3175. Sex Offenses: Sentencing Factors - Aggravated Kidnapping

If you find the defendant guilty of the crime[s] charged in Count[s] <insert counts charging sex offense[s] from Pen. Code, § 667.61(c)>, you must then decide whether[, for each crime,] the People have proved the additional allegation that the defendant kidnapped <insert name of alleged victim>, increasing the risk of harm to (him/her). [You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.]

To prove this allegation, the People must prove that:

1. The defendant took, held, or detained <insert name of alleged victim> by the use of force or by instilling reasonable fear;

2. Using that force or fear, the defendant moved <insert name of alleged victim> [or made (him/her) move] a substantial distance;

3. The movement of <insert name of alleged victim> substantially increased the risk of harm to (him/ her) beyond that necessarily present in the <insert sex offense[s] from Pen. Code, § 667.61(c)>;

[AND]

4. <insert name of alleged victim> did not consent to the movement(./;)

[AND

5. The defendant did not actually and reasonably believe that <insert name of alleged victim> consented to the movement.]

Substantial distance means more than a slight or trivial distance. The movement must be more than merely incidental to the commission of <insert sex offense[s] from Pen. Code, § 667.61(c)>. In deciding whether the distance was substantial and whether the movement substantially increased the risk of harm, you must consider all the circumstances relating to the movement.

The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction on the sentencing factor when charged. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].)

The victim's consent to go with the defendant may be a defense. (See People v. Greenberger (1997) 58 Cal.App.4th 298, 375 [68 Cal.Rptr.2d 61]; People v. Isitt (1976) 55 Cal.App.3d 23, 28 [127 Cal.Rptr. 279] [reasonable, good faith belief that victim consented to movement is a defense to kidnapping].) For paragraphs instructing on actual consent or a reasonable, good faith belief in consent, see CALCRIM No. 1215, Kidnapping.

Authority

One-Strike Sex Offense Statute—Kidnapping Factor. Pen. Code, § 667.61(d)(2).

Factors Must Be Pleaded and Proved. Pen. Code, § 667.61(i); People v. Mancebo (2002) 27 Cal.4th 735, 743 [117 Cal.Rptr.2d 550, 41 P.3d 556].

Sentencing Factor Does Not Require Specific Intent to Commit Sex Offense. People v. Jones (1997) 58 Cal.App.4th 693, 717 [68 Cal.Rptr.2d 506].

Sentencing Factor Requires Greater Movement Than That Incidental to Offense. People v. Diaz (2000) 78 Cal.App.4th 243, 246 [92 Cal.Rptr.2d 682]; see also People v. Aguilar (2004) 120 Cal.App.4th 1044, 1052 [16 Cal.Rptr.3d 231] [discussing meaning of "incidental"].

Elements of Kidnapping. Pen. Code, § 207(a).

Asportation Requirement. People v. Martinez (1999) 20 Cal.4th 225, 235-237 [83 Cal.Rptr.2d 533, 973 P.2d 512] [adopting modified two-pronged asportation test from People v. Rayford (1994) 9 Cal.4th 1, 12-14 [36 Cal.Rptr.2d 317, 884 P.2d 1369], and People v. Daniels (1969) 71 Cal.2d 1119, 1139 [80 Cal.Rptr. 897, 459 P.2d 225]].

Consent to Physical Movement. See People v. Davis (1995) 10 Cal.4th 463, 516-518 [41 Cal.Rptr.2d 826, 896 P.2d 119].

Force or Fear Requirement. People v. Moya (1992) 4 Cal.App.4th 912, 916-917 [6 Cal.Rptr.2d 323]; People v. Stephenson (1974) 10 Cal.3d 652, 660 [111 Cal.Rptr. 556, 517 P.2d 820]; see People v. Davis (1995) 10 Cal.4th 463, 517, fn. 13, 518 [41 Cal.Rptr.2d 826, 896 P.2d 119] [kidnapping requires use of force or fear; consent not vitiated by fraud, deceit, or dissimulation].

Good Faith Belief in Consent. Pen. Code, § 26, subd. 3 [mistake of fact]; People v. Mayberry (1975) 15 Cal.3d 143, 153-155 [125 Cal.Rptr. 745, 542 P.2d 1337]; People v. Isitt (1976) 55 Cal.App.3d 23, 28 [127 Cal.Rptr. 279]; People v. Patrick (1981) 126 Cal.App.3d 952, 968 [179 Cal.Rptr. 276].

Intent Requirement. People v. Thornton (1974) 11 Cal.3d 738, 765 [114 Cal.Rptr. 467, 523 P.2d 267]; People v. Davis (1995) 10 Cal.4th 463, 519 [41 Cal.Rptr.2d 826, 896 P.2d 119]; People v. Moya (1992) 4 Cal.App.4th 912, 916 [6 Cal.Rptr.2d 323].

Substantial Distance Requirement. People v. Derek Daniels (1993) 18 Cal.App.4th 1046, 1053 [22 Cal.Rptr.2d 877]; People v. Stanworth (1974) 11 Cal.3d 588, 600-601 [114 Cal.Rptr. 250, 522 P.2d 1058] [since movement must be more than slight or trivial, it must be substantial in character].

Secondary Sources

3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, §§ 386-389.

5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 644.

5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91, Sentencing, §§ 91.38[1], 91.102[2][a] (Matthew Bender).

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.14 (Matthew Bender).

Related Issues

One-Strike Sex Offense Statute—Meaning of Single Occasion

Penal Code section 667.61(g) provides that the sentence provided for by this statute "shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion." The term "single occasion" as used here does not have the same meaning as the term "separate occasion" in Penal Code section 667.6. (People v. Jones (2001) 25 Cal.4th 98, 107 [104 Cal.Rptr.2d 753, 18 P.3d 674].) "[F]or the purposes of Penal Code section 667.61, subdivision (g), sex offenses occurred on a 'single occasion' if they were committed in close temporal and spatial proximity." (Ibid.)

See also the Related Issues section of CALCRIM No. 1215, Kidnapping.

(New January 2006)