PEOPLE v. PORRAS

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Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Neville PORRAS, Defendant and Appellant.

No. C007818.

Decided: July 18, 1991

Howard J. Berman and Berman & Glenn under appointment by the Court of Appeal, San Francisco, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Sr. Asst. Atty. Gen., W. Scott Thorpe, Supervising Deputy Atty. Gen., and Ruth M. Saavedra, Deputy Atty. Gen., for plaintiff and respondent.

Defendant was convicted, after a jury trial, of second degree murder (Pen.Code, § 187) with an enhancement for personal use of a deadly weapon (Pen.Code, § 12022, subd. (b)).  Sentenced to state prison for the indeterminate term of 15 years to life for the murder and a consecutive 1–year term for the deadly weapon use, defendant appeals contending the trial court erred by refusing to instruct the jury on self-defense and honest but unreasonable belief in the necessity to defend, instructing the jury on inferring consciousness of guilt from defendant's efforts to suppress evidence, and failing to award defendant custody credits for time spent in the California Youth Authority after sentencing.   Defendant also claims the trial court did not properly resentence him under Welfare and Institutions Code section 1731.5, subdivision (c), after he was rejected by the Youth Authority.1

In the published portion of this opinion, specifically part III of the discussion, we reject defendant's contention the trial court did not properly resentence him after the Youth Authority rejected him.   In parts I, II, and IV of the discussion, the unpublished portion of this opinion, we reject defendant's other assignments of error.   Consequently, we affirm.

FACTS

Late in the evening of August 11 and early in the morning of August 12, 1988, the victim, Shawn Bartholomew, and his friend, Cosmo Allen Byrd, got drunk with some friends under Waterloo Bridge.   The victim and Byrd went to Waterloo Liquors, where Byrd left the victim to return home.   Byrd heard someone yell, “ ‘Come here,’ ” as he walked away from the liquor store.   He turned around and saw someone who resembled defendant running.   Byrd continued home.

During the same night, defendant was in his front yard drinking with his brother, Willie Lester, and Lester's friend, Mike Garcia.   William “Moose” Phillips and Dennis “Scooter” Wheeler passed in front of the house and exchanged angry words with defendant.   Phillips and Wheeler left, but defendant and his group armed themselves, defendant with a butcher knife, and enlisted the aid of another friend, James Azevedo.   The group began searching for Phillips, but without success.   All but Lester returned to defendant's front yard.   Shortly after they returned, they heard yelling from the alley.   The voice sounded to them like Lester's, although Lester denied later that it was he.

After hearing the yell, defendant left alone to look for his brother.   Eventually, defendant saw the victim and chased him down.   Defendant held the victim by the hair and said, “Where's my brother, where's my brother [?]”  Lester and Garcia arrived after defendant caught the victim.   Lester hit the victim with a stick, and Garcia kicked the victim in the head.   Defendant was the only one in the group with a knife, and he later admitted to law enforcement that he stabbed the victim.

The group left the victim and returned to defendant's yard.   Paramedics responded to the scene and found the bloodied victim lying in the fetal position.   The victim died of a stab wound which pierced his heart, liver, and right lung.

On October 31, 1989, the court sentenced defendant to state prison for the indeterminate term of 15 years to life for second degree murder (Pen.Code, § 187) with a consecutive 1–year sentence for use of a deadly weapon (Pen.Code, § 12022, subd. (b)).  The court also ordered defendant to be housed in the California Youth Authority during the first part of his term.  (Welf. & Inst.Code, § 1731.5, subd. (c).) 2  In the alternative, the court expressly ordered defendant to serve his entire term in state prison if the Youth Authority did not accept him.   The Youth Authority rejected defendant, and, on November 30, 1989, the court, without holding a new sentencing hearing, signed a new abstract of judgment sending defendant directly to Deuel Vocational Institute in Tracy.

DISCUSSION

I, II **

III

Trial Court Procedure After Rejection by the California Youth Authority

Defendant contends Welfare and Institutions Code section 1731.5, subdivision (c), literally, required the trial court to return him for resentencing and to hold a full sentencing hearing, applying the rules of court for sentencing 5 after the Youth Authority rejected him for housing.   We disagree and in doing so apply fundamental rules of statutory construction.   Our role here is to discern and execute the Legislature's intent.  (People v. Pieters (1991) 52 Cal.3d 894, 898, 276 Cal.Rptr. 918, 802 P.2d 420;  Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.)   To ascertain legislative intent, we must look to the language of the statute and “accord words their usual, ordinary, and common sense meaning based on the language the Legislature used and the evident purpose for which the statute was adopted.”  (In re Rojas (1979) 23 Cal.3d 152, 155, 151 Cal.Rptr. 649, 588 P.2d 789;  Valladares v. Stone (1990) 218 Cal.App.3d 362, 368, 267 Cal.Rptr. 57.)   However, we must “presume that the Legislature did not intend absurd results.”  (In re Head (1986) 42 Cal.3d 223, 232, 228 Cal.Rptr. 184, 721 P.2d 65.)

Even when the language of the statute is unambiguous, it “ ‘should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.’ ”  (Pieters, supra, 52 Cal.3d at pp. 898–899, 276 Cal.Rptr. 918, 802 P.2d 420, quoting Younger v. Superior Court (1978) 21 Cal.3d 102, 113, 145 Cal.Rptr. 674, 577 P.2d 1014.)  “Thus, ‘[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.’ ”  (Pieters, supra, 52 Cal.3d at p. 899, 276 Cal.Rptr. 918, 802 P.2d 420, quoting Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.)

Section 1731.5, subdivision (c), states the defendant “shall be returned to court for resentencing” (emphasis added) upon rejection by the Youth Authority.   Furthermore, “shall,” as used in the Welfare and Institutions Code, is “mandatory” (§ 15).   Nonetheless, “the provision must be given a reasonable and common sense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity.”  (DeYoung v. City of San Diego (1983) 147 Cal.App.3d 11, 18, 194 Cal.Rptr. 722.)

 “The word ‘shall’ has been held in some cases to be merely directory.  [Citations.]   Whether it should be construed to be mandatory or directory depends on the intention of the legislature in enacting the section.”  (Estate of Mitchell (1942) 20 Cal.2d 48, 51, 123 P.2d 503.)   If the provision is directory, it is “intended only to direct a wise procedure” (Pappadatos v. Superior Court (1930) 209 Cal. 334, 335, 287 P. 342) for the trial court to follow after a defendant's rejection by the Youth Authority.

 With these principles in mind and for the reasons we will state, we conclude literal interpretation, in this case, of “shall be returned to court for resentencing” as a mandatory procedure would be illogical and unwise, resulting in waste of precious governmental resources without a corresponding practical justification.  (DeYoung, supra, 147 Cal.App.3d at p. 18, 194 Cal.Rptr. 722.)   Instead, to avoid absurd consequences, we determine the Legislature intended this language in section 1731.5, subdivision (c), to be directory rather than mandatory.   The trial court, therefore, was not required to return defendant to court for resentencing after his rejection by the Youth Authority.

Defendant asserts People v. Arnold (1988) 206 Cal.App.3d 88, 253 Cal.Rptr. 468, mandates reversal and remand for resentencing.   In Arnold, the court remanded for resentencing because, upon the defendant's return to the court for resentencing after rejection for housing by the Youth Authority under Welfare and Institutions Code section 1731.5, subdivision (c), the trial court did not state its reasons for denying probation.  (Id. at p. 91, 253 Cal.Rptr. 468.)   The Arnold court, by analogy to Penal Code section 1170, subdivision (d),6 held, when the Youth Authority rejects for housing a defendant sentenced to a state prison term, the trial court must apply the sentencing rules.  (Id. at p. 90, 253 Cal.Rptr. 468.)  “This necessarily includes the rule that the court must state in simple language the primary factors which support the exercise of its discretion in denying probation and sentencing the defendant to state prison.  (Cal. Rules of Court, rules 439(d), 443;  People v. Romero (1985) 167 Cal.App.3d 1148, 1151 [213 Cal.Rptr. 774].)”  (Id. 206 Cal.App.3d at pp. 90–91, 253 Cal.Rptr. 468.)   The court concluded:  “Although return for resentencing pursuant to Welfare and Institutions Code section 1731.5, subdivision (c), is automatic and not upon motion of the court or recommendation of the Director of Corrections, it is nonetheless resentencing and the sentencing rules are applicable.”  (Id. at p. 91, 253 Cal.Rptr. 468.)

In reaching its conclusion, the Arnold court is broadly general in tone.   Under the distinguishing facts of this case, however, we see no cogent reason to be similarly general or to further extend the Arnold court's analogy to section 1170, subdivision (d).

In Arnold, the defendant committed the nonviolent crime of auto theft and was eligible for probation.   Sentenced only to a term of two years in state prison, the defendant likely would have completed his full term in the Youth Authority had he been accepted for housing.  (Arnold, supra, 206 Cal.App.3d at pp. 89–90, 253 Cal.Rptr. 468.)   It does not appear the trial court, during the original sentencing hearing, specifically ordered the defendant to serve his full term in the state prison upon rejection by the Youth Authority.

 Here, the trial court anticipated rejection by the Youth Authority and expressly declared defendant would continue to serve the term already imposed in the state prison if housing was rejected:  “[The trial court] will allow him to serve the first portion of his term in state prison at the California Youth Authority pursuant to section 1731.5[, subdivision (c),] if [it] will accept him.   If [it] reject[s] him[,] and he'll know that shortly, he'll stay at the jail and then he will be off to prison.”

Even if he had been accepted for housing by the Youth Authority, that arrangement would have been temporary because his term of 15 years to life and a consecutive year would have necessarily extended beyond his 25th birthday when he would no longer have been eligible for housing in the Youth Authority.7  (Welf. & Inst.Code, § 1731.5, subd. (c).)

Furthermore, the Youth Authority did not send the trial court any information on how or why defendant was rejected for housing.   Without more, it would be very difficult, due to the violent nature of defendant's crime, for the trial court to find an unusual case and grant probation upon defendant's rejection by the Youth Authority.  (See Pen.Code, § 1203, subd. (e)(1–3).)

When a court upon its own motion or upon the recommendation of the Director of Corrections or the Board of Prison Terms discretionarily recalls a defendant for resentencing under Penal Code section 1170, subdivision (d), a different sentence is contemplated.   The recall may signal “a determination that ‘the prison sentence should never have been imposed.’ ”  (In re Quinn (1988) 206 Cal.App.3d 179, 182, 253 Cal.Rptr. 402, quoting Holder v. Superior Court (1970) 1 Cal.3d 779, 782, 83 Cal.Rptr. 353, 463 P.2d 705.)   Furthermore, section 1170, subdivision (d), expressly requires the trial court to “resentence the defendant in the same manner as if he or she had not previously been sentenced, ․ The resentence under this subdivision shall apply the sentencing rules ․ so as to eliminate disparity of sentences and to promote uniformity of sentencing.”

On the other hand, when the trial court sentences a defendant to state prison and orders housing in the Youth Authority under Welfare and Institutions Code section 1731.5, subdivision (c), “[t]he Director of CYA is authorized by statute to reject such transfer if, in his or her opinion, it ‘would endanger security’ at the facility.  (Welf. & Inst.Code, § 1714, subd. (b).)”  (People v. Windham (1987) 194 Cal.App.3d 1580, 1598, 240 Cal.Rptr. 378.)   The Youth Authority need not hold an administrative hearing before rejecting a defendant so referred.  (Id. at pp. 1594–1599, 240 Cal.Rptr. 378.)   Indeed, neither the Welfare and Institutions Code nor title 15 of the California Code of Regulations gives Youth Authority guidance in determining whether a defendant thus sentenced to a state prison term is appropriate for housing in the Youth Authority.8  Therefore, the trial court obtains no new facts or documentary context within which to review the basis, nature or impact of the Youth Authority's decision to reject any particular defendant for housing.   Realistically, this means there is nothing substantially different upon which to reapply the formal sentencing process and rules.   This is especially true when, as here, the defendant faces statutory ineligibility for probation.   In addition, section 1731.5, subdivision (c), unlike Penal Code section 1170, subdivision (d), contains no express requirements concerning the manner of and limitations on resentencing.

There is no hint defendant's sentence is incorrect or incomplete, and there is no new substantive information the court did not have when it originally sentenced defendant, other than its own certainty rather than suspicion defendant would not be accepted at the Youth Authority.   Thus, further extending application of Penal Code section 1170, subdivision (d), to these facts would serve no useful purpose.  (See Dix v. Superior Court (1991) 53 Cal.3d 442, 279 Cal.Rptr. 834, 807 P.2d 1063.)   The trial court here (1) carefully informed defendant of the full scope of his sentence, (2) followed the sentencing rules, and (3) made an adequate record.   No more could be asked and no more is required.

Thus, when a trial court, during the original sentencing hearing, expressly orders a defendant to serve the same term completely in state prison if the Youth Authority rejects him for housing, there is no need for resentencing because the sentence has already been fully imposed.   The trial court need only redirect the defendant to the Department of Corrections by amended abstract of judgment.   This simple process preserves scarce judicial and other professional resources by avoiding unnecessary expenditures of additional time and funds by the trial court, prosecution and defense counsel, as well as law enforcement, the probation department, corrections, and any other agencies responsible for transporting and housing defendant, merely to reconstitute and replicate the original sentence proceedings and vapidly reiterate the panoply of sentencing rules and procedures in what is no more than mere form.

The trial court here expressly ordered defendant to serve the same term entirely in state prison should the Youth Authority reject him for housing pursuant to Welfare and Institutions Code section 1731.5, subdivision (c).  No practical purpose could be served by defendant's return to the trial court after rejection by the Youth Authority.   On the contrary, to do so would waste resources because there would be no corresponding benefit to defendant.   The Legislature did not intend such mischief or absurdity.  (DeYoung, supra, 147 Cal.App.3d at p. 18, 194 Cal.Rptr. 722.)   We, therefore, hold section 1731.5, subdivision (c), does not require defendant's return to court for resentencing after his rejection by the Youth Authority.

IV

Sentence Credits for Time Between Sentencing and Delivery to State Prison ***

DISPOSITION

The judgment is affirmed.

Although I may share my colleagues' opinion that a more efficient approach to sentencing a youthful offender may be to give the trial judge discretion whether to resentence a defendant following the Youth Authority's failure to accept custody of him pursuant to Welfare and Institutions Code § 1731.5, subdivision (c) 1 —the explicit language of that statute clearly and unambiguously sets forth a legislative decision to compel the sentencing judge to reconsider his initial sentencing decision following the Youth Authority's rejection of the court's recommendation.   Accordingly, I do not share my colleagues' view that resentencing of a youthful offender following the Youth Authority's failure to accept custody of him pursuant to subdivision (c) is discretionary rather than mandatory.   On the facts of this particular case, however, I find the trial court's failure to resentence defendant harmless error and therefore concur that we need not remand for resentencing.   In all other respects, I concur with the majority opinion.

Section 1731.5, subdivision (c) provides in pertinent part:  “In sentencing a person under the age of 21 years, the court may order that the person shall be transferred to the custody of the Youth Authority pursuant to this subdivision.   When the court makes such an order and the Youth Authority fails to accept custody of the person, the person shall be returned to the court for resentencing.”  [Emphasis added.]   Our objective in interpreting this language is to ascertain and effectuate legislative intent.   (People v. Overstreet (1986) 42 Cal.3d 891, 895, 231 Cal.Rptr. 213, 726 P.2d 1288.)   In determining intent, we look first to the words themselves.  (Id. at p. 895, 231 Cal.Rptr. 213, 726 P.2d 1288.)  “ ‘We are required to give effect to statutes “according to the usual, ordinary import of the language employed in framing them.”  [Citations.]’ ”  (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 658, 147 Cal.Rptr. 359, 580 P.2d 1155.)   When the language is clear and unambiguous, there is no need for construction and courts should not indulge in it.   (People v. Belleci (1979) 24 Cal.3d 879, 884, 157 Cal.Rptr. 503, 598 P.2d 473;  Solberg v. Superior Court (1977) 19 Cal.3d 182, 198, 137 Cal.Rptr. 460, 561 P.2d 1148.)   Here, the meaning of subdivision (c) is plainly written on its face.

With respect to the pertinent words of the statute themselves, the operative sentence at issue here—“[w]hen the court makes such an order and the Youth Authority fails to accept custody of the person, the person shall be returned to the court for resentencing”—is explicit, clear, and unambiguous.   Without citation of any persuasive authority, the majority declares that the Legislature did not mean what it said.   This conclusion reminds me of Chief Justice Donald Wright's quotation attributed to a renowned English jurist:  “If Parliament didn't mean what it said, why didn't it say so?”  (People v. Overstreet, supra, 42 Cal.3d 891, 901, 231 Cal.Rptr. 213, 726 P.2d 1288 (conc. opn. of Mosk, J.).)   Here, if the Legislature didn't mean “the person shall be returned to the court for resentencing,” then why didn't it say so.

Relying on the narrow exception that a statute will not be given a literal meaning if it will lead to absurd consequences, (People v. Pieters (1991) 52 Cal.3d 894, 898, 276 Cal.Rptr. 918, 802 P.2d 420,) the majority concludes that giving the instant statutory language its literal meaning will lead to such consequences.   The majority is mistaken.   No such consequences are threatened by a straightforward reading of the statute before us.   The mandatory language at issue has been a part of California's sentencing scheme for youthful offenders since 1983.   Trial judges are taught to apply the literal language of this subdivision when sentencing youthful offenders.  (California Center for Judicial Education and Research, California Judges Benchbook, Criminal Posttrial Proceedings (1991) § 2.37, p. 80.)   The majority makes no showing that trial courts have had any difficulty in applying subdivision (c) as written during the past eight years.

The manifest purpose of subdivision (c) is to afford a trial court a choice when called upon to sentence a youthful offender who is ineligible for a straight commitment to the Youth Authority.  (§ 1731.5, subd. (a).)  This choice provided by the Legislature “․ shall be solely for the purposes of housing the inmate, allowing participation in the programs available at the institution by the inmate, and allowing Youth Authority parole supervision of the inmate․”  (§ 1731.5, subd. (c).)  Except in an extremely narrow range of sentences where the court has no discretion to vary the length of a sentence, a trial court will necessarily factor in to his sentencing decision the likely impact of the programs a youthful offender will benefit from if housed in a Youth Authority facility.   It is not absurd for the Legislature to conclude that once a judge chooses to order that a youthful offender be housed in a Youth Authority facility and the Youth Authority fails to accept custody of the offender, that the judge be compelled to reconsider his state prison sentence in light of the significant change in the nature of the youthful offender's commitment.

The court in People v. Arnold (1988) 206 Cal.App.3d 88, 91, 253 Cal.Rptr. 468 shares this view.   There the court held that “[a]lthough return for resentencing pursuant to Welfare and Institutions Code section 1731.5, subdivision (c), is automatic and not upon motion of the court or recommendation of the Director of Corrections, it is nonetheless resentencing and the sentencing rules are applicable.”

The peculiarities of this one case should not be a basis for overturning a legislative decision to extend an additional benefit to youthful offenders sentenced to state prison.   It is only the peculiar actions by the trial judge along with the absence of new reports and or evaluations that make remand for resentencing a meaningless act.   The trial court erred in ignoring the mandatory language of subdivision (c).   The error, however, was harmless.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

The trial court here expressly ordered defendant to serve the same term entirely in state prison should the Youth Authority fail to accept custody of him.   Thereafter, no attempt was made by defendant, the prosecution, the probation officer, or the Youth Authority to prepare and present to the court supplemental material relevant to the court's sentencing decision.2  It is therefore not reasonably probable that the trial court would reduce defendant's sentence upon remand.   For that reason I would affirm the sentence.   In all other respects I concur with the opinion of the majority.

FOOTNOTES

1.   Defendant did not raise this issue during normal briefing.   We, however, requested further briefing on the following question:  “Did the trial court properly follow the procedure of Welfare and Institutions Code section 1731.5, subdivision (c), after defendant's rejection by the California Youth Authority?”

2.   Welfare and Institutions Code section 1731.5, subdivision (c), states:  “Any person under the age of 21 years who is not committed to the authority pursuant to this section may be transferred to the authority by the Director of Corrections with the approval of the Director of the Youth Authority.   In sentencing a person under the age of 21 years, the court may order that the person shall be transferred to the custody of the Youth Authority pursuant to this subdivision.   When the court makes such an order and the Youth Authority fails to accept custody of the person, the person shall be returned to court for resentencing.   The transfer shall be solely for the purposes of housing the inmate, allowing participation in the programs available at the institution by the inmate, and allowing Youth Authority parole supervision of the inmate, who, in all other aspects shall be deemed to be committed to the Department of Corrections and shall remain subject to the jurisdiction of the Director of Corrections and the Board of Prison Terms.”

FOOTNOTE.   See footnote *, ante.

5.   California Rules of Court, rule 401 et seq.

6.   Penal Code section 1170, subdivision (d), provides:  “When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison and has been committed to the custody of the Director of Corrections, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the Director of Corrections or the Board of Prison Terms, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence.   The resentence under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing.   Credit shall be given for time served.”

7.   Although expressed with more certainty here than may exist in some cases, rejection by the Youth Authority must, necessarily, be considered as a significant potential by any judge who applies section 1731.5, subdivision (c).   When, as here, the term of custody is so significant that its minimum exceeds the period a defendant may be retained by the Youth Authority, it is known in advance some state prison time will be required.

8.   We take judicial notice of title 15 of the California Code of Regulations (Gov.Code, § 11344.6), although we conclude it is of no consequence here (Evid.Code, § 459, subd. (c)).

FOOTNOTE.   See footnote *, ante.

1.   Welfare and Institutions Code section 1731.5, subdivision (c) provides:  “Any person under the age of 21 years who is not committed to the authority pursuant to this section may be transferred to the authority by the Director of Corrections with the approval of the Director of the Youth Authority.   In sentencing a person under the age of 21 years, the court may order that the person shall be transferred to the custody of the Youth Authority pursuant to this subdivision.   When the court makes such an order and the Youth Authority fails to accept custody of the person, the person shall be returned to court for resentencing.   The transfer shall be solely for the purposes of housing the inmate, allowing participation in the programs available at the institution by the inmate, and allowing Youth Authority parole supervision of the inmate, who, in all other aspects shall be deemed to be committed to the Department of Corrections and shall remain subject to the jurisdiction of the Director of Corrections and the Board of Prison Terms.   Notwithstanding subdivision (b) of Section 2900 of the Penal Code, the Director of the Department of Corrections with the concurrence of the Director of the Youth Authority, may designate a facility under the jurisdiction of the Director of the Youth Authority as a place of reception for any person described in this subdivision.The Director of the Youth Authority shall have the same powers with respect to an inmate transferred pursuant to this subdivision as if the inmate had been committed or transferred to the Youth Authority either under the Arnold–Kennick Juvenile Court Law or subdivision (a).The duration of the transfer shall extend until the Director of the Youth Authority orders the inmate returned to the Department of Corrections, the inmate is ordered discharged by the Board of Prison Terms, or the inmate reaches the age of 25, whichever first occurs.”  (Further undesignated statutory references are to the Welfare and Institutions Code.)

2.   The majority is correct in stating that the Youth Authority has no statutory duty to prepare reports or a statement of reasons regarding their refusal to house defendant at one of their facilities.   The fact that no new reports or recommendations were prepared in this case does not inevitably lead to the conclusion that they are never prepared and available to a judge at the time of resentencing.   A diligent effort by defense counsel coupled with a realistic chance of either obtaining housing with the Youth Authority or in the event of a rejection, a reduction in the length of the straight state prison sentence upon resentencing is likely to lead to the preparation of such reports and recommendations.

NICHOLSON, Associate Justice.

CARR, Acting P.J., concurs.

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