Arredondo

Statement Of The Case

Appellant, 19 years of age, was convicted by a jury of having sexual intercourse with a girl 15 years of age in violation of Penal Code section 261.5. The jury, pursuant to Penal Code section 264, recommended that appellant be punished by imprisonment in the state prison. After referring the matter to the probation office for a report and recommendation as to appellant’s suitability for probation the trial court sentenced appellant to prison.

Appellant makes two basic contentions; first, that Penal Code section 264 is unconstitutional insofar as it allows the jury to fix the punishment for a violation of section 261.5, and second, that the jury was improperly instructed as to the extent of its duty in fixing the punishment under Penal Code section 264. Both contentions are without merit. We reverse the judgment, however, because the record does not reflect that the trial court considered the report of the probation officer before passing on probation and sentencing as required by Penal Code section 1203 and because the trial court apparently believed it was bound by the jury’s recommendation that appellant be punished by imprisonment in the state…