In Re Howard

Each of the petitioners in these proceedings which we have consolidated for decision challenges his February 1961 conviction of kidnaping for the purpose of robbery, the victim suffering bodily harm (Pen. Code, § 209 ), on the ground that his conduct was not within that proscribed by section 209 (People v. Daniels (1969) 71 Cal.2d 1119, 1139 [ 80 Cal.Rptr. 897 , 459 P.2d 225 ]), and that he is entitled to relief under People v. Mutch (1971) 4 Cal.3d 389, 395-396 [ 93 Cal.Rptr. 721 , 482 P.2d 633 ].

The conviction of each petitioner was based upon a bargained-for plea of guilty to one count of a five-count indictment filed against him. The remaining four counts, consisting of one count each of kidnaping (§ 207), first degree robbery (§211), forcible rape (§261) and grand theft auto (§ 487, subd. 3), were dismissed in the interests of justice, as to each petitioner.

This court recently held in the consolidated cases of In re Madrid, In re Compton, and In re Thomas (1971) 19 Cal.App.3d 996 [ 97 Cal.Rptr. 354 ], that relief under Daniels-Mutch is available to one convicted under section 209 upon a bargained-for plea of guilty if it may be said, on the basis of the available…