Criminal Law

3100. Prior Conviction: Nonbifurcated Trial

If you find the defendant guilty of a crime, you must also decide whether the People have proved the additional allegation that the defendant was previously convicted of (another/other) crime[s]. It has already been determined that the defendant is the person named in exhibit[s] <insert number[s] or description[s] of exhibit[s]>. You must decide whether the evidence proves that the defendant was convicted of the alleged crime[s].

The People allege that the defendant has been convicted of: [1.] A violation of <insert code section alleged>, on <insert date of conviction>, in the <insert name of court>, in Case Number <insert docket or case number>(;/.) [AND <Repeat for each prior conviction alleged>.]

[Consider the evidence presented on this allegation only when deciding whether the defendant was previously convicted of the crime[s] alleged [or for the limited purpose of <insert other permitted purpose, e.g., assessing credibility of the defendant>]. Do not consider this evidence as proof that the defendant committed any of the crimes with which he is currently charged or for any other purpose.]

[You must consider each alleged conviction separately.] The People have the burden of proving (the/each) alleged conviction beyond a reasonable doubt. If the People have not met this burden [for any alleged conviction], you must find that the alleged conviction has not been proved.

Bench Notes

Instructional Duty

If the defendant is charged with a prior conviction, the court has a sua sponte duty to instruct on the allegation. Give this instruction if the defendant does not admit the prior conviction and the court has not granted a bifurcated trial on the prior conviction.

If identity is an issue, the court must make the factual determination that the defendant is the person who has suffered the convictions in question before giving this instruction.

If the court grants bifurcation, do not give this instruction. Give CALCRIM No. 3101, Prior Conviction: Bifurcated Trial.

If the defendant is charged with a prison prior, the court must determine whether the jury should decide if the defendant served a separate prison term for the conviction and whether the defendant remained free of prison custody for the "washout" period. (Pen. Code, � 667.5(a) & (b).) The Commentary below discusses these issues further. If the court chooses to submit these issues to the jury, give CALCRIM No. 3102, Prior Conviction: Prison Prior, with this instruction.

If the court determines that there is a factual issue regarding the prior conviction that must be submitted to the jury, give CALCRIM No. 3103: Prior Conviction: Factual Issue for Jury, with this instruction. The Commentary below discusses this issue further.

On request, the court should give the limiting instruction that begins with "Consider the evidence presented on this allegation only when deciding. . . ." (See People v. Valentine (1986) 42 Cal.3d 170, 182, fn. 7 [228 Cal.Rptr. 25, 720 P.2d 913].) There is no sua sponte duty to give the limiting instruction, and the defense may request that no limiting instruction be given. (See People v. Griggs (2003) 110 Cal.App.4th 1137, 1139 [2 Cal.Rptr.3d 380].)

The court must provide the jury with a verdict form on which the jury will indicate whether the prior conviction has been proved. (Pen. Code, � 1158.)

Authority

Statutory Authority. Pen. Code, �� 1025, 1158.

Bifurcation. People v. Calderon (1994) 9 Cal.4th 69, 77-79 [36 Cal.Rptr.2d 333, 885 P.2d 83]; People v. Cline (1998) 60 Cal.App.4th 1327, 1334-1336 [71 Cal.Rptr.2d 41].

Judge Determines Whether Defendant Is Person Named in Documents. Pen. Code, � 1025(c); People v. Garcia (2003) 107 Cal.App.4th 1159, 1165 [132 Cal.Rptr.2d 694].

Limiting Instruction on Prior Conviction. See People v. Valentine (1986) 42 Cal.3d 170, 182, fn. 7 [228 Cal.Rptr. 25, 720 P.2d 913]; People v. Griggs (2003) 110 Cal.App.4th 1137, 1139 [2 Cal.Rptr.3d 380].

Disputed Factual Issues. See People v. Epps (2001) 25 Cal.4th 19, 23 [104 Cal.Rptr.2d 572, 18 P.3d 2]; People v. Kelii (1999) 21 Cal.4th 452, 458-459 [87 Cal.Rptr.2d 674, 981 P.2d 518]; People v. Wiley (1995) 9 Cal.4th 580, 592 [38 Cal.Rptr.2d 347, 889 P.2d 541]; Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435]; People v. McGee (2004) 115 Cal.App.4th 819, DEPUBLISHED AND REVIEW GRANTED, April 28, 2004, S123474 [9 Cal.Rptr.3d 586]; People v. Winslow (1995) 40 Cal.App.4th 680, 687 [46 Cal.Rptr.2d 901].

Three-Strikes Statutes. Pen. Code, �� 667(e), 1170.12.

Five-Year Enhancement for Serious Felony. Pen. Code, � 667(a)(1).

Three-Year Enhancement for Prison Prior If Violent Felony. Pen. Code, � 667.5(a).

One-Year Enhancement for Prison Prior. Pen. Code, � 667.5(b).

Serious Felony Defined. Pen. Code, � 1192(c).

Violent Felony Defined. Pen. Code, � 667.5(c).

Secondary Sources

5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, � 515.

2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 42, Arraignment, Pleas, and Plea Bargaining, � 42.21[6][a] (Matthew Bender).

5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91, Sentencing, �� 91.21[2], 91.60, 91.80 (Matthew Bender).

Commentary

Factual Issues—Decided by Jury or Court?

A prior conviction may present an ancillary factual issue that must be decided before the conviction may be used under a particular enhancement or sentencing statute. For example, the prosecution might seek sentencing under the "three strikes" law, alleging that the defendant was previously convicted of two burglaries. These prior convictions would qualify as "strikes" only if the burglaries were residential. (See People v. Kelii (1999) 21 Cal.4th 452, 455 [87 Cal.Rptr.2d 674, 981 P.2d 518].) If the defendant had been specifically convicted of first degree burglary of an inhabited dwelling, then there would be no issue over whether the prior convictions qualified. If, on the other hand, the defendant had been convicted simply of "burglary," then whether the offenses were residential would be a factual issue. (Ibid.) The question then arises: who decides these ancillary factual issues, the jury or the court?

Penal Code sections 1025(b) and 1158 specifically state that the jury must decide whether the defendant "suffered the prior conviction." The California Supreme Court has observed that "sections 1025 and 1158 are limited in nature. [Citation.] By their terms, [these sections] grant a defendant the right to have the jury determine only whether he or she 'suffered' the alleged prior conviction." (People v. Epps (2001) 25 Cal.4th 19, 23 [104 Cal.Rptr.2d 572, 18 P.3d 2] [internal quotation marks and citation omitted].) Thus, the California Supreme Court has held that the court, not the jury, must decide ancillary facts necessary to establish that a prior conviction comes within a particular recidivist statute. (People v. Kelii, supra, 21 Cal.4th at pp. 458-459; People v. Wiley (1995) 9 Cal.4th 580, 592 [38 Cal.Rptr.2d 347, 889 P.2d 541].) Specifically, the court must determine whether the facts of a prior conviction make the conviction a "serious" felony (People v. Kelii, supra, 21 Cal.4th at p. 457); and whether prior convictions charged as serious felonies were "brought and tried separately." (People v. Wiley, supra, 9 Cal.4th at p. 592.)

Penal Code section 1025 was amended in 1997 to further provide that the court, not the jury, must determine whether the defendant is the person named in the documents submitted to prove the prior conviction. (Pen. Code, � 1025(c); see also People v. Epps, supra, 25 Cal.4th at pp. 24-25.) The California Supreme Court has held that the defendant still has a statutory right to a jury trial on whether he or she "suffered" the prior conviction, which "may include the question whether the alleged prior conviction ever even occurred. For example, in a rare case, the records of the prior conviction may have been fabricated, or they may be in error, or they may otherwise be insufficient to establish the existence of the prior conviction." (People v. Epps, supra, 25 Cal.4th at p. 25 [italics in original].) At the same time, the court also observed that "[t]his procedure would appear to leave the jury little to do except to determine whether those documents are authentic and, if so, are sufficient to establish that the convictions the defendant suffered are indeed the ones alleged." (Id. at p. 27 [italics omitted] [quoting People v. Kelii, supra, 21 Cal.4th at p. 459].)

However, in 2000, the United States Supreme Court held that the federal due process clause requires that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435]; see also Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403].) In People v. Epps, supra, 25 Cal.4th at p. 28, the California Supreme Court noted that Apprendi might have overruled the holdings of Kelii and Wiley. Not confronted with the issue directly, the Court declined to indicate how the conflict should be resolved. (Ibid.) The issue has been presented squarely in People v. McGee (2004) 115 Cal.App.4th 819 [9 Cal.Rptr.3d 586], DEPUBLISHED AND REVIEW GRANTED, April 28, 2004, S123474. In McGee, the court held that under Apprendi, the federal due process clause requires that the jury determine any ancillary facts necessary to establish that a prior conviction qualifies as a serious felony under the "three strikes" law. (Id. at p. 834.)

Until the California Supreme Court rules on McGee, the court must decide whether to submit any ancillary factual issues on a prior conviction to the jury. The court may use CALCRIM No. 3103: Prior Conviction: Factual Issue for Jury, inserting an appropriate description of the factual issue presented.

Prior Prison Term and "Washout" Period

A similar issue arises over whether the jury or the court must decide if the defendant served a prison term as a result of a particular conviction and if the defendant has been free of custody for sufficient time to satisfy the "washout" period. (See Pen. Code, � 667.5(a) & (b).) In People v. Winslow (1995) 40 Cal.App.4th 680, 687 [46 Cal.Rptr.2d 901], the Court of Appeal held that the jury must determine whether the defendant served a prior prison term for a felony conviction. The other holdings in Winslow were rejected by the California Supreme Court. (People v. Kelii, supra, 21 Cal.4th at pp. 458-459; People v. Wiley, supra, 9 Cal.4th at p. 592.) However, the Winslow holding that the jury must determine if the defendant served a prison term for a felony conviction remains controlling authority.

But, in People v. Epps, supra, 25 Cal.4th at pp. 25-26, the Court expressed doubt, in dicta, about whether the fact of having served a prison term is properly submitted to the jury. Discussing the 1997 amendment to Penal Code section 1025, the Court noted that

[t]he analysis lists the following questions that the jury would still decide if Senate Bill 1146 became law: . . . 'Was the defendant sentenced to prison based on that conviction? How long has the defendant been out of custody since he or she suffered the prior conviction?' . . .

[T]hough we do not have a case before us raising the issue, it appears that many of the listed questions are the sort of legal questions that are for the court under [Wiley]. For example, determining . . . whether the defendant was sentenced to prison is "largely legal" (Kelii, supra, 21 Cal. 4th at p. 455, quoting Wiley, supra, 9 Cal. 4th at p. 590), and though these questions require resolution of some facts, "a factual inquiry, limited to examining court documents, is. . . 'the type of inquiry traditionally performed by judges as part of the sentencing function."' (Kelii, at p. 457, quoting Wiley, at p. 590.) . . . Therefore, the list of questions in the committee analysis should not be read as creating new jury trial rights that did not exist under Wiley.

(Ibid.)

On the other hand, Apprendi and McGee, discussed above, could be interpreted as requiring the jury to make these factual findings. (But see People v. Thomas (2001) 91 Cal.App.4th 212, 223 [110 Cal.Rptr.2d 571] [even under Apprendi, no federal due process right to have jury determine whether defendant served a prior prison term].)

Until the California Supreme Court resolves this question, the court should consider submitting to the jury the issues of whether the defendant served a prison term and whether the defendant has remained free of custody for sufficient time to satisfy the "washout" period. The court may use CALCRIM No. 3102, Prior Conviction: Prison Prior.

Related Issues

Review Limited to Record of Conviction

When determining if a prior conviction comes under a particular recidivist statute, "the trier of fact may consider the entire record of the proceedings leading to imposition of judgment on the prior conviction" but may not consider facts outside the record of conviction. (People v. Myers (1993) 5 Cal.4th 1193, 1195 [22 Cal.Rptr.2d 911, 858 P.2d 301]; see also People v. Riel (2000) 22 Cal.4th 1153, 1204-1205 [96 Cal.Rptr.2d 1, 998 P.2d 969]; People v. Henley (1999) 72 Cal.App.4th 555, 564 [85 Cal.Rptr.2d 123].) The prosecution bears the burden of proving that the prior conviction meets the requirements of the enhancement statute. (People v. Henley, supra, 72 Cal.App.4th at pp. 564-565.)

Constitutionality of Prior

The prosecution is not required to prove the constitutional validity of a prior conviction as an "element" of the enhancement. (People v. Walker (2001) 89 Cal.App.4th 380, 386 [107 Cal.Rptr.2d 264].) Rather, following the procedures established in People v. Sumstine (1984) 36 Cal.3d 909, 922-924 [206 Cal.Rptr. 707, 687 P.2d 904], and People v. Allen (1999) 21 Cal.4th 424, 435-436 [87 Cal.Rptr.2d 682, 981 P.2d 525], the defense may bring a motion challenging the constitutional validity of the prior. These questions are matters of law to be determined by the trial court.

(New January 2006)