People v. Taylor

[975]

Opinion

PUGLIA, P. J. —

Defendant was indicted after he was found not a fit and proper subject to be dealt with under Juvenile Court Law. (Welf & Inst. Code, § 707.) He appeals from the judgment entered after he pied guilty to first degree robbery (Pen. Code, § 211), admitting he was then armed with a deadly weapon (Pen. Code, § 12022), to a second count of first degree robbery, admitting he then used a firearm (Pen. Code, § 12022.5), and to mayhem (Pen. Code, § 203). Ten other counts charging robbery, burglary, attempted robbery, attempted murder and kidnaping for purpose of robbery to some of which were annexed armed and use allegations were dismissed on the district attorney’s motion. Defendant’s sole contention on appeal is that it was error to sentence him to state prison.

Defendant, then 16 years old, was a member of the infamous “doorbell gang” which terrorized the Sacramento community in December 1976. As a member of that group defendant participated in several violent criminal escapades in one of which he fired a shotgun through a window of a residence, injuring and permanently blinding an occupant. At the time of the offenses, defendant was on parole from the California Youth Authority, having been released in August 1976.

After the probation officer recommended defendant be committed to state prison, the trial court remanded him to the California Youth Authority for a diagnostic study (Welf. & Inst. Code, § 707.2). On his return to court, a supplemental probation report was ordered. At the time of judgment and sentence, the trial court had before it the original and supplemental probation reports and the Youth Authority diagnostic study. The probation officer adhered to his original recommendation that defendant be sentenced to state prison, citing the fact that defendant had repeatedly failed to modify his behavior while on probation, parole, and in institutional settings during previous commitments to the Sacramento County Boys Ranch and the Youth Authority. The diagnostic study recommended a Youth Authority commitment, concluding that because of defendant’s emotional and physical immaturity and his lack of criminal sophistication, he could not withstand confinement in an adult prison. The trial court declined to follow the Youth Authority recommendation and sentenced defendant to state prison.

Defendant contends that under Welfare and Institutions Code section 707.2, the Youth Authority diagnostic study is binding on the trial