SERIES 3100 ENHANCEMENTS AND SENTENCING FACTORS
F 3102 Prior Conviction: Prison Prior
TABLE OF CONTENTS
F 3102.1 Titles And Identification Of Parties
F 3102.1 Inst 1 Prior Conviction: Prison Prior—Title
F 3102.1 Inst 2 Identification Of Prosecution And Defendant
F 3102.2 Prior Conviction: Prison Prior—Tailoring To Facts: Persons, Places, Things And Theories
F 3102.2 Inst 1 Tailoring To Facts And Separate Enumeration Of Discrete Elements; Incorporation Of Definitions
F 3102.3 Prior Conviction: Prison Prior—Language That Is Argumentative, Confusing, Etc.
F 3102.3 Inst 1 Modification Of Coercive Language That The Jurors “Must Decide” The Enhancement
F 3102.4 Prior Conviction: Prison Prior—Burden Of Proof Issues
F 3102.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 3102.5 Prior Conviction: Prison Prior—Elements And Definitions [Reserved]
F 3102.6 Prior Conviction: Prison Prior—Defense Theories [Reserved]
F 3102.7 Prior Conviction: Prison Prior—Preliminary Fact Issues [Reserved]
F 3102.8 Prior Conviction: Prison Prior—Unanimity/Duplicity/Multiplicity [Reserved]
F 3102.9 Prior Conviction: Prison Prior—Lesser Offense Issues [Reserved]
f 3102 Notes
F 3102 Note 1 Prior Conviction: Prison Prior—CALCRIM Cross-References And Research Notes
F 3102 Note 2 Prior Prison Term: Proof Of The Prior (PC 667.5)
F 3102 Note 3 Prior Prison Term: Chronology Or Procedural Sequence Of The Prior (PC 667.5)
F 3102 Note 4 Prior Prison Term: Judge, Not Jury, Must Find Whether Prior Was A “Serious Felony”
F 3102 Note 5 Prior Prison Term For Escape Is A “Separate” Term For Purposes Of PC 667.5
F 3102 Note 6 Prior Prison Term: Multiple Convictions Constitute One Term (PC 667.5)
Return to Series 3100 Table of Contents.
F 3102.1 Titles And Identification Of Parties
F 3102.1 Inst 1 Prior Conviction: Prison Prior—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 3102.1 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 3102.2Prior Conviction: Prison Prior—Tailoring To Facts: Persons, Places, Things And Theories
F 3102.2 Inst 1 Tailoring To Facts And Separate Enumeration Of Discrete Elements; Incorporation Of Definitions
*Modify CC 3102, Element 1, as follows [added language is underlined]:
1. The defendant served a separate prison term during which (he/she) was confined in _______________ <insert place of confinement from CC 3102, paragraph 5 or 6>;
AND
2. The above prior prison term was for the crime of ________ <insert description of prior conviction>;
3. The defendant served a continuous period of prison confinement for the above crime. [From CC 3102, paragraph 3, sentence 1.]
AND
4[A]. The defendant was released from custody for the above prison term on ________ <insert date of release>. On ________ <insert date of alleged return to custody>, the defendant was again taken into custody and confined at ________ <insert place of new confinement>.
[OR]
4[B]. The defendant was released from custody for the above prison term on ________ <insert date of release>. On ________ <insert date of new alleged felony conviction>, the defendant was convicted of the following new felony: ________ <description of alleged new felony>.
[Delete paragraphs 5-7.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Tailoring To Facts: Place Of Confinement—The specific factual allegations should be incorporated from CALCRIM 3102, paragraph 5 or 6 into the enumerated elements. (See FORECITE F 400.2 Inst 1; F 417.5 Inst 1.)
Tailoring To Facts: Specific Allegation Regarding Date Of Release And New Custody Or Felony—CALCRIM 3102 improperly fails to tailor these matters to the alleged facts. (See FORECITE F 400.2 Inst 1.)
Separate Enumeration Of Discrete Elements—The place of confinement and the nature of the prior conviction are discrete elements which should be separately enumerated. (See FORECITE F 3500.2 Inst 1.)
Incorporation Of Separate Term Definitions In Enumerated Elements—See FORECITE F 417.5 Inst 2.
F 3102.3 Prior Conviction: Prison Prior—Language That Is Argumentative, Confusing, Etc.
F 3102.3 Inst 1Modification Of Coercive Language That The Jurors “Must Decide” The Enhancement
*Modify CC 3102, paragraph 1, as follows [added language is underlined; deleted language is stricken]:
If you find that the defendant was previously convicted of _______ <insert description of prior conviction>, you must also try to decide, if you can, whether the People have the prosecution has proved …
Points and Authorities
See FORECITE F 3100.3 Inst 1.
F 3102.4 Prior Conviction: Prison Prior—Burden Of Proof Issues
F 3102.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 3100.4 Inst 1.
F 3102.5 Prior Conviction: Prison Prior—Elements And Definitions[Reserved]
F 3102.6 Prior Conviction: Prison Prior—Defense Theories [Reserved]
F 3102.7 Prior Conviction: Prison Prior—Preliminary Fact Issues[Reserved]
F 3102.8 Prior Conviction: Prison Prior—Unanimity/Duplicity/Multiplicity[Reserved]
F 3102.9 Prior Conviction: Prison Prior—Lesser Offense Issues [Reserved]
F 3102 NOTES
F 3102 Note 1 Prior Conviction: Prison Prior—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
See FORECITE F 3100 Notes.
CALCRIM 3100 [Prior Conviction: Nonbifurcated Trial]
CALCRIM 3101 [Prior Conviction: Bifurcated Trial]
CALCRIM 3103 [Prior Conviction: Factual Issue for Jury]
Research Notes:
See CLARAWEB Forum, Enhancements and Sentencing Factors —Series 3100.
F 3102 Note 2 Prior Prison Term: Proof Of The Prior (PC 667.5)
[See FORECITE EA V(B)-(D).]
F 3102 Note 3 Prior Prison Term: Chronology Or Procedural Sequence Of The Prior (PC 667.5)
See FORECITE F 17.25 n7.
F 3102 Note 4 Prior Prison Term: Judge, Not Jury, Must Find Whether Prior Was A “Serious Felony”
ALERT: People v. Wiley (1995) 9 C4th 580, and People v. Kelii (1999) 21 C4th 452, may be subject to constitutional attack based on Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; see also Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531]. (See FORECITE PG VII(C)(32)(1).)
People v. Winslow (1995) 40 CA4th 680, 688-89, held that when a prior prison term is alleged, the jury is required to find whether the prior is a “serious felony,” and CJ 17.18 should be given. In People v. Wiley (1995) 9 C4th 580, the California Supreme Court held that the court, and not the jury, determines whether prior serious felony convictions were brought and tried separately. In Wiley, the court concluded that defendants have “no constitutional right to have a jury determine factual issues relating to prior convictions alleged for purposes of sentence enhancement.” (9 C4th at 589; see also 585-86 [discussing federal constitution], 586-89 [discussing state constitution].)
People v. Kelii (1999) 21 C4th 452, held that the holding and rationale of Wiley apply equally to the determination of whether a prior conviction constitutes a strike under PC 1192.7(c); see also PC 667(d)(1), PC 1170.12(b)(1). In Kelii, the court held that PC 1025 and PC 1158, which required the jury to determine whether the defendant “has suffered” prior convictions, apply only to the question of whether the documents submitted in support of the prior conviction are authentic and, if so, are sufficient to establish that the convictions the defendant suffered are indeed the ones alleged. (21 C4th at 458.) All other determinations regarding the identity of the defendant as the person who has committed the prior conviction and the nature of the prior conviction are to be made by the court. Hence, the court, upon finding that the defendant is the person who suffered the prior conviction, should “instruct the jury to the effect that the defendant is the person whose name appears on the documents admitted to establish the conviction.” (21 C4th 458.) “This procedure would appear to leave the jury little to do except to determine whether those documents are authentic and, if so, are sufficient to establish that the convictions the defendant suffered are indeed the ones alleged.” (Ibid.)
PRACTICE NOTE: It should be remembered that the United States Supreme Court has not yet expressly decided whether the right to trial by jury under the federal constitution (6th and 14th Amendments) should apply to the determination of prior convictions. (See FORECITE PG VII(C)(32)(3).)
CALJIC NOTE: See FORECITE F 17.18 n4.
F 3102 Note 5 Prior Prison Term For Escape Is A “Separate” Term For Purposes Of PC 667.5
See People v. Langston (2004) 33 C4th 1237.
CALJIC NOTE: See FORECITE F 17.18 n6.
F 3102 Note 6 Prior Prison Term: Multiple Convictions Constitute One Term (PC 667.5)
It should be noted that multiple convictions and sentences constitute only one “prior separate term” regardless of whether the priors were served concurrently or consecutively and regardless of whether they resulted from a single sentencing proceeding or from separate proceedings. (People v. James (1980) 102 CA3d 728, 732; People v. Burke (1980) 102 CA3d 932, 943; see also People v. Jones (1998) 63 CA4th 744 [court erred by imposing separate enhancements for prior convictions involving concurrent sentences].) On the other hand, conviction and sentence for in prison offenses may constitute a separate term. (People v. Carr (1988) 204 CA3d 774, 780; People v. Cardenas (1987) 192 CA3d 51, 56.)
CALJIC NOTE: See FORECITE F 17.18 n1.
