Penal Code section 664 sets forth the law in this state governing attempts to commit a crime. It provides that “if the crime attempted is willful, deliberate, and premeditated murder ... the person guilty of that attempt shall be punishable by imprisonment in the state prison for life with the possibility of parole . . . .” The issue here is this: Is “attempted . . . willful, deliberate, and premeditated murder” a crime that is separate and distinct from the crime of attempted murder?
The majority holds that there is only a single crime of attempted murder, and that whether the attempted murder was willful, deliberate, and premeditated is merely a circumstance affecting the penalty available for that crime. In the majority’s view, the language of Penal Code section 664 quoted above is nothing more than a “penalty provision,” not the description of a distinct crime. By reaching this conclusion, the majority avoids the double jeopardy prohibitions of the federal and state Constitutions, paving the way for the prosecution to again try defendant for the attempted willful, deliberate, and *684premeditated murder of Paul Kain, even though defendant has already been convicted of attempting to murder Kain.
Unlike the majority, I am of the view that attempted willful, deliberate, and premeditated murder is a crime rather than a mere “penalty provision.” This conclusion finds support in pertinent legislative history, principles of statutory construction, and previous decisions of this court.
I
On June 6, 1992, San Diego Deputy Sheriff Paul Kain pulled over defendant’s car because its brake lights were defective. When Deputy Kain approached the driver’s side of defendant’s car, defendant fired six shots with a .357 magnum handgun, hitting Kain in the waist, abdomen, and leg.
The prosecution filed an information charging defendant with “attempted murder with premeditation,” alleging that he “did willfully, deliberately, and premeditatedly attempt to murder” Deputy Kain. At trial, the jury was asked to determine whether defendant had attempted to murder Kain and, if so, whether “the crime attempted was willful, deliberate, and premeditated murder.” During deliberations, the jury sent the trial court a note asking if it could return a verdict on attempted murder if it could not agree as to whether the attempt was willful, deliberate, and premeditated. The court told the jury it could not do so. Later, however, the court reversed itself, telling the jury: “[Y]ou 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 . . . .” Thereafter, the jury convicted defendant of attempted murder; the jury told the court that it could not decide whether the murder was willful, deliberate, and premeditated. The trial court declared a mistrial on the latter portion of the charge, and scheduled it for retrial.
Defendant then entered a plea of once in jeopardy. He argued that at his first trial he had already been placed in jeopardy for the crime of attempted willful, deliberate, and premeditated murder, and that the constitutional prohibition against double jeopardy barred a retrial for that crime because at the first trial the jury had convicted him of the lesser included offense of attempted murder. The trial court agreed, and imposed a sentence for attempted murder. The Attorney General appealed. The Court of Appeal reversed, holding that attempted willful, deliberate, and premeditated murder was simply a sentence enhancement to the crime of attempted murder, and that therefore the double jeopardy bar was inapplicable.
II
Under the federal and the state Constitutions, a criminal defendant may not be tried twice for the same offense. (U.S. Const., 5th Amend.; Cal. *685Const., art. I, § 15.) This constitutional guarantee is deeply ingrained in American legal traditions. (Benton v. Maryland (1969) 395 U.S. 784, 796 [23 L.Ed.2d 707, 717, 89 S.Ct. 2056].) “Its origins can be traced to Greek and Roman times, and it became established in the common law of England long before this Nation’s independence”; it has been a part of American jurisprudence since the founding of this nation. (Id. at p. 795 [23 L.Ed.2d at p. 716], fn. omitted.)
Although the double jeopardy clause is commonly viewed as a rule barring successive prosecutions for the same crime (North Carolina v. Pearce (1969) 395 U.S. 711, 717 [23 L.Ed.2d 656, 664-665, 89 S.Ct. 2072]), it also bars a prosecution for a greater offense after the defendant has been convicted of a lesser included offense (Brown v. Ohio (1977) 432 U.S. 161, 169 [53 L.Ed.2d 187, 196, 97 S.Ct. 2221]; People v. Greer (1947) 30 Cal.2d 589, 597 [184 P.2d 512]). As to the latter aspect, the United States Supreme Court made the following observation in 1889: “[W]here ... a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offence.” (Ex parte Nielsen (1889) 131 U.S. 176, 188 [33 L.Ed. 118, 122, 9 S.Ct. 672].)
Central to the determination whether in this case retrial would violate the double jeopardy bar is this question: Is attempted premeditated murder1 a crime, or is it, as the majority holds, merely a “penalty provision.” If attempted premeditated murder is a crime, the jury’s verdict convicting defendant of attempted murder, which is a less serious offense included in that crime, bars the prosecution from retrying defendant for attempted premeditated murder. If, on the other hand, attempted premeditated murder is not a crime but merely a “penalty provision,” then the constitutional double jeopardy provisions are inapplicable, and the defendant may be retried on the allegation that his attempt to murder Deputy Kain was premeditated.
Ill
To determine whether attempted premeditated murder is a crime, I begin by examining the two statutes governing attempts to commit a crime, Penal Code sections 21a and 664.2
Section 21a provides: “An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.”
*686Section 664, which has several subdivisions, has this introductory clause: “Every person who attempts to commit any crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempts, as follows: . . . What follows are four subdivisions. Subdivision (a) states that an attempt to commit a felony is punishable by imprisonment for one-half the term of imprisonment prescribed for the commission of the completed offense, with two exceptions. “[I]f the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189,” the defendant is subject to imprisonment for life with the possibility of parole. “[I]f the crime attempted is any other one in which the maximum sentence is life imprisonment or death,” the prescribed punishment is five, seven, or nine years in prison. Subdivision (b) sets forth the penalties for an attempt to commit misdemeanors punishable by imprisonment in the county jail, while subdivision (c) mentions the penalties for an attempt to commit an offense punishable only by a fine. Subdivision (d) pertains to offenses that are divided into degrees, stating that “an attempt to commit the crime may be any of those degrees, and the punishment for the attempt shall be determined as provided by this section.”3
*687By virtue of sections 21a and 664, there is for every crime listed in the Penal Code (and for every crime contained in other California codes as well) a separate offense, namely, the attempt to commit that crime. The elements of each attempted crime are closely related, but not identical, to those of the corresponding completed offense: to be guilty of an attempt, a defendant must harbor the specific intent to accomplish all elements of the completed offense, and must perform a direct but ineffectual act in furtherance of that crime. (1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Elements of Crime, § 143, p. 160.)
The following example illustrates the effect of these statutes. While trying to break into a house to steal property inside, a man sets off a burglar alarm. Frightened, he leaves without entering the residence. Absent section 664, he would have committed no crime. Under section 664, however, he is subject to prosecution for the crime of attempted burglary, as defined by section 21a (setting forth the elements of an attempt) and by section 459 (setting forth the elements of burglary).
In this case, defendant was charged with attempted murder. Murder, which is defined as “the unlawful killing of a human being, or a fetus, with malice aforethought” (§ 187), is divided into degrees. First degree murder is murder perpetrated in the course of certain statutorily enumerated felonies, or murder committed “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”; all other murder is of the second degree. (§ 189, italics added.)
The jury convicted defendant of an attempt to commit murder. Simple attempted murder is, in essence, attempted second degree murder, that is, attempted murder not falling in any of the categories that are set forth in section 189 and that elevate murder from the second to the first degree. The prosecution now proposes to try defendant for an attempt to commit “willful, deliberate, and premeditated murder, as defined in section 189.” In my view, it may not do so. This is why: Section 189 defines willful, deliberate, and premeditated murder as murder of the first degree. The prosecution now seeks to put defendant on trial for the crime of attempted first degree murder, after he has already been convicted of the lesser included crime of attempted second degree murder. This would, for the reasons given in part II, ante, violate the federal and state constitutional prohibitions against double jeopardy.
The majority, however, concludes otherwise. In its view, attempted first degree murder is not a crime. It points out that between 1978 and 1986, *688attempted first degree murder and attempted second degree murder each carried a determinate sentence of five, seven, or nine years in prison. Because of the identical penalty, the majority notes, the Court of Appeal in People v. Macias (1982) 137 Cal.App.3d 465, 471-472 [187 Cal.Rptr. 100] held that attempted murder was not divided into degrees, but constituted just one crime. Nearly 10 years later, in People v. Cooper (1991) 53 Cal.3d 771, 832 [281 Cal.Rptr. 90, 809 P.2d 865] this court cited Macias with approval.
The majority relies on People v. Macias, supra, 137 Cal.App.3d 465, in concluding that attempted murder is not divided into degrees. This reliance is misplaced. The rationale underlying the Court of Appeal’s holding in Macias was undercut in 1986, when the Legislature amended section 664 to provide that “if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189,” the penalty is life imprisonment. By prescribing a greater penalty for this type of first degree murder, the Legislature’s 1986 amendment of section 664 eliminated the factual basis for the holding in Macias that, because attempted first degree murder and attempted second degree murder each carried the same penalty of five, seven, or nine years in prison, the crime of attempted murder was not divided into degrees.
Nevertheless, the majority insists that attempted first degree murder is not a crime. The majority asserts that the 1986 amendment to section 664 did nothing more than create a “penalty provision” to section 664. Therefore, the majority concludes, the increased punishment does not trigger the double jeopardy bar.
The majority’s reasoning is analytically unsound. True, the statutory language contained in the 1986 amendment to section 664 (“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”) can be described as a “penalty provision,” in that it establishes the penalty for attempted premeditated murder. But section 664 also prescribes the penalty for an attempt to commit every crime set forth in the Penal Code. If the statutory language I just quoted were purely a penalty provision, then section 664 is nothing more than a series of penalty provisions. If so, no attempt to commit a crime can ever be a criminal offense. But that is not the case. In addition to prescribing penalties for attempted crimes, section 664 provides that an attempt to commit any crime is itself a crime. Thus, like any other attempt to commit a criminal offense, an attempt to commit first degree murder is, by virtue of section 664, a crime.
Further support for this conclusion can be found in the legislative history of the 1986 amendment of section 664. As explained in a Senate Judiciary *689Committee analysis of Senate Bill No. 1668, 1985-1986 Regular Session (the bill proposing the amendment): “This bill will make the crime of attempted ‘willful, deliberate, and premeditated murder’ punishable by life in prison with the possibility of parole. Thus, it would cover those crimes that if completed, could be charged as first degree murder . . . .” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1668 (1985-1986 Reg. Sess.) as amended Mar. 6, 1986, p. 4, italics added.) Similarly, a report from the Judicial Council stated, “Each of the bills [referring to Senate Bill No. 1668 and another bill] would change the penalty for attempted murder in the first degree” (Judicial Council of Cal., Rep. on Sen. Bill No. 1668 and Assem. Bill No. 3139 (1985-1986 Reg. Sess.) Mar. 21, 1986, p. 2), concluding that the bill was “a reasonable adjustment to keep the penalty for this crime proportionate to related crimes.” (Id. at p. 5, italics added.) And the Legislative Analyst stated in the analysis of Senate Bill No. 1668: “The bill would make the crime of attempted willful, deliberate, and premeditated murder, as defined, punishable by life imprisonment with the possibility of parole.” (Legis. Analyst, Analysis of Senate Bill No. 1668 (1985-1986 Reg. Sess.) as amended Apr. 1, 1986, p. 2.) Thus, the legislative history of the 1986 amendment to section 664 shows that the Legislature considered attempted premeditated murder a crime, not just a penalty provision.
To bolster its conclusion that attempted premeditated murder is not a crime but only a penalty provision, the majority finds significance in the fact that, in its words, “first degree murder under section 189 encompasses more categories of murder than those that are ‘willful, deliberate, and premeditated.’ ” This, according to the majority, indicates that “the 1986 amendment does not provide a greater punishment for any attempt to commit first degree murder, but only for attempts to commit those first degree murders that are willful, deliberate, and premeditated.” (Maj. opn., ante, at p. 668.) Consequently, the majority states, the 1986 amendment of section 664 did not divide the crime of attempted murder into degrees.
The legislative history of the 1986 amendment to section 664 belies the majority’s assertion that the Legislature’s failure to explicitly mention in the amendment all categories of first degree murder somehow establishes the Legislature’s view that there is no crime of attempted first degree murder. As the Judicial Council, in a review of the amendment prepared for the Senate Judiciary Committee, explained, the amendatory legislation “would change the present penalty for attempted murder in the first degree.” (Judicial Council of Cal., Rep. on Sen. Bill No. 1668 and Assem. Bill No. 3139 (1985-1986 Reg. Sess.) Mar. 21, 1986, p. 2.) Similarly, an analysis prepared by the Department of Corrections stated, “This provision would apply to only attempted first degree murder,” (Cal. Dept. Corrections, Enrolled Bill *690Rep. on Sen. Bill No. 1668 (1985-1986 Reg. Sess.) July 16, 1986, p. 1), and a Senate Judiciary Committee Comment analyzing Senate Bill No. 1668 commented that the bill “would cover those crimes that if completed, could be charged as first degree murder” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1668, supra, p. 4). These comments demonstrate the Legislature’s understanding that attempted first degree murder is indeed a distinct crime, and that the 1986 amendment to section 664 had the sole purpose of increasing the penalty for that crime.
The Legislature is not alone in viewing attempted premeditated or first degree murder as a crime. In recent years, this court has often expressed the same understanding in its decisions. In People v. King (1993) 5 Cal.4th 59, 65 [19 Cal.Rptr.2d 233, 851 P.2d 27], for example, after referring to “attempted ‘willful, deliberate, and premeditated’ murder” and to “first degree murder,” we stated that the defendant had “committed both of these crimes.” (Italics added; see also In re Serrano (1995) 10 Cal.4th 447, 451 [41 Cal.Rptr.2d 695, 895 P.2d 936] [referring to a conviction and sentence “for willful, deliberate and premeditated attempted murder”]; People v. Masterson (1994) 8 Cal.4th 965, 967 [35 Cal.Rptr.2d 679, 884 P.2d 136] [stating that the defendant was “charged by complaint with attempted premeditated murder”]; Dix v. Superior Court (1991) 53 Cal.3d 442, 462, fn. 14 [279 Cal.Rptr. 834, 807 P.2d 1063] [referring to “[s]everal crimes, including . . . attempted wilful and premeditated murder”].) Thus, the majority’s holding today—that there is no crime of attempted premeditated murder, but only the crime of attempted murder, and that the existence of premeditation and deliberation is merely a circumstance affecting the penalty for that crime—is not only a rejection of the most natural reading of the statutory language and the most compelling inference to be drawn from its legislative history, but also a repudiation of this court’s past statements on this point.
IV
As set forth above, the majority’s holding that there is no crime of attempted premeditated murder, and that premeditation is merely a circumstance affecting the penalty for attempted murder, is analytically unsound. In addition, as I shall explain, this holding erodes the right of a criminal defendant to trial by jury.
Under the Sixth Amendment to the federal Constitution, made applicable to state proceedings through the Fourteenth Amendment, a defendant in a criminal case has a constitutional right to trial by jury on every element of the charged offense or offenses. (United States v. Gaudin (1995)_U.S_,_ [132 L.Ed.2d 444, 449, 115 S.Ct. 2310, 2313].) The United States *691Supreme Court has held, however, that this right generally does not extend to “sentencing considerations” (McMillan v. Pennsylvania (1986) 477 U.S. 79, 93 [91 L.Ed.2d 67, 81, 106 S.Ct. 2411]), and this court has concluded that factual issues raised by “penalty provisions” are mere “sentencing considerations” as to which a defendant has no right to jury trial under the federal Constitution (People v. Wims (1995) 10 Cal.4th 293, 305-309 [41 Cal.Rptr.2d 241, 895 P.2d 77]). Thus, the majority’s holding that section 664’s reference to attempted premeditated murder is merely a penalty provision apparently means that a defendant charged with an attempted murder that is “willful, deliberate, and premeditated” will have no constitutional right to a jury trial on the issues of willfulness, deliberation, and premeditation. I say “apparently means” because the majority never addresses the effect of its holding on a defendant’s right to jury trial under the federal Constitution.
If the majority’s holding does mean that there is no constitutional right to jury trial on the issue of premeditation, it produces this anomaly: As to completed murders, premeditation is an element of the crime of first degree murder and therefore subject to the constitutional right of jury trial; as to attempted murders, however, premeditation is merely a penalty consideration and therefore not subject to the constitutional right of jury trial. In this case, for example, had Deputy Kain died of the wounds defendant inflicted, and had the prosecution charged defendant with murder, the issue of premeditation would have been an element of the charged offense of murder in the first degree, and defendant therefore would have had a constitutional right to a jury trial on that issue. (United States v. Gaudin, supra,_U.S_,_[132 L.Ed.2d 444, 454, 115 S.Ct. 2310, 2317].) Yet because Kain did not die and defendant was charged with attempted premeditated murder (and because the majority concludes that premeditation is a mere penalty consideration in this context), defendant apparently has no constitutional right to a jury trial on the very same issue of premeditation. This incongruity provides yet another reason to reject the majority’s construction of the statutory language.
The majority’s abrogation of the constitutional right to a jury trial on the issue of premeditation is partly alleviated by the Legislature’s provision of a statutory right of jury trial. Under section 664, the punishment prescribed for attempted 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.” But this statutory right of jury trial cannot fully compensate for the loss of the constitutional right. For one thing, error in the denial of a statutory right of jury trial is assessed using the ordinary, state law harmless error standard *692rather than the stricter standard required for violations of federal constitutional rights. (See, e.g., People v. Wims, supra, 10 Cal.4th 293, 314-315.) Moreover, what the Legislature has given the Legislature may also take away: A right to jury trial that is merely statutory may be revoked at any time by ordinary legislative action.
All of this assumes, of course, that the federal Constitution does not guarantee a right to jury trial on premeditation if premeditation is merely a circumstance affecting the penalty for attempted murder rather than an element of the crime of attempted premeditated murder. This assumption may not be justified.
In McMillan v. Pennsylvania, supra, A477 U.S. 79, the United States Supreme Court stated that state legislatures do not have “unbridled power to redefine crimes to the detriment of criminal defendants” (id. at p. 86 [91 L.Ed.2d at pp. 76-77]), and the court suggested that a state legislature might lack power to remove a factual issue from the jury’s consideration by defining the issue as a mere “sentencing consideration” (or, in the language of the majority, by placing the issue in a mere “penalty provision”) if a finding on that issue would expose the defendant to substantially “greater or additional punishment” (id. at p. 88 [91 L.Ed.2d at pp. 77-78]). Here, a finding that in attempting to commit murder a defendant acted with premeditation will expose the defendant to a penalty of life imprisonment, as compared with a maximum term of nine years for attempted murder without premeditation. Because of the grave sentencing consequences attending a finding of premeditation, it may well be unconstitutional to deprive the defendant of a right to jury trial on the issue of premeditation. (See People v. Wims, supra, 10 Cal.4th 293, 324 (cone, and dis. opn. of Kennard, J.).) For this reason also, I would not construe the language of section 664 imposing the penalty of life imprisonment for attempted premeditated murder as a mere penalty provision, but instead would construe that language as both defining a separate crime and specifying the punishment for that crime. (See Welfare Rights Organization v. Crisan (1983) 33 Cal.3d 766, 772 [190 Cal.Rptr. 919, 661 P.2d 1073, 31 A.L.R.4th 1214] [stating that “courts are to construe statutes in a manner which avoids constitutional difficulties”].)
To safeguard the constitutional right to jury trial on an issue that may determine whether a defendant will be incarcerated for life, and in accordance with the apparent intent of the Legislature, I conclude that under section 664 there is a crime of attempted premeditated murder, that premeditation is an element of this crime, and that a defendant charged with attempted premeditated murder has a constitutional right to a jury trial on the issue of premeditation.
*693Conclusion
I would reverse the judgment of the Court of Appeal.
For convenience, I shall use the term “attempted premeditated murder” to describe attempted willful, deliberate, and premeditated murder.
All subsequent statutory references are to the Penal Code.
Prior to its most recent amendment, section 664 (as amended by Stats. 1986, ch. 519, § 2, p. 1859) stated:
“Every person who attempts to commit any crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempts, as follows:
“1. 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 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.
“2. If the offense so attempted is punishable by imprisonment in a county jail, the person guilty of such attempt is punishable by imprisonment in a county jail for a term not exceeding one-half the term of imprisonment prescribed upon a conviction of the offense so attempted.
“3. If the offense so attempted is punishable by a fine, the offender convicted of that attempt is punishable by a fine not exceeding one-half the largest fine which may be imposed upon a conviction of the offense so attempted.
“4. 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.”
In 1994, the Legislature replaced the subdivision numbers with letters and added subdivision (e), which prescribes penalties for attempted murder of a peace officer or firefighter. (Stats. 1994, ch. 793, § 1.)