3183. Sex Offenses: Sentencing Factors - Administered Controlled Substance

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 administered a controlled substance to <insert name[s] of alleged victim[s]> during the commission of (that/those) crime[s]. [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. In the commission of <insert sex offense[s] from Pen. Code, § 667.61(c)>, the defendant administered <insert controlled substance from Health & Saf. Code, §§ 11054-11058> to <insert name[s] of alleged victim[s]>;

2. The defendant administered the <insert controlled substance from Health & Saf. Code, §§ 11054- 11058> against that person's will by means of force, violence, or fear of immediate and unlawful bodily injury to that person [or someone else];

AND

3. The defendant did so for the purpose of committing <insert felony alleged>.

A person administers a substance if he or she applies it directly to the body of another person by injection, or by any other means, or causes the other person to inhale, ingest, or otherwise consume the substance.

<If there is an issue in the case as to whether the defendant acted "during the commission of" the offense, see Bench Notes.>

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 there is an issue in the case as to whether the defendant acted "during the commission" of the offense, the court may give CALCRIM No. 3261, During Commission of Felony: Defined—Escape Rule. (See People v. Jones (2001) 25 Cal.4th 98, 109 [104 Cal.Rptr.2d 753, 18 P.3d 674]; People v. Masbruch (1996) 13 Cal.4th 1001, 1014 [55 Cal.Rptr.2d 760, 920 P.2d 705] [weapon used before elements of felony committed]; People v. Taylor (1995) 32 Cal.App.4th 578, 582 [38 Cal.Rptr.2d 127].)

Authority

One-Strike Sex Offense Statute—Administered Controlled Substance. Pen. Code, § 667.61(e)(7).

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].

Elements of Enhancement. Pen. Code, § 12022.75.

Administering. Health & Saf. Code, § 11002.

"In Commission of" Felony. People v. Jones (2001) 25 Cal.4th 98, 109-110 [104 Cal.Rptr.2d 753, 18 P.3d 674]; People v. Masbruch (1996) 13 Cal.4th 1001, 1014 [55 Cal.Rptr.2d 760, 920 P.2d 705]; People v. Taylor (1995) 32 Cal.App.4th 578, 582 [38 Cal.Rptr.2d 127].

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, §§ 91.42, 91.102[2][a][ii] (Matthew Bender).

Related Issues

See also the Related Issues section of CALCRIM No. 3175, Sex Offenses: Sentencing Factors—Aggravated Kidnapping.

(New January 2006)