California Criminal Jury Instructions (CALCRIM) (2017)
3179. Sex Offenses: Sentencing Factors - KidnappingDownload PDF
3179.Sex Offenses: Sentencing Factors—Kidnapping (Pen.
Code, § 667.61(e)(1))
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
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
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, § 207: CALCRIM No. 1215, Kidnapping
CALCRIM No. 1200, Kidnapping: For Child
CALCRIM No. 1201, Kidnapping: Person
Incapable of Consent
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
• One-Strike Sex Offense Statute—Kidnapping Factor. Pen. Code,
• 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
• 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,
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).
Couzens & Bigelow, Sex Crimes: California Law and Procedure § 13:9 (The Rutter
See also the Related Issues sections of the instructions on kidnapping, CALCRIM
Nos. 1200–1204, 1215.
CALCRIM No. 3179 ENHANCEMENTS AND SENTENCING FACTORS