People v. Padilla

KINGSLEY, J.

Defendant was charged (Count I) with possession of heroin for sale, in violation of section 11500.5 of the Health and Safety Code, and (Count II) with possession of marijuana, in violation of section 11530 of the Health and Safety Code. A prior felony conviction was also charged. After a trial, he was found guilty on both counts; a motion for a new trial was made and was granted on the ground of an error of law. On the retrial, jury was duly waived; he was found guilty on both counts and the prior conviction was found to be true as alleged; probation was waived and he was sentenced to state prison. He has appealed.

At defendant’s request, we appointed counsel for him on this appeal. The appointed counsel has filed with us a report, in which he advises us that he can find no meritorious grounds for reversal. We have made our own examination of the record; although, as hereinafter appears, we find one

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point which deserves discussion, we also conclude that there is no ground for reversal.

Acting on an anonymous tip, two police officers went to a rooming house where they were advised defendant lived. The landlady verified that fact and told the officers that defendant rented room 10, which was on the second floor, at the corner. One officer stationed himself on the ground, outside the rooming house and directly beneath the windows of room 10. The other officer knocked on the door of the room, identified himself, and demanded admittance. The officer heard sounds similar to those of a window being opened and then heard his partner call out: “It is raining balloons. Kick the door in.” Believing, on the basis of his prior experience as a narcotic officer, that defendant was throwing heroin out of the window, the officer forced the door part way open. The door was blocked by a chair underneath the doorknob, but it opened “a few inches” and the officer could see defendant standing in the room. Defendant then walked to the door and opened it. Defendant was placed under arrest and the room searched. The search disclosed heroin, empty balloons, and sundry articles of the kind usually employed in cutting and packaging heroin; it also disclosed a newspaper bindle containing marijuana. The officers retrieved the articles thrown from the window, namely at least 12 balloons containing heroin, a plate with a white powder on it and a medicine dropper with a hypodermic needle attached.