Criminal Law

3103. Prior Conviction: Factual Issue for Jury

If you find that the defendant was previously convicted of the crime of <insert description of prior conviction>, you must also decide whether the People have proved that in the commission of that prior crime <insert description of other factual issue, e.g., the defendant personally used a firearm>.

To prove this allegation, the People must prove that:


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

To determine whether or not this instruction is required, review the Commentary to CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial, regarding the current state of the law on whether the jury must determine ancillary factual issues.

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.)


Statutory Authority. Pen. Code, §§ 1025, 1158.

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].

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], 91.60[2][b], [c][ii], [3][b], 91.80[1][c], [2][a][ii] (Matthew Bender).

Related Issues

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

(New January 2006)