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” under Penal Code section 664, subdivision (a). A simple factual change demonstrates the correctness of that determination: Had the victim died and defendant been convicted of first degree murder pursuant to Penal Code section 189, Burks would clearly preclude retrial of that charge if an appellate court found the same evidentiary deficiency. The difference is that with respect to attempted murder, the Legislature has—arbitrarily, one *552might argue—designated the “willful, deliberate, and premeditated” finding as the ultimate sentencing determinant, rather than—as with actual murder —as the preliminary determinant of the degree of the crime, which in turn sets the defendant’s sentence. While Penal Code section 664, subdivision (a), may not be as stark an example of legislative overreaching as that hypothesized by Justice Scalia in his dissent in Monge v. California, supra, 524 U.S. at page 738, the constitutional implications, both federal and state, are no less self-evident.