Dissenting. — It does not appear the trial court abused its discretion in sending defendant to prison rather than to the Youth Authority.
As the majority recognize, the question presented is whether substantial evidence supports the trial court’s finding under Welfare and Institutions Code section 707.2 that defendant is not a suitable subject for commitment to the Youth Authority. As the majority further recognize, the determination of suitability under section 707.2 is closely analogous to the determination of fitness under section 707.
The ground of the analogy is clear: To determine whether a minor is a fit and proper subject to be dealt with under the Juvenile Court Law the court must in turn determine whether he would be amenable to the care, treatment and training programs available through the facilities of the juvenile court. (Welf. & Inst. Code, § 707.) “Since one of the proper avenues of disposition under the Juvenile Court Law is a commitment to the Youth Authority (§ 731) the referral of a juvenile to the criminal courts necessarily entails a finding that the juvenile is not a fit subject for commitment to the Authority . . . .” (People v. Olivas (1976) 17 Cal.3d 236, 240, fn. 5 [131 Cal.Rptr. 55, 551 P.2d 375].)
Defendant was charged with robbery (Pen. Code, § 211), involving infliction of great bodily injury (Pen. Code, § 12022.7), and assault with a *221deadly weapon (Pen. Code, § 245, subd. (a)), a firearm having been used in the commission of each offense (Pen. Code, §§ 1203.06, subd. (a)(1), 12022.5).
Defendant’s offenses stand among those compelling a finding of unfitness, unless the juvenile court reaches the contrary conclusion based on the following criteria: the minor’s criminal sophistication, the probability he can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction, his history of delinquency, the success of previous attempts to rehabilitate him, and the circumstances and gravity of his offense. (Welf. & Inst. Code, § 707, subd. (b).)
As the statutes discussed embody the Legislature’s determination that one guilty of defendant’s crimes should be presumed to be unsuited for commitment to the Youth Authority, we need not inquire further into the propriety of the trial court’s action. In sentencing defendant to prison the court clearly acted within its discretion.
Moreover, countervailing considerations were notably absent. The circumstances of these offenses were grave indeed. As his attorney admitted, defendant was extremely fortunate not to have faced a first degree murder conviction, for the victim might have died had the gun been directed an inch to one side or the other. Following apprehension defendant escaped from juvenile hall and fled the state, requiring extradition to bring him to justice. As for history of delinquency, this incident can be seen as the culmination of a pattern of behavior begun six years earlier when defendant brought a1 gun onto a school campus. In the interim he was constantly in trouble, usually for possession of marijuana, but he was arrested for attempted murder on one occasion and for burglary on another.
To hold the trial court here abused its discretion by not following the Youth Authority’s recommendation is to eliminate sentencing discretion.
The judgment should be affirmed.
Manuel, J., concurred.
Respondent’s petition for a rehearing was denied June 8, 1979, and the opinion was modified to read as printed above. Clark, J., was of the opinion that the petition should be granted.