Attempted murder and aggravated assault – can they charge both?

Why does the District Attorney charge both attempted murder and assault with a deadly weapon?

Can you be charged with both crimes even though it was one event?  Yes, you can be charged with both. The prosecutor will often charge a situation they believe to be attempted murder with the related offense of aggravated assault. Why? Because the crime of attempted murder requires a specific intent to kill and the aggravated assault is a “general intent” crime.


Attempted murder (Penal Code section 664/187)

In order to prove the crime of attempted murder, the prosecution must prove beyond a reasonable doubt that first, there was an intent to kill.  If the specific intent to kill was not present, then it cannot be attempted murder.  How do they try to prove this?  If the defendant said something during the incident or afterwards to the police about their intent, obviously that would be the DA’s evidence of intent.  They can try to prove it based on circumstantial evidence as well.  They may believe that certain actions can only mean one thing – an intent to kill.  Obviously, actions can be interpreted many ways, so it’s not necessarily that there was an intent to kill based on the facts.  So why charge the other crime of aggravated assault? If this went all the way to trial and the jury did not find that there was an intent to kill, they could still convict on the aggravated assault charge.

Aggravated assault (or assault with a deadly weapon) – Penal Code 245

Assault with a deadly weapon is a “general intent” crime.  That means that the person accused doesn’t have to specifically intend any injury, death or other outcome.  A general intent crime is committed if the person willfully (meaning not accidentally) does an act that is against the law.  In this case, assault with a deadly weapon requires that the person do something (an assault) and with a deadly weapon.  Those are the two elements – no specific intent for any particular outcome is required.

Other times, it’s charged that way so there is a lower crime that they can use in plea negotiations… dismiss the attempted murder in exchange for a plea to the aggravated assault.

Is your case overcharged? I can’t say based just on how it’s charged.  After a discussion of the facts and a thorough review of all the reports, witness statements and evidence in the case, we’ll be in a better position to assess the strengths and weaknesses of the prosecution’s case… along with any defenses like self defense.  If this is your situation or you’re researching for somebody you know that’s facing these serious charges in Orange County, contact me so we can discuss how to defend this case for the best possible outcome.

Joe Dane, Orange County Criminal Defense Attorney

Call or text:  714.532.3600


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