Francis

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…

An information was filed charging Gary Dale *70 Francis with selling and giving away marijuana (Health & Saf. Code, § 11531. ) 1 A jury trial was waived, and the ease was submitted on the preliminary hearing transcript. The court found Francis guilty of possession of marijuana (Health & Saf. Code, § 11530), which the court determined to be "a lesser offense than that charged . . . but necessarily included therein.’' The court denied probation and sentenced him to imprisonment in the state prison for the term prescribed by law.

Francis appeals from the judgment contending, among other things, that the evidence is insufficient to support his conviction and that, if the conviction is sustained, the ease should be remanded to the trial court with directions to reconsider the. sentence in view of a recent amendment to section 11530, which permits the trial court in certain cases to impose a county jail term. 2 We have concluded that the conviction should be upheld but that because of the recent amendment to section 11530 the ease should be remanded to the trial court to reconsider the matter of probation and sentence.

Officer Finnigan (who presumably was acting undercover) met…