California Criminal Jury Instructions (CALCRIM) (2017)

2382. Employment of Minor to Sell Controlled Substance

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2382.Employment of Minor to Sell Controlled Substance (Health
& Saf. Code, §§ 11353, 11354)
The defendant is charged [in Count ] with (hiring/employing/
using) someone under 18 years of age to (transport/carry/sell/give away/
prepare for sale/peddle) <insert type of controlled
substance>, a controlled substance [in violation of <insert
appropriate code section[s]>].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [unlawfully] (hired/employed/used)
<insert name of person hired>;
2. <insert name of person hired> was (hired/employed/
used) to (transport/carry/sell/give away/prepare for sale/peddle) a
controlled substance;
<If the controlled substance is not listed in the schedules set forth in
sections 11054 through 11058 of the Health and Safety Code, give
paragraph 3B and the definition of analog substance below instead of
paragraph 3A.>
3A. The controlled substance was <insert type of
controlled substance>;
3B. The controlled substance was an analog of <insert
type of controlled substance>;
4. At that time, the defendant was 18 years of age or older;
5. At that time, <insert name of person hired> was
under 18 years of age;
AND
6. The defendant knew of the substance’s nature or character as a
controlled substance.
[In order to prove that the defendant is guilty of this crime, the People
must prove that <insert name of analog drug> is an analog
of <insert type of controlled substance> . An analog of a
controlled substance:
1. Has a chemical structure substantially similar to the structure of
a controlled substance;
OR
2. Has, is represented as having, or is intended to have a stimulant,
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depressant, or hallucinogenic effect on the central nervous system
substantially similar to or greater than the effect of a controlled
substance.]
[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/carried/sold/given
away/prepared for sale/peddled), 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.]
New January 2006; Revised February 2014
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
If the defendant is charged with violating Health and Safety Code section 11354(a),
in element 3, the court should replace “18 years of age or older” with “under 18
years of age.”
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, §§ 11353, 11354.
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].
• Definition of Analog Controlled Substance. People v. Davis (2013) 57 Cal.4th
353, 357, fn. 2 [159 Cal.Rptr.3d 405, 303 P.3d 1179].
• No Finding Necessary for “Expressly Listed” Controlled Substance. People v.
Davis,supra, 57 Cal.4th 353 at p. 362, fn. 5.
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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], [g], [h], [3][a], [b], [c] (Matthew Bender).
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