Howard, In re, Cr. 6264
| Decision Date | 17 November 1971 |
| Docket Number | Cr. 6264,6354 |
| Citation | 98 Cal.Rptr. 531,21 Cal.App.3d 318 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re Isreal Nell HOWARD On Habeas Corpus. In re Mike MASTON On Habeas Corpus. |
Michael A. Manley, Sacramento (Court-appointed) for petitioners.
Evelle J. Younger, Atty. Gen., by Jack R. Winkler, James D. Garbolino and Marjory Parker, Deputy Attys. Gen., Sacramento, for respondent.
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), 1 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.2d 389, 395--396, 482 P.2d 633, 93 Cal.Rptr. 721.
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 Comption, 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 record, that the evidence is susceptible of no conclusion other than that the asportation of the victim was merely incidental to the robbery And did not substantially increase the risk of harm to the victim beyond that normally inherent in the crime of robbery.
The record from which the facts of the present case must necessarily be gleaned is the transcript of testimony presented to the grand jury. The victim, a 46-year-old woman, testified at the hearing.
The transcript discloses that at approximately 2:15 a.m., on November 4, 1960, the victim was driving north to Santa Barbara along Highway 101 in Santa Barbara County. She was alone in her automobile. Petitioners and their codefendant, Millard Dedmon, forced her vehicle off the highway, opened the door of her car, took her purse which contained approximately $150, and began rummaging through her car. The victim struggled to close the car door but one of the men frustrated her attempt by yanking the door open and taking the car keys. The men then dragged the struggling victim from the auto. Once outside the car, her resistance was ended by a blow to the head with a shotgun. She was then forced into her assailants' car.
Howard and Dedmon got into the vehicle with her, Howard in the driver's seat, Dedmon in the back seat with the victim. Howard started the car and drove off down the highway toward Los Angeles. Maston followed in the victim's car. After an unsuccessful attempt to disarm Dedmon by wrestling the shotgun from his grasp, the victim was forcibly raped by Dedmon.
A short time later the auto in which the victim was being held ran out of gas and its three occupants transferred to the victim's car. During this maneuver, she managed to break free of her captors and tried unsuccessfully to escape, attempting to flag down a passing truck. Caught once again by her assailants, she was thrown back into the rear seat of her own car where Dedmon attempted to rape her again.
About an hour later the car was stopped in a remote area of Los Angeles County, approximately 70 miles from the place in Santa Barbara County where the initial abduction had occurred. The victim was told to get out of the car. She was bound hand and foot and gagged by Howard. Howard then reached down into the front of her clothing to see if she had more money or valuables on her person. She fell to the ground and soon heard her assailants leave the scene in her automobile.
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Earley, In re
...(See People v. Timmons, 4 Cal.3d 411, 416, 93 Cal.Rptr. 736, 482 P.2d 648, (conc. & dis. opn. by Sullivan, J.); In re Howard, 21 Cal.App.3d 318, 321, 98 Cal.Rptr. 531; In re Madrid, 19 Cal.App.3d 996, 1003, 97 Cal.Rptr. After Daniels Earley filed several motions to recall the remittitur on ......
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Dennis, In re
...movement of the victim, other than that which facilitated commission of the robbery. Although there is language in In re Howard, 21 Cal.App.3d 318, 321, 98 Cal.Rptr. 531 to the effect that where the record is susceptible of conflicting inferences relief by habeas corpus is not available (th......
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Maston, In re
...of parole. The circumstances of the crime are described in an earlier denial of habeas corpus, sub. nom., in re Howard (1971), 21 Cal.App.3d 318, 98 Cal.Rptr. 531. Petitioners now seek habeas corpus, contending first, that life imprisonment without possibility of parole is a cruel or unusua......
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Alvarado, In re
...fundamental sense) was exceeded, as in People v. Mutch, 4 Cal.3d 389, 396, 93 Cal.Rptr. 721, 482 P.2d 633. The case of In re Howard, 21 Cal.App.3d 318, 98 Cal.Rptr. 531, cited by respondent, in which habeas corpus relief was denied, is readily distinguishable. There, the petitioners forced ......