People v. McMullen

WOOD, J.

Defendant McMullen appeals from an order denying his motion to vacate and set aside the judgment and sentence entered against him committing him to the state prison at San Quentin.

Appellant contends that the court should have referred him to the California Youth Authority.

The three defendants were charged with robbery, a felony, in seven counts. Defendant McMullen, the appellant herein, pleaded guilty as charged in count one—taking from the person of one Peter Wade the sum of $7.00 while armed with a .22 automatic pistol. He was granted leave to file an application for probation. Thereafter, at a hearing on March 12, 1946, the court found the crime to be robbery of the first degree as to count one; denied appellant’s application for probation; refused to refer appellant (who was then 20 years of age) to the California Youth Authority; and sentenced him to the state prison at San Quentin for the term prescribed by law. The other counts were dismissed as to appellant.

On April 23, 1946, a motion to set aside the judgment and sentence was made and denied, but the court recommended that appellant be transferred immediately from the state prison to the State Institution for Men at Chino.

It is not disputed that appellant was eligible for referral to the Youth Authority, but the People contend that the matter of referral was discretionary with the trial court.

Section 1731.5 of the Welfare and Institutions Code, as amended in 1945, provides: “After certification to the Gov

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ernor as provided in this article and until January 1, 1948, a court

may

refer to the Authority any person convicted of a public offense who comes within all of the following description : ... If the Authority believes that any person referred to it as provided in this section can be materially benefited by ... the Authority ... it shall so certify to the court. The court shall thereupon commit said person to the Authority.” (Italics added.) Section 15 of the Welfare and Institutions Code states that “shall” is mandatory and “may” is permissive. There can be no doubt that the term “may,” as it is used in section 1731.5, was meant to be permissive. The Legislature further manifested an intention to make it so when, in amending the section in 1945, it deleted the words “shall commit,” as formerly used in the first part of that section, and substituted the words “may refer.” Prior to the 1945 amendment, the section provided: “After certification to the Governor ... a court