—I dissent.
Plainly, the evidence is insufficient to support the jury’s verdict finding defendant guilty of first degree murder on the sole theory presented by the prosecution—willful, deliberate, and premeditated murder. Specifically, it is insufficient as to premeditation and deliberation.
When a court assesses the sufficiency of the evidence, its “task is to determine whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. [Citation.] The judgment must be supported by ‘substantial evidence,’ which has been defined as evidence that ‘reasonably inspires confidence and is of “solid value.” ’ ” (People v. Morris (1988) 46 Cal.3d 1, 19 [249 Cal.Rptr. 119, 756 P.2d 843].) The term “substantial evidence,” of course, means solid evidence and not mere speculation. In any given case, a court “may speculate about any number of scenarios that may have occurred .... A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. ... A finding of fact must be an inference drawn from evidence rather than ... a mere speculation as to probabilities without evidence.” {Id. at p. 21, italics in original, internal quotation marks and paragraph sign omitted.)
In People v. Anderson (1968) 70 Cal.2d 15 [73 Cal.Rptr. 550, 447 P.2d 942], we stated: “The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’ [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed *605according to a ‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’ which the jury can reasonably infer from facts of type (1) or (2).
“Analysis of the cases will show that this court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).” (70 Cal. 2d at pp. 26-27, italics in original.)
It is plain that a rational trier of fact could not have found defendant guilty beyond a reasonable doubt of willful, deliberate, and premeditated murder: premeditation and deliberation were not proved beyond a reasonable doubt. Indeed, the evidence of these two elements is practically nonexistent, and is certainly far too insubstantial to support a finding beyond a reasonable doubt. At most, the record supports an inference that the killing resulted from an explosion of violence without significant forethought or reflection on the part of defendant.
Specifically, there is no substantial evidence that defendant planned his attack. In support of their opposite conclusion, the majority present what they label “possible scenario[s]” (maj. opn., ante, at p. 547) assertedly indicative of planning. Those “scenarios” rest on a crucial factual assumption, to wit, that a hammer, which was the likely murder weapon, was missing from a toolbox in a garage and was taken from that location not long before the fatal attack. (See maj. opn., ante, at p. 547.) That assumption, however, is unsupported. There is simply no evidence whatever that the hammer belonged in the toolbox. Nor is there any evidence whatever that it had been removed recently. The majority derive their “scenarios” from an unconventional source: argument made by the prosecutor and not from evidence adduced by the parties. (See maj. opn., ante, at pp. 547-548.) The prosecutor’s argument may have encouraged jury speculation that defendant planned the killing. But neither a prosecutor’s argument nor “speculation” is “evidence,” less still “substantial evidence.”
Next, there is no substantial evidence that defendant had a motive to kill. In support of their opposite conclusion, the majority again turn not to evidence but to the prosecutor’s argument. (See maj. opn., ante, at pp. 547-548.) It is possible to indulge in speculation that defendant had a motive— but it is elementary that “speculation” is not “evidence.”
Finally, there is no substantial evidence that defendant employed a manner of killing that indicates a preconceived design to kill in a certain way. *606The majority expressly concede as much. (Maj. opn., ante, at p. 548.) In this they do only what necessity demands: it is pellucid that substantial evidence on the point is lacking.1
Therefore, the evidence is insufficient to support the jury’s verdict finding defendant guilty of willful, deliberate, and premeditated murder. The conviction must accordingly be reversed. And retrial on the underlying charge is barred by the double jeopardy clause of the Fifth Amendment as applied to the states through the due process clause of the Fourteenth Amendment. (See, e.g., People v. Pierce (1979) 24 Cal.3d 199, 209-210 [155 Cal.Rptr. 657, 595 P.2d 91], following Burks v. United States (1978) 437 U.S. 1 [57 L.Ed.2d 1, 98 S.Ct. 2141], and Greene v. Massey (1978) 437 U.S. 19 [57 L.Ed.2d 15, 98 S.Ct. 2151].)
Because of my conclusion on the insufficiency of the evidence, I need not reach any other issues. One further question, however, is of general importance.
Defendant contends that the trial court erred when it rejected his claim of psychotherapist-patient privilege and subsequently admitted testimony as to certain communications he made in confidence to Dr. Judith Hamilton, a clinical psychologist, and Dr. Bellenden Hutcheson, a psychiatrist, in the course of psychotherapy.
The court recognized—rightly—the general applicability of the psychotherapist-patient privilege on the facts presented. Evidence Code section 1014 declares, in pertinent part, that “the patient . . . has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist . . . .”
But the court believed—wrongly—that the so-called “dangerous patient” exception to the psychotherapist-patient privilege was implicated. Evidence Code section 1024 (hereafter section 1024) provides, as relevant here, that “There is no privilege ... if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger.”
The words of section 1024 are clear. The psychotherapist-patient privilege cannot be claimed when the psychotherapist reasonably believes that the patient is dangerous and that disclosure is necessary to avert injury. *607Also clear is the legislative intent underlying section 1024: to prevent future harm. (See § 1024; see also Recommendation Proposing an Evidence Code (Jan. 1965) 7 Cal. Law Revision Com. Rep. (1965) Cal. Law Revision Com. comment, Evid. Code, § 1024, p. 199.)
In view of the foregoing, it is manifest that the trial court erred in rejecting defendant’s claim of psychotherapist-patient privilege on the basis of the “dangerous patient” exception.
At the time the privilege was claimed, section 1024 was inapplicable according to the clear meaning of its plain terms. It is undisputed that at that time, neither Dr. Hamilton nor Dr. Hutcheson had any belief, reasonable or otherwise, that defendant was dangerous. It is similarly undisputed that at that time, neither had any belief, reasonable or otherwise, that disclosure of any communication was necessary to avert any injury.
Further, at the time the privilege was claimed, section 1024 was inapplicable because its intent could not be furthered. Again, it is undisputed that at that time, there was no longer any injury that could have been averted. Cessante ratione legis, cessat et ipsa lex.
The majority, however, conclude that the trial court did not err. In doing so, they misconstrue section 1024. To begin with, they read the provision contrary to the clear meaning of its plain terms. As noted, section 1024 declares that “There is no privilege ... if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger.” The provision simply does not state that “There is no privilege ... if the psychotherapist had reasonable cause to believe that the patient was in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication was necessary to prevent the threatened danger.”
Further, the majority interpret section 1024 in violation of the underlying legislative intent. As stated, that purpose was to avert future harm. The majority apparently discern a legislative intent to avert future harm and to facilitate punishment if the harm is not averted. But such an intent is not disclosed in the words of the provision or in any relevant extratextual material.
The Legislature could certainly have drafted section 1024 to state the rule the majority now create ex nihilo—viz., a “dangerous” communication is outside the scope of the privilege ab initio. For example, Evidence Code *608section 1018 provides in substance that a “criminal” or “tortious” communication is outside the scope of the privilege: “There is no privilege ... if the services of the psychotherapist were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a tort or to escape detection or apprehension after the commission of a crime or a tort.” But the fact remains that the Legislature did not draft section 1024 to state the new rule created by the majority.2
The trial court’s error in rejecting defendant’s claim of psychotherapist-patient privilege and subsequently admitting the testimony of Drs. Hamilton and Hutcheson as to confidential communications was unquestionably prejudicial. The only arguable basis for speculation as to premeditation and deliberation was laid by that testimony. There is a reasonable probability that absent the error, the outcome would have been more favorable to defendant. (See People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)3
For the reasons stated above, I would reverse the judgment in its entirety and bar retrial on the charge of murder in the first degree.
I recognize that defendant’s conduct appears to support an inference of intent to kill. But such an intent, of course, does not amount to or entail premeditation or deliberation in and of itself. (See People v. Anderson, supra, 70 Cal.2d at p. 26.)
In People v. Clark (1990) 50 Cal.3d 583, 619-620 [268 Cal.Rptr. 399, 789 P.2d 127], on which the majority rely, the court baldly stated that “If. . . statements [made in confidence] have been revealed to third persons in a communication that is not itself privileged, . . . they are no longer confidential” and no longer privileged. In enacting the Evidence Code, the Legislature rejected the old “eavesdroppers rule.” (Recommendation Proposing an Evidence Code, supra, 1 Cal. Law Revision Com. Rep., supra, Cal. Law Revision Com. comment, Evid. Code, § 954, p. 174 [speaking with specific reference to the attorney-client privilege but with general applicability].) By means of the words quoted above, the Clark court attempted to adopt the rule anew. Here, of course, the judiciary cannot resurrect what the Legislature has interred. “[T]he Evidence Code precludes the courts from elaborating upon the statutory scheme” relating to the law of privilege. (Recommendation Proposing an Evidence Code, supra, 1 Cal. Law Revision Com. Rep., supra, Cal. Law Revision Com. comment, Evid. Code, § 911, p. 160.) A fortiori, it precludes them from subverting the scheme altogether.
The Clark statement should be disapproved forthwith. I recognize that Clark was decided only a year ago. That fact, however, urges action and not hesitation. “The freshness of error not only deprives it of the respect to which long-established practice is entitled, but also counsels that the opportunity of correction be seized at once, before . . . laws and practices have been adjusted to embody it.” (South Carolina v. Gathers (1989) 490 U.S. 805, 824 [104 L.Ed.2d 876, 892, 109 S.Ct. 2207] (dis. opn. of Scalia, J.).)
Although most of his dissenting opinion is sound, Justice Broussard unfortunately misconstrues section 1024 much as the majority do.