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Best Defenses in California Murder and Attempted Murder Charges

Posted by Sam Israels | Nov 06, 2019

In all California criminal courthouses, murder and attempted murder charges are some of the most serious violent crime cases prosecuted. In Los Angeles County, murder cases are aggressively investigated by all law enforcement agencies.

If convicted, the penalties are severe. For example, a second-degree murder conviction carries 15 years to life in prison. Obviously, a first-degree or capital murder conviction carries more severe penalties.

California Penal Code 187 PC describes murder as causing the death of someone with “malice aforethought” – meaning a conscious depraved state of mind intent to cause death or great bodily injury to another person before committing the crime.

It should be noted that “malice” is a crucial element of the crime in order for a prosecutor to prove a murder case. Attempted murder cases are frequently punished almost as harshly as a murder. For example, under Penal Code 664/187 PC, you could be facing up to 9 years in prison if convicted for attempted murder.

If you were charged with attempted murder, a prosecutor has to prove – beyond reasonable doubt – two crucial elements of the crime. First, it must be shown you took a direct step to kill someone. Next, it must also be shown you had intent to kill them. A “direct step” is something more than just a plan to murder someone – rather – it's an actual step to put the plan in motion.

As stated, a conviction for PC 664/187 attempted murder, or PC 187 murder, could result in a life sentence in California prison, or in a “special circumstances” case, the death penalty.

Having an experienced criminal defense attorney is critical to the outcome of the case. Every case is unique and any strategy will depend on the specific details – but there are some common defenses strategies which can be used in many attempted murder or murder cases.

To give readers useful information, our Los Angeles criminal defense lawyers are providing an overview of common defenses against murder and attempted murder charges below.


We might be able to make a self-defense argument in a murder or attempted murder case, but it will depend on the specific details.

Unlike an act in a heat of passion provocation, any act that occurred in self-defense causing the death of someone is not murder – or even any type of crime. Under California law, you have the right to defend yourself using physical force.  However, questions always arise about what level of force is reasonable under the circumstances.

For example, if you discover an armed burglar inside your home in the middle of the night and who confronts you with their weapon – but you shoot them casing their death – then clearly you were acting reasonably under the circumstances.

This is a clear-cut case of self-defense and you probably would not even be charged with Penal Code 187 murder – much less face a conviction. However, most claims of self-defense are not this simple and normally involve a somewhat shady pattern.

A criminal defense might make an argument their client was placed in a situation that required them to respond with potentially deadly force in order to protect themselves, or someone else, from imminent danger or great bodily harm.

The primary question of whether or not the force used was reasonable under the circumstances – qualifying as a legitimate act of self-defense – is often a major issue in Penal Code 187 murder, or Penal Code 664/187 attempted murder trials.

Mistaken Identification

Studies have shown that mistaken identification is a common reason for a wrongful conviction. There are a wide range of factors causing an eyewitness the inability to correctly identify criminal suspects.

These crucial factors include stressful heat of the moment – fixation on the weapon – intoxicated eyewitness – passing of time – and even police detectives making improper suggestions.

This means a criminal lawyer might be able to use a false identification defense for their clients facing murder or attempted murder charges. In some cases, it's not always and open and shut case – beyond a reasonable doubt – as to the correct identity of a suspect.

There is an inherent unreliability of eyewitness testimony. This is especially true when an eyewitness is facing a stressful life or death situation – and their memory is unreliable.

This is not to suggest eyewitness are intentionally lying. They might honestly believe they observed someone at the crime scene, when it fact it was someone else.

There are other factors that contribute to false identification, such as personal bias, assumption, and even confusion could cause a witness to improperly identify a murder suspect.

Heat of Passion

This type of argument is not normally a complete defense to a charge of murder or attempted murder, but a crime that was committed in the “heat of passion” might qualify for a lesser charge by law, such as a manslaughter charge.

Someone acts in the heat of passion when reasonably provoked to immediate action due to someone else's actions – or even by the circumstances with which they are confronted.

The classic example of acting in the “heat of passion” includes the spouse returning home to find their spouse in bed someone else.

If that spouse instantly flies into a rage at this discovery, pulls out a handgun on their person, and attempts, or actually shoots and kills the stranger, then there might be valid argument their behavior qualifies as a lesser crime of manslaughter, rather than murder or attempted murder charges.

Obviously, the specific facts and circumstances of the provocation claimed by any defendant will determine whether a jury might find their response reasonable or not.

Insanity Defense

A much less common defense argument that is only used in limited cases includes an insanity defense. Depending on the level PC 187 murder charged, a defendant has to possess a certain mental state. For example, in a Penal Code 187 first-degree murder charge, a defendant must normally have had intent to kill the victim.

In cases where they might be suffering from a severe mental illness that prevented them from appreciating the nature or wrongness of their actions, they might be deemed legally insane, which is a complete defense in murder cases.

However, finding a defendant not guilty by reason of insanity doesn't result in their release from jail without consequences. The normal result after a jury finds that they committed attempted murder or murder by reason of insanity is a commitment to the State Hospital.

They would be subjected to a program of rehabilitation in an attempt to restore their sanity by using medications and psychological treatments.

Next Step in Preparing Your Defense

It's important to note that all criminal cases of Penal Code 664/187 attempted murder, or Penal Code 187 murder, are fact-specific.

A reasonable defense argument to these type of serious violent crime allegations will always depend on an extensive review of the physical evidence, witnesses, and any other type of evidence the prosecutor will use at the trial.

If you or a family member has been charged with a California murder or attempted murder case, contact our criminal defense attorneys for a consultation. Early intervention into the case by our law firm can be crucial to the outcome. We serve clients throughout Southern California and the greater Los Angeles area.

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About the Author

Sam Israels

Sam J. Israels is a Law Firm partner with the Law Offices of Cron, Israels, & Stark. Mr. Israels received his J.D. degree from the Santa Clara University School of Law. Mr. Israels also previously worked at the Los Angeles Office of the City Attorney. He is admitted to practice law in the State o...

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