PEOPLE v. COLLIE (1980)

Bertram Ellsworth Collie appeals from a judgment of imprisonment which was rendered after a jury found him guilty of attempted first degree murder of his wife, attempted second degree murder of his daughter (Pen. Code, ss 187, 664) and forcible sodomy (Pen. Code, s 286).

Appellant and Elizabeth Collie were married in 1973. There daughter was born in the same year. The couple separated in September 1977, but thereafter appellant often spent nights at Elizabeth's house.

The offenses now under review occurred on the evening of July 6, 1978, when appellant came to Elizabeth's house and entered her bedroom, where she and the daughter were watching television. As soon as the child saw appellant she went to her own bedroom. Appellant invited Elizabeth to get drunk with him and have sexual intercourse, but she refused. He subsequently bound her feet and hands and forcibly sodomized her. Appellant then taped Elizabeth's face, ransacked the bedroom, and left the room, locking the door. Elizabeth heard him leave the house about midnight.

Elizabeth subsequently smelled gas. She freed herself, unlocked the bedroom door with a pair of scissors, and ran into the kitchen, where the stove burners were turned on, unlit. She turned the burners off and ran to the dining room, where she saw a candle burning on the floor, surrounded by combustible material. She blew out the candle and woke her daughter, who was safe in her own bedroom.

Appellant testified that he had arrived at Elizabeth's home at around 7:30 or 8:00 p.m., and engaged in consensual sexual intercourse with her at around 8:30 or 9:00 p.m. Afterwards he told Elizabeth that he was moving out of her home permanently. He went to a neighborhood bar called the Bosun's Locker and telephoned a friend, Cynthia Morris, and told her he would be coming to her apartment with some ice cream. He then returned to Elizabeth's home and picked up some clothes, went to a neighborhood store and bought ice cream, and traveled by bus to Morris' apartment, arriving at approximately 11:30.

Cynthia Morris testified that appellant had telephoned her at around 11:30 p.m. on July 6 saying that he would be coming to her apartment, and that he arrived at around 12:30 or 12:45 p.m., with some ice cream. In cross-examining Morris, the prosecutor learned that she had been interviewed by a defense investigator. He requested a copy of the investigator's interview notes. Defense counsel objected and requested the court to examine the notes instead of handing them to the prosecutor in their original form, but the court declined to do so and ordered discovery of the notes. On subsequent cross-examination, Morris admitted having told the investigator that appellant had visited her residence with the ice cream of July 8 or 9, rather than July 6. The prosecutor also used the investigator's notes to impeach minor aspects of Morris' testimony; for example, Morris admitted having told the investigator that appellant had telephoned her from a bar called the Illusion Club rather than from the Bosun's Locker.

Appellant contends that the trial court's discovery order violated his privilege against self-incrimination. He relies on Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673; People v. Thornton (1979) 88 Cal.App.3d 795, 152 Cal.Rptr. 77; People v. Chavez (1973) 33 Cal.App.3d 454, 109 Cal.Rptr. 157, and People v. Bais (1973) 31 Cal.App.3d 663, 107 Cal.Rptr. 519.

The Supreme Court held in Prudhomme v. Superior Court, supra, that pretrial prosecution discovery is precluded by the Fifth Amendment privilege against self-incrimination if the information sought could possibly tend to incriminate the defendant, i. e., if discovery “conceivably might lighten the prosecution's burden of proving its case in chief.” (2 Cal.3d at p. 326, 85 Cal.Rptr. at p. 133, 466 P.2d at p. 677.) The court subsequently applied this standard to mid-trial discovery in Allen v. Superior Court (1976) 18 Cal.3d 520, 525, 134 Cal.Rptr. 774, 557 P.2d 65, restating the rule and shifting its basis to independent state grounds (Cal.Const., art. I, s 15). Courts of Appeal have subsequently held that the prosecution may not be accorded discovery of statements by a defense alibi witness that could lighten the burden on the prosecution to prove the guilt of the defendant (People v. Bais, supra, 31 Cal.App.3d at p. 672, 107 Cal.Rptr. 519; accord, People v. Thornton, supra, 88 Cal.App.3d at p. 797, 152 Cal.Rptr. 77), and that the trial court should not order discovery without first examining the demanded material to determine whether any part of it should be excluded (People v. Chavez, supra, 33 Cal.App.3d at p. 459, 109 Cal.Rptr. 157; People v. Bais, supra, 31 Cal.App.3d at p. 673, 107 Cal.Rptr. 519).

It is pertinent that Evidence Code section 915, subdivision (a), precludes the trial court from requiring the defendant to disclose information claimed to be within the privilege against self-incrimination in order to rule on the claim of privilege. (Compare People v. Chavez, supra, 33 Cal.App.3d at p. 457, 109 Cal.Rptr. 157 (offered by defense counsel to submit pretrial statements of defense witnesses for determination as to which portions were subject to discovery).) Any implication to the contrary that might be divined from the opinions in People v. Chavez and People v. Bais is contrary to the statute. However, the defendant retains the burden of showing that the evidence sought might tend to incriminate him. (Evid. Code, s 404.) Thus, if the defendant does not allow the trial court to screen the information which the prosecutor seeks to discover, he must prove by some other means that the information might tend to incriminate him, or the court may order discovery for failure of the defendant to carry his burden of proof. As a practical matter, to carry this burden it may in some cases be necessary for the defendant to offer the information to the court for examination and screening. (See People v. Bais, supra, 31 Cal.App.3d at p. 673, 107 Cal.Rptr. 519.)

Despite Prudhomme and its progeny, appellant's trial counsel did not object to the discovery order on the basis of appellant's privilege against self-incrimination. He asserted that the investigator's notes were “a work product of my office, of my confidential relationship with my client,” and that they did not contain statements by Cynthia Morris. Appellant's claim of error based on violation of his privilege against self-incrimination is thus not cognizable on appeal. (See Evid. Code, s 353; see also 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, ss 276-280, pp. 4264-4269.)

Appellant claims that his trial counsel's failure to assert the privilege against self-incrimination resulted in a denial of effective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.) In making this claim, appellant bears the burden of showing that his trial counsel failed to act in a manner to be expected of a reasonably competent attorney acting as a diligent advocate. Additionally, he must establish that trial counsel's omission resulted in the withdrawal of a “potentially meritorious” defense. (Id.)

At the time the prosecutor requested production of the defense investigator's notes, appellant had already testified in his own behalf. In doing so he waived the privilege against self-incrimination to the extent of the scope of relevant cross-examination. (People v. Thornton (1974) 11 Cal.3d 738, 760-761, 114 Cal.Rptr. 467, 523 P.2d 267, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684 fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1, cert. den. 420 U.S. 924, 95 S.Ct. 1118, 43 L.Ed.2d 393; People v. James (1976) 56 Cal.App.3d 876, 888, 128 Cal.Rptr. 733; People v. Tealer (1975) 48 Cal.App.3d 598, 604, 122 Cal.Rptr. 144.) This waiver encompassed the impeachment of Cynthia Morris' testimony on the same matters to which appellant had testified, through use of her prior inconsistent statements to a defense investigator. Such impeachment was within the scope of relevant cross-examination of appellant. Thus trial counsel's omission to assert the privilege against self-incrimination was not a failure to act in a manner to be expected of a reasonably competent attorney acting as a diligent advocate. Appellant was not denied effective assistance of counsel.

Appellant also contends, as did his trial counsel, that discovery of the defense investigator's notes was proscribed by the work product doctrine. He relies on Code of Civil Procedure section 2016, subdivision (b). The discovery statutes in the Code of Civil Procedure, however, have been held to apply only to civil actions and proceedings. (Clark v. Superior Court (1961) 190 Cal.App.2d 739, 742, 12 Cal.Rptr. 191, cited in People v. Chavez, supra, 33 Cal.App.3d at p. 458, 109 Cal.Rptr. 157.) Even assuming arguendo that section 2016, subdivision (b), is applicable to criminal proceedings, appellant has made no showing that the investigator's notes reflected the “impressions, conclusions, opinions, or legal research or theories” of his attorney. (Code Civ.Proc., s 2016, subd. (b).)

Appellant contends that the trial court abused its discretion when it permitted the prosecutor to question appellant and Cynthia Morris about appellant's wearing of dark glasses at his trial. In cross-examining appellant, the prosecutor asked him why he wore the glasses. The court overruled defense counsel's objection, and appellant responded that his eyes were overly sensitive to light, that he had worn dark glasses since 1955 pursuant to a doctor's orders, and that he always wore them, except when asleep. On further cross-examination appellant admitted that he had not told the Department of Motor Vehicles about his eye problem and did not have a restricted driver's license, and he identified a photograph taken of him in 1971 or 1972 in which he was not wearing dark glasses. Appellant testified on redirect examination that he had removed his glasses for the photograph. Cynthia Morris testified on cross-examination that appellant once told her that he wore dark glasses because he liked them and never mentioned any eye problems that required him to wear dark glasses.

The prosecutor summarized this testimony in his closing argument, and argued that it was relevant to show whether or not appellant's trial testimony was truthful. He said: “When you talk to someone as I talk to you now, if I was wearing dark glasses would you wonder what my eyes were doing, would you wonder where I was looking, would you wonder what I was trying to hide? When I was cross-examining Mr. Collie I was thinking the same thing. Why? Because I couldn't see his eyes. So I was concerned about what kind of a reaction this jury is going to have to someone whose credibility they are asked to judge, when they can't even see what he looks like sitting on the stand answering questions, thinking about answers to questions.” The prosecutor concluded, “I submit to you that is a relevant and material consideration when you are trying to determine whether or not he is trying to tell you the truth in answering questions on the witness stand.”

Appellant argues that the court should have exercised its discretion to prevent cross-examination on the dark glasses issue because the matter was collateral and the prosecutor pursued it solely for the purpose of eliciting an answer to be contradicted. (See People v. Lavergne (1971) 4 Cal.3d 735, 742-744, 94 Cal.Rptr. 405, 484 P.2d 77.) Appellant's reason for wearing the glasses, however, might explain his demeanor while testifying. His demeanor had a bearing on his credibility as a witness. The trial court could reasonably have determined that the prosecutor pursued the topic not for the sole purpose of eliciting an answer to be contradicted, but to prove that appellant was wearing dark glasses while testifying so that he could hide his eyes from the jury. Such proof was admissible. (See Evid. Code, s 780.)

Appellant also argues that impeachment on the dark glasses issue constituted an impermissible use of specific instances of conduct to prove a character trait of dishonesty. (Evid. Code, s 787.) The reference is apparently to the evidence that appellant failed to tell either the Department of Motor Vehicles or Cynthia Morris of his eye problem. But this evidence was not relevant solely to prove a character trait of dishonesty; it was relevant to impeach appellant's testimony that he wore dark glasses for medical reasons.

The court did not abuse its discretion when it permitted cross-examination on the dark glasses issue; hence appellant's further argument that the prosecutor committed misconduct when he pursued the point is without merit.

Appellant contends that the trial court abused its discretion when it discharged a juror and replaced her with an alternate. After the jurors had been sworn and the court had admonished them not to discuss the case with anyone or let anyone talk to them about it, the court adjourned the trial until the next morning. Shortly thereafter a juror entered the courtroom and said, “I am religious, and I consulted my pastor, and I will not judge because I don't like to be judged. But I will say this, I don't make pre-judgments about anyone and I don't like to be judged . . . .” The juror subsequently assured the court that she would be able to sit as a fair juror and decide the case on the evidence before her, but the court discharged her on its own motion because she had violated the court's admonition.

At each adjournment of the court before submission of a cause to the jury, the court must admonish the jurors “not to converse among themselves or with anyone else on any subject connected with the trial, . . .” (Pen. Code, s 1122.) Violation of this admonition raises a presumption that the juror is prejudiced. If the presumption is not rebutted by proof that no prejudice actually resulted, and the juror is not discharged, the defendant is entitled to a new trial. (People v. Pierce (1979) 24 Cal.3d 199, 207, 155 Cal.Rptr. 657, 595 P.2d 91.) The court, however, may avoid the necessity of a new trial by discharging the juror and replacing him with an alternate, because the unrebutted presumption of prejudice establishes good cause for discharge of the juror on the basis that he is unable to perform his duty. (Pen. Code, ss 1089, 1123.)

In the present case the discharged juror informed the court that she had consulted her pastor. Her statement clearly indicated that some subject connected with the case, apparently the duty of jurors, had been discussed. (Compare People v. Quiel (1945) 68 Cal.App.2d 674, 679-680, 157 P.2d 446.) The juror's misconduct raised a presumption of prejudice. Defense counsel argued that the juror should not be discharged because she had indicated to the court that she would be able to act fairly; but without a more specific showing of the substance of her conversation with her pastor, the court could reasonably conclude that the presumption of prejudice had not been overcome. (Cf. People v. Tidwell (1970) 3 Cal.3d 62, 73, 89 Cal.Rptr. 44, 473 P.2d 748.)

Appellant contends that the trial court should have instructed the jury sua sponte on the limited admissibility of evidence of other offenses. On redirect examination of appellant, defense counsel asked whether the police had ever been to his home prior to July 6, 1978; appellant responded that they had, but that they left without taking any action. On recross-examination, the prosecutor brought out testimony that on December 10, 1977, Elizabeth Collie had called the police to her home and told them that appellant had beaten her, but that she did not sign a complaint and appellant was not arrested as a result of the incident.

Appellant relies on a single decision requiring instruction sua sponte on the limited admissibility of evidence of other offenses. (People v. Williams (1970) 11 Cal.App.3d 970, 976-978, 90 Cal.Rptr. 292.) All other decisions on the point have held that the limiting instruction is waived by defense counsel's failure to request it. (See, e.g., People v. Morrisson (1979) 92 Cal.App.3d 787, 790-791, 155 Cal.Rptr. 152; People v. Harris (1977) 71 Cal.App.3d 959, 966; see also People v. Beagle (1972) 6 Cal.3d 441, 456, 99 Cal.Rptr. 313, 492 P.2d 1 (parties conceded that instruction was properly omitted in the absence of a request); People v. Holbrook (1955) 45 Cal.2d 228, 233, 228 P.2d 1; People v. Jackson (1975) 45 Cal.App.3d 67, 70, 119 Cal.Rptr. 71 (“there is a considerable body of law which holds, contrary to People v. Williams, supra, that the limiting instruction is waived if not specifically requested . . .”).)

Closely analogous to the present case is People v. Morrisson, supra, in which the appellant herself had introduced the evidence of other offenses. The court determined that because she was responsible for introduction of the evidence, she waived the limiting instruction by failing to request it. (92 Cal.App.3d at p. 791, 155 Cal.Rptr. 152.) The same rationale is applicable in the present case; additional evidence was elicited by the prosecutor, but only in response to appellant's opening of the subject.

Courts are not required to give instructions sua sponte on particular defenses and their relevance to the charged offense if: (1) it does not appear that the defendant is relying on such a defense; (2) there is no substantial evidence supporting such a defense; and (3) the defense is inconsistent with the defendant's theory of the case. (People v. Sedeno (1974) 10 Cal.3d 703, 716, 112 Cal.Rptr. 1, 518 P.2d 913.) Similarly, courts should not be required to give instructions sua sponte on the limited admissibility of evidence of other offenses where, as here, it does not appear that the prosecutor is relying on such evidence to prove that the accused has a disposition to commit crimes similar to the charged offense. It appears that the prosecutor pursued the matter of Elizabeth's prior summoning of the police to prove a motive for appellant to commit the charged offenses, by introducing evidence tending to prove he was confident that Elizabeth would not pursue a prosecution against him because she had not done so previously. (See generally People v. Schader (1969) 71 Cal.2d 761, 80 Cal.Rptr. 1, 457 P.2d 841.) Sua sponte instruction on limited admissibility was “ ‘ . . . not clearly demanded by the evidence . . . .’ ” (People v. Sedeno, supra, 10 Cal.3d at pp. 716-717, 112 Cal.Rptr. at p. 10, 518 P.2d at p. 922, quoting People v. Crawford (1968) 259 Cal.App.2d 874, 878, 66 Cal.Rptr. 527.)

Appellant contends, and the Attorney General concedes, that the trial court erred when it instructed the jury in the language of former CALJIC No. 22 (rev.), relating to reasonable doubt. The California Supreme Court disapproved this instruction in People v. Brigham (1979) 25 Cal.3d 283, 292, 157 Cal.Rptr. 905, 599 P.2d 100. As in Brigham, however, the error in the present case was harmless. Elizabeth Collie's testimony was substantially corroborated by the testimony of several trial witnesses, and neither of appellant's own witnesses corroborated his partial alibi defense, though both would have been in a position to do so if the defense had been valid. (See discussion, supra.) It is not reasonably probable that a result more favorable to appellant would have been reached had the court not given the disapproved instruction. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

Appellant challenges the trial court's instructions on attempted second degree murder. The court instructed the jury in the language of CALJIC Nos. 8.30 and 8.31 (1974 revision). CALJIC No. 8.30 defines intentional second degree murder: “Murder of the second degree is (also) the unlawful killing of a human being with malice aforethought when there is manifested an intention unlawfully to kill a human being but the evidence is insufficient to establish deliberation and premeditation.” CALJIC No. 8.31 (1974 revision) defines reckless second degree murder: “Murder of the second degree is (also) the unlawful killing of a human being as the direct causal result of an act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with wanton disregard for human life by which is meant an awareness of a duty imposed by law not to commit such acts followed by the commission of the forbidden act despite that awareness. (P) When the killing is the direct result of such an act, it is not necessary to establish that the defendant intended that his act would result in the death of a human being.”

The court modified CALJIC No. 8.31 (1974 rev.) for use on a charge of attempted second degree murder by adding: “When the killing, or the attempted killing in this case, is the direct result of such an act, it is not necessary to establish that the defendant intended that his act would result in the death of a human being.” (Emphasis added.) Thus the jurors were told that they could find appellant guilty of attempt to commit a reckless or “abandoned and malignant heart” (Pen. Code, s 188) second degree murder without finding that appellant intended to kill.

“To establish an attempt to commit a crime, two essential elements must be present: (1) a specific intent to commit that crime, and (2) a direct act done toward its commission.” (People v. Broussard (1977) 76 Cal.App.3d 193, 197, 142 Cal.Rptr. 664, 665 (attempted involuntary manslaughter not a recognizable crime in California).) Thus, early in the history of this state the Supreme Court held that a person must have intended to kill to be guilty of an attempt to commit murder. (People v. Mize (1889) 80 Cal. 41, 43, 22 P. 80; accord, People v. Weston (1917) 32 Cal.App. 571, 578, 163 P. 691.) In a more recent decision a court upheld a conviction for assault with intent to commit murder (Pen. Code, s 217) on the basis that the appellant had acted with “callous indifference to human life,” from which malice aforethought could be inferred. (People v. Logan (1966) 244 Cal.App.2d 795, 798, 53 Cal.Rptr. 549.) One court subsequently acknowledged the question “whether Logan modifies the law as declared in People v. Mize . . . .” (People v. Dorsey (1969) 270 Cal.App.2d 423, 428, 75 Cal.Rptr. 658.) The rule stated in Mize, however, was recently followed, without citation of Mize, in People v. Belton (1980) 105 Cal.App.3d 376, 380, 164 Cal.Rptr. 340, 342, hearing denied July 2, 1980, in which the court held: “Specific intent to kill is a necessary element of attempted murder. It must be proved, and it cannot be inferred merely from the commission of another dangerous crime.” (Cf. People v. Martinez (1980) 105 Cal.App.3d 938, 942-945, 165 Cal.Rptr. 11 (conviction for assault with intent to commit murder requires specific intent to kill).)

The Attorney General argues that conduct exhibiting recklessness or an “abandoned and malignant heart” satisfies the intent element of attempted second degree murder because malice aforethought is to be implied from such conduct. Intent to kill, however, is not a necessary element of malice, and is not to be implied. “One does not attempt to commit a crime by negligently endangering the person or property of another however great the danger or extreme the negligence. A few cases can be found in which the court has taken the position that a ‘reckless disregard of human life may be the equivalent of a specific intent to kill’ but this is quite unsound. It is grounded upon the notion that an act which would be sufficient for murder if death results should be attempted murder if life is not taken. (P) ‘The fallacy in this statement is that while a person may be guilty of murder though there was no actual intent to kill, he cannot be guilty of an attempt to commit murder unless he has a specific intent to kill.’ ” (Persons on Criminal Law (1969) ch. 6, pp. 573-574, quoting Merritt v. Commonwealth (1935) 164 Va. 653, 660, 180 S.E. 395, 398.)

The holdings in People v. Mize and People v. Belton were correct. Attempt to commit a reckless or “abandoned and malignant heart” murder, like attempted involuntary manslaughter, is inherently contradictory and is not a recognizable crime in California. (Cf. People v. Broussard, supra, 76 Cal.App.3d at p. 197, 142 Cal.Rptr. 664.)

The instructional error was harmless as to appellant's conviction for attempt to murder Elizabeth Collie, because the jury fixed the attempted murder in the first degree. But the error was prejudicial as to appellant's conviction for attempted second degree murder. There was no evidence that appellant intended to kill his daughter as well as his wife. Appellant's conviction for attempted second degree murder must therefore be reversed. (People v. Watson, supra, 46 Cal.2d 818, 836, 299 P.2d 243.)

This result absolves appellant of criminal liability for placing his daughter in such grave danger, but “(t)he absence of a law, needless to say, is no proper basis for conviction.” (Perkins, op. cit., ch. 6, p. 574, fn. 6.) An appropriate solution to the problem might be enactment of legislation consistent with the Model Penal Code (Proposed Official Draft 1962), section 211.2, which prescribes criminal liability for “Recklessly Endangering Another Person”: “A person commits a misdemeanor if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury. Recklessness and danger shall be presumed where a person knowingly points a firearm at or in the direction of another, whether or not the actor believed the firearm to be loaded.”

Appellant contends, and the Attorney General concedes, that the court erred when it sentenced him to a six-year term of imprisonment for attempted first degree murder of his wife (Pen. Code, ss 187, 664), because the punishment exceeded the statutorily prescribed term for assault with intent to commit murder (Pen. Code, s 217). The general attempt statute, Penal Code section 664,¹ applies only where no other statute prescribes the punishment for an attempt offense. In the present case another statute, Penal Code section 217,² prescribed the punishment for the attempted first degree murder of Elizabeth Collie, which was indistinguishable from assault with intent to commit murder. (People v. Gray (1979) 91 Cal.App.3d 545, 557-558, 154 Cal.Rptr. 555; accord, People v. Montano (1979) 96 Cal.App.3d 221, 228-233, 158 Cal.Rptr. 47.) Appellant must be resentenced on his conviction for attempted first degree murder pursuant to Penal Code section 217.³

Appellant contends that he is entitled to credit for “good time/work time” spent in presentence custody, in addition to the time already credited against his sentence pursuant to Penal Code section 2900.5. Subject to his factual showing of eligibility for this credit, he is entitled to it as a matter of law. (People v. Sage (1980) 26 Cal.3d 498, 506-507, 165 Cal.Rptr. 280, 611 P.2d 874.) It is unnecessary, however, for the court to resentence appellant on this basis. Pursuant to People v. Sage, supra, modified (Apr. 30, 1980) 27 Cal.3d 144a, 144b, the Department of Corrections should make available to him an administrative procedure by which to ascertain his entitlement to conduct credit.

The judgment is reversed as to appellant's conviction for attempted second degree murder, and is affirmed as to appellant's convictions for attempted first degree murder and forcible sodomy. The cause is remanded to the trial court with directions to resentence appellant on the conviction for attempted first degree murder pursuant to Penal Code section 217.

FOOTNOTES

1.  At the time of the commission of the offenses in the present case, Penal Code section 664 provided in pertinent part:“Every person who attempts to commit any crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempts, as follows:“1. If the offense so attempted is punishable by imprisonment in the state prison, the person guilty of such attempt is punishable by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense so attempted; provided, however, that if the crime attempted is one in which the maximum sentence is life imprisonment or death the person guilty of such attempt shall be punishable by imprisonment in the state prison for a term of five, six, or seven years.”

2.  At the time of the commission of the offenses in the present case, Penal Code section 217 Provided: “Every person who assaults another with intent to commit murder, is punishable by imprisonment in the state prison for two, three, or four years.” (Stats.1976, ch. 1139, s 140.)

3.  Penal Code section 217 has been repealed effective January 1, 1981 (Stats.1980, ch. 300, s 2), but is still controlling in the present case. (Cf. In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948.)

CHRISTIAN, Associate Justice.

RATTIGAN, Acting P. J., and POCHE, J., concur.