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PEOPLE v. ROMO

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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Billy Louis ROMO, Defendant and Appellant.

Cr. 9767.

Decided: May 22, 1974

Kent N. Mastores, Court appointed, San Francisco, for defendant-appellant. Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Gloria F. DeHart, Timothy A. Reardon, Deputy Attys. Gen., San Francisco, for plaintiff-respondent.

Defendant appeals from the judgment upon a conviction of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a). It is conceded that substantial evidence of his guilt supported the jury's verdict. Defendant does, however, make several assertions of error which we will consider separately with a statement of the relevant facts pertinent to the issue.

Cautionary Instruction

Defendant asserts error in the failure of the trial court to instruct the jury sua sponte that: ‘Evidence of an oral admission or oral confession of the defendant ought to be viewed with caution.’ The failure of a trial court to give such instruction on its own motion where it is warranted by the evidence is error. (See People v. Beagle, 6 Cal.3d 441, 455–456, 99 Cal.Rptr. 313, 492 P.2d 1; People v. Reed, 270 Cal.App.2d 37, 43, 75 Cal.Rptr. 430.)

In the instant case the record discloses that one Mejia, called as a witness by the People, testified as to an altercation between defendant and one Rodriguez but stated he could not recall whether defendant had a knife in his hand or whether he stabbed Rodriguez because he (Mejia) was intoxicated at the time. Mejia was then asked whether he had given a statement to the police. Mejia responded that he couldn't recall making a statement because he was intoxicated and that any statement he made was incorrect because he was drunk. On cross-examination Mejia stated he could not recall giving a statement to the police.

The prosecution thereafter called Lieutenant Steufloten to the stand. Steufloten testified that on the night of the altercation he took a recorded statement from Mejia. When the prosecution sought to have the recording played defense counsel objected and then requested that the recorded statement ‘go in for impeachment rather than for substantive evidence.’ The prosecutor stated that it should be admitted for both purposes. The trial court acceded to defense counsel's request and stated that it would admit the statement only for purposes of impeachment. Defense counsel then requested that the court instruct the jury as to the limited purpose for which the statement was received. Before the recording was played the jury was specifically instructed that the Mejia statement as recorded was to be considered by the jury for the purpose of determining whether it impeached Mejia's testimony in court and was not to be considered as independent evidence. The recorded statement was then played for the jury. This statement has not been made a part of the record on appeal. Defendant in his brief states that in the statement Mejia ‘maintained’ that defendant had admitted stabbing Rodriguez. In respondent's brief it is conceded that we may assume that Mejia made the statement attributed to him by defendant.

We apprehend that Mejia's prior inconsistent statement was admissible to prove the truth of the matters asserted therein as well as to impeach his credibility. (Evid.Code, § 1235; People v. Green, 3 Cal.3d 981, 985, 92 Cal.Rptr. 494, 479 P.2d 998 [cert. den. 404 U.S. 801, 92 S.Ct. 20, 30 L.Ed.2d 34].) However, the statement was admitted for the limited purpose of impeachment. This was done at defendant's request and a limiting instruction to such effect was given to the jury at his request. We are entitled to assume that the jury followed the judge's instruction. Under the doctrine of limited admissibility Mejia's statement was admitted for the limited purpose indicated and not as evidence that defendant had made an admission against his interest. The limited purpose for which the evidence was received was proper under the limiting instruction given by the court. (See People v. Sweeney, 55 Cal.2d 27, 42–43, 9 Cal.Rptr. 793, 357 P.2d 1049; Daggett v. Atchison, T. & S. F. Ry. Co., 48 Cal.2d 655, 665, 313 P.2d 557; Adkins v. Brett, 184 Cal. 252, 256, 193 P. 251.) Accordingly, since no admission by defendant against his interest was received in evidence the cautionary instruction was not required.

Admissibility of Tape-Recorded Statement

Error is claimed in the admission of Mejia's tape-recorded statement on the ground that it ‘was not inconsistent with his testimony at trial.’ As already pointed out, defendant has not caused the statement to be made a part of the record on appeal. Since he is predicating error it was his duty to point out the error by an adequate record. In any event, that portion of the statement alluded to by defendant in his brief and acquiesced to by the People differs substantially from his trial testimony. No error is seen. (See Evid.Code, §§ 1202, 1235.)

Accomplice Instruction

It is contended that the trial court erred in failure to instruct sua sponte that: ‘Accomplice testimony should be viewed with distrust.’ He names the subject accomplice as Mejia. Defendant points to no evidence indicating that Mejia directly committed the assault upon Rodriguez, or aided and abetted, or conspired with him or anyone in its commission. (See rule 15(a), Cal.Rules of Court.) And we ourselves have searched the record for such evidence; we have found none. Since there was no evidence which could support a finding that Mejia was an accomplice, it was proper for the trial court not to instruct on the subject.

Instruction on Weight of Evidence and Motive

A contention is also made that error resulted from the trial court's failure ‘to instruct sua sponte’ on ‘weighing conflicting testimony’ and on ‘motive.’

It has now been repeatedly held that instructions on ‘motive’ need not be given on the court's own motion; indeed, even if requested, it has been held not to be error to refuse such instructions. (See People v. Young, 9 Cal.App.3d 106, 110, 87 Cal.Rptr. 767 and cases there cited.) And we observe no error, at least no prejudicial error, in the trial court's omission, without request therefor, to instruct on ‘weighing conflicting testimony.’

Equal Protection of the Laws

Defendant contends that the punishment prescribed in subdivision (a) of Penal Code section 245,1 i. e., ‘for six months to life’ is violative of the equal protection clause of the Fourteenth Amendment to the United States Constitution.

The constitutional guaranty of equal protection of the laws has been judicially defined to mean that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances in their lives, liberty and property and in their pursuit of happiness. (Gray v. Whitmore, 17 Cal.App.3d 1, 21, 94 Cal.Rptr. 904; see Truax v. Corrigan, 257 U.S. 312, 336–338, 42 S.Ct. 124, 66 L.Ed. 254.) The concept recognizes that persons similarly situated with respect to the legitimate purpose of the law receive like treatment, but it does not, however, require absolute equality. (Douglas v. California, 372 U.S. 353, 357, 83 S.Ct. 814, 9 L.Ed.2d 811; In re Antazo, 3 Cal.3d 100, 110, 89 Cal.Rptr. 255, 473 P.2d 999; Gray v. Whitmore, supra.) Accordingly, a state may provide for differences as long as the result does not amount to invidious discrimination. (Douglas v. California, supra, 83 S.Ct. at p. 356; In re Antazo, supra; Gray v. Whitmore, supra, 17 Cal.App. at p. 22, 94 Cal.Rptr. 904.)

In People v. Jennings, 22 Cal.App.3d 945, 950, 99 Cal.Rptr. 739, it was held that the penalty provision provided for in subdivision (a) of section 245 permitting sentence of from six months to life was not unconstitutional as violative of the equal protection clause of the Fourteenth Amendment, although one convicted of this offense might receive a higher penalty than that permitted under section 217 relating to the greater offense of assault with intent to commit murder. The rationale of Jennings is that the Legislature may have felt that a greater penalty under section 245 was required as a deterrent since the conduct denounced in that statute was more likely to occur than that denounced in section 217. (22 Cal.App.3d at p. 950, 99 Cal.Rptr. 739.)

The recent Supreme Court decision of People v. Schueren, 10 Cal.3d 553, 516 P.2d 833, recognizes the constitutionality of the penalty provisions of section 245. In that case the defendant was charged with a violation of section 217. The jury was instructed that section 245 was a lesser and included offense of the crime proscribed in section 217. The jury found the defendant guilty of violating section 245. As a result of this conviction the defendant received a sentence carrying a greater penalty than if he had been convicted of the offense with which he had been charged. The Supreme Court reduced the sentence to that provided in section 217 upon the ground that the punishment resulting from the conviction was an ‘unusual’ punishment in violation of the California Constitution. (At pp. 560–561, 516 P.2d 833.)

In reaching its decision Schueren applies the following principle: ‘It would seem indisputable that an accused is normally not subject to an increased maximum prison term as a consequence of, inter alia, exercising his constitutional rights and successfully defending against the crime charged.’ (10 Cal.3d at p. 560, 516 P.2d at p. 838.) The high court observed that ‘A statute valid on its face may be unconstitutionally applied [citations], and under the circumstances of this case a prison term exceeding 14 years for assault with a deadly weapon [citation] is an unconstitutional application of the penalty provision of that section.’ (Id. at p. 561, 516 P.2d at p. 838.) The court expressly stated:

‘The People are still free to charge violations of sections 217 and 245 in separate counts. Should a defendant be convicted on both counts thus separately pleaded Penal Code section 654 precludes multiple punishment for a single act, and normally in order to prevent multiple punishment the lesser penalty is stayed in the manner set forth in People v. Niles, 227 Cal.App.2d 749, 754–756, 39 Cal.Rptr. 11 . . ..’ (Id.)

The ‘equality’ guaranteed by the state and federal constitutions is equality under the same conditions and among persons similarly situated with respect to the legitimate purpose of the law. (People ex rel. Younger v. County of El Dorado, 5 Cal.3d 480, 502, 96 Cal.Rptr. 553, 487 P.2d 1193; Purdy & Fitzpatrick v. State of California, 71 Cal.2d 566, 578, 79 Cal.Rptr. 77, 456 P.2d 645; San Bernardino County v. Way, 18 Cal.2d 647, 658, 117 P.2d 354.) Defendants charged with a violation of section 245 are similarly treated with respect to the legitimate objects of that statute. The circumstances giving rise to a prosecution under section 245 are not necessarily the same as those giving rise to a charge under section 217. It may not be assumed that in every case of assault with intent to commit murder there is either ‘an assault . . . with a deadly weapon or instrument or by any means of force likely to produce great bodily injury . . ..’ (§ 245, subd. (a).) A given set of facts may or may not give rise to a right to prosecute for a felonious assault proscribed by section 245 carrying a penalty of imprisonment in the state prison for six months to life, or in a county jail not exceeding one year, or if a deadly weapon is used and charged, augmented by section 12022.5, to an additional term of not less than five years; or for attempted murder, carrying a maximum penalty of 20 years' imprisonment (§§ 190, 664; see People v. Meriweather, 263 Cal.App.2d 559, 563, 69 Cal.Rptr. 880); or for assault with intent to commit murder which carries a penalty of imprisonment in the state prison for not less than one nor more than 14 years (§ 217.)2 In such a case the fact that the prosecutor elects to prosecute the accused for the offense carrying the most grievous penalty is no more a denial of the equal protection of the law than prosecution for sale of narcotics when conviction for possession of the same contraband could be sustained on the same evidence and, in fact, is often the end result of a plea bargain. Similarly, a car thief may not complain because he may have been subjected to imprisonment for more than 10 years for grand theft of an automobile (§§ 487, subd. 3, and 489) when, under the same facts, he might have been subjected to no more than five years under the provisions of section 10851 of the Vehicle Code.

In People v. Floth, 8 Cal.App.2d 600, 601–602, 47 P.2d 817, it was held that section 644 governing habitual criminal and their punishment was not unconstitutional as a denial of equal protection on the ground that the classification of the crimes was arbitrary in that under section 476 a person convicted for issuing fictitious checks with intent to defraud, and having twice before been convicted of forgery, would be an habitual criminal, whereas if he had been previously convicted of issuing fictitious checks and subsequently convicted of forgery he would not be. The rationale of Floth is threefold: It is within the discretion of the Legislature to determine what the interests of the public require and what measures are necessary for the protection of such interests; that numerous authorities hold that increased penalties for an habitual criminal are not violative of any constitutional provision, either state or federal; and that the increased punishment is not for the prior conviction but solely for the aggravation of the second offense which merits a greater punishment. (At p. 602, 47 P.2d 817.)

A felonious assault as described in subdivision (a) of section 245 has been generally considered a lesser and included offense of that described in section 217 because it is difficult to visualize a situation where murder could be committed except by means of force likely to produce great bodily injury.3 (People v. Avila, 178 Cal.App.2d 700, 704, 3 Cal.Rptr. 297; see People v. Watson, 125 Cal. 342, 344, 57 P. 1071; People v. Gordon, 99 Cal. 227, 229, 33 P. 901; People v. Romo, supra, 256 Cal.App.2d 589, 596, 64 Cal.Rptr. 151; People v. Nichelson, 217 Cal.App.2d 273, 278–279, 31 Cal.Rptr. 750 [cert. den. 376 U.S. 923, 84 S.Ct. 682, 11 L.Ed.2d 618].) However, although assault by means of force likely to produce great bodily injury may well be a lesser and included offense within section 217, an assault with a deadly weapon may not be since every assault with intent to commit murder does not imply the employment of a deadly weapon. (People v. Ramos, 25 Cal.App.3d 529, 538, 101 Cal.Rptr. 230.) Accordingly, if a charge under section 217 does not allege the use of a deadly weapon, the crime of assault with a deadly weapon proscribed in section 245 is not a lesser and included offense. (People v. Marshall, supra, 48 Cal.2d 394, 403–405, 309 P.2d 456; People v. Ramos, supra; People v. Heffington, 32 Cal.App.3d 1, 16, 107 Cal.Rptr. 859.)

We observe, moreover, that the offenses proscribed in section 245 and 217 are different. (See People v. Gordon, supra, 99 Cal. 227, 232, 33 P. 901.) Thus, a specific intent is necessary for the offense proscribed by section 217 (People v. Miller, 2 Cal.2d 527, 530, 42 P.2d 308; People v. Sartain, 268 Cal.App.2d 486, 489, 73 Cal.Rptr. 799; People v. Parrish, 87 Cal.App.2d 853, 856, 197 P.2d 804), but no specific intent is necessary for the offense proscribed by section 245. (People v. Rocha, 3 Cal.3d 893, 899, 92 Cal.Rptr. 172, 479 P.2d 372; People v. Jennings, supra, 22 Cal.App.3d 945, 950, 99 Cal.Rptr. 739.)

Cruel or Unusual Punishment

Defendant also contends that the penalty of a maximum of life imprisonment for a felonious assault is a ‘cruel and unusual punishment’ under the Eighth Amendment of the federal Constitution and a ‘cruel or unusual punishment’ under the California Constitution. (Art. I, § 6.)

In considering this contention we first observe that the punishment provided in subdivision (a) of section 245 is one imposed under the Indeterminate Sentence Law. (§§ 1168, 3020–3025.) Such a law has been held not to constitute the infliction of cruel and unusual punishment in violation of the federal Constitution nor cruel or unusual punishment in violation of the California Constitution. (People v. Wade, 266 Cal.App.2d 918, 928–929, 72 Cal.Rptr. 538 [cert. den. 395 U.S. 913, 89 S.Ct. 1758, 23 L.Ed.2d 226].) We also note that although an indeterminate sentence is in legal effect a sentence for a maximum term (In re Lee, 177 Cal. 690, 693, 171 P. 958) and that, accordingly, a sentence under subdivision (a) of section 245 is for the maximum term of life imprisonment, a term of such duration has been held not to constitute cruel or unusual punishment or to be in contravention of either the Eighth Amendment of the federal Constitution or section 6, article I, of the state Constitution. (In re Rosencrantz, 205 Cal. 534, 537, 271 P. 902.) We note, further, that in Ex Parte Mitchell, 70 Cal. 1, 2, 11 P. 488, it was held that a provision of the Penal Code fixing a greater penalty for the crime of assault with a deadly weapon than for the offense of assault to murder or manslaughter, is not a cruel or unusual punishment within the meaning of section 6, article I, of the California Constitution.

Recent decisions of the California Supreme Court have, however, looked at the constitutional proscription against cruel or unusual punishment with closer scrutiny. Thus, in People v. Anderson, 6 Cal.3d 628, 637, 653–654, 100 Cal.Rptr. 152, 493 P.2d 880 [cert. den. 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344], it was held that the death penalty is both cruel or unusual within the state constitutional prohibition against cruel or unusual punishments. In Schueren, as already pointed out, a prison term in excess of 14 years was held to be unusual punishment and unconstitutional under circumstances where the defendant, who was charged with assault with intent to commit murder (Pen.Code, § 217) carrying a maximum term of 14 years, was found guilty of the lesser and included offense of assault with a deadly weapon (§ 245) which subjected him to a maximum term of life imprisonment. (10 Cal.3d at pp. 560–561, 516 P.2d 833.)

The recent case of In re Lynch, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921, holds that a defendant under an indeterminate sentence has in effect been sentenced to the maximum term provided by law and that for the purpose of determining whether the sentence violates the constitutional prohibition against cruel or unusual punishment the constitutional validity of the sentence must be judged by the maximum notwithstanding a lesser term may be fixed by the Adult Authority. (At pp. 415–416, 105 Cal.Rptr. 217, 503 P.2d 921.) In making this determination a ‘disproportionate’ test is a recognized method of determining whether a penalty violates article I, section 6, of the California Constitution. (People v. Anderson, supra, 6 Cal.3d 628, 654, 100 Cal.Rptr. 152, 493 P.2d 880; In re Lynch, supra, at p. 424, 105 Cal.Rptr. 217, 503 P.2d 921; People v. Schueren, supra, 10 Cal.3d 553, 559, 516 P.2d 833.) Accordingly, a punishment may violate the constitutional provision prohibiting cruel or unusual punishment if, though not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch, supra, at p. 424, 105 Cal.Rptr. 217, 503 P.2d 921.)

In applying the ‘disproportionate’ test consideration is given to the degree of danger which the offense and the offender present to society, to the punishments prescribed in the same jurisdiction for more serious offenses, and to punishments prescribed for the same offense in other jurisdiction. (In re Lynch, supra, 8 Cal.3d 410, 425–427, 105 Cal.Rptr. 217, 503 P.2d 921.)

There can be little doubt that the crime of assault with a deadly weapon is a serious offense and that by reason of the violence of the conduct inherent in the crime the offense and the offender present a danger to society. Accordingly, from this viewpoint it may not be said that there is an unconstitutional disproportionality between the offense and the penalty prescribed therefor by subdivision (a) of section 245.

We consider, next, whether the penalty prescribed in subdivision (a) of section 245 is greater than the punishment for other crimes in California which are of far greater seriousness. We observe that the penalty for the following specified crimes which are undeniably of far greater seriousness than the crime of assault with a deadly weapon, is far less than the life maximum inflicted by subdivision (a) of section 245.4 Thus, the punishment for manslaughter (§ 193) is up to 15 years; for assault with intent to commit murder (§ 217) 1 to 14 years; for kidnaping (§ 208) 1 to 25 years; for mayhem (§ 204) up to 14 years; for assault with intent to commit rape, sodomy, mayhem, robbery or grand larceny (§ 220) 1 to 20 years; for assault with caustic chemicals with intent to injure or disfigure (§ 244) 1 to 14 years; for assault on a peace officer or fireman engaged in the performance of his duties (§ 241) up to 2 years in state prison or up to 1 year in the county jail; for battery on a peace officer or fireman engaged in the performance of his duties (§ 243) 1 to 10 years in the state prison or up to 1 year in the county jail; for arson (§ 447a) 2 to 20 years; for burglary by torch or explosives (§ 464) 10 to 40 years; for wrecking a vehicle of a common carrier, causing bodily harm (§ 219.1) 1 to 14 years; for shooting at an inhabited dwelling or occupied building (§ 246) 1 to 5 years in the state prison or up to 1 year in the county jail; for poisoning food or drink with the intent to injure a human being (§ 347) 1 to 10 years; for drunk driving causing bodily injury (Veh.Code, § 23101) up to 5 years in the state prison or up to 1 year in the county jail; for forcible abduction for purposes of prostitution (§ 266a) up to 5 years; and statutory rape (§ 264) up to 50 years in the state prison or up to 1 year in the county jail.

Adverting to the comparison of the challenged penalty with the punishments prescribed for the same or similar offense in other jurisdiction, a study of the statutes of each of our sister states and the District of Columbia reveal that except for the State of Arizona,5 none provide for and none approach the life maximum decreed in California. By contrast, 46 states and the District of Columbia provide that the offense is punishable in terms of years, usually with a maximum of 5 or 10 years and never in excess of 21. With respect to the other two states considered, Delaware and Virginia, our study discloses no statute sufficiently similar upon which an adequate comparison can be based.

The application of the techniques delineated in Lynch clearly discloses a total disparity between the life-maximum sentence currently inflicted by subdivision (a) of section 245 for assault with a deadly weapon and assault by any means likely to produce great bodily injury and the far lighter penalties in force in California for more serious offenses and those in force in other jurisdiction for the offense proscribed in subdivision (a) of section 245. Accordingly, we conclude that the penalty provided for in subdivision (a) of section 245 is both a cruel and an unusual punishment and therefore void under article I, section 6, of the California Constitution. Having reached this conclusion we need not reach the question whether the penalty under discussion is a cruel and unusual punishment under the Eighth Amendment of the federal Constitution.

We here point out that the conclusion reached by us is not contrary to that reached in Jennings. As pointed out in Schueren, the cruel or unusual punishment clause of the California Constitution was not discussed in Jennings where the issue presented was solely whether there was a violation of the provisions of the Fourteenth Amendment of the federal Constitution. (10 Cal.3d at p. 561, fn. 11, 516 P.2d 833.) As pointed out above, Jennings held that the penalty provided for in subdivision (a) of section 245 did not violate the equal protection clause of the Fourteenth Amendment. (22 Cal.App.3d at p. 950, 99 Cal.Rptr. 739.)

The effect of the conclusion reached by us is that the punishment prescribed in subdivision (a) of section 245 is unconstitutional and therefore invalid. We do not declare subdivision (a) of section 245 to be unconstitutional in its entirety. There can be no doubt that the Legislature has the power and authority to provide that a person who commits an assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury is guilty of a felony. The power to define criminal offenses and to prescribe the punishment therefor rests exclusively with the Legislature subject to limitations imposed in the federal and state Constitutions. (Rochin v. California, 342 U.S. 165, 168, 72 S.Ct. 205, 96 L.Ed. 183; People v. Knowles, 35 Cal.2d 175, 181, 217 P.2d 1 [cert. den. 340 U.S. 879, 71 S.Ct. 117, 95 L.Ed. 639]; People v. Babb, 103 Cal.App.2d 326, 328–329, 229 P.2d 843.) In Knowles it is stated that ‘Subject to the constitutional prohibition of cruel and unusual punishment, the Legislature may define and punish offenses as it sees fit.’ (35 Cal.2d at p. 181, 217 P.2d at p. 4.)

We observe that the crime defined in subdivision (a) of section 245 has never been declared to be unconstitutionally invalid. To the contrary, the numerous cases that have construed its meaning have acknowledged the legality of the definition of the crime therein proscribed. The legislative history of the statute discloses that the punishment prescribed has been the subject of frequent amendment. (See Leg. history of § 245.) The punishment we deem to be invalid was provided for by amendment in 1970 when the words ‘for six months to life’ were substituted for ‘not exceeding 10 years.’ (Stats.1970, ch. 796, § 1, p. 1510.) The provision ‘not exceeding 10 years' was provided for by amendment in 1921. (Stats.1921, ch. 89, § 1, p. 86.)

It is well settled that an invalid amendment to a valid statute is ineffective for any purpose and that the effect of an unconstitutional amendment is to leave the statute in force as it existed before the amendment. (Frost v. Corporation Commission, 278 U.S. 515, 525–526, 49 S.Ct. 235, 73 L.Ed. 483; People v. Building Maintenance etc. Assn., 41 Cal.2d 719, 726, 264 P.2d 31; Danskin v. San Diego Unified Sch. Dist., 28 Cal.2d 536, 555, 171 P.2d 885; Miller v. Union Bank & Trust Co., 7 Cal.2d 31, 36, 59 P.2d 1024 [cert. den. 299 U.S. 612, 57 S.Ct. 314, 81 L.Ed. 451]; Rocklite Products v. Municipal Court, 217 Cal.App.2d 638, 642, 32 Cal.Rptr. 183.) This rule applies with equal force to civil and criminal actions. (Rocklite Products v. Municipal Court, supra.) Accordingly, the punishment prescribed for violation of subdivision (a) of section 245 prior to its purported amendment in 1970 remains in full force and effect. The statute prior to said amendment provided that the crime proscribed in subdivision (a) of section 245 is ‘punishable by imprisonment in the state prison not exceeding 10 years, or in a county jail not exceeding one year, or by fine not exceeding five thousand dollars ($5,000), or by both fine and imprisonment.’ Except for the state prison provision the 1970 amendment did not purport to change the alternative punishments prescribed. In the present case the jury specifically found defendant to be guilty of a felony in his violation of subdivision (a) of section 245.

The judgment is modified by changing ‘term provided by law’ to ‘term provided by law, subject to the limitation that defendant's term may not exceed 10 years.’ The judgment as so modified is affirmed.

FOOTNOTES

1.  Unless otherwise indicated all statutory references hereinafter made are to the Penal Code.

2.  Under the provisions of section 12022.5, if a firearm is used in the commission of assault with a deadly weapon the penalty is augmented by a concurrent sentence of not less than five years, thereby increasing the minimum sentence to five years and six months, and retaining the maximum at life. The section provides similar augmentation for use of a firearm in the ‘attempted commission of a . . . murder, . . .’ thereby augmenting the punishment to a term of from 5 years to life. The quoted language may well apply to assault with intent to commit murder, which by its very nature is attempted commission of a murder, and thereby augment the penalty for that offense to a similar minimum and maximum.

3.  A strong argument could be made that the offense described in subdivision (a) of section 245 is a greater offense than that described in section 217 and that such was the intent of the Legislature. Although section 1159 provides that a judge or jury ‘may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, . . .’ (emphasis added), the cases which have construed this section have interpreted the statute to mean that the offense must not only be an included offense but also that it must be a lesser offense. (See People v. Vanderbilt, 199 Cal. 461, 464–469, 249 P. 867; People v. Dong Pok Yip, 164 Cal. 143, 148, 127 P. 1031; People v. St. Martin, 1 Cal.3d 524, 533, 83 Cal.Rptr. 166, 463 P.2d 390; People v. Moran, 1 Cal.3d 755, 763, 83 Cal.Rptr. 411, 463 P.2d 763; People v. Thomas, 58 Cal.2d 121, 127, 23 Cal.Rptr. 161, 373 P.2d 97 [cert. den. 371 U.S. 231, 83 S.Ct. 327, 9 L.Ed.2d 495]; People v. Marshall, 48 Cal.2d 394, 406, 309 P.2d 456; People v. Warren, 223 Cal.App.2d 798, 800, 36 Cal.Rptr. 127; People v. Harris, 191 Cal.App.2d 754, 759, 12 Cal.Rptr. 916; and see People v. Romo, [of another given name] 256 Cal.App.2d 589, 595, 64 Cal.Rptr. 151.) Accordingly, since subdivision (a) of section 245 carries a greater penalty, is it not a more serious offense than that provided in section 217 and, therefore, not a lesser offense?

4.  The penalty prescribed in subdivision (a) of section 245 applies to assault upon the person of another with a deadly weapon or instrument and also to an assault by any means likely to produce gread bodily injury. Specific intent is not essential to these crimes. (People v. Hood, 1 Cal.3d 444, 458, 82 Cal.Rptr. 618, 462 P.2d 370; In re Steven C., 9 Cal.App.3d 255, 263, 88 Cal.Rptr. 97; People v. Finley, 219 Cal.App.2d 330, 340, 33 Cal.Rptr. 31 [cert. den. 377 U.S. 912, 84 S.Ct. 1174, 12 L.Ed.2d 181].) This section focuses on the type of force likely to cause great bodily injury rather than the injury which actually resulted. (People v. Rupert, 20 Cal.App.3d 961, 967, 98 Cal.Rptr. 203.) The offense requires proof only of an attempt to commit violent injury upon the person of another and does not require proof that an injury occurred. (People v. Hood, supra; People v. Herrera, 6 Cal.App.3d 846, 851, 86 Cal.Rptr. 165.) An aggravated assault may be committed without infliction of any physical injury. (People v. Day, 199 Cal. 78, 85, 248 P. 250; People v. Samuels, 250 Cal.App.2d 501, 513, 58 Cal.Rptr. 439 [cert. den. 390 U.S. 1024, 88 S.Ct. 1404, 20 L.Ed.2d 281].)

5.  The Arizona statute provides that a person who commits an assault upon the person of another with a deadly weapon or instrument, or by means or force likely to produce great bodily harm, can be punished by imprisonment in the state prison for not less than one nor more than 10 years, but that if such person is ‘armed’ with a gun or deadly weapon he is punishable by imprisonment in the state prison, for the first offense, for not less than 5 years, for a second offense, not less than 10 years, and for a third or subsequent offense, not less than 20 years to life imprisonment. (Ariz.Rev.Stats.Anno., § 13–249 [1973 Supp.].) Arizona has an indeterminate sentencing structure and specifically provides that where only a minimum sentence is provided the maximum sentence that can be imposed is imprisonment for the defendant's natural life. (Ariz.Rev.Stats. Anno., § 13–1644.)

MOLINARI, Presiding Justice.

SIMS and ELKINGTON, JJ., concur.

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