Marling

Bobby Earl Marling, a 17-year-old first degree murderer sentenced to prison, unmeritoriously claims the sentencing court erred *286 in refusing to commit him to the California Youth Authority (CYA), or at least to refer him for a second diagnostic evaluation, and in failing to adjourn criminal proceedings to evaluate him as a mentally disordered sex offender (MDSO).

Facts of the Offense

Related most favorably to the prosecution the facts show Marling and companions selected a male adult to rob and kill. Marling seduced the victim by his promise to engage in homosexual activities. When in private, Marling stabbed his victim to death with a knife he procured for that very purpose, and then stole the victim’s possessions. No homosexual activity occurred nor was intended by Marling.

Sentencing

Marling is the first person convicted of first degree murder to be referred to CYA for a diagnostic study. (Welf. & Inst. Code, § 707.2.) In due course a report concluding he was amenable to CYA programming was submitted.

Because contrary conclusions were contained in the probation report and reports from two psychiatrists, and the court’s familiarity with the case gained during…