2383. Use of Minor as Agent to Violate Controlled Substance Law

The defendant is charged [in Count ______] with using someone under 18 years of age as an agent to (transport/sell/give away/ possess/possess for sale) <insert type of controlled substance>, a controlled substance.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant used <insert name of person hired> as an agent;

2. <insert name of person hired> was used by the defendant to (transport/sell/give away/possess/possess for sale) <insert type of controlled substance>, a controlled substance;

3. At that time, the defendant was 18 years of age or older;

4. At that time, <insert name of person hired> was under 18 years of age;

AND

5. The defendant knew of the substance's nature or character as a controlled substance.

An agent is a person who is authorized to act for the defendant in dealings with other people.

[Selling for the purpose of this instruction means exchanging a controlled substance for money, services, or anything of value.]

[A person transports something if he or she carries or moves it from one location to another, even if the distance is short.]

[The People do not need to prove that the defendant knew which specific controlled substance was to be (transported/sold/given away/possessed/possessed for sale), only that (he/she) was aware that it was a controlled substance.]

[Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime.

Give the bracketed paragraph about calculating age if requested. (Fam. Code, § 6500; In re Harris (1993) 5 Cal.4th 813, 849-850 [21 Cal.Rptr.2d 373, 855 P.2d 391].)

Authority

Elements. Health & Saf. Code, § 11380(a).

Age of Defendant Element of Offense. People v. Montalvo (1971) 4 Cal.3d 328, 332 [93 Cal.Rptr. 581, 482 P.2d 205].

Knowledge. People v. Horn (1960) 187 Cal.App.2d 68, 74-75 [9 Cal.Rptr. 578].

Selling. People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [8 Cal.Rptr.2d 541].

Agent. Civ. Code, § 2295.

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, §§ 103-105.

3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, § 73.06[1] (Matthew Bender).

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140, Challenges to Crimes, § 140.12, Ch. 145, Narcotics and Alcohol Offenses, § 145.01[1][a], [b], [d], [e], [g], [h], [3][a] (Matthew Bender).

(New January 2006)