The opinion
MOSK, J.
I dissent.
I agree that the two-step analysis outlined in People v. Herrera (1982) 127 Cal.App.3d 590, 601 [ 179 Cal.Rptr. 694 ], sets out a workable and proper procedure for a trial court notified by the Board of Prison Terms (Board) that it has imposed a disparately high sentence. I also agree that at the first step, in which the court simply reviews the Board’s finding that a sentence is statistically disparate, the court should defer to the expertise of the Board entrusted by the Legislature with the task of analyzing data and reviewing comparable cases.
In the present case, the court rejected out of hand the Board’s finding of disparity without offering any concrete evidence to support a contrary conclusion and on the basis of major misconceptions about the Board’s methodology. Yet the question whether a sentence is disparate is a factual rather *452 than a discretionary one, and the Board’s careful review under statutory mandate should be accepted as correct in the absence of a strong showing to the contrary. As the majority conclude, the trial court should accept the Board’s finding unless on clear evidence it finds that the latter erred in selecting the appropriate comparison group or in determining that the sentence differs significantly from that imposed on most members of the group.
I part company with the majority, however, when it comes to outlining the trial court’s task in the second stage of its review of a Board finding of disparity. While the finding is entitled to great weight, that means only that the court should carefully reassess its sentencing order in light of the notification that it is at variance with the typical range of sentences in similar cases. The court retains discretion to deviate from that range if it deems appropriate in the particular case.
The majority hold that the trial court must recall a disparate sentence unless it is justified by substantial evidence of countervailing considerations. In effect, they infer from Penal Code section 1170 a presumption in favor of resentencing. Their interpretation of the provision, however, finds no support in either the language or policy enunciated by the Legislature.
The statute requires, in relevant part, “Within 120 days of receipt [of notice that a sentence is disparate], the sentencing court shall schedule a hearing and may recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if the defendant had not been sentenced previously, provided the new sentence is no greater than the initial sentence. In resentencing under this subdivision the court shall apply the sentencing rules of the Judicial Council and shall consider the information provided by the Board of Prison Terms.” (§ 1170, subd. (f)(1).)
In interpreting statutory language, we must look to the words themselves, giving effect to their usual and ordinary import. (People v. Aston (1985) 39 Cal.3d 481, 489 [ 216 Cal.Rptr. 771 , 703 P.2d 111 ]; Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 [ 110 Cal.Rptr. 144 , 514 P.2d 1224 ].) On its face, the statute explicitly leaves recall of a disparate sentence within the trial court’s discretion: it “may” recall the sentence. Moreover, even if the court defers to the Board’s finding, in resentencing it must do so “in the same manner as if the defendant had not been sentenced previously” and is bound only to “consider” the information provided by the Board. Judicial discretion is preserved: the Judicial Council Sentencing Rules, which the court must follow in resentencing, permit the court to *453 evaluate such factors as demeanor, personality, and attitude of the defendant in committing the crime. By contrast, the Legislature explicitly incorporated a presumption in Penal Code section 1170, subdivision (b), concerning the terms of imprisonment, directing, “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” (Italics added.) As we explained in City of Hueneme v. City of Oxnard (1959) 52 Cal.2d 385 , 395 [ 341 P.2d 318 ], when a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different intention existed.
Furthermore, as a matter of policy, trial courts should be guided but not placed in a straightjacket by the Board’s findings. The Board itself explained that it presents only a dry statistical study of what other judges have done in comparable cases; it makes no judgment regarding the appropriateness of any particular sentence, “dealing strictly with the benchmark established by other judges, and not any theoretical standard.” The Legislature’s decision to rest discretion in the trial court under section 1170 properly gives play to the court’s unique ability to take account of the personality, particular conduct, attitude, and demeanor of the defendant in committing the crime— factors the majority mislabel “subjective.” Although sentencing patterns are entitled to great weight, the trial judge remains in the best position to proportion the individual sentence to the particular defendant, within the limits of the Determinate Sentencing Act.
The majority’s formulation elevates statistical tendencies to the level of presumptions, as the present case illustrates: although there is no statutory presumption in favor of concurrent rather than consecutive sentences (People v. Reeder (1984) 152 Cal.App.3d 900, 923 [ 200 Cal.Rptr. 479 ]), because the statewide pattern favors concurrent sentences for robberies perpetrated on multiple victims in the same incident the majority require the trial court to justify its sentence after the fact just as though there were a presumption in the first instance. Presumptions of this kind should be established by the Legislature or the courts on the basis of substantive policy, not by numerical curves generated by a computer.
As the court emphasized in Herrera , “a finding by the Board that a sentence is ‘disparate’ does not mean that the sentence was imposed in violation of the law. . . . [A] motion brought by the Board pursuant to section 1170, subdivision (f) does not create a presumption that the sentence is ‘incorrect’ (unlawful) or that the prisoner is entitled to have his sentence *454 recalled.” (127 Cal.App.3d at pp. 599-600.) The Board’s conclusions should function as a measuring stick, not a whipping rod for judges; the information that a sentence is disparate demands serious, careful consideration by the court, but only as an aid to its own exercise of discretion.
I am unpersuaded by the analogy the majority draw to our decisions in People v. Carl B. (1979) 24 Cal.3d 212 [ 155 Cal.Rptr. 189 , 594 P.2d 14 ], and People v. Javier A. (1985) 38 Cal.3d 811 [ 215 Cal.Rptr. 242 , 700 P.2d 1244 ], in which we held that a trial court must follow the recommendation of the Youth Authority in sentencing convicted juveniles absent “substantial evidence of countervailing considerations of sufficient weight to overcome the recommendation.” (Javier A., at p. 819; accord Carl B., supra, 24 Cal.3d at pp. 214-215.)
First, in those cases we applied the standard of review against the background of statutory language entirely silent as to the weight to be accorded Youth Authority recommendations. (See Welf. & Inst. Code, § 707.2.) By contrast, section 1170 addresses the matter and expressly vests the court with discretion to follow the recommendation or not, as it deems appropriate.
Second, although both the Board of Prison Terms and the Youth Authority are mandated to present findings concerning sentencing, their aims and procedures remain distinguishable in critical respects. The Youth Authority is a rehabilitative penal system, in which juveniles are sentenced indeterminately, and the authority confines its analysis to the amenability of a particular minor to treatment and rehabilitation. By contrast, the Board operates within a punitive system under the Determinate Sentencing Act, and analyzes the mathematical relationship of sentences rather than focusing on the particular qualities of individual defendants. Moreover, the Youth Authority presents its evaluation to the court before sentencing, whereas the Board review is initiated only after a defendant has been sentenced and committed to prison. The Legislature’s decision to structure review under section 1170 as retrospective strongly suggests it did not intend to accord the same weight to the Board’s findings as to those of the Youth Authority.
Finally, it is noteworthy that although the statute requires the trial court to state its reason at the time of sentencing for imposing an aggravated, enhanced, or consecutive term (§ 1170, subd. (c)), a similar requirement is conspicuously absent from subdivision (f). So long as the record shows that the court seriously considered the information provided by the Board, I would not impose a mandatory rule that a trial court rejecting the Board’s sentencing recommendation must in every case articulate its reason for doing so.
*455 I would affirm the judgment.
Bird, C. J., and Lucas, J., concurred.
Respondent’s petition for a rehearing was denied September 18, 1986. Lucas, J., and Panelli, J., were of the opinion that the petition should be granted.