In Re Howard

California Court of Appeal Nov 17, 1971 No. Docket Nos. 6264, 6354Published

Before: Janes

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Holding. The court denied petitions for writs of habeas corpus, holding that petitioners were not entitled to relief under the Daniels-Mutch rule because the record did not establish as a matter of law that the asportation was merely incidental to the robbery.

Issues

Whether petitioners' conduct fell outside the scope of Penal Code section 209 as defined in People v. Daniels and People v. Mutch.
Whether the asportation of the victim was merely incidental to the robbery and did not substantially increase the risk of harm.
Whether the court may re-evaluate the intent accompanying the asportation on collateral attack.

Disposition. denied

Quotations verified verbatim against the opinion

“Since the record is susceptible of conflicting inferences in this regard, relief is not available.”

“Nothing in Daniels or the subsequent cases applying its newly enunciated rule permits a re-evaluation, on collateral attack, of the intent which accompanied such asportation.”

Opinion

JANES, J.

Each of the petitioners in these proceedings which we have consolidated for decision challenges his February 1961 conviction of kidnaping for the purpose of robbery, the victim suffering bodily harm (Pen. Code, § 209 ),

on the ground that his conduct was not within that proscribed by section 209

(People

Daniels

(1969) 71 Cal.2d 1119, 1139 [80 Cal.Rptr. 897, 459 P.2d 225]), and that he is entitled to relief

[320]

under

People

Mutch

(1971) 4 Cal.3d 389, 395-396 [93 Cal.Rptr. 721, 482 P.2d 633].

The conviction of each petitioner was based upon a bargained-for plea of guilty to one count of a five-count indictment filed against him. The remaining four counts, consisting of one count each of kidnaping (§ 207), first degree robbery (§211), forcible rape (§261) and grand theft auto (§ 487, subd. 3), were dismissed in the interests of justice, as to each petitioner.

This court recently held in the consolidated cases of

In re Madrid, In re Compton,

and

In re Thomas

(1971) 19 Cal.App.3d 996 [97 Cal.Rptr. 354], that relief under

Daniels-Mutch

is available to one convicted under section 209 upon a bargained-for plea of guilty if it may be said, on the basis of the available record, that the evidence is susceptible of no conclusion other than that the asportation of the victim was merely incidental to the robbery

In Re Howard

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JANES, J.

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