CALCRIM No. 3177. Sex Offenses: Sentencing Factors - Torture (Pen. Code, § 667.61(d)(3))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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3177.Sex Offenses: Sentencing Factors - Torture (Pen. Code,
§ 667.61(d)(3))
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, while committing that crime, the defendant
also committed torture. [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. During the commission of the crime, the defendant inflicted great
bodily injury on someone else;
AND
2. When inflicting the injury, the defendant intended to cause cruel
or extreme pain and suffering for the purpose of revenge,
extortion, or persuasion or for any sadistic purpose.
Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.
[It is not required that a victim actually suffer pain.]
[Someone acts for the purpose of extortion if he or she intends to (1)
obtain a person’s property with the person’s consent and (2) obtain the
person’s consent through the use of force or fear.]
[Someone acts for the purpose of extortion if he or she (1) intends to get
a public official to do an official act and (2) uses force or fear to make
the official do the act. An official act is an act that an officer does in his
or her official capacity using the authority of his or her public office.]
[Someone acts with a sadistic purpose if he or she intends to inflict pain
on someone else in order to experience pleasure himself or herself.]
<If there is an issue in the case over whether the torture was inflicted
“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.
New January 2006
881
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].)
Unlike murder by torture, the crime of torture under Penal Code section 206 does
not require that the intent to cause pain be premeditated or that any cruel or extreme
pain be prolonged. (People v. Pre (2004) 117 Cal.App.4th 413, 419-420 [11
Cal.Rptr.3d 739]; People v. Aguilar (1997) 58 Cal.App.4th 1196, 1204-1205 [68
Cal.Rptr.2d 619]; People v. Vital (1996) 45 Cal.App.4th 441, 444 [52 Cal.Rptr.2d
676].) Torture as defined in section 206 focuses on the mental state of the
perpetrator and not the actual pain inflicted. (People v. Hale (1999) 75 Cal.App.4th
94, 108 [88 Cal.Rptr.2d 904].) Give the bracketed sentence stating that “It is not
required that a victim actually suffer pain” on request if there is no proof that the
alleged victim actually suffered pain.
“Extortion” need not be defined for purposes of torture. (People v. Barrera (1993)
14 Cal.App.4th 1555, 1564 [18 Cal.Rptr.2d 395]; but see People v. Hill (1983) 141
Cal.App.3d 661, 668 [190 Cal.Rptr. 628] [term should be defined for kidnapping
under Pen. Code, § 209].) Nevertheless, either of the bracketed definitions of
extortion, and the related definition of “official act,” may be given on request if any
of these issues are raised in the case. (See Pen. Code, § 518 [defining “extortion”];
People v. Norris (1985) 40 Cal.3d 51, 55-56 [219 Cal.Rptr. 7, 706 P.2d 1141]
[defining “official act”].) Extortion may also be committed by using “the color of
official right” to make an official do an act. (Pen. Code, § 518; see Evans v. United
States (1992) 504 U.S. 255, 258 [112 S.Ct. 1881, 119 L.Ed.2d 57]; McCormick v.
United States (1990) 500 U.S. 257, 273 [111 S.Ct. 1807, 114 L.Ed.2d 307] [both
discussing common law definition of the term].) It appears that this type of extortion
would rarely occur in the context of torture, so it is excluded from this instruction.
“Sadistic purpose” may be defined on request. (See People v. Barrera, supra, 14
Cal.App.4th at p. 1564; People v. Raley (1992) 2 Cal.4th 870, 899-901 [8
Cal.Rptr.2d 678, 830 P.2d 712] [approving use of phrase in torture-murder and
special circumstances torture-murder instructions].)
If the case involves an issue of whether the defendant inflicted the injury “during
the commission of” the offense, the court may give CALCRIM No. 3261, While
Committing a 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]; People v. Taylor (1995) 32
Cal.App.4th 578, 582 [38 Cal.Rptr.2d 127].)
AUTHORITY
• One-Strike Sex Offense Statute - Torture Factor. Pen. Code, § 667.61(d)(3).
• 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].
CALCRIM No. 3177 ENHANCEMENTS AND SENTENCING FACTORS
882
• Elements of Torture. Pen. Code, § 206.
• Extortion Defined. Pen. Code, § 518.
• Great Bodily Injury Defined. Pen. Code, § 12022.7(f); see, e.g., People v. Hale
(1999) 75 Cal.App.4th 94, 108 [88 Cal.Rptr.2d 904] [broken and smashed teeth,
split lip, and facial cut sufficient evidence of great bodily injury].
• Cruel Pain Equivalent to Extreme or Severe Pain. People v. Aguilar (1997) 58
Cal.App.4th 1196, 1202 [68 Cal.Rptr.2d 619].
• Intent. People v. Hale (1999) 75 Cal.App.4th 94, 106-107 [88 Cal.Rptr.2d
904]; People v. Jung (1999) 71 Cal.App.4th 1036, 1042-1043 [84 Cal.Rptr.2d
5]; see People v. Aguilar (1997) 58 Cal.App.4th 1196, 1204-1206 [68
Cal.Rptr.2d 619] [neither premeditation nor intent to inflict prolonged pain are
elements of torture].
• Sadistic Purpose Defined. People v. Raley (1992) 2 Cal.4th 870, 899-901 [8
Cal.Rptr.2d 678, 830 P.2d 712]; People v. Aguilar (1997) 58 Cal.App.4th 1196,
1202-1204 [68 Cal.Rptr.2d 619]; see People v. Healy (1993) 14 Cal.App.4th
1137, 1142 [18 Cal.Rptr.2d 274] [sexual element not required].
• “During 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].
RELATED ISSUES
See the Related Issues section of CALCRIM No. 810, Torture.
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 202) 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, § 91.102[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.15 (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure § 13:9 (The Rutter
Group).
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