THE PEOPLE, Plaintiff and Respondent, v. RONALD RAY UNGRAD, Defendant and Apрellant.
Crim. No. 14236
In Bank. Supreme Court of California
Mar. 24, 1971.
Respondent‘s petition for а rehearing was denied April 22, 1971.
420, 421, 422
Ronald Ray Ungrаd, in pro. per., Peter J. Tamases, under appointment by the Supreme Court, and Tаmases & Ress for Defendant and Appellant.
Thomas C. Lynch, Attorney General, and Ronald M. George, Deputy Attorney Genеral, for Plaintiff and Respondent.
OPINION
MOSK, J.—Ronald Ray Ungrad and Joseph Melcon (who is not a party to the instant matter) were found guilty by а jury on three counts of kidnaping for the purpose of robbery (
In the course of robbing a man and his wife and daughter in their home, Ungrad and his cоmpanion caused them to move tо 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 inherеnt 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], 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 cаuse is retransferred to the Court of Apрeal for the Second Appellаte District with directions to recall its remittitur in People v. Melcon & Ungrad, Crim. 12261, аnd to issue a new remittitur vacating the judgment as to defendant Ungrad on counts IV, V and VI, and аffirming the judgment on counts I, II and III.
Tobriner, Acting C. J., Peters, J., and Kaus, J.,* concurred.
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.