Alotis

The sole question presented on this appeal is whether the trial court was prohibited from granting probation to defendant under the provisions of section 1203 of the Penal Code. For reasons hereafter stated, we are of the opinion that the trial court had such power, and that its order so providing should be affirmed.

Defendant was charged with assault with the intent to commit murder (Pen. Code, § 217), which is a felony. She pleaded not guilty, and waived a jury trial. During the trial the district attorney, by stipulation, filed an amended information charging, in a second count, assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code § 245). That section provides, in the alternative, that such offense “is punishable by imprisonment in the state prison not exceeding 10 years, or in a county jail not exceeding one year, or by fine ... or by both such fine and imprisonment.” Thus the very section creating the crime makes it a felony or misdemeanor, dependent solely upon the sentence imposed.

Defendant pleaded guilty to the second count, and the first count was dismissed. The court, thereupon, sentenced the defendant to one year in the…