SERIES 3100 ENHANCEMENTS AND SENTENCING FACTORS
F 3103 Prior Conviction: Factual Issue For Jury
TABLE OF CONTENTS
F 3103.1 Titles And Identification Of Parties
F 3103.1 Inst 1 Prior Conviction: Factual Issue For Jury—Title
F 3103.1 Inst 2 Identification Of Prosecution And Defendant
F 3103.2 Prior Conviction: Factual Issue For Jury—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 3103.3 Prior Conviction: Factual Issue For Jury—Language That Is Argumentative, Confusing, Etc.
F 3103.3 Inst 1 Modification Of Coercive Language That The Jurors “Must Decide” The Enhancement
F 3103.2 Inst 2 No Consideration Of Accusatory Pleading As Proof Of Facts Underlying Prior Conviction
F 3103.3 Inst 3 Juror Consideration Of Prison Documents
F 3103.4 Prior Conviction: Factual Issue For Jury—Burden Of Proof Issues
F 3103.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 3103.5 Prior Conviction: Factual Issue For Jury—Elements And Definitions
F 3103.5 Inst 1 Prior With GBI: Prosecution Burden To Prove Person Injured Was Not An Accomplice
F 3103.5 Inst 2 Serious Felony Prior: Residential Character Of Burglary (PC 667)
F 3103.5 Inst 3 Guidelines For Jury Consideration Of Record Of Prior Conviction
F 3103.6 Prior Conviction: Factual Issue For Jury—Defense Theories [Reserved]
F 3103.7 Prior Conviction: Factual Issue For Jury—Preliminary Fact Issues [Reserved]
F 3103.8 Prior Conviction: Factual Issue For Jury—Unanimity/Duplicity/Multiplicity [Reserved]
F 3103.9 Prior Conviction: Factual Issue For Jury—Lesser Offense Issues [Reserved]
Return to Series 3100 Table of Contents.
F 3103.1 Titles And Identification Of Parties
F 3103.1 Inst 1 Prior Conviction: Factual Issue For Jury—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 3103.1 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 3103.2Prior Conviction: Factual Issue For Jury—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 3103.3 Prior Conviction: Factual Issue For Jury—Language That Is Argumentative, Confusing, Etc.
F 3103.3 Inst 1 Modification Of Coercive Language That The Jurors “Must Decide” The Enhancement
See FORECITE F 3100.3 Inst 1.
F 3103.2 Inst 2 No Consideration Of Accusatory Pleading As Proof Of Facts Underlying Prior Conviction
*Add to CC 200:
In determining whether all the elements of the prior conviction allegation have been proven beyond a reasonable doubt, 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 (1999) 21 C4th 452; see also PC 1025.)
CALJIC NOTE: See FORECITE F 17.25b.
F 3103.3 Inst 3 Juror Consideration Of Prison Documents
*Add to CC 200:
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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—PC 969b; People v. Rhoden (1989) 216 CA3d 1242, 1257; People v. Mathews (1991) 220 CA3d 930, 937; People v. Richardson (1946) 74 CA2d 528, 536-37.
[See also FORECITE F 3100 Note 3; F 17.25 n5.]
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.
CALJIC NOTE: See FORECITE F 17.25c.
F 3103.4 Prior Conviction: Factual Issue For Jury—Burden Of Proof Issues
F 3103.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 3100.4 Inst 1.
F 3103.5 Prior Conviction: Factual Issue For Jury—Elements And Definitions
F 3103.5 Inst 1 Prior With GBI: Prosecution Burden To Prove Person Injured Was Not An Accomplice
*Add to CC 3103:
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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Due Process Requires Prosecution To Prove Person Injured Was Not An Accomplice—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 (1999) 72 CA4th 555, 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.
[See also FORECITE F 404.2 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.
CALJIC NOTE: See FORECITE F 17.25d.
F 3103.5 Inst 2 Serious Felony Prior: Residential Character Of Burglary (PC 667)
*Add to CC 3103:
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__] [20___], 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 prosecution has 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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—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 (1988) 44 C3d 343. 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.
[See also FORECITE F 17.25 n10.]
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 4.4 [Jury Must Consider Affirmative Defense Evidence As To Whether Prosecution Has Proven All Elements Of The Offense]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
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 (1996) 13 C4th 764 held that the legislature did not intend to omit inhabited vessels from PC 1192.7(c)(18).
CALJIC NOTE: See FORECITE F 17.25f.
F 3103.5 Inst 3 Guidelines For Jury Consideration Of Record Of Prior Conviction
*Add to CC 3100:
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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—People v. Guerrero (1988) 44 C3d 343, 352, 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 (1989) 215 CA3d 1297, 1303-04 [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 (1999) 21 C4th 452; see also PC 1025.)
CALJIC NOTE: See FORECITE F 17.25a.
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 3103.6 Prior Conviction: Factual Issue For Jury—Defense Theories [Reserved]
F 3103.7 Prior Conviction: Factual Issue For Jury—Preliminary Fact Issues [Reserved]
F 3103.8 Prior Conviction: Factual Issue For Jury—Unanimity/Duplicity/Multiplicity [Reserved]
F 3103.9 Prior Conviction: Factual Issue For Jury—Lesser Offense Issues [Reserved]
