People v. Curtis

Opinion

LILLIE, Acting P. J.

In 1963 a jury found Curtis and West guilty on count I of kidnaping one Charles and Mrs. Carter for the purpose of robbery (§ 209, Pen. Code) and on count II, of first degree robbery (§ 211, Pen. Code); it further found that there was no bodily harm as a result of

[706]

the kidnaping, and both defendants were armed at the time of the commission of the offenses. Curtis admitted to be true the allegation that he had suffered a prior felony conviction (§ 11530, Health & Saf. Code). Defendants appealed from the judgment of conviction but subsequently abandoned the appeal, and the same was dismissed at their request. On defendants’ application to recall remittitur the California Supreme Court on May 28, 1971, transferred the cause to this court to recall remittitur, vacate order dismissing the appeal, appoint counsel and determine the appeal in light of

People

v.

Daniels,

71 Cal.2d 1119 [80 Cal.Rptr. 897, 459 P.2d 225],

People

v.

Mutch,

4 Cal.3d 389 [93 Cal.Rptr. 721, 482 P.2d 633], and

People

v.

Timmons, 4

Cal.3d 411 [93 Cal.Rptr. 736, 482 P.2d 648]. Such order was issued by this court on June 18, 1971.

On November 14, 1962, between 9 and 10 p.m. Charles was driving with Mrs. Carter on Arlington; as he approached the intersection with Adams he stopped for a red traffic light whereupon Curtis walked up to the driver’s side and West to the passenger’s side; through the open window on the driver’s side Curtis asked Charles “where is Adams”; Charles replied, “Fellow, that’s Adams here”; Curtis then said, “Shut your damn mouth,” and pointed a black automatic pistol, either a .32 or .25, at the bridge of his nose between his eyes; West got into the rear, and Curtis told Charles to get over, pushed him over to Mrs. Carter, got into the driver’s seat and drove Charles’ car about five blocks to a deserted “dark place” where the freeway was under construction; there were no houses, buildings, or other persons in the area. Curtis stopped the car, then instructed West to search Mrs. Carter; West did so, running his hands over her, through and under her clothing. Meanwhile all of Charles’ clothes were “pulled off” and he was “stripped buck naked”; his clothing and billfold were searched, all of his cards and papers were thrown on the floor of the car and a $20-bill was' taken from him. Defendants warned, “Don’t look back or you’ll get your damn brains blown out,” and ran away across the back of the car. Charles drove off naked to 23d Street where he found a police car. At all times Curtis pointed the automatic at Charles even while he drove the car and during the time defendants searched him and Mrs. Carter.