CALCRIM No. 3102. Prior Conviction: Prison Prior
Judicial Council of California Criminal Jury Instructions (2023 edition)Download PDF
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>;
[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
[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
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).]
Aprison term includes confinement in [(a/the)] (state prison/federal penal
institution/California Youth Authority/Division of Juvenile
Justice/Department of Youth and Community Restoration/
<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.
New January 2006; Revised September 2020
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.)
• Disputed Factual Issues. See People v. Gallardo (2017) 4 Cal.5th 120, 136 [226
Cal.Rptr.3d 379, 407 P.3d 55]; People v. Epps (2001) 25 Cal.4th 19, 23 [104
Cal.Rptr.2d 572, 18 P.3d 2]; 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].
• Burden of Proof. People v. Fielder (2004) 114 Cal.App.4th 1221, 1231 [8
• 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].
ENHANCEMENTS AND SENTENCING FACTORS CALCRIM No. 3102
• 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,
• One-Year Enhancement for Prison Prior. Pen. Code, § 667.5(b).
• Violent Felony Defined. Pen. Code, § 667.5(c).
Commitment to Youth Authority
A direct commitment to the Department of Youth and Community Restoration
(DYCR) (formerly known as California Youth Authority (CYA) and Division of
Juvenile Justice (DJJ)) 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 one of the above facilities qualifies as a prison prior only if the person was
sentenced to state prison and transferred to the facility for housing under Welfare
and Institutions Code section 1731.5(c). (People v. Seals, supra, 14 Cal.App.4th at
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
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
CALCRIM No. 3102 ENHANCEMENTS AND SENTENCING FACTORS
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:
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 727.
2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 42,
Arraignment, Pleas, and Plea Bargaining,§ 42.21[a] (Matthew Bender).
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, §§ 91.21, 91.80 (Matthew Bender).
ENHANCEMENTS AND SENTENCING FACTORS CALCRIM No. 3102