People v. Bright

• Decision Date: 05 February 1996
• Docket Number: No. S044186,S044186
• Citation: 49 Cal.Rptr.2d 732,12 Cal.4th 652,909 P.2d 1354
• Court: California Supreme Court
• Parties: , 909 P.2d 1354, 96 Cal. Daily Op. Serv. 870, 96 Daily Journal D.A.R. 1290 The PEOPLE, Plaintiff and Appellant, v. James Michael BRIGHT, Defendant and Respondent.

Page 732

49 Cal.Rptr.2d 732

12 Cal.4th 652, 909 P.2d 1354, 96 Cal. Daily Op. Serv. 870,

96 Daily Journal D.A.R. 1290

The PEOPLE, Plaintiff and Appellant, v. James Michael BRIGHT, Defendant and Respondent.

No. S044186.

Supreme Court of California.

Feb. 5, 1996.

Paul J. Pfingst and Edwin L. Miller, Jr., District Attorneys, Thomas F. McArdle and Karen I. Doty, Deputy District Attorneys, for plaintiff and appellant.

Merle N. Schneidewind, under appointment by the Supreme Court, San Diego, for defendant and respondent.

GEORGE, Justice.

Penal Code section 664 ¹ 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. ² 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), ³ 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." ⁴

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. ⁵ 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...