People v. Martinez

FOX, Acting P. J. The defendant was convicted of the unlawful possession of heroin. (Health & Saf. Code, § 11500.) An allegation of a prior conviction for the same offense was found to be true. He has appealed from the judgment.

At about 12:15 p. m. on October 8, 1956, Deputy Sheriff Robert Nichols received information from a confidential informant that a narcotics party was in progress at 816 North Cordova, East Los Angeles. Deputy Nichols had received information from the same informant once before, the information resulting in the arrest and conviction of two narcotics addicts. Deputy Nichols proceeded to the above address accompanied by Deputy Wilson, Deputy Stoops and Sergeant Cook. The officers arrived at about 3:15 p. m. and went directly into the back yard. Upon entering the back yard Nichols observed defendant kneeling on the ground near an old cushion from a couch. Three other men were near defendant, two standing and the third leaning against an automobile. Deputy Nichols approached defendant and began to question him concerning narcotics. Nichols also examined defendant’s wrists and arms, and observed fresh puncture wounds upon both hands. He then arrested defendant for suspicion of violating section 11500, Health and Safety Code.

Deputy Wilson turned over the cushion lying on the ground near defendant and Deputy Nichols observed a rubber finger stall in the dirt. Wilson picked it up and, in the presence of Deputies Nichols and Stoops and Sergeant Cook, questioned defendant about it. In reply to one of the questions defendant stated, ‘‘ That junk is mine. ’ ’ The officer then asked defendant how much was in it and defendant replied, ‘ ‘ 15 caps. ’ ’ Deputy Nichols emptied the contents of the finger stall and counted 15 capsules which were later found to contain heroin.

At the trial defendant testified that the marks on his right hand were from a tattoo. He denied seeing any heroin and denied telling the officers that the “junk” was his or that the finger stall contained 15 capsules.

Defendant’s initial contention is that the statements he made to the ofSeers constituted a confession and that the trial court erred in receiving it into evidence because the prosecution had failed to lay an adequate foundation for its admission. Assuming, arguendo, that the statements did constitute a confession, defendant’s contention is nevertheless without merit. In People v. Byrd, 42 Cal.2d 200 [266 P.2d 505], the defendant contended that recordings of certain [782]