In Re Pratt

McCOMB, J.

Petition for a writ of habeas corpus.

Facts:

February 9, 1961, the District Attorney of Los Angeles County filed an information charging petitioner and a codefendant with one count of robbery (Pen. Code, § 211) and one count of kidnaping for the purpose of robbery (Pen. Code, § 209).

May 4, 1961, a trial jury found petitioner and his codefendant guilty as charged in both counts, designating the robbery as robbery of the first degree, and found that the allegation that petitioner was armed at the time of the commission of the offense was true.

[156]

May 31, 1961, petitioner was placed on probation for five years on the condition he spend the first 280 days in the county jail.

November 4, 1963, petitioner was found to be in violation of probation. His probation was revoked, and he was sentenced to state prison, with the sentences on both counts ordered to run concurrently.

The incident upon which petitioner’s convictions are based occurred at a service station of the United Oil Company located at 1340 East Imperial Highway, Los Angeles, on Janary 7, 1961.

About 3:30 a.m. on that date, petitioner and his codefendant confronted the attendant on duty at the service station. Petitioner, who was armed with a pistol, grabbed the attendant’s jacket, placed the gun against his back, and ordered the attendant to accompany him. He then took the attendant from the area of the station where the service islands were located to the men’s room 50 to 70 feet distant, where he remained with him.

Later, petitioner’s codefendant came in and took the attendant’s coin changer from him. Petitioner then emptied the attendant’s pockets and ordered him to lie down on the floor. Petitioner and his codefendant took about $175 from the attendant. Afterwards, they left him hying on the floor in the men’s room.' The entire incident took six or seven minutes.

Question:

Was petitioner punishable for both robbery and kidnaping for the purpose of robbery?

No.