In Re Woods

FRIEDMAN, J. Petitioner seeks habeas corpus, attacking his conviction of possessing heroin for sale. (Health & Saf. Code, § 11500.5.) His non jury trial occurred on December 10, 1964, and judgment of imprisonment was pronounced January 18, 1965. Petitioner took an appeal. His conviction was affirmed by the Court of Appeal, Second District, Division Four, on January 27,1966. The decision is reported in People v. Woods, 239 Cal.App.2d 697 [49 Cal.Rptr. 266], A petition for hearing was subsequently rejected by the State Supreme Court.

On his appeal he claimed violation of the Escobedo-Dorado rule, governing admissibility of evidence of incriminating extrajudicial statements to the police which are not preceded by appropriate warnings. (Escobedo v. Illinois, 378 U.S. 478, 490-491 [12 L.Ed.2d 977, 84 S.Ct. 1758] ; People v. Dorado, 62 Cal.2d 338, 353-354 [42 Cal.Rptr. 169, 398 P.2d 361].) The appellate court noted that petitioner’s trial took place after June 22, 1964, the date of the Escobedo decision, and after August 31, 1964, the date of the California Supreme Court’s final decision in the Dorado case. (40 Cal.Rptr. 264, 394 P.2d 952) ; that his trial counsel’s inferably deliberate decision to refrain from objection in the trial court precluded the objection on appeal. (People v. Woods, supra, 239 Cal.App.2d at pp. 704-705.) The court also held that narcotics found by the police were not the product of an illegal search and seizure.

[750]People v. Doherty, 67 Cal.2d 9 [59 Cal.Rptr. 857, 429 P.2d 177], holds that in the absence of special circumstances justifying an inference of Imowing and intelligent waiver, no waiver of an Escobedo-D orado claim can be assumed in cases tried before January 29,1965, the date of the second and final Dorado decision. The Doherty opinion expressly disapproves of People v. Woods, supra, and several similar decisions “insofar as [they] rest on a contrary assumption. . . .” In view of this express disapproval we issued an order to show cause in response to petitioner’s application for habeas corpus.

We abstract the statement of the facts of the case from People v. Woods, supra, 239 Cal.App.2d at pages 699-701:

‘1 On the issue of probable cause for arrest it was stipulated that Officer Frank Northrup was an expert in the field of narcotics investigation and the detection of narcotics sellers and those under the influence of narcotics. Northrup testified that, on April 27, 1962, he, his partner Sergeant Buckner and Agent Brewer of the State Bureau of Narcotics, went to the vicinity of an apartment located at 4270% Leimert Boulevard in Los Angeles. Northrup had received information from an informant the evening before that defendant was dealing in heroin from this apartment. He had received information from this same informant on a prior occasion. (There is no showing however, that the information received on that occasion had proven correct.) At about 9 a.m. the officers were in an alley at the rear of the apartment when Northrup observed defendant leave the apartment and walk into a garage at the rear of the building. The garage contained a new Oldsmobile which, according to police information, belonged to defendant. When defendant walked out of the garage into the alley the officers approached him. Officer Northrup identified himself and asked defendant his name. After initially stating that his name was Elton Hill, defendant admitted that he was Emory Woods. Northrup then asked defendant if he was using narcotics. Defendant replied, ‘Yes, I am using. I am trying to cut down, but I am using.’ The officer observed what appeared to be fresh puncture wounds on defendant’s arms and then placed him under arrest.