California Criminal Jury Instructions (CALCRIM) (2017)

3100. Prior Conviction: Nonbifurcated Trial

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A. PRIOR CONVICTION
3100.Prior Conviction: Nonbifurcated Trial (Pen. Code, §§ 1025,
1158)
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.
New January 2006
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.
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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 (2006) 38 Cal.4th
682 [42 Cal.Rptr.3d 899, 133 P.3d 1054]; 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).
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• 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.
2Millman, 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]; People v. McGee (2006) 38 Cal.4th 682 [42
Cal.Rptr.3d 899, 133 P.3d 1054].) 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
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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. In People v. McGee
(2006) 38 Cal.4th 682 [42 Cal.Rptr.3d 899, 133 P.3d 1054], however, the California
Supreme Court determined that it was not error for the trial court to examine the
record of a prior conviction to determine whether it constitutes a qualifying prior
conviction for purposes of a recidivist sentencing statute, because there is a
“significant difference” between a “hate crime” enhancement and a traditional
sentencing determination.
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
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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, 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
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constitutional validity of the prior. These questions are matters of law to be
determined by the trial court.
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