Law Offices of M. Gabriela Guraiib

Attempted Murder vs. Aggravated Assault: The Difference in California


To an outside observer, attempted murder and aggravated assault may appear identical. They both involve attempting to seriously harm another person with intent. However, under California law, the two crimes have some significant differences. 

If you have been or may be charged with assault or a related charge, these divergences are crucial. They may mean the difference between felony and misdemeanor charges or a prison sentence and probation. Here’s what you need to know about how aggravated assaults and attempted murders differ under California state law and how they are addressed by the courts.

What Is an Aggravated Assault in California?

California assault laws define it as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” In other words, the crime of assault consists of three elements:

  • An action that involves an intention to physically hurt someone
  • A lack of lawful justification for that action
  • The ability to cause injury

It is not necessary to actually harm anyone to be convicted of assault. Trying to punch someone for insulting you would be considered assault, even if you don’t successfully hit them. However, fighting back to defend yourself and subdue someone attacking you would not necessarily be assault, even if you hurt them, because self-defense is a lawful justification. 

In most cases, assault is considered a misdemeanor. However, if there are aggravating factors, it may be elevated to a felony charge. For example, the term “aggravated assault” is most often used to describe the charge of “assault with a deadly weapon,” which may be charged as a felony. This involves assaulting someone with a deadly weapon, such as a knife or a gun, or other means of force that increase the amount of harm you could cause, such as driving at someone with a car. 

What Is Considered Attempted Murder in California?

Attempting to murder someone is more than just assaulting or severely injuring them. Instead, it occurs when someone intends to kill another person and acts to do so, but the victim survives. It is always a felony. The charges are divided into two categories under state law:

  • Attempted first-degree murder, in which the perpetrator’s actions are premeditated and willful.
  • Attempted second-degree murder, which includes all other types of murder.

There is no California attempted homicide charge, as homicide is unintentional. 

In general, for someone to be convicted of attempted murder in California, it must be demonstrated that they:

  • Intended to kill the victim, not just harm them
  • Directly took action to kill the victim
  • Was not acting in self-defense

For example, trying to shoot someone in the head would likely be considered attempted murder unless you were acting in self-defense. Furthermore, if it was shown that you purchased the gun specifically to attack them, you could be convicted of attempted first-degree murder on the grounds that you planned the attack in advance. 

When Does Assault Cross the Line Into Murder Attempts?

The difference between aggravated assault and attempted murder is simple. In the first instance, the perpetrator only intends to hurt the victim. In the second, they are actively trying to kill them. The difference is that of intent. 

California laws treat murder attempts significantly more seriously than they do assault. At most, a felony charge of assault with a deadly weapon is punishable by up to four years in county jail and a fine of up to $10,000. Meanwhile, attempted second-degree murder is punishable by up to nine years in state prison, and people convicted of first-degree attempts receive life sentences. 

The problem is identifying the intentions of someone who has attacked but not killed another person. When prosecutors determine whether someone should be charged with assault vs. attempted murder, they often rely on circumstantial evidence. Factors that may be taken into account include:

  • What kind of attack was attempted: Poisoning someone demonstrates the event was premeditated and likely to be an attempt to kill while stabbing someone with a kitchen knife is much less likely to be preplanned. 
  • Where the defendant was aiming: Trying to shoot or stab someone in the head or neck is much more likely to be fatal than the arms or legs, so prosecutors are more likely to interpret those attacks as an attempt to kill.
  • Statements made by the defendant before, during, and after the incident: Any comment the defendant makes, joking or otherwise, about wanting to kill someone may be used by the prosecution to argue an attack was an attempt to kill. 

Possible Defenses Against Aggravated Assault or Attempted Murder Charges

If you have been accused of attempting to hurt or kill someone, your first step should be to consult a skilled criminal defense attorney. Your lawyer will discuss your case, the differences between assault vs. attempted murder, and the best defenses for your situation. Depending on the circumstances, your attorney may recommend defenses such as:

  • Lack of intent: If you did not intend to kill someone, you could not have attempted to murder them. Similarly, if you did not intend to harm someone, you cannot have assaulted them. 
  • Lack of action: Even if you intended to hurt or kill someone, as long as you took no action to accomplish this goal, you committed no crime. 
  • Misidentification: If you have been mistaken for someone else, you are obviously innocent of the crime of which you are accused. 
  • False accusation: If someone accused you of attempting to hurt or kill them, but no attack occurred, or if the attack happened and they know you did not do it but are accusing you anyway, the charges should be dismissed.
  • Self-defense: If you did attempt to attack or kill someone, but it was in response to a reasonable belief that you or others were in imminent danger of physical harm and force was necessary to stop the threat, you may have the charges dismissed.

This is where the skilled criminal defense attorneys at the Law Offices of M. Gabriela Guraiib can help. Our knowledgeable legal team understands the demands of the California legal system. We are prepared to help you defend yourself against attempted murder and aggravated assault charges in Redwood City. Schedule your consultation today to discuss your case and learn how we can defend you against these charges.