People v. Superior Court (Orecchia)

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, 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…