SERIES 3100 ENHANCEMENTS AND SENTENCING FACTORS
F 3103 NOTES
TABLE OF CONTENTS
F 3103 Note 1 Prior Conviction: Factual Issue For Jury—CALCRIM Cross-References And Research Notes
F 3103 Note 2 Jury Must Find Defendant Personally Used Weapon (PC 1197.2(c))
F 3103 Note 3 Assault With Hands Does Not Prove “Personal Use” To Make ADW A Serious Felony Per PC 1192.7(c)(23)
F 3103 Note 4 Serious Felony Prior: Prior Documents Must Reliably Reflect Conduct
F 3123 Note 5 Second Degree Residential Burglary Is Not A Serious Felony (PC 1192.7(c))
F 3103 Note 6 Serious Felony Prior: Right To Jury Trial On Factual Issues Relating To Circumstances And Conduct Underlying Prior Conviction Used To Enhance Punishment (PC 1192.7(c) & PC 667(a)(1))
F 3103 Note 7 Determining Whether Prior Is Serious Felony: Requirement That Defendant Personally Inflict Great Bodily Injury (PC 1170.12(b)(1); PC 1192.7(c)(8))
Return to Series 3100 Table of Contents.
F 3103 Note 1 Prior Conviction: Factual Issue For Jury—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 3102 [Prior Conviction: Prison Prior]
Research Notes:
See CLARAWEB Forum, Enhancements and Sentencing Factors —Series 3100.
F 3103 Note 2 Jury Must Find Defendant Personally Used Weapon (PC 1197.2(c))
(See Dillard v. Roe (9th Cir. 2001) 244 F3d 758 [amended opinion reported at 2001 U.S. App. LEXIS 9730] [court violated defendant’s constitutional rights by imposing sentence enhancements without jury finding that he personally used firearm].)
CALJIC NOTE: See FORECITE F 17.25 n6.
F 3103 Note 3Assault With Hands Does Not Prove “Personal Use” To Make ADW A Serious Felony Per PC 1192.7(c)(23)
People v. Davis (1996) 42 CA4th 806, addressed the question of whether an assault with hands can show the personal use of a dangerous or deadly weapon required to make an assault with a deadly weapon a serious felony under PC 1192.7(c)(23). The Davis court recognized that the question of whether assault with hands or fists can be an ADW under PC 245(a)(1) is a different question which has not been resolved in California. However, the court concluded that the determinative question in interpreting PC 1192.7 turns not upon the character of the assault under PC 245, but upon the nature of the instrument used to commit the crime, that is, whether the phrase “personal use of a dangerous or deadly weapon” contemplates “the use” of a weapon extrinsic to the body in the commission of the felony. After analyzing the legislative history and analogous case law, the court concluded that an extrinsic weapon is required. (See also People v. Aguilar (1997) 16 C4th 1023, 1034; FORECITE F 9.08a and F 9.08b.)
CALJIC NOTE: See FORECITE F 17.25 n8.
F 3103 Note 4 Serious Felony Prior: Prior Documents Must Reliably Reflect Conduct
People v. Houck (1998) 66 CA4th 350, held that in determining whether a prior conviction is a “serious felony,” only those documents that reliably reflect the conduct which the defendant was convicted should be considered. When a prior was originally tried before a jury, and had not resulted from a guilty plea, use of a preliminary hearing transcript is improper in that it is not reliable as to what evidence was presented to that jury. Therefore, it is the prosecution’s burden to present evidence actually presented to the trier of fact.
CALJIC NOTE: See FORECITE F 17.25 n9.
F 3123 Note 5 Second Degree Residential Burglary Is Not A Serious Felony (PC 1192.7(c))
[See Brief Bank # B-875 for briefing on this issue.]
CALJIC NOTE: See FORECITE F 17.25 n10.
F 3103 Note 6 Serious Felony Prior: Right To Jury Trial On Factual Issues Relating To Circumstances And Conduct Underlying Prior Conviction Used To Enhance Punishment (PC 1192.7(c) & PC 667(a)(1))
People v. McGee (2006) 38 C4th 682, held that Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348] and Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531], do not require a jury trial on an alleged “serious” prior conviction when the sentencing judge is merely reviewing the record of the prior conviction.
F 3103 Note 7 Determining Whether Prior Is Serious Felony: Requirement That Defendant Personally Inflict Great Bodily Injury (PC 1170.12(b)(1); PC 1192.7(c)(8))
In People v. Rodriguez (1999) 69 CA4th 341, the prosecution contended that a prior conviction involves great bodily injury and, thus, is a serious felony under PC 1192.7(c)(8) if the defendant’s acts were the proximate cause of the victim’s great bodily injury. The Court of Appeal rejected this argument and held that the instruction to this effect given by the trial court at the request of the district attorney was improper. Accordingly, the finding of the jury that the prior conviction was a serious felony and constituted a second strike was reversed.
CALJIC NOTE: See FORECITE F 17.25 n2.
