Opinion
LORD, J.
In October 1978, the Stanislaus County Grand Jury returned an indictment charging Singleton with these offenses: Count I, forcible rape (Pen. Code,1 § 261, subd. 2); count II, forcible oral copulation (§ 288a, subd. (c)); count III, kidnaping (§ 207); count IV, sodomy (§ 286, subd. (c)), count V, forcible oral copulation (§ 288a, subd. (c)); count VI, mayhem (§ 203); and count VII, attempted mur[421]*421der (§§ 664, 187). The indictment also alleged that Singleton used a deadly weapon in committing the offenses charged in counts III, VI, and VII, and inflicted great bodily injury in committing the offenses charged in counts III and VII.
A plea of not guilty was entered to all counts. Because of the publicity attendant the case, a change of venue was granted to San Diego County. The trial resulted in a conviction in March 1979 on all counts. The jury found Singleton did not use a deadly weapon or inflict great bodily injury in the kidnaping but did use a deadly weapon in the commission of mayhem and attempted murder and also inflicted great bodily injury in the attempted murder. The attempted murder was found to be of the first degree.
In April 1979, Singleton’s motion for referral as a mentally disordered sex offender under Welfare and Institutions Code section 6300 et seq. was denied. Thereupon he was sentenced to a total of fourteen and one-third years in prison as follows: Count VII, attempted murder, ten years, including six years for the offense, one year for the use of a weapon and three years for the infliction of great bodily injury; count I, rape, one and one-third years, consecutively; counts II and V, oral copulation, consecutive terms of one year each; count IV, sodomy, a consecutive term of one year. Sentences imposed on count VI, mayhem, and count III, kidnaping, were stayed pending completion of the sentences on the other counts. Singleton was credited with 225 days calculated upon 193 actual days’ credit.
At trial the evidence disclosed that in September 1978, 15-year-old Mary V. was hitchhiking along a freeway in the San Francisco Bay Area, intending to go to Los Angeles by way of Interstate 5. Singleton, driving a van, picked her up. After a stop at Singleton’s house in San Pablo, they went on toward Interstate 5. Mary fell asleep and on awakening discovered Singleton had passed by Interstate 5 and was going toward Nevada where, Mary learned, he also had a residence. Mary objected. They returned to the junction and proceeded south on Interstate 5. Singleton stopped along the highway and both got out to relieve themselves. As Mary was bending over to tie her shoe, Singleton struck her with his fist about the head and back several times. He threw her into the van, tied her hands behind her back and tore at her clothes. Singleton forced his penis into her mouth and then into her vagina.
Thereafter Singleton drove the van into a canyon and parked. He again forced his penis into Mary’s mouth and into her vagina. Then he [422]*422committed an act of sodomy. Afterwards Mary kept asking Singleton if he would set her free. Singleton made her drink some liquor. She passed out and awoke to find herself being dragged about 50 yards from the van. Singleton cut the ropes from her hands. He took a hatchet, chopped off Mary’s left hand, then her right. He threw her over the side of the road, climbed down, shoved her into a drainage culvert and told her she was free.
Mary made her way out of the culvert after Singleton left and after hours of wandering was discovered and given medical aid. She was hospitalized one month.
Singleton was identified through a description given by Mary. His residence in San Pablo was searched. Mary’s cigarettes were found there and also remnants of burnt clothing that appeared to be hers. Meanwhile, Singleton cleaned up the van with the help of a neighbor at his Nevada residence. He removed the carpet and washed it and the inside of the van. A few days thereafter he tried to kill himself by an overdose of sleeping pills. Singleton was eventually taken into custody by the Nevada police.
Singleton’s testimony was not offered at the trial but his statements to police officers were received. These statements were consistent with Mary’s as to early events but went on to describe picking up two male hitchhikers, Larry and Pedro. Singleton said they stopped at a bar, bought some dope, smoked the dope and drank, stopped in a canyon and then paid for sex with Mary. Singleton said he thereafter passed out and awoke to find Larry driving the van toward San Francisco. Mary’s clothes were in the van but she was gone. Larry told Singleton Mary had her hands in the till and was sent to Los Angeles. Singleton left the two hitchhikers in San Francisco.
Singleton makes four contentions on appeal. One is that the prosecutor made improper comments in argument about Singleton’s failure to testify. The prosecutor, in closing argument, said: “That’s why b gave these two challenges. I said if there is a way out for you, Mr. Singleton, then by Heavens you come out and say it. Your attorneys have the challenge of explaining the two hitchhikers you have spoken of during Mr. Singleton’s statement to the police. They did not mention it. They had the challenge to talk about Mr. Singleton’s state of mind, which as Mr. Singleton stated on his interview with the police that he was drunk and had passed out while two hitchhikers did it. And so we were to join [423]*423issue on that. And that, ladies and gentlemen, has not been touched on. Instead, who has been placed on trial? Mary V.”
Singleton relies on Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229], holding that comments on a defendant’s failure to testify are error. Griffin does not, however, prohibit every comment on the failure to present a defense. A prosecutor may comment on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. (People v. Vargas (1973) 9 Cal.3d 470, 475 [108 Cal.Rptr. 15, 509 P.2d 959].) So, too, may a prosecutor point out in final argument that defense counsel have been silent in their argument on crucial factors in the evidence, and thus have, presumably, no explanation to offer for these factors.
Singleton’s statements to the police give rise to two possible defenses: That others committed the offenses charged and Singleton’s capacity was diminished by intoxication. Reading the prosecutor’s arguments as a whole, it is clear his challenges were directed to counsel to demonstrate why Singleton’s statements should be deemed credible. In the prosecutor’s language quoted above there is one phrase that could, with some strain, be interpreted as a suggestion Singleton should have presented his testimony. Assuming, however, that it was so interpreted by the jury, the evidence of guilt was overwhelming. The remark could not have had significant impact on the jurors. We find the prosecutor’s comments were harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065]; People v. Vargas, supra.)
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Opinion
LORD, J.
In October 1978, the Stanislaus County Grand Jury returned an indictment charging Singleton with these offenses: Count I, forcible rape (Pen. Code,1 § 261, subd. 2); count II, forcible oral copulation (§ 288a, subd. (c)); count III, kidnaping (§ 207); count IV, sodomy (§ 286, subd. (c)), count V, forcible oral copulation (§ 288a, subd. (c)); count VI, mayhem (§ 203); and count VII, attempted mur[421]*421der (§§ 664, 187). The indictment also alleged that Singleton used a deadly weapon in committing the offenses charged in counts III, VI, and VII, and inflicted great bodily injury in committing the offenses charged in counts III and VII.
A plea of not guilty was entered to all counts. Because of the publicity attendant the case, a change of venue was granted to San Diego County. The trial resulted in a conviction in March 1979 on all counts. The jury found Singleton did not use a deadly weapon or inflict great bodily injury in the kidnaping but did use a deadly weapon in the commission of mayhem and attempted murder and also inflicted great bodily injury in the attempted murder. The attempted murder was found to be of the first degree.
In April 1979, Singleton’s motion for referral as a mentally disordered sex offender under Welfare and Institutions Code section 6300 et seq. was denied. Thereupon he was sentenced to a total of fourteen and one-third years in prison as follows: Count VII, attempted murder, ten years, including six years for the offense, one year for the use of a weapon and three years for the infliction of great bodily injury; count I, rape, one and one-third years, consecutively; counts II and V, oral copulation, consecutive terms of one year each; count IV, sodomy, a consecutive term of one year. Sentences imposed on count VI, mayhem, and count III, kidnaping, were stayed pending completion of the sentences on the other counts. Singleton was credited with 225 days calculated upon 193 actual days’ credit.
At trial the evidence disclosed that in September 1978, 15-year-old Mary V. was hitchhiking along a freeway in the San Francisco Bay Area, intending to go to Los Angeles by way of Interstate 5. Singleton, driving a van, picked her up. After a stop at Singleton’s house in San Pablo, they went on toward Interstate 5. Mary fell asleep and on awakening discovered Singleton had passed by Interstate 5 and was going toward Nevada where, Mary learned, he also had a residence. Mary objected. They returned to the junction and proceeded south on Interstate 5. Singleton stopped along the highway and both got out to relieve themselves. As Mary was bending over to tie her shoe, Singleton struck her with his fist about the head and back several times. He threw her into the van, tied her hands behind her back and tore at her clothes. Singleton forced his penis into her mouth and then into her vagina.
Thereafter Singleton drove the van into a canyon and parked. He again forced his penis into Mary’s mouth and into her vagina. Then he [422]*422committed an act of sodomy. Afterwards Mary kept asking Singleton if he would set her free. Singleton made her drink some liquor. She passed out and awoke to find herself being dragged about 50 yards from the van. Singleton cut the ropes from her hands. He took a hatchet, chopped off Mary’s left hand, then her right. He threw her over the side of the road, climbed down, shoved her into a drainage culvert and told her she was free.
Mary made her way out of the culvert after Singleton left and after hours of wandering was discovered and given medical aid. She was hospitalized one month.
Singleton was identified through a description given by Mary. His residence in San Pablo was searched. Mary’s cigarettes were found there and also remnants of burnt clothing that appeared to be hers. Meanwhile, Singleton cleaned up the van with the help of a neighbor at his Nevada residence. He removed the carpet and washed it and the inside of the van. A few days thereafter he tried to kill himself by an overdose of sleeping pills. Singleton was eventually taken into custody by the Nevada police.
Singleton’s testimony was not offered at the trial but his statements to police officers were received. These statements were consistent with Mary’s as to early events but went on to describe picking up two male hitchhikers, Larry and Pedro. Singleton said they stopped at a bar, bought some dope, smoked the dope and drank, stopped in a canyon and then paid for sex with Mary. Singleton said he thereafter passed out and awoke to find Larry driving the van toward San Francisco. Mary’s clothes were in the van but she was gone. Larry told Singleton Mary had her hands in the till and was sent to Los Angeles. Singleton left the two hitchhikers in San Francisco.
Singleton makes four contentions on appeal. One is that the prosecutor made improper comments in argument about Singleton’s failure to testify. The prosecutor, in closing argument, said: “That’s why b gave these two challenges. I said if there is a way out for you, Mr. Singleton, then by Heavens you come out and say it. Your attorneys have the challenge of explaining the two hitchhikers you have spoken of during Mr. Singleton’s statement to the police. They did not mention it. They had the challenge to talk about Mr. Singleton’s state of mind, which as Mr. Singleton stated on his interview with the police that he was drunk and had passed out while two hitchhikers did it. And so we were to join [423]*423issue on that. And that, ladies and gentlemen, has not been touched on. Instead, who has been placed on trial? Mary V.”
Singleton relies on Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229], holding that comments on a defendant’s failure to testify are error. Griffin does not, however, prohibit every comment on the failure to present a defense. A prosecutor may comment on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. (People v. Vargas (1973) 9 Cal.3d 470, 475 [108 Cal.Rptr. 15, 509 P.2d 959].) So, too, may a prosecutor point out in final argument that defense counsel have been silent in their argument on crucial factors in the evidence, and thus have, presumably, no explanation to offer for these factors.
Singleton’s statements to the police give rise to two possible defenses: That others committed the offenses charged and Singleton’s capacity was diminished by intoxication. Reading the prosecutor’s arguments as a whole, it is clear his challenges were directed to counsel to demonstrate why Singleton’s statements should be deemed credible. In the prosecutor’s language quoted above there is one phrase that could, with some strain, be interpreted as a suggestion Singleton should have presented his testimony. Assuming, however, that it was so interpreted by the jury, the evidence of guilt was overwhelming. The remark could not have had significant impact on the jurors. We find the prosecutor’s comments were harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065]; People v. Vargas, supra.)
Singleton next contends the trial court abused its discretion in denying the motion to certify him for a determination whether he was a mentally disordered sex offender, pursuant to Welfare and Institutions Code section 6300 et seq. In support of the motion to certify Singleton submitted a psychiatrist’s report which stated “... it is possible the defendant will meet the psychiatric criteria generally accepted in San Diego for classification as a mentally disordered sex offender.” (Italics added.) But the court also had before it the report of another psychiatrist to the effect defendant “appeared well oriented in all spheres and showed no signs of any delusions, hallucinations, disturbances in memory... or thought processes.” Furthermore, Singleton, age 51 at the time of the denial of the motion, had no prior history of sex crimes and according to the probation report considered by the trial court, had [424]*424a fairly normal sex life with episodes of violence apparently triggered by excessive use of alcohol.
Singleton cites People v. Barnett (1946) 27 Cal.2d 649 [166 P.2d 4], where an abuse of discretion was found in denying a motion to certify. In Barnett, however, the defendant was convicted of numerous sex offenses with multiple victims and three physicians reported their opinions to the trial court that the defendant was a sexual psychopath. Barnett is not comparable. There was no abuse of discretion here. (See, People v. Vallez (1978) 80 Cal.App.3d 46 [143 Cal.Rptr. 914].)
Singleton’s third contention is the sentences imposed on counts II and V, oral copulation, are improper double punishment in contravention of section 654. On this point Singleton appears to argue the acts of oral copulation were used “as a means of committing” the ensuing rapes and sodomy and were not independent, separate crimes. He asserts the inference to be drawn from the evidence is that the oral copulations were not to achieve a separate sexual gratification but to achieve erection so that the rapes and sodomy could be committed. We cannot conclude this is the inference which must be drawn. “A defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act.” (People v. Perez (1979) 23 Cal.3d 545, 553 [153 Cal.Rptr. 40, 591 P.2d 63]; People v. Clem (1980) 104 Cal.App.3d 337, 347 [163 Cal.Rptr. 553].) Sentencing on the counts charging oral copulation was not double punishment.
Singleton’s final contention is that he was improperly sentenced under sections 664 and 187 for attempted murder, rather than for the more specific offense of assault with intent to commit murder under section 217 providing for a lesser penalty. He cites People v. Montano (1979) 96 Cal.App.3d 221 [158 Cal.Rptr. 47]; and People v. Gray (1979) 91 Cal.App.3d 545 [154 Cal.Rptr. 555], which do indeed support his contention. (See also the more recent similar decision in People v. Lopez (1980) 110 Cal.App.3d 1010 [168 Cal.Rptr. 378].) Section 664, the general attempt statute, applies only “where no provision is made by law for the punishment of such attempts.” Montano, Gray and Lopez declare that where there is no evidence of any attempted murder other than an assault with intent to murder, a defendant is entitled to be punished under the more specific statute which expressly proscribes his conduct. The shocked legislative response to Montano and Gray was to repeal section 217 (Stats. 1980, ch. 300, eff. Jan. 1, 1981).
[425]*425We are in agreement with the principle announced in Montano, Gray and Lopez\ that is, a specific statute prevails over the general statute. But we are of the opinion that the principle was not applicable to the facts in those cases; nor is it applicable to the facts in the instant case. In the cases cited, as here, there was evidence of attempted murder other than an assault with intent to commit murder; i.e., the assaultive conduct exhibiting an intent to commit murder resulted in the use of force and in actual injury. The use of force and actual injury are not elements of the crime of assault with intent to commit murder. (Cf. People v. Yeats (1977) 66 Cal.App.3d 874, .878 [136 Cal.Rptr. 243].) A violation of section 217 is committed and the crime is complete when, with the requisite intent, there is “an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another.” (§ 240.) When force is used and actual injury is inflicted, the criminal conduct is more opprobious and the consequences to the victim and to society much graver. It is logical to presume that in enacting section 217 and in providing for a lesser penalty than that which may be imposed for attempted murder, the Legislature intended section 217 to punish conduct' constituting an assault but falling short of actual force and injury. This was, we infer, perceived by the court in People v. Meriweather (1968) 263 Cal.App.2d 559 [69 Cal.Rptr. 880], In Meriweather the defendant was charged with both attempted murder under sections 664 and 187 and assault under section 217. The evidence disclosed the defendant, having declared an intent to kill, fired a gun at the victim, causing three bullet wounds. On appeal, he contended it was error to convict him of attempted murder; that he should have been charged solely with assault with intent to commit murder and the trial court should have been limited to that charge. He urged, as does Singleton, that section 664 was intended by the Legislature to punish attempts only where no provision is made by law for the punishment of a particular attempt and, therefore, the enactment of section 217 made section 664 inapplicable. The court rejected the defendant’s contention, holding that section 217 defined a crime distinct from attempted murder and stating: “It was proper, under the facts of the case and under the pleadings, for the trial court to have found the defendant guilty of both the crimes of attempted murder and assault with intent to commit murder.”2 (People v. Meriweather, supra, at p. 563.)
[426]*426Meriweather was correctly decided. It is true Singleton could have been charged with and convicted of a violation of section 217, but it does not follow the evidence against him showed the commission solely of an assault. Furthermore, Singleton offers for the first time in this appeal to let himself be punished under section 217. Although assault with intent to commit murder is one form of attempted murder (People v. Heffington (1973) 32 Cal.App.3d 1, 11 [107 Cal.Rptr. 859]), it is not a necessarily included offense (People v. Gray, supra, 91 Cal.App.3d 545, 557). The trial court lacked jurisdiction to convict or sentence him for an offense which was neither charged nor included in the alleged crime (People v. West (1970) 3 Cal.3d 595, 612 [91 Cal.Rptr. 385, 477 P.2d 409]). Singleton was properly charged with, convicted of and sentenced for attempted murder.
Singleton claims he has not received all the days credit to which he is entitled (People v. Sage (1980) 26 Cal.3d 498 [165 Cal.Rptr. 280, 611 P.2d 874]). The Department of Corrections should recompute his entitlement.
The judgment is affirmed.
Cologne, Acting P. J., concurred.
Assigned by the Chairperson of the Judicial Council.