3182. Sex Offenses: Sentencing Factors - Tying or Binding
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 tied or bound <insert name[s] of alleged victim[s] or other person[s]> during the commission of (that/those) crime[s]. [You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.]
<If there is an issue in the case as to whether the tying or binding occurred "during the commission of" the offense, see Bench Notes.>
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].)
If there is an issue in the case as to whether the defendant acted "during the commission of" the offense, the court may give CALCRIM No. 3261, During Commission of Felony: Defined—Escape Rule. (See People v. Jones (2001) 25 Cal.4th 98, 109 [104 Cal.Rptr.2d 753, 18 P.3d 674]; People v. Masbruch (1996) 13 Cal.4th 1001, 1014 [55 Cal.Rptr.2d 760, 920 P.2d 705]; People v. Taylor (1995) 32 Cal.App.4th 578, 582 [38 Cal.Rptr.2d 127].)
One-Strike Sex Offense Statute—Tying or Binding Factor. Pen. Code, § 667.61(e)(6).
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].
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, § 91.102[a][ii] (Matthew Bender).
Binding Includes Placing Tape Over Victim's Eyes
In People v. Campbell (2000) 82 Cal.App.4th 71, 77-79 [97 Cal.Rptr.2d 830], the court held that "binding" included placing tape over the victim's eyes to prevent her from seeing.
See also the Related Issues section of CALCRIM No. 3175, Sex Offenses: Sentencing Factors—Aggravated Kidnapping.
(New January 2006)