I agree with the majority that a defendant whose conviction of a violation of Penal Code section 209 became final before our decision in People v. Daniels (1969) 71 Cal.2d 1119 [80 Cal.Rptr. 897, 459 P.2d 225] is entitled to post-conviction relief “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.” (Italics added.) (In re Zerbe (1964) 60 Cal.2d. 666, 668 [36 Cal.Rptr. 286, 388 P.2d 182, 10 A.L.R.3d 840].) Accordingly, applying the criterion of Daniels to' the undisputed facts of the instant case, I am satisfied we can say that, as a matter of law, this defendant’s conduct did not constitute a kidnaping. This is particularly so because defendant merely moved his victims around inside the same building.
But I do not agree with some of the refinements and implications of the majority opinion. It may well be that in other factual contexts, as for example where the asportation occurs outside a building or other structure, the movement of the victim accompanied by physical force upon his person may amount to kidnaping. Nor do I agree that in applying the Daniels test we should isolate the factor of movement (as the majority appear to do) from the totality of the circumstances, including the manner by which the movement is induced, and the destination to which it is directed. It is conceivable that movement with or without assaultive acts to a remote place may substantially increase the risk of harm over that necessarily present in the underlying crime, by reducing or even removing the probability of the victim’s appeals for help or by exposing him to abusive conduct not otherwise feasible. Whether a defendant is a kidnaper under Daniels will normally be a question of fact to be determined in the light of the totality of the circumstances of the particular case.
In the instant case the petitioner’s entitlement to relief is clear because under no reasonable assessment of the undisputed facts can we say there was a kidnaping. But where there is a material dispute as to the facts or where even under the undisputed facts it cannot be concluded as a matter of law that the defendant’s conduct under Daniels fell outside the compass of the statute, he is not entitled to relief under Zerbe. (See my dissenting *401opinion in People v. Timmons, post at p. 411 [93 Cal.Rptr. 736, 482 P.2d 648].)
Finally I must express some puzzlement concerning the majority’s approval of the motion to recall the remittitur as the proper post-conviction remedy in these cases. Although it is clear, as the majority point out, that the judicial technique of recalling the remittitur has been utilized in order to provide appropriate relief in the context of a writ of habeas corpus (see In re Mitchell (1968) 68 Cal.2d 258, 263 [65 Cal.Rptr. 897, 437 P.2d 289]; In re Parker (1968) 68 Cal.2d 756, 761 [69 Cal.Rptr. 65, 441 P.2d 905]; In re Martin (1962) 58 Cal.2d 133, 141-142 [23 Cal.Rptr. 167, 373 P.2d 103]; In re Jackson (1964) 61 Cal.2d 500, 508 [39 Cal.Rptr. 220, 393 P.2d 420]; In re Shipp (1965) 62 Cal.2d 547, 557 [43 Cal.Rptr. 3, 399 P.2d 571]) and in unusual cases in the context of direct appeal (see, e.g., People v. Ketchel (1966) 63 Cal.2d 859, 868 [48 Cal.Rptr. 614, 409 P.2d 694]), the use of the the motion to recall the remittitur as an independent post-conviction remedy has heretofore been permitted only in two carefully limited areas: (1) when there has been a mistake of fact on the part of the appellate court resulting in a miscarriage of justice (see In re Rothrock (1939) 14 Cal.2d 34, 38-41 [92 P.2d 634]; People v. Bartges (1954) 128 Cal.App.2d 496, 498 [275 P.2d 518]; People v. Hickok (1949) 92 Cal. App.2d 539 [207 P.2d 620]; cf. People v. Holt (1949) 95 Cal.App.2d 1 [211 P.2d 917]), or (2) when the appellate court has failed to appoint counsel on appeal as required by Douglas v. California (1963) 372 U.S. 353 [9 L.Ed.2d 811, 83 S.Ct. 814] (see People v. Collins (1963) 220 Cal. App.2d 563, 566 [33 Cal.Rptr. 638]; People v. Campbell (1966) 239 Cal. App.2d 252 [48 Cal.Rptr. 693]). By their decision today the majority establish a third area in which the motion to recall the remittitur has independent vitality (i.e., when the undisputed facts show that the defendant was convicted under a statute which did not prohibit his conduct) even though they recognize that the writ of habeas corpus is available to perform the same function. (In re Zerbe, supra, 60 Cal.2d 666, 668.) I see no reason to adopt this course, but because I am in fundamental accord with the opinion of the majority—and also because the judicial technique of recalling the remittitur can be properly utilized when relief by way of habeas corpus is warranted—I enter no formal dissent on this point. I do not think, however, we should encourage the use of this procedure on collateral attack as a substitute for a petition for the writ of habeas corpus.
For the foregoing reasons I concur in the majority’s disposition of this case.