Mr. Kelly accosted a pedestrian and twice forced her to perform oral sex. Then Kelly forced his victim into the backseat of his car and drove to a liquor store more than three miles away. When Kelly went into the store, his victim was able to exit the car and run to safety.
The state charged Kelly under the One-Strike law, PC 667.61. In pertinent part, 667.61 prescribes a 25-life sentence for some sex offenses, when those offenses are committed under particular circumstances. Here the "special circumstance" alleged was 667.61(d), that the forced oral copulation was committed under the circumstance where "defendant kidnapped the victim" and the movement substantially raised the risk of harm to the victim. A jury convicted Kelly of forced oral copulation and found true the kidnapping special circumstance. He was effectively sentenced to 33 years to life.
Kelly appealed and the Fifth District affirms.
Kelly argues the special circumstance is inapplicable because he kidnapped the victim after completing his sex crimes, not before or during. This doesn't get much traction from the panel because nothing in the language places any temporal requirement on the kidnapping other than the sex offense be committed "under the circumstances" of kidnapping the victim. Even if "under the circumstances" could be interpreted as "during the commission of", the panel would affirm, noting the continuing nature of Kelly's crime (he was certainly intending to use his victim for more than a drinking partner when he forced her into his car).
The panel also finds that the trial court erred in not suspending a portion of the sentence, however the effective 33 to life sentence is unaltered.
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