I concur in the judgment.
In this cause, we are presented with important questions concerning the crime of conspiracy to commit murder and the punishment prescribed therefor. I offer the following answers.1
I. The Legal Framework
Let us begin by setting out the legal framework.
The first step concerns the crime of conspiracy. Penal Code section 182 expressly defines the crime of conspiracy to include the situation wherein “two or more persons conspire” “[t]o commit any crime.” (Id., subd. (a)(1).) Penal Code section 184 impliedly defines a conspiracy to commit a crime as an agreement “to effect [its] object.” It also requires that an overt act, “beside such agreement, be done within this state . . . .” (Ibid.) For some crimes, the object “is defined in terms of proscribed conduct. . . .” (Model Pen. Code & Commentaries (1985) com. 2(c) to § 5.03, p. 402.) For others, it “is defined in terms of . . . a proscribed result under specified attendant circumstances . . . .” (Ibid.)
The second step relates to the crime of murder. Penal Code section 187 defines the crime of murder as the “unlawful killing of a human being, or a *612fetus, with malice aforethought.” (Id., subd. (a).) Penal Code section 188, in turn, provides that malice aforethought “may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”2 Penal Code section 189 declares that all murder that is (1) “perpetrated ... by any . . . kind of willful, deliberate, and premeditated killing,” (2) “committed in the perpetration of, or attempt to perpetrate,” certain enumerated felonies, or (3) “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.”3
The third step proceeds from the first and second, and involves the crime of conspiracy to commit murder. Read together, Penal Code sections 182, 184, 187, 188, and 189 define the crime of conspiracy to commit murder— the object of which “is defined in terms of ... a proscribed result under specified attendant circumstances” (Model Pen. Code & Commentaries, supra, com. 2(c) to § 5.03, p. 402)—as the agreement by two or more persons, accompanied by an overt act, to effect a killing that is unlawful under the circumstances as they are believed to be and that is reflective of malice aforethought (see id., com. 2 to § 5.03, p. 394 [stating that “the actor’s liability is measured from the situation as he views it”]). So defined, the crime of conspiracy to commit murder requires two kinds of “intent” strictly so called. One is intent to join together in a common endeavor; else, *613there is no conspiracy to commit murder. The other is intent to kill unlawfully: else, there is no conspiracy to commit murder.4 The offense does not require, as a factual matter, a premeditated and deliberate intent to kill unlawfully. But an intent of such character is present in the context of a conspiracy, practically by definition, because it does not arise of a sudden within a single person but is necessarily formed and then shared by at least two persons. (Cf. People v. Ruiz (1988) 44 Cal.3d 589, 614 [244 Cal.Rptr. 200, 749 P.2d 854] [concluding that murder by lying in wait is, by definition, a kind of “willful, deliberate, and premeditated killing” within the meaning of Penal Code section 189, and does not require as a factual matter a premeditated and deliberate intent to kill unlawfully or even a simple intent to kill unlawfully].)
II. Kynette and Horn
Absent from the legal framework set out above are the two decisions that generate the conflict that we must here resolve concerning the crime of conspiracy to commit murder and the punishment prescribed therefor: People v. Kynette (1940) 15 Cal.2d 731 [104 P.2d 794] (hereafter sometimes Kynette), overruled on another point in People v. Snyder (1958) 50 Cal.2d 190, 197 [324 P.2d 1], and People v. Horn (1974) 12 Cal.3d 290 [115 Cal.Rptr. 516, 524 P.2d 1300] (hereafter sometimes Horn).
In Kynette, we expressly held that “a conspiracy to commit murder can only be a conspiracy to commit murder of the first degree for the obvious reason that the agreement to murder necessarily involves the ‘willful, deliberate and premeditated’ intention to kill a human being.” (People v. Kynette, supra, 15 Cal.2d at p. 745.) Inasmuch as it encompasses malice aforethought, in fact express malice aforethought, such an “intention” distinguishes murder from other homicide. Also, by its very terms, it differentiates murder of the first degree in one of its forms from murder of the second degree.
In Kynette, we thereby impliedly held that the crime of conspiracy to commit murder is properly conspiracy to commit murder simpliciter. Under its reasoning, it is erroneous to speak of a “crime” of “conspiracy to commit *614murder of the second degree”', “a conspiracy to commit murder can only be a conspiracy to commit murder of the first degree” (People v. Kynette, supra, 15 Cal.2d at p. 745). Similarly, it is unnecessary to label the crime “conspiracy to commit murder of the first degree”', there is no crime of “conspiracy to commit murder of the second—or any other—degree” from which it may be distinguished.
In Horn, however, this court—over my dissent—disapproved Kynette on these points. The Horn court recognized a “crime” of “conspiracy to commit murder of the second degree” in addition to one of “conspiracy to commit murder of the first degree.”
In the course of its analysis, the Horn court proceeded to reject, on its own terms, Kynette’s holding that “a conspiracy to commit murder can only be a conspiracy to commit murder of the first degree” because the “agreement to murder necessarily involves” both malice aforethought and a premeditated and deliberate intent to kill unlawfully. (People v. Kynette, supra, 15 Cal.2d at p. 745.)
One of the Horn court’s reasons was, substantially, that an “agreement to murder” might not entail a premeditated and deliberate intent to kill unlawfully because the latter then “require[d] proof that the defendant ‘could maturely and meaningfully reflect upon the gravity of his contemplated act.’ ” (People v. Horn, supra, 12 Cal.3d at p. 298.) In People v. Wolff (1964) 61 Cal.2d 795, 821 [40 Cal.Rptr. 271, 394 P.2d 959], from which Horn’s quotation is taken, we had held that the “true test” of a premeditated and deliberate intent to kill unlawfully was such.
The other of the Horn court’s reasons was to the effect that an “agreement to murder” might not entail a premeditated and deliberate intent to kill unlawfully or even malice aforethought because the threshold of proof therefor had been raised, in practice, by imposition on the prosecution of the burden to rebut any defense of diminished capacity. In People v. Wells (1949) 33 Cal.2d 330 [202 P.2d 53], disapproved on another point in People v. Wetmore (1978) 22 Cal.3d 318, 327, footnote, 7 [149 Cal.Rptr. 265, 583 P.2d 1308], and People v. Gorshen (1959) 51 Cal.2d 716 [336 P.2d 492], also disapproved on another point in People v. Wetmore, supra, 22 Cal.3d at pages 324, footnote 5, and 327, footnote 7, and their progeny, we had established that defense, which was available to negate all mental states other than so-called “general criminal intent” (see generally, 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Defenses, §§ 208-209, pp. 237-240), including premeditated and deliberate intent to kill unlawfully (see, e.g., People v. Wolff, supra, 61 Cal.2d at pp. 818-822) and malice aforethought (see, e.g., People v. Conley (1966) 64 Cal.2d 310, 318 [49 Cal.Rptr. *615815, 411 P.2d 911]). “[A] conviction of murder in any degree,” says Horn, “requires proof of malice aforethought; since People v. Gorshen (1959) 51 Cal.2d 716, 727 [336 P.2d 492], malice can be rebutted ‘by a showing that the defendant’s mental capacity was reduced by mental illness, mental defect or intoxication.’ ” (People v. Horn, supra, 12 Cal.3d at pp. 298-299, quoting People v. Graham (1969) 71 Cal.2d 303, 315 [78 Cal.Rptr. 217, 455 P.2d 153].) “Since evidence of diminished mental capacity can show that a homicide was committed without premeditation or malice aforethought, reducing that homicide to second degree murder or manslaughter, such evidence may also serve to classify a conspiracy to commit a homicide as one to commit second degree murder or manslaughter.” (People v. Horn, supra, 12 Cal.3d at p. 295.)
In a footnote, the Horn court added: “Kynette’s assertion that a conspiracy to commit murder is always a conspiracy to commit first degree murder is inconsistent with the present language of Penal Code section 182. When Kynette was decided, section 182 provided simply that conspirators to commit a felony ‘shall be punishable in the same manner and to the same extent as provided for the punishment of the commission of the said felony.’ The current section 182, enacted in 1955, is much more specific: ‘If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony defendant conspired to commit. If the degree is not so determined, the punishment for conspiracy to commit such felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree.’ [<fl] As this language is written and punctuated, it plainly authorizes the trier of fact to return a verdict finding conspiracy to commit murder in the second degree. Only if the trier of fact fails to determine the degree is a conspiracy to commit murder punished as one to commit first degree murder. Since the Legislature has authorized a verdict of conspiracy to commit second degree murder, it clearly does not believe that crime to be a logical impossibility.” (People v. Horn, supra, 12 Cal.3d at p. 298, fn. 5, italics in original.)
What are we to do with Kynette and Horn?
On its very face, Kynette is persuasive. Its words, which are quoted above, need merely be reread to prove the point.
The same cannot be said of Horn,
Judged within the legal framework set out above, Horn has been wanting from the day it was decided.
*616But let me not press the point. For argument’s sake only, I shall assume that, when it was handed down, Horn was good law. It is no longer.
To the extent that the Horn court believed that an “agreement to murder” might not entail a premeditated and deliberate intent to kill unlawfully because the latter then “require[d] proof that the defendant ‘could maturely and meaningfully reflect upon the gravity of his contemplated act . . .’” (People v. Horn, supra, 12 Cal.3d at p. 298), it has been passed by. It is true that, prior to Horn, we had held in People v. Wolff, supra, 61 Cal.2d at page 821, that the “true test” of a premeditated and deliberate intent to kill unlawfully was such. But it is also true that, after Horn, the Legislature overruled us on that very point. Specifically, it amended Penal Code section 189 through the addition of the following sentence (Stats. 1981, ch. 404, § 7, p. 1593), which remains in the provision today: “To prove the killing was ‘deliberate and premeditated,’ it shall not be necessary to prove that the defendant maturely and meaningfully reflected upon the gravity of his or her act.”
Furthermore, to the extent that the Horn court believed that an “agreement to murder” might not entail a premeditated and deliberate intent to kill unlawfully or even malice aforethought because the threshold of proof therefor had been raised, in practice, by imposition on the prosecution of the burden to rebut any defense of diminished capacity, it has been passed by on this matter as well. At the same time that it amended Penal Code section 189 as indicated above, the Legislature added section 28, subdivision (b), to the same code (Stats. 1981, ch. 404, § 4, p. 1592), which expressly abolished the defense: “As a matter of public policy there shall be no defense of diminished capacity . ...” A year later, the people added section 25, subdivision (a), to the code (Prop. 8, Primary Elec. (June 8, 1982) § 4), which abolished the defense even more expressly: “The defense of diminished capacity is hereby abolished. ...”
What remains of Horn is its footnote quoting Penal Code section 182, which in pertinent part is virtually the same now as then: “If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony defendant conspired to commit. If the degree is not so determined, the punishment for conspiracy to commit the felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree.” (Id., subd. (a).)
When we construe Penal Code 182, as we must, in its full context (see Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 673 [47 Cal.Rptr.2d *617108, 905 P.2d 1248] (conc. opn. of Mosk, J.)), we find therein the Legislature’s acquiescence in Kynette—express as to the punishment prescribed for the crime of conspiracy to commit murder, implied as to the crime itself. We read the provision to contain the words in italics: “If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony defendant conspired to commit, except in the case of murder. If the degree is not so determined, the punishment for conspiracy to commit the felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree.”
Were we to construe Penal Code section 182 otherwise, we would bring difficulties on ourselves—difficulties that we could and should avoid. As a doctrinal matter, we would be compelled to deviate from the general rule— stated in Penal Code section 182 itself and also in Penal Code sections 1157 and 1192—that gives the benefit of the trier of fact’s nondetermination of the degree of a felony to the defendant. Moreover, as an historical matter, we would be forced to embrace two dubious conclusions. One would be that the Legislature impliedly acknowledged that the “crime” of “conspiracy to commit murder of the second degree” existed about 15 years after we had all but expressly declared in Kynette that it did not. The other would be that the Legislature intended to expose to the death penalty any person convicted of the “crime” of “conspiracy to commit murder of the second degree” who had had the misfortune to be tried by a jury or court that was unable to determine the degree of the “conspired” murder, or that did in fact determine the degree to be the second but failed to so specify. That is because, pursuant to Penal Code section 190 as it then stood (Stats. 1927, ch. 889, § 1, p. 1952), the punishment for the crime of murder of the first degree included death.5
Therefore, to the question, “What are we to do with Kynette and Horn?,” my answer is, “We should overrule Horn and approve Kynette.” Of course, we need not do so as a formal matter. Kynette approves itself. As stated, it is persuasive on its very face. In addition, Horn has been overruled for all practical purposes through the legislative abrogation of its premises. It is now a citation without substance. It falls of its own weight.
III. The Present Proceeding
Let us now turn to the present proceeding.
*618The Grand Jury of the City and County of San Francisco handed up to the superior court an indictment against Jamal K. Swain and David Chatman. In count 1, it charged both Swain and Chatman with the crime of murder; it alleged, inter alia, that the offense was “wilful, deliberate, and premeditated,” and also, for enhancement of sentence, that both men were armed with (Pen. Code, § 12022, subd. (a)(1)), and personally used (id,., § 12022.5, subd. (a)), a firearm in its commission. In count 2, it charged both Swain and Chatman with the crime of conspiracy to commit murder. In count 3, it charged Swain alone with the crime of the felonious intimidation of a witness. (Id., § 136.1, subd. (c)(1).) In count 4, it charged Swain alone with the same crime as to another witness. Swain and Chatman each pleaded not guilty to the charges and denied the allegations. On Swain’s motion, the superior court severed count four for a separate trial. It subsequently ordered dismissal thereof. Apparently, it also ordered dismissal of the arming allegations.
Trial on counts 1, 2, and 3 was by jury. As to count 1, the jury found Swain not guilty of the crime of murder and not guilty of the lesser included offenses of voluntary and involuntary manslaughter; by contrast, it found Chatman guilty of the crime of murder of the second degree, and found true the allegation of personal use of a firearm. As to count 2, it found Swain guilty of the “crime” of “conspiracy to commit murder of the second degree”; it made the same finding as to Chatman. As to count 3, it found Swain guilty of the crime of the felonious intimidation of a witness.
The superior court rendered separate judgments against Swain and Chat-man. It imposed on Swain a term of imprisonment for 15 years to life for the “crime” of “conspiracy to commit murder of the second degree”; it also imposed 3 years for the crime of the felonious intimidation of a witness, to be served consecutively; finally, it imposed a restitutionary fine in the amount of $200 (Gov. Code, § 13967). It imposed on Chatman a term of imprisonment for 15 years to life for the crime of murder of the second degree with 4 additional years for personal use of a firearm in its commission; it also imposed 15 years to life for the “crime” of “conspiracy to commit murder of the second degree," but stayed execution thereof (Pen. Code, § 654); finally, it imposed a restitutionary fine in the amount of $200.
The Court of Appeal, First Appellate District, Division Five, affirmed the judgments against Swain and Chatman in their entirety.
On separate petitions by the People, Swain, and Chatman, we granted review. As will appear, the judgment of the Court of Appeal must be reversed to the extent that it affirms the superior court’s judgments against *619Swain and Chatman convicting them of, and sentencing them for, the “crime” of “conspiracy to commit murder of the second degree.”
The first question, which is general, is whether there is a crime of conspiracy to commit murder simpliciter or instead a “crime” of “conspiracy to commit murder of the first degree” and/or a “crime” of “conspiracy to commit murder of the second degree." For the reasons stated above, the answer is that only the former offense exists.
The second question, which is also general, is whether the crime of conspiracy to commit murder requires an intent to kill unlawfully. For the reasons stated above, the answer is that it does.
The third question, which is general as well, is what is the punishment for the crime of conspiracy to commit murder. For the reasons stated above, the answer is that it is the punishment for the crime of murder of the first degree—which, pursuant to Penal Code section 190, subdivision (a), is now imprisonment for a term of 25 years to life.6
The fourth question, which is specific to this cause, is whether the judgments convicting Swain and Chatman of, and sentencing them for, the “crime” of “conspiracy to commit murder of the second degree” must be reversed. The answer is that reversal is indeed required. Because each judgment involves a “crime” that does not exist, it is unsupported as a matter of law and hence cannot stand. (See In re James M. (1973) 9 Cal.3d 517, 519-522 [108 Cal.Rptr. 89, 510 P.2d 33].) In a given case, it may be possible to determine that a judgment effectively convicts a defendant of, and sentences him for, the crime of conspiracy to commit murder simpliciter, albeit under the label of “conspiracy to commit murder of the second degree.” In a case of that sort, the judgment may be affirmed because the label may be disregarded. This is not such a case. It appears that we could determine that the judgments against Swain and Chatman effectively convicted them of, and sentenced them for, the crime of conspiracy to commit murder only if we could conclude that such judgments rested on an at least implied finding by the jury that intent to kill unlawfully was present. On my review of the record, we cannot so conclude.
The fifth question, which is also specific to this cause, is whether either Swain or Chatman or both may be retried for the crime of conspiracy to *620commit murder without offense to the double jeopardy clause of the Fifth Amendment to the United States Constitution as made applicable to the states through the due process clause of the Fourteenth Amendment. The answer is that both men may in fact be retried. To be sure, the Fifth Amendment’s double jeopardy clause “protects against a second prosecution for the same offense” both “after acquittal” and “after conviction.” (North Carolina v. Pearce (1969) 395 U.S. 711, 717 [23 L.Ed.2d 656, 664-665, 89 S.Ct. 2072].) But neither man was expressly convicted of the crime of conspiracy to commit murder simpliciter; neither was expressly acquitted thereof. Furthermore, as explained in the preceding paragraph, we cannot conclude that either man was impliedly convicted of the crime under the label of “conspiracy to commit murder of the second degree”; neither, I believe, can we conclude that either was impliedly acquitted thereunder.
The sixth and final question, which is specific to this cause as well, is what is the punishment that may be imposed on Swain or Chatman in the event that he is convicted of the crime of conspiracy to commit murder on retrial. The answer is that it is the punishment for the “crime” of “conspiracy to commit murder of the second degree”—which, pursuant to Horn, is imprisonment for a term of 15 years to life. That is because a retroactive application of the law as herein declared would “make[] more burdensome the punishment for a crime, after its commission” (Beazell v. Ohio (1925) 269 U.S. 167, 169 [70 L.Ed. 216, 217, 46 S.Ct. 68]; accord, Collins v. Youngblood (1990) 497 U.S. 37, 42 [111 L.Ed.2d 30, 38-39, 110 S.Ct. 2715]), and would thereby violate the due process clause of the Fourteenth Amendment (see Bouie v. City of Columbia (1964) 378 U.S. 347, 352-354 [12 L.Ed.2d 894, 899-900, 84 S.Ct. 1697]; see also In re Baert (1988) 205 Cal.App.3d 514, 518 [252 Cal.Rptr. 418] (per Arabian, J.)).7
IV. Conclusion
For the foregoing reasons, I join the majority in concluding that the judgment of the Court of Appeal should be reversed to the extent that it affirms the superior court’s judgments against Swain and Chatman convicting them of, and sentencing them for, the “crime” of “conspiracy to commit murder of the second degree.”
Arabian, J., concurred.
In the course of my analysis, I go beyond that of the majority. I do so in order to provide guidance as to issues, including double jeopardy, that are likely to arise on remand. We have often followed this path. (E.g., People v. Wilson (1992) 3 Cal.4th 926, 930, 937-943 [13 Cal.Rptr.2d 259, 838 P.2d 1212]; People v. Marks (1988) 45 Cal.3d 1335, 1338, 1344-1347 [248 Cal.Rptr. 874, 756 P.2d 260]; People v. Frierson (1979) 25 Cal.3d 142, 167-188 [158 Cal.Rptr. 281, 599 P.2d 587] (plur. opn. by Richardson, J.); see Code Civ. Proc., § 43 [providing that, “[i]n giving its decision, if a new trial be granted, the [appellate] court shall pass upon and determine all the questions of law involved in the case, presented upon . . . appeal, and necessary to the final determination of the case”].) I will not deviate in this instance. The issues in question are fully ripe for decision. They should not be passed over and allowed to cause mischief. Not long ago, in another cause, we pretermitted a double jeopardy issue (see People v. Marks, supra, 45 Cal.3d at p. 1344), only to produce three years of unnecessary litigation in the superior court, the Court of Appeal, and this court (see People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 62-63 [2 Cal.Rptr.2d 389, 820 P.2d 613]). I will not take the same approach, and allow the same result, in this matter.
It is evident that the mental state required for the crime of murder is malice aforethought. Intent to kill is not necessary for malice aforethought. Penal Code section 188, which is quoted in the text, demonstrates the point. It is satisfied by the presence of an “abandoned and malignant heart” or the absence of “considerable provocation.” Furthermore, intent to kill is not sufficient for malice aforethought. Penal Code 188 demonstrates this point as well. It also requires “unlawfulness].” (In re Christian S. (1994) 7 Cal.4th 768, 778 [30 Cal.Rptr.2d 33, 872 P.2d 574], italics omitted; see Pen. Code, § 196 [providing that homicide by a public officer may be justifiable under certain circumstances, even if the officer acted with intent to kill]; id., § 197 [same for homicide by any person].)
It is evident that the mental state required for the crime of murder of the first degree does not entail intent to kill. Penal Code section 189, which is quoted in the text, demonstrates the point. It incorporates the common law doctrine of first degree felony murder, under which intent to kill is immaterial. It is also evident that the mental state required for the crime of murder of the second degree does not entail intent to kill. The requisite mental state is malice aforethought—for which intent to kill is neither necessary nor sufficient. (See fn. 2, ante.)
The declaration in Penal Code section 189, that all murder that 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,” was added after the occurrence of the events with which we are concerned in this cause (Stats. 1993, ch. 611, § 4.5, eff. Oct. 1, 1993, operative Jan. 1, 1994), and hence is not applicable thereto.
See Model Penal Code and Commentaries, supra, comment 1 to section 5.03, pages 387 to 388 (stating that, “[a]s an inchoate crime, conspiracy fixes the point of legal intervention at agreement to commit a crime, or at agreement coupled with an overt act which may, however, be of very small significance,” and “thus reaches further back into preparatory conduct than attempt, raising the question of whether this extension is desirable”); id., comment 2(c)(i) to section 5.03, page 403 (stating that the requirement of intent—as in intent to kill unlawfully— “is crucial to the resolution of the difficult problems presented when a charge of conspiracy is levelled against a person whose relationship to a criminal plan is essentially peripheral”).
By contrast, it would not be difficult to conclude that the Legislature, having acquiesced in Kynette, intended to expose to the death penalty any person convicted of the crime of conspiracy to commit murder. Under Kynette, “a conspiracy to commit murder can only be a conspiracy to commit murder of the first degree . . . .” (People v. Kynette, supra, 15 Cal.2d at p. 745.)
Pursuant to Penal Code section 190, subdivision (a), the punishment for the crime of murder of the first degree now includes death and imprisonment for life without the possibility of parole—but only for the actual commission of a murder of such degree and only under certain special circumstances as defined in Penal Code section 190.2, which authorizes both of the indicated penalties, and Penal Code section 190.25, which authorizes only the lesser.
It would not violate the due process clause of the Fourteenth Amendment to impose imprisonment for a term of 25 years to life as the punishment for the crime of conspiracy to commit murder on a defendant who commits the offense on or after the date that our decision herein becomes final. He will have been given “fair warning” (Bouie v. City of Columbia, supra, 378 U.S. at p. 352 [12 L.Ed.2d at p. 899]) in the matter of the penal sanction by the expression of what appears to be our unanimous view that Horn’s premises have been legislatively abrogated, and hence will not be heard to complain of any “unforeseeable and retroactive judicial expansion” in this area (ibid.).