People v. Doyle

VAN DYKE, J.

Appellant, who is 20 years of age, was accused in the Superior Court of Solano County of the crime of burglary to which he pleaded guilty. The degree of the burglary was fixed as of the second degree. Reference followed to the probation officer who reported against the granting of probation. His report was approved by the trial court and probation was denied. Thereupon appellant was

[828]

sentenced to imprisonment in the state prison for the term prescribed by law. The notice of appeal states that the appeal is taken from the final judgment of conviction and from the order denying defendant’s motion for a new trial. The record shows that no motion for a new trial was made and consequently that appeal must be dismissed.

The sole contention advanced by appellant in his brief, which he filed in propria persona, is that the court erred in not referring him to the Youth Authority, which referral appellant apparently contends was mandatory under the statute. In this appellant is mistaken. Certification to the Authority is not mandatory at the present time, but is discretionary. Since 1945 section 1731.5 of the Welfare and Institutions Code has provided that the court

mwy refer

certain youthful offenders to the Authority. The Authority if it decides to accept them “shall so certify to the court and the court shall thereupon commit said person to the authority.” The italicized word “may” is used in the permissive sense.

(In re Mclnturff,

37 Cal.2d 876, 878 [236 P.2d 574] ;

People

v.

Walker,

82 Cal.App.2d 196, 202 [185 P.2d 842] ;

People

v.

Balt,

78 Cal.App.2d 171, 173 [177 P.2d 362].)

It does not appear from appellant’s brief that he contends the trial court abused its discretion in refusing to refer him to the Authority. Abuse of the trial court’s discretion can be reviewed on appeal.