California Criminal Jury Instructions (CALCRIM) (2017)

3183. Sex Offenses: Sentencing Factors - Administered Controlled Substance

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3183.Sex Offenses: Sentencing Factors—Administered
Controlled Substance (Pen. Code, § 667.61(e)(6))
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 administered a
controlled substance to <insert name[s] of alleged
victim[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.]
To prove this allegation, the People must prove that:
1. In the commission of <insert sex offense[s] from Pen.
Code, § 667.61(c)>, the defendant administered
<insert controlled substance from Health & Saf. Code,
§§ 11054–11058> to <insert name[s] of alleged
victim[s]>;
2. The defendant administered the <insert controlled
substance from Health & Saf. Code, §§ 11054–11058> against that
person’s will by means of force, violence, or fear of immediate
and unlawful bodily injury to that person [or someone else];
AND
3. The defendant did so for the purpose of committing
<insert felony alleged>.
A person administers a substance if he or she applies it directly to the
body of another person by injection, or by any other means, or causes
the other person to inhale, ingest, or otherwise consume the substance.
<If there is an issue in the case as to whether the defendant acted “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.
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].)
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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, In
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] [weapon used before
elements of felony committed]; People v. Taylor (1995) 32 Cal.App.4th 578, 582
[38 Cal.Rptr.2d 127].)
AUTHORITY
• One-Strike Sex Offense Statute—Administered Controlled Substance. Pen.
Code, § 667.61(e)(6).
• 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].
• Elements of Enhancement. Pen. Code, § 12022.75.
• Administering. Health & Saf. Code, § 11002.
• “In Commission of” Felony. People v. Jones (2001) 25 Cal.4th 98, 109–110
[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].
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, §§ 91.42, 91.102[2][a][ii] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure § 13:9 (The Rutter
Group).
CALCRIM No. 3183 ENHANCEMENTS AND SENTENCING FACTORS
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0098