People v. Marquez

KINGSLEY, J.

Defendant was charged, in two counts, with possession of heroin (Health & Saf. Code, §11500), and possession of heroin for sale (Health & Saf. Code, § 11500.5). A prior felony conviction was also alleged. Defendant pled not guilty and denied the prior. Trial by jury was duly waived and the matter was submitted on the transcript of the preliminary examination. The court found him guilty on

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count I (possession) and not guilty on count II (possession for sale). A motion for new trial was denied, probation was denied, and defendant was sentenced to state prison, the term to run concurrently with “any other time.” No disposition was made of the prior conviction alleged against him. He has appealed from the judgment.

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The evidence against defendant was secured as the result of a search of his apartment. It is not contended (and it could not be contended) that the evidence, if legally procured, was insufficient to sustain the finding of guilt. However, it was urged in the trial court, and is urged here, that the evidence was illegally obtained for two reasons: (1) that it was obtained by use of a search warrant, which warrant had been illegally obtained in that it was based on an inadequate affidavit; and (2) that, even if the warrant had been lawful, it was executed in violation of section 1531 of the Penal Code. Since we agree with the second of these contentions, and since that holding requires a reversal, we do not pass on the validity of the objections made to the affidavit on which the warrant was based.

In executing the warrant that they had obtained, the officers went to the place indicated, waited for approximately 30 seconds, heard a television set in operation but no other sounds, and then, without knocking, announcing their presence, or otherwise requesting admission, kicked in the door and entered.

Defendant argues that this entry violated section 1531 of the. Penal Code,

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as construed in

People

v.