THE PEOPLE, Plaintiff and Appellant, v. JAMES MICHAEL BRIGHT, Defendant and Respondent, 12 Cal. 4th 652

Opinion GEORGE, J. Penal Code

section 664 prescribes the punishment for an attempt to commit a crime, providing in part that, if the offense attempted is one for which the maximum sentence is life imprisonment or death, the person guilty of that attempt shall be subject to the punishment of imprisonment for a term of five, seven, or nine years. (§ 664, subd. (a).) As amended in 1986, the statute further provides that when the crime attempted is “willful, deliberate, and premeditated murder,” the person guilty of that attempt shall be subject to the punishment of imprisonment for life with the possibility of parole. (Ibid.) The issue for our determination is whether, for double jeopardy purposes (U.S.

Const., 5th Amend.; Cal. Const., art. I, § 15), the foregoing provision of

section 664 prescribing a sentence of life imprisonment for an attempt to commit murder that is willful, deliberate, and premeditated establishes a greater degree of attempted murder, i.e., an offense of “first degree attempted murder,” or, instead, constitutes a penalty provision that prescribes the circumstances under which a person convicted of the offense of attempted murder will be subject to a greater base term In the present case, the trial court determined that the offense of attempted willful, deliberate, and premeditated murder (as charged in the information) constituted a greater degree of “simple” attempted murder, and that the jury’s verdict convicting defendant of attempted murder alone, without a finding on the allegation that the offense attempted was willful, deliberate, and premeditated murder, thus constituted an acquittal of the so-called greater offense.

On this basis the trial court ruled that double jeopardy principles barred retrial of the separate allegation, and dismissed that allegation. We conclude that the provision in

section 664, subdivision (a), imposing a greater punishment for an attempt to commit a murder that is “willful, deliberate, and premeditated” does not create a greater degree of attempted murder but, rather, constitutes a penalty provision that prescribes an increase in punishment (a greater base term) for the offense of attempted murder. The jury verdict convicting defendant of attempted murder, without a finding on the penalty allegation, therefore did not constitute an acquittal of a so-called greater degree of attempted murder.

Accordingly, the double jeopardy prohibition does not bar retrial of the penalty allegation. For these reasons, we affirm the judgment of the Court of Appeal, which reversed the trial court’s dismissal of the allegation that the attempted murder was willful, deliberate, and premeditated. I On June 6, 1992, in the early morning hours, San Diego County Sheriff’s Deputy Paul Kain observed defective brake lights on a vehicle driven by defendant James Michael Bright, and decided to detain the vehicle.

As Kain maneuvered his patrol car behind that of defendant and signaled for him to stop, a passenger in defendant’s vehicle observed defendant retrieve a .357 magnum from under the seat. Bright continued to drive while holding the weapon in his hand. He did not respond immediately to the patrol car signal, but waited to pull over at a location where the deputy would be able to approach only the driver’s side of the vehicle and not the passenger side.

As the deputy approached defendant’s automobile on foot, defendant aimed his weapon at him and fired all six rounds, wounding the deputy with several bullets in the waist, abdomen, and leg. Defendant then drove off. Deputy Kain was able to crawl back to his patrol car and call for assistance, providing a description of defendant and his vehicle. Nine days later defendant was arrested.

By information filed July 30,1992, the People charged that defendant “did willfully, deliberately, and premeditatedly attempt to murder Paul Kain, a human being,” in violation of sections 664 and 189, further alleging that in the commission of this offense defendant personally used a firearm in violation of

section 12022.5, subdivision (a), discharged a firearm from a motor vehicle in violation of

section 12022.55, and inflicted great bodily injury in violation of

section 12022.7. The information also charged that defendant, a felon, did willfully and unlawfully possess a firearm in violation of

section 12021, subdivision (a).

At trial, the jury was instructed on attempted murder in accordance with the standard instruction, CALJIC No. 8.66 (5th ed. 1988), and was instructed separately on the premeditation allegation in accordance with CALJIC No. 8.67 (5th ed. 1988), which informed the jury, among other matters, that “[i]f you find the defendant guilty of attempt to commit murder, you must determine whether this allegation is true or not true.” During its deliberations, the jury submitted a note to the trial court requesting clarification as to whether they could return a verdict on the charge of attempted murder even if they were unable to reach a unanimous verdict on the allegation of premeditation.

The trial court initially instructed the jury that it must unanimously agree on the allegation of premeditation before rendering a verdict on the charge of attempted murder.

The following day, however, after the prosecutor brought to the court’s attention decisional authority inconsistent with the court’s earlier response to the jury’s inquiry, the court directed the jury to disregard its earlier instruction and told them that “you may make a finding of guilty or not guilty as to the attempted murder charge and consider separately whether you can resolve the question of premeditation if that resolution is called for.” Defense counsel did not object to this corrected instruction.

The jury returned a verdict convicting defendant of attempted murder but was unable to make a finding on the premeditation allegation. The verdict form reflected the jury’s finding that defendant was guilty of attempted murder, but left blank a space for the separate finding as to whether this offense was premeditated. The trial court declared a mistrial as to that allegation, which was set for retrial. The trial court thereafter denied a defense motion to dismiss the premeditation allegation on the ground of insufficiency of the evidence.

Defendant subsequently filed another motion to dismiss the premeditation allegation (before a judge other than the trial judge, who had died following trial) on the ground that defendant already had been placed in jeopardy on the charge of attempted premeditated murder, and that principles of double jeopardy barred retrial of that charge. The thrust of the defense argument was as follows: the offense of attempted murder is divided into degrees— first degree attempted murder and second degree attempted murder. Attempted premeditated murder, within the meaning of

section 664, subdivision (a), constitutes first degree attempted murder. In the present case, the information alleged that defendant “did willfully, deliberately, and premeditatedly attempt to murder,” thereby charging him with first degree attempted murder. Under sections 1157 and 1159, the jury verdict finding defendant guilty of attempted murder, without specifying the degree, constituted a conviction of second degree attempted murder, a lesser offense included within the offense of attempted premeditated murder.

Accordingly, because the jury reached a unanimous verdict convicting defendant of a lesser included offense of the offense charged in the information, the prohibition against double jeopardy barred retrial of the greater offense of attempted premeditated murder.

In opposing the foregoing motion, the People argued the particular language of the charging document is irrelevant to the determination whether an offense is divided into degrees, and that “the form of the pleading itself does not determine what is classified as an allegation.” Citing several appellate decisions holding that the offense of attempted murder is not divided into degrees, the People asserted that this offense is not a lesser offense included within the offense of attempted premeditated murder but, rather, that

section 664’s provision for greater punishment for an attempt to commit willful, deliberate, and premeditated murder constitutes a penalty provision that may increase the sentence for the offense of attempted murder. The People maintained that, because the jury was unable to reach a verdict on the premeditation allegation, the trial court properly declared a mistrial and ordered a retrial of the allegation.

In ruling upon the double jeopardy motion, the trial court concluded that the language of the accusatory pleading was determinative of whether the allegation of premeditation charged a greater degree of attempted murder.

The court determined that, notwithstanding case law holding there are no degrees of the offense of attempted murder, in this particular case the language employed by the prosecution in charging the offense in the accusatory pleading—that defendant “did willfully, deliberately, and premeditatedly attempt to murder”—and the “partial jury verdict” convicting defendant of the offense of attempted murder without a finding on the allegation of premeditation, effectively created greater and lesser degrees of that offense.

Concluding that the jury verdict constituted an acquittal of the greater offense of attempted premeditated murder, the trial court granted defendant’s motion to strike the premeditation allegation and barred retrial of that allegation on double jeopardy grounds. At sentencing, the court imposed a total sentence of 17 years, 8 months, in state prison. On appeal, the Court of Appeal reversed the order dismissing the premeditation allegation, holding that defendant could be retried on that allegation.

The court determined that defendant’s double jeopardy claim was dependent upon the premise that attempted premeditated murder constituted a greater degree of the offense of attempted murder. Rejecting this premise, however, the court concluded that the determination whether an offense is divided into degrees lies exclusively within the power of the Legislature, and that such a legislative determination cannot be altered or otherwise affected by the description of the offense contained in the charging document or by the form in which the verdict is received. Citing People v.

Douglas (1990) 220 Cal.App.3d 544, 549 [269 Cal.Rptr. 579], the Court of Appeal held that the offense of attempted murder is not divided into degrees and thus rejected defendant’s claim that the jury’s failure to reach a verdict on the premeditation allegation constituted an acquittal of the so-called “greater offense” of “first degree attempted murder.” The court concluded that the premeditation allegation provided for an increased punishment for the offense of attempted murder, rather than a greater degree of the offense; accordingly, retrial on the limited question presented by the penalty allegation was not barred by double jeopardy principles.

We granted defendant’s petition for review. II The double jeopardy clauses of the Fifth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, and

article I,

section 15, of the California Constitution, guarantee that a person shall not be placed twice “in jeopardy” for the “same offense.” The double jeopardy bar protects against a second prosecution for the same offense following an acquittal or conviction, and also protects against multiple punishment for the same offense. (Schiro v. Farley (1994) 510 U.S. 222, 229-230 [127 L.Ed.2d 47, 56-57, 114 S.Ct. 783, 789]; People v.

Guillen (1994) 25 Cal.App.4th 756, 761 [31 Cal.Rptr.2d 653].) Under both federal and California law, greater and lesser included offenses constitute the “same offense” for purposes of double jeopardy. (See Brown v.

Ohio (1977) 432 U.S. 161, 164, 168-169 [53 L.Ed.2d 187, 193, 195-196, 97 S.Ct. 2221] [the double jeopardy bar prohibits successive prosecution and cumulative punishment for greater and lesser included offenses]; § 1023 [a defendant’s prior conviction, acquittal, or jeopardy is a bar to another prosecution for “an offense necessarily included” in the one formerly charged, “of which he might have been convicted” under the former accusatory pleading]; 1 Witkin & Epstein, Cal.

Criminal Law (2d ed. 1988) Defenses, § 325, p. 377 [§ 1023 is applied irrespective of whether the first prosecution is for the greater or the lesser offense].) Thus, a conviction of a lesser included offense bars subsequent prosecution of the greater offense. (See Stone v. Superior Court (1982) 31 Cal.3d 503, 511, 518 [183 Cal.Rptr. 647, 646 P.2d 809]; People v.

Lohbauer (1981) 29 Cal.3d 364, 372 [173 Cal.Rptr. 453, 627 P.2d 183]; In re James M. (1973) 9 Cal.3d 517, 520 [108 Cal.Rptr. 89, 510 P.2d 33].) For this reason, we have observed that a jury should be admonished not to return a verdict on the lesser offense until it has reached a verdict acquitting the defendant of the greater offense. (See People v. Kurtzman (1988) 46 Cal.3d 322, 329 [250 Cal.Rptr. 244, 758 P.2d 572].) Under

section 1157, if a crime is divided into degrees and the jury in returning a guilty verdict fails to determine the degree of the crime of which the defendant is guilty, the offense is deemed to be of the lesser degree. Under the double jeopardy principles set forth above, a conviction of the lesser degree constitutes an implied acquittal of the greater degree. In contrast to greater and lesser degrees of an offense, a penalty provision prescribes an added penalty to be imposed when the offense is committed under specified circumstances.

A penalty provision is separate from the underlying offense and does not set forth elements of the offense or a greater degree of the offense charged. (People v. Bryant (1992) 10 Cal.App.4th 1584, 1596-1598 [13 Cal.Rptr.2d 601]; People v. Wolcott (1983) 34 Cal.3d 92, 101 [192 Cal.Rptr. 748, 665 P.2d 520].) The jury does not decide the truth of the penalty allegation until it first has reached a verdict on the substantive offense charged. (People v.

Wolcott, supra, 34 Cal.3d at p. 101.) Accordingly, a defendant’s conviction of the underlying substantive offense does not (on double jeopardy grounds) bar further proceedings, such as retrial, on a penalty allegation. (See People v. Bryant, supra, 10 Cal.App.4th at pp. 1597-1598.) Thus, the circumstance that the jury has returned a verdict on the underlying offense, but is unable to make a finding on the penalty allegation, does not constitute an “acquittal” of (or otherwise bar retrial of) the penalty allegation on the ground of double jeopardy. (People v. Guillen, supra, 25 Cal.App.4th 756, 762; People v.

Schulz (1992) 5 Cal.App.4th 563, 568-569 [7 Cal.Rptr.2d 269].) A mistrial does not constitute a termination of jeopardy, and accordingly double jeopardy does not arise from the legal necessity of a mistrial. (Stone v. Superior Court, supra, 31 Cal.3d 503, 516.) Under these general principles, if the phrase “willful, deliberate, and premeditated murder” in

section 664, subdivision (a), establishes a greater degree of the offense of attempted murder, a jury verdict convicting a defendant of the lesser degree of attempted murder would constitute an implied acquittal of the greater degree. The prohibition against double jeopardy therefore would bar retrial of the greater degree of attempted willful, deliberate, and premeditated murder.

If, on the other hand, this provision constitutes a penalty provision related to the single offense of attempted murder, a conviction of attempted murder would not constitute an acquittal of (or otherwise bar retrial of) the penalty allegation that the attempted murder was willful, deliberate, and premeditated. Ill The provision of

section 664, subdivision (a), that prescribes the specific penalty of life imprisonment with the possibility of parole “if the crime attempted is willM, deliberate, and premeditated murder, as defined in

Section 189,” was added to the statute by a 1986 legislative amendment. (Stats. 1986, ch. 519, § 2, p. 1859.) In order to ascertain the meaning and proper characterization of this segment of the statute, it is necessary to review the history of

section 664 prior to the 1986 amendment. Before 1978,

section 664 provided in part that “if the crime attempted is one in which the maximum sentence is life imprisonment or death the person guilty of such attempt shall be punishable by imprisonment in the state prison for a term of five, six, or seven years.” At that time, the maximum punishment for first degree murder was life imprisonment or death and the maximum punishment for second degree murder was life imprisonment. Thus, no distinction was made with respect to the punishment for attempted murder based upon whether the murder attempted, if completed, would have been of the first degree or second degree. In 1978, the Legislature amended

section 664, adding former subdivision 4 (Stats. 1978, ch. 1166, p. 3771), currently designated as subdivision (d), which states that if the underlying crime is divided into degrees, “an attempt to commit the crime may be of any of those degrees, and the punishment for the attempt shall be determined as provided by this section.” Thus, with regard to crimes divided into degrees and punishable by imprisonment for terms of different lengths depending upon the degree, the punishment for the attempt is based upon the punishment specified for the degree of the underlying crime attempted.

With respect to attempted murder, however, the maximum sentence for both first degree and second degree murder was (at the time of the operative date of the 1978 amendment, and still is) at least life imprisonment, and therefore the punishment provided for the offense of attempted murder was the same regardless of the degree of the underlying murder attempted. Thus, as of the operative date of the 1978 amendment,

section 664 prescribed the identical punishment for attempted murder regardless whether the murder attempted was of the first or second degree. A number of appellate decisions rendered after the 1978 amendment specifically recognized that, because (among other reasons) the punishment is the same regardless of the degree of the murder attempted, the crime of attempted murder is not divided into degrees, notwithstanding the addition of the predecessor to

section 664, subdivision (d). (See People v. Miller (1992) 6 Cal.App.4th 873, 879 [8 Cal.Rptr.2d 193]; People v. Macias (1982) 137 Cal.App.3d 465, All [187 Cal.Rptr. 100]; see also People v. Cooper (1991) 53 Cal.3d 771, 832 [281 Cal.Rptr. 90, 809 P.2d 865].) In People v. Macias, supra, 137 Cal.App.3d 465, the defendant was convicted of attempted murder, among other offenses, and was sentenced under

section 664. On appeal, he maintained that his sentence for attempted murder violated his constitutional rights, because a conviction for attempted second degree murder carried the identical punishment as a conviction for attempted first degree murder. Rejecting this argument, the court concluded that “since the punishment for attempted murder is five, seven or nine years, regardless of whether the murder attempted was of the first or second degree, the crime of attempted murder is not in fact divided into degrees.” (137 Cal.App.3d at pp. 471-472.) In People v.

Cooper, supra, 53 Cal.3d 771, this court, rejecting the contention of the defendant that the trial court had erred in failing to instruct on attempted second degree murder, cited People v.

Macias, supra, 137 Cal.App.3d 465, 472, as stating the law that “ ‘the crime of attempted murder is not in fact divided into degrees,’ at least at the time of this crime [prior to the 1986 amendment of the statute].” (53 Cal.3d at p. 832.) Other appellate courts recognized the inherent inconsistency between different theories of first and second degree murder that do not include the element of intent to kill (e.g., felony murder), and the crime of attempted murder, which requires a specific intent to kill. (See People v. Guerra (1985) 40 Cal.3d 377, 386 [220 Cal.Rptr. 374, 708 P.2d 1252]; People v.

Wein (1977) 69 Cal.App.3d 79, 92 [137 Cal.Rptr. 814] [“[T]he felony-murder rule has no application to a charge of attempted murder. An attempted murder requires the intent to take a human life—an element which cannot be supplied by the . . . felony-murder rule.”].) In People v. Guerra, supra, 40 Cal.3d 377, the court reversed a conviction of attempted murder based upon error arising from instructions on the crimes of attempt and first and second degree murder.

The trial court had instructed the jury generally on the elements of an attempt to commit a crime, including the specific intent to commit the crime, and further instructed that the jury could find the defendant guilty of murder on any of three theories—express malice, implied malice, or felony murder.

The trial court, however, failed to inform the jury that the crime of attempted murder requires a specific intent to kill, an omission that led this court to conclude that the instructions improperly implied that the jury could find the defendant guilty of attempted murder “ ‘if it determined that [he] intentionally committed

an act which, were the victim to die, would constitute murder on an implied malice or felony-murder theory. . . . [S]uch instructions are inadequate. [Citation.]”’ (40 Cal.3d at p. 386.) Following the Guerra decision, standard jury instructions on attempted murder have not distinguished between purported degrees of attempted murder, and instead have defined the single crime of attempt to commit murder. (See CALJIC No. 8.66, set forth in fn. 3, ante.) As explained previously, in the present case, at defendant’s trial, the jury was not instructed on separate degrees of attempted murder, but solely on the single crime of attempt to commit murder.

Thus, as shown, at the time of the 1986 amendment to

section 664, it was recognized generally that the crime of attempted murder was not divided into degrees. IV In 1986, the Legislature added to

section 664, subdivision (a), the provision prescribing life imprisonment with the possibility of parole as the punishment where the “crime attempted is willful, deliberate, and premeditated murder, within the meaning of

section 189,” and also added a further sentence stating that “[t]he additional term provided in this

section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact.” The principal issue before us is whether the 1986 amendment should be interpreted as changing existing law so as to divide the crime of attempted murder into separate degrees—an attempt to commit willful, deliberate, and premeditated murder (“first degree attempted murder") and all other attempts to commit murder (“second degree attempted murder”) —or, instead, as establishing a penalty provision that increases the punishment if the trier of fact, after finding the defendant guilty of the crime of attempted murder, also finds that the murder attempted was willful, deliberate, and premeditated.

A similar issue was presented to the Court of Appeal in People v. Douglas, supra, 220 Cal.App.3d 544. In that case, the defendant was charged with attempted murder. At trial, the jury was instructed in accordance with CALJIC No. 8.66 (the general attempted murder instruction given in the present case) and CALJIC No. 8.67, which directed the jury to make a finding as to whether the offense was willful, deliberate, and premeditated. The jury returned a verdict convicting the defendant of attempted murder, among other crimes, with a finding that he acted willfully, deliberately, and with premeditation.

He was sentenced under

section 664, subdivision (a), to a term of life imprisonment with the possibility of parole. On appeal, he asserted the trial court erred in failing to instruct on attempted second degree murder. He maintained (as does defendant in the present case) that the crime of attempted murder is divided into degrees and that attempted second degree murder is a lesser offense included within the offense of attempted willful, deliberate, and premeditated attempted murder. He also asserted that the jury’s failure to specify the degree of the offense established the crime as attempted second degree murder as a matter of law, by virtue of

section 1157. (220 Cal.App.3d at p. 548.) The appellate court in Douglas, affirming the conviction, rejected these contentions, concluding that the 1986 amendment to

section 664 prescribing a punishment of life imprisonment with the possibility of parole for attempted murder that is willful, deliberate, and premeditated, did not create a distinct degree of attempted murder.

The court reasoned: “The imposition of separate penalties for different levels of culpability for attempted murder may resemble the degree gradations of the completed crime; however, the power to define criminal conduct and determine penalties is exclusively vested in the legislative branch, subject to constitutional provisions. [Citation.] The division of a crime into degrees carries more than linguistic significance.

It requires an exacting degree of specificity in the jury verdict, court determination or guilty plea. (E.g., §§ 1097, 1157, 1192-1192.2.) Accordingly—and in view of the broad impact of the ‘degree’ distinction—we construe

section 664, subdivision 1 narrowly and do not find degrees of attempted murder where the Legislature has not expressly provided for same.” (220 Cal.App.3d at p. 549.) Although defendant contends that People v. Douglas, supra, 220 Cal.App.3d 544, was wrongly decided, we conclude that the Court of Appeal in that case engaged in the proper construction of the 1986 amendment. As noted in Douglas (id., at p. 549), the division of a crime into degrees constitutes an exclusively legislative function (see People v.

Dillon (1983) 34 Cal.3d 441, 477-478 [194 Cal.Rptr. 390, 668 P.2d 697]; In re Lynch (1972) 8 Cal.3d 410, 414 [105 Cal.Rptr. 217, 503 P.2d 921]; People v. Macias, supra, 137 Cal.App.3d at p. 475) that has broad consequences with respect to the prosecution of the particular crime. Therefore, in determining whether the reference in

section 664, subdivision (a), to attempted “willful, deliberate, and premeditated murder” establishes a greater degree of attempted murder, we look to the probable intent of the Legislature in enacting the 1986 amendment. In ascertaining legislative intent, we turn first to the statutory language employed. (People v.

Broussard (1993) 5 Cal.4th 1067, 1071 [22 Cal.Rptr. 278, 856 P.2d 1134].) Nothing in the wording of the amendment reflects a legislative intent to create a greater degree of the offense of attempted murder, unlike legislative provisions that specifically and expressly establish higher degrees of crimes where aggravating circumstances are present. (See People v. Chambers (1972) 7 Cal.3d 666, 671 [102 Cal.Rptr. 776, 498 P.2d 1024].) The language of the newly added provision—that “[t]he additional term provided in this

section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact” (§ 664, subd. (a), italics added)—is the language typically employed in describing sentence enhancements, as opposed to defining a crime or prescribing the term of imprisonment for the crime itself. (See 3 Witkin & Epstein, Cal.

Criminal Law (2d ed. 1989) Punishment for Crimes, § 1473, p. 1749 [generally, enhancement provisions refer to imposition of an “additional term”]; see, e.g., §§ 667.7, 667.72, 667.75, 12022, 12022.5, 12022.55; see also 3 Witkin & Epstein, Cal.

Criminal Law, op. cit. supra, § 1473, p. 1750 [a statute may include both provisions specifying the punishment for a crime and provisions imposing enhancements].) Thus, the statutory language employed in prescribing an additional penalty for attempted murder where the jury finds true as charged the aggravating circumstance that the, offense was willful, deliberate, and premeditated reflects a legislative intent to create a penalty provision specifying a greater term, rather than a substantive offense.

Moreover, as we have seen, at the time of the 1986 amendment it was well established that the crime of attempted murder was not divided into degrees, and we may presume that, had the Legislature intended to alter this generally recognized rule, it would have done so explicitly. We are unaware of any California penal provision creating degrees of an offense by implication.

For these reasons, we find no basis for defendant’s conclusion that, in amending the statute to prescribe a life sentence for attempted murder that is willful, deliberate, and premeditated, the Legislature sought to carve out a separate, higher degree of the crime of attempted murder. Subdivision (

d) of

section 664—specifying that if a crime is divided into degrees, an attempt to commit that crime may be of any of those degrees— does not require that attempted murder that is willful, deliberate, and premeditated be designated as first degree attempted murder. As explained previously, subdivision (

d) was added to

section 664 in 1978 (as subdivision 4), and, at the time of the 1986 amendment, subdivision (

d) never had been construed as establishing degrees of attempted murder based upon the degree of the murder that was attempted. No aspect of the 1986 amendment suggests that, as a result of this amendment, subdivision (

d) henceforth should be construed as dividing attempted murder into degrees. Moreover, although defendant argues that attempted murder that is willful, deliberate, and premeditated, within the meaning of the 1986 amendment, is a higher degree of attempted murder under

section 664, subdivision (d), i.e., “attempted first degree murder,” first degree murder under

section 189 encompasses more categories of murder than those that are “willful, deliberate, and premeditated.” Accordingly, the 1986 amendment does not provide a greater punishment for any attempt to commit first degree murder, but only for attempts to commit those first degree murders that are willful, deliberate, and premeditated.

If the charge of attempted murder is based upon an intended murder that, if completed, would be of the first degree under some other category of first degree murder, such attempted murder would not subject the defendant to the enhanced punishment prescribed by the 1986 amendment, but rather to the same punishment provided for an attempt to commit second degree murder. Accordingly, the 1986 amendment did not establish a higher degree of murder—“attempted first degree murder”—premised upon an attempt to commit any murder that, if completed, would constitute first degree murder under

section 189, and thus did not divide the offense of attempted murder into degrees under the provisions of

section 664, subdivision (d). For these reasons, we conclude that the provision of

section 664, subdivision (a), prescribing a punishment of life imprisonment with the possibility of parole for an attempt to commit murder that is “willful, deliberate, and premeditated” does not establish a greater degree of attempted murder but, rather, sets forth a penalty provision prescribing an increased sentence (a greater base term) to be imposed upon a defendant’s conviction of attempted murder when the additional specified circumstances are found true by the trier of fact.

V The trial court determined that, even if the Legislature by the 1986 amendment did not establish a greater degree of attempted murder, the language employed in the information in this particular case—charging in a single paragraph that defendant “did willfully, deliberately, and premeditatedly attempt to murder”—and the trial judge’s acceptance of a “partial jury verdict” convicting defendant of attempted murder alone, created greater and lesser degrees of attempted murder and resulted in defendant’s conviction of the lesser degree. In support of this determination, the trial court cited People v.

Wilson (1964) 224 Cal.App.2d 738, 743 [37 Cal.Rptr. 42].) The premise of the trial court’s ruling—that the language of the charging document and the form of the jury verdict may establish degrees of an offense even if the Legislature has not done so—is erroneous.

As we have explained, the division of a crime into degrees constitutes an exclusively legislative function, and the circumstance that an allegation pertaining to a penalty provision is pleaded within the same paragraph containing the charge of the underlying offense cannot transform that allegation into an element of the offense or otherwise establish degrees of the offense. The opinion in People v. Wilson, supra, 224 Cal.App.2d 738, relied upon by the trial court, does not support a contrary conclusion.

In that case, the appellate court determined, based upon considerations of fairness to the defendant, that it would refer to the accusatory pleadings in two separate proceedings to determine whether the offense charged in one proceeding was necessarily included within the offense charged in another proceeding, within the meaning of

section 1023. (224 Cal.App.2d at pp. 742-743.) Wilson did not hold, however, that the accusatory pleadings established the elements of the crimes themselves—which were defined by statute—or that the allegations in an accusatory pleading may establish greater or lesser degrees of a crime where the Legislature has not divided the crime into degrees. Furthermore, in People v.

Wolcott, supra, 34 Cal.3d 92, 100-101, this court expressly rejected the notion that sentence enhancement allegations in an accusatory pleading could be considered for the purpose of defining lesser offenses included within the substantive offense charged.

Moreover, the purpose of the charging document is to provide the defendant with notice of the offense charged. (§ 952.) The charges thus must contain in substance a statement that the accused has committed some public offense, and may be phrased in the words of the enactment describing the offense or in any other words sufficient to afford notice to the accused of the offense charged, so that he or she may have a reasonable opportunity to prepare and present a defense. (See In re Hess (1955) 45 Cal.2d 171, 175 [288 P.2d 5]; 4 Witkin & Epstein, Cal.

Criminal Law, op. cit. supra, Proceedings Before Trial, § 2060, p. 2426; id., § 2061, pp. 2427-2428.) In the present case, count one of the information, designated “Attempted Murder with Premeditation,” charged defendant in the language of

section 664, subdivision (a), so as to serve sufficiently the purpose of the information, i.e., to apprise defendant that he was accused of the offense of attempted murder as well as the penalty allegation that the attempted murder was willful, deliberate, and premeditated. As noted in

part I, ante, the trial court instructed the jury (in accordance with CALJIC No. 8.66) on the crime of attempt to commit murder, and separately instructed (in accordance with CALJIC No. 8.67) that, in the event the jury found defendant guilty of attempted murder, it then must determine separately whether the premeditation allegation was true. These instructions clearly defined an attempt to commit murder as a single offense rather than one of degrees, and distinguished the premeditation allegation as separate from, rather than a greater degree of, the offense of attempted murder.

The record does not reflect any objection by defendant to these instructions or to the trial court’s subsequent instruction that the jury could find defendant guilty of the offense of attempt to commit murder separately from its consideration of the truth of the premeditation allegation. Under these circumstances, where defendant failed to object at trial to the adequacy of the notice he received, any such objection is deemed waived. (People v.

Carbonie (1975) 48 Cal.App.3d 679, 691 [121 Cal.Rptr. 831].) For the foregoing reasons, we conclude that the jury’s verdict finding defendant guilty of attempted murder did not constitute an acquittal of a greater degree of that offense, and does not bar on double jeopardy grounds a retrial of the separate penalty allegation that the murder attempted was willful, deliberate, and premeditated. VI The judgment of the Court of Appeal, reversing the trial court’s dismissal of the penalty allegation and remanding the case for reinstatement of that allegation, is affirmed. Lucas, C.

J., Arabian, J., Baxter, J., and Werdegar, J., concurred. A11 further statutory references are to the Penal Code unless otherwise indicated. Although, as we discuss below, the language employed in the segment of

section 664 at issue in this case corresponds to the language typically employed in “sentence enhancement” provisions under the Determinate Sentencing Act of 1976, strictly speaking this portion of

section 664 does not constitute an “enhancement” within the meaning of rule 405(

c) of the California Rules of Court, which defines “enhancement” as “an additional term of imprisonment added to the base term,” because this statutory provision establishes an increased base term for the crime of attempted murder upon a finding of specified circumstances. For this reason, instead of phrasing the issue before us as whether the “premeditated murder” provision of

section 664 creates (1) a “greater degree” of the offense of attempted murder, or (2) a “sentence enhancement,” we shall refer to the second of these two alternatives as a “penalty provision specifying a greater term,” and shall refer to an allegation of a circumstance that justifies an increased sentence as a “penalty allegation.” (See People v. Wims (1995) 10 Cal.4th 293, 305 [41 Cal.Rptr.2d 241, 895 P.2d 77] [distinguishing statutes that “articulateQ a penalty provision" from those that create a “a substantive crime” (original italics)]; see also People v.

Jenkins (1995) 10 Cal.4th 234 [40 Cal.Rptr.2d 903, 893 P.2d 1224] [interpreting and applying § 667.7, another statutory provision that, although not strictly an “enhancement” within the meaning of rule 405(c), provides for an increased sentence upon the finding of specified circumstances].) CALJIC No. 8.66 provides in part: “Every person who attempts to murder another human being is guilty of a violation of Sections 664 and 187 of the Penal Code. [5D Murder is the unlawful killing of a human being with malice aforethought. [50 In order to prove such crime, each of the following elements must be proved; [50 1.

A direct but ineffectual act was done by one person towards killing another human being; and [50 2. The person committing such act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being. [50 In determining whether or not such

an act was done, it is necessary to distinguish between mere preparation, on the one hand, and the actual commencement of the doing of the criminal deed, on the other.” CALJIC No. 8.67 provides in part: “It is also alleged in . . . the information that the crime attempted was willful, deliberate, and premeditated murder. If you find the defendant guilty of attempt to commit murder, you must determine whether this allegation is true or not true.” The jury also found defendant guilty of the offense of unlawful possession of a firearm, and found true the allegations of personal use of a firearm, discharging a firearm from a motor vehicle, and infliction of great bodily injury.

Section 1157 provides in pertinent part: “Whenever a defendant is convicted of. . . [an] attempt to commit a crime which is distinguished into degrees, the jury . . . must find the degree of the . . . attempted crime of which he is guilty. Upon the failure of the jury ... to so determine, the degree of the . . . attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree.”

Section 1159 provides that “[t]he jury . . . may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.” Prior to the enactment of the determinate sentencing law in 1976, the punishment for first degree murder was life imprisonment and the punishment for second degree murder was imprisonment for five years to life. At that time,

section 664 prescribed “a term of imprisonment of not more than 20 years” as the punishment for an attempt to commit any crime that carried a potential life sentence. (Stats. 1953, ch. 713, § 1, p. 1983.) Thus, no distinction was made between attempted first degree and second degree murder, insofar as the punishment prescribed for attempted murder. As part of the Determinate Sentencing Act of 1976 (effective July 1, 1977),

section 190 was amended to prescribe as the punishment for first degree murder a term of life imprisonment (or the alternative of the death penalty), and for second degree murder a determinate term of five, six, or seven years. (Stats. 1976, ch. 1139, § 133, p. 5098.)

Section 664 also was amended to provide determinate terms for all attempts, including one-half the term prescribed for the completed crime or, if the maximum term for the completed crime was life, a determinate term of five, six, or seven years. (Stats. 1976, ch. 1139, § 265, p. 5137.) Thus, for a brief period, effective July 1, 1977, the punishment for attempted first degree murder was five, six, or seven years, and for attempted second degree murder two and a half, three, or three and a half years. On November 7, 1978, by passage of the Briggs Initiative, the California electorate amended

section 190, changing the punishment for first degree murder to 25 years to life and for second degree murder to 15 years to life. The initiative was silent as to attempted murder, however, and

section 664, as amended, remained the law, unchanged by the initiative. Consequently, the statutory scheme once again provided that a defendant convicted of attempted murder would face the same punishment regardless of the degree of the murder attempted. The 1978 amendment also substituted “five, seven, or nine years” for “five, six, or seven” years as the punishment provided where the crime attempted is one in which the maximum sentence is life imprisonment or death. At the time of the 1986 amendment, current subdivision (

a) was designated subdivision 1. The 1986 version of

section 664 provided in part (Stats. 1986, ch. 519, § 2, p. 1859): “Every person who attempts to commit any crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempts, as follows: “1. If the offense so attempted is punishable by imprisonment in the state prison, the person guilty of such attempt is punishable by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense so attempted; provided, however, that if the crime attempted is willful, deliberate, and premeditated murder, as defined in

Section 189, the person guilty of that attempt shall be punishable by imprisonment in the state prison for life with the possibility of parole; provided, further, that if the crime attempted is any other one in which the maximum sentence is life imprisonment or death the person guilty of the attempt shall be punishable by imprisonment in the state prison for a term of five, seven, or nine years. The additional term provided in this

section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact. “4. If a crime is divided into degrees, an attempt to commit the crime may be of any such degree, and the punishment for the attempt shall be determined as provided by this section.” It is unclear from the briefing whether it is the position of defendant that

section 664, subdivision (d), also creates offenses of “attempted first degree murder” and “attempted second degree murder.” As we have seen, however, since the enactment of the predecessor to

section 664, subdivision (d), in 1978, California courts consistently have interpreted the statute as not dividing the crime of attempted murder into degrees; additionally, the current standard jury instructions on attempted murder, providing for a single instruction on attempted murder, with a separate instruction on the premeditation allegation which the jury is to determine only if it finds the defendant guilty of attempted murder, are inconsistent with such an

interpretation of the statute. If attempted murder were divided into degrees in this manner, a jury verdict finding a defendant guilty of attempted murder, without specifying the degree of murder, would constitute a conviction of “attempted second degree murder” and an implied acquittal of “attempted first degree murder,” and thus logically would preclude a subsequent finding by the jury of the truth of the separate allegation of premeditation. (See, e.g., People v.

Superior Court (Marks) (1991) 1 Cal.4th 56, 74-75 [2 Cal.Rptr.2d 389, 820 P.2d 613] [if a jury returns a verdict convicting a defendant of murder without specifying the degree, § 1157 renders that verdict one of second degree murder, even if the jury, at the same time it returned its murder verdict, also found true a special circumstance allegation that, by its terms, could have been found true only if the jury had found defendant guilty of first degree murder].) Defendant appropriately does not suggest that

section 664 properly is subject to such an

interpretation. The segments of the legislative history of the 1986 amendment that are cited in the dissenting opinions reflect that the amendment sought to impose an enhanced punishment for attempted murder proportionate to the culpability of the crime, when the murder that was attempted was willful, deliberate, and premeditated.

In our view, the references to “attempted first degree murder” in several of the informal analyses discussing the proposed amendment simply reflect the analysts’ use of a shorthand reference to an attempt to commit a murder that, if completed, would constitute first degree murder because it was willful, deliberate, and premeditated. There is nothing in any of the cited analyses suggesting that such shorthand references were intended to reflect a considered legislative decision to create a new crime, as opposed to a new punishment provision.

Indeed, as noted above, by employing the language typically used in sentence enhancements—“[t]he fact that the attempted murder was willful, deliberate, and premeditated murder” must be specifically charged and admitted or found true “by the trier of fact”—the Legislature made clear that it sought to establish a penalty provision, rather than a new crime.

The inclusion of this typical enhancement language would have been unnecessary had the Legislature intended to create a new crime of attempted premeditated murder, because a crime must be charged in an accusatory pleading and there would have been no need to specify that the punishment for the crime could be imposed only if the charge was admitted or found true by the trier of fact. Thus, the dissents’ proposed reading of the 1986 amendment would render superfluous a substantial portion of that amendment.