Ruben S. Herrera v. Lawrence E. Wilson, Warden, Etc.

Herrera and Pommier were jointly tried and separately convicted in California Superior Court on December 9 and 11, 1963. Herrera was convicted of a violation of section 245 of the California Penal Code, assault by means of force likely to produce great bodily injury. Pommier was convicted of the same offense and also of robbery in the first degree. (Calif.Pen.Code § 211). They seek habeas corpus, which was denied by the trial court without a hearing.

Insofar as the petitioners rely upon the decision in Escobedo v. State of Illinois, 1964, 378 U.S. 478, 487 , 84 L.Ed. 1758 , 12 L.Ed.2d 977 , their claim for relief is foreclosed by Johnson v. State of New Jersey, 1966, 384 U.S. 719 , 86 S.Ct. 1772 , 16 L.Ed.2d 882 .

They also assert that there was a violation of the rule laid down in Pointer v. State of Texas, 1965, 380 U.S. 400 , 85 S.Ct. 1065 , 13 L.Ed.2d 923 . In that case the defendants were charged with robbing one Phillips. At the preliminary hearing neither of the defendants had a lawyer. Phillips testified against them, but they did not cross-examine. Before they were tried Phillips moved out of the state. The prosecution was permitted to introduce at the trial the…