Return to CALJIC Part 5-8 – Contents
F 8.66 n1 Attempted Murder: No Special Verdict Form Required (PC 664 & PC 187).
People v. Dominquez (92) 4 CA4th 516, 521-23 [6 CR2d 55].
[Research Note: See FORECITE BIBLIO 8.66]
F 8.66 n2 Attempted Murder By Aider/Abettor: Perpetrator Must Harbor Malice (PC 664 & PC 187).
See FORECITE F 8.11b for special instruction for use in aiding and abetting cases requiring that the perpetrator harbor express malice.
See also FORECITE F 8.66 n11.
[Research Note: See FORECITE BIBLIO 8.66]
F 8.66 n3 Voluntary Intoxication As A Complete Defense To Attempted Murder.
It is well settled that voluntary intoxication “cannot excuse homicide.” (People v. Conley (66) 64 C2d 310, 323 [489 CR 815]; People v. Baker (54) 42 C2d 550, 575 [268 P2d 705].) Hence, even if the defendant’s voluntary intoxication negates all the requisite elements of murder and voluntary manslaughter, the defendant cannot be acquitted, but must be convicted of involuntary manslaughter. (See People v. Webber (91) 228 CA3d 1146, 1160-65 [279 CR 437]; see also PC 22; CJ 8.47.) This is so because, by operation of PC 22, voluntary intoxication can only have the effect of negating a specific intent. (People v. Kelly (73) 10 C3d 565, 573 [111 CR 171].) Even if the defendant is voluntarily intoxicated to the point of unconsciousness, the general intent element of criminal negligence “is deemed to exist irrespective of unconsciousness, and a defendant stands guilty of involuntary manslaughter if he voluntarily procured his own intoxication. [Citation].” (People v. Graham (69) 71 C2d 303, 316 [78 CR 217].)
From these well settled principles, it would seem logical that when the charge is attempted murder voluntary intoxication may not excuse the crime, but may only reduce it to attempted involuntary manslaughter. However, because involuntary manslaughter is predicated upon unintentional criminal negligence, attempted involuntary manslaughter is not a crime. (People v. Brito (91) 232 CA3d 316, 320 [283 CR 441].) Nevertheless, until the advent of People v. Saille (91) 54 C3d 1103, 1113-14 [2 CR2d 364], the defendant could be convicted of attempted voluntary manslaughter as a lesser included offense of attempted murder based on voluntary intoxication. However, Saille held that express malice and unlawful intent to kill are equivalent and, hence, attempted voluntary manslaughter is no longer a lesser included offense of murder based on voluntary intoxication. (But see FORECITE F 8.66 n10 [Attempted Murder: Heat Of Passion Or Imperfect Self Defense Warrant Lesser Of Attempted Voluntary Manslaughter].) This is so because attempted voluntary manslaughter requires an unlawful intent to kill which, under Saille, is the equivalent of malice. (But see FORECITE F 8.40 n1.)
Nor is assault with a deadly weapon (PC 245) necessarily included in murder. (People v. Zapata (92) 9 CA4th 527, 533 [12 CR2d 118].) This is so because it is possible to attempt to murder without using a deadly weapon. Similarly, simple assault (PC 240) is not necessarily included within a charge of murder. An assault is an attempt to commit a battery (i.e., an unlawful touching) and, since attempted murder may be committed without an intent to touch the victim (e.g., poison, withholding medical care, etc.), assault is not included in attempted murder. Also, attempted murder may be committed without committing a battery.
In sum, because there are no necessarily included offenses to a charge of attempted murder other than attempted voluntary manslaughter based on imperfect self defense or heat of passion, voluntary intoxication which negates the specific intent element of an attempted murder charge constitutes a complete defense to such a charge. In the murder/involuntary manslaughter situation discussed above, it is proper to convict the defendant of involuntary manslaughter because involuntary manslaughter is a lesser included offense of murder. There is no statutory or constitutional impediment to conviction of a lesser charge which is necessarily included in the charged offense. (See PC 1159; People v. Geiger (84) 35 C3d 510, 526 [199 CR 45].) In the case of attempted murder, however, it would violate PC 1159 and constitutional due process/notice principles to convict the defendant of an uncharged lesser offense not necessarily included in the charged offense. (Geiger 35 C3d at 526.) Accordingly, if the defendant’s voluntary intoxication negates the mental elements of the attempted murder charge, the jury has no other alternative but to acquit the defendant of that charge.
NOTE: This is not to say that there will never be lesser offenses in an attempted murder prosecution. The above discussion establishes that there are no necessarily lesser included offenses to attempted murder using the statutory elements. However, if the charging document goes beyond the statutory elements of the offense and describes the means by which the offense was perpetrated, then the jury may be instructed upon any lesser offenses which are included within the prosecution’s description of the offense. (People v. Pearson (86) 42 C3d 351, 356, fn 2 [228 CR 509]; Geiger 35 C3d at 525; People v. Marshall (57) 48 C2d 394, 405 [309 P2d 456].) For example, if the charging document alleges that the defendant attempted to murder the victim with a specified deadly weapon, then assault with a deadly weapon would be a lesser offense of the charge. Moreover, even if such a lesser offense is not included within the charging document, the defendant may request instruction upon lesser related offenses which are presented by the evidence. (Geiger 35 C3d at 525-26.) But, if no lesser offenses are particularly described in the charging language or requested by the defendant, then the jury must acquit if voluntary intoxication negates any of the elements of the attempted murder charge.
[Research Note: See FORECITE BIBLIO 8.66]
F 8.66 n4 Degree Of Attempted Murder (PC 664 & PC 187).
See FORECITE LIO III(C).
[Research Note: See FORECITE BIBLIO 8.66]
F 8.66 n5 Attempted Murder: Failure To Charge Premeditation Is Jurisdictional Defect Requiring Reversal Even Without Objection At Trial (PC 664 and PC 187).
People v. Bright (96) 12 C4th 652, 670-71 [49 CR2d 732] held that PC 664 does not divide the crime of attempted murder into degrees but rather imposes a penalty enhancement for attempted murder which is willful, deliberate, and premeditated. People v. Diaz (97) 54 CA4th 1499, 1507 [63 CR2d 690] held that, as with any other enhancement, the premeditation enhancement for attempted murder must be formally charged. Moreover, because PC 664 requires that the premeditation enhancement be “charged in the accusatory pleading,” the failure to do so is a jurisdictional error which precludes imposition of the enhancement even if the jury is instructed on the enhancement and returns a verdict thereon without objection by the defendant. (Diaz, 54 CA4th at 1510-11.)
[Research Note: See FORECITE BIBLIO 8.66]
F 8.66 n6 Instruction On Impact Of Provocation Upon Premeditation.
In cases where it is charged that the defendant committed attempted murder with premeditation and deliberation, CJ 8.73 should be given upon request. (See People v. Lee DEPUBLISHED (93) 18 CA4th 913 [22 CR2d 849].)
[Research Note: See FORECITE BIBLIO 8.66]
F 8.66 n7 Derivative Liability Not Applicable To Premeditation Enhancement Of Attempted Murder (PC 664(a)).
[See FORECITE F 8.67a]
F 8.66 n8 Assault With Intent To Commit Murder (PC 217) As A Form Of Attempted Murder.
Former PC 217 encompassed the crime of assault with intent to commit murder. In such a case, it potentially confusing to instruct the jury that the defendant had to have the specific intent to murder, rather the jury was required to find a specific intent to kill. (People v. Avena (96) 13 C4th 394, 416-17 [53 CR2d 301].) The legislature repealed PC 217 effective January, 1981, after several judicial decisions pointed out that assault with intent to commit murder is but one form of attempted murder. (Avena, 13 C4th at 416, fn 2.)
F 8.66 n9 Attempted Murder: Inconsistent With Attempt To Induce Witness To Give False Testimony (PC 137(b)).
Attempted murder requires a specific intent to kill. Attempt to induce a witness to give false testimony, however, evidences not an intent that the witness die, but that the witness live and give false testimony. Hence, to charge both attempted murder and attempt to induce the victim to give false testimony is to charge two mutually inconsistent crimes and, therefore, the defendant cannot be convicted of both crimes. (People v. Womack (95) 40 CA4th 926, 929-32 [47 CR2d 76].) In such a circumstance the jury should be instructed in the language of CJ 17.03 that the charges are made in the alternative and the jury can only convict the defendant of one and must acquit of the other.
F 8.66 n10 Attempted Murder: Heat Of Passion Or Imperfect Self Defense Warrant Lesser Of Attempted Voluntary Manslaughter.
When the defendant is charged with attempted murder and there is evidence of imperfect self defense or heat of passion then the evidence may warrant instruction upon the lesser offense of attempted voluntary manslaughter. (See People v. Williams (88) 199 CA3d 469, 475 [245 CR 61]; People v. Van Ronk (85) 171 CA3d 818, 824-25 [217 CR 581]; see also People v. Ortega (2000) 84 CA4th 659 [101 CR2d 253]; People v. Brown (2000) 83 CA4th 1037 [100 CR2d 211]; People v. Lee (1994) 28 CA4th 1724, 1732-34 [34 CR2d 723]; People v. Gutierrez (2003) 112 CA4th 704.)
F 8.66 n11 Attempted Murder: Premeditated Enhancement — Aider And Abettor Need Not Personally Premeditate (PC 664(a)).
See People v. Lee (2003) 31 C4th 613 [penalty provision for attempted murder (PC 664(a)) requires only that the murder attempted be willful, deliberate and premeditated. There is no requirement that an aider and abettor personally act with willfulness, deliberation and premeditation, even if he or she is guilty as an aider and abettor]; People v. Cummins (2005) 127 CA4th 667, 680 [premeditated attempted murder need not be natural and probable consequence].
CAVEAT: In light of Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348] this opinion may be incorrect. An aider and abettor of an offense must have the mental state required for the offense; and underApprendi, the offense is “attempt to commit willful, deliberate and premeditated murder.” A person can’t have the mental state to commit willful, deliberate and premeditated murder if his mental state isn’t willful, deliberate and premeditated. (Lee adopts a theory of “close enough,” but “close enough” doesn’t apply to the criminal law, which has to be express and not implied.) (See also Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531].)
People v. Bright (96) 12 C4th 652, upon which Lee relied, predated Apprendi, but it can no longer be viewed as an accurate statement even of California law in light of Apprendi, because Apprendi is a holding of the U.S. Constitution, and the California Constitution (Art. III, § 1) expressly incorporates the U.S. Constitution by reference. In turn, a California statute can’t be construed inconsistently with the California Constitution.
F 8.66 n12 Attempted Murder: Whether Absence Of Intended Victim Is A Defense.
Absence of the victim is not a defense to a charge of attempted murder if circumstances make accomplishment of the object “apparently” possible, even though it cannot in fact be accomplished. (People v. Vang (2001) 87 CA4th 554, 564 [104 CR2d 704].)
F 8.66 n13 Conspiracy To Commit Attempted Murder: Offense Does Not Exist.
The “crime of attempted murder requires a specific intent to actually commit the murder, while the agreement underlying the conspiracy … contemplated no more than an ineffectual act. No one can simultaneously intend to do and not do the same act.” (People v. Iniguez (2002) 96 CA4th 75, 77, 79 [116 CR2d 634] [conspiracy to commit attempted murder conviction reversed because offense does not exist].)
F 8.66 n14 Attempted Murder: VC 13351 Not Applicable.
VC 13351.5 requires the DMV to permanently revoke the driver’s license of a person convicted of a felony violation of PC 245 (assault with a deadly weapon) when the vehicle was the deadly weapon used to commit the offense. However, this statute does not apply to a defendant convicted of attempted murder (PC 664/186). (People v. Linares (2003) 105 CA4th 1196 [129 CR2d 882]; see also People v. Poindexter (89) 210 CA3d 803, 808 [250 CR 680].)
F 8.66 n15 Attempted Murder: Attempted Voluntary Manslaughter As Lesser Included.
Attempted voluntary manslaughter (PC 192/PC 664)is a lesser included offense of attempted murder. (People v. Eilers (91) 231 CA3d 288, 292, 296 [282 CR 252]; People v. Zapata (92) 9 CA4th 527, 531 [12 CR2d 118]; but seePeople v. Gutierrez (2003) 112 CA4th 704, 709 [generally when a defendant completely denies involvement in the charged actus reus, there is no error in failing to instruct on a lesser included offense; additionally, defendant’s state of mind was never argued by the defense and the evidence failed to demonstrate any indicia of provocation].) [See Brief Bank # B-963 for briefing and an opinion on this issue; People v. Lor UNPUBLISHED (F034023) 2002 Cal.App. Unpub. LEXIS 9697.]
F 8.66 n16 Attempted Murder: Transferred Intent Not Applicable.
People v. Bland (2002) 28 C4th 313, 326-331 [121 CR2d 546] held that transferred intent does not apply to attempted murder. Accordingly, unless the defendant specifically intended to kill the second victim, or if the second victim was in the “killing zone,” the defendant may not be convicted of attempting to murder the second victim based solely on the intent to kill the first victim. However, transferred intent does apply to a completed homicide. (See FORECITE F 8.65 n1.) [See Brief Bank # B-964 for briefing on this issue is available to FORECITE subscribers.]
F 8.66 n17 Attempted Murder: “Zone Of Harm” Permits Two Convictions For Single Act.
See FORECITE F 3515.2 Note 3.
F 8.66 n18 Attempted Murder: Assault With Firearm Is Not A LIO.
(See People v. Parks (2004) 118 CA4th 1 [assault with a firearm (PC 245(a)(2)) is not a lesser included offense of attempted murder (PC 664, 187)].)
F 8.66 n19 Attempted Murder: Solicitation Of Police Officer.
See also FORECITE F 6.00 n2; but see People v. Superior Court (Decker) (2007) 41 C4th 1 [evidence sufficient for attempted murder even though the person solicited was a detective posing as a killer and had no intention of actually doing the killing; disapproving People v. Adami (1973) 36 CA3d 452 [crime could be no greater than solicitation of murder].]
F 8.66a
Express Malice Cannot Be Presumed From Commission Of A Dangerous Crime
(PC 664 & PC 187)
*Add to CJ 8.66:
Specific intent to kill unlawfully is a necessary element of attempted murder and the prosecution must prove beyond a reasonable doubt that the defendant harbored such an intent. Intent to kill unlawfully cannot be inferred solely from the commission of another dangerous crime such as __________ (insert appropriate crime, e.g., assault with a deadly weapon, arson, etc.). In addition to proving that defendant committed __________, the prosecution must present other independent evidence which, directly or by solid inference, proves beyond a reasonable doubt that defendant intended to kill.
Points and Authorities
Specific intent to kill is a necessary element of attempted murder. (People v. Collie (81) 30 C3d 43, 62 [177 CR 458].) Therefore, it must be proved and cannot be inferred merely from the commission of another dangerous act but “must be affirmatively proved by direct evidence or by solid inference.” (People v. Belton (80) 105 CA3d 376, 381 [164 CR 340]; see also People v. Snyder (40) 15 C2d 706, 708 [104 P2d 639]; People v. Maciel (25) 71 CA 213, 217-18 [234 P 877]; People v. Miller (35) 2 C2d 527, 532-33 [42 P2d 308].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
F 8.66b
Modification When Crime Involves Fetal Victim
*Modify CJ 8.66 in paragraphs which include “human being(s)” as follows:
(See FORECITE F 5.00b.)
F 8.66c Attempted Murder: Whether Intent Required As To Each Victim.
See FORECITE F 3515.2 Note 3.
