People v. Hunter

California Supreme Court

People v. Hunter

482 P.2d 658, 4 Cal. 3d 432, 93 Cal. Rptr. 746, 1971 Cal. LEXIS 328

California Supreme Court·Decided March 24, 1971·No. Crim. 14160·Published·Cited by 14 cases

Opinions

Opinion

THE COURT.

Robert Hunter was found guilty by a jury on one count of kidnaping for the purpose of robbery (Pen. Code, § 209) and three counts of robbery (Pen. Code, § 211). In 1964 in an unpublished opinion by the Court of Appeal the judgment was affirmed; the sentence imposed on one of the robbery counts was set aside as double punishment under Penal Code section 654, but the conviction on that count was upheld. Later in 1964 this court denied a petition for hearing. In 1969 Hunter’s attorney filed an application with the Court of Appeal for recall of the remittitur or habeas corpus, contending in part that the appeal 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 he petitioned this court for a hearing. We denied further review of the petition for habeas corpus, but granted the petition for hearing with respect to the application to recall the remittitur and transferred the matter to this court.

In the course of robbing three persons in a private residence, Hunter and his companions caused them to move through 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.)

For the reasons stated in People v. Mutch, ante, p. 389 [93 Cal.Rptr. 721, 482 P.2d 633], Hunter 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 count.

[434] The cause is retransferred to the Court of Appeal for the Second Appellate District with directions to recall its remittitur in People v. Hunter & Hubbard, Crim. 8857, and to issue a new remittitur vacating the judgment as to defendant Hunter on count IV and affirming the judgment on counts I, II, and III.

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Opinion

THE COURT.

Robert Hunter was found guilty by a jury on one count of kidnaping for the purpose of robbery (Pen. Code, § 209) and three counts of robbery (Pen. Code, § 211). In 1964 in an unpublished opinion by the Court of Appeal the judgment was affirmed; the sentence imposed on one of the robbery counts was set aside as double punishment under Penal Code section 654, but the conviction on that count was upheld. Later in 1964 this court denied a petition for hearing. In 1969 Hunter’s attorney filed an application with the Court of Appeal for recall of the remittitur or habeas corpus, contending in part that the appeal 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 he petitioned this court for a hearing. We denied further review of the petition for habeas corpus, but granted the petition for hearing with respect to the application to recall the remittitur and transferred the matter to this court.

In the course of robbing three persons in a private residence, Hunter and his companions caused them to move through 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.)

For the reasons stated in People v. Mutch, ante, p. 389 [93 Cal.Rptr. 721, 482 P.2d 633], Hunter 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 count.

[434] The cause is retransferred to the Court of Appeal for the Second Appellate District with directions to recall its remittitur in People v. Hunter & Hubbard, Crim. 8857, and to issue a new remittitur vacating the judgment as to defendant Hunter on count IV and affirming the judgment on counts I, II, and III.

People v. Hunter, 482 P.2d 658, 4 Cal. 3d 432, 93 Cal. Rptr. 746, 1971 Cal. LEXIS 328 (Cal. 1971).

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