CALCRIM No. 3102

If you find that the defendant was previously convicted of

<insert description of prior conviction>, you must also decide whether the

People have proved that the defendant served a separate prison term for

the crime and did not remain (out of prison custody/ [and] free of a new

felony conviction) for (5/10) years.

To prove this allegation, the People must prove that:

1. The defendant served a separate prison term for the crime of

<insert description of prior conviction>;

AND [EITHER]

[2[A]. The defendant did not remain out of prison custody for (5/10)

years after (he/she) was no longer in prison custody for that

crime(;/.)]

[OR]

[2[B]. The defendant was convicted of a new felony that (he/she)

committed within (5/10) years after (he/she) was no longer in

prison custody.]

A person served a separate prison term for a crime if he or she served a

continuous period of prison confinement imposed for that crime. [The

prison term may have been served for that crime alone or in

combination with prison terms imposed at the same time for other

crimes.] [A person is still serving a separate prison term for a crime if he

or she is placed back in custody (following an escape/ [or] for a parole

violation).] [If a person is returned to custody following (an escape/ [or]

a parole violation) and is also sentenced to prison for a new crime, then

that person is serving a new separate prison term.]

A person is in prison custody until he or she is discharged from prison or

released on parole, whichever happens first. [A person is also in prison

custody if he or she (is placed back in custody for a parole violation/ [or]

has unlawfully escaped from custody).]

A prison term includes confinement in [(a/the)] (state prison/federal penal

institution/California Y outh Authority/Division of Juvenile

Justice/Department of Y outh and Community Restoration/

<insert name of hospital or other institution where confinement entitles

person to prison credits>).

[A prison term includes commitment to the State Department of Mental

Health as a mentally disordered sex offender following a felony

conviction if the commitment lasts more than one year.]

[A conviction of <insert name of offense from other state or

federal offense> is the same as a conviction for a felony if the defendant

served one year or more in prison for the crime.]

The People have the burden of proving this allegation beyond a

reasonable doubt. If the People have not met this burden, you must find

that this allegation has not been proved.

New January 2006; Revised September 2020