People v. Mitchell

199 Cal. App. 3d 300, 244 Cal. Rptr. 803, 1988 Cal. App. LEXIS 203

• Court: California Court of Appeal
• Decided: March 7, 1988
• Docket: A034588
• Status: Published

Opinions

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] OPINION

Following a jury trial defendant Corwin Mitchell was found guilty of assault upon a police officer (count I, Pen. Code, §241, subd. (b)),¹ a lesser included offense to the charge of assault with a firearm upon a police officer (§ 245, subd. (c)) and escape from lawful custody using force or violence (count II, § 4532, subd. (b)) while armed with a firearm (§ 12022, subd. (a)).² He was sentenced to state prison for the aggregate term of eight years,³ the sentence being ordered to run fully consecutively to that imposed in the proceedings which defendant had been undergoing at the time of his escape. He appeals contending inter alia that the trial court erred in imposing a full upper term for the escape, that the court erred in imposing a one-year term for the arming enhancement in addition thereto and that the trial court failed to give sufficient reasons for imposing the aggravated term.

REVIEW (1a) Defendant's initial challenge to the sentence goes to the propriety of imposing a full upper term for escape. In his view, because his crime was the attempted escape from a local facility, the trial court was required to sentence him to a consecutive term consisting of one-third of the middle term pursuant to section 1170.1, subdivision (a), rather than a full consecutive term pursuant to subdivision (c) of section 1170.1. We agree.

At all relevant times to this proceeding,⁴ section 4532, subdivision (b) provided that the punishment for an escape from lawful custody by force or violence was two, four or six years "to be served consecutively." The statute did not set forth a method for calculating consecutive terms and the parties do not contend otherwise. The answer lies elsewhere: somewhere in section 1170.1.

Subdivision (a) of section 1170.1 provides that "Except as provided in subdivision (c) . . . [t]he subordinate term for each consecutive offense which is not a `violent felony' . . . shall consist of one-third of the middle term of imprisonment. . . ." The stated exception, subdivision (c), provides in part that: "In the case of any person convicted of one or more felonies committed while the person is confined in a state prison, or is subject to reimprisonment for escape from such custody and the law either requires the terms to be served consecutively or the court imposes consecutive terms, the term of imprisonment for all the convictions which the person is required to serve consecutively shall commence from the time such person would otherwise have been released from prison." (Italics added.)

(2) Thus it is clear that where a defendant escapes from state prison, section 1170.1, subdivision (c), requires the trial court to impose a full and separate consecutive sentence for the crime. (See People v.Galliher (1981) 120 Cal.App.3d 149, 153-155 [174 Cal.Rptr. 467] ; In re Sims (1981) 117 Cal.App.3d 309, 313-314 [172 Cal.Rptr. 608]; In re Kindred (1981) 117 Cal.App.3d 165, 167-168 [172 Cal.Rptr. 468].) 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 stateprison. 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. (Accord Wasko v. Vasquez (9th Cir. 1987) 820 F.2d 1090, 1093; People v. Jones (1980)110 Cal.App.3d 75, 77 [167 Cal.Rptr. 571].)

So far, the parties are in agreement. In order to understand why they differ on selecting the subdivision which governs this case, reference must be made to the underlying facts.

Defendant's attempt to escape occurred on February 7, 1985, following a hearing in the Alameda County Superior Court concerning 10 armed robberies, a burglary and a false imprisonment he committed in February of 1984.⁵ When defendant committed these crimes, he was on parole from state prison; in fact he had been on parole since August 22, 1983. According to the prosecutor's statement at the sentencing hearing, at the time of the attempted escape, defendant "had been sentenced under his Morrissey[⁶] hearing and was under a parole violation jail time." There is no competent evidence in the record, however, to show that the Morrissey hearing had in fact occurred.

(1b) Because defendant was on parole at the time of his attempted escape and perhaps that parole had been revoked, the Attorney General argues that defendant was constructively "`confined in state prison,'" and therefore could be subjected to a full consecutive sentence under section 1170.1, subdivision (c). That argument might have merit if those allegations had been the basis for charging and convicting defendant of attempted escape from state prison, in violation of section 4530. Here, however, the crime charged and for which defendant was convicted was escape from local custody under section 4532, subdivision (b). (3a) The question thus becomes whether defendant's sentence for the crime of escape from local confinement can be enhanced on a factual predicate — confinement in state prison — which was neither pleaded nor proven to the jury. We hold it cannot.

This is not the first case to examine such an issue. Thus inPeople v. Jackson (1985) 37 Cal.3d 826 [210 Cal.Rptr. 623,694 P.2d 736], the California Supreme Court looked at the question of whether a serious felony enhancement under section 667 could be imposed by the trial court where the issue had not been pleaded and proven. The court reasoned: "The court could not impose an enhanced term for a subsequent serious felony without proof of each fact required for that enhancement, and principles of due process would require that defendant receive notice of the facts the prosecution intends to prove." (Id. at p. 835, fn. 12.)

Because a full consecutive sentence is an enhancement, (Cal. Rules of Court, rule 405(c)) the court in People v. Logsdon (1987) 191 Cal.App.3d 338 [236 Cal.Rptr. 359], followed Jackson and held that "the principles of due process also require a defendant receive notice of the facts the prosecution intends to prove in order to apply the provisions of section 1170.1, subdivision (c)." (People v. Logsdon, supra, at p. 344.) We find Logsdon persuasive here.

In Logsdon, the defendant escaped from Deuel Vocational Institute and committed a robbery. The prosecution sought a full consecutive sentence under section 1170.1, subdivision (c), contending that the defendant had committed the new felony while "`subject to reimprisonment for escape'" from state prison. TheLogsdon court answered: "Thus, when there is a possibility that full consecutive sentences may ultimately be imposed under section 1170.1, subdivision (c), the prosecution must plead and prove an allegation that the defendant was `subject to reimprisonment for escape' at the time he committed the felony in question and defendant must be afforded the opportunity to respond to and disprove such allegation, if possible. In a jury trial, the jury should be so instructed and the findings must be sufficiently specific to insure the certainty that the jury has reached a verdict which necessarily supports the imposition of full term, consecutive sentences on the basis the defendant was `subject to reimprisonment for escape' from state prison. [Citation.]" (At p. 344.)

The Logsdon rationale applies with equal force to the situation at hand, i.e., where the defendant is charged and convicted of escape from local custody but the prosecution seeks imposition of a full consecutive sentence because the defendant committed that crime "while confined in a state prison." Fundamental principles of due process require that where the prosecution seeks to rely on the defendant's status as a state prison inmate rather than as a local inmate, the defendant must be given notice of that fact and he must be given an opportunity to respond. Further the prosecution must prove and the jury must find that allegation to be true beyond a reasonable doubt. To hold otherwise would transfer from the jury to the trial court the power to find the essential factual predicates for imposition of a full consecutive sentence and would alter the burden of proof from beyond a reasonable doubt to a preponderance of the evidence.

(4a) There is, of course, nothing unusual or startling about the Logsdon rationale and holding. It is fully consistent with the approach utilized for full consecutive sentences for certain sexual offenses under the scheme of section 667.6, subdivision (c). Where the consecutive term is predicated on facts not identical to the charged crime, the factual allegations necessary to invoke section 677.6 must be pleaded and proved. (People v.Riffey (1985) 171 Cal.App.3d 419, 424-425 [217 Cal.Rptr. 319];People v. Reyes (1984) 153 Cal.App.3d 803, 813 [200 Cal.Rptr. 651] .)

(3b) (See fn. 7.) For these reasons, we follow Logsdon and hold that in the absence of compliance with the fundamental requirements of due process, e.g., notice and an opportunity to be heard, the trial court could not sentence defendant to a consecutive term under section 1170.1, subdivision (c). (1c),(4b) We therefore conclude that the trial court erred in utilizing that provision when imposing a full consecutive term for defendant's present crime.⁷ (5) This result compels the conclusion that the additional term for the gun possession enhancement must be stricken; a subordinate term for the consecutive offense excludes enhancements. (§ 1170.1, subd. (a);People v. Masten, supra, 137 Cal.App.3d at pp. 590-591.)⁸

The judgment is modified by: (a) striking all reference to the term of "6" years for escape with force and substituting therefor the term of one year and four months (one-third of the middle term of four years); and (b) striking all reference to the term of one year under section 12022, subdivision (a). The Clerk of the Alameda County Superior Court is directed to prepare and file a corrected abstract of judgment reflecting these modifications and to forward a certified copy thereof to the Department of Corrections. In all other respects the judgment is affirmed.

Channell, J. concurred.

¹ All statutory references are to the Penal Code.

² The jury found defendant not guilty of count IV, assault with a firearm (§ 245, subd. (a)(2)) and of the lesser included offense of simple assault (§ 240). The jury also found that defendant did not personally use a firearm in conjunction with the escape (§ 12022.5).

³ No sentence was imposed for the misdemeanor conviction in count I; on the trial court's own motion the conviction was dismissed.

The information further charged that defendant had numerous prior convictions. Prior to trial defendant admitted 21 of them. He received a one-year enhancement as one prior came within the provisions of section 667.5, subdivision (b).

⁴ If this case were tried today the issue would be nonexistent for recent amendments to section 4532, subdivision (b) make it abundantly clear that a full consecutive term is to be imposed in this case.

As amended in 1985, subdivision (b) of section 4532 now provides in pertinent part: "Every prisoner . . . who is confined in any county or city jail . . . or who is in the lawful custody of any officer or person . . . who escapes or attempts to escape . . . is guilty of a felony and, . . . provided, that if such escape or attempt to escape is by force or violence, such person is guilty of a felony and is punishable by imprisonment in the state prison for a full term of two, four, or six years to be consecutive to any other term of imprisonment, commencing from the time the person would otherwise have been released from imprisonment and the term shall not be subject to reduction pursuant to subdivision (a) of Section 1170.1, . . ." (See Stats. 1985, ch. 915, § 1.)

⁵ The record is not clear regarding the nature of that appearance in the robbery case. The probation report at one point suggests that defendant was sentenced on February 7, but then at two other places says he was sentenced on March 29, 1985. We note, however, that during the trial the parties entered into a stipulation to the effect that on February 7, 1985, defendant was in the lawful custody of a deputy sheriff "for a court appearance and return to a county jail facility awaiting sentencing." This suggests to us that defendant was not sentenced for the robberies on the day of his attempted escape.

⁶ Morrissey v. Brewer (1972) 408 U.S. 471 [33 L.Ed.2d 484, 92 S.Ct. 2593].

⁷ Unlike the tack of the dissenting opinion, we find inapposite our holding in People v. Hooker[*] (Cal.App.). There the elements of the charged crime were coextensive with the requisite elements for imposition of full consecutive sentences under section 667.6, subdivision (c). Under such circumstances, there is no requirement for pleading section 667.6, subdivision (c) nor proving it to the jury. (Accord People v. Reynolds (1984) 154 Cal.App.3d 796, 810-811 [201 Cal.Rptr. 826]; 0People v. Price (1984) 151 Cal.App.3d 803, 820-821 [199 Cal.Rptr. 99];People v. Masten (1982) 137 Cal.App.3d 579, 591-592 [187 Cal.Rptr. 515]; People v. Stought (1981) 115 Cal.App.3d 740, 742-743 [171 Cal.Rptr. 501].) But, where the elements for imposition of full consecutive sentences under section 667.6, subdivision (c) are not coextensive with the elements of the charged crimes, the rule — for obvious reasons — is the opposite: all matters necessary to trigger full consecutive sentences must be pleaded, proven and found by the jury beyond a reasonable doubt. (People v. Foley (1985) 170 Cal.App.3d 1039, 1057 [216 Cal.Rptr. 865]; accord People v. Cortez (1986) 187 Cal.App.3d 1152, 1155 [232 Cal.Rptr. 374]; People v. Reber (1986)177 Cal.App.3d 523, 535 [223 Cal.Rptr. 139]; People v. Riffey,supra, 171 Cal.App.3d at pp. 424-425; People v. Reyes,supra, 153 Cal.App.3d at p. 813.) Nothing we said in Hooker criticizes or varies from that unanimous view.

[*] Reporter's Note: Opinion (A033479) deleted upon direction of the Supreme Court by order dated June 9, 1988.

⁸ The instant crime is not a "violent felony" as defined in section 667.5, subdivision (c), and therefore an enhancement for the gun possession is not allowed under section 1170.1, subdivision (a).