The PEOPLE, Plaintiff and Appellant, v. James Michael BRIGHT, Defendant and Respondent.
James Michael Bright (Bright) was convicted of the attempted murder of a deputy sheriff. The jury was unable to agree on whether the attempted murder was premeditated. Before retrial of the premeditation allegation, Bright moved successfully to dismiss the allegation, and was thereafter sentenced to state prison for 17 years, 8 months. The People appeal from the order striking the premeditation allegation and the subsequent sentence.1 We reverse the order dismissing the allegation, set aside the sentence, and order the allegation that Bright premeditated the attempted murder be reinstated for trial.
FACTUAL BACKGROUND 2
The facts are essentially undisputed. In the early morning hours of June 6, 1992, San Diego County Sheriff's Deputy Paul Kain decided to stop a vehicle driven by Bright because of defective brake lights. A passenger in Bright's car, Rebecca Scott, saw Bright pick up his .357 Magnum from under the seat as Kain's patrol car fell in behind Bright's vehicle. Bright drove on while holding the gun in his hand.
Bright did not pull over at first when Kain signaled him to do so. Instead, he waited to pull over into an area where Deputy Kain would not be able to come up to the right side of Bright's car, but would be forced to approach the driver's side of the car. Scott repeatedly yelled at Bright to “put [the gun] under the seat.”
Scott's pleas were, however, unavailing. Bright waited until Deputy Kain approached. Bright then fired all six .357 rounds at Kain, hitting him three times in the waist and the abdomen, and blowing away the battery pack on Kain's portable radio with another round. Bright then drove off.
Deputy Kain was able to crawl back to his patrol car and radio for assistance, providing a description of Bright and his vehicle as well. Kain was hospitalized for weeks, colostomized for months, and suffers continuing nerve damage from the shooting. One bullet remains in his leg muscle.
Bright was arrested nine days later.
By information filed July 30, 1992, the People charged in Count One, “Attempted Murder with Premeditation” that Bright “did willfully, deliberately, and premeditatedly attempt to murder Paul Kain, a human being,” in violation of Penal Code 3 sections 664 and 189. Bright had also, it was further alleged, 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 jury was instructed with CALJIC No. 8.66 on elements of attempted murder without mention of the premeditation issue, and then told pursuant to CALJIC No. 8.67: “It is also alleged in Count One of 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.”
On January 7, 1993, Bright was convicted of all charges with a single exception: as to the allegation the attempted murder was premeditated, the jury was deadlocked, 11–to–1 in favor of a true finding. Earlier in deliberations, the jury had asked whether they could return a verdict on the charge of attempted murder, even if they could not return a unanimous verdict on the premeditation allegation.
The court initially told the jurors they must first all agree on the question of premeditation before arriving at a verdict on the charge of attempted murder. The next day the court modified those instructions to the jurors, now telling them they could arrive at a verdict on the attempted murder and thereafter consider the question of premeditation.
The jury found Bright guilty of attempted murder. The jury further declared, however, they were unable to reach a verdict on the premeditation allegation, and the court then declared a mistrial on that allegation.
A motion to dismiss the premeditation allegation in the interest of justice was denied by the trial court. Bright thereafter brought (before another judge as the trial judge had died) a new motion to dismiss the premeditation allegation on grounds of once-in-jeopardy, and the People filed extensive opposition papers. The verdict form reflected the jury's finding Bright was guilty of the crime of attempted murder, but the separate finding as to whether the offense was premeditated was left blank.
The second motion to dismiss was heard on August 18, 1993. On August 19, Bright's motion to strike the premeditation charge was granted, and on August 30, Bright was sentenced to state prison for a term of 17 years, 8 months. The People timely filed notice of appeal.
STANDARD OF REVIEW
As both parties agree that factual findings are not in issue, this appeal presents a question of law only, which requires that we exercise our independent judgment under a non-deferential standard of review. (See, e.g., People v. Louis (1986) 42 Cal.3d 969, 986, 232 Cal.Rptr. 110, 728 P.2d 180.)
1. The Ruling Below
The central thrust of the renewed motion to dismiss was that (a) attempted murder is an offense divided into degrees, (b) Bright's conviction of attempted murder with no finding as to premeditation worked as an acquittal of the greater degree, and thus (c) his once-in-jeopardy plea requires dismissal of the premeditation charge.
In the points and authorities submitted in support of the motion Bright also urged that apart from the once-in-jeopardy argument, section 1157 4 required dismissal of the premeditation allegation, as the return of a guilty verdict on attempted murder operated as an acquittal of the “greater” offense of attempted premeditated murder, and the conviction of a lesser included offense to that charged is expressly authorized by section 1159.5
Central to Bright's argument was the point that the determination whether an offense is necessarily included within another should be made by reference to the language of the charging document, and in this case it was alleged Bright “did willfully, deliberately, and premeditatedly attempt to murder Paul Kain, a human being.” This language, Bright contended, described an element of the offense, rather than an enhancing allegation.6
The People in their opposing papers first cited case authority that attempted murder is not divided into degrees. The People next argued that because there are no degrees of attempted murder, (a) section 1157 did not apply and the jury correctly did not specify the degree of the offense of which Bright was convicted, and (b) there is no “included offense” within premeditated attempted murder and the jury correctly determined the charge of attempted murder before considering the truth of the premeditation allegation.
The People last asserted the particular language of the charging document was not relevant to determining whether a crime was divided into degrees, because “the form of the pleading itself does not determine what is classified as an allegation” rather than as an element of the offense.
According to Judge Ehrenfreund, on the question of whether attempted murder had degrees, and thus whether premeditation could be considered an enhancement or an element, it was “essential ․ how [premeditation] was charged․ [I]t does appear to the court that whether an offense is necessarily included or not is not determined by the abstract language of the statute, but it is determined by the language of the accusatory pleading. Now I cite for you in that regard, People [v.] Wilson  224 Cal.App.2d at 738, page 743 [37 Cal.Rptr. 42]7 ․ So in ruling on this question, which I admit it's a close call. One of first impression. But in ruling on it, essential to my ruling is looking at how this was charged. Not the language of the charge itself, but the language in the accusatory pleading.”
In ruling on the motion, however, Judge Ehrenfreund said he accepted the rule that attempted murder was not divisible into degrees, but “if under Douglas, attempted murder is not a lesser included offense of attempted premeditated murder which ․ cannot be divided into any degrees, and it seems to this court, if it cannot be divided into degrees, then the trial court should not have accepted a partial verdict on attempted murder. That would be inconsistent. That would be, in effect, dividing it into degrees․”
The judge stated that notwithstanding the case law to the effect there are no degrees of attempted murder, the manner in which Judge Woodward had received the jury's partial verdict had effectively created greater and lesser degrees of the offense, and “the fact that the court divided the case into degrees, and the way that was done, in my mind, precludes the People from claiming the benefits of both that guilty verdict and now reprosecuting on the issue of premeditation. I find that would be double jeopardy under both state and federal constitutions.”
It is clear, of course, no action by Judge Woodward in receiving any verdict can have had the effect attributed to it by Judge Ehrenfreund, because whether an offense is divided into degrees is a determination within the power of the legislative branch exclusively. “[I]n our tripartite system of government it is the function of the legislative branch to define crimes and prescribe punishments, and ․ such questions are in the first instance for the judgment of the Legislature alone. [Citations.]” (In re Lynch (1972) 8 Cal.3d 410, 414, 105 Cal.Rptr. 217, 503 P.2d 921; quoted in People v. Dillon (1983) 34 Cal.3d 441, 477–478, 194 Cal.Rptr. 390, 668 P.2d 697, which was in turn cited by the court in People v. Douglas, supra, 220 Cal.App.3d at p. 549, 269 Cal.Rptr. 579.)
Thus it would be legally impossible for the trial court herein to have “created” degrees of an offense where no such degrees have been specifically set out by the Legislature, and the judge hearing the motion to dismiss erred in the basis for his dismissal. Because we review the ruling and not the reasoning, however, we must still enquire whether there is any alternative rationale for sustaining the order.
2. The Case Authority
Since only the Legislature may create degrees of an offense, the question is whether it, rather than the trial court herein, has done so. As Bright recognizes, on this fundamental question, the cases are against him. He asks instead that we reevaluate the arguments rejected in those cases on the basis that his claim of double jeopardy, a constitutional violation, was not litigated therein.
But the claimed constitutional violation depends upon a finding that the offense is in fact divided into degrees in the first place. That is, until the question of whether there are degrees of the offense is first answered, we cannot know whether there can have been a consequent double jeopardy violation. If there are no degrees to the offense, as a matter of simple logic double jeopardy is not involved. The question remains: are there degrees of attempted murder?
That question has been fully resolved in the cases:
“[Defendant] claims that the crime of attempted murder is divided into degrees. From this premise he argues that attempted second degree murder is a lesser-included offense of willful, deliberate and premeditated attempted murder; in other words, of attempted first degree murder. [Citations.] [Defendant] defines attempted second degree murder as an attempted killing of a human being with specific intent to kill and express malice aforethought; the crime does not require proof of premeditation and deliberation. [Citation.] Respondent, relying on People v. Wein (1977) 69 Cal.App.3d 79, 93 [137 Cal.Rptr. 814], and People v. Macias (1982) 137 Cal.App.3d 465, 471–472 [187 Cal.Rptr. 100], argues that there is only a single crime of attempted murder, not distinguished by degrees.
“At the time of the Wein and Macias decisions, Penal Code section 664, subdivision 1, provided for the same length of imprisonment—either from one to twenty years at the time of Wein, or for five, seven or nine years at the time of Macias—if the completed crime carried a maximum life sentence. Since both first and second degree murder carry potential life sentences, the law imposed a uniform punishment for attempted murder, regardless of the degree. Thus, the continued validity of the holding of the Wein and Macias cases, that the crime of attempted murder is not divided into degrees, can be questioned, since the Legislature amended section 664, subdivision 1, in 1986. The statute now provides for a punishment of life in prison with the possibility of parole for an attempted murder which was willful, deliberate and premeditated; however, if the attempted murder is not specifically found to be willful, deliberate and premeditated, it is punishable by imprisonment for five, seven, or nine years.2 Penal Code section 664, which governs attempted crimes, provides at subdivision 4 that an attempt may be of any degree of the underlying crime, and the punishment shall be determined as provided by that section.3
“The Legislature did not necessarily create different degrees of attempted murder by imposing different penalties. It can provide for varied punishment for a single crime depending on factors involved in the commission of that offense without dividing it into degrees. For example, the punishment for grand theft varies widely depending upon the nature of the articles stolen.4 Kidnapping is generally punishable by imprisonment for three, five, or eight years, but if the person kidnapped is under 14 years of age, the kidnapper faces imprisonment for five, eight, or eleven years. (§ 208.) In neither of these examples did the Legislature silently create degrees of grand theft (itself the greater degree of the crime) or kidnapping.
“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. (People v. Dillon (1983) 34 Cal.3d 441, 477–478 [194 Cal.Rptr. 390, 668 P.2d 697].) 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.” (People v. Douglas, supra, 220 Cal.App.3d at pp. 548–549, 269 Cal.Rptr. 579.)
Douglas was followed by Division Two of this District in People v. Jones, supra, 234 Cal.App.3d at p. 1311, 286 Cal.Rptr. 163,8 and was also cited approvingly (albeit in dicta) by the California Supreme Court “regarding the law [of whether attempted murder is divided into degrees] today.” (People v. Cooper (1991) 53 Cal.3d 771, 832, 281 Cal.Rptr. 90, 809 P.2d 865.)
This court, in People v. Dominguez (1992) 4 Cal.App.4th 516, 6 Cal.Rptr.2d 55, was confronted with a situation in which the jury in an attempted murder prosecution had been given verdict forms which did provide for degrees of guilt. The jury found one of two attempted murders there to have been second degree, and Dominguez asserted the other, a first degree finding, should be reduced because the instructions on degrees of the offense had been erroneous. (Id. at pp. 521–523, 6 Cal.Rptr.2d 55.)
We did not decide then whether the Douglas holding that there were no degrees of attempted murder was to be followed in this Division, because “the significance of [the issue] seems largely one of semantics in this case.” (People v. Dominguez, supra, 4 Cal.App.4th at p. 523, fn. 10, 6 Cal.Rptr.2d 55.) In the present case, however, the issue is not one of semantics, but whether Bright may be retried on the question of premeditation, and thus be exposed to a potential life sentence in place of the 17–year, 8–month sentence he has received now.
We conclude Douglas correctly states the law. The Legislature alone may create degrees of an offense. Neither the charging document nor a trial court's ruling can alter this, because “the law does not recognize the existence of such a crime [as attempted second degree murder].” (People v. Jones, supra, 234 Cal.App.3d at p. 1311, 286 Cal.Rptr. 163.)9
3. The Statutory Arguments
A. Section 664
Bright's legal arguments rest upon his assertion that section 664, defining punishment for attempted crimes, necessarily defines the offense of attempted second degree murder. As noted above, this argument has been found devoid of merit in People v. Douglas, supra, 220 Cal.App.3d at pages 548–549, 269 Cal.Rptr. 579 and People v. Jones, supra, 234 Cal.App.3d at pages 1310–1313, 286 Cal.Rptr. 163. As we have determined to follow the cited decisions, Bright's argument on this point must be rejected.
B. Section 1157
Bright also asserts that section 1157 10 requires we uphold the order below, with reference to the language that “[u]pon 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.” The contention here has been, just as with Bright's section 664 argument, specifically rejected in People v. Douglas, supra, 220 Cal.App.3d at page 550, 269 Cal.Rptr. 579, and thus we must also reject it. By parity of logic, if, as noted in Douglas, section 1157 “finds no application” in these cases (ibid.), section 1159 11 necessarily also is of no relevance to our decision, and Bright's citation thereto unavailing. No statutory basis whatsoever thus appearing in support of the order below, Bright's contentions in this regard must be rejected.
4. The Propriety of Retrial
Bright next argues that retrial is prohibited because the “jury was not properly presented with the enhancement issue but was presented with a single premeditated attempted murder count,” and thus section 1160 12 provides no authority for retrial of the premeditation allegation.
As discussed above, the manner in which premeditation was alleged in the information cannot transform it from an enhancement to an element of the offense. Further, CALJIC No. 8.67 13 was read to the jury, and that instruction clearly and repeatedly refers to the premeditation question as an “allegation” rather than an element of the offense. This instruction satisfactorily sets out the necessity for a separate specific finding on the premeditation allegation. (People v. Douglas, supra, 220 Cal.App.3d at p. 550, 269 Cal.Rptr. 579; People v. Dominguez, supra, 4 Cal.App.4th at pp. 521–524, 6 Cal.Rptr.2d 55.) For both of these reasons the question remains one of retrial of an enhancing allegation alone, rather than the retrial of the entire offense originally charged.
In a recent case, we held there simply was no double jeopardy problem presented by the proposed retrial of an enhancing allegation on which no verdict was returned, while leaving intact a verdict on the underlying offense (which in that case also was attempted murder). “Jeopardy does not attach solely from the fact of a mistrial, and a defendant may be retried until complete and final disposition is made of all charges. [Citations.] We conclude there is no legal or practical barrier to continued prosecution of an enhancement before a second jury where jeopardy is not a bar.” (People v. Schulz (1992) 5 Cal.App.4th 563, 569, 7 Cal.Rptr.2d 269.)
While Bright attempts to distinguish Schulz, we do not accept the attempted distinction, but follow that case in rejecting Bright's arguments that retrial of the enhancing allegation after conviction of an offense is improper.
5. Presentation of Question to Jury
Bright last argues retrial is prohibited because “the court erroneously instructed the jury that it could arrive at a verdict for attempted murder without finding [Bright] not guilty of attempted murder with premeditation.” This argument assumes that, in cases involving greater and lesser offenses, the jury must first acquit of the greater before they may return a verdict on the lesser. (See, e.g., CALJIC No. 17.10's directions to that effect.) While this is a correct statement of law, it necessarily has no import in a case such as this one, involving an offense and an enhancing allegation, rather than a greater and a lesser offense.
The core question presented is whether attempted murder is an offense divided into degrees, which in turn raises subsidiary questions of the manner in which verdicts may be returned on lesser offenses than the one charged. As we have answered the foundational question in the negative, we necessarily reject Bright's further arguments which were dependent upon his incorrect fundamental argument. Because there is no double jeopardy bar to retrial of an enhancing allegation the order dismissing the premeditation allegation was in error, and the sentence thereafter imposed unlawful.
We thus reverse the order dismissing the allegation that Bright premeditated the attempted murder of Deputy Sheriff Paul Kain, and we also set aside the unauthorized sentence previously imposed on Bright. Bright may properly be retried on the single question of premeditation, and must be sentenced anew following that proceeding.
The order dismissing the premeditation allegation and the subsequent imposition of judgment on Bright are reversed and the matter is remanded to the superior court for further proceedings in accordance with this opinion.
1. This appeal by the People is authorized by Penal Code section 1238, subdivisions (a)(1) (order setting aside an information) and (a)(10) (unlawful sentence).
2. Although this appeal involves a pure question of law, not dependent upon the facts of the offense, we recite these matters briefly to outline the interests of the parties.
FN3. All subsequent statutory references are to the Penal Code unless otherwise specified.. FN3. All subsequent statutory references are to the Penal Code unless otherwise specified.
4. 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.”
5. 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.”
6. Bright noted People v. Douglas (1990) 220 Cal.App.3d 544, 549, 269 Cal.Rptr. 579 and People v. Jones (1991) 234 Cal.App.3d 1303, 1311, 286 Cal.Rptr. 163, both held the offense of attempted murder was not divided into degrees, but urged these cases were either incorrectly decided or distinguishable. The People, of course, relied upon them for their case authority.
7. People v. Wilson, supra, 224 Cal.App.2d at pages 742–743, 37 Cal.Rptr. 42 holds (citing People v. Marshall (1957) 48 Cal.2d 394, 405, 309 P.2d 456) determinations as to what offenses are “necessarily included” in a charged offense should be made by reference to the accusatory pleading, rather than the definition embodied in the statutes. For the reasons which follow, however, the point is of no relevance in this case.
2. Section 664, subdivision 1 provides: ‘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 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 true by the trier of fact.’
3. Section 664, subdivision 4 provides: ‘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.’
4. Grand theft of a vehicle, trailer or vessel is punishable by imprisonment in state prison for two, three or four years or a fine of not more than $10,000, or both, or by imprisonment in the county jail not to exceed one year or a fine of not more than $1,000 or both. (§ 487h.) Grand theft of a firearm is punishable by imprisonment in the state prison for sixteen months, two or three years. In all other cases, grand theft is punishable by imprisonment in a county jail not exceeding one year or in the state prison. (§ 489.)”
8. The Jones court also pointed out the charging language there (“attempted willful, deliberate, premeditated murder”) did not convert an enhancing allegation into an element of the offense.
9. Jones also rejected an argument by the defendant that Douglas was incorrectly decided. (People v. Jones, supra, 234 Cal.App.3d at pp. 1311–1312, 286 Cal.Rptr. 163.) Also, Douglas was again followed by Division Two of this District in People v. Miller (1992) 6 Cal.App.4th 873, 879, 8 Cal.Rptr.2d 193.
10. See footnote 4, supra.
11. See footnote 5, supra.
12. Section 1160 states in pertinent part: “Where two or more offenses are charged in any accusatory pleading, if the jury cannot agree on a verdict as to all of them, they may render a verdict as to the charge or charges upon which they do agree, and the charges on which they do not agree may be tried again.”
13. “It is also alleged ․ 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 People have the burden of proving of truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true. [¶] You will include a special finding on that question in your verdict, using a form that will be supplied for that purpose.” (CALJIC No. 8.67.)
NARES, Associate Justice.
WORK, Acting P.J., and FROEHLICH, J., concur.