I dissent.
Defendant was charged with the crime of willful, deliberate, and premeditated attempted murder, in violation of Penal Code sections 664, 187, subdivision (a), and 189. After trial, the jury returned a verdict finding him guilty of simple “attempted murder.” It failed to reach a verdict on willful, deliberate, and premeditated attempted murder.
The trial court declared a mistrial and ordered a retrial on the charge of willful, deliberate, and premeditated attempted murder. Defendant filed a “Motion for Post-Trial Application for the Court to Strike Premeditation Charge.” He contended that, in failing to reach a verdict on premeditated attempted murder, the jury had impliedly acquitted him of that crime; instead, it found him guilty of the lesser included offense of second degree attempted murder. Retrial was, therefore, precluded under the double jeopardy clause of the Fifth Amendment to the United States Constitution. The trial court granted the motion “on the basis the trial court judge allowed the jury to arrive at a guilty verdict for attempted murder for Count 1 without finding defendant not guilty of attempted premeditated murder.” Defendant was sentenced to a term of 17 years, 8 months, in state prison.
*672The Court of Appeal reversed the order barring retrial. It reasoned that the offense of attempted murder is not divided into degrees; instead, Penal Code section 664, subdivision (a) (hereafter section 664(a)) provides for an enhancement of the punishment for attempted murder when it is willful, deliberate, and premeditated. The enhancement charge could be retried without violating double jeopardy. The majority affirm.
I would reverse. The jury, in effect, convicted defendant of the crime of second degree attempted murder. Retrial for the crime of willful, deliberate, and premeditated first degree attempted murder is, accordingly, barred under principles of double jeopardy.
The division of a crime into degrees constitutes an exclusively legislative function. (People v. Dillon (1983) 34 Cal.3d 441, 477-478 [194 Cal.Rptr. 390, 668 P.2d 697] (plur. opn. by Mosk, J.); see id. at p. 489 (conc. opn. of Reynoso, J.).) The Legislature plainly exercised that function in enacting Penal Code section 664, former subdivision 4 (currently Penal Code section 664, subdivision (d), hereafter section 664(d)), which requires that “[i]f a crime is divided into degrees, an attempt to commit the crime may be of any of those degrees . . . .”
Nothing in the wording or the legislative history of section 664(a) justifies the creation of a judicial exception to section 664(d) for the crime of attempted murder. As discussed below, I conclude that section 664(a) does not create an “enhancement” or enhancement-like “penalty provision” for the crime of simple attempted murder. Instead, it establishes a different base sentence for the separate substantive crime of premeditated attempted murder, i.e., the crime of first degree attempted murder that is “willful, deliberate, and premeditated.” As in the case of the parallel statute for the crime of murder, Penal Code section 189, what is required is a necessary element of the offense, not a circumstance separate from the underlying offense.
I.
Section 664(d) provides: “If a 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.” Penal Code section 189 provides that the crime of murder is distinguished into two degrees: “All murder which is perpetrated by means of a destructive device or explosive, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, *673mayhem, kidnapping, train wrecking, or any act punishable under Section 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.”
It is plain, therefore, that section 664(d) provides for two degrees of attempted murder. Just as willful, deliberate, and premeditated murder constitutes one form of murder of the first degree, so, therefore, the attempt to commit willful, deliberate, and premeditated murder constitutes one form of attempted murder of the first degree.
Section 664(a) says nothing to the contrary. It provides: “If the offense so attempted is punishable by imprisonment in the state prison, the person guilty of that 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 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.”
Thus, under section 664(a), the usual rule is that crimes of attempt are punishable by one-half the determinate term of years prescribed for the crime attempted, or, if the crime attempted is punishable by death or life imprisonment, by a term of five, seven, or nine years. If, however, the crime attempted is willful, deliberate, and premeditated murder, the punishment is not a term of years, but, instead, an indeterminate term of life imprisonment with the possibility of parole. That punishment is not added to anything; instead, it supplants the usual term of years imposed for the crime of attempted first or second degree murder. It is the base punishment for the crime of premeditated attempted murder.
Section 664(a) does not eliminate degrees of attempted murder directly or indirectly: nowhere in section 664(a) does it state that there are no degrees of attempted murder, or that attempted murder is excepted from the general terms of section 664(d). Moreover, nothing about the imposition of a specific punishment for willful, deliberate, and premeditated attempted murder *674is inconsistent with the existence of degrees of attempted murder. Thus, by analogy, the Legislature has provided, in Penal Code section 190, that the punishment for second degree murder is “confinement in the state prison for a term of 15 years to life.” (Pen. Code, § 190, subd. (a).) It has, however, imposed a different punishment for two forms of the crime of second degree murder: if the victim was a peace officer, “the person [guilty] shall not be released prior to serving 25 years confinement” (id., subd. (b)); if the killing was perpetrated by means of shooting a firearm from a motor vehicle, the person guilty “shall suffer confinement in the state prison for a term of 20 years to life” (id., subd. (c)). It has not thereby eliminated—or added to—the degrees of the crime of murder.1
Section 664(a) requires, in addition, that the punishment provided for willful, deliberate, and premeditated attempted 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.” The purpose of the pleading and proof requirement is obvious. A verdict of guilt for the crime of attempted murder in the first degree can be based on a theory that does not involve the mental state of willfulness, deliberation, and premeditation. Accordingly, before the trial court can impose the specific punishment under section 664(a) for willful, deliberate, and premeditated attempted murder of the first degree, there must be a specific finding by the trier of fact that the crime was committed with that mental state. Similarly, a defendant is entitled to notice that he has been charged under a theory of first degree attempted murder that may subject him to a more severe penalty.2
II.
Notwithstanding the plain language of section 664(d), the majority conclude that the Legislature did not intend to create degrees of attempted murder; it merely intended to provide for an enhanced sentence when the attempt is willful, deliberate, and premeditated. The legislative history shows otherwise.
Section 664, as enacted in 1872, provided in relevant part: “Every person who attempts to commit any crime, but fails, or is prevented or intercepted *675in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempts as follows: [<]D 1. If the offense so attempted is punishable by imprisonment in the State Prison for five years, or more, or by imprisonment in a County Jail, the person guilty of such attempt is punishable by imprisonment in the State Prison, or in a County Jail, as the case may be, for a term not exceeding one half of the longest term of imprisonment prescribed upon a conviction of the offense so attempted.”
At that time, separate provision was made for the crime of attempted murder: i.e., attempt to kill by poison was punishable by imprisonment in state prison for not less than 10 years (Pen. Code of 1872, § 216). There appear to be no cases applying section 664 as originally enacted to the crime of attempted murder.
In 1923, section 664 was amended to provide expressly for the crime of attempted murder: “[I]f the crime attempted is murder, robbery, crime against nature or lewd and lascivious conduct the person guilty of such attempt shall be punishable by imprisonment in the state prison for a term not more than twenty years.” (Stats. 1923, ch. 295, § 1, p. 625.) Although the crime of murder was divided into degrees (Pen. Code, § 189), the attempt statute does not provide for degrees of attempted murder.3 (Cf. In re Huson (1932) 126 Cal.App. 571, 573 [14 P.2d 845] [“Evidently the legislature deliberately refrained from distinguishing between robbery of the first and robbery of the second degree, in fixing the penalty for an attempt to commit this offense. . . . The statutes of California establish no degrees of the crime of attempted robbery.”]; People v. Arguero (1931) 113 Cal.App. 424, 427 [298 P. 520] [“It is possible that the legislature may not have acted consistently in failing to distinguish, so far as punishment is concerned, between attempts to commit robbery in the first and second degrees. The determination of such a question is a legislative and not a judicial function.”].)
In 1953, section 664 was again amended, this time deleting specific reference to the crime of attempted murder. Under the amended provision, “if the crime attempted is one in which there is no maximum sentence set by law or in which the maximum sentence is life imprisonment or death the person guilty of such attempt shall be punishable by imprisonment... for a term of not more than 20 years.” (Stats. 1953, ch. 713, § 1, p. 1983.) Under the Indeterminate Sentence Law, based on the penalties for murder, first and second degree attempted murder bore the same penalty.
*676On that ground, in People v. Wein (1977) 69 Cal.App.3d 79, 93 [137 Cal.Rptr. 814], the Court of Appeal concluded that there were no degrees of attempted murder: “[T]he punishment for attempted murder is imprisonment for 1 to 20 years regardless of whether the murder attempted would have been, if completed, either first or second degree. The crime of attempted murder is not divided into degrees.”
Under the reasoning in Wein, however, a change in the penalties for first and second degree murder might require a different conclusion. Such a change was effected by passage of the Determinate Sentencing Act of 1976, effective in July 1977. Under the new determinate sentencing provisions, the crime of attempted murder was subject to different penalties, depending on the degree of murder attempted: the punishment for first degree attempted murder was five, six, or seven years; the punishment for second degree attempted murder was two and one-half, three, or three and one-half years.
Shortly thereafter, the Legislature enacted section 664, subdivision 4, which provided: “If a crime is divided into degrees, an attempt to commit the crime may be of any such degree, and the punishment for such an attempt shall be determined as provided by this section; except that the crime of attempted murder of the second degree shall be punishable by imprisonment in the state prison for a term of three, four, or five years.” (Stats. 1978, ch. 1166, § 1, pp. 3770-3771, italics added.)4
The legislative history reveals, among other things, that the Legislature intended to clarify existing law, specifically concerning the penalties for different degrees of attempted murder, and to eliminate any confusion based on the holding in People v. Wein, supra, 69 Cal.App.3d 79. The Legislative Counsel’s Digest for the amendment explains: “Under existing law . . . attempted first degree murder is punishable by 5, 6, or 7 years under provisions generally applicable to attempts . . . [and] attempted second degree murder is punishable by one-half the term applicable to completed second degree murder . . . . [H This [bill] would specifically make attempted second degree murder punishable by 3, 4, or 5 years in prison and would further specify that if any crime is divided into degrees, an attempt to commit the crime may be of any such degree.” (Legis. Counsel’s Dig., Assem. Bill No. 2355, 4 Stats. 1978 (Reg. Sess.) Summary Dig., p. 323.)
An analysis by the Senate Committee on Judiciary described the purpose as “to increase the punishment applicable to attempted second degree murder, and to clarify existing law.” (Sen. Com. on Judiciary, Analysis of *677Assem. Bill No. 2355 (1977-1978 Reg. Sess.) as amended Mar. 27, 1978, p. 1.) It explains that “[t]here is some confusion surrounding the applicability of the attempt statute ([Pen. Code, §] 644) to attempted murder convictions. ...[*][]... [A]mbiguity stems from the fact that while murder itself is divided into degrees, the crime of attempted murder is not divided into degrees. People v. Wein 69 Cal.App.3d 79 [137 Cal.Rptr. 814] at 93 (1977).” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 2355 (1977-1978 Reg. Sess.) as amended Mar. 27, 1978, p. 2.) Similarly, an analysis prepared by the Assembly Committee on Criminal Justice described the effect of the amendment as follows: “[The amendment] would specifically create the special crimes of attempted first degree murder and attempted second degree murder.” (Assem. Com. on Crim. Justice, Analysis of Assem. Bill No. 2355 (1977-1978 Reg. Sess.) Mar. 27, 1978, p. 1.)
The Judicial Council of California, in a report to the Senate Committee on Judiciary, the Assembly Criminal Justice Committee, and the Office of the Governor, explained that the amendment would “[i]ncrease the penalty for attempted murder (2nd degree)” and “[r]eiterate the penalty for attempted murder (1st degree).” (Rep. Judicial Council of Cal., Review and Analysis of Assem. Bill No. 2355 (1977-1978 Reg. Sess.) as introduced Jan. 26, 1978 (Mar. 3,1978) p. 2.) Another analysis, prepared by the Senate Committee on Judiciary providing “Background Information” on the proposed amendment describes the purpose of the bill as follows: ‘The bill attempts to stiffen the penalty for second degree murder and to establish a new category of first degree attempted murder.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 2355 (Reg. Sess. 1977-1978) as introduced Jan. 26, 1978, p. 1.)
An enrolled bill report prepared by the California Department of Legal Affairs states: “[E]xisting law does not specifically provide for an attempt to commit a crime ([Pen. Code,] § 664) to be of any degree. [H [Assembly Bill No.] 2355 amends existing law to specifically provide that an attempt to commit a crime may be of any such degree and the punishment for such an attempt shall be determined by existing law. This bill also amends related sections of the Penal Code to require the court and jury to make findings as to the degree of the attempted offense.” (Governor’s Ofc., Dept. Legal Affairs, Enrolled Bill Rep. on Assem. Bill No. 2355 (1977-1978 Reg. Sess.) Sept. 20, 1978, p. 2.)
The California Department of Corrections summarized the history of the bill: “The author [of the bill] introduced the measure at the request of a Ventura County Superior Court official who seeks to increase the penalty for attempted second degree murder. The sponsor says some courts have necessarily found defendants guilty of an attempted killing during the course of a *678robbery . . . and imposed, pursuant to Section 664 [Penal Code], one/half of second degree murder penalties . . . because there is no statutory provision for charging attempted murder by specified degrees. . . .” (Cal. Dept. Corrections, Health & Welf. Agency, Enrolled Bill Rep. on Assem. Bill No. 2355 (1977-1978 Reg. Sess.) Sept. 12, 1978, p. 1.)
The amendments to section 664 were approved by the Legislature and sent to the Governor for signature. In a letter to the Governor, the bill’s sponsor explained the purpose of the amendments to section 664: “This legislation is another technical change that has been necessitated by the Determinate Sentencing Act. Under the prior law, there was no need to distinguish between degrees of murder when the crime charged was ‘attempt’. Attempted murder was punished by a long indeterminate range that covered all factual contingencies. [^D Under current law attempted first degree murder is punishable by 5, 6, or 7 years . . . and attempted second degree murder would be punished by half of the second degree murder sentence .... The problem arises from decisional law which states that attempt of a crime that is divided by degrees shall be of the lowest degree. [People v. Wein (1977) 69 Cal.App.3d 79 (137 Cal.Rptr. 814)]. Thus, under the Wein rationale, attempted first degree murder can be punished only as an attempted second degree murder. [H The purpose of [Assembly Bill No.] 2355 is to rectify this problem by specifically authorizing the trier of fact to find that an attempted crime is of a higher degree. . . . [Assembly Bill No.] 2355 will prevent confusion in the courts over the issue of attempts of crimes divided by degrees.” (Letter to Governor Edmund G. Brown from State Assemblyman Charles R. Imbrecht, 36th Dist. (Sept. 8, 1978) p. 1.)
As of the time the legislation was signed and enacted into law, then, the punishments for first and second degree attempted murder were distinct.
Subsequently, in November 1978, Proposition 7 was passed by the electorate. It changed the terms for first and second degree murder and, indirectly, those for attempted murder. First degree murder became punishable by 25 years to life imprisonment, while second degree murder became punishable by 15 years to life imprisonment. All crimes of attempted murder, whether of the first or second degree murder, were punishable under section 644(a) by terms of five, seven, or nine years.5
In People v. Macias (1982) 137 Cal.App.3d 465 [187 Cal.Rptr. 100], the Court of Appeal squarely addressed the question whether, after Proposition *6797, attempted murder is distinguished into degrees. It held that the crime is not so divided. Adopting the reasoning of Wein, it concluded: “[S]ince 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.” (Id. at pp. 471-472.)
In 1986, the Legislature again amended section 664. Presuming that it did so in light of Macias, I believe that the amendments demonstrate the legislative intent to supersede that case by establishing different penalties for and, accordingly, different degrees of attempted murder. By creating a different base term for attempted premeditated murder, the Legislature acted to undercut the sole premise of Macias—that when there are no differences in punishment, there are no degrees of attempted murder. At the same time, although the Legislature made a number of amendments to section 664, it did not amend subdivision (d) expressly to exclude attempted murder. Section 664(d) continued, on its face, to apply to the crime of murder.
The Legislative materials accompanying the 1986 amendment also do not refer to the punishment for premeditated attempted murder as an “enhancement” or as a “penalty provision.” Instead, the materials repeatedly refer to two degrees of attempted murder which constitute separate substantive crimes.
Thus, a report by the California Department of Corrections observes that the bill “would apply to only attempted first degree murder.” (Cal. Dept. Corrections, Enrolled Bill Rep. on Sen. Bill No. 1668 (1985-1986 Reg. Sess.) July 16, 1986, p. 1.) An analysis by the California Department of Finance, likewise, explains that the proposed legislation “would apply only to attempted first degree murder.” (Cal. Dept. Finance, Enrolled Bill Rep. on Sen. Bill No. 1668 (1985-1986 Reg. Sess.) as amended Mar. 18, 1986 (Apr. 2, 1986) p. 2.) It also refers to the sentence for attempted premeditated murder as the base sentence, to which “enhancements” might be added: “[T]he sentence received would be life with possibility of parole (ISL term) for the attempted willful, deliberate, and premeditated murder plus any other current law penalties (e.g. for subordinate DSL offenses and/or enhancements.)” (Ibid.)
Similarly, a bill analysis by the Senate Committee on Judiciary stated: “[This bill] would cover those crimes that, if completed, could be charged as first degree murder . . . . [<jfl As drafted with respect to the attempted murder provision, this bill appears to be restricted to murder 1. Such an interpretation would mean that an attempt fitting the elements that would establish murder 2 would be covered by the existing punishment scheme of *6805, 7, or 9 years.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1668 (1985-1986 Reg. Sess.) as amended Mar. 6, 1986, p. 4.)6
III.
The majority conclude that there are no degrees of attempted murder because “as of the operative date of the 1978 amendment [which added section 664(d)] section 664 prescribed the identical punishment for attempted murder regardless whether the murder attempted was of the first or second degree.” (Maj. opn., ante, at p. 663.) Not so. As discussed, the Legislature added section 664(d) in order to clarify that there are degrees of attempted murder, which were, at the time the amendment was enacted, subject to different punishments. The subsequent enactment of Proposition 7 did not annul the legislative intent or merge the two crimes.
The majority also conclude that there are no degrees of attempted murder because “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.” (Maj. opn., ante, at p. 665.) They advert specifically to People v. Macias, supra, 137 Cal.App.3d 465, as a principal case in point. (Maj. opn., ante, at pp. 663-664.)7
Again, the majority are incorrect. As discussed, the Legislature intended by its 1978 amendments not to codify, but, rather, to supersede Macias by eliminating its predicate—i.e., that the punishment for attempted murder was *681the same regardless of degree—and by expressly providing, under section 664(d), that whenever a crime is divided into degrees, an attempt to commit the crime may be of any of those degrees.
The majority also conclude that there are no degrees of attempted murder because the 1986 amendments to section 664(a) only added a different punishment for one kind of first degree murder: “first degree murder under section 189 encompasses more categories of murder than those that are ‘willful, deliberate, and premeditated.’ ” (Maj. opn., ante, at p. 668.) As discussed, the Legislature added section 664, subdivision 4, in 1978, in order to clarify the existing law, i.e., that there are degrees of attempt corresponding to the degrees of the crime attempted. In its 1986 amendments to section 664(a), the Legislature did not purport to “establish a higher degree of murder.” (Maj. opn., ante, at p. 668.) There was no need to do so. Two degrees of attempted murder already existed. Instead, it merely enacted a higher punishment for one form of first degree attempted murder.
The majority also conclude that there are no degrees of attempted murder because such was the conclusion of the Court of Appeal in People v. Douglas (1990) 220 Cal.App.3d 544 [269 Cal.Rptr. 579]. (Maj. opn., ante, at pp. 666-667.) In my view, Douglas is wrong.
In Douglas, the Court of Appeal conceded that “the continued validity of the holdings 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.” (People v. Douglas, supra, 220 Cal.App.3d at p. 548.) It nonetheless concluded that the provision should be construed narrowly: “[We] do not find degrees of attempted murder where the Legislature has not expressly provided for same.” (Id. at p. 549.) It erred thereby. There is no support for the conclusion that the Legislature must expressly provide for degrees of the crime of attempted murder or any other specific crime of attempt. That is because section 664(d) provides that whenever an offense is divided into degrees, an attempt to commit the offense is also so divided.
Moreover, the result in Douglas is based on an erroneous premise: that the degrees of the crime of attempted murder merged when the penalties became the same after passage of Proposition 7. As discussed, such a conclusion is inconsistent with the language of section 664(d) and the legislative intent that attempted murder be divided into degrees.8
*682IV.
The majority effectively construe section 664(a) as merely creating an enhancement for the crime of attempted murder when it is willful, deliberate, and premeditated. Their construction is unsound.9
The words “enhancement” or “penalty provision” do not appear in section 664(a) or in the legislative history. Nor is the punishment for attempted willful, deliberate, and premeditated murder listed as an “enhancement” under Penal Code section 1170.1, subdivision (f). There is also no provision for “special circumstances” for the crime of attempted murder, as there is for the crime of murder. (Pen. Code, § 190.4.)
The majority point to the phrase “additional term” in the final sentence of section 664(a). They conclude that because section 664(a) uses “language typically employed in describing sentence enhancements,” the punishment for an attempt that is willful, deliberate, and premeditated must be a “penalty provision.” (Maj. opn., ante, at p. 667.) Their premise—that the phrase “additional term” is always synonymous with “enhancement” or “penalty provision”—is incorrect.
In Hernandez, we explained that “language referring to ‘an additional term’ . . . is . . . consistent with other enhancement statutes.” (People v. Hernandez, supra, 46 Cal.3d at p. 207.) Subsequently, Rayford observed: “When, as in this case, the statute neither uses the language ‘an additional term’ nor ‘enhancement,’ ... we have no basis on which to characterize it *683as an enhancement.” (People v. Rayford, supra, 9 Cal.4th at pp. 9-10.) Neither Hernandez nor Rayford suggests, however, that it is invariably the case that whenever the Legislature uses the phrase it intends to create an “enhancement” or other “penalty provision”; the phrase “additional term” is not a term of art.
What matters, then, is not whether the words “in addition” or “additional term” appear in the statute, but whether the statute provides for a greater punishment upon a finding of specified circumstances that do not amount to necessary elements of the crime itself
As discussed, under section 664(d), if any crime is divided into degrees, an attempt to commit that crime is also divided into degrees. Murder is divided into degrees. Hence, attempted murder is so divided. As in the case of first degree murder, one form of first degree attempted murder includes the necessary element that it was “willful, deliberate, and premeditated.” Just as Penal Code section 190, subdivision (a) provides for a heightened penalty for one form of the general crime of second degree murder, section 664(a) provides for a heightened penalty for one form of attempted first degree murder. To that extent only, the majority correctly conclude that it is a “penalty provision.”
For the foregoing reasons the trial court properly found defendant guilty of second degree attempted murder and retrial barred by the double jeopardy clause of the Constitution. Thus I would reverse the judgment of the Court of Appeal.
In 1994, the Legislature likewise amended section 664 to add section (e)(1), raising the punishment for attempted murder of a peace officer or firefighter, whether of the first or second degree, to a term of imprisonment in the state prison for life with the possibility of parole.
The majority assert that the requirement of pleading and proof would be “superfluous” if there were such a crime as “attempted premeditated murder” because such crime would have to be charged in the accusatory pleading. (Maj. opn„ ante, at p. 669, fn. 12.) They are incorrect: there is no requirement that a theory of attempted first degree murder—including that it was willful, deliberate, and premeditated—be charged in the accusatory pleading.
The 1923 amendment was passed, at least in part, in response to cases attempting to determine the appropriate sentence under section 664 for a crime punishable by an indeterminate sentence of life imprisonment. (See People v. Sama (1922) 189 Cal. 153 [207 P. 893] [holding that imposition of a punishment of one-half of a sentence of life imprisonment for the crime of attempted robbery would be invalid].)
The final clause of section 664, subdivision 4, establishing a greater sentence for the crime of second degree attempted murder, did not become effective. (See Stats. 1978, ch. 1166, § 9, p. 3772.) Consequently, the punishment for second degree attempted murder, as for all other crimes of attempt, was “one-half the term of imprisonment prescribed upon conviction of the offense so attempted.”
As one court observed: “The effect of Proposition 7 in making all degrees of attempted murder punishable in the same way was not readily apparent from a reading of the initiative.” (People v. Flores (1986) 178 Cal.App.3d 74, 84 [223 Cal.Rptr. 465].) “The initiative addresses only the crime of murder and the punishments assigned to a murder conviction. No mention is made of the crime of attempted murder.” (Ibid.)
The majority conclude that the references to “attempted first degree murder” in the legislative history of the 1986 amendment were not intended to reflect a legislative decision to create a new crime, but merely constituted “shorthand” descriptions of attempted murder that was willful, deliberate, and premeditated. (Maj. opn., ante, at p. 669, fn. 12.) Their premise is unsound: the 1986 amendment did not purport—or need—to create a “new” crime of attempted first degree murder precisely because two degrees of murder already existed, by virtue of the 1978 amendments to section 664. Nor is there any support for the majority’s assertion that the repeated references to degrees of attempted murder in the 1986 legislative analyses did not mean precisely what they said.
In fact, although Macias was sometimes cited, it was not consistently followed by the Courts of Appeal. In People v. Koontz (1984) 162 Cal.App.3d 491 [208 Cal.Rptr. 519], for example, the Court of Appeal recognized that there are degrees of attempted murder, concluding that “[t]here is but one instance where attempted murder is not a lesser included offense of the aggravated assault [under former section 217], namely attempted murder of the first degree.” (Id. at p. 497, italics added.) The majority also state that, after People v. Guerra (1985) 40 Cal.3d 377 [220 Cal.Rptr. 374, 708 P.2d 1252], the “standard jury instructions on attempted murder have not distinguished between purported degrees of attempted murder . . . .” (Maj. opn., ante, at p. 664.) The case law reveals, however, that trial courts continued to craft instructions referring to attempted murder in the first or second degree. (See, e.g., People v. Cooper (1991) 53 Cal.3d 771, 832 [281 Cal.Rptr. 90, 809 P.2d 865]; People v. Dominguez (1992) 4 Cal.App.4th 516, 523, fn. 10 [6 Cal.Rptr.2d 55].)
The Court of Appeal in People v. Jones (1991) 234 Cal.App.3d 1303, 1311-1312 [286 Cal.Rptr. 163], although expressing doubt concerning the result in Douglas, was “disinclined *682to take issue with Douglas in the face of our Supreme Court’s recent approving reference to Douglas in the Cooper opinion [citation].” Our dictum in Cooper was as follows: “Although the actual verdict form stated the attempted murder was of the first degree, ‘the crime of attempted murder is not in fact divided into degrees,’ at least at the time of this crime. (People v. Macias (1982) 137 Cal.App.3d 465, 472 [187 Cal.Rptr. 100]; see People v. Douglas (1990) 220 Cal.App.3d 544, 548-550 [269 Cal.Rptr. 579] [regarding the law today].).” (People v. Cooper, supra, 53 Cal.3d at p. 832.) I would disapprove the dictum to the extent it can be understood to state that Douglas represented the law in 1991 or now.
An enhancement is “an additional term of imprisonment added to the base term.” (Cal. Rules of Court, rule 405(c), italics added; People v. Hernandez (1988) 46 Cal.3d 194, 207 [249 Cal.Rptr. 850, 757 P.2d 1013]; People v. Rayford (1994) 9 Cal.4th 1, 9 [36 Cal.Rptr.2d 317, 884 P.2d 1369].) The majority concede that section 664(a) does not “strictly speaking” create an enhancement, because it does not add a term of imprisonment to an existing base term. (Maj. opn., ante, at p. 656, fn. 2.) Indeed, the term of life imprisonment with possibility of parole for the crime of attempted premeditated murder is not added to any term; it is the term. The majority reach the same result, however, by merely substituting the more general phrase “penalty provision” for the word “enhancement.” (Ibid.) Thus, they conclude that section 664(a) creates a “penalty provision” that establishes a greater term of imprisonment— albeit an increased base term, as opposed to an additional term of imprisonment added to a base term—upon “a finding of specified circumstances.” (Maj. opn., ante, at p. 656, fn. 2.) They are still wrong.