McCullin

The sole question for decision is whether Penal Code section 1202b applies where a defendant, under 23 years of age, is convicted of murder of the first degree (Pen. Code, §§ 187, 189) subsequent to a stipulation by the People which would bar imposition of the death penalty in his particular case.

An information charged defendant Bruce Milton McCullin with murder (Pen. Code, § 187). He pleaded not guilty and the case was tried to a jury. In course of the voir dire examination of the prospective jury panel, the stipulation set forth in the margin below was entered into by the prosecution and defense counsel with the trial court’s approval. We agree with the trial court that the stipulation was tantamount to an assurance to defendant that the death penalty would not be imposed in return for his waiver of a jury trial on the penalty issue. The jury found defendant guilty of first degree murder for his participation in a gunshot slaying of another youth. Defendant was 18 years of age when the offense was committed and under 23 years of age at the time judgment was pronounced.

The trial court correctly observed that it did not have the power to commit defendant to the Youth…