Sparks

A jury found defendants Edward Sparks and Leonard Sparks, who are brothers, guilty of second degree robbery. The trial court denied probation and sentenced both defendants to state prison. On appeal from the judgment of conviction each defendant contends, first, that since the record is silent as to whether or not the court considered referring him to Youth Authority, we must presume that the court did not consider such referral, and further that such failure to exercise discretion to refer defendants to the Youth Authority under Welfare and Institutions Code section 1731.5 requires that we remand the case so that the trial court may exercise its discretion. Alternatively, defendants argue that the court abused its discretion in failing to refer them to the Youth Authority. The probation reports reveal that Leonard was 19 and Edward was 18 years of age at the time of apprehension. Neither defendant requested referral to the Youth Authority.

We turn, first, to the question whether the trial court has a duty to consider, sua sponte, referral to the Youth Authority in every case wherein the defendant qualifies for Youth Authority commitment. There are no cases dealing with this…