violent crimes offered under factor (b) have been proved beyond a reasonable
doubt. The Supreme Court has not ruled on whether this also applies to prior
felony convictions offered under factor (c). If the court determines that the jury
need not be unanimous about whether prior felony convictions have been proved
beyond a reasonable doubt, the court may, on request, add the following paragraph:
Each of you must decide for yourself whether the People have proved that the
defendant was convicted of an alleged crime. You do not all need to agree
whether an alleged conviction has been proved. If any juror individually
concludes that an alleged conviction has been proved, that juror may give the
evidence whatever weight he or she believes is appropriate. On the other hand,
if any juror individually concludes that an alleged conviction has not been
proved, that juror must disregard the evidence completely.
If the case involves only one defendant, the court should use the word “defendant”
throughout the instruction. If the case involves codefendants tried jointly, the court
should insert the name of the speciﬁc defendant alleged to have been convicted of
the prior felony in the places indicated in the instruction.
• Factor (c). Pen. Code, § 190.3.
•Must Be Proved Beyond a Reasonable Doubt. People v. Robertson (1982) 33
Cal.3d 21, 53–55]; People v. Davenport (1985) 41 Cal.3d 247, 281 [221
Cal.Rptr. 794, 710 P.2d 861].
• Must Pre-Date Current Offense. People v. Balderas (1985) 41 Cal.3d 144,
205 [222 Cal.Rptr. 184, 711 P.2d 480]; People v. Kaurish (1990) 52 Cal.3d 648,
702 [276 Cal.Rptr. 788, 802 P.2d 278].
• Defendant May Raise Constitutional Challenge to Prior. People v. La Fargue
(1983) 147 Cal.App.3d 878, 890 [195 Cal.Rptr. 438].
• Out-of-State Convictions. People v. Lang (1989) 49 Cal.3d 991, 1038–1039
[264 Cal.Rptr. 386, 782 P.2d 627].
• Constitutional to Admit Evidence of Prior Convictions. People v. Kaurish
(1990) 52 Cal.3d 648, 701 [276 Cal.Rptr. 788, 802 P.2d 278].
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, § 474.
4Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.23, 87.24 (Matthew Bender).
Out-of-State Felony Convictions
“In the absence of limitation, a reference to ‘prior felony convictions’ is deemed to
include any prior conviction which was a felony under the laws of the convicting
jurisdiction.” (People v. Lang (1989) 49 Cal.3d 991, 1038–1039 [264 Cal.Rptr. 386,
HOMICIDE CALCRIM No. 765