3179. Sex Offenses: Sentencing Factors - Kidnapping
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[s] of alleged victim[s]>. [You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.]
To decide whether the defendant kidnapped <insert name[s] of alleged victim[s]>, please refer to the separate instructions that I (will give/have given) you on kidnapping. You must apply those instructions when you decide whether the People have proved this additional allegation.
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.
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].)
This sentencing factor applies if "the defendant kidnapped the victim of the present offense in violation of Section 207, 209, or 209.5." (Pen. Code, § 667.61(e)(1).) Give the appropriate instruction on kidnapping, depending on which Penal Code section the prosecution alleges, as follows:
Pen. Code, § 209: CALCRIM No. 1202, Kidnapping: for Ransom, Reward, or Extortion
CALCRIM No. 1203, Kidnapping: for Robbery, Rape, or Other Sex Offenses
Pen. Code, § 209.5: CALCRIM No. 1204, Kidnapping: During Carjacking
One-Strike Sex Offense Statute—Kidnapping Factor. Pen. Code, § 667.61(e)(1).
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].
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 More Movement Than Incidental to Offense. People v. Diaz (2000) 78 Cal.App.4th 243, 246 [92 Cal.Rptr.2d 682].
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, §§ 91.38, 91.102[a] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.14 (Matthew Bender).
See also the Related Issues sections of CALCRIM No. 3175, Sex Offenses: Sentencing Factors—Aggravated Kidnapping and of the instructions on kidnapping, CALCRIM Nos. 1200-1204, 1215.
(New January 2006)