An attempt to commit a crime that would be punished by life imprisonment is punishable by a term of five, seven, or nine years in prison. (Pen. Code, § 664, subd. (a), hereafter section 664(a).)1 In 1986, the Legislature amended section 664(a) to require life imprisonment for an attempted willful, deliberate, and premeditated murder. Does this amendment apply only to a defendant who had personally engaged in a willful, deliberate, and premeditated attempt to kill, or does it also apply to an accomplice of someone who has attempted such a crime, even if the accomplice does not act willfully, deliberately, and with premeditation? The majority holds that the provision does apply to the accomplice. I disagree. Unlike the majority, I conclude that the trial court in this case misinstructed the jury on the elements of section 664(a). But because the error was harmless, I join the majority in upholding defendants’ convictions.
I
Teenage defendants Phia Lee and Johnson Xiong (14 and 15 years old, respectively) were members of a Hmong gang in Fresno. In April 1995, they had a confrontation with three brothers (Kou H., Cheng H., and Sa H.) and Thanaka T, because a cousin of the brothers might have been in a rival gang. Later that day, three people, identified as defendants and an older man, approached T. and the H. brothers at a house on Bums Street. The older man and defendant Xiong pulled out guns and started shooting, wounding all four *630of them. In June 1995, defendants Lee and Xiong went to an apartment complex in the rival gang’s territory. They both opened fire, killing two persons (ages seven and 14), and wounding three others (ages five, 17, and 20). As the two shooters fled, one of them shouted gang slogans.
Both defendants were charged with murder of the two persons fatally shot at the apartment complex and with attempted murder of the four youths wounded on Bums Street and the three people wounded at the apartment complex. The prosecution alleged that all the attempted murders were willful, deliberate, and premeditated. The defense relied on a theory of mistaken identity.
The trial court instructed the jury that if it concluded either that defendants personally engaged in a premeditated attempt to kill the victims or that they aided and abetted someone who did so, it should find trae the allegations that defendants were guilty of attempted premeditated murder.2 The jury convicted Xiong on all counts; it acquitted Lee of the attempted murders on Bums Street but convicted him of the crimes at the apartment complex. The jury found that all the attempted murders were premeditated.
On appeal, defendants faulted the trial court for not telling the jury it could find the attempted premeditated murder allegations true as to a particular defendant only if that defendant personally acted with premeditation. The Court of Appeal agreed, but it found the error harmless. This court granted review.
II
Section 664(a) describes the penalties for attempts. As previously mentioned, it says that the punishment for an attempt to commit a felony punishable by life imprisonment or death is five, seven, or nine years in prison, but “if the crime attempted is willful, deliberate, and premeditated murder . . . the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole.” (Italics added.) This penalty may be imposed only if “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.” (Ibid.)
At issue here is the meaning of the italicized phrase in section 664(a), “person guilty of that attempt.” Does it refer only to persons who, in an attempt to commit murder, act willfully, deliberately, and with premeditation? *631Or does it also apply to one who does not have that mental state, but is an accomplice of someone who does?
On point here is People v. Bright (1996) 12 Cal.4th 652 [49 Cal.Rptr.2d 732, 909 P.2d 1354]. There, this court held that section 664(a)’s requirement of life imprisonment for attempted premeditated murder is a “penalty provision” (Bright, at p. 661) that is “separate from the underlying offense” (ibid.) of attempted murder and imposes “an increased sentence . . . when the additional specified circumstances are found true by the trier of fact” (id. at p. 669). As I explain below, Bright's holding is dispositive of the issue in this case.
Like a sentence enhancement, a penalty provision specifies circumstances in which a defendant is given a sentence greater, sometimes far greater, than that ordinarily imposed on those convicted of the same crime. The harsher punishment is imposed either because the defendant’s conduct is particularly egregious or because the defendant has an exceptionally bad prior criminal record. Thus, almost all penalty provisions and enhancements—unlike criminal offenses—apply only when the conduct of the defendant, not that of another perpetrator, is particularly reprehensible. (See, e.g., § 12022, subd. (b) [use of a deadly weapon]; § 12022.1 [crime committed while the defendant is released on bail or recognizance]; § 12022.3 [use of firearm in commission of a rape]; § 12022.5 [use of firearm in commission of a felony]; § 12022.53, subd. (b) [use of firearm in enumerated felonies]; § 12022.53, subd. (c) [discharge of firearm in enumerated felonies]; § 12022.53, subd. (d) [discharge of firearm causing great bodily injury in enumerated felonies]; § 12022.55 [infliction of great bodily injury while discharging a firearm from a vehicle]; § 12022.7, subds. (a), (b), (c), (d), (e) [infliction of great bodily injury in commission of a felony]; § 12022.8 [infliction of great bodily injury in commission of a forcible sex offense]; § 12022.9 [infliction of injury on pregnant woman].) There are certain exceptions. But in those instances the Legislature has expressly mandated application of the sentence enhancement or penalty provision regardless of whether the conduct at issue was committed by the defendant or by a codefendant. (See, e.g., § 12022, subd. (a)(1) [enhancement for being armed with firearm applies to “any principal” in which one of the perpetrators is armed, “whether or not the person is personally armed”]; § 12022.53, subd. (e)(1)(B) [penalty provision applies to firearm use by “[a]ny principal” in the commission of specified gang-related felonies].)
In People v. Walker (1976) 18 Cal.3d 232 [133 Cal.Rptr. 520, 555 P.2d 306] (Walker), this court explained the significance of the difference between penalty provisions and sentence enhancements on the one hand, and criminal offenses on the other. At issue in Walker was whether the sentence enhancement for firearm use (§ 12022.5) applied only when the defendant personally *632used a gun, or whether it also applied when the defendant was an accomplice of the gun user. This court held that the enhancement applied only to personal use, explaining: “Generally, if a statute is intended to impose a derivative liability on some person other than the actor, there must be some legislative direction that it is to be applied to persons who do not themselves commit the proscribed act. Such a direction is found in section 31 which fixes responsibility on an aider and abettor for a crime personally committed by a confederate. But the statute which defines aiders and abettors as principals . . . does not also purport to impose additional derivative punishment grounded on an accomplice’s personal conduct, as those statutes which provide for such increased punishment ‘ “do not define a crime or offense but relate to the penalty to be imposed under certain circumstances.” ’ [Citations.] Hence the rules which make an accused derivatively liable for a crime which he does not personally commit, do not at the same time impose a derivatively increased punishment by reason of the manner in which a confederate commits the crime.” (Walker, supra, 18 Cal.3d at pp. 241-242, italics added.)
Thus, penalty provisions like the one at issue here consider only the defendant’s personal conduct, unless there is an express declaration of legislative intent to impose vicarious liability for the conduct of an accomplice. (See People v. Piper (1986) 42 Cal.3d 471, 477 [229 Cal.Rptr. 125, 722 P.2d 899] [“Since Walker, the Legislature has been quite explicit when it intends an enhancement provision to apply to a defendant even though he himself does not commit the proscribed act”]; see also People v. Gutierrez (1996) 46 Cal.App.4th 804, 814 [54 Cal.Rptr.2d 149].) As I shall explain, no such intent appears in section 664(a).
The penalty provision in section 664(a) imposes an increased sentence on a “person guilty of that attempt’ (italics added); that is, an “attempted . . . willful, deliberate, and premeditated murder.” This language is ambiguous. It does not say that an increased sentence is imposed on an accomplice of a person who acts willfully, deliberately, or with premeditation. Because there is no clear legislative intent to incorporate the rules governing accomplice liability, section 664(a)’s penalty provision applies only when the defendant has personally engaged in a premeditated attempt to commit murder. (See Walker, supra, 18 Cal.3d at p. 242.)
The majority here points out that “section 664(a) states only that the murder attempted must have been willful, deliberate, and premeditated, not that the attempted murderer personally must have acted willfully and with deliberation and premeditation.” (Maj. opn., ante, at p. 622.) The majority asserts that “[h]ad the Legislature intended to draw a distinction between direct perpetrators and aiders and abettors, it certainly could have done so expressly.” (Ibid.) But one can just as readily say that if the *633Legislature had intended section 664(a)’s penalty provision to apply to accomplices who do not personally premeditate, it could have expressly said so.3 This case is here because the Legislature did not clarify its intent. When a penalty provision does not expressly state either that it applies only to the defendant’s personal mental state or that it imposes vicarious liability for the mental state of the actual perpetrator when the defendant is merely an accomplice, the court construes it as looking only to the mental state of the defendant. (Walker, supra, 18 Cal.3d at p. 242.)
To support its holding that section 664(a)’s penalty provision for attempted premeditated murder applies to a defendant who is an accomplice to a person who acted with premeditation, the majority points to language in section 664(a) that the penalty provision may 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 majority reasons that the phrase “the attempted murder was . . . premeditated” reflects the Legislature’s intent that when there is more than one perpetrator, the penalty provision applies whenever any of the perpetrators acted with premeditation. I disagree. In my view, the purpose of the statutory language just quoted was not to specify who is subject to the penalty provision, but to make clear that the applicability of the penalty provision was to be decided at trial, not at sentencing. The quoted language does not at all indicate a legislative intent to bring within the penalty provision’s reach an accomplice of someone who has committed an attempted premeditated murder, when the accomplice has not personally acted with premeditation.
For the reasons given above, I agree with the Court of Appeal that the trial court erred when it instructed the jury that section 664(a)’s penalty provision for attempted premeditated murder applied to all accomplices, regardless of whether the accomplice acted with premeditation. I also agree with the Court of Appeal’s further conclusion that the error did not prejudice defendants. Such an error would be prejudicial only if there was evidence that some but not all of the perpetrators acted with premeditation. Here there was no such evidence, and although it is unclear who actually fired the shots that wounded the victims, the jury found that each defendant personally used a firearm in the commission of each of the attempted murders of which they were *634convicted.4 The error was therefore harmless beyond a reasonable doubt. (See People v. Sengpadychith (2001) 26 Cal.4th 316, 326 [109 Cal.Rptr.2d 851, 27 P.3d 739] [harmless beyond a reasonable doubt standard applies to “every element of a sentence enhancement that increases the penalty for a crime beyond the ‘prescribed statutory maximum’ punishment for that crime”].) Thus, I join the majority in upholding defendants’ convictions.
Werdegar, J., concurred.
Appellants’ petition for a rehearing was denied October 22, 2003. Brown, J., did not participate therein. Kennard, J., was of the opinion that the petition should be granted.
All further statutory citations are to the Penal Code.
For convenience, I use the term “attempted premeditated murder” to describe attempted willful, deliberate, and premeditated murder.
If the Legislature had made attempted premeditated murder a crime, the rules of accomplice liability would automatically have applied, because they apply to all crimes. (See Walker, supra, 18 Cal.3d at p. 242.) But as I have pointed out, a majority of this court held in People v. Bright, supra, 12 Cal.4th 652, that section 664(a) did not set forth a crime but only a penalty provision. I dissented. (Bright, at pp. 683-690 (dis. opn. of Kennard, J.).) In my view, the court cannot reconcile its holding in Bright that attempted premeditated murder is merely a penalty provision with its holding here that the added penalty may be imposed on an accomplice who did not personally premeditate.
As previously noted, defendant Lee was acquitted of the attempted murders on Burns Street.