In Re Tedwell
This text of 251 Cal. App. 2d 369 (In Re Tedwell) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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After trial by the court, a jury having been waived, petitioner was found guilty of two counts of violation of section 11501 of the Health and Safety Code (sale of a narcotic other than marijuana). Judgment of conviction was pronounced on November 26, 1963. In his appeal, petitioner, who was represented by counsel, raised the following contentions : insufficiency of the evidence, entrapment, and the denial of the right of confrontation. The judgment was affirmed on November 2,1964.
Petitioner has filed this petition for writ of habeas corpus contending the admission into evidence of a tape recording between petitioner and police officers was prejudicial error. Respondent argues that the objection to its admission could have been raised on appeal and that therefore habeas corpus does not lie, that there was no “process of interrogations” that lent itself to eliciting incriminating statements, and that any error, if error there be, was harmless.
Petitioner’s trial was prior to June 13, 1966, the date on which Miranda v. Arizona, 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], was decided. Thus, that decision is not applicable here. However, the decisions in Escobedo v. Illinois, 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758] and People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361], do apply as petitioner’s case, although tried prior thereto, had not become final on June 22, 1964. (People v. Rollins, 65 Cal.2d 681 [56 Cal.Rptr. 293, 423 P.2d 221].)
After examining the entire record we conclude the judgment of conviction rests upon a confession violative of Escobedo and Dorado and therefore cannot stand.
The proscriptions of Dorado are evident here. The investigation was no longer a general inquiry into an unsolved crime but had begun to focus on petitioner; the petitioner was in custody; the police authorities were carrying out a process of interrogation that lent itself to eliciting incriminating statements and that did elicit such statements; the police authorities had not effectively informed petitioner of his right to [371]*371counsel or of his absolute right to remain silent, and there is no evidence here that petitioner waived these rights. (People v. Dorado, supra, 62 Cal.2d at pp. 353-354.)
The evidence produced at the trial was sufficient to support the conviction of petitioner for the sale of a narcotic as charged. Under the provisions of section 31, Penal Code, petitioner was a principal in the crime committed.
At the trial, counsel for petitioner and the state stipulated that the tape-recorded conversation of petitioner and the police officers would be admitted into evidence, and the tape was heard in court. The setting for the recorded interview was the Los Angeles Police Department, with petitioner and three police officers present, and after his arrest. It proceeded by the question and answer technique and elicited statements amounting to a confession.
The questioning of petitioner, who was not given a full and effective warning of his rights at the outset of the interrogation process, was in a police-dominated atmosphere, lacking any semblance of brutalizing practices, but rather a classic example of the soft-sell, in-custody interrogation—psychologically rather than physically oriented. (See Miranda v. Arizona, supra, 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974].) The recording1 furnished ample corroboration of the prosecution’s police witness.
We examine now respondent’s contention that petitioner has waived the right to present the Escobedo-Dorado contention on habeas corpus because he failed to present the ques[372]*372tian on direct appeal and citing therefor In re Varnum, 63 Cal.2d 629, 631 [47 Cal.Rptr. 769, 408 P.2d 97] ; In re Spencer, 63 Cal.2d 400 [46 Cal.Rptr. 753, 406 P.2d 33] ; In re Shipp, 62 Cal.2d 547, 551-553 [43 Cal.Rptr. 3, 399 P.2d 571]; and In re Dixon, 41 Cal.2d 756, 759-761 [264 P.2d 513].
[373]*373The general rule is, of course, that habeas corpus cannot serve as a substitute for appeal in the absence of special circumstances. (In re Shipp, supra, 62 Cal.2d at p. 552.) Nevertheless, this court may afford collateral relief on constitutional grounds if the petitioner had no opportunity to raise the constitutional issue at trial and on appeal. (In re Spencer, supra, 63 Cal.2d at p. 406.)
Petitioner’s trial was held on October 30, 1963, prior to Escobedo, which was decided on June 22, 1964. The first Dorado decision was filed on August 31,1964, but a rehearing was granted on September 24, 1964. Petitioner’s conviction was affirmed on appeal on November 2, 1964. The second Dorado decision was filed on January 29, 1965.
It is apparent from the foregoing chronology that petitioner had no opportunity to raise the constitutional issue at his trial. It is true that after the decision in Escobedo the issue could have been raised on appeal by supplemental letter, reply brief, oral argument, or petition for rehearing. As can be seen from the foregoing history, however, the California law on this matter was uncertain and indefinite until after petitioner’s appeal had become final. Thus, there are special circumstances present here. In our view the impact of the Esco[374]*374bedo-Dorado doctrine and its ensuing aftershocks compel us to hold that petitioner had no true opportunity to raise the constitutional issue on appeal and that there could be no waiver. This ease is thus distinguishable from In re Shipp, supra, 62 Cal.2d 547, and petitioner may therefore invoke Escobedo and Dorado and collaterally attack his judgment. (See In re Spencer, supra, 63 Cal.2d 400, 406.)
The writ is granted and the judgment and sentence for violation of section 11501 of the Health and Safety Code is set aside. Petitioner is remanded to the custody of the Superior Court of Los Angeles County for a new trial.
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251 Cal. App. 2d 369, 59 Cal. Rptr. 305, 1967 Cal. App. LEXIS 1979, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-tedwell-calctapp-1967.