Tuttle

Petitioners seek a writ of prohibition to prohibit further proceedings in case number 11507 in the Superior Court of the State of California in and for the County of San Luis Obispo, in which petitioners are charged with violation of Health and Safety Code sections 11358 (cultivation of marijuana) and 11359 (possession of marijuana for sale). For reasons hereinafter stated we grant the writ.

Petitioners moved to dismiss the information pursuant to Penal Code section 995. The grounds were: (1) insufficient evidence to support the commitment; (2) nighttime service of a warrant was improper; (3) the warrant was not issued on probable cause; (4) an aerial search was unlawful; and (5) the judge had failed to order disclosure of a material informant. Upon the trial court’s denial of the motion to dismiss, petitioners, alleging the same grounds previously set out in the trial court, prayed for a writ of prohibition. We stayed the proceedings in the trial court and issued an order to show cause.

The facts as set forth in the affidavit for a search warrant establish the following:

The affidavit of Garry Wilson (Wilson) discloses that he has been a special agent with the…

I respectfully dissent.

Although conceding that the magistrate could not reasonably have found good cause for indorsing the search warrant for night service under Penal Code section 1533, I will attempt to show that the defect does not rise to constitutional magnitude and thus does not require issuance of the writ.

*333 California law holds that the requirement of “good cause” for nighttime service of a search warrant “is essentially a statutory requirement imposed by the Legislature and not a constitutional requirement.” (People v. Glass (1976) 56 Cal.App.3d 368, 372 [ 128 Cal.Rptr. 413 ].)

In a relatively recent case, Gooding v. United States (1974) 416 U.S. 430 [ 40 L.Ed.2d 250 , 94 S.Ct. 1780 ], the United States Supreme Court construed 21 United States Code section 879 (a), which reads: “A search warrant relating to offenses involving controlled substances may be served at any time of the day or night if the judge or United States magistrate issuing the warrant is satisfied that there is probable cause to believe that grounds exist for the warrant and for its service at such time.” The construction given by the high court to that statute was that probable cause for the…

George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Willard F. Jones and Wm. George Prahl, Deputy Attorneys General, for Real Party in Interest.

OPINION

HOPPER, Acting P.J.

Petitioners seek a writ of prohibition to prohibit further proceedings in case number 11507 in the Superior Court of the State of California in and for the County of San Luis Obispo, in which petitioners are charged with violation of Health and Safety Code sections 11358 (cultivation of marijuana) and 11359 (possession of marijuana for sale). For reasons hereinafter stated we grant the writ.

Petitioners moved to dismiss the information pursuant to Penal Code section 995. The grounds were: (1) insufficient evidence to support the commitment; (2) nighttime service of a warrant was improper; (3) the warrant was not issued on probable cause; (4) an aerial search was unlawful; and (5) the judge had failed to order disclosure of a material informant. Upon the trial court's denial of the motion to dismiss, petitioners, alleging the same grounds previously set out in the trial court, prayed for a writ of prohibition. We stayed…