The values involved when a court has corrected a judicial misreading of a penal statute and it is sought to apply the new interpretation retroactively, are too subtle to be resolved by blanket adoption of a Blackstonian or Austinian point of view; further where the new rule consists of a basic redefinition of criminal conduct, I believe that these values are not quite the same as those mentioned in Justice Burke’s dissenting opinion. (See Currier, Time and Change in Judge-Made Law: Prospective Overruling (1965) 51 Va.L.Rev. 201, 234-252, 260-261.)
Without belaboring my reasons, I join in the majority opinion on my reading that it applies only to cases where the defendant was found guilty after a trial and where, on no interpretation of the evidence, did he violate section 209 of the Penal Code. I would have considerably more difficulty if the record contained substantial, though conflicting, evidence of kidnaping as redefined in Daniels. In such a case the People would, at least, be *400entitled to a retrial. Yet, inevitably, the passage of time would make many such retrials impossible and the case for a retroactive application of Daniels would certainly not be as clear. It could then be convincingly argued that a defendant who may have violated section 209 even under the Daniels standard and certainly did violate it under the Wein rule, is not entitled to the same consideration as one who, like defendant, could not be convicted of kidnaping today.
Assigned by the Acting Chairman of the Judicial Council.