Petitioner urges that rather than simply reversing the conviction for inadequate advice with respect to counsel and the consequences of the plea, we should order the charge dismissed on the ground that his conduct does not, as a matter of law, amount to a violation of Penal Code section 647, subdivision (a). In this regard petitioner relies on the recent cases of In reCrumpton (1973) 9 Cal.3d 463, 467-468 [ 106 Cal.Rptr. 770, 507 P.2d 74] and In re Madrid (1971) 19 Cal.App.3d 996 [ 97 Cal.Rptr. 354] which permitted defendants who pled guilty to Penal Code section 209 to attack their convictions on the ground that their undisputed conduct did not, as a matter of law, violate section 209 as construed in People v. Daniels (1969) 71 Cal.2d 1119 [ 80 Cal.Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677]. Both Crumpton and Madrid, however, were felony cases in which the facts of the crimes had been rather fully explored at preliminary hearings; although defendants' guilty pleas had obviated a complete exposition of the facts at trial, the courts in both Crumpton and Madrid emphasized that at the preliminary hearing "`[t]he victim . . . testified to the essential facts of the crime.
In People v. Mutch (1971) supra, 4 Cal.3d 389, 396, we held that a defendant is entitled to habeas corpus relief under Daniels if there is no material dispute as to the facts relating to his conviction and if it appears that the statute under which he was convicted did not prohibit his conduct. In Inre Madrid (1971) 19 Cal.App.3d 996 [ 97 Cal.Rptr. 354], the Court of Appeal held that habeas corpus relief authorized by Mutch is available to a defendant whose conviction was based on a guilty plea. The Attorney General contends that despite Madrid, the guilty plea in this case precludes the granting of relief. He first asserts that because no trial was held and the entire evidence is contained in the transcript of the preliminary hearing, the facts are not "undisputed" as required by Mutch.
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. (1) 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 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.
It is only where it appears as a matter of law that the defendant's conduct did not violate the statute under which he was convicted that the defendant is entitled to collateral relief under Zerbe. (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. 354].)
2. Law In In re Madrid (1971) 19 Cal.App.3d 996 (Madrid), three habeas corpus petitioners challenged their convictions of kidnapping for robbery under section 209. (Id. at p. 998.)
[Citations.]" ( In re Madrid (1971) 19 Cal.App.3d 996, 1001 [ 97 Cal.Rptr. 354].)(9) In short, "a defendant is entitled to habeas corpus if there is no material dispute as to the facts relating to his conviction and if it appears that the statute under which he was convicted did not prohibit his conduct.
Accordingly, for purposes of the statute of limitations, the section 261.5 offense first alleged in the third amended information cannot be deemed to relate back to the date of the original information. (Compare, People v. Daniels (1969) 71 Cal.2d 1119, 1143 [ 80 Cal.Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677]; In re McCartney (1966) 64 Cal.2d 830 [ 51 Cal.Rptr. 894, 415 P.2d 782]; In re Madrid (1971) 19 Cal.App.3d 996, 1005-1006 [ 97 Cal.Rptr. 354].) Section 261 provides: "Rape is an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either [ sic] of the following circumstances:
(2) The fact that a petitioner for habeas corpus has pleaded guilty does not bar him from relief by habeas corpus. ( In re Crumpton, 9 Cal.3d 463 [ 106 Cal.Rptr. 770, 507 P.2d 74]; In re Madrid, 19 Cal.App.3d 996, 1002 [ 97 Cal.Rptr. 354].) The circumstances may be such that it would be unconscionable "to hold a defendant bound by a plea made under such significant and excusable misapprehension of the law."
(1a) On appeal the People contend that habeas corpus relief with respect to convictions for acts which are recognized as non-crimes by Daniels should not be granted where the convictions result from plea bargains. It is recognized that In re Madrid, 19 Cal.App.3d 996, 1003-1004 [ 97 Cal.Rptr. 354], is to the contrary. We are urged to disagree with Madrid, the rule of which is said to be under consideration by the Supreme Court at this time.
After Daniels, at least 30 reported appellate decisions have dealt with Daniels-based challenges to charges of kidnaping. Of these, 11 were reversals of convictions based on movements within buildings; these cases merely apply the Daniels rule to Daniels facts. Of the remaining 19, several are of doubtful value as arguably having been superseded by the Timmons decision which postdated them.In re Madrid (1971) 19 Cal.App.3d 996 [ 97 Cal.Rptr. 354]; People v. Fain (1971) 18 Cal.App.3d 137 [ 95 Cal.Rptr. 562]; People v. Moore (1970) 13 Cal.App.3d 424 [ 91 Cal.Rptr. 538]; People v. Dacy (1970) 5 Cal.App.3d 216 [ 85 Cal.Rptr. 57]; People v. Moore (1970) 4 Cal.App.3d 668 [ 84 Cal.Rptr. 771]; People v. Green (1969) 3 Cal.App.3d 240 [ 83 Cal.Rptr. 491]; People v. Cheffen (1969) 2 Cal.App.3d 638 [ 82 Cal.Rptr. 658]; People v. Blair (1969) 2 Cal.App.3d 249 [ 82 Cal.Rptr. 673]; People v. Ballard (1969) 1 Cal.App.3d 602 [ 81 Cal.Rptr. 742]; People v. Ross (1969) 276 Cal.App.2d 729 [ 81 Cal.Rptr. 296].People v. Beaumaster (1971) 17 Cal.App.3d 996 [ 95 Cal.Rptr. 360] (movement not necessary, held not "incidental"); People v. Stathos (1971) 17 Cal.App.3d 33 [ 94 Cal.Rptr. 482] (Supreme Court's use of "merely" to modify "incidental" held to preclude application of test where movement important or necessary); People v. Ellis (1971) 15 Cal.App.3d 66 [ 92 Cal.Rptr. 907] ("incidental" defined as playing no substantial part in