2392. Employment of Minor to Sell, etc., Marijuana
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) marijuana, a controlled substance.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant (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) marijuana, 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;
5. The defendant knew of the substance's nature or character as a controlled substance.
[Selling for the purpose of this instruction means exchanging the marijuana 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.]
[Marijuana means all or part of the Cannabis sativa L. plant, whether growing or not, including the seeds and resin extracted from any part of the plant. [It also includes every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin.] [It does not include the mature stalks of the plant; fiber produced from the stalks; oil or cake made from the seeds of the plant; any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake; or the sterilized seed of the plant, which is incapable of germination.]]
[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.]
The court has a sua sponte duty to give this instruction defining the elements of the crime.
When instructing on the definition of "marijuana," the court may choose to give just the first bracketed sentence or may give the first bracketed sentence with either or both of the bracketed sentences following. The second and third sentences should be given if requested and relevant based on the evidence. (See Health & Saf. Code, § 11018 [defining marijuana].)
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].)
Elements. Health & Saf. Code, § 11361(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].
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 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145, Narcotics and Alcohol Offenses, § 145.01[a], [b], [g], [h], [a] (Matthew Bender).
(New January 2006)