
    [Crim. No. 14286.
    In Bank.
    Mar. 24, 1971.]
    THE PEOPLE, Plaintiff and Respondent, v. DONALD SMITH, Defendant and Appellant.
    
      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.
   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 The judgment was affirmed by the Court of Appeal in an unpublished opinion in March 1969, and we denied a petition for hearing in May 1969.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.)

For the reasons stated in People v. Mutch, ante, p. 389 [93 Cal.Rptr. 721, 482 P.2d 633], Smith was therefore convicted of kidnaping to commit robbery under a statute which did not prohibit his acts at the time he committed them, and is entitled to a recall of the remittitur in his appeal and an order vacating the judgment on the kidnaping count.

The cause is retransferred to the Court of Appeal for the Second Appellate District with directions to recall its remittitur in People v. Smith, Crim. 14508, and to issue a new remittitur vacating the judgment on count VII and affirming the judgment on counts V and VI.

Tobriner, Acting C. J., Peters, J., and Kaus, J., concurred.

SULLIVAN, J.

For the reasons set forth in my concurring and dissenting opinion in People v. Mutch, ante, p. 389 [93 Cal.Rptr. 721, 482 P.2d 633], I concur in the majority’s disposition of this case.

BURKE, J.

I dissent for the reasons set forth in my dissent in People v. Mutch, ante, p. 389 [93 Cal.Rptr. 721, 482 P.2d 633], In my opinion the application for recall of remittitur should be denied.

McComb, J., concurred.

Respondent’s petition for a rehearing was denied April 22, 1971. Wright, C. J., did not participate therein. Kaus, J., participated therein. Burke, J., was of the opinion that the petition should be granted. 
      
       Assigned by the Acting Chairman of the Judicial Council.
     
      
       Assigned by the Acting Chairman of the Judicial Council.
     