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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Richard RANDAZZO, Defendant and Appellant.

Cr. 5264.

Decided: July 11, 1956

Morris Lavine, Los Angeles, for appellant. Edmund G. Brown, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

It appearing from the record that the opinion of this court, filed March 29, 1955, affirming a conviction of ‘life imprisonment without possibility of parole’ for the crime of kidnapping ‘with intent and for the purpose of committing robbery’, under Section 209 of the Penal Code, was erroneously predicated upon said statute as it existed prior to 1951, prior to defendant's alleged criminal acts, in which year it was amended, whereas said statute, as amended in 1951, does not make it an offense separate from robbery, to hold or detain a person for the purpose of committing robbery, good cause appearing, it is ordered that appellant's motion to recall the remittitur as to Count II is granted and it is ordered that the judgment heretofore entered (on March 29, 1955) as to said Count II is vacated and set aside and the remittitur issued thereon (April 29, 1955) is recalled.

The appeal as to said Count II is ordered on calendar August 28, 1956 at 10 a. m., for consideration of an amended Petition for Rehearing as to the affirmance of the judgment rendered on said Count II.

Judgment reversed as to Count II Oct. 16, 1956. See 302 P.2d 39.

DORAN, Justice.

WHITE, P. J., and FOURT, J., concur.

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