Veasey

Defendant was convicted by a jury of possession of heroin (Health & Saf. Code, § 11350) and sentenced to the upper term of three years, the term “to run consecutive with any federal sentence.” He appeals from the judgment. He has also filed a petition for writ of habeas corpus which we have consolidated for hearing with the appeal.

The sufficiency of the evidence is not in issue. On March 8, 1978, police officers went to apartment 1 at 3738 Nicolet Avenue in Los Angeles to serve a search warrant authorizing them to seize narcotics and related paraphernalia. Through the window, one officer saw three men sitting at a table on which there was a funnel with a balloon attached to it. When the officers rang the doorbell and announced their identity and purpose, two of the men jumped up and ran toward the kitchen. Fearing that evidence might be destroyed, the officers broke down the door. When they entered, they discovered defendant standing at the kitchen sink with his hands immersed in water. He was holding a plastic baggie which contained a brown substance later identified as heroin. Also discovered in the apartment was more heroin, the funnel and balloon, a sugar substance…