PEOPLE v. MAYES (1990)

Appellant was convicted by a jury of two misdemeanor counts of destruction of a jail (violation of Pen.Code,2 § 4600) and one count of possession of a destructive device (violation of § 12303.3).   He was sentenced to the upper term of seven years for the possession of a destructive device, and given concurrent sentences of 180 days each on the misdemeanor counts.   The seven-year term was ordered to run consecutive to (i.e., to commence upon the expiration of) the defendant's then-in-progress term of five years and eight months for previous convictions.   Appellant cites numerous alleged errors in his appeal.   We affirm.

FACTS

The events leading to the criminal charges all occurred at the San Diego Detention Facility, more commonly known as the county jail.   Appellant had been serving his previous sentence in state prison.   His residence at the county jail was for the purpose of permitting retrial on unrelated offenses.   The evidence at trial, consisting mostly of the testimony of jailers and appellant's felonious co-residents of the jail, was conflicting in many respects.   Our summation of the facts is guided by the jury's findings of guilt, which mandate factual inferences generally adverse to appellant's contentions.  (See 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 288, p. 300.)

Appellant's malefactions all took place in his cell.   He appears to have been consistently incarcerated in a solitary cell, the disagreeable nature of which no doubt contributed to the motivation for his misdeeds.   Typical of his reaction to his circumstance was the statement “You are going to be sorry that I am in a G cell.   I am going to tear things up․”   Although there was some evidence suggesting at one point the intervention of another convict, the circumstance of appellant's being the only occupant of the place where the jail trashing and other incidents occurred made the identity of the perpetrator rather obvious.

Appellant's bad humor and its destructive results covered a period from June of 1986 through March of 1987.   Significant incidents or events presented to the jury, in chronological order, were:

June 5, 1986:  When informed of disciplinary action against him, appellant became hostile and stated he was going to riot and cause a lot of trouble.   His cell light was found broken.

June 7, 1986:  Appellant's sink was found broken, copper tubing having been removed from it.   In the presence of a jailer he picked up the sink and dropped it on its mountings, and made statements about how he was going to tear the place up.

June 11, 1986:  Appellant broke his cell light again and stated to the jailer he would use the glass to cut someone.

Jan. 10, 1987:  Appellant made comments, overheard by the jailers, to the effect that “The only good cop is a dead cop.”

Jan. 12, 1987:  In a surprise search of the cell the jailers found a hair grease bottle stuffed with matchheads, glass fragments, wire and paper, into which had been inserted a paper wick.   The previous day a jailer had seen a similar bottle (used for gel hair dressing) in appellant's cell.   At that time it was not filled with the miscellaneous materials noted the next day.   Appellant's evidence tended to show the existence of animosity between him and other prisoners which might have suggested a “plant” of the flammable gel jar.   The jury's determination of guilt requires the conclusion that the jar and its curious contents were the work of appellant.   Since there is ample evidence to support this conclusion, we do not detail the interesting but largely irrelevant testimony of appellant's witnesses.

March 19, 1987:  Appellant stuffed a towel in his Turkish toilet causing it to overflow.   Later the sink was found broken and the light fixture on the ceiling detached.

APPELLANT'S CONTENTIONS OF ERROR

Appellant's claims on appeal fall into five categories:

I. Failure to replace advisory counsel upon appellant's request.

II. Failure to insulate the jury from prejudicial evidence and court comments.

III. Failure to give sua sponte instructions.

IV. Misconduct of the prosecutor.

V. Sentencing error.

DISCUSSION

I.—IV.*

V. Sentencing Error

At the time of commission of the charged offenses, and also at time of sentencing, the defendant was then serving a state prison sentence for robbery (five years) and a consecutive sentence for failure to appear (eight months).   The court was required to determine the effect of these preexisting sentences on the new sentence for possession of a destructive device.   The defendant argued that the sentencing should be in accordance with section 1170.1(a), which generally provides that consecutive terms shall consist of one-third the middle term of imprisonment.   The defendant thus contended the sentencing judge should have treated all convictions, including the earlier convictions for burglary and escape, as one set of crimes from which one principal term should be selected, all other terms then being relegated to subordinate status and, if to run consecutively, imposed at one-third the base term.  (See §§ 1170.1(a) and 669;  Greer & Clarke, The Felony Sentencing Manual (1988) p. 1–6.)   The prosecution, joined by the probation department, contended that the sentencing was governed instead by section 1170.1(c), which provides for imposition of the full term for the new offense, to commence on the termination of the previously imposed term.³  The imposition of the “full term” for sentencing under subdivision (c) is based upon a determination that the new felonies were committed either “while the person [was] confined in state prison” or at a time when he was “subject to reimprisonment for escape from such custody.”   Concluding the case to be governed by subdivision (c), the court imposed an aggravated term of seven years for the crime of possession of a destructive device, determining such seven-year term should run consecutive to the preexisting term of five years and eight months—thus producing a total term of twelve years and eight months.

 The existence of the prior prison terms was reflected in the probation report and was not contested at the sentencing hearing by the defendant.   While the newly committed crimes were accomplished when the defendant was in the county jail, the record reflects he was there on a temporary sojourn from his state prison confinement.   A person is deemed “confined in state prison” once a prison sentence is imposed, even though he is temporarily located elsewhere, as was appellant, in local confinement.  (People v. Lamont (1986) 177 Cal.App.3d 577, 582, 223 Cal.Rptr. 52.)

Although appellant asserts that prison confinement status was not formally “proved,” we apprehend his point is not that such status was not in fact existent, but that the procedures used to establish such status were inadequate to trigger the provisions of section 1170.1(c).   Specifically, appellant contends the imposition of the full consecutive sentence was a sentencing “enhancement” which was required to be pled and proved in appellant's jury trial.   There is no question that the prior convictions were not pled or proved in the jury trial;  they were not formally raised until brought forth by the probation report.   Appellant contends this procedure violated his due process right of fair advisement of allegations against him.   More specifically, appellant relies on People v. Mitchell (1988) 199 Cal.App.3d 300, 244 Cal.Rptr. 803 and People v. Logsdon (1987) 191 Cal.App.3d 338, 236 Cal.Rptr. 359, which he contends require formal pleading and proof of confinement in prison for the purpose of triggering section 1170.1(c).   We are obliged to review these cases in detail, but first find it helpful to approach the issue on a more general basis.   Our objective is to analyze when an increased sentence can be imposed without establishing the foundational facts for same by pleading and proof at trial.

 We start by recognizing that a great amount of discretion in terms of sentence severity selection is vested in the trial judge.   Sentence choice is exercised upon the basis not only of facts found and established in the trial or by guilty plea, but also from facts determined solely by the judge at the sentencing hearing.   The trial judge selects a lower or higher term by weighing these facts, and the difference in severity of the sentence can be substantial..  (§ 1170.1(a);  Cal.Rules of Court,4 rules 419–439;  3 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Punishment for Crime, § 1453, pp. 1719–1722.)   Similar discretion and similar fact determination are made when the court determines whether to grant or deny probation.  (See rules 414, 416.)   Equally weighty in terms of the actual time to be served is the sentencing court's determination whether to run multiple sentences concurrently or consecutively.  (See rule 425;  3 Witkin & Epstein, supra, § 1475, p. 1752 et seq.)   Due process requirements in terms of reasonable notice, hearing and an opportunity to cross-examine are provided by the procedures attendant the sentencing hearing itself.  (See People v. Nelson (1978) 85 Cal.App.3d 99, 102–103, 149 Cal.Rptr. 177;  People v. Foley (1985) 170 Cal.App.3d 1039, 1056, 216 Cal.Rptr. 865;  People v. Peterson (1973) 9 Cal.3d 717, 725, 108 Cal.Rptr. 835, 511 P.2d 1187.)

We also recognize, however, that other facts which will increase the severity of the sentence must be determined by pleading, proof and trial findings.   As stated in People v. Foley, supra, 170 Cal.App.3d at page 1055, 216 Cal.Rptr. 865, “serious constitutional questions of due process of law are raised where a defendant is given a greatly enhanced sentence based upon facts found exclusively by the sentencing judge and not by a jury.”  (Fn. omitted.)   This philosophy is evidenced by the typical requirement that enhancements of sentences be based upon factual determinations pled and proved at trial.   An “enhancement” is an “additional term of imprisonment added to the base term.”  (Rule 405(c).)   Examples of grounds for enhancement are the existence of prior convictions, the commission of a crime while armed, and the infliction of great bodily injury.  (See 3 Witkin & Epstein, supra, § 1473, p. 1750.)   The list of statutory enhancements has grown regularly since the inception of the determinate sentencing law, as evidenced by the compilation set forth in Greer & Clarke, The Felony Sentencing Manual (1988) pp. 1–4 through 1–9.

 Generally the statutory authority creating an enhancement includes an internal requirement that it be established by formal pleading and proof.  (See, e.g., §§ 969 [prior felony conviction], 969c [armed with weapon], 969d [use of weapon], 1170.1(f) [list of specific enhancements which must be pled and proved].)  For example, section 12022.1, which imposes an enhancement for the commission of a felony while a person is released from custody for another offense, requires that “[t]he enhancement allegation ․ shall be pleaded in the information or indictment which alleges the secondary offense and shall be proved as provided by law.”  (Id. at § 12022.1(c).)

The particularization of the requirement of pleading and proof of enhancements has not, however, been flawless.   The Supreme Court in People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736 dealt with a five-year sentence enhancement which had been added by Proposition 8.   New section 667 of the Penal Code did not contain an internal requirement of pleading or proof, nor was it included in section 1170.1(f), which contains a laundry list of sections requiring such pleading and proof.⁵  Nevertheless, the court stated (albeit as dictum in a footnote) that the enhancement could not be imposed simply upon findings made by the court at time of sentencing.  “It is obvious ․ that the enhancement provided by this section is subject to equivalent pleading and proof requirements.   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.”   (People v. Jackson, supra, 37 Cal.3d at p. 835, fn. 12, 210 Cal.Rptr. 623, 694 P.2d 736.)

A similar result was reached in People v. Hernandez (1988) 46 Cal.3d 194, 249 Cal.Rptr. 850, 757 P.2d 1013.   A sentence in that case had been enhanced by three years upon a determination by the sentencing court that a jury conviction of rape, assault and kidnapping established the section 667.8 enhancement of kidnapping for the purpose of committing a sexual offense.   Rejecting the prosecution's argument that this finding was a “sentencing fact” which could be made by the court, the Supreme Court held that kidnapping for the purpose of committing a sexual offense was a factual determination which could be made only by the trial fact finder upon appropriate pleading and proof.⁶  (Id. at pp. 202–204, 249 Cal.Rptr. 850, 757 P.2d 1013.)   In re Samuel B. (1986) 184 Cal.App.3d 1100, 229 Cal.Rptr. 378, which had held the same finding to be a “sentencing fact,” was disapproved, the Supreme Court concluding that the “purpose” for a kidnapping entailed a determination of intent, which required trial pleading and proof.  (People v. Hernandez, supra, 46 Cal.3d at pp. 205–206, 249 Cal.Rptr. 850, 757 P.2d 1013.)

 Unlike imposition of an enhancement (i.e., an additional term appended to a single offense) as considered in Jackson and Hernandez, whether multiple sentences for multiple discrete offenses should run concurrently or consecutively would seem a decision more akin to that involved in selecting an aggravated or mitigated term.  (Compare rules 421 and 423 with rule 425.)   One would expect, therefore, that the factors determining such sentencing choice would be “sentence facts” which could be raised and resolved for the first time at the sentencing hearing.   That hypothesis is confirmed by the advisory committee's comments to rule 405.   The committee stated that while the facts giving rise to most enhancements must be charged and found, “[t]he enhancement arising from consecutive sentences results from the sentencing judge's decision to impose them, and not from a charge or finding.”   While consecutive sentences have been deemed an “enhancement” for some limited purposes (see People v. Lawson (1980) 107 Cal.App.3d 748, 165 Cal.Rptr. 764 [for the purpose of determining whether court made improper “dual use of facts,” facts relied upon to impose consecutive terms will be treated as facts used to impose an “enhancement”] ), the procedural requirements for imposing an enhancement are not synonymous with those for imposing consecutive terms.   Thus, consecutive terms may be imposed solely as a sentencing choice based on facts found by the trial court (rule 425), or may be imposed solely by establishing the crimes themselves, as for instance in the determination of multiple sex crimes under section 667.6.  (See People v. Reynolds (1984) 154 Cal.App.3d 796, 201 Cal.Rptr. 826;  People v. Stought (1981) 115 Cal.App.3d 740, 171 Cal.Rptr. 501.)

 The case before us is based upon the consecutive sentence provision of section 1170.1(c).   The determination triggering consecutive sentencing under that statute is a finding that the new felony was committed “while the person [was] confined in a state prison, or [was] subject to reimprisonment for escape from such custody.”   If a defendant is charged with having committed a crime in state prison, the jury finding of guilt rather obviously compels the conclusion of applicability of section 1170.1(c), and we conceive no purpose in requiring specific pleading to that effect.⁷

What, however, should be the pleading and proof requirement when the statement of the newly committed felony is not, by definition, such as to bring it within the ambit of section 1170.1(c)?   For instance, if the felony is committed by a defendant not at the time in prison, but at large, how must the fact of his “subject to reimprisonment for escape from ․ custody” be shown?   Must it be part of the charging allegation and subject to proof before the trier of fact;  or may it be established through the probation report or other reliable factual source as a “sentencing fact”?   This is the issue raised in the two cases upon which appellant relies, Logsdon and Mitchell.

People v. Logsdon, supra, 191 Cal.App.3d 338, 236 Cal.Rptr. 359 involved sentencing after a guilty plea of robbery.   The court's record at sentencing indicated that the defendant was at large because of escape from Deuel Vocational Institute (for purposes of that case the equivalent of state prison (id. at p. 342, 236 Cal.Rptr. 359)).   The appellate court held section 1170.1(c) could not be utilized because the complaint (to which the defendant had pled guilty) did not include an allegation of escape and at-large status at the time of the felony.   Misconstruing the limited holding of People v. Lawson, supra, 107 Cal.App.3d 748, 165 Cal.Rptr. 764, as support for the broad proposition that imposition of a consecutive sentence is equivalent to an enhancement, and citing People v. Jackson, supra, 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, for the proposition that an enhancement must be pled and proved, the Logsdon court held consecutive sentencing under 1170.1(c) not possible.   The court explained its position on page 344, 236 Cal.Rptr. 359:

“[T]he principles of due process ․ 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).   Thus, when there is the 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.”

Not explained by the Logsdon court is the question of adequate advisement of the defendant before taking the plea of guilty, at which time he presumably was counseled as to the effect of section 1170.1(c), or else a motion to set aside the guilty plea presumably would have been in order.  (In re Tahl (1969) 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 460 P.2d 449.)

The factual issue in People v. Mitchell, supra, 199 Cal.App.3d 300, 244 Cal.Rptr. 803, was not whether the defendant was subject to reimprisonment at the time of commission of the subsequent felony, but whether his status after parole revocation constituted “confined in ․ prison” in the statutory terminology of section 1170.1(c).  (Id. at p. 304, 244 Cal.Rptr. 803.)   As in Logsdon, the particular status of the defendant as a constructive prison confinee had not been alleged.   Unlike Logsdon (where we might presume adequate advisement at time of taking of the guilty plea), this defendant's guilt was established by jury trial.   Following the reasoning in Logsdon, the Mitchell court held that the status of the defendant required pleading and proof.  “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.”  (People v. Mitchell, supra, 199 Cal.App.3d 300 at pp. 305–306, 244 Cal.Rptr. 803.)

Respectfully, we disagree with the conclusion of the court in Mitchell, and have reservations about the ruling in Logsdon.   While the imposition of consecutive sentences under 1170.1(c) may be an enhancement for purposes of the proscription against “dual use of facts,” section 1170.1(c) does not append an additional term to a single offense based on the facts peculiar to either the defendant or the crime (as, for instance, gun use, perpetration of the crime with specific proscribed intent, infliction of great injury, etc.).   Instead, section 1170.1(c)—like other procedures for imposing consecutive sentences—merely declares that multiple sentences for multiple new crimes may be run consecutively to a prior prison term if defendant committed the new offenses while a prisoner, and (if sentences imposed are consecutive) provides a computational method for the newly imposed sentences.⁸

Section 1170.1(c), providing grounds for imposing (and a method for computing) consecutive sentences, depends on a predicate fact:  defendant's status as a prisoner at the time of the offenses.   Who must make this finding?   While facts upon which additional terms (i.e., an enhancement) are imposed require jury findings, facts upon which consecutive terms are imposed are generally determined by the court.  (Rule 425.)   Indeed, consecutive terms may be ordered based on facts determined solely by the court, even though those same facts would have to be found by the jury if additional terms were to be predicated on those same facts.   Rule 425(b) provides the court may consider “circumstances in aggravation” in evaluating whether to impose consecutive sentences.   Circumstances in aggravation, under rule 421, include whether the crime involved great bodily harm (whether or not charged as a section 12022.7 enhancement), whether defendant was armed with or used a weapon (whether or not charged as a section 12022 or section 12022.5 enhancement), whether the crime involved a “great taking” (whether or not charged as a section 12022.6 enhancement), and whether defendant served prior prison terms (whether or not charged as a section 667.5 enhancement).   Thus, while these listed facts are for jury determination when they result in additional terms, they are for trial court determination when relied upon to run already imposed terms consecutively, even though both avenues have the net effect of increasing the severity of the sentence imposed.⁹

The requisite determination is one of defendant's status of being then and presently a prisoner.   From a legal viewpoint, determining defendant's status appears indistinguishable from determining “facts relating to the defendant” (under rules 421(b) and 423(b)), which are committed to the trial court in deciding between consecutive or concurrent sentencing.   From a practical point of view, this determination is much better made by the court from its own records than by presentation of the issue to a jury.¹⁰

 We also fail to see how due process is denied where the trial court determines defendant's status as a prisoner.   As previously discussed, the due process protections attendant to a sentencing hearing have been found ample, even though increased sentences are imposed (either from imposing an upper term and/or imposing consecutive terms) based on facts found by the trial court.   Defendant's status as a prisoner merely empowers the trial court to deny defendant the sentence-shortening provisions of section 1170.1(a) by selecting the alternative sentence computational provisions of subdivision (c).   No additional term is imposed (requiring due process protections of pleading and proof under Jackson );  instead, existing sentences are merely lengthened.¹¹

We are convinced defendant's due process rights were in fact preserved by the procedure used below.   Consecutive terms were imposed based on his status as a prisoner, a fact established by the probation report.   It can hardly be disputed defendant knew full well he was in custody, nor is there a claim he had any factual dispute over his status or that such status qualified him for treatment under 1170.1(c).¹²  The fact of his prison custody would require, under section 1701.1(c), that any subsequent conviction for crimes committed during custody would result in consecutive sentencing.   It is not necessary that a charging allegation alert the defendant to the prison term he will serve upon conviction for that offense.   While admonition and advice is necessary relative to actual punishment when the defendant enters a guilty plea, it has never been suggested he must be advised by the district attorney or the court as to possible punishment if he decides to go to trial.   The defendant, whether represented by counsel or having elected to represent himself with the aid of “advisory” counsel, is deemed to know the law of punishment and penalty.   Appellant does not suggest he in fact was unaware of the provision for consecutive sentencing contained in section 1170.1(c).   However, assuming such ignorance, we conclude ignorance should be no impediment to imposition of the sentence which his in-prison custody status requires.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FN2. All statutory references are to the Penal Code unless otherwise specified.   When referring to statutory subparts we omit repetition of the word “subdivision.”.  FN2. All statutory references are to the Penal Code unless otherwise specified.   When referring to statutory subparts we omit repetition of the word “subdivision.”

FOOTNOTE.   See footnote 1, ante.

3.   Section 1170.1(c) provides:“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.   If the new offenses are consecutive with each other, the principal and subordinate terms shall be calculated as provided in subdivision (a), except that the total of subordinate terms may exceed five years.   The provisions of this subdivision shall be applicable in cases of convictions of more than one offense in different proceedings, and convictions of more than one offense in the same or different proceedings.”

FN4. All rule references are to the California Rules of Court..  FN4. All rule references are to the California Rules of Court.

5.   Section 667 is now included within section 1170.1(f)'s laundry list.  (See Stats.1987, ch. 1423, § 3.7, p. 312.)

6.   While section 667.8 had not been part of section 1170.1(f)'s laundry list of enhancements requiring pleading and proof at the time of the offenses in Hernandez, the court noted it had subsequently been added to that list.  (People v. Hernandez, supra, 46 Cal.3d at p. 206, fn. 12, 249 Cal.Rptr. 850, 757 P.2d 1013.)

7.   This, indeed, has apparently been an accepted conclusion, since a number of cases deal with the imposition of consecutive sentences imposed under section 1170.1(c) without any reference to pleading of the special circumstance, where the new felony was obviously committed in a state prison.  (See People v. Galliher (1981) 120 Cal.App.3d 149, 153, 174 Cal.Rptr. 467 [conviction of escape from prison—“One cannot be convicted of violating section 4530 unless said person was ‘confined’ in a state prison facility at the time of the escape and any sentence imposed for escape from a state prison facility must be made a consecutive sentence.”];  People v. McCart (1982) 32 Cal.3d 338, 185 Cal.Rptr. 284, 649 P.2d 926 [conviction of violation of section 4502, possession of a deadly weapon by a prisoner];  In re Sims (1981) 117 Cal.App.3d 309, 172 Cal.Rptr. 608 [escape from prison];  In re Kindred (1981) 117 Cal.App.3d 165, 167, 172 Cal.Rptr. 468 [escape from prison—“Petitioner could not have been convicted of violating section 4530, subdivision (b), unless he was a prisoner confined in a state prison at the time of escape.   Therefore, petitioner necessarily committed the escape while confined in a state prison.”];  People v. Nick (1985) 164 Cal.App.3d 141, 146, 210 Cal.Rptr. 137 [guilty plea to escape from prison necessarily brings case within the scope of section 1170.1(c) ].)

8.   Our analysis thus accords with the well-reasoned dissent of Justice Sabraw in People v. Mitchell, supra, 199 Cal.App.3d at pp. 307–317, 244 Cal.Rptr. 803.   Justice Sabraw construed section 1170.1 as a sentence-limiting statute, rather than a sentence-enhancing statute, and viewed subdivision (c) thereof as an alternative computational scheme which acts to limit sentences already imposed under other statutes.   Being merely a computational statute, Justice Sabraw concluded “․ the issue of whether [subdivision (c) ] applies in a given case is simply a matter to be considered during the normal sentencing process” (id. at p. 310, 244 Cal.Rptr. 803) and hence is a matter for trial court determination (id. at p. 312, 244 Cal.Rptr. 803).

9.   It is specifically this distinction which we perceive dooms the analysis of Logsdon and Mitchell.   If, as Logsdon and Mitchell concluded, the imposition of consecutive sentences is synonymous with the imposition of enhancements (merely because both increase the severity of the overall sentence), would not the Logsdon/Mitchell rationale require that the factors listed in rules 421 and 425 as grounds for imposing consecutive terms also be subject to jury determination?

10.   While perhaps the status of “subject to reimprisonment for escape from ․ custody” may involve substantive and disputable factual determinations, we fail to see how much contest can be made with respect to the status at the time of commission of the subsequent crime of the defendant as a “prisoner.”   In Mitchell, as here, the proof presented to the jury clearly indicated that the defendant was in custody at the time of the crimes for which he was on trial.   The only possible issue to be raised at sentencing was whether this custody was “local custody” of some sort or was either actually or constructively “prison” custody.   The fact of custody being undisputed, the legal characterization of the custody seems to us to be a matter of law for court decision rather than a question of fact.   Even if such issue were required to be pled and proved at trial, it would seem that it would most appropriately be the subject of a binding instruction to the jury, rather than a matter of disputable fact to be left for jury deliberation.

11.   The path we now follow is not new, but was instead blazed in Justice Sabraw's dissenting opinion in People v. Mitchell, supra.   His analysis of due process requirements for the application of section 1170.1(c), as set forth on pages 312 through 314, 244 Cal.Rptr. 803, is particularly persuasive.   As therein stated, standard sentencing procedures, which provide notice and an opportunity for a hearing when the various sentencing factors are considered by the sentencing court, have been held to satisfy due process requirements.   Since a standard sentencing finding of aggravation under 1170(b) has the same sentence-lengthening effect as a finding of “prisoner status,” Justice Sabraw concluded similar evidentiary proceedings before a trial court should also be held to satisfy due process requirements.   We agree.

12.   While due process requires notice and proof at trial of facts upon which the state will rely to impose terms of imprisonment other than already statutorily prescribed for the charged offenses, it has never been suggested that the state must plead and prove the grounds upon which it will rely to aggravate or make consecutive the sentences already prescribed for the charged offenses.   Because most enhancements (carrying attendant additional terms) are predicated on disputable facts (armed allegation, use of excessive force, etc.), it is only reasonable that the defendant be made aware that such facts are to be contended.   In the case of disputable facts the due process requirements (notice, proof beyond a reasonable doubt and an opportunity to confront and cross-examine witnesses) have logical and practical genesis.   It was upon the basis of the practical necessity of the opportunity to dispute an enhancing fact that the Supreme Court in People v. Hernandez, supra, 46 Cal.3d 194, 249 Cal.Rptr. 850, 757 P.2d 1013 required pleading and proof.  Samuel B. had determined it was not necessary to plead that a kidnapping was “for the purpose” of rape (to invoke the enhancement of § 667.8) when a jury found both a kidnapping and a rape.   The Hernandez court reversed by concluding that the jury finding did not necessarily answer the requirements of section 667.8.   An essential requirement—the purpose for the kidnapping—had not been established.  (People v. Hernandez, supra, 46 Cal.3d at p. 205, 249 Cal.Rptr. 850, 757 P.2d 1013.)

FROEHLICH, Associate Justice.

TODD, Acting P.J., and NARES, J., concur.