Under Penal Code section 664, subdivision (a), to support a life sentence, due process considerations, as well as statutory requirements, require that the pleadings allege the attempted murder was willful, deliberate, and premeditated.
Following a gang-related shooting, appellant was charged with and found guilty at trial of murder and two counts of attempted murder. The pleadings did not allege that the attempted murders were willful, deliberate, and premeditated. Although the trial court instructed the jury that if it found defendant guilty of attempted murder, it must determine if the attempted murder was done willfully, deliberately and with premeditation, the verdicts did not include special findings, simply recording the offenses as first degree attempted murder as to both victims. The court then sentenced appellant to two life sentences for the crimes of attempted first degree murder. Section 664, subdivision (a) specifically provides for a life sentence for attempted murder where “it is also charged and admitted or found to be true by the trier of fact that the attempted murder was willful, deliberate, and premeditated . . ..” Not only is the pleading requirement one of statutory construction, but it is also a due process consideration insofar as providing defendant with fair notice of the penalty that will be invoked if he is convicted. Absent the required pleadings, a life sentence is unauthorized and must be stricken.