parole or 15 years to life for a defendant convicted of second degree murder who
has served a prior prison term for ﬁrst or second degree murder. (Pen. Code,
§ 190.05(a).) The statute requires the jury to ﬁnd the fact of the conviction true
beyond a reasonable doubt. (Pen. Code, § 190.05(c), (d).) The statute does not
require that trial on the prior conviction be bifurcated from trial on the underlying
charge. If the court does use a bifurcated trial, the court must also give CALCRIM
No. 221, Reasonable Doubt: Bifurcated Trial, and CALCRIM No. 3550, Pre-
Deliberation Instructions. (See People v. Gutierrez (1994) 23 Cal.App.4th 1576,
1579 [28 Cal.Rptr.2d 897].) The court must also give the last bracketed sentence.
On request, the court should give one of the appropriate limiting instruction,
depending on whether the court has granted a bifurcated trial.
If the prior is found true, the court must then proceed with a separate penalty phase
in which the jury determines which of the two possible sentences is appropriate.
(Pen. Code, § 190.05(e); People v. Gutierrez, supra, 23 Cal.App.4th at p. 1579.)
The court should then modify the death penalty phase instructions for use in this
penalty phase trial. The factors for the jury to consider under Penal Code section
190.05(e) are identical to the factors to be considered in a death penalty trial. Thus,
the court needs to change only the penalties that the jury must choose between.
• Second Degree Murder With Prior Prison for Murder. Pen. Code, § 190.05.
•Right to Jury Trail on Prior Conviction. Pen. Code, § 190.05(c).
• Reasonable Doubt Standard. Pen. Code, § 190.05(d).
• Separate Penalty Phase. Pen. Code, § 190.05(e).
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the
Person, § 164.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.02, 87.12 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.01[d] (Matthew Bender).
752–759. Reserved for Future Use
HOMICIDE CALCRIM No. 751