MacKey

Defendant David Earl Mackey appeals from an order committing him to the Youth Authority after a jury found him guilty of a violation of Penal Code section 261.5.

Penal Code section 261.5 reads as follows: “Unlawful sexual intercourse is an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years.”

Defendant was born February 5, 1957. The girl of whom he took advantage, and who made the claim the act was accomplished against her will, was bom December 12, 1959. The date of the offense was March 15, 1974. Defendant was taken into custody the same day.

The jury recommended defendant be punished by confinement in the county jail.

Penal Code section 264, as amended in 1970, provides in part: “Rape, as defined in Section 261, is punishable by imprisonment in the state prison for not less than three years. Unlawful sexual intercourse, as defined in Section 261.5, is punishable either by imprisonment in the county jail for not more than one year or in the state prison for not more than 50 years, and in such case the jury shall recommend by their verdict whether the punishment shall be by imprisonment…