People v. Walker

Barrean and-Walker were charged in two counts with possession of heroin (§11500, Health & Saf. Code) and possession of marijuana (§ 11530, Health & Saf. Code). The cause was submitted on the transcript of the testimony taken at the preliminary hearing. All defendants were found guilty as charged. Walker’s motion for a new trial was granted as to count II (possession of marijuana) and denied as to count I (possession of heroin). He was sentenced to the state prison; at the same time probation ón a prior burglary conviction was revoked and he was sentenced thereon to the state prison, the sentences in the two cases to run concurrently. Count II was dismissed in the interests of justice. Only Walker (hereinafter referred to as defendant and appellant) appeals from the judgment.

On January 2, 1968, Sacchette’s sister told Sergeant Elder that she had just been to Sacchette’s residence Avhere there Avere five persons who she thought were under the influence, of narcotics and there were .two small children in the house for Avhom she avbs afraid; she.returned to the house and brought back to him' a Tuinal tablet and said that those in the- resi[41]dence had just “scored” heroin and were in the process of “fixing.” Around 11 p.m. Sergeant Elder and five other deputies went to the residence to inquire about possible child neglect and narcotic violations. The residence was set 30 or .40 feet off the street. Three officers went to the front door and Sergeant Elder and the others went to the side door immediately adjacent to a driveway to the home. As Sergeant Elder started to knock on the side door to inquire about the children, he observed through the window adjacent to the door three men in the kitchen. On the window was a screen; the curtain was back approximately two inches on his right side as he faced it; the porch area was dark and the interior kitchen well lighted; there were no blinds on the window. He saw Rutherford standing on one side of a table, Stone seated in a chair holding a brown belt around his left arm and defendant standing over him holding a small eye dropper type narcotic injecting device in his right hand. Sergeant Elder, who had training, education and experience in narcotics, formed the opinion that defendant was giving a narcotic injection to Stone. Believing that evidence was being destroyed in front of his eyes and a felony was being committed in his presence, he opened the door and entered. All five defendants were in the house and placed under arrest. A search of the house revealed the following items; corncob pipe containing marijuana debris, two packs of Zig Zag papers in Barreau’s purse, a hand-rolled cigarette and loose seeds and leafy fragments of marijuana, all of which pertained to count II, later dismissed against this defendant; and on the kitchen table a white saucer on which was a green packet containing 4/10 of a gram of heroin (between three and four “fixes”), a spoon containing heroin, one eye dropper and one needle, and four or five feet from the corner of the table an eye dropper with fresh blood on it. All three male defendants had needle marks and all five appeared to be under the influence of something or “high.”