3102. Prior Conviction: Prison Prior

If you find that the defendant was previously convicted of <insert description of prior conviction>, you must also decide whether the People have proved that the defendant served a separate prison term for the crime and did not remain (out of prison custody/ [and] free of a new felony conviction) for (5/10) years.

To prove this allegation, the People must prove that:

1. The defendant served a separate prison term for the crime of <insert description of prior conviction>;

AND

[EITHER]

[2[A]. The defendant did not remain out of prison custody for (5/10) years after (he/she) was no longer in prison custody for that crime(;/.)]

[OR]

[2[B]. The defendant was convicted of a new felony that (he/ she) committed within (5/10) years after (he/she) was no longer in prison custody.]

A person served a separate prison term for a crime if he or she served a continuous period of prison confinement imposed for that crime. [The prison term may have been served for that crime alone or in combination with prison terms imposed at the same time for other crimes.] [A person is still serving a separate prison term for a crime if he or she is placed back in custody (following an escape/ [or] for a parole violation).] [If a person is returned to custody following (an escape/ [or] a parole violation) and is also sentenced to prison for a new crime, then that person is serving a new separate prison term.]

A person is in prison custody until he or she is discharged from prison or released on parole, whichever happens first. [A person is also in prison custody if he or she (is placed back in custody for a parole violation/ [or] has unlawfully escaped from custody).]

A prison term includes confinement in [(A/The)] (state prison/ federal penal institution/California Youth Authority/ <insert name of hospital or other institution where confinement entitles person to prison credits>).

[A prison term includes commitment to the State Department of Mental Health as a mentally disordered sex offender following a felony conviction if the commitment lasts more than one year.]

[A conviction of <insert name of offense from other state or federal offense> is the same as a conviction for a felony if the defendant served one year or more in prison for the crime.]

The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that this allegation has not been proved.

Bench Notes

Instructional Duty

Review the Commentary to CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial, regarding the current state of the law on whether the court must submit these issues to the jury. If the court gives this instruction, the court must also give either CALCRIM No. 3100 or CALCRIM No. 3101.

The court must give one of the bracketed elements (did not remain out of prison custody or was convicted of a new felony), depending on the prosecution's theory. The court may give both of the bracketed elements with the bracketed words "either" and "or."

The court may give the bracketed sentence that begins with "If a person is returned to custody following (an escape/ [or] a parole violation) and is also sentenced to prison for a new offense" on request if relevant based on the evidence. (People v. Langston (2004) 33 Cal.4th 1237, 1241 [17 Cal.Rptr.3d 596, 95 P.3d 865].)

If the court gives this instruction, the court must provide the jury with a verdict form on which the jury will indicate whether the allegation has been proved. (Pen. Code, § 1158.)

Authority

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 [9 Cal.Rptr.3d 586], DEPUBLISHED AND REVIEW GRANTED, April 28, 2004, S123474; People v. Winslow (1995) 40 Cal.App.4th 680, 687 [46 Cal.Rptr.2d 901].

Burden of Proof. People v. Fielder (2004) 114 Cal.App.4th 1221, 1231 [8 Cal.Rptr.3d 247].

Continuous, Completed Term. People v. Medina (1988) 206 Cal.App.3d 986, 991-992 [254 Cal.Rptr. 89]; People v. Cardenas (1987) 192 Cal.App.3d 51, 56 [237 Cal.Rptr. 249].

Term for Offense Committed in Prison Is Separate. People v. Langston (2004) 33 Cal.4th 1237, 1242 [17 Cal.Rptr.3d 596, 95 P.3d 865]; People v. Walkkein (1993) 14 Cal.App.4th 1401, 1410 [18 Cal.Rptr.2d 383]; People v. Cardenas (1987) 192 Cal.App.3d 51, 56 [237 Cal.Rptr. 249].

Direct Commitment to Youth Authority as Minor Is Not Prison Prior. People v. Seals (1993) 14 Cal.App.4th 1379, 1384-1385 [18 Cal.Rptr.2d 676].

New Commitment Following Escape Is Separate Prison Term. People v. Langston (2004) 33 Cal.4th 1237, 1241, 1246 [17 Cal.Rptr.3d 596, 95 P.3d 865].

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).

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

Secondary Sources

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], 91.80 (Matthew Bender).

Related Issues

Commitment to Youth Authority

A direct commitment to the California Youth Authority (CYA) under Welfare and Institutions Code section 1731.5(a) is not a prison prior for the purposes of Penal Code section 667.5. (Pen. Code, § 667.5(j); People v. Seals (1993) 14 Cal.App.4th 1379, 1383-1385 [18 Cal.Rptr.2d 676].) Time at the CYA qualifies as a prison prior only if the person was sentenced to state prison and transferred to the CYA for housing under Welfare and Institutions Code section 1731.5(c). (People v. Seals, supra, 14 Cal.App.4th at pp. 1383-1385.)

Term for Offense Committed in Prison Is Separate

"When a consecutive sentence is imposed under section 1170.1, subdivision (c), for an offense committed in state prison, section 1170.1 requires such sentence to commence after the completion of the term for which the defendant was originally imprisoned. Thus, each term is a separate, 'continuous completed' term, which is available for enhancement under section 667.5 if the defendant is subsequently convicted of a felony." (People v. Walkkein (1993) 14 Cal.App.4th 1401, 1409-1410 [18 Cal.Rptr.2d 383] [footnote and citations omitted; italics in original]; see also People v. Langston (2004) 33 Cal.4th 1237, 1242 [17 Cal.Rptr.3d 596, 95 P.3d 865].)

Calculating "Washout" Period

Penal Code section 667.5, subdivisions (a) and (b), contain "washout" periods of 10 and 5 years, respectively. The prosecution bears the burden of proving that the "washout" period does not apply to a particular conviction. (People v. Fielder (2004) 114 Cal.App.4th 1221, 1232 [8 Cal.Rptr.3d 247].) The "washout" period commences when the defendant is discharged from custody or released on parole, "whichever first occurs." (Pen. Code, § 667.5(d); People v. Nobleton (1995) 38 Cal.App.4th 76, 84-85 [44 Cal.Rptr.2d 611].) Any return to prison on a parole violation is considered part of the original prison term. (Pen. Code, § 667.5(d).) Thus, in calculating whether the defendant has remained free of prison custody and a felony conviction for sufficient time, the calculation begins from when the defendant was released on parole without subsequently returning to prison on a parole violation. (People v. Nobleton, supra, 38 Cal.App.4th at pp. 84-85.) The calculation ends when the defendant commits a new offense that ultimately results in a felony conviction. (People v. Fielder,

supra, 114 Cal.App.4th at p. 1233.) The date the offense is committed, not the date of the ultimate conviction, is controlling. (Id. at pp. 1233-1234.) The new felony ends the allowable time for the "washout" period regardless of whether the defendant was sentenced to prison for the new felony. (Id. at p. 1230.)

See the Related Issues section of CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial.

(New January 2006)