PEOPLE v. UNGRAD (1971)

Ronald Ray Ungrad and Joseph Melcon (who is not a party to the instant matter) were found guilty by a jury on three counts of kidnaping for the purpose of robbery (Pen.Code, s 209) and three counts of robbery (Pen.Code, s 211). The judgments were affirmed by the Court of Appeal in an unpublished opinion in 1967, and we denied a petition for hearing in 1968. In 1969 Ungrad 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, and we granted a petition for hearing and transferred the application to this court.

In the course of robbing a man and his wife and daughter in their home, Ungrad and his companion caused them to move to various rooms in search of valuables. 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, 80 Cal.Rptr. 897, 459 P.2d 225.)

For the reasons stated in People v. Mutch, Cal., 93 Cal.Rptr. 721, 482 P.2d 633, Ungrad 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 Second Appellate District with directions to recall its remittitur in People v. Melcon and Ungrad, Crim. 12261, and to issue a new remittitur vacating the judgment as to defendant Ungrad on counts IV, V and VI, and affirming the judgment on counts I, II and III.

For the reasons set forth in my concurring the dissenting opinion in People v. Mutch, 93 Cal.Rptr. pages 728, 729, 482 P.2d pages 640, 641, I concur in the majority's disposition of this case.

I dissent for the reasons set forth in my dissent in People v. Mutch, 93 Cal.Rptr. 729—736, 482 P.2d 641—648. In my opinion the application for recall of the remittitur should be denied.

MOSK, Justice.

TOBRINER, Acting C.J., and PETERS, and KAUS*, JJ., concur.