Botts

Defendant was charged with possession of heroin, in violation of section 11500 of the Health and Safety Code. One prior felony conviction was alleged. He pled not guilty and denied the prior. After a trial by the court (trial by jury having been duly waived) he was found guilty and the prior conviction was found to be true. Proceedings were suspended and proceedings were commenced under the Narcotic Rehabilitation Act, resulting in defendant’s commitment to that program. Thereafter, defendant was discharged from the Rehabilitation Center pursuant to habeas corpus proceedings instituted on his behalf. The criminal proceedings were resumed, probation was denied and he was sentenced to state prison. He has appealed.

Witness Carr, a service station attendant, observed some men park a car on the service station lot. Defendant left the car and entered the restroom of the station. Carr went to a back room of the station to a point from which he was able to see into the restroom through two three-quarter inch holes in the wall. Carr testified that the holes had resulted when, previously, a towel rack had been removed from the restroom side of the wall. Carr observed defendant with a…