Colvin

By information, five defendants were charged in count I with possession of heroin, a felony (Health & Saf. Code, § 11500), three of them being additionally charged in count II with maintaining a place for the purpose of unlawfully selling or using a narcotic, heroin (Health & Saf. Code, § 11557). Each defendant pled "not guilty" and moved to set aside the information (Pen. Code, § 995). The motions were granted. The People appeal from the order setting aside the information (Pen. Code, § 1238, subd. (a)(1)).

To pass upon the motion, the trial court reviewed the evidence received at the preliminary hearing. At that hearing, Police Officer Ron Allinson testified as follows: At 8:30 p.m. on September 15, 1969 he proceeded to an apartment building at 9208 Stewart & Gray Road, Downey, in response to a radio call to assist Officer Westray in the investigation of a burglary. When Allinson arrived, he advised Westray that he would cover the building from the rear. Accordingly, he began walking down a public driveway located between 9208 and 9202 Stewart & Gray Road, the latter address being that of another apartment building. [1] At a point approximately 10 feet from…