In Re Smith

McCOMB, J.

James Milton Smith was convicted of violating section 4501 of the Penal Code (aggravated assault by a prisoner serving a sentence of less than life). He now petitions for a writ of habeas corpus, seeking his discharge from custody.

Facts:

In December 1959, petitioner, then 19 years old, was convicted of attempted robbery and committed to the Youth Authority. After being confined in the Correctional Training Facility at Soledad, he was transferred in April 1962 by the Authority to San Quentin, without being returned to the trial court for resentencing. (Welf. & Inst. Code, § 1737.1.)

In May 1963 petitioner committed an assault. On April 13, 1964, he was convicted of violating section 4501 of the Penal Code and sentenced to state prison for the term prescribed by law. He is presently confined in the California Men’s Colony, Los Padres.

On April 30, 1964, petitioner was discharged from his Youth Authority commitment.

Questions:

First. Was

petitioner’s conviction pursuant to section 4501 of the Penal Code invalid?

No.

Petitioner contends that he did not come within the terms of section 4501 of the Penal Code as it read prior to amendment in 1963.

Prior to amendment in 1963, the section read:

“Every person undergoing a sentence of less than life in a state prison

of this State 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, shall be guilty of a felony and shall be imprisoned in the state prison not less than one year.” (Italics added.)

[439]

After petitioner committed the assault, an amendment to section 4501, adopted in 1963, became effective. Under it, the first sentence was amended to read: “Every person

confined