3178. Sex Offenses: Sentencing Factors - Burglary With Intent to Commit Sex Offense

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 committed the crime during the commission of burglary, with the intent to commit <insert sex offense[s] from Pen. Code, § 667.61(c)>. [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 entered an inhabited (house [or a room within an inhabited house]/vessel/floating home/trailer coach/part of a building);

2. When the defendant entered the (house [or room within the house]/vessel/floating home/trailer coach/part of a building), (he/she) intended to commit <insert sex offense[s] from Pen. Code, § 667.61(c)>;

AND

3. After the defendant entered the (house [or room within the house]/vessel/floating home/trailer coach/part of a building), (he/she) committed <insert sex offense[s] from Pen. Code, § 667.61(c)> [before (he/she) escaped to a place of temporary safety].

A (house [or a room within an inhabited house]/vessel/floating home/trailer coach/part of a building) is inhabited if someone uses it as a dwelling, whether or not someone is inside at the time of the alleged entry.

[A house includes any (structure/garage/office/ <insert description>) that is attached to the house and functionally connected with it.]

[The defendant intended to commit rape if he intended to have sexual intercourse with a woman [who was not his wife], without her consent, by (using force, duress, menace, or fear of immediate and unlawful bodily injury to her or to another person/threatening to retaliate against her or against a third person with a reasonable possibility that the threat would be carried out/threatening to have her or a third person incarcerated, arrested, or deported).]

[To decide whether the defendant intended to commit <insert sex offense[s] other than rape from Pen. Code, § 667.61(c)>, please refer to the separate instructions that I (will give/have given) you on (that/those) crime[s].]

[A person has reached a place of temporary safety if he or she has successfully escaped from the scene of the crime and is no longer being pursued.]

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].)

If the defendant is charged with rape, give the bracketed sentence that begins with "The defendant intended to commit rape. . . ." If the defendant is charged with another offense, use the next bracketed paragraph, and give all necessary instructions on the Penal Code section 667.61(c) offenses alleged.

For a definition of "vessel," "floating home," or "trailer coach," see CALCRIM No. 1701, Burglary: Degrees.

Authority

One-Strike Sex Offense Statute—Burglary With Intent to Commit Sex Offense. Pen. Code, § 667.61(d)(4).

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

During the Commission of Burglary Defined for Sentencing Factor. People v. Alvarado (2001) 87 Cal.App.4th 178, 191 [104 Cal.Rptr.2d 624].

Elements of Burglary. Pen. Code, § 459.

Determination of Degrees. Pen. Code, § 460.

Inhabitation Defined. Pen. Code, § 459.

Room Within Inhabited House. People v. Sparks (2002) 28 Cal.4th 71, 86-87 [120 Cal.Rptr.2d 508, 47 P.3d 289].

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, § 91.102[2][a] (Matthew Bender).

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes Against Property, § 143.10 (Matthew Bender).

Related Issues

See the Related Issues sections of CALCRIM No. 3175, Sex Offenses: Sentencing Factors—Aggravated Kidnapping, CALCRIM No. 1700, Burglary, and CALCRIM No. 1701, Burglary: Degrees.

(New January 2006)