Seel

In 1996, we held that an allegation prescribing a greater punishment for an attempt to commit murder that is “willful, deliberate, and premeditated” (Pen. Code, 1 § 664, subd. (a) (section 664(a)) constituted a penalty provision to which double jeopardy protections do not apply. (People v. Bright (1996) 12 Cal.4th 652, 656-657 [ 49 Cal.Rptr.2d 732 , 909 P.2d 1354 ] (Bright).) Several years later, in a case not involving double jeopardy, the United States Supreme Court concluded that any fact other than a prior conviction that increases punishment beyond the prescribed statutory maximum “is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict.” (Apprendi v. New Jersey (2000) 530 U.S. 466, 494, fn. 19 [ 147 L.Ed.2d 435 , 120 S.Ct. 2348 ] (Apprendi).)

In light of Apprendi and related cases, we must decide whether double jeopardy protections preclude a retrial of the premeditation allegation (§ 664(a)) after an appellate finding of evidentiary insufficiency. For reasons that follow, we conclude that the federal double jeopardy clause (U.S. Const., 5th Amend.) bars retrial.

I. Factual and Procedural Background

This…

I join the majority, whose central holding now embraces a view I articulated in a dissenting opinion eight years ago.

In People v. Bright (1996) 12 Cal.4th 652 [ 49 Cal.Rptr.2d 732 , 909 P.2d 1354 ], a majority of this court held that a finding that an attempted murder was committed willfully, deliberately, and premeditatedly was merely a penalty provision, not an element of a crime greater than attempted murder. I dissented, suggesting that the federal Constitution may well guarantee the right to a jury trial even if premeditation was “merely a circumstance affecting the penalty for attempted murder.” (Id. at p. 692 (dis. opn. of Kennard, J.).) I noted that such a premeditation finding “will expose the defendant to a penalty of life imprisonment, as compared with a maximum term of nine years for attempted murder without premeditation.” (Ibid.) Thus, I said, it might “well be unconstitutional to deprive the defendant of a right to jury trial on the issue of premeditation.” (Ibid.) The correctness of that view has now been confirmed by the recent decision of the United States Supreme Court in Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435 , 120 S.Ct. 2348 ], which in…

On more than one occasion, I have expressed the view that double jeopardy principles most likely extend to certain fact-bound sentencing enhancements. (See People v. Hernandez (1998) 19 Cal.4th 835, 848-850 [ 80 Cal.Rptr.2d 754 , 968 P.2d 465 ] (dis. opn. of Brown, J.); People v. Monge (1997) 16 Cal.4th 826, 845-847 [ 66 Cal.Rptr.2d 853 , 941 P.2d 1121 ] (conc. opn. of Brown, J.).) Even without the impetus of Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435 , 120 S.Ct. 2348 ], it was only a matter of time until we confronted a circumstance where the Legislature has effectively recharacterized an element of a substantive crime, ostensibly removing it from the purview of the double jeopardy clause by labeling it a sentencing factor. (See Monge v. California (1998) 524 U.S. 721, 737-741 [ 141 L.Ed.2d 615 , 118 S.Ct. 2246 ] (dis. opn. of Scalia, J.).)

Because that circumstance is plainly here, I fully agree with the conclusion the rule of Burks v. United States (1978) 437 U.S. 1 [ 57 L.Ed.2d 1 , 98 S.Ct. 2141 ] extends to the Court of Appeal’s finding that the evidence was insufficient to establish defendant’s attempted murder was “willful, deliberate, and premeditated”…