Applying the criterion of Daniels to the undisputed facts in this case, I am unable to conclude that, as a matter of law, the conduct of the defendant in this case did not constitute kidnaping. I am therefore of the view that the rationale of In re Zerbe (1964) 60 Cal.2d 666 [36 Cal.Rptr. 286, 388 P.2d 182, 10 A.L.R.3d 840], as applied in People v. Mutch, ante, p. 389 [93 Cal.Rptr. 721, 482 P.2d 633], is not applicable to this case and that the judgment should not be vacated as to counts I and II.
For these reasons as well as those set forth in my concurring and dissenting opinion in People v. Mutch, supra, ante, p. 389, I would deny the motion to recall the remittitur.
Respondent’s petition for a rehearing was denied April 22, 1971. Wright, C. J., did not participate therein. Kaus, J.,* participated therein. Burke, J., and Sullivan, J., were of the opinion that the petition should be granted.