REGAN, J. 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]counsel 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]tian 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]The 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]bedo-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.
The recording:
“Q. Well, Ted, you probably know what this is all about. I am Heekl. This is Gain. We work narcotics. You probably know what this is all about.
“A. I think I do now. I think I understand.
“Q. A guy plays around a little out there and sooner or later does business with a man—something happens to him, you know.
“A. Yeah, well I’ll tell you officer—in this particular case, being truthful, I never had any narcotics to sell anyone. But I had Tcnown people that do sell it, so when this gentleman approached me I thought he was a user too. Naturally, 1 be short with my money. I was riding with another fellow named. Jim. I couldn’t get out of the car, you Tcnow to go with nobody, but I Tcnew people, and I would tell him where to go to get it from these people. In turn I would get a little something for myself. That is the way it happened.
‘1 How many capers did you cut with this guy here ? Sit down here.
“A. This gentleman here?
“Q. Yeah.
“A. I don’t know. It couldn’t have been a great number.
“Q. Couple, three ?
“A. Two or three, maybe something like that. I didn’t have anything [372]in my possession. It was just that I knew somebody that did. So naturally the person approached me, and he was asked whether I knew anybody where he could get a taste. I knew if I used anything I had trouble.
“Q. You use junk?
“A. Yeah, I use a little anytime I have trouble. I do. I am truthful about that.
‘ ‘ Q. That is the only way to be, Otha.
Q. You know, Ted, something funny is going on around here. You take an unfortunate person shifting around and uses a little stuff once in a while. These dudes that don’t use are out there giving you half a taste and charging you $10-$15 for it. They’re eating steaks and driving Cadillacs while some poor boy is hung up. I’d just like to, you know, this is something, you know, I am curious about—don’t understand it. Why do you guys protect these dudes?
“A. Well, I tell you the truth. I am not protecting no one, officer.
“Q. Now you take a fellow like this. Now here is an officer. This is Officer Benton. Now he is a clean dude. He just hits town. How come somebody would attack this poor guy—get him started, get him hooked, put a spike in his arm?
' “A. I understand. See—but now in this particular ease when he approached me I had no idea of knowing that he didn’t use narcotics.
‘ ‘ Q. That is right. You thought he was an old pro.
“A. That is right.
“Q. Because he acted like an old pro.
“A. I would never induce him—say come on, do this or that. When he approached me I had the understanding that he, you know, used narcotics.
“Q. You see I am selfish. I’m looking at this from a policeman’s standpoint, see? You take a guy, you know. He spends a few bills a month with some guy buying these little short bags—$6 or $8 for a gram. Can’t even get straight. Can even wake up in the morning.
■ “A. You’re right. You’re true.
"Q. Now then, you spend a lot of money over a period of time with this dude. He don’t use. He is eating steaks and driving Cadillacs.
“A. Bight. That is right.
‘ ‘ Q. But you show up short some morning with $3 and try to score.
“A. That is right.
“Q. Oh, he’ll buy you a hamburger, soda pop, give you a buck for your gas, you know, man.
“A. Couple of dollars to make up what I was short or something. Yeah, well so far as —
"Q. Cold, huh?
“A. Yeah. It’s happened. It’s happened to me. I couldn’t get out of the car to do anything. That’s right. But just sit there and wait for somebody to do something for me.
‘ ‘ Q. They hang you, and hang you up, and hang you up.
“A. That’s the truth.
I’ll bet you could write a book. I bet it would be interesting, too. You ought to write one.
“A. I’ll probably have enough time to do it. [Laughter.]
[373]”Q. Yeah, Ted. It’s rough, but that’s the way the game is—sometimes you win, sometimes you lose.
“A. But just like I say, you know, I can’t deny that I have did this, you know, but I say I never had had a bag oí boca of my own to sell, you know. I always knew people that did have it to sell.
”Q. You know, we have a heck of a program in California. It’s probably the best program in the country. Maybe we can give you some help. I don’t know, but maybe we can try.
"A. Whatever. I don’t know.
”Q. You are just half a man right now. You can make a living.
“A. Yes, I worked for a fellow until he went out of business.
“Q. All right. Bight now you are half a man. When you are using junk, you are half a man. So if you can straighten yourself out, you can make it.
“ A. I know it. I understand that.
‘ ‘ Q. Ted, you are a desperate person on top of all these problems and before that you worked as a clerk. You were a clerk and a damned good clerk, I understand.
“A. Yes, I was. I worked steady.
‘ ‘ Q. Probably you were more dependable than guys who could come to work every day.
“A. I didn’t miss many days.
‘ ‘ Q. Then you got. yourself a habit and couldn ’t work any more ? Here, I’ll get you a cigarette, man;
“A. Okay.
“Q. Ted, do you want a cigarette? Can you make it all right? Take your time, no hurry,” (Italics added.)