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I dissent.
While I agree with the substantive conclusions of the najority, the proposed disposition is “an exercise in futility ;hat serves no useful purpose other than mere bookkeeping. ’ ’ (People v. Francis (1969) ante, pp. 66, 79 [75 Cal.Rptr. 199, 450 P.2d 591].) In re Falk (1966) 64 Cal.2d 684 [51 Cal.Rptr. 279, 414 P.2d 407], made it clear that this court may look at he entire record in order to ascertain whether a remand for esentencing is a mere idle act.
As found by the court on petition for habeas corpus, the record establishes beyond doubt that this petitioner was not prejudiced at the time of his probation and sentence hearing by reason of the prior convictions, either the admittedly valid Dos Angeles prior or the Fresno conviction deemed invalid. *1038The probation department reported to the trial court that even if the defendant were eligible for probation “he is unsuitable for probation services as he has clearly demonstrated his inability to adjust in a permissive setting. . . .” The probation officer recommended that probation be denied, not on the ground of ineligibility, but unsuitability.
It is significant that at the probation and sentence hearing defense counsel did not plead for probation; he requested merely that the sentences be ordered to run concurrently. The trial court, in denying the request and simultaneously denying probation, commented on the societal risk involved “where a man is out on bail and then commits another crime.” The court thereupon exercised its discretion, denied the application for probation on the merits and sentenced the defendant in each of the two pending cases, the terms to run consecutively.
Thus the record abundantly supports the memorandum conclusion of the court on habeas corpus that ‘ ‘ the prior convictions were not a factor in the court’s consideration of the application for probation.” The court also properly found that “it would be a futile gesture” to return the petitioner to Los Angeles for a further evaluation of his ease. No abuse of discretion appears to justify our belated interference.
In addition to the foregoing factors, this case illustrates one of the evils inherent in automatically remanding a matter to the original trial court for reevaluation many years after judgment. The sentence here was imposed by the trial judge on April 6, 1961. More than eight years have elapsed and in the interim the trial judge familiar with the case has retired. Thus, another judge must examine the record and reach a conclusion based solely on a reading of cold type, rather than upon familiarity with and recollection of courtroom events. In the interest of economy of time, and preservation of prison routine (People v. Francis, supra, ante, p. 66), this court should read the same record, reach its conclusion, and make an appropriate order.
I would order the Fresno felony stricken from defendant’s record and then deny the petition.
McComb, J., and Burke, J., concurred.