is no such crime as attempted involuntary manslaughter.” (People v.

Johnson (1996) 51 Cal.App.4th 1329, 1332 [59 Cal.Rptr.2d 798].)

Transferred and Concurrent Intent

“[T]he doctrine of transferred intent does not apply to attempted murder.” (People v.

Bland (2002) 28 Cal.4th 313, 331 [121 Cal.Rptr.2d 546, 48 P.3d 1107].) “[T]he

defendant may be convicted of the attempted murders of any[one] within the kill

zone, although on a concurrent, not transferred, intent theory.” (Id.)

Kill Zone Theory

Give the kill zone instruction “only in those cases where the court concludes there

is sufficient evidence to support a jury determination that the only reasonable

inference from the circumstances of the offense is that a defendant intended to kill

everyone in the zone of fatal harm. The use or attempted use of force that merely

endangered everyone in the area is insufficient to support a kill zone instruction.”

(People v. Canizales (2019) 7 Cal.5th 591, 608 [248 Cal.Rptr.3d 370, 442 P.3d

686].)

CALCRIM No. 600 HOMICIDE

368

SECONDARY SOURCES

1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, §§ 56-71.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,

Challenges to Crimes, § 140.02[3]; Ch. 141, Conspiracy, Solicitation, and Attempt,

§ 141.20; Ch. 142, Crimes Against the Person, § 142.01[3][e] (Matthew Bender).

HOMICIDE CALCRIM No. 600

369

Page last reviewed May 2023