People v. Superior Court (Orecchia)

Opinion

KANE, J.

In this extraordinary writ proceeding, the People seek mandate to compel respondent court to set aside its order striking out parts of informations charging defendants Orecchia and Rynd with violations of Health and Safety Code,

1

section 11361 (sale of marijuana to a minor). The People contend that since the undisputed evidence at the preliminary hearings established that the sales were made to a minor, the court’s order striking out allegations of sale “to a minor” changed the substantive nature of the offense to sale of marijuana, a violation of section 11360, an action which exceeded the jurisdiction of the court.

Defendants seek mandate in their own right, contending that the use of a minor as a decoy in undercover purchases of marijuana violates public policy, and that the court erred as a matter of law in failing to grant their motion to dismiss the informations. Since numerous other prosecutions pending in San Mateo County await the resolution of this

[845]

issue, we undertook review by mandate under the authority of

People

v.

Superior Court (Brodie),

48 Cal.App.3d 195, 198 [121 Cal.Rptr. 732].

The record shows that the charges against defendants arose out of an investigation by the San Mateo Police Department into drug traffic at San Mateo high schools. Evidence adduced at the preliminary hearings reveals that Paul Hurteau, a former student at San Mateo High School, volunteered his services to the San Mateo Police Department in its efforts to impede this drug traffic.

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Hurteau was motivated to volunteer his assistance because he had seen “some good friends go down pretty heavy” through the use of drugs and he wanted to “stop the drug traffic ... in San Mateo ....”

On November 12, 1975, Hurteau was furnished with prerecorded city funds, equipped with a transmitting device, and taken by an undercover police officer, who parked in a van on the street, to mingle with students near the San Mateo High School grounds. On that day, Hurteau made a purchase of one lid of marijuana from defendant Rynd for the sum of $15. Later, on December 11, 1975, during a prearranged meeting at Los Prados Park, Hurteau purchased two bags of marijuana from defendant Orecchia for the sum of $30 per bag.