I concur and dissent.
I agree with the-rationale of the opinion, and with the general relevance of In re Estrada, 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948], However, the disposition ordered by the majority is an exercise in futility that serves no. useful purpose other than mere bookkeeping.
I Section 11530 of the Health and Safety Code as amended, and properly found by the majority to be applicable to defendant, gives the trial judge the option of sentencing a defendant to state prison for one to ten years or to the county Ijail for not more than one year. On the date the defendant Iwas sentenced, the trial judge had the option of sending him jfco state prison for one to ten years or placing him on probation with appropriate conditions, including up to a year in the county jail.
I Given the alternatives of imposing a state prison sentence Ir probation with up to a year in the county jail, this trial Budge rejected the lesser and pronounced the maximum sentence upon a defendant who he determined, in the exercise of Bndicial discretion, required the maximum in order to effect lis rehabilitation. A fortiori the judge, had he been given the ill lesser alternatives now permitted under the amended Batute, would have rejected them.
Therefore the return of the defendant to court for resentencing at this late date is an idle act that merely disrupts prison routine and burdens a court calendar with an unnecessary and unproductive proceeding. It would appear to exalt form over substance. For that reason I dissent from the judgment.