Aggravated kidnapping circumstance (Pen. Code, § 667.61, subd. (d)(2)) was proper despite fact kidnapping occurred after, not before or during, oral copulation. Kelly forced a woman to orally copulate him then put her in his car and drove to a liquor store where she was able to escape. He was convicted of a number of offenses, including forcible oral copulation, and the jury found true an aggravated kidnapping circumstance. Based on the aggravated kidnapping circumstance, Kelly was sentenced to a term of 25 years to life under the One Strike law. He appealed, arguing there was insufficient evidence to prove the aggravated kidnapping circumstance because it only applies when a qualifying sex offense occurs in or during the commission of a kidnapping and here the kidnapping occurred after the sexual offense had concluded. Held: Affirmed. Other circumstances within the One Strike law explicitly provide that the qualifying sex offense must occur during the commission of the circumstance. (See, e.g., Pen. Code, §§ 667.61, subd. (d)(3) [“committed the present offense during the commission of a burglary”], subd. (d)(4) [“used a dangerous or deadly weapon . . . in the commission of the present offense . . . .”].) The absence of the phrase, “in the commission of” from the aggravated kidnapping circumstance in section 667.61, subdivision (d)(2) must be interpreted as intentional. But even if the Legislature had intended that the circumstance apply only to sexual offenses that occur during the commission of kidnapping, the circumstance would still apply because a felony sex offense is a continuing offense, which was not completed here until the victim escaped.

Under section 654, trial court improperly punished defendant for both simple kidnapping and the aggravating kidnapping circumstance. In addition to forcible oral copulation with the aggravated kidnapping circumstance (Pen. Code, § 667.61, subd. (d)(2)), the jury also convicted Kelly of simple kidnapping (Pen. Code, § 207) based on the same act of putting the victim in his car and driving to the liquor store. On appeal, Kelly argued that the trial court improperly punished him for both the aggravated kidnapping circumstance and the simple kidnapping because section 654 prohibits multiple punishments for the same act or omission. The Court of Appeal agreed. Although People v. Byrd (2011) 194 Cal.App.4th 88, 91, held that section 654 did not bar multiple punishments based on similar facts, the Court of Appeal here disagreed with its reasoning and ordered Kelly’s punishment for simple kidnapping stayed pursuant to section 654.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/F069270.PDF