Harris

This is an appeal from a judgment of conviction of attempted robbery and of simple assault (a misdemeanor).

In an information filed in Los Angeles on November 16, 1967, defendant was charged in count 1 with assault with intent to commit murder (§217, Pen. Code) and in count 2 with attempting to rob York Wallace. Defendant pleaded not guilty and in a jury trial defendant was found guilty of simple assault, a lesser included offense, as to count 1 (§ 240, Pen. Code) and guilty as charged as to count 2 (§ 664, Pen. Code). Probation was denied and defendant was sentenced to the state prison for the term prescribed by law as to count 2 and to the county jail for 180 days as to count 1; the sentence as to count 1 was stayed pending any appeal as to the count 2 charge and further stayed if the judgment as to count 2 be affirmed. A timely notice of appeal was filed.

A résumé of some of the facts is as follows: at about 2 a.m. on October 26, 1967, York Wallace parked his automobile under a street light in front of his house at 2032 East 120th Street in Los Angeles. He started to take from his car some groceries which he had just purchased and as he did so he felt *835 an object in Ms…