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District Court of Appeal, Second District, Division 1, California.


Cr. 2634.

Decided: August 31, 1935

Geo. E. Cloud, of Los Angeles, for appellant. U. S. Webb, Atty. Gen., and Frank Richards, Deputy Atty. Gen., for the People.

Defendant Britton having pleaded guilty to a charge theretofore preferred against him of “kidnaping for the purpose of robbery in violation of section 209 of the Penal Code, as amended by St. 1933, p. 2617, a felony,” in due course it was adjudged by the trial court that, in accordance with the provisions of said section 209 of the Penal Code, as amended by St. 1933, p. 2617, said defendant be punished by imprisonment in the state prison for the term prescribed by law “without possibility of parole.” From such judgment defendant has appealed to this court.

In substance, the point presented by appellant on this appeal is that the evidence upon which the trial court acted was insufficient to authorize it to order that defendant be imprisoned “without possibility of parole.” In that regard, the authority of the trial court to pronounce such a sentence or judgment depends upon the provisions contained in section 209 of the Penal Code, as amended by St. 1933, p. 2617, to the effect that where, in the course of the commission of the crime the victim thereof suffers “bodily harm,” the perpetrator of the crime “shall suffer death or shall be punished by imprisonment in the State prison for life without possibility of parole,” etc. Appellant urges that the “bodily harm” to which the victim in the instant case was subjected was not of that severity which is contemplated by the language of the statute. However, since the briefs herein were filed, in the case of People v. Tanner (Cal. Sup.) 44 P.(2d) 324, it has been ruled that the provisions of the statute are and were applicable even in a situation where the “bodily harm” inflicted, especially upon the lesser of the victims of a “kidnaping for the purpose of robbery,” was comparatively much less than that shown to have been suffered by the victim in the instant case. It follows that the appellant's point cannot be sustained.

Judgment affirmed.

HOUSER, Justice.

We concur: CONREY, P. J.; EDMONDS, Justice pro tem.

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