Attempt
Category > Attempt
Updated 2/26/2024Defendant’s first degree murder conviction was reversed where he was prosecuted under three theories including the natural and probable consequences theory of aiding and abetting that was included in Chiu.Defendant was prosecuted for first degree murder under three theories, including the natural and probable consequences theory of aiding and abetting. The court instructed on all three theories. After trial, the state Supreme Court ruled in People v. Chiu (2014) 59 Cal.4th 155, that a person cannot be convicted of first degree murder under that theory. The prosecutor argued retrial was unnecessary because the record showed that the jury convicted under another valid theory. However, during deliberations the jury asked about the natural and probable consequences theory and returned a verdict shortly after that. Reversal of the conviction was required.id: 24691
Updated 2/26/2024Kill zone theory of attempted murder only applies where a defendant intends to kill all people located in the harm zone.Defendant was convicted of attempted murder under the kill zone theory. However, that theory may only be used in cases where a person shoots into a crowd intending to kill everyone in order to ensure that he kills the primary target. It doesn’t apply where, as here, the defendant acts with the intent to kill the primary target but with only conscious disregard of the risk that others may be injured or killed. There was insufficient evidence to support the kill zone theory in this case and the attempted murder conviction was overturned.id: 26245
Updated 2/23/2024Canizales applies retroactively to defendant’s case and his attempted murder convictions based on the “kill zone” theory were reversed. The trial court improperly instructed the jury on the “kill zone” theory for the multiple attempted murder counts. On June 224th, 2019, the California Supreme Court held in People v. Canizales (2019) 7 Cal.5th. 591, that the theory only applies where the defendant intends to kill everyone present in his zeal to kill the victim. Canizales applies retroactively to defendant’s convictions, and the error was prejudicial under the facts.id: 26886
Updated 2/22/2024Kill zone instruction was improper where the evidence did not show that defendant intended to kill everyone in order to ensure killing the victim. There was insufficient evidence to support an instruction on the kill zone theory for the attempted murder counts. While the evidence showed defendant intended to kill Armando, it did not show that he intended to create a kill zone in order to do so.id: 26957
Updated 2/7/2024The trial court erred in giving the “kill zone” theory instruction where the defendants fired into a car intending to kill the victim. Defendants fired five shots into a car killing Raya, the intended target, but not Lott. They were convicted of the attempted murder of Lott under the “kill zone” theory. However, instructing on the kill zone theory was erroneous because the evidence did not support an inference that the defendants intended to kill Raya by killing everyone in the car.id: 27130
The kill zone instruction did not allow jurors to convict defendant of something less than express malice for each attempted murder victim. Defendant argued the trial court instruction on the kill zone theory of attempted premeditated murder (CALCRIM No. 600) allowed the jury to convict him of all four counts of attempted murder if they intended to kill the person who died and at least one of the victims of the attempted murder counts. However, a reasonable juror would not have interpreted the instruction to allow for a conviction on something less than express malice or an intent to kill each victim.id: 25815
The life terms for the premeditated attempted murder findings were unauthorized due to the prosecution’s failure to plead the allegations.The life terms following the finding that the attempted murders were premeditated and deliberate were stricken where the prosecution failed to plead premeditation under Penal Code section 664, subd.(a). The issue was not forfeited where the evidence did not show the defendant was given notice of the allegation. While the prosecutor referenced the allegation there was no evidence that defendant was present, informed of the charge, or that he waived his right to object.id: 25467
The trial court prejudicially erred by instructing on the kill zone theory of attempted murder absent evidence that defendant intended to kill others in the crowd in an effort to kill the victim.Defendant fired his weapon at the victim at a crowded party after the victim had stabbed him. Because defendant had provoked the victim, the shooting was not justifiable self-defense. Nevertheless, defendant’s primary motivation was to defend himself. No witness testified that defendant sprayed everyone near the victim with gunfire in an effort to kill the victim. Therefore, the trial court erred by instructing on the kill zone theory of attempted murder.id: 24652
The instruction on the “kill zone” theory of liability for attempted murder is misleading and legally erroneous.The trial court prejudicially erred by instructing the jury with CALJIC 8.66.1, a legally erroneous and misleading instruction on the “kill zone” theory of liability for attempted murder. The instruction fails to define “kill zone.” And although attempted murder is a specific intent crime, the instructions make no reference to specific intent. Finally, while the instruction speaks of “concurrent intent,” it fails to tie the concept to the specific intent necessary for attempted murder. id: 24053
Life sentences for the attempted murder convictions violated the defendants’ due process rights where the information did not allege the attempted murders were willful, deliberate and premeditated.Defendants’ life sentences for the attempted murder counts violated Penal Code section 664, subd.(a) and their due process rights because the fact that the attempted murders were willful, deliberate and premeditated was not charged in the information and defendants had no notice before sentencing that they were facing life terms for the convictions. Because the record shows the defendants were unaware of the issue they did not forfeit the claims by failing to raised them in the trial court.id: 24054
The evidence was insufficient to support attempted murder convictions for five of the ten counts where it did not show defendant fired on those victims. Defendant was involved in a shootout with police as he fired 55 shots from a house the police had surrounded. He was going to kill or be killed. He was convicted of 10 counts of attempted murder of a police officer. However, the evidence only supported five convictions. Where there are multiple possible victims of an attempted murder, the prosecution must establish defendant intended to kill each victim for each count charged. There was no evidence that five of the alleged victims were directly fired upon so the evidence did not establish an intent to kill those officers.id: 23449
The evidence only supported eight attempted murder convictions where defendants fired 10 shots into a crowd at a party and two people were killed. Defendants fired 10 shots at a crowded party, killing two and injuring another. The evidence was insufficient to support 46 counts of attempted murder as there was no evidence they intended to kill more than one person per bullet and no evidence that they had more than 10 bullets. The evidence was only sufficient to support eight attempted murder convictions. id: 22988
The appellate court having reversed the escape conviction for insufficient evidence of a completed escape, could not reduce the conviction to attempted escape.After finding insufficient evidence to support a conviction for escape from state prison, an appellate court may not reduce the conviction to attempted escape, as the attempt is not a lesser included offense of escape and the trial court did not instruct the jury on attempt to escape.id: 22785
Evidence supported only a single count of attempted murder where defendant fired a single shot at a group of people targeting no one but striking a single officer. Defendant fired a bullet from a car at a group of police officers who were congregated in a dimly lit parking lot. Evidence showed defendant believed he was firing at a rival gang but he targeted no specific person. The bullet hit one officer in the hand. He was convicted of seven counts of attempted premeditated murder of a police officer. However, the evidence supported only a single count of attempted premeditated murder of a police officer.id: 21708
Defense counsel rendered ineffective assistance by failing to object to the prosecutor's misstatements of law regarding concurrent intent.Defendant was convicted of four counts of willful and premeditated attempted murder. The trial court did not err by failing to instruct sua sponte that in order to find defendant guilty of a count of attempted murder, it was necessary to find he had the specific intent to kill the person named as the victim in that count. However, the prosecutor committed misconduct by misstating the law when arguing it was unnecessary to find such intent if the named victim was in the "zone of danger" created when defendant fired gunshots indiscriminately at a group of people. Defense counsel was prejudicially ineffective in failing to object to the prosecutor's misstatements of law as to three of the attempted murder counts.id: 18597
Minor was wrongly found to have assisted a suicide under section 401 where the suicide attempt failed.Minor was alleged to have willfully and deliberately aided, advised or encouraged a suicide in violation of Penal Code section 401. However, the juvenile petition was wrongly sustained because the victim's suicide attempt failed, despite the minor's active encouragement and furnishing the intended means of suicide. The minor's actions did amount to a culpable attempt to deliberately aid, advise or encourage another to commit suicide.id: 16529
Evidence of threat to extort money from a woman if she worked as a prostitute in the future was insufficient to support the attempted extortion conviction.Defendant was convicted of attempted extortion. However, the evidence showed defendant threatened to extort money from a woman if she returned to working as a prostitute in the future. The conversation showed the preparation stage of a possible future crime, and did not establish the crime of attempted extortion.id: 17768
Defendant who submitted a false application to a gun dealer could not be charged with attempted possession of a firearm by a felon. Defendant, a felon, submitted a false application to purchase a firearm. The prosecutor argued the crime was attempted possession of a firearm by a felon. However, no such crime exists. Instead, defendant could only be prosecuted under the special statute, Penal Code section 12076 which expressly proscribes such false applications.id: 18220
Evidence did not support the conviction for attempting to manufacture hashish because without the key ingredient of marijuana, defendant was still in the planning stage.Defendant was convicted of attempting to manufacture hashish. However, the conviction was reversed where there was no evidence that defendant ever advanced beyond the planning or preparation stage. While he had certain pieces of unassembled equipment that might be used in the process, he did not possess the key ingredient, marijuana, at the time of the arrest. He therefore had no ability to begin manufacturing hashish.id: 20768
"Kill zone" theory did not apply to defendant charged with the attempted murder of a named person.Defendant was convicted of the premeditated attempted murder of Joel F. The trial court erred in giving a modified "kill zone" instruction (CALCRIM No. 600) because defendant was charged with attempted murder of a specific person as opposed to others in the group on which defendant fired the gun. The error required reversal in light of the prosecutor's argument which focused on the erroneous theory of guilt.id: 20201
Evidence was insufficient to support the finding that minor made a criminal threat where there was no showing of actual fear, but the evidence did support an attempted criminal threat.The evidence was insufficient to find the minor made a criminal threat against Mejia, who was not a witness at the adjudication. The testimony by the other victim, Cerritos, that "everybody got scared" was insufficient to prove that Mejia was scared, especially where the court questioned him on his claim and he clarified that he was scared. However, the evidence supported the minor's guilt of attempted criminal threat where all elements were established except whether Mejia actually experienced fear upon hearing the threat.id: 18949
The trial court prejudicially erred by giving conflicting instructions on the required state of mind for attempted murder.Defendant was convicted of attempted murder. However, the trial court gave conflicting instructions on the required state of mind for attempted murder. It first gave CALJIC 8.66 which expressed that attempted murder requires the specific intent to kill. It then gave CALJIC 8.11 which reintroduced the concept of implied malice and informed the jurors that either express or implied malice would establish malice aforethought. The error was prejudicial under the Chapman standard where the prosecutor argued that implied malice was sufficient to sustain a conviction, and the jury expressed confusion about the necessary intent.id: 18346
Court erred in failing to instruct the jury that the crime of attempted murder requires proof of specific intent to kill.The trial court erred in failing to tell the jury that the crime of attempted murder requires proof of express malice and a specific intent to kill. No evidence was presented that the person who shot the victim intended to kill him, nor was the jury told they were required to find the perpetrator had such specific intent in order to convict defendant of aiding and abetting an attempted murder. The prejudicial effect of the instructional error was compounded by the court's failure to instruct the jury on the definition of aiding and abetting. Reversal was required since the issue of intent was removed from the jury's consideration.id: 9662
The doctrine of transferred intent is inapplicable as a means of assigning liability for attempted murder.Appellant shot four times at his intended victim and missed, but he accidentally hit a small boy playing a few feet away. He pled guilty to two counts of attempted murder. There was no factual basis for appellant's guilt of attempted murder of the innocent boy because the doctrine of transferred intent is inapplicable as a means of assigning liability for attempted murder. The attempted murder conviction of the boy was therefore set aside, leaving the other attempted murder conviction, two counts of aggravated assault and the GBI and weapon use enhancements intact.id: 9670
Updated 3/6/2024Attempted murder convictions were supported under the kill zone theory where the defendants shot multiple times at two people walking together.Defendants argued there was insufficient evidence of intent to kill to support the attempted murder conviction. However, the two defendants fired multiple shots at close range against two people who were walking side by side in close proximity to each other. Although Smith was the intended target, the circumstances suggest the defendants harbored the intent to kill everyone within that zone of harm. The attempted murder convictions were supported under the kill zone theory.id: 26591
Updated 3/6/2024Evidence that the defendants intended to kill everyone in the house supported the application of the kill zone theory.Evidence supported the multiple attempted murder convictions under the kill zone theory of liability. Defendants created a kill zone given the placement of the shots from the assault rifle at close range. The intent to kill everyone in the house was demonstrated by the manner of the shooting and knowledge of the victims’ specific locations was not necessary.id: 26649
Updated 2/26/2024Evidence supported the attempted murder convictions involving five unnamed rival gang members who were standing next to the murder victim.Defendant was convicted of one count of murder and five counts of premeditated attempted murder. He argued the evidence was insufficient to support the attempted murder counts because the five victims were unidentified and simply standing near the murder victim when defendant opened fire. However, the murder victim was the only intended target and the evidence supported the attempted murder convictions. Moreover, defendant said later that he shot at a group of rival gang members.id: 27254
Updated 2/26/2024The trial court properly instructed on the kill zone theory of attempted murder where defendant shot at a door intending to kill McKay and not knowing who else was present. The defendant was convicted of two counts of premeditated attempted murder among other things. The trial court did not err in instructing on the kill zone theory of attempted murder liability where defendant fired shots at two doors not knowing who was behind theme but intending to kill McKay, and police who he believed may have been about to apprehend him. id: 27496
Updated 2/4/2024The trial court properly instructed on the kill zone theory of attempted murder where defendant shot at a door intending to kill McKay and not knowing who else was present.The defendant was convicted of two counts of premeditated attempted murder among other things. The trial court did not err in instructing on the kill zone theory of attempted murder liability where defendant fired shots at two doors not knowing who was behind them but intending to kill McKay, and police who he believed may have been about to apprehend him. id: 27444
Updated 2/3/2024Following SB 775, the prosecution was given an opportunity to present evidence showing defendant was guilty of attempted murder under another theory.The trial court found defendant was not a major participant and did not act with reckless indifference to life for purposes of the murder. The Legislature then enacted SB 775, extending relief to attempted murder. Defendant argued he should get relief as to the attempted murder also since it arose from the same robbery as the murder. However, the court found the prosecution should be given the opportunity to present additional evidence to show defendant was guilty of attempted murder after the changes to the felony murder laws.id: 27533
Updated 2/3/2024Evidence supported the attempted home invasion robbery convictions where defendant was driving towards the target homes when stopped by police.Defendant argued that he did not get close enough to the targeted houses to commit attempted home invasion robbery. He was driving towards the houses and was minutes or seconds away from arriving when stopped by police. The law did not require that he reach the targeted homes or take further steps toward committing the crime in order for the jurors to find the requisite overt act.id: 26696
CALCRIM No. 1520 properly instructs on specific intent necessary to commit an attempted arson.Defendant was convicted of attempted arson under Penal Code section 455. Contrary to his claim, the instruction for that provision, CALCRIM No. 1520 is not ambiguous for failing to instruct on specific intent.id: 25456
Evidence supported the attempted burglary convictions where defendants drove from southern LA to the San Fernando Valley, knocked on doors and peered over fences. Defendants argued there was insufficient evidence to support the attempted burglary convictions because their acts of driving through neighborhoods and knocking on doors showed only preparation to commit burglary, which falls short if an overt act necessary to establish an intent. However, the jurors could reasonably conclude that the defendants’ acts constituted direct movement towards the commission of burglary even thought they decided not to complete the burglaries of certain homes they targeted.id: 24654
Defendant’s attempted murder conviction was supported by the evidence where he sat in the back seat and stared at passengers in a rival gang’s car before the front seat passenger opened fire on the other car. Evidence supported defendant’s attempted murder conviction. He was convicted as an aider and abettor as he sat in the back seat of a car that followed the car of a rival gang member, stared at the others in car, and was present when the front seat passenger fired at the gang rival’s car. A few days later defendant asked a rival whether the police had been contacted. Based on these facts and the gang expert’s testimony, the jury could have inferred that defendant knew of the shooter’s intent to kill, shared the intent and aided the shooter by spotting the target. id: 24248
It is for the jury to determine whether defendant created a kill zone for purposes of the attempted murder instruction. Defendants were convicted of attempted murder on a kill zone theory where an intent to kill one person in a group establishes an intent to kill everyone in the group. Contrary to defendant’s claim, the existence of a kill zone does not require a defined area that can be saturated with lethal force. It was for the jury to decide whether defendant created a kill zone when he fired and whether the victim was in it. Finally, the instructions given did not allow the jury to infer the intent to kill based merely on the victim’s presence in a zone of non-lethal harm.id: 23799
When instructing on attempted murder under a “kill zone” theory, it is for the jurors to determine whether defendant created a kill zone when he fired and whether the victims were in it.Defendants fired into a crowd intending to kill Pride. They were convicted of two counts of attempted murder of two others in the group under the “kill zone” theory. Contrary to defendants’ claims a kill zone does not require a specified defined area and it was for the jury to determine whether defendant created a kill zone when he fired and whether Bolden was in it. id: 23524
Evidence supported defendant’s attempted murder convictions where he shot into a crowd intending to kill two people who were not present.Defendant fired a gun into a crowd intending to kill two black males. However, the intended victims were not present in the group. Defendant argued he could not be convicted of attempted murder under a theory of attempted murder based on a theory of transferred intent. The prosecution argued the convictions were supported under the “kill zone” theory. Neither argument is correct. Instead, the convictions were supported by substantial evidence that he specifically tried to murder two people by shooting into a group of people where he thought they were. The fact that his targets were not present does not excuse him from liability for attempted murder because factual impossibility is not a defense to a charge of intent.id: 22060
Evidence supported the attempted murder conviction even though the prosecutor conceded defendant did not intend to kill the person named in the information and verdict.Defendant argued there was insufficient evidence to support the attempted murder conviction because there was no evidence that he intended to kill the person named in the information and verdict - Anita Rodriguez. The prosecutor conceded at trial that defendant did not intend to harm Rodriguez, but instead sought to kill members of a gang. However, the evidence supported the verdict. To the extent there was a variance between the charge and the evidence, defendant had adequate notice where the prosecutor argued that defendant intended to kill whoever was in the house into which he fired.id: 22390
Evidence supported the attempted murder of “John Doe” where defendant aimed his gun at Doe, but was interrupted by and shot the officers instead. When defendant drove through the intersection, he pulled himself up onto the window frame on the passenger side of his car, braced his arms on the roof and aimed at Doe, who was driving the Jeep. He changed his target only when he noticed the patrol car and shot at the officers instead. The evidence was sufficient to show that defendant intended to kill Doe.id: 22011
The prosecution's failure to plead that the attempted murders were willful, deliberate and premeditated required reversal of the life terms. Defendant's life sentences for the two attempted murder convictions were unauthorized and imposed in violation of federal due process requirements because the prosecution failed to allege those offenses were committed willfully, deliberately and with premeditation as required by the Penal Code section 664, subd.(a). id: 21894
Evidence did not support attempted murder of the driver where defendant fired a single shot from behind the car aimed at the front and rear passenger. Defendant fired a single bullet from behind the Camry into the right side of the passenger compartment endangering the passengers in the right back seat and the front passenger seat. Because the back seat passenger was a gang rival the evidence supported a finding of deliberation, premeditation and intent to kill those passengers. However, there could be no intent to kill the driver where the single shot was fired behind the other two passengers. The attempted murder of the driver was reversed.id: 21371
Where defendant attempted to steal Johnson’s marijuana, the evidence did not support the conviction of attempted robbery of Johnson’s new roommate who was also present.Defendant was convicted of the attempted robbery of Johnson and Rider, who was Johnson’s roommate. However, the evidence did not support the conviction of attempted robbery of Rider where the marijuana defendant attempted to steal belonged to Johnson, Rider did not have possession of it or access to the safe where Johnson stored it. Moreover, Rider had no obligation to protect Johnson’s belongings especially where Johnson was present to protect his own property. id: 21017
Evidence supported attempted premeditated murder where defendant fired shots into the victim’s bedroom after threatening to kill him, and assault with a firearm on the victim’s children who were also likely at home at the time of the shooting. After threatening to kill Gomez, defendant fired two shots into his master bedroom window. He knew Gomez was at home, and knew it was highly likely that his two children were home as well. The evidence supported the jury’s conclusion that defendant had the necessary mental states for the crimes of attempted premeditated murder of Gomez and assault with a firearm on the children.id: 20890
A conviction for attempted murder requires a generalized intent to kill someone, but not necessarily a specific target.A person who shoots into a group of people, intending to kill one in the group, but not knowing or caring which one can be convicted of attempted murder. The mental state required for attempted murder is the intent to kill a human being, not a particular human being.id: 20889
The trial court did not err in failing to instruct on assault with a firearm as a lesser included offense of attempted murder committed by the intentional discharge of a firearm.The trial court did not err in failing to instruct on assault with a firearm as a lesser included offense of attempted murder despite defendant’s claim that because the allegations set forth in the enhancements as part of the accusatory pleading, that under the elements test, the wrongful discharge of a firearm became an LIO of attempted murder.id: 20283
A person may be convicted of attempted murder under a natural and probable consequences aiding and abetting theory even if he or she did not personally premeditate the act.Defendant argued the instructions given improperly allowed the jurors to find premeditation for attempted murder, even though she was an aider and abettor who did not share the intent of the principals. However, a person may be convicted of premeditated attempted murder as an aider and abettor even if he or she did not personally act with deliberation and premeditation. This applies in a case involving the natural and probable consequences doctrine. Even if the instructions on premeditation were improper, the error was harmless where the jurors also convicted defendant of conspiracy to commit murder which requires a finding of premeditation and deliberation.id: 20036
Evidence supported the attempted murder charge where defendant solicited the murder of his sister and made a downpayment to the officer posing as an assassin. Defendant's conduct in soliciting the murder of his sister, reaching an agreement with an undercover officer posing as a hired assassin and making a downpayment under the agreement
established probable cause to believe defendant attempted the murder. The magistrate and trial court erred by dismissing the attempted murder charges.id: 19627
Evidence supported two attempted murder convictions where defendant fired a single shot into a slowly moving car narrowly missing a mother and her baby.Defendant was convicted of two counts of attempted murder where he fired a single shot into a slowly moving vehicle, narrowly missing a mother and her infant son. He argued the conviction for attempted murder of the baby must be reversed for lack of evidence of an intent to kill the child. However, because the mother and the child were in defendant's line of fire, and the single shot could have killed either, the jury could infer he intended to kill both.id: 18872
Evidence supported six-attempted murder convictions where defendant fired at a van full of people in response to a gang challenge.Defendant fired at close range at a van full of people in response to a gang challenge. His actions created a "kill zone." A jury could reasonably have found he intended to kill each of the van's occupants, but fortuitously succeeded in killing only one. The evidence supported six convictions for attempted murder.id: 18657
Evidence supported the five attempted murder convictions where defendant fired two shots at a group of five people.Evidence showed defendant fired two shots in the direction of five rival gang members. He claimed that because two shots could not have killed five people, the evidence was insufficient to show he attempted to kill all five people. However, the firing of only two shots was not dispositive and there was sufficient evidence that defendant committed other acts in furtherance of attempting to murder the five individuals.id: 18080
Evidence supported the attempted premeditated murder conviction where defendant ordered two people to the floor at gunpoint, and executed one, before the other escaped with his gun.Evidence supported the attempted murder conviction. The bartender's killing provided a model for the attempt to kill the bar patron. The patron, unlike the bartender, refused to lie on the floor and avoided defendant's choke hold. Defendant then pursued the patron out to the sidewalk which supported the finding that he intended to kill her. Moreover, evidence supported the finding that the attempted killing was premeditated and deliberate as the murder of the bartender showed defendant's intent to kill the patron from the time he pointed the revolver at her and ordered her to the floor, until she managed to escape and leave the bar with the gun.id: 17862
Penal Code section 664, subd.(a) does not require personal willfulness, deliberation, and premeditation on the part of an attempted murderer.Defendant argued that Penal Code section 664, subd.(a), which provides a life term if an attempted murder is willful, deliberate and premeditated, requires that the attempted murderer personally acted willfully and with premeditation if he or she is guilty as an aider and abettor. However, the provision requires only that the murder attempted was willful, deliberate and premeditated, but does not require that an attempted murderer have that state of mind, even if he or she is guilty as an aider and abettor.id: 17516
Sentencing range for attempted second degree robbery is set forth in section 213, subd.(b).Penal Code section 664 does not apply to convictions of attempted second degree robbery. Instead, section 213, subd.(b) specifically provides the punishment for the offense. The sentencing range is 16 months, two years, or three years. Accordingly, the trial court's imposition of one-third of two years (eight months) doubled to 16 months under the three strikes law was proper.id: 16724
Evidence supported first degree attempted murder conviction where defendant saw a rival gang member, flashed his gang sign and opened fire on the victim's truck.Evidence supported the attempted first degree murder conviction. It was clear that defendant thought before he acted where he saw the victim, threw his gang sign and opened fire on the victim's truck. Motive was established where the evidence showed the defendant and victim were members of rival gangs who had an ongoing violent feud. The manner of the attempted killing also indicated an intent to kill where defendant fired at least six shots from a distance of about 20 feet. Contrary to defendant's claim, the evidence did not show the victim provoked defendant.id: 16525
CALJIC 8.67, which requires the jury to make certain findings as a prerequisite to the imposition of an enhanced term under section 664 is not erroneous as applied to an aider and abettor.Defendant argued that one who aids and abets an attempted murder is not subject to the enhanced penalty provisions of former Penal Code section 664, subdivision (a), unless the jury finds that the aider and abettor personally premeditated the crime. However, the provision applied to aiders and abettors without regard to whether such persons personally harbored an intent to commit premeditated murder.id: 15310
Attempted forcible oral copulation is accomplished by a request for oral copulation along with the attempted or actual use of force.Defendant argued the evidence at the penalty phase was insufficient as a matter of law to establish defendant was guilty of attempted forcible oral copulation of June M. because the victim escaped from the car before any direct acts of the crime were demonstrated. However, a demand for oral copulation that follows or is accompanied by the actual or attempted use of force amounts to more than mere preparation.id: 15316
Defendant was properly convicted of two counts of attempted robbery even though he was stopped before he confronted either victim.Defendant argued that in situations where the perpetrator never comes into actual contact with the victims, the perpetrator can be convicted on only a single court of attempted robbery. Defendant acknowledged his intent to rob two people but claimed the intent was meaningless since the number of victims could have changed before he actually confronted them. However, since defendant intended to rob two people and his conduct went beyond mere preparation he was properly convicted of two counts of attempted robbery.id: 15317
Defendant convicted of an attempt crime was properly sentenced under the three strikes law rather than Penal Code section 664.When a current felony is an attempt crime and sentencing is in the context of the three strikes law, that law supersedes the general statute for punishment of attempts and governs the sentence that must be imposed.id: 15170
Evidence that defendant fired shots at people known to be rival gang members supported the attempted murder convictions.Defendant argued there was insufficient evidence of intent to kill regarding the attempted murder counts. However, the jury could reasonably have found that in driving by the victims three times defendant was stalking them; defendant knew he was in "Gardena 13" territory; he believed the three people standing on the corner were rival gang members; defendant by firing five shots at close range, hitting two victims and missing one, intended to kill all three; and defendant demonstrated consciousness of guilt by his flight, discarding of the weapon, and efforts to fabricate a defense. The evidence was more than sufficient to support the convictions.id: 9668
Failure to instruct on intent to kill for attempted murder was harmless where the prosecutor emphasized the requirement in his argument.The trial court erred in failing to limit the instructions on implied malice to the murder count. The court also erred in failing to instruct that intent to kill is an element of attempted murder. However, the error was not prejudicial to defendant because the prosecutor emphasized in his argument that in attempted murder there must be express malice and intent to kill.id: 9669
There is no requirement that the victim be alive for purposes of an attempted rape.Defendant argued the trial court erred in refusing his requested instruction that the victim must have been alive at the time the attempted rape commenced in order for defendant to have been convicted of attempted rape. He claimed the doctrine of legal impossibility precluded a conviction of attempted rape where the victim is not alive at the time of the attempt. However, a defendant may be guilty of attempted rape when the defendant intends to have non-consensual intercourse with a live victim, but unbeknownst to the defendant the victim is dead.id: 9671
Visiting a motel room with sex items intending to seduce young girls went beyond preparation and constituted an attempt.Defendant was convicted of attempted child molest. He argued the acts directly preceding his arrest represented only preparation for the intended offense and not an actual attempt. However, he went to the motel room where the young girls were supposed to be located. He brought with him sexual items which would aid in seducing the girls. When the deputy sheriff asked if he was ready to meet the girls, he responded in the affirmative. These acts went beyond mere preparation for sexual molestation.id: 9672
A defendant need not physically touch a victim to commit attempted rape.Defendant argued the evidence was insufficient to support the attempted rape conviction because attempted rape requires some physical conduct of a distinctly and unambiguously sexual nature. However, a defendant need not physically touch the victim. His statement, I want to rape you established his intent, and his subsequent pointing of the gun and ordering the victim what to do supported the attempted rape conviction.id: 9658
Appellant's statement he intentionally tried to kill someone constituted an adequate factual basis for attempted murder.Appellant argued that the factual basis the court obtained from him prior to the plea was insufficient as a matter of law because it asked him only whether he attempted to kill the victim, but did not ask him if he did so with malice. However, appellant's statement that he intentionally tried to kill someone constituted an adequate factual basis for attempted murder.id: 9659
Attempt conviction was valid despite the fact that the intended child molest victims were imaginary.Defendant went to a motel and entered the room where the molest victims were supposed to be. He argued the attempt conviction was invalid because his intended victims were in fact imaginary persons. However, the fictional nature of the children under 14 whom defendant intended to molest was not determinative of the validity of his prior conviction.id: 9660
Attempted murder is not divided into degrees.The crime of attempted murder is not divided into degrees. Therefore, the trial court did not err by failing to instruct the jury on the offense of attempted second degree murder.id: 9661
Court had no sua sponte duty to instruct on attempted voluntary manslaughter where there was evidence of voluntary intoxication.Defendant was convicted of attempted murder. He argued the court erred in failing to instruct sua sponte on the lesser offense of attempted voluntary manslaughter. However, the court has no such sua sponte duty when there is evidence of defendant's voluntary intoxication. The court did give the requested instructions relating defendant's voluntary intoxication to the intent to kill element of attempted murder and this was the theory defense counsel argued to the jury. Moreover, defense counsel as not incompetent for failing to request an instruction on attempted voluntary manslaughter given the legitimate defense theory of lack of intent to kill.id: 9663
Court had no sua sponte duty to instruct on attempted voluntary manslaughter.The jury was instructed on attempted first degree murder and attempted second degree murder. It was not instructed on attempted voluntary manslaughter. Defendant argued the court had a sua sponte duty to so instruct because of his intoxication. However, assuming the evidence was sufficient to support an instruction on the absence of intent to kill due to voluntary intoxication, the obligation was on defendant to request it.id: 9664
Evidence supported attempted murder conviction where defendant threatened victim twice, drove to victim's house, and crouched in a position that would give him a clear shot.Defendant argued the evidence was insufficient to support an attempted murder conviction in that any intent to kill was skewed by his massive alcohol consumption and that his acts did not transcend mere preparation. However, the evidence supported the finding that defendant was aware of what was happening as he had threatened the victim twice, went home, loaded his gun, drove to the victim's neighborhood, and finally hid in a position that would give him a clear shot if the victim left by the front door.id: 9665
Evidence supported the attempted robbery conviction even though the victim was not in joint possession of the gold.Defendant argued the evidence did not support the conviction of attempted robbery against victim Khoa because the prosecution never established this victim was in joint possession of the gold in the office. However, assuming Khoa was no more than a visitor to the business premises and neither owned nor possessed the gold, once force and fear was applied to him in an attempt to deprive someone or anyone of property, Khoa became the victim of an attempted robbery.id: 9666
Defendant's repeated approaches of the child's mother supported a conviction of attempting to buy a person.Defendant was convicted of attempting to buy a person pursuant to Penal Code section 181. He argued his conduct amounted to nothing more than preparation and did not constitute an attempt. However, defendant repeatedly approached the mother and asked her to sell or give the child to him. The mother testified defendant was frightening and clearly was referring to her child. This conduct went beyond mere preparation. But for the mother's resolute refusal of defendant's overtures, the crime would have been committed.id: 9667
CALJIC 3.01 requires proof of both aiding (conduct) and abetting (knowledge of the perpetrator's purpose).Defendant argued the standard aiding and abetting instruction, CALJIC 3.01, permits the jury to convict one as a principal if it finds that he or she aided <U>or</U> abetted the commission of a crime. Thus, he claimed the use of the instruction violated his right to due process because it relieved the prosecutor of the burden of proving that he both aided <U>and</U> abetted the robbery. Notwithstanding the phrase instigated or advised in CALJIC 3.012, the standard instruction properly defines the crime and requires proof of aiding <U>and</U> abetting.id: 9609
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245