People v. Smith

4 Cal.3d 426 (1971) 482 P.2d 655 93 Cal. Rptr. 743 THE PEOPLE, Plaintiff and Respondent,

v.

DONALD SMITH, Defendant and Appellant.

Docket No. Crim. 14286. Supreme Court of California. In Bank.

March 24, 1971. [427] COUNSEL

Peter J. Tamases, under appointment by the Supreme Court, and Tamases & Ress for Defendant and Appellant.

Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and James H. Kline, Deputy Attorney General, for Plaintiff and Respondent.

MEMORANDUM CASE

OPINION

MOSK, J.

Donald Smith was found guilty on two counts of first degree robbery (Pen. Code, § 211) and one count of kidnaping for the purpose of robbery (Pen. Code, § 209). The judgment was affirmed by the Court of Appeal in an unpublished opinion in March 1969, and we denied a petition for hearing in May 1969. In October 1969 our decision in People v. Daniels, 71 Cal.2d 1119 [80 Cal. Rptr. 897, 459 P.2d 225], was filed. Thereafter Smith filed an application with the Court of Appeal for recall of the remittitur, presenting the sole contention that his case should be reconsidered in the light of Daniels. The Court of Appeal denied the application, and we granted a petition for hearing and transferred the application to this court.

In the course of robbing a hotel, Smith and his companions caused the night clerk to move about the office and up to a second-floor room, and a bellboy to move across that room. These movements were merely incidental to the robberies and did not substantially increase the risk of harm beyond that inherent in the robberies themselves. (People v. Daniels (1969) supra, 71 Cal.2d 1119, 1139.)