Concurring. — In this case, the court rejects a claim that retrial of an allegation that defendant’s commission of an attempted murder was “willful, deliberate, and premeditated” would violate the constitutional prohibition against trying a criminal defendant twice for the same offense. (U.S. Const., 5th Amend.; see also Cal. Const., art. I, § 15.) This decision mirrors the holding of the majority in People v. Bright (1996) 12 Cal.4th 652 [49 Cal.Rptr.2d 732, 909 P.2d 1354] (Bright). I thought this court was wrong in Bright, and I said so in a dissenting opinion. (Id. at pp. 683-693 (dis. opn. of Kennard, J.).) I still hold that view. I write separately to explain why I nonetheless join today’s decision.
I
Because this court’s decision in Bright, supra, 12 Cal.4th 652, plays a significant role in this case, I discuss it in considerable detail. The defendant there was charged with attempted murder (Pen. Code, §§ 187, 664, subd. (a)),1 which the prosecution alleged was “willful, deliberate, and premeditated” (§ 664, subd. (a)). Such an allegation, if found to be true, would increase the sentence for attempted murder from five, seven, or nine years to mandatory life imprisonment with the possibility of parole. (Ibid.)
The jury in Bright convicted the defendant of attempted murder. But it was unable to reach a verdict on whether commission of the crime was willful, deliberate, and premeditated. When the trial court ordered a retrial on that issue, the defendant argued that retrial would violate the constitutional principle prohibiting double jeopardy. (See Ex parte Nielsen (1889) 131 U.S. 176, 188 [33 LJEd. 118, 9 S.Ct. 672] [when a defendant “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.”].) The trial court agreed with the defendant; it then imposed a sentence for attempted murder, dismissing the “willful, deliberate, and premeditated” allegation. After the Court of Appeal reversed the order of dismissal, this court granted the defendant’s petition for review. (Bright, supra, 12 Cal.4th at pp. 657-660.)
*141The majority in Bright affirmed the Court of Appeal, holding that the constitutional prohibition against double jeopardy did not bar a retrial of the allegation in question. (Bright, supra, 12 Cal.4th at pp. 660-671.) The defendant had argued that attempted murder was divided into two degrees: attempted second degree murder being a lesser degree included within attempted willful, deliberate, and premeditated first degree murder. Therefore, according to the defendant, retrial of the “willful, deliberate, and premeditated” allegation would be trying him for a greater degree of the same offense. (Id. at p. 668.) The majority in Bright rejected that contention. (Id. at pp. 668-669.) Instead, it construed section 664, subdivision (a), which defines an attempt, as simply “prescribing an additional penalty for attempted murder where the jury finds true as charged the aggravating circumstance that the offense was willful, deliberate, and premeditated . . . .” (Bright, supra, 12 Cal.4th at p. 668, italics added.) Under that construction, “a defendant’s conviction of the underlying substantive offense [would] not (on double jeopardy grounds) bar further proceedings, such as retrial, on a penalty allegation.” (Id. at p. 661, citing People v. Bryant (1992) 10 Cal.App.4th 1584, 1597-1598 [13 Cal.Rptr.2d 601].)
I dissented in Bright, supra, 12 Cal.4th at pages 683-693 (dis. opn. of Kennard, J.). So did Justice Stanley Mosk, in a separate opinion. (Id. at pp. 671-683 (dis. opn. of Mosk, J.).) Each of us concluded that double jeopardy principles barred retrial of the allegation that the attempted murder was willful, deliberate, and premeditated.
Unlike the majority in Bright, I construed attempted murder and attempted willful, deliberate, and premeditated murder to comprise two degrees of the same crime. (Bright, supra, 12 Cal.4th at p. 687 (dis. opn. of Kennard, J.).) I stated: “Simple attempted murder is, in essence, attempted second degree murder, that is, attempted murder not falling in any of the categories . . . that elevate murder from the second to the first degree.” (Ibid., italics omitted.) I reasoned that if the defendant attempted “ ‘willful, deliberate, and premeditated murder,’ ” that would be attempted first degree murder, in which case the jury’s conviction for “the lesser included crime of attempted second degree murder” would preclude convicting the defendant of a greater degree of the same crime. (Ibid., italics omitted; see Ex parte Nielsen, supra, 131 U.S. at p. 188.) Dissenting separately, Justice Mosk reached the same conclusion. (Bright, supra, at pp. 671-683 (dis. opn. of Mosk, J.).)
My disagreement with the majority in Bright, supra, 12 Cal.4th 652, did not center on any constitutional principle. Instead, it hinged solely on the different views we took of the statutory definition of attempted murder. The Bright majority’s statutory construction is now, with a limited exception discussed below, the settled law of this state. As I have noted in the past, *142“repetition of dissenting views is rarely justified.” (People v. Stansbury (1993) 4 Cal.4th 1017, 1073 [17 Cal.Rptr.2d 174, 846 P.2d 756] (conc. opn. of Kennard, J.).) Thus, following the doctrine of stare decisis, I “ ‘yield to the obligation ... to live with the law as it has been stated.’ ” {Ibid.)
I now address the case at hand.
II
Here, a jury convicted defendant of two counts of attempted murder (§ 187), and it determined that in each instance defendant attempted to commit a “willful, deliberate, and premeditated murder” (§ 664, subd. (a)). (As noted earlier, such a finding increases the punishment for attempted murder from five, seven, or nine years to a mandatory life term with the possibility of parole. (§ 664, subd. (a).)) Ruling on defendant’s motion for a new trial (§ 1181, subd. 6), the trial court granted the motion only as to the allegations that the two attempted murders were willful, deliberate, and premeditated.
This court has long held that the granting of a new trial under section 1181, subdivision 6, “is ‘not an acquittal’ ” and thus does not implicate the constitutional prohibition against double jeopardy. (People v. Lagunas (1994) 8 Cal.4th 1030, 1038 [36 Cal.Rptr.2d 67, 884 P.2d 1015].) Is this rule affected by the United States Supreme Court’s sentencing decision in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi), when, as in this case, the granting of a new trial pertains to a sentencing allegation?
As relevant here, Apprendi held that “when the term ‘sentence enhancement’ is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense . . . .” (Apprendi, supra, 530 U.S. at p. 494, fn. 19, italics added.) In this case, the Court of Appeal held that the sentencing allegation that an attempted murder was willful, deliberate, and premeditated was, in the language of Apprendi, the “functional equivalent of an element of a greater offense” of attempted willful, deliberate, and premeditated murder. In effect, the Court of Appeal held that this court’s decision in Bright, supra, 12 Cal.4th 652, was no longer good law in light of Apprendi.
The majority reverses the Court of Appeal. I agree. As the majority explains (maj. opn., ante, at pp. 137-138), the Apprendi language in question pertains to the federal Constitution’s Sixth Amendment right to jury trial, an issue not implicated here. More specifically, as explained in the companion case of People v. Anderson (2009) 47 Cal.4th 92, 105-107, Apprendi holds *143that a sentencing allegation that increases the statutory maximum penalty is the “functional equivalent” of an element of a greater crime, thus entitling the defendant to a jury trial on each of that crime’s elements. (Apprendi, supra, 530 U.S. at p. 490 [“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Italics added.)].) Thus, Apprendi requires that a jury decide whether an attempted murder was willful, deliberate, and premeditated. But there is nothing in Apprendi that would preclude the prosecution in this case from retrying defendant before a different jury on the sentencing allegations in question. (As mentioned earlier, the trial court sustained the jury’s findings that defendant committed two counts of attempted murder, but the court granted a new trial on the allegations that those attempted murders were willful, deliberate, and premeditated.)
Nor does this case fall within the limited exception to the majority’s holding in Bright, supra, 12 Cal.4th 652. Under that exception, the double jeopardy prohibition does apply to retrial of a sentencing allegation that an attempted murder was willful, deliberate, and premeditated. That exception was carved out in People v. Seel (2004) 34 Cal.4th 535 [21 Cal.Rptr.3d 179, 100 P.3d 870] (Seel), which is discussed in the companion case of People v. Anderson, supra, 47 Cal.4th at pages 106-108.
In Seel, this court followed the teachings of Apprendi, supra, 530 U.S. 466, and concluded that the double jeopardy prohibition barred retrial of the “willful, deliberate, and premeditated” allegation in an attempted murder case after the Court of Appeal’s determination that the evidence was insufficient with respect to “ ‘premeditation and deliberation.’ ” (Seel, supra, 34 Cal.4th at pp. 540, 550.) Seel distinguished this court’s earlier decision in Bright, supra, 12 Cal.4th 652, as arising in a different procedural posture: In Seel, “the Court of Appeal reversed the judgment based on its determination of evidentiary insufficiency,” whereas in Bright “[n]either a court nor a jury made a determination that the prosecution failed to prove its case.” (Seel, supra, at p. 550.) Seel expressly overruled Bright, but only to the extent that Bright “conflicted] with intervening high court decisions as discussed [in Seel],” mainly Apprendi, supra, 530 U.S. 466. (Seel, supra, at p. 550, fn. 6.) As articulated in Seel, the “conflict” that Seel perceived between the high court’s decision in Apprendi and the majority opinion in Bright is limited to cases involving evidentiary insufficiency.
The case at bench pertains to a trial court’s grant of new trial (§ 1181, subd. 6) on a sentencing allegation, a ruling that does not implicate evidentiary insufficiency (see People v. Lagunas, supra, 8 Cal.4th at p. 1038 [granting of new trial “ ‘not an acquittal’ ”]). Thus, when, as here, evidentiary insufficiency is not an issue, this court’s decision in Bright, supra, 12 *144Cal.4th at page 669, remains controlling law. This means that with respect to defendant’s retrial in this case on the “willful, deliberate, and premeditated” sentencing allegation, that allegation is not an element of the offense of attempted murder, and retrial on that issue does not violate double jeopardy principles.
For these reasons, I agree with the majority that the Court of Appeal erred in holding that retrial of the allegations in question would violate the constitutional principle of not putting a defendant twice in jeopardy for the same offense.
Further undesignated statutory references are to the Penal Code.