Criminal Law

3101. Prior Conviction: Bifurcated Trial

The People have alleged 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[s] alleged>, on <insert date>, in the <insert name of court>, Case Number <insert docket or case number>(;/.)


<Repeat for each prior conviction alleged.>]

[In deciding whether the People have proved the allegation[s], consider only the evidence presented in this proceeding. Do not consider your verdict or any evidence from the earlier part of the trial.]

You may not return a finding that (the/any) alleged conviction has or has not been proved unless all 12 of you agree on that finding.

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 court has granted a bifurcated trial. The court must also give CALCRIM No. 221, Reasonable Doubt: 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 to CALCRIM No. 3100 discusses this issue. 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 to CALCRIM No. 3100 discusses this issue.

Give the bracketed paragraph that begins with "In deciding whether the People have proved" on request.

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


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

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).

Related Issues

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

(New January 2006)