Return to CALJIC Part 14-17 – Contents
F 17.25 n1 Prior Conviction May be Alleged Post-Verdict.
People v. Valladoli (96) 13 C4th 590 [54 CR2d 695], 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.
F 17.25 n2 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 (99) 69 CA4th 341 [81 CR2d 567], 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.
F 17.25 n3 Collateral Challenge To Constitutionality Of Prior.
See People v. Allen (99) 21 C4th 424, 442-43 [87 CR2d 682] [motion to strike prior felony convictions on Boykin–Tahl grounds are limited to post-Tahl guilty pleas].
F 17.25 n4 Improper To Refer To The Prosecution as “The People.”
Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”
F 17.25 n5 Prior Conviction: Proof Must Be Limited To Court Documents; Live Testimony Improper.
[See Brief Bank # B-876 for briefing on this issue.
F 17.25 n6 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].)
F 17.25 n7 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 (90) 226 CA3d 130, 139 [276 CR 235]; 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.
F 17.25 n8 Assault With Hands Does Not Prove “Personal Use” To Make ADW A Serious Felony Per PC 1192.7(c)(23).
People v. Davis (96) 42 CA4th 806 [49 CR2d 890] 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 (97) 16 C4th 1023, 1034 [68 CR2d 655]; FORECITE F 9.08a and F 9.08b.)
F 17.25 n9 Serious Felony Prior: Prior Documents Must Reliably Reflect Conduct.
People v. Houck (98) 66 CA4th 350 [77 CR2d 837] held that in determining whether a prior conviction is a “serious felony,” only those documents that reliably reflect the conduct of 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.
F 17.25 n10 Second Degree Residential Burglary Is Not A Serious Felony (PC 1192.7(c)).
[See Brief Bank # B-875 for briefing on this issue.]
F 17.25 n11 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)).
See FORECITE F 3103 Note 6.
F 17.25a
Guidelines for Jury Consideration of Record of Prior Conviction
*Add to CJ 17.25:
As stated in the preceding instruction[s], the prior conviction allegation[s] under Count[s] _____ require[s] you not only to determine whether the defendant sustained a previous felony conviction, but also to make certain determinations regarding the facts underlying that conviction.
In determining whether the defendant is the person who sustained the prior conviction [and whether [he] [she] served a prior prison term as defined in the instructions], you are free to consider all the evidence which has been received during this phase of trial, including testimony, certified court and prison documents, and any other exhibits.
However, a special set of rules applies to your determination of any special allegations [of personal use of a deadly weapon, personal firearm use, burglary of an inhabited dwelling, etc.] regarding the facts underlying the prior conviction. You are to base this aspect of your determination solely upon the “record of the prior conviction” and may not consider any of the other evidence received during trial. As used in this instruction, the “record of the prior conviction” refers solely to the certified documents of the __________ Superior Court, included in Exhibit[s] _____.
In determining whether the prior conviction was based upon [personal use of a firearm] [personal use of a dangerous or deadly weapon] [burglary of an inhabited dwelling house, etc.], you are required to presume that the prior conviction was for the least punishable offense which is consistent with the description of that offense in the record of the prior conviction. This rule requires you to consider whether there is any way the defendant could have committed the offense shown by the record of conviction which would not have involved __________. If there is any way of committing the offense shown by the record of conviction which would not include __________, you are required to presume that the prior conviction was for the “least punishable offense” and to find the allegation not true.
In determining, from the record of conviction, whether the prior conviction involved __________, you must not resort to speculation. If there is any way of committing the offense described in the record of conviction which would not involve __________, you may not find that allegation true unless the record of conviction affirmatively shows that the prior conviction was in fact based upon __________, as charged in this allegation.
Points & Authorities
People v. Guerrero (88) 44 C3d 343, 352 [243 CR 688] allows the trier of fact to look behind the judgment and to consider the “entire record of conviction.” Yet it also reiterates with approval the “least offense punishable” test applicable where the record does not disclose the underlying facts. “[T]he court may look to the entire record of the conviction to determine the substance of the prior foreign conviction, but when the record does not disclose any of the facts of the offense actually committed, the court will presume that the prior conviction was for the least offense punishable under the foreign law.” (Id. at 354-55 [emphasis added].) A similar analysis should apply where the record discloses some facts concerning the prior conviction, but the factual description is not necessarily dispositive of the enhancement allegation. (See e.g., People v. Brookins (89) 215 CA3d 1297, 1303-04 [264 CR 240] [firearm use finding (PC 12022.5) not necessarily dispositive of whether prior robbery involved “force” or use of a deadly weapon for purposes of habitual offender statute, PC 667.7].)
Under California law the only determination for the jury to make regarding prior convictions is to determine whether the submitted documents are authentic and, if so, whether they are sufficient to establish that the convictions the defendant suffered are the ones that were alleged. (See People v. Kelii (99) 21 C4th 452 [87 CR2d 674]; see also PC 1025.) Notwithstanding state law to the contrary, however, the federal constitutional right to trial by jury (6th and 14th Amendments) may apply to proof of prior convictions. (See FORECITE PG VII(C)(32)(3).)
F 17.25b
Consideration of Accusatory Pleading as Proof
of Facts Underlying Prior Conviction
*Add to CJ 17.25 [added language is capitalized]:
In determining whether all the elements of the prior conviction allegation have been satisfied, you are required to determine whether the prior conviction itself was based upon [personal use of a firearm] [personal use of a dangerous or deadly weapon] [burglary of an inhabited dwelling house, etc.]. Thus, in determining the facts underlying the prior conviction, you should first consider those portions of the record of conviction which reflect the judgment of conviction itself, the verdicts of guilt, any special findings included in the verdicts, and any pleas or admissions by the defendant himself. You may consider other documents included in the record of conviction only to the extent that those documents assist you in interpreting the verdicts, findings, pleas or admissions which comprise the conviction itself.
[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
As discussed in FORECITE EA V(E)(3)&(4), the case law allows consideration of the information as part of the “record of conviction,” even where the information contains allegations superfluous to the statutory elements of the crime. (E.g., robbery by force and fear.) In the event a trial court admits an information, the jury should still be instructed on considerations relevant to whether the ultimate conviction (by plea or verdict) was necessarily predicated on the accusatory pleading’s description of the offense.
Under California law the only determination for the jury to make regarding prior convictions is to determine whether the submitted documents are authentic and, if so, whether they are sufficient to establish that the convictions the defendant suffered are the ones that were alleged. (See People v. Kelii (99) 21 C4th 452 [87 CR2d 674]; see also PC 1025.) Notwithstanding state law to the contrary, however, the federal constitutional right to trial by jury (6th and 14th Amendments) may apply to proof of prior convictions. (See FORECITE PG VII(C)(32)(3).)
F 17.25c
Consideration Of Prison Documents
*Add to CJ 17.25:
You may consider certified prison documents in determining the existence of a prior conviction, the defendant’s identity as the person who sustained the prior conviction, the defendant’s service of a prison term, and the dates of [his] [her] prison custody. However, internal prison administrative and classification documents are not a part of the “record of conviction,” and you may not consider such internal prison documents in determining whether the prior conviction was based upon [personal firearm use; personal use of a deadly weapon; burglary of an inhabited dwelling; etc.]
Points and Authorities
PC 969b; People v. Rhoden (89) 216 CA3d 1242, 1257 [265 CR 355]; People v. Mathews (91) 220 CA3d 930, 937 [269 CR 547]; People v. Richardson (46) 74 CA2d 528, 536-37 [269 CR 547].
Under California law the only determination for the jury to make regarding prior convictions is to determine whether the submitted documents are authentic and, if so, whether they are sufficient to establish that the convictions the defendant suffered are the ones that were alleged. (See People v. Kelii (99) 21 C4th 452 [87 CR2d 674]; see also PC 1025.) Notwithstanding state law to the contrary, however, the federal constitutional right to trial by jury (6th and 14th Amendments) may apply to proof of prior convictions. (See FORECITE PG VII(C)(32)(3).)
(See FORECITE F 17.25 n5.)
F 17.25d
Prior With GBI: Prosecution Burden To Prove
Person Injured Was Not An Accomplice
*Add to CJ 17.25:
To prove the prior conviction alleged in __________, the prosecution must prove beyond a reasonable doubt that:
1. The defendant was convicted of _______ [insert details of prior];
2. During the commission of the offense described in (1) above, the defendant personally inflicted great bodily injury which is defined as follows:
[insert definition of GBI e.g., CJ 17.20];
3. The person injured was not an accomplice which is defined as follows:
[insert definition of accomplice e.g., CJ 3.10; but
see also FORECITE F 3.10b, F 3.10 n1, F 3.10 et seq.]
Points and Authorities
A prior qualifies as a serious felony (and thus a strike) where the defendant personally inflicts great bodily injury on someone other than an accomplice. (PC 1192.7(c)(8).) People v. Henley (99) 72 CA4th 555 [85 CR2d 123] held that it violates due process to place the burden on the defendant to prove that the injured person was an accomplice. In other words, due process (U.S. Constitution 5th and 14th Amendments; California Constitution, Art. I § 15) requires the prosecution to prove that the injured person was not an accomplice.
F 17.25e
Serious Felony Prior:
Basic Instruction
(PC 667/PC 1192.7(e)-(h))
*Add to CJ 17.25:
The information further alleges that the defendant was previously convicted in 19__ of the felony of __________, involving __________ within the meaning of PC 667 and PC 1192.7(c)(__). In order to find this allegation true, the following elements must be proved:
1. The defendant was previously convicted of the felony of __________; and
2. The defendant’s previous __________ conviction was based upon ____________.
Thus you are required to determine not only whether the defendant sustained a prior __________ conviction, but also whether that prior conviction involved __________ within the meaning of PC 667 and PC 1192.7(c)(__).
The People have the burden of proving each of these elements beyond a reasonable doubt. If you find that the defendant did sustain a prior __________ conviction, but have a reasonable doubt whether that prior conviction was based upon __________, you must find the allegation not true.
You will include a special finding on this allegation in your verdict, using a form which will be provided.
Points and Authorities
Under California law the only determination for the jury to make regarding prior convictions is to determine whether the submitted documents are authentic and, if so, whether they are sufficient to establish that the convictions the defendant suffered are the ones that were alleged. (See People v. Kelii (99) 21 C4th 452 [87 CR2d 674]; see also PC 1025.) Notwithstanding state law to the contrary, however, the federal constitutional right to trial by jury (6th and 14th Amendments) may apply to proof of prior convictions. (See FORECITE PG VII(C)(32)(3).)
F 17.25f
Serious Felony Prior:
Residential Character of Burglary
(PC 667)
ALERT: See FORECITE F 17.25 n10.
*Add to CJ 17.25:
The information alleges that the defendant was previously convicted in 19__ of [first, second] degree burglary under PC 459 and that this prior conviction was based upon the burglary of an inhabited dwelling house [or inhabited portion of any other building or inhabited trailer coach or floating home or vessel which is inhabited and designed for habitation], within the meaning of PC 667 and PC 1192.7(c)(18).
[In 19__, a second-degree burglary conviction under PC 459 could be based on either the burglary of an inhabited dwelling house [or trailer coach] or an inhabited portion of another building, or upon the burglary of any other structure or building, inhabited or not. However, in order to find this allegation true, you must find beyond a reasonable doubt not only that the defendant was previously convicted of second-degree burglary, but also that the conviction was based upon a burglary of an inhabited dwelling house or trailer coach or inhabited portion of another building, rather than upon the burglary of some other structure or building or of the uninhabited portion of a building.]
The People have the burden of proving each of these elements beyond a reasonable doubt. Thus if you find that the defendant did sustain a prior burglary conviction, but have a reasonable doubt whether that prior burglary was of an inhabited dwelling house or trailer coach or inhabited portion of another building, you must find the allegation not true.
You will include a special finding on this allegation in your verdict, using a form which will be provided.
Points and Authorities
The residential character of prior burglary convictions has probably been the most frequently litigated issue under PC 667, both before and after People v. Guerrero (88) 44 C3d 343 [243 CR 688]. Until 1983, first-degree burglary only covered nighttime entries. Hence, a second-degree burglary before 1983 could be either residential or commercial. The first bracketed paragraph is designed for this recurring situation.
Under California law the only determination for the jury to make regarding prior convictions is to determine whether the submitted documents are authentic and, if so, whether they are sufficient to establish that the convictions the defendant suffered are the ones that were alleged. (See People v. Kelii (99) 21 C4th 452 [87 CR2d 674]; see also PC 1025.) Notwithstanding state law to the contrary, however, the federal constitutional right to trial by jury (6th and 14th Amendments) may apply to proof of prior convictions. (See FORECITE PG VII(C)(32)(3).)
NOTES
Effective Jan. 1, 1990, the first-degree burglary statute was amended to include “a vessel … which is inhabited and designed for habitation.” (PC 460(a).) The Legislature subsequently added a further gloss along these lines (eff. Jan. 1, 1992) to include a “floating home” within PC 460(a). However, the Legislature has made no corresponding changes in the burglary provision of PC 1192.7(c), which is the predicate for a PC 667 enhancement. Only a burglary of “an inhabited dwelling house, or trailer coach …, or inhabited portion of any other building” qualifies as a serious felony for enhancement purposes. (PC 1192.7(c)(18).) However, People v. Cruz (96) 13 C4th 764 [55 CR2d 117] held that the legislature did not intend to omit inhabited vessels from PC 1192.7(c)(18).
F 17.25g
Serious Felony Prior:
Personal Firearm Use
(PC 667)
ALERT: See People v. Luna (2003) 113 CA4th 395 [PC 1192.7(c)(31) assault with a deadly weapon has no requirement that the accused personally use the deadly weapon as in PC 1192.7(c)(8) and (c)(23)].
*Add to CJ 17.25:
The information further alleges that the defendant was previously convicted of a felony involving personal use of a firearm within the meaning of PC 1192.7(c)(8).
A felony conviction of assault with a firearm, under PC 245(a)(2), may be based either upon the defendant’s personal use of a firearm or upon the defendant’s conduct in aiding and abetting another person who used a firearm. However, in order to find the allegation under PC 1192.7(c)(8) true, each of the following elements must be proven beyond the a reasonable doubt:
1. That the defendant was convicted in ____ of assault with a firearm under PC 245(a)(2); and
2. That the prior conviction was based on the defendant’s own personal use of a firearm, rather upon [his] [her] conduct in aiding or abetting another person who used a firearm.
The People have the burden of proving each of these elements beyond a reasonable doubt. Thus if you find that the defendant was previously convicted of assault with a firearm under PC 245(a)(2), but have a reasonable doubt whether that conviction was based upon the defendant’s personal use of a firearm, you must find this allegation not true.
You will include a special finding on this allegation in your verdict, using a form which will be provided.
Points and Authorities
Under California law the only determination for the jury to make regarding prior convictions is to determine whether the submitted documents are authentic and, if so, whether they are sufficient to establish that the convictions the defendant suffered are the ones that were alleged. (See People v. Kelii (99) 21 C4th 452 [87 CR2d 674]; see also PC 1025.) Notwithstanding state law to the contrary, however, the federal constitutional right to trial by jury (6th and 14th Amendments) may apply to proof of prior convictions. (See FORECITE PG VII(C)(32)(3).)
F 17.25h
Serious Felony Prior:
Personal Use of Deadly Weapon
(PC 667)
ALERT: See People v. Luna (2003) 113 CA4th 395 [PC 1192.7(c)(31) assault with a deadly weapon has no requirement that the accused personally use the deadly weapon as in PC 1192.7(c)(8) and (c)(23)].
*Add to CJ 17.25:
The information further alleges that the defendant was previously convicted of a felony involving personal use of a dangerous or deadly weapon within the meaning of PC 1192.7(c)(23).
A felony assault conviction under PC 245(a)(1), may be based upon either use of a deadly weapon or use of force likely to produce great bodily injury. Additionally, a felony conviction under PC 245(a)(1) may be based either upon a defendant’s personal use of a deadly weapon or force likely to produce great bodily injury or upon the defendant’s conduct in aiding and abetting another person who used such a weapon or such force. However, in order to find the allegation under PC 1192.7(c)(23) true, each of the following elements must be proven beyond a reasonable doubt:
1. That the defendant was convicted in ____ of felony assault under PC 245(a)(1);
2. That the prior conviction was based upon use of a dangerous or deadly weapon, rather than only upon use of force likely to cause great bodily injury; and
3. That the prior conviction was based upon the defendant’s own personal use of a deadly or dangerous weapon, rather than upon [his] [her] conduct in aiding and abetting another person who used such a weapon.
The People have the burden of proving each of these elements beyond a reasonable doubt. Thus if you find that the defendant was previously convicted of felony assault under PC 245(a)(1), but have a reasonable doubt whether that conviction was based upon the defendant’s personal use of a deadly or dangerous weapon, you must find this allegation not true.
Points and Authorities
Under California law the only determination for the jury to make regarding prior convictions is to determine whether the submitted documents are authentic and, if so, whether they are sufficient to establish that the convictions the defendant suffered are the ones that were alleged. (See People v. Kelii (99) 21 C4th 452 [87 CR2d 674]; see also PC 1025.) Notwithstanding state law to the contrary, however, the federal constitutional right to trial by jury (6th and 14th Amendments) may apply to proof of prior convictions. (See FORECITE PG VII(C)(32)(3).)
NOTE: Bare Hands Or Feet Are Not Deadly Weapons. (See People v. Aguilar (97) 16 C4th 1023, 1034 [68 CR2d 655]; FORECITE F 9.08a and F 9.08b.)
F 17.25i
Serious Felony Prior:
Prior Sex Offenses
(PC 667)
*Add to CJ 17.25:
The information further alleges that the defendant was previous convicted of a felony violation of [PC 286, PC 288a, or PC 289(a)], based on force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person, within the meaning of [PC 1192.7(c)(4), 1192.7(c)(5), or PC 1192.7(c)(25)].
A[n] [sodomy conviction under PC 286, oral copulation conviction under PC 288a, or foreign object penetration conviction under PC 289(a)] may be based on use of force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person. A defendant may also be convicted of that offense where the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute that threat. However, in order to find the current allegation under [PC 1192.7(c)(4), PC 1192.7(c)(5), or PC 1192.7(c)(25)] true, each of the following elements must be established:
1. The defendant was convicted in ___ of a felony violation of __________; and
2. The conviction was based upon use of force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person, rather than upon a threat of future retaliation against the victim or some other person.
The People have the burden of proving each of these elements beyond a reasonable doubt. Thus if you find that the defendant was previously convicted of a felony violation of __________, but have a reasonable doubt whether that conviction was based upon one of the means listed above, you must find this allegation not true.
You will include a special finding on this allegation in your verdict, using a form which will be provided.
Points and Authorities
Under California law the only determination for the jury to make regarding prior convictions is to determine whether the submitted documents are authentic and, if so, whether they are sufficient to establish that the convictions the defendant suffered are the ones that were alleged. (See People v. Kelii (99) 21 C4th 452 [87 CR2d 674]; see also PC 1025.) Notwithstanding state law to the contrary, however, the federal constitutional right to trial by jury (6th and 14th Amendments) may apply to proof of prior convictions. (See FORECITE PG VII(C)(32)(3).)