STANIFORTH, J. I concur in the judgment but would add these further predicates for Justice Lord’s sound conclusion that Singleton was properly sentenced for the crime he committed and was convicted— attempted murder in the first degree (Pen. Code, §§ 664/187). Singleton’s contention, stripped of all verbage, is that he is entitled as a matter of law to be sentenced to a lesser term for the uncharged, untried, heretofore unmentioned offense of assault with intent to commit murder. (Pen. Code, § 217.)
This contention blithely ignores the 108-year history of unquestioned enforcement of each of the 2 statutes here under scrutiny as separate and distinct offenses. Singleton offers neither logic nor appeal to right reason to justify excision of the district attorney’s authority and duty to charge, seek conviction and appropriate sentence for an attempted murder (Pen. Code, §§ 664/187) as the statute specifically provides, if he in good faith believes he has evidence to prove the elements of that crime.
Singleton reasons (1) “[t]he conviction and sentence for the general offense of attempted first degree murder rather than the more specific [427]offense of an -assault with the intent to [commit] murder under Penal Code section 217 was error” and (2) Penal Code section 664 is limited in applicability to those cases where no provision is made for the punishment of attempts. This reasoning is flawed for each of the premises assumed are faulty.
Singleton "was charged and found guilty of attempted murder in the first degree. He was not charged alternatively with, nor was the jury instructed or requested to be instructed on, the Penal Code section 217 offense of assault with intent to commit murder. Thus People v. Meriweather (1968) 263 Cal.App.2d 559, 563 [69 Cal.Rptr. 880]; People v. Montano (1979) 96 Cal.App.3d 221 [158 Cal.Rptr. 243]; People v. Gray (1979) 91 Cal.App.3d 545 [154 Cal.Rptr. 555]; and People v. Johnson (1978) 81 Cal.App.3d 380 [146 Cal.Rptr. 476], are not factually or legally in point. This case involves neither double conviction nor double punishment, therefore reference to Penal Code section 654 is irrelevant. The sole issue is whether the district attorney may charge an attempted murder, prove it factually beyond a reasonable doubt to a jury, then be met for the first time on appeal with the contention that defendant is entitled to be sentenced for an uncharged, untried, unproven offense.
Discussion
I
What in substance Singleton asks is to be resentenced upon an uncharged, untried offense where not a hint of this issue has been raised at the trial court level. No claim was made that a Penal Code section 217 charge, as a lesser included offense, was lodged in the allegations of the indictment. No instructions on a lesser included offense were requested. No request for sentence under Penal Code section 217 was made at any time. This issue is now raised for the first time on appeal. Singleton is precluded as a matter of law from now raising this issue. (People v. Rogers (1978) 21 Cal.3d 542, 547 [146 Cal.Rptr. 732, 579 P.2d 1048]; People v. Maynarich (1978) 83 Cal.App.3d 476, 480 [147 Cal.Rptr.823].)
II
If these omissions are overlooked, Singleton’s contention remains still unsound. Attempted murder and assault with intent to commit murder are in law two separate distinct offenses. The first (attempted murder) [428]is of common law origin; the second has purely statutory beginnings but common law interpretations. Each offense has its own distinct and essential elements. This is true whether we use as a yardstick the statutory definitions or the judicial interpretation of code language.
In the first place, the intent requirements for attempted murder in the first degree, attempted murder in the second degree and assault with intent to commit murder are significantly different.
In People v. Martinez (1980) 105 Cal.App.3d 938, 942 [165 Cal.Rptr. 11], the court stated: “Several California cases and many criminal scholars have acknowledged a distinction between the intent required for the completed crime of murder and that required for a mere attempt.” (Fn. omitted.)
And the author of the Annotation, What Constitutes Attempted Murder, 54 A.L.R.3d 612, 621, points out this verity: “Often at least as significant as statutes specifically dealing with attempts generally, attempts to murder, and related crimes, are the statutes defining murder in its various degrees, since the degree of murder allegedly attempted has a strong bearing on the necessary allegations and proof relating to intent.” (Italics added; fns. omitted.)
In People v. Mize (1889) 80 Cal. 41, 43 [22 P.80], the defendant was charged with Penal Code section 217, assault with intent to commit murder. The Supreme Court held: “‘To constitute murder, the guilty person need not intend to take life; but to constitute an attempt to murder, he must so intend.’ [Citation.] 'The wrong-doer must specifically contemplate taking life-, and though his act is such as, were it successful, would be murder, if in truth he does not mean to kill, he does not become guilty of an attempt to commit murder.'’ [Citation.]” (Italics added.)
The Mize rule has been followed for over 91 years and is sound law today. (See People v. Weston (1917) 32 Cal.App. 571, 578 [163 P. 691]; People v. Miller (1935) 2 Cal.2d 527, 530 [42 P.2d 308]; People v. Dorsey (1969) 270 Cal.App.2d 423, 428 [75 Cal.Rptr. 658]; People v. Sartain (1968) 268 Cal.App.2d 486, 489 [73 Cal.Rptr. 799]; People v. Martinez (1980) 105 Cal.App.3d 938, 942 [165 Cal.Rptr. 11].)
In People v. Sartain, supra, at page 489, it was held: “True it is that assault with a deadly weapon with intent to commit murder requires a [429]specific intent to kill (Pen. Code, § 217; People v. Mize, 80 Cal. 41, 44.. People v. Pineda, 41 Cal.App.2d 100, 104. . .; People v. Alexander, 41 Cal.App.2d 275, 281...), however, the ‘murder’ which a defendant must intend need not show premeditation. (See People v. Bernard, 28 Cal.2d 207, 214...; People v. Hoxie, 252 Cal.App.2d 901.. ..)” (Italics added.)
And in People v. Heffington (1973) 32 Cal.App.3d 1, 11 [107 Cal.Rptr. 859], the court explained: “The crime of assault with intent to commit murder requires proof of a specific intent to murder, but without regard to any distinction between first and second degree murder. [Citations.] Both first and second degree murder require existence of the state of mind known as malice; aside from felony murder, a specific intent to kill is a necessary ingredient of first degree murder but not of second degree murder. [Citations.] Hence, it is incorrect to say that assault with intent to commit murder requires proof of specific intent to kill; more accurately, one should speak of specific intent to commit murder. [Citations.]”
Thus law of attempts requires a specific intent of the nature and quality as required for commission of the attempted crime. (People v. Camodeca (1959) 52 Cal.2d 142, 145 [338 P.2d 903].) Where the charge is attempted murder in the first degree, the intent, the state of mind, requisite to such offense must be that as would authorize conviction for murder in the first degree had the deed been accomplished.
And if greater weight of reason is needed, the annotator in California Jurisprudence 3d states: “[T]o establish a particular degree of a crime such as [attempted] first degree murder, or to make applicable a particular statutory provision for punishment,” a specific intent is required. (17 Cal.Jur.3d, Criminal Law, § 60, p. 107.) In the case at bench the state of mind—the intent required by Penal Code section 189, paragraph 1, is an essential element of the proof of attempted murder in the first degree. Without such intent, an attempted murder in the first degree would not be committed, the greater punishment provided by section 664, subdivision 1, could not be imposed. At trial, distinctive instructions conformable to the different intent requirements are necessary. (People v. Mize (1889) 80 Cal. 41, 44-45 [22 P. 80].)
These two crimes are legally distinct for these further arcane reasons. An attempt to commit a crime is committed albeit for some reason not discernible to the wrongdoer, the crime is not capable of commission. [430](People v. Lee Kong (1892) 95 Cal. 666 [30 P. 800]; In re Magidson (1917) 32 Cal.App. 566 [163 P. 689]; People v. Grant (1951) 105 Cal.App.2d 347, 355 [233 P.2d 660]; People v. Fiegelman (1939) 33 Cal.App.2d 100 [91 P.2d 156].) In contrast, an assault to be effective must be coupled with the wrongdoer’s present ability to commit the violent injury. (Pen. Code, § 240; 20 Cal.Jur.3d, Criminal Law, § 1724, p. 250.)
The present ability to do the act threatened by an assault is not lacking because such act was in some manner prevented. (People v. Yslas (1865) 27 Cal. 630, 633, 634; People v. Bradley (1945) 71 Cal.App.2d 114, 120 [162 P.2d 38].)
The legislative drafters as well as the later judicial interpretations demonstrated a full knowledge of the legal definition of an “assault.” (People v. Yslas, supra, 27 Cal. 630, 633, 634.) No harmful or offensive touching was or is required to commit an assault. Thus, a less egregious offense may be encompassed within a section 217 Penal Code charge.
The scholarly observations of further distinctions between an “assault” and an “attempt,” are of little aid here (In re James M. (1973) 9 Cal.3d 517, 522 [108 Cal.Rptr. 89, 510 P.2d 33]), for the Legislature has since 1872 declared attempted first degree murder to be an offense punishable by imprisonment for a specified term while the crime of assault with intent to commit murder has been designated as an offense punishable by a specific lesser term. Subsequent amendments to these statutes have recognized this difference and maintained the relative relationship of greater to lesser penalty. A plethora of reported decisions have enforced these two statutes over a 108-year period and attest to the distinctiveness of the 2 offenses.
In sum, although assault with intent to commit murder may be related superficially to attempted murder, yet the Legislature has created and judicial interpretations have maintained two distinct offenses, two distinct and most specific punishments.
Ill
A question remains whether assault with intent to commit murder is a necessarily included offense of the charged attempted murder requiring the trial court to treat sua sponte with Penal Code section 217.
[431]Two types of necessarily included offenses have been recognized in this state. First, where an offense cannot be committed without committing another offense, the latter offense is an included offense. (People v. West (1970) 3 Cal.3d 595, 612 [91 Cal.Rptr. 385, 477 P.2d 409].) Second, a lesser offense is necessarily included if it is within the offense specifically charged in the information. (People v. Cannady (1972) 8 Cal.3d 379, 390 [105 Cal.Rptr. 129, 503 P.2d 585]; People v. St. Martin (1970) 1 Cal.3d 524, 536 [83 Cal.Rptr. 166, 463 P.2d 390]; Witkin, Cal. Criminal Procedure (1963) §§ 542, 543, pp. 553-555.)
The foregoing analysis of the precise elements of two crimes compels this conclusion: Attempted murder in the first degree does not necessarily encompass all of the essential elements of assault with intent to commit murder. Attempted murder can be (and was here) committed without an “assault” element being present.
It has long been the rule that an assault with intent to commit a crime necessarily embraces an “attempt”—in a generic sense, at least, if not in legal parlance—to commit that crime; but the converse is not equally true. An attempted murder under Penal Code sections 664/187 does not necessarily include an assault with intent to commit murder as defined by Penal Code section 217. (People v. Akens (1914) 25 Cal.App. 373, 374 [143 P. 795]; People v. Rupp (1953) 41 Cal.2d 371, 382 [260 P.2d 1]; People v. Johnson, supra, 81 Cal.App.3d 380, 388 [146 Cal.Rptr. 476]; People v. Meriweather, supra, 263 Cal.App.2d 559, 563 [69 Cal.Rptr. 880]; People v. Provencher (1973) 33 Cal.App.3d 546, 549 [108 Cal.Rptr. 792].) The pleadings here do not charge, nor did defendant perceive the indictment as charging a section 217 assault as a lesser included offense.
By either test, the assault with intent to commit murder was not a necessarily included offense of the charged attempted murder in the first degree; therefore Singleton has established neither a legal nor a factual basis to claim error. He was not entitled to sua sponte instructions on a noncharged Penal Code section 217 assault nor is he entitled now to demand the lesser sentence as provided in section 217. He could with equal lack of reason or authority argue a trial court duty to sentence him for simple assault or battery—or disturbing the peace.
IV
Nor was the district attorney required to prosecute Singleton for the lesser offense of Penal Code section 217. He was entitled to charge [432]what in good faith he felt the evidence would prove. Whether to prosecute and what charge(s) to file are decisions that generally rest in the prosecutor’s discretion. (Daly v. Superior Court (1977) 19 Cal.3d 132, 148 [137 Cal.Rptr. 14, 560 P.2d 1193].) To agree with Singleton’s contention is to hold that a defendant has the power to determine what crime is to be charged against him. This is a power that “resides exclusively with the prosecution.” (People v. West, supra, 107 Cal.App.3d 987, 993 [165 Cal.Rptr. 24]; see also People v. Adams (1974) 43 Cal.App.3d 697, 707 [117 Cal.Rptr. 905].)
“Just as a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution, neither is he entitled to choose the penalty scheme under which he will be sentenced.” (United States v. Batchelder (1979) 442 U.S. 114, 125 [60 L.Ed.2d 755, 766, 99 S.Ct. 2198, 2204].)
V
Singleton’s reliance upon People v. Montano, supra, 96 Cal.App.3d 221 [158 Cal.Rptr. 47], and its progeny is misplaced. The soundness of the Montano decision rests in part on the applicabilities of a rule of statutory construction, to wit: prosecution under a general statute is precluded by a special statute where the general statute covers the same matter as, and thus conflicts with, the special statute. (People v. Ruster (1976) 16 Cal.3d 690, 694 [129 Cal.Rptr. 153, 548 P.2d 353, 80 A.L.R.3d 1269].) This rule is irrelevant, has no application where disparate specific punishments are imposed for two distinct offenses. A special statute does not supplant a general statute unless all of the elements of the general statute are included in the special statute. (People v. Gilbert (1969) 1 Cal.3d 475, 480 [82 Cal.Rptr. 724, 462 P.2d 580]; People v. Ruster, supra, 16 Cal.3d 690, 694.) While Penal Code section 664 is in part a “general” section in that the one-half term is mandated for attempts generally, yet where the attempted crime is murder in the first degree, section 664, subdivision 1, is most specific. Where the maximum sentence for the crime attempted “is life imprisonment or death,” such attempt is punishable not by the general “one-half” term but by the most specific term of “five, six or seven” years.1 This then is no mere “general” sanction covering attempts generally but applies only to certain most specific crimes. Murder in the first degree is one of the very few crimes designated, singled out for this extreme penalty.
[433]In what can be none other than clear and convincing evidence of profound disagreement with, disapproval of the misreading of the legislative mind by the Montano court, the Legislature has repealed not only Penal Code section 217 but also Penal Code sections dealing with related assaults (Pen. Code, §§ 216 and 221) relied upon by the Montano court in determining not to enforce the greater penalty of attempted murder. (See Stats. 1980, ch. 300, eff. Jan. 1, 1981.) This legislative act of repeal precludes, after January 1, 1981, judicial misreading of legislative intent at least as to the enforceability of the law against the crime of attempted murder. Unhappily in this process, the people of this state have lost several most precise weapons against assaultive crime.
VI
Finally, if there is need for further lawful reason to deny Singleton’s claim to a reduced sentence, then the substantial evidence rule provides it. The evidence must be viewed in the light most favorable to the jury’s verdict of attempted murder. The act of chopping off the girl’s arms— while evidencing a whole series of most heinous crimes—could, arguably, not show the requisite intent to commit murder in the first degree. It is Singleton’s act of abandoning the bleeding, armless child in a wilderness, shoved in a tunnel that proves beyond reasonable doubt the requisite intent for attempted murder in the first degree. Although not of an assaultive quality, that malignant act supplies the requisite state of mind to meet the legal requisites of attempted murder in the first degree and thus warrants the greater punishment.
Singleton was correctly charged, fairly tried, and most mercifully dealt with on judgment day. I concur in affirming the judgment of conviction and sentence imposed.
Appellant’s petition for a hearing by the Supreme Court was denied January 14, 1981.
Penal Code section 664, subdivision 1, was amended effective 1979 to increase these specific terms.