Section 3102 | CALCRIM (Jury Instructions)

must determine whether the defendant served a prior prison term for a felony
conviction. The other holdings in Winslow were rejected by the California Supreme
Court. (People v. Kelii, supra, 21 Cal.4th at pp. 458–459; People v. Wiley (1995) 9
Cal.4th 580, 592 [38 Cal.Rptr.2d 347, 889 P.2d 541].) However, the Winslow
holding that the jury must determine if the defendant served a prison term for a
felony conviction remains controlling authority.
But, in People v. Epps, supra, 25 Cal.4th at pp. 25–26, the Court expressed doubt,
in dicta, about whether the fact of having served a prison term is properly submitted
to the jury. Discussing the 1997 amendment to Penal Code section 1025, the Court
noted that
[t]he analysis lists the following questions that the jury would still decide if
Senate Bill 1146 became law: . . . ‘Was the defendant sentenced to prison based
on that conviction? How long has the defendant been out of custody since he or
she suffered the prior conviction?’ . . .
[T]hough we do not have a case before us raising the issue, it appears that many
of the listed questions are the sort of legal questions that are for the court under
[Wiley]. For example, determining . . . whether the defendant was sentenced to
prison is “largely legal” (Kelii, supra, 21 Cal. 4th at p. 455, quoting Wiley,
supra, 9 Cal. 4th at p. 590), and though these questions require resolution of
some facts, “a factual inquiry, limited to examining court documents, is . . .
‘the type of inquiry traditionally performed by judges as part of the sentencing
function.’ ” (Kelii, at p. 457, quoting Wiley, at p. 590.) . . . Therefore, the list
of questions in the committee analysis should not be read as creating new jury
trial rights that did not exist under Wiley.
(Ibid.)
On the other hand, Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348,
147 L.Ed.2d 435] could be interpreted as requiring the jury to make these factual
findings. (But see People v. Thomas (2001) 91 Cal.App.4th 212, 223 [110
Cal.Rptr.2d 571] [even under Apprendi, no federal due process right to have jury
determine whether defendant served a prior prison term].)
Until the California Supreme Court resolves this question, the court should consider
submitting to the jury the issues of whether the defendant served a prison term and
whether the defendant has remained free of custody for sufficient time to satisfy the
“washout” period. The court may use CALCRIM No. 3102, Prior Conviction:
Prison Prior.
RELATED ISSUES
Constitutionality of Prior
The prosecution is not required to prove the constitutional validity of a prior
conviction as an “element” of the enhancement. (People v. Walker (2001) 89
Cal.App.4th 380, 386 [107 Cal.Rptr.2d 264].) Rather, following the procedures
established in People v. Sumstine (1984) 36 Cal.3d 909, 922–924 [206 Cal.Rptr.
707, 687 P.2d 904], and People v. Allen (1999) 21 Cal.4th 424, 435–436 [87
CALCRIM No. 3100
ENHANCEMENTS AND SENTENCING FACTORS
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Direct Commitment to Youth A