CALCRIM No. 3175. Sex Offenses: Sentencing Factors - Aggravated Kidnapping (Pen. Code, § 667.61(d)(2))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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F. SEX OFFENSES
3175.Sex Offenses: Sentencing Factors - Aggravated Kidnapping
(Pen. Code, § 667.61(d)(2))
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.
875
New January 2006
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(j); 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].
CALCRIM No. 3175 ENHANCEMENTS AND SENTENCING FACTORS
876
• 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].
RELATED ISSUES
See also the Related Issues section of CALCRIM No. 1215, Kidnapping.
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
§§ 459-463.
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 727.
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).
Couzens & Bigelow, Sex Crimes: California Law and Procedure § 13:9 (The Rutter
Group).
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