California, United States of America
The following excerpt is from People v. Vivero, C086268 (Cal. App. 2020):
Regardless, as explained in Bright, supra, 12 Cal.4th 652, "attempted murder and premeditated attempted murder are the same offense. Thus, attempted murder is not a lesser included offense of attempted premeditated murder, but premeditation constitutes a penalty provision that prescribes an increase in punishment." (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1049; see Bright, supra, at pp. 661-662, 670.) "In contrast to greater and lesser degrees of an offense, a penalty provision prescribes an added penalty to be imposed when the offense is committed under specified circumstances. A penalty provision is separate from the underlying offense and does not set forth elements of the offense or a greater degree of the offense charged." (Bright, supra, at p. 661.) In Bright, the jury convicted the defendant of attempted murder, but could not reach a verdict on the allegation that the attempt was willful, deliberate, and premeditated. (Id. at p. 658.) The issue before the court was whether the double jeopardy prohibition precluded retrial on the allegation. (Id. at p. 656.) Our high court concluded it did not. (Id. at p. 671.)
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