California Criminal Jury Instructions (CALCRIM) (2017)

3179. Sex Offenses: Sentencing Factors - Kidnapping

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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
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.
New January 2006
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].)
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,
§ 667.61(e)(1).
• 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].
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.
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
See also the Related Issues sections of the instructions on kidnapping, CALCRIM
Nos. 1200–1204, 1215.