California Criminal Jury Instructions (CALCRIM) (2017)

600. Attempted Murder

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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.]
[A person may intend to kill a specific victim or victims and at the same
time intend to kill everyone in a particular zone of harm or “kill zone.”
In order to convict the defendant of the attempted murder of
<insert name or description 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 or description of victim charged in attempted murder count[s]
on concurrent-intent theory>, or intended to kill everyone within the kill
zone. 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
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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>.]
[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.]
New January 2006; Revised December 2008, August 2009, April 2011, August 2013
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 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.)
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.
CALCRIM No. 600 HOMICIDE
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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. Stone (2009) 46 Cal.4th 131, 137–138 [92
Cal.Rptr.3d 362, 205 P.3d 272].
• Killer Need Not Be Aware of Other Victims in Kill Zone. People v. Adams
(2008) 169 Cal.App.4th 1009, 1023 [86 Cal.Rptr.3d 915].
• This Instruction Correctly States the Law. People v. Lawrence (2009) 177
Cal.App.4th 547, 556–557 [99 Cal.Rptr.3d 324]
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, §§ 53–67.
6Millman, 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].)
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.
HOMICIDE CALCRIM No. 600
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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.)
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