People v. Armenta

THE COURT.

In a nonjury trial in which he was represented by the public defender, Ruben Armenia was convicted of possession of heroin; probation was denied; he was sentenced to state prison and appeals in propria persona. He applied for appointment of counsel on appeal; we read the record, determined the appeal was wholly without merit, denied the request for appointment of counsel, notified defendant, extended his time for filing a brief and none having been filed, after notice given appellant under rule 17(a), Rules on Appeal, we proceed to decide the appeal.

Under stipulation, the reporter’s transcript of the preliminary hearing was received in evidence and additional evidence was received at the trial.

[708]

Officer McNamara, who had made 300 to 350 narcotic arrests, and Officer Coria were driving by the house of one Garcia when the observed Armenia and Concepcion Garcia, both known as narcotic addicts, look in their direction and immediately hurry into the apartment. They knew that one other narcotic addict lived there and they had previously made several narcotic arrests in the same apartment. Officer Coria went to the front door, looked through a window, saw Armenia take something from

his

mouth and throw it away, whereupon the officer pounded on the door, announced he was an officer, demanded admittance and when he heard the door bolted, kicked it in and entered the house. At the same time Officer McNamara from the outside of the rear of the house observed Armenia throw a package to the floor. From the floor some two feet away from Armenia, he recovered two capsules containing heroin. He observed fresh needle marks on defendant’s arms and arrested defendant. Questioned by the officer defendant stated that since a previous arrest he had been using heroin, but only about five times in the last two weeks. Photographs taken immediately after defendant’s arrest showed fresh needle marks. Defendant testified that as he was passing the Garcia house a tire on his car went flat and since he was using crutches following an accident in which he suffered burns on his feet, he stopped at the house in order to obtain help in changing the tire; he did not throw away any heroin nor have any in his possession. He heard Officer Coria banging on the front door. He had been a user of heroin but was taking the naline treatment. He did not remember when he had last used heroin. There was no other evidence introduced on behalf of defendant.