CALCRIM No. 3100. Prior Conviction: Nonbifurcated Trial (Pen. Code, §§ 1025, 1158)

Judicial Council of California Criminal Jury Instructions (2024 edition)

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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>, [for
which judgment was entered] on <insert date of
conviction/judgment>, 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; Revised March 2018, September 2020, March 2022
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.
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.
Do not give this instruction if the court has bifurcated the trial. Instead, give
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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.
Give the bracketed phrase “for which judgment was entered” if there is more than
one prior conviction charged.
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. Epps (2001) 25 Cal.4th 19, 25 [104 Cal.Rptr.2d 572,
18 P.3d 2]; 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. Gallardo (2017) 4 Cal.5th 120, 136 [226
Cal.Rptr.3d 379, 407 P.3d 55]; Descamps v. United States (2013) 570 U.S. 254,
268-70 [133 S.Ct. 2276, 186 L.Ed.2d 438]; Apprendi v. New Jersey (2000) 530
U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].
• 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).
COMMENTARY
Factual Issues - Decided by Jury or Court?
Penal Code sections 1025 and 1158 state that when an accusation charges a
defendant with having suffered a prior conviction, the jury must decide whether the
defendant “suffered the prior conviction” (unless the right to a jury trial is waived).
Under Penal Code section 1025, 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 (2001) 25 Cal.4th 19,
24-25 [104 Cal.Rptr.2d 572, 18 P.3d 2].)
In some cases, however, 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, if the prosecution seeks sentencing
under the “three strikes” law and alleges 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 court’s role is “limited to identifying those facts that were established by virtue
of the conviction itself - that is, facts the jury was necessarily required to find to
render a guilty verdict, or that the defendant admitted as the factual basis for a
guilty plea.” (See People v. Gallardo (2017) 4 Cal.5th 120, 136-137 [226
Cal.Rptr.3d 379, 407 P.3d 55].) A court considering whether to impose an increased
sentence based on a prior conviction may not make its own findings about what
facts or conduct “realistically” supported the conviction. (Ibid.) To allow otherwise
would constitute impermissible judicial factfinding violative of the Sixth
Amendment right to a jury trial. (Ibid.; see also Descamps v. United States (2013)
570 U.S. 254, 268-70 [133 S.Ct. 2276, 186 L.Ed.2d 438] [under federal
Constitution’s Sixth Amendment right to jury trial, the only facts related to a prior
conviction that a sentencing court can rely on in imposing recidivist punishment are
the facts necessarily implied by the elements of the relevant prior offense].)
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
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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 (1995) 9
Cal.4th 580, 592 [38 Cal.Rptr.2d 347, 889 P.2d 541].) 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 v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348,
147 L.Ed.2d 435] 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
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
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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.
Defense Stipulation to Prior Convictions
The defendant may stipulate to the truth of the prior convictions. (People v.
Weathington (1991) 231 Cal.App.3d 69, 90 [282 Cal.Rptr. 170].) If the defendant
stipulates, the prior convictions should not be disclosed to the jury unless the court
admits them as otherwise relevant. (See People v. Hall (1998) 67 Cal.App.4th 128,
135 [79 Cal.Rptr.2d 690].)
Motion for Bifurcated Trial
Either the defendant or the prosecution may move for a bifurcated trial. (People v.
Calderon (1994) 9 Cal.4th 69, 77-78 [36 Cal.Rptr.2d 333]; People v. Cline (1998)
60 Cal.App.4th 1327, 1334-1336 [71 Cal.Rptr.2d 41]; People v. Weathington,supra,
231 Cal.App.3d at p. 90.)
SECONDARY SOURCES
4 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 618.
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).
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