*1 Bank. Mar. 1971.] 14283. In No. [Crim. PEOPLE, Respondent, Plaintiff

THE COLEMAN, Defendant

ELZIA

437 Counsel Coleman,

Elzia Dahlstrum, in and Jack A. under pro. per., by appointment Court, the Supreme Dahlstrum, Irwin R. Miller and Walton & Butts for Defendant and

Thomas C. Lynch, General, James, Attorney E. William Assistant Attorney General, and Thomas Kallay, General, Deputy for Plaintiff and Attorney Respondent.

Opinion THE COURT. Elzia Colemanwas found of for the kidnaping guilty (Pen. Code, (Pen. of 209) and first purpose robbery. degree robbery § 211). Code, an of § 1964 in the Court unpublished opinion Appeal, after and incident to one concluding robbery kidnaping objective, reversed the “insofar as it a for rob- sentence judgment imposes and bery” affirmed it in all a other We denied for respects. hearing. petition In November 1969 Coleman filed an with the Court of application Appeal remittitur, for recall of the that his the sole contention case presenting should be reconsidered in the People (1969) of v. Daniels 71 Cal.2d light denied, 225], 1119 459 P.2d The application we a to granted and transferred the this hearing application court. home, the course of a retired dentist in his Coleman caused robbing

him to move various rooms in search of through These movements money. were merely incidental to the and did not robbery increase substantially the risk of harm (People that in beyond inherent the itself. v. robbery Daniels (1969) supra, 1119, 1139.) Cal.2d 71 Mutch,

For the People reasons stated v. in 389 [93 Cal.Rptr. 633], Coleman was therefore convicted of kidnaping to commit robbery under a did statute which not at his acts the prohibit them, time he committed entitled and is to a recall of in the remittitur his and an order appeal the on the vacating count. judgment kidnaping The cause is retransferred to the Court of for the Second Appeal Appel- Coleman, late District with People directions to recall its in remittitur v. 9245, and to Crim. issue a new remittitur the on I judgment count vacating on II. affirming judgment count SULLIVAN, J. For thereasons set forth in my concurring dissenting 633], People case.

I in the this concur majority’s disposition set dissent in BURKE, J. I dissentfor the reasons forth in my *3 my opinion 633]. V. should be for recall of the remittitur denied. the application J., McComb, concurred.

ROTH, I dissent the reasons set forth in dissent my J.* Hunter, my opinion 658]. V. for recall of the remittitur should be denied. the application for a denied 1971. Wright, rehearing April Respondent’s petition Kaus, J.,* Roth, J., J.,* J., Mosk, did not therein. C. participate Roth, J.,* Burke, J., of the therein. participated should be granted. *Assigned by Acting the Judicial Council. Chairman