People v. Seel ( 2004 )

KENNARD, J., Concurring.

I join the majority, whose central holding now embraces a view I articulated in a dissenting opinion eight years ago.

In People v. Bright (1996) 12 Cal.4th 652 [49 Cal.Rptr.2d 732, 909 P.2d 1354], a majority of this court held that a finding that an attempted murder was committed willfully, deliberately, and premeditatedly was merely a penalty provision, not an element of a crime greater than attempted murder. I dissented, suggesting that the federal Constitution may well guarantee the right to a jury trial even if premeditation was “merely a circumstance affecting the penalty for attempted murder.” (Id. at p. 692 (dis. opn. of Kennard, J.).) I noted that such a premeditation finding “will expose the defendant to a penalty of life imprisonment, as compared with a maximum term of nine years for attempted murder without premeditation.” (Ibid.) Thus, I said, it might “well be unconstitutional to deprive the defendant of a right to jury trial on the issue of premeditation.” (Ibid.) The correctness of that view has now been confirmed by the recent decision of the United States Supreme Court in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348], which in turn compels the result in this case.