I respectfully dissent. Today we decide whether the People, in charging a violation of Penal Code1 section 4532, subdivision (b) (attempted escape from the custody of the sheriff of Alameda County), were also required to plead and prove that defendant wasconstructively "confined in state prison" at the time he attempted to escape in order for section 1170.1, subdivision (c) to be applied. I would hold that neither the statutory scheme nor due process mandate such pleading and proof at trial before a court may compute the length of a consecutive sentence pursuant to section 1170.1, subdivision (c), as an offense committed while defendant was "confined in state prison." In my view, defendant was properly sentenced.
I. PRELIMINARY MATTERS Before proceeding further with an analysis of consecutive sentencing law as it applies here, it is important to clarify what this case is and is not about.
A. Defendant's Offense Was Not an Attempted Escape From a"Local Facility."
For the majority to begin their analysis by concluding that defendant was charged with attempted escape from a "local facility" is to begin the journey by boarding the wrong train. Presumably this misimpression has been drawn from the information which charged a violation of section 4532 subdivision (b) by alleging "defendant having been arrested and booked and *Page 308 charged with a felony and in lawful custody of the sheriff ofAlameda County" did attempt to escape." (Italics added.) The allegation that defendant was in the "custody of the sheriff of Alameda County" is not the equivalent of pleading an attempted escape by one who "is confined in . . . county jail" which is also made unlawful by section 4532 subdivision (b).2 Only if defendant had been charged with attempted escape from "county jail" — which he was not — would a discussion of the law applicable to attempted escape from a "local facility" become relevant.B. Defendant Was Correctly Charged and Convicted UnderSection 4532, Subdivision (b).
This is not a case where the defendant was charged under the wrong code section.It has been suggested that computation of a full consecutive sentence under section 1170.1, subdivision (c), might have been proper if defendant had been charged and convicted of attempted escape from state prison under section 4530. I disagree. Section 4532, subdivision (b), and not section 4530, is the appropriate statute for charging an attempted escape by a state prison inmate who is physically in the custody of someone other than the Department of Corrections at the time of the offense.
Section 4530 appears to apply only to a prison inmate who attempts to escape while physically in a state prison or while constructively in a state prison because he is otherwise in the physical custody of the Department of Corrections. Because those circumstances were not descriptive of defendant's status in our case, section 4530 could not have been appropriately used. Further, defendant could have been given a full consecutive sentence under section 1170.1, subdivision (c), whether he was charged with violating section 4532, 4530 or, for that matter, any other felony offense so long as it occurred while he was actually or constructively confined in state prison. (People v.Lamont (1986) 177 Cal.App.3d 577 [223 Cal.Rptr. 52].) Bringing section 4530 into the analysis on the subject of notice of prison inmate status merely serves to obscure the issue.
C. Section 1170.1, Subdivision (c), Applies in This Case.
My colleagues in the majority rely on People v. Jones (1980) 110 Cal.App.3d 75 [167 Cal.Rptr. 571] in concluding that section 1170.1, *Page 309 subdivision (c), did not apply in this case, stating: "It is also plain that the consecutive sentencing scheme of subdivision (c) applies only to felonies committed in an escape by one confined in a state prison. Stated another way, one who escapes from a local facility or jail in violation of subdivision (b) of section 4532, must be given a consecutive term, but that term is to be calculated by the one-third of the midterm scheme contained in subdivision (a) of section 1170.1." (Maj. opn. at p. 304.)First of all, subdivision (c) applies to more than felonies committed in an escape — all felonies committed in prison or outside prison following an escape fall within its purview. More importantly, reliance on Jones is misplaced under our facts.Jones provides a rule applicable where a defendant escapes or attempts to escape while serving local time. It does not address cases like this one. Here, defendant was physically in local custody but constructively in state prison at the time he tried to escape. In re Kindred (1981) 117 Cal.App.3d 165 [172 Cal.Rptr. 468], declined to decide the "open, difficult" question whether the Jones rule "applies to a person sentenced to state prison who escapes from local custody before actual confinement in prison." (Id. at p. 168.) The present case calls for that decision to be made today.
Defendant's escape attempt was not literally committed while he was "confined in a state prison." Instead, it occurred in the Alameda County Courthouse while defendant was in the custody of the county sheriff as a parole violator awaiting both return to state prison and sentencing on a dozen new felonies to which he had pleaded guilty. In my view, defendant was constructively "confined in a state prison" because his parole had already been revoked at the time of his attempted escape.
The doctrine of constructive custody has been applied in several different contexts. People v. Nick (1985)164 Cal.App.3d 141 [210 Cal.Rptr. 137] established that a defendant committed to the custody of the Department of Corrections who escaped from a conservation camp was in state prison for purposes of 1170.1, subdivision (c). People v. Pitcock (1982)134 Cal.App.3d 795 [184 Cal.Rptr. 772] decided that a defendant in the custody of the Department of Corrections and serving time at Deuel Vocational Institute was constructively in state prison for purposes of section 1170.1, subdivision (c). Finally, in People v. Lamont, supra, 177 Cal.App.3d 577, the court held that a defendant who was serving time in a work furlough program while in the custody of the Department of Corrections was constructively in state prison for purposes of section 1170.1, subdivision (c).
At the time of defendant's escape in our case his custodial status resulting from the revocation of his parole had already been placed under the *Page 310 Department of Corrections. Therefore, he was in the constructive custody of the Department of Corrections at the time of his escape. Accordingly, the same rationale that lead to the conclusions in Nick, Pitcock and Lamont should also apply here so that defendant's actions rendered him subject to section 1170.1, subdivision (c).
II. SECTION 1170.1 IS NOT THE TYPE OF ENHANCEMENT STATUTE WHICH REQUIRES SEPARATE PLEADING AND PROOF AT TRIAL Contrary to the approach of the majority and the decision inPeople v. Logsdon (1987) 191 Cal.App.3d 338 [236 Cal.Rptr. 359], I would hold that neither the statutory scheme nor due process require the People to plead and prove that section 1170.1, subdivision (c), applies in a given case before a sentencing judge may compute the length of a consecutive sentence under that statute. In my view, section 1170.1, including subdivision (c), is a sentence computation statute which acts tolimit the length of a consecutive sentence that is imposed under other statutes. Thus, the issue of whether the statute applies in a given case is simply a matter to be considered during the normal sentencing process.
A. Statutory Analysis
1. The Statutory Scheme
Section 1170.1 generally has the effect of limiting the total sentence to be served where consecutive sentences have been imposed. There are five different fact patterns (subdivisions (a) through (e)) subject to five different limitations. Were it not for these limitations, there would be no statutory limit to keep a defendant from serving the full term for each additional consecutive term, one right after the other.Subdivision (a) establishes an aggregate term for consecutive sentences consisting of the principal (greatest) term plus the subordinate (additional) terms and instructs the court to take one-third of the middle term for the additional offenses excluding enhancements. It then imposes a five-year cap on the total of all of the subordinate terms.
By comparison, section 1170.1, subdivision (c), establishes the maximum length of a consecutive sentence as a function of defendant's state prison status when any new offense is committed. It first logically instructs that a consecutive sentence imposed on any offense committed after a defendant has been placed in state prison shall not commence until the defendant would have been released on the pre-existing sentence. It then goes on to instruct that if the defendant is being sentenced on more than one new *Page 311 offense and the multiple new terms are to be served consecutive to one another, the same computation formula from subdivision (a) is to be used except that the total of any subordinate terms may exceed five years in length. People v. Lamont, supra,177 Cal.App.3d 577, 584-585 quotes In re Sims (1981) 117 Cal.App.3d 309, 314 [172 Cal.Rptr. 608] for the proposition that the true legislative intent in making subdivision (b) [redesignated subdivision (c) by a 1982 amendment] applicable to crimes committed by state prison inmates is to require that they serve their full term for such conviction upon the completion of their term for other offenses for which they were convicted. The Legislature has thus made clear that a person who commits offenses while in prison is not entitled to the usual one-third of the middle term for consecutively imposed sentences. Any other reading of the section would make subdivision (c) superfluous.
2. Statutory Interpretation
There is nothing in section 1170.1 nor in any other statute or court rule which requires from a statutory interpretationviewpoint that the applicability of section 1170.1, subdivision (c), be pleaded and proved at trial. In fact, subdivision (f) of section 1170.1 specifically identifies those eleven enhancement statutes which "shall be pleaded and proven as provided by law." Conspicuous about the list in subdivision (f) is the omission of any reference to subdivision (c). Thus, it appears that it was the intent of the Legislature to exempt section 1170.1, subdivision (c), from the requirement of pleading and proof at trial.3A further clear indication that statutes like section 1170.1 are not subject to pleading and proof at trial is found in the Advisory Committee's comment to rule 405 of the California Rules of Court which states: "`Charged' and `found.' Statutes require that the facts giving rise to most enhancements be charged and found. . . . But the enhancement arising from consecutive sentences results from the sentencing judge's decision to impose them, and not from a charge or finding." (Italics added.) A court's decision to make a sentence consecutive or concurrent is based on other authorizing statutes (for example §§ 669, 4501, 4501.5, 4502 or 4530) and not on section 1170.1, *Page 312 subdivision (c). The latter statute comes into play only after adecision to make the sentence consecutive has already been made.
In the present case, section 4532, subdivision (b), itself mandates that a sentence for an attempted escape with force shall be served consecutively to any underlying sentence. All section 1170.1, subdivision (c), says is that, if a defendant receives a new sentence on an offense committed after he is in state prison, he must first finish his underlying unserved term before service of the new consecutive sentence commences. The application of section 1170.1 has computational purposes only and does not involve determinations of guilt or innocence. I would hold, therefore, that application of any of the subdivisions in section 1170.1 belongs within the sentencing judge's realm and not the jury's.4
B. Due Process Considerations: Adequate Notice of CustodialStatus as an Issue at Sentencing.
1. General Due Process Standards
It has been argued that failure to plead and prove to the jury defendant's custodial status as being "constructively in state prison" precludes the use of section 1170.1, subdivision (c). According to the argument, defendant did not receive sufficientnotice that he would be faced at the time of sentencing with his status as a parole violator whose parole had been revoked awaiting return to state prison.It is generally the rule that sentencing considerations need not be treated as elements of an offense upon which the defendant has a right to a full-blown trial by jury. (McMillian v.Pennsylvania (1986) 477 U.S. 79 [91 L.Ed.2d 67, 106 S.Ct. 2411].) Moreover, "[o]nce guilt has been determined, evidence which would be inadmissible on the issue of guilt may nevertheless be received as bearing on the punishment to be imposed." (People v. Peterson (1973) 9 Cal.3d 717, 725 [108 Cal.Rptr. 835, 511 P.2d 1187], citing Williams v. New York (1949) 337 U.S. 241 [93 L.Ed. 1337, 69 S.Ct. 1079].)
While the burden of proof during sentencing may be less stringent than the one required during trial, due process questions are raised where a *Page 313 defendant's sentence is greatly enhanced on the basis of facts found exclusively by the sentencing judge. (People v. Foley (1985) 170 Cal.App.3d 1039, 1055 [216 Cal.Rptr. 865].) When the Legislature has delegated authority to find facts resulting in substantially increased sentences, it has generally provided explicit due process protections such as notice, hearing and the opportunity for cross-examination. (Id. at p. 1056.) For example, a probation hearing incident to sentencing does not require the same procedural safeguards as a trial on the issue of guilt. The court may consider uncharged evidence if it has some substantial basis to believe that the information is reliable. (People v. Peterson, supra, 9 Cal.3d 717, 726-727.) Where a sentencing judge makes findings of aggravated circumstances justifying an upper term of imprisonment, the defendant is entitled to present a statement on his behalf and respond to the probation report assertions and recommendations. The court must weigh all the evidence to establish that aggravating factors outweigh mitigating factors. (Cal. Rules of Court, rule 439(b);People v. Nelson (1978) 85 Cal.App.3d 99, 101-103 [149 Cal.Rptr. 177].) During these proceedings a defendant receives notice of the sentencing factors being considered and has an opportunity to respond. Both the People and the defense may present argument and evidence regarding sentencing choices and findings of aggravation or mitigation. (See Cal. Rules of Court, rule 439(b), § 1170, subd. (b).) Consequently, there is no denial of due process inherent in such procedures. Due process objections to the determinate sentencing law alleging lack of adequate notice and improper use of a lower standard of proof in making aggravation findings have been rejected. (People v.Nelson, supra, 85 Cal.App.3d 99, 101-103; People v. Thomas (1979) 87 Cal.App.3d 1014, 1021-1024 [151 Cal.Rptr. 483].)
A finding of aggravation under section 1170, subdivision (b) has the same effect as a finding that a defendant was "in state prison" or "subject to reimprisonment for escape" under section 1170.1, subdivision (c). The sentencing court's finding of a fact in aggravation by a preponderance of the evidence may result in a defendant spending a longer time in prison. Similarly, a finding that the defendant committed an offense while in state prison or while subject to reimprisonment for escape may result in a longer prison stay. It follows, therefore, that the same type of evidentiary proceeding which provides adequate due process protection in finding aggravating factors for sentencing also provides adequate due process protection when determining a defendant's custody status at the time of an attempted escape. Proof regarding defendant's state prison status at the time an offense was committed may be reliably established through the probation report or other evidence in the same way that the probation report or other evidence can be a source for findings of aggravation. *Page 314
2. Defendant Received Due Process at the Time of his Sentencing
In our case the probation report revealed that approximately six months after defendant had been released on parole, he committed new felonies. At the sentencing hearing the district attorney reported to the court that he had confirmed with the state parole board that defendant's parole had been revoked and that he was "doing state prison time" on the date of the attempted escape.The sentencing judge further observed: "As far as the sentencing is concerned, I have been advised and apparently there is no dispute over the fact that the defendant was in fact confined to the [state prison] in that he had been sentenced under his Morrissey hearing and was under a parole violation jail time. And while it was being done here at county jail pending trial, it is still under the law as the court sees it [state prison time]. A person does not actually have to be in state prison per se to come within the provision of section 170.1(c) [sic] which controls mandatory consecutive sentencing for someone who commits such an offense of escape."
In response, defense counsel stated he had "no knowledge of Mr. Mitchell's status." Clearly defense counsel was not contesting the fact of his client's parole violation status — nor did he request a continuance to clear up any doubts or to become better informed on the point.
The circumstances of our case lead to no conclusion other than that the defendant did receive reasonable notice and had ample opportunity at the time of sentencing to contest that his parole had been violated or otherwise clarify his custodial status.5
3. The Rationale of People v. Logsdon is Unpersuasive
In People v. Logsdon, supra, 191 Cal.App.3d 338, the defendant escaped from Deuel Vocational Institute where he was serving a five-year sentence for a burglary conviction. He then committed a robbery. After defendant was apprehended, he was charged with robbery and conviction of a prior serious felony. (§§ 667, 1192.7, subd. (c).) Defendant pleaded guilty to the robbery charge and waived jury trial on the prior felony enhancement *Page 315 allegation. The court found the enhancement allegation true. Defendant was then sentenced to state prison for consecutive terms totalling eleven years consisting of the five-year unexpired term for the burglary and section 667.5 enhancement, one year for the robbery and five years for the serious felony enhancement.The Logsdon court noted that the Supreme Court has stated that, even though section 667 was omitted from section 1170.1, subdivision (f), a prior serious felony enhancement is still subject to pleading and proof at trial. (People v. Logsdon,supra, 191 Cal.App.3d at p. 343, citing People v. Jackson (1985) 37 Cal.3d 826, 835, fn. 12 [210 Cal.Rptr. 623,694 P.2d 736].) The Supreme Court's statement was clearly based on due process considerations. As a result, the Logsdon court summarily concluded that the same pleading and proof requirement applied to section 1170.1, subdivision (c). (People v.Logsdon, supra, at p. 344.)
With all due respect to the Logsdon court, I find its conclusion unpersuasive. The issue of sentence enhancement pursuant to section 667 discussed in the Jackson dictum is substantially different from consecutive computation pursuant to section 1170.1, subdivision (c). Enhancements of the type considered in Jackson involve imposition of a separate term in addition to the underlying term. By contrast, the so-called enhancement effect of consecutive sentence computation under section 1170.1, subdivision (c), only involves lengthening the term of the new, already imposed, consecutive sentence.
Our recent decision in People v. Hooker* (Cal.App.) is very much on point. In Hooker, we concluded that the enhancement arising from consecutive sentences imposed pursuant to section 667.6 (full, separate, consecutive five-year enhancements for sex crimes) were the result of the sentencing judge's decision to impose them and not from any charge or finding. As we explained in Hooker: "The full-force sentencing provisions of section 667.6 do not constitute an enhancement that must be proven or pleaded. . . . This provision effects thelength of the consecutive sentence. It does not change the fact that the consecutive term is imposed for the underlying crime that has clearly been charged in the information. There isnothing else to charge or find other than that the defendantcommitted the crime of which he had notice." Citing People v.Reynolds (1984) 154 Cal.App.3d 796, 810-811 [201 Cal.Rptr. 826], italics added.)
Even if one were to take the position that it is not constitutionally sufficient for a trial judge at sentencing to resolve the entire matter of defendant's state prison status, still defendant Mitchell was given due *Page 316 process in the circumstances of this case. In re Samuel B. (1986) 184 Cal.App.3d 1100 [229 Cal.Rptr. 378] is instructive in that regard.
In Samuel B., the court was faced with a similar issue involving whether pleading and proof was required in order to impose a mandatory three-year enhancement for certain sex offenses under section 667.8 (as to which pleading and proof not required under 1170.1, subd. (f).) In concluding that "nothing in the language of section 667.8 or any other section, requires the facts necessary to invoke section 667.8 be pleaded and proved, or that one be placed on notice by pleading the statute," the court went on to observe: "This is not a case in which, to invoke the statute, the court must make `a new finding of fact [citation] that was not an ingredient of the offense charged,' which requires notice and other due process safeguards, as in Specht v. Patterson (1967) 386 U.S. 605, 608 [18 L.Ed.2d 326, 329, 87 S.Ct. 1209]; but is a case in which no new finding of fact is necessary to apply the statute because that necessarily was established beyond a reasonable doubt when defendant was convicted of the underlying offenses. The finding affects only the computation of the maximum term and merely `ups the ante' on defendant, as in McMillan v. Pennsylvania, (1986)477 U.S. 79, 89 [91 L.Ed.2d 67, 106 S.Ct. 2411], presenting no due process issue, because he is not confronted with `"a radically different situation" from the usual sentencing proceeding.' 477 U.S. at p. 89 [91 L.Ed.2d at p. 78]." (In re Samuel B., supra,184 Cal.App.3d 1100, 1107-1108.)
As in Samuel B., the critical elements of the underlying offense in our case were all found true beyond a reasonable doubt by the jury to wit: (a) attempted escape from the custody of the sheriff (b) by force and violence, The sentencing court's determination of the mixed question of law and fact regarding whether defendant was constructively in state prison at the time of the escape "affects only the computation of the maximum term and merely `ups the ante' on defendant." (In re Samuel B.,supra, 184 Cal.App.3d 1100, 1107-1108.) In my view based on the foregoing sequence of events, defendant received all the notice and had all the due process to which he was entitled.
III. THE GUN ENHANCEMENT SHOULD NOT BE STRUCK. Unlike subdivision (a) of section 1170.1, subdivision (c) does not bar the imposition of enhancements that may attach to a full, consecutive term imposed. The California Supreme Court inPeople v. McCart (1982) 32 Cal.3d 338, 344 [185 Cal.Rptr. 284,649 P.2d 926] observed with respect to subdivision (c) of section 1170.1 (then designated subdivision (b)) that the subdivision "also provides for imposition of the full base term, aggravated and enhanced [italics added] if appropriate, for the first or most serious in-prison *Page 317 felony." Therefore, I would not strike the gun possession enhancement as the majority has held must be done.
CONCLUSION For the reasons set forth above, I conclude that defendant was properly sentenced under 1170.1, subdivision (c). I would affirm the judgment.