California Criminal Jury Instructions (CALCRIM) (2017)

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

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3178.Sex Offenses: Sentencing Factors—Burglary With Intent to
Commit Sex Offense (Pen. Code, § 667.61(d)(4))
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
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<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.
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].)
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(j); People v.
Mancebo (2002) 27 Cal.4th 735, 743 [117 Cal.Rptr.2d 550, 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.
ENHANCEMENTS AND SENTENCING FACTORS CALCRIM No. 3178
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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).
Couzens & Bigelow, Sex Crimes: California Law and Procedure § 13:9 (The Rutter
Group).
RELATED ISSUES
See the Related Issues sections of CALCRIM No. 1700, Burglary, and CALCRIM
No. 1701, Burglary: Degrees.
CALCRIM No. 3178 ENHANCEMENTS AND SENTENCING FACTORS
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