
    [Crim. No. 14235.
    In Bank.
    Mar. 24, 1971.]
    THE PEOPLE, Plaintiff and Respondent, v. EDUARDO ADAME, 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, and Philip C. Griffin, Deputy Attorney General, for Plaintiff and Respondent.
   Opinion

MOSK, J.

Eduardo Adame and William Lee (who is not a party to the instant matter) were found guilty by a jury on two counts of kidnaping for the purpose of robbery (Pen. Code, § 209) and two counts of first degree robbery (Pen. Code, § 211). The judgment was affirmed in an unpublished opinion in 1967, and we denied a petition for hearing in 1968. In November 1969 Adame 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 People v. Daniels (1969) 71 Cal.2d 1119 [80 Cal.Rptr. 897, 459 P.2d 225]. The Court of Appeal denied the application “without prejudice to appellant’s right to seek appropriate extraordinary relief.” We granted a petition for hearing and transferred the application to this court.

In the course of robbing a supermarket, Adame and his companion caused two employees to move from the checkstand and the manager’s office to the safe. 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], Adame 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 counts.

The cause is retransferred to the Court of Appeal for the Fourth Appellate District with directions to recall its remittitur in People v. Lee & Adame, Crim. 2792, and to issue a new remittitur vacating the judgment as to defendant Adame on counts I and II and affirming the judgment on counts III and IV.

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 the 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.
     