Criminal Law

600. Attempted Murder

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 (person/ [or] fetus).

A direct 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.]

[A person may intend to kill a specific victim or victims and at the same time intend to kill anyone in a particular zone of harm or "kill zone." In order to convict the defendant of the attempted murder of <insert name of victim charged in attempted 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 of victim charged in attempted murder count[s] on concurrent-intent theory>, or intended to kill anyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill <insert name of victim charged in attempted murder count[s] on concurrent-intent theory> or intended to kill <insert name of primary target alleged> by harming everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of <insert name of victim charged in attempted murder count[s] on concurrent-intent theory>.]

[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 occurs at seven to eight weeks of development.]

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. 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 penultimate 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 anyone in the zone. (People v. Jomo K. 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. at p. 331.) In such cases,

[t]he defendant has intentionally created a "kill zone" to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim.

(Id. at p. 330, quoting Ford v. State (1993) 330 Md. 682, 717 [625 A.2d 984].) 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.)

Related Instructions

CALCRIM Nos. 3470-3477, Defense Instructions.

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

CALCRIM No. 602, Attempted Murder: Peace Officer or Firefighter.

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].

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, §§ 53-67.

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).

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].)

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.)

(New January 2006)