What is the test for determining whether a defendant is convicted of attempted second degree murder?

Preliminarily, we note the jury was neither instructed on the distinction between first and second degree murder nor required to specify a degree in rendering the verdict, since the matter was submitted on an attempted second degree theory. Therefore, section 1157 applies: " 'Whenever a defendant is convicted of a crime which is distinguished into degrees, the jury ... must find the degree ..... Upon the failure of the jury ... [to do so] ... the degree of the crime of which the defendant is guilty, shall be deemed to be of the lesser degree.' " However, since the punishment for attempted murder is five, seven or nine years, regardless of whether the murder attempted was of [137 Cal.App.3d 472] the first or second degree, the crime of attempted murder is not in fact divided into degrees. (Compare People v. Wein, 69 Cal.App.3d 79, 93, 137 Cal.Rptr. 814.)