Rangel

*352 Opinion

J.In this case, we hold a trial court has discretion to order a diagnostic evaluation under Welfare and Institutions Code section 707.2 (all further statutory references are to the Welfare and Institutions Code unless otherwise indicated) where the indicated sentence plus the defendant’s age do not exceed 25 years. We reject the prosecution’s contention that, in order to determine eligibility for a study, the court may consider only the greatest term which can be imposed rather than the actual term the court intends to impose.

Since the trial court accepted the refusal of the California Youth Authority (CYA) to conduct an evaluation of defendant William Rangel and sentenced him to state prison without the benefit of such a study, we remand the case for resentencing.

Facts

In 1996, a jury found defendant guilty of attempted voluntary manslaughter (Pen. Code, §§ 664, 192, subd. (a)) and assault with a firearm (Pen. Code, § 245, subd. (a)(2)), and returned true findings on allegations he personally used a firearm (Pen. Code, § 12022.5, subd. (a)), and inflicted great bodily injury (Pen. Code, § 12022.7) as to each count. At the time of the crime, defendant was 17…