People v. Superior Court (Orecchia)

• Decision Date: 02 December 1976
• Citation: 65 Cal.App.3d 842,134 Cal.Rptr. 361
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SAN MATEO, Respondent; Ricardo ORECCHIA and John R. Rynd, Real Parties in Interest. Ricardo ORECCHIA and John R. Rynd, Petitioners, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SAN MATEO, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 39715, Civ. 39796.

Page 361

134 Cal.Rptr. 361

65 Cal.App.3d 842

PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SAN MATEO, Respondent;

Ricardo ORECCHIA and John R. Rynd, Real Parties in Interest.

Ricardo ORECCHIA and John R. Rynd, Petitioners, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SAN MATEO, Respondent;

PEOPLE of the State of California, Real Party in Interest.

Civ. 39715, Civ. 39796.

Court of Appeal, First District, Division 2, California.

Dec. 2, 1976.

Hearing Denied Jan. 27, 1977.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., William D. Stein, Herbert F. Wilkinson, Deputy Attys. Gen., San Francisco, for the People of the State of Cal.

Austin F. Stevens, Redwood City, for Ricardo Orecchia.

Samuel R. Swift, Redwood City, for John R. Rynd.

KANE, Associate Justice.

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 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. ² 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 pre-recorded 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.

A superior court should uphold an information as to any offense charged in the information of which any reasonable construction of the evidence adduced at the preliminary hearing admits (People v. McKee (1968) 267 Cal.App.2d 509, 514, 73 Cal.Rptr. 112). The evidence that Hurteau was a minor, 17 years of age, at the time he made the purchases, is uncontroverted. ³ Clearly, the evidence produced at the preliminary hearing fully supports the charges of violation of section 11361.

Defendants maintain, however, that the employment of a minor as a decoy in undercover law enforcement activities involving the purchase of marijuana is unlawful by reason of section 11361, subdivision (a), and that the 'evil' inherent in this form of undercover activity can be remedied only by dismissal of the criminal charges, analogous to a case of entrapment (cf. People v. Benford (1959) 53 Cal.2d 1, 8--9, 345 P.2d 928).

That the trial judge accepted the defendants' argument, at least in part, is apparent as the record shows that the order striking out parts of the informations was imposed by the court as a remedy to 'preclude undercover agents from using a minor.' However, we do not construe the language of section 11361, subdivision (a), to be directed to nor to preclude the use of minors as decoys in undercover purchases of marijuana which are supervised and controlled by law enforcement agencies. ⁴

In addition it must be pointed out that the trial court's 'home-grown' remedy is, on analysis, not a remedy at all. The defendants, under the court's ruling, still stand accused of a serious felony; and the police are not precluded from using minors as decoys in the future. Rather, they are simply restricted to charging a violation of section 11360 (sale of marijuana) instead of section 11361 (sale of marijuana to a minor).

But, more importantly, we do not perceive any 'evil' policy in the utilization by the police of minors as decoys in the legitimate pursuit of drug pushers whose prime markets are also minors attending high school.

It is patently obvious that infiltration into drug trafficking among high school students can only be...