People v. Williams

CHRISTIAN, J. Appellant was found guilty in 1962 of possessing heroin (Health & Saf. Code, § 11500). He was placed in the California Rehabilitation Center for treatment of addiction (Welf. & Inst. Code, § 3051) and almost five years later was returned to court. Probation was then denied and judgment was pronounced. On appeal, it is contended that trial counsel’s incompetence amounted to a denial of due process. Specifically it is complained that trial by jury was waived and the cause was submitted on the transcript of the preliminary hearing despite the asserted failure of the attorney who appeared for appellant at the preliminary hearing to present a vigorous and effective defense. But appellant failed to attack the adequacy of representation at the preliminary hearing by motion under Penal Code, section 995. (Cf. People v. Wilkins (1967) 251 Cal.App.2d 823, 826 [60 Cal.Rptr. 49].) Moreover, the record shows that while represented by new counsel he personally waived trial by jury and agreed that the cause might be submitted for decision on the transcript of the preliminary hearing. Any point appellant may have had regarding adequacy of counsel at the preliminary hearing is therefore lost.

A more difficult problem is presented by the testimony of the arresting officer that while appellant was in custody he “stated that he had received the paper of heroin from a person on Broderick Street that date, . . •” The record does not show whether appellant, arrested in 1962, received an Escobedo-Dorado warning;1 this court cannot presume that the warning was given. (People v. Rivers (1967) 66 Cal.2d 1000, 1005 [59 Cal.Rptr. 851, 429 P.2d 171] ; People v. Stewart (1965) 62 Cal.2d 571, 581 [43 Cal.Rptr. 201, 400 P.2d 97], affd. sub nom. (1966) Miranda v. Arizona 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602].) Since this case was tried prior to January 29, 1965, appellant was not required to make in the trial court his objection to the use of the statements. (People v. Doherty (1967) 67 Cal.2d 9, 14 [59 Cal.Rptr. 857, 429 P.2d 177].)

The crucial issue is whether the Escobedo-Dorado rule [953]should be applied retroactively to this case. California has followed Johnson v. New Jersey (1966) 384 U.S. 719 [16 L.Ed.2d 882, 86 S.Ct. 1772], in limiting the doctrine of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], to trials begun after June 13, 1.966"; however, the Escobedo-Dorado rules are to be applied in cases not final on June 22, 1964. (People v. Rollins (1967) 65 Cal. 2d 681, 691 [56 Cal.Rptr. 293, 423 P.2d 221]; In re Lopez (1965) 62 Cal.2d 368 [42 Cal.Rptr. 188, 398 P.2d 380], cert, den., 384 U.S. 1016 [16 L.Ed.1038, 86 S.Ct. 1929].) In Lopez, the court stated: “Unlimited retroactive application of Escobedo would result in the reconsideration of countless. cases that were correctly decided under the law in force at the time of trial; in many such cases witnesses and evidence would no longer be available. Many hardened and dangerous criminals would glean the greatest profit from unlimited retroactivity; they serve lengthy sentences imposed long ago; their eases thus offer the least likelihood of successful retrial. To require a general release of prisoners of undoubted guilt would be to cripple the orderly administration of the criminal laws. [Citations.] ” Therefore the court held that the Escobedo doctrine did not apply to cases which were final prior to June 22, 1964.