SERIES 3100 ENHANCEMENTS AND SENTENCING FACTORS
F 3100 Prior Conviction: Nonbifurcated Trial
TABLE OF CONTENTS
F 3100.1 Titles And Identification Of Parties
F 3100.1 Inst 1 Prior Conviction: Nonbifurcated Trial—Title
F 3100.1 Inst 2 Identification Of Prosecution And Defendant
F 3100.2 Prior Conviction: Nonbifurcated Trial—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 3100.3 Prior Conviction: Nonbifurcated Trial—Language That Is Argumentative, Confusing, Etc.
F 3100.3 Inst 1 Modification Of Coercive Language That The Jurors “Must Decide” The Enhancement
F 3100.3 Inst 2 (a & b) Prior Conviction: Charging Document Not Proof Of Conviction
F 3100.4 Prior Conviction: Nonbifurcated Trial—Burden Of Proof Issues
F 3100.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
A. Pre Element [See e.g., CC 626]:
F 3100.5 Prior Conviction: Nonbifurcated Trial—Elements And Definitions
F 3100.5 Inst 1 Jury Should Determine Whether The Defendant Is The Person Named In The Documents
F 3100.6 Prior Conviction: Nonbifurcated Trial—Defense Theories [Reserved]
F 3100.7 Prior Conviction: Nonbifurcated Trial—Preliminary Fact Issues [Reserved]
F 3100.8 Prior Conviction: Nonbifurcated Trial—Unanimity/Duplicity/Multiplicity [Reserved]
F 3100.9 Prior Conviction: Nonbifurcated Trial—Lesser Offense Issues [Reserved]
F 3100 Notes
F 3100 Note 1 Prior Conviction: Nonbifurcated Trial—CALCRIM Cross-References And Research Notes
F 3100 Note 2 Collateral Challenge To Constitutionality Of Prior
F 3100 Note 3 Prior Conviction: Proof Must Be Limited To Court Documents; Live Testimony Improper
F 3100 Note 4 Serious Felony Prior: Chronology Or Procedural Sequence Of The Prior
F 3100 Note 5 Prior Conviction May Be Alleged Post-Verdict
F 3100 Note 6 Jury Determination Of Factual Issues Related To Prior Convictions
F 3100 Note 7 Priors Committed Prior To Age 14: Jury Must Be Instructed On PC 26 Re: Appreciation Of Wrongfulness
Return to Series 3100 Table of Contents.
F 3100.1 Titles And Identification Of Parties
F 3100.1 Inst 1 Prior Conviction: Nonbifurcated Trial—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 3100.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 3100.2Prior Conviction: Nonbifurcated Trial—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 3100.3 Prior Conviction: Nonbifurcated Trial—Language That Is Argumentative, Confusing, Etc.
F 3100.3 Inst 1 Modification Of Coercive Language That The Jurors “Must Decide” The Enhancement
*Modify CC 3100, paragraph 1, sentence 1, as follows [added language is underlined; deleted language is stricken]:
If you find the defendant guilty of a crime, you must also try to decide, if you can, whether the People have prosecution has proved the additional allegation that the defendant was previously convicted of (another/other) crime[s].
*Modify CC 3100, paragraph 1, sentence 3, as follows [added language is underlined]:
You must try to decide, if you can, whether the evidence proves that the defendant was convicted of the alleged crime[s].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency: “Must Decide” Language Is Coercive—It is erroneously and unduly coercive to tell the jurors that they “must decide” whether the enhancement allegation has been proved. [See FORECITE F 100.7 Inst 1.] Instead, the jurors should be told to “try to” decide “if you can.” (See CALCRIM 3550, paragraph 2.)
Unless the enhancement allegation instruction is modified as set forth above, the jurors may be misled into believing that they “must decide” the enhancement allegation. It is true that CC 3550, paragraph 2, states: “You should try to agree on a verdict if you can.” Also, CC 3260 tells the jurors to complete the enhancement verdict form “If you reach a verdict …” However, there is no assurance that the jurors will follow these instructions as opposed to the conflicting “must decide” language of the enhancement instruction. Conflicting or contradictory language is inadequate to assure the jurors will follow the correct language. (See Francis v. Franklin (1985) 471 US 307 [85 LEd2d 344; 105 SCt 1965].) [See also FORECITE F 100.1 Inst 1.]
Moreover, as recognized by the CALCRIM Committee, juror understanding of the instructions is best accomplished by including the relevant language in the instruction to which it applies. (See e.g., CALCRIM User’s Guide [definitions should be included in enumerated elements].) Hence, to assure juror understanding, the “try to decide … if you can” language should be incorporated into the specific enhancement instruction.
[See also FORECITE F 100.7 Inst 1.]
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 3.11 [Applicability Of Federal Constitutional Rights To Sentencing Decisions]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 3100.3 Inst 2 (a & b) Prior Conviction: Charging Document Not Proof Of Conviction
*Add to CC 3100:
Alternative a [CC 103 adaption]:
The fact that a criminal charge was filed against the defendant is not evidence that the defendant was convicted.
Alternative b:
The record of conviction includes the [information, indictment or complaint] in the prior case. As you were previously instructed in the earlier phase of this trial, a[n] [information, indictment, or complaint] is an accusatory document, which states the charges in a case; standing alone, the information is not proof of those charges. Where a[n] [information, indictment, or complaint] contains a description of the facts underlying the charges, you may consider that description only if you find that the later conviction in the case represented a finding by a jury or court or an admission by the defendant that the offense was committed in the manner described in the [information, indictment, or complaint]. You should not consider any description of the offense contained in a count on which the defendant was not ultimately convicted or in a special allegation on which there was no later finding. Similarly, you should not consider the description contained in a count or allegation, if the defendant was later convicted of a lesser violation than charged in that count or allegation. If you are unable to determine, from a comparison of the [information, indictment, or complaint] and the judgment and verdicts, whether the defendant was convicted of the offense as described in the [information, indictment, or complaint] or of a lesser violation of the offense charged, you must presume that the conviction was for the lesser violation.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Need For Limiting/Cautionary Instruction—Even though the jurors may consider the charging documents as part of the record of the prior conviction (see People v. Harrell (1989) 207 CA3d 1439; People v. Johnson (1990) 217 CA3d 978, 985), a charging document is not itself proof of the substantive conviction. (See CALCRIM 103.)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 3.11 [Applicability Of Federal Constitutional Rights To Sentencing Decisions]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 3100.4 Prior Conviction: Nonbifurcated Trial—Burden Of Proof Issues
F 3100.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
A. Pre Element [See e.g., CC 626]:
*Modify Pre-Elements language as follows:
Insert “beyond a reasonable doubt” after “prove”
B. Every Element Must Be Proven
*Modify as follows:
[Insert “AND” after every enumerated element.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Every Element Must Be Proved Beyond A Reasonable Doubt—See generally In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; Sullivan v. Louisiana (1993) 508 US 275, 278-81 [113 SCt 2078; 124 LEd2d 182]; see also CALCRIM 626.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 3100.5 Prior Conviction: Nonbifurcated Trial—Elements And Definitions
F 3100.5 Inst 1 Jury Should Determine Whether The Defendant Is The Person Named In The Documents
*Modify CC 3100 by deleting paragraph 1, sentence 2, which provides:
It has already been determined that the defendant is the person named in exhibit[s] ________ <insert number[s] or description[s] of exhibit[s]>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The Federal Constitution Should Require Jury Determination Of All Elements Including Whether The Defendant Is The Person Named In The Documents—California law allow the judge to determine if the defendant is the person named in the documents. (See PC 1025(c); People v. Garcia (2003) 107 CA4th 1159, 1165.) However, in light of Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348], the jury should be required to make all necessary factual findings relating to prior convictions. [See FORECITE F 3100 Note 6.]
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 3.11 [Applicability Of Federal Constitutional Rights To Sentencing Decisions]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 3100.6 Prior Conviction: Nonbifurcated Trial—Defense Theories [Reserved]
F 3100.7 Prior Conviction: Nonbifurcated Trial—Preliminary Fact Issues[Reserved]
F 3100.8 Prior Conviction: Nonbifurcated Trial—Unanimity/Duplicity/Multiplicity[Reserved]
F 3100.9 Prior Conviction: Nonbifurcated Trial—Lesser Offense Issues [Reserved]
F 3100 NOTES
F 3100 Note 1 Prior Conviction: Nonbifurcated Trial—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 3101 [Prior Conviction: Bifurcated Trial]
CALCRIM 3102 [Prior Conviction: Prison Prior]
CALCRIM 3103 [Prior Conviction: Factual Issue for Jury]
Research Notes:
See CLARAWEB Forum, Enhancements and Sentencing Factors —Series 3100.
F 3100 Note 2 Collateral Challenge To Constitutionality Of Prior
See People v. Allen (1999) 21 C4th 424, 442-43 [motion to strike prior felony convictions on Boykin–Tahl grounds are limited to post-Tahl guilty pleas].
CALJIC NOTE: See FORECITE F 17.25 n3.
F 3100 Note 3 Prior Conviction: Proof Must Be Limited To Court Documents; Live TestimonyImproper
[See Brief Bank # B-876 for briefing on this issue.]
CALJIC NOTE: See FORECITE F 17.25 n5.
F 3100 Note 4 Serious Felony Prior: Chronology Or Procedural Sequence Of The Prior
The prior conviction must have been adjudicated prior the defendant’s commission of the criminal behavior upon which the current conviction is predicated. (See People v. Bizieff (1990) 226 CA3d 130, 139; see also FORECITE EA V(I).)
RESEARCH NOTES: See Annotation, Chronological or procedural sequence of former convictions as affecting enhancement of penalty under habitual offender statutes, 7 ALR5th 263 and Later Case Service.
CALJIC NOTE: See FORECITE F 17.25 n7.
F 3100 Note 5 Prior Conviction May Be Alleged Post-Verdict
People v. Valladoli (1996) 13 C4th 590, held that a post-verdict amendment to an information is permissible, pursuant to PC 969a, before the jury is discharged in order to add a prior conviction allegation.
CALJIC NOTE: See FORECITE F 17.25 n1.
F 3100 Note 6 Jury Determination Of Factual Issues Related To Prior Convictions
In People v. McGee (2006) 38 C4th 682 the California Supreme Court held that the judge, not the jury, should decide factual issues within alleged prior convictions. However, the voting breakdown of the United States Supreme Court in Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348], suggests that Almendarez-Torres v. U.S. (1998) 523 US 224 [140 LEd2d 350; 118 SCt 1219] upon which McGee relied, is no longer good law and that all factual determinations relating to prior conviction allegations are for the jury. (See Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2012-2013), § 11:1, Authors’ Notes, p. 591-92.)
But see FORECITE F 3103 Note 6.
F 3100 Note 7 Priors Committed Prior To Age 14: Jury Must Be Instructed On PC 26 Re: Appreciation Of Wrongfulness
See FORECITE F 251 Note 5.
