CALCRIM No. 3179. Sex Offenses: Sentencing Factors - Kidnapping (Pen. Code, § 667.61(e)(1))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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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
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].)
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
Molestation
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
Carjacking
887
AUTHORITY
• 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 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].
RELATED ISSUES
See also the Related Issues sections of the instructions on kidnapping, CALCRIM
Nos. 1200-1204, 1215.
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) 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, §§ 91.38[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
Group).
CALCRIM No. 3179 ENHANCEMENTS AND SENTENCING FACTORS
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