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The defendant in this action was charged by the district attorney of the county of Sacramento with the crime of burglary. Upon arraignment the defendant entered a plea of guilty of attempt to commit burglary in the second degree, and was thereupon sentenced to imprisonment in the state prison. From this judgment the defendant appeals.

Only one point is relied upon for reversal, to wit: That under subdivision 2 of section 664 of the Penal Code the defendant should have been sentenced to the county jail. Subdivision 2 of section 664, supra, reads: “If the offense so attempted is punishable by imprisonment in the State Prison for any term less than five years, the person guilty of such attempt is punishable by imprisonment in the county jail for not more than one year.” Subdivision 2 of section 461 of the Penal Code, relative to punishment for burglary in the second degree, specifies punishment by imprisonment for not less than one nor more than fifteen years. There is no limit specified in either of the sections referred to that the punishment shall be less than five years.

Under the rule announced in the case of In re Lee, 177 Cal. 690 [ 171 Pac. 958 ], a sentence such as we are…