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

Judicial Council of California Criminal Jury Instructions (2020 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.]
<Give when kill zone theory applies>
[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
393
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
394
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
395
• 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
396
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
397

© Judicial Council of California.