Selling or giving drugs to a minor in California is a felony. An adult who sells, furnishes, administers, or gives a listed drug such as heroin, cocaine or fentanyl to someone under 18 faces three, six, or nine years in state prison under Health and Safety Code 11353(c), and the court usually cannot grant probation even for a first offense.
What exactly does Health and Safety Code 11353 prohibit?
Health and Safety Code 11353 covers three different ways an adult can be involved with a minor and certain drugs, and each is its own crime under the same statute.
"Every person 18 years of age or over, (a) who in any voluntary manner solicits, induces, encourages, or intimidates any minor with the intent that the minor shall violate any provision of this chapter or Section 11550 with respect to either (1) a controlled substance which is specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, (b) who hires, employs, or uses a minor to unlawfully transport, carry, sell, give away, prepare for sale, or peddle any such controlled substance, or (c) who unlawfully sells, furnishes, administers, gives, or offers to sell, furnish, administer, or give, any such controlled substance to a minor, shall be punished by imprisonment in the state prison for a period of three, six, or nine years." (Health and Safety Code section 11353)
Subsection (a) covers persuading a minor to violate the drug laws on the minor's own account. Subsection (b) covers hiring or using a minor as the one who transports, carries, sells, or peddles the drug for the adult. This page covers subsection (c): an adult directly selling, furnishing, administering, or giving the drug to a minor, where the minor is the recipient rather than the seller.
What must the prosecution prove under CALCRIM No. 2380?
CALCRIM No. 2380, the jury instruction for this charge, lists the elements the prosecution must prove under subsection (c), including the identity of the controlled substance.
"To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant [unlawfully] (sold/furnished/administered/gave away) a controlled substance to
; 2. The defendant knew of the presence of the controlled substance; 3. The defendant knew of the substance's nature or character as a controlled substance; 4. At that time, the defendant was 18 years of age or older; 5. At that time, was under 18 years of age." (CALCRIM No. 2380)
A sixth element identifies the controlled substance, or its analog, and the instruction adds an optional usable-amount element for the cases its bench notes describe. It also states that a person does not have to personally hold or touch the drug; it is enough if the person had control over it, or the right to control it, directly or through someone else. The prosecution does not need to prove the defendant knew exactly which controlled substance was involved, only that the defendant knew it was a controlled substance.
What are the penalties for selling drugs to a minor?
Health and Safety Code 11353(c) carries 3, 6, or 9 years in state prison, with a possible 1 to 3 year add-on and two related statutes covering similar conduct.
Caption: state prison terms for selling or giving drugs to a minor, by statute.
| Statute | Conduct | Penalty |
|---|---|---|
| 11353(c) | Adult sells, furnishes, administers, or gives an 11350-type or Schedule III, IV, or V narcotic drug to a minor | 3, 6, or 9 years in state prison |
| 11353.1 | Added term if the minor is at least 4 years younger than the defendant | 1, 2, or 3 years, added and served separately |
| 11354 | Under-18 defendant does the same acts listed in 11353 | State prison; Penal Code 18 sets 16 months, 2 or 3 years |
| 11380(a) | Adult does the parallel acts with a different drug category (methamphetamine, PCP, LSD, and other listed non-narcotic Schedule III, IV, or V drugs) | 3, 6, or 9 years in state prison |
Health and Safety Code 11380(a) uses the same sale-to-a-minor structure as 11353(c), but for a different list of drugs:
"Every person 18 years of age or over who violates any provision of this chapter involving controlled substances which are (1) classified in Schedule III, IV, or V and which are not narcotic drugs or (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), and (20) of subdivision (d), specified in paragraph (11) of subdivision (c) of Section 11056, specified in paragraph (2) or (3) or subdivision (f) of Section 11054, or specified in subdivision (d), (e), or (f) of Section 11055, by the use of a minor as agent, who solicits, induces, encourages, or intimidates any minor with the intent that the minor shall violate any provision of this article involving those controlled substances or who unlawfully furnishes, offers to furnish, or attempts to furnish those controlled substances to a minor shall be punished by imprisonment in the state prison for a period of three, six, or nine years." (Health and Safety Code section 11380(a))
A separate statute, Health and Safety Code 11354, covers the reverse situation, where the person doing the soliciting, using, or furnishing is themselves under 18:
"Every person under the age of 18 years who in any voluntary manner solicits, induces, encourages, or intimidates any minor with the intent that the minor shall violate any provision of this chapter or Section 11550, who hires, employs, or uses a minor to unlawfully transport, carry, sell, give away, prepare for sale, or peddle ... any such controlled substance to a minor shall be punished by imprisonment in the state prison." (Health and Safety Code section 11354(a))
Is there an extra penalty if the minor is much younger than the defendant?
Yes, when the minor was at least four years younger, a conviction under 11353 or 11380 carries an added one, two, or three years unless the court strikes it.
"If the offense involved a minor who is at least four years younger than the defendant, the defendant shall, as a full and separately served enhancement to any other enhancement provided in this subdivision, be punished by imprisonment in the state prison for one, two, or three years, at the discretion of the court." (Health and Safety Code section 11353.1(a)(3))
This added term must be charged in the accusatory pleading and then either admitted by the defendant or found true by the judge or jury; the court can strike it for mitigating circumstances, stating its reasons on the record (Health and Safety Code section 11353.1(b), (d)). Subdivisions (a)(1) and (a)(2) of the same section add terms when a heroin or cocaine offense happens at a church, synagogue, playground, youth center, day care facility or public pool while it is open, or within 1,000 feet of a school during school hours or while minors use it; see the firm's drug-free school zone page for school-zone enhancements.
Can you get probation or diversion?
Probation is barred for most first-time convictions of selling one of the covered drugs to a minor, and this charge does not qualify for the standard pretrial drug diversion program.
"A person who was 18 years of age or older at the time of the commission of the offense and is convicted for the first time of selling, furnishing, administering, or giving a controlled substance that is ... to a minor or inducing a minor to use the controlled substance in violation of law shall not, except as provided in subdivision (e), be granted probation by the trial court or have the execution of the sentence suspended by the court." (Health and Safety Code section 11370(b))
The same statute allows probation only "in an unusual case where the interests of justice would best be served," with the court required to state its reasons on the record (Health and Safety Code section 11370(e)). Separately, Penal Code 1000 pretrial diversion applies only to a specific list of personal-use offenses, such as simple possession under Health and Safety Code 11350 or 11377; 11353 is not on that list, so this charge cannot be diverted that way.
What should you do right away if you are charged under 11353(c)?
Get the police report or complaint and confirm the exact subsection charged, since 11353(a), (b), and (c) are different crimes with different elements.
Preserve any messages, call records, or other evidence without altering or deleting it. Do not discuss the allegation with the minor or any other witness. Bring the paperwork, the next court date, and what you know about the alleged drug and the ages involved to a consultation.
What defenses come up in an 11353(c) case?
A defense in this type of case generally focuses on whether a sale or giving happened, whether the defendant knew the substance was controlled, and the ages involved.
A mistaken belief that the recipient was 18 or older is not a defense to this charge.
"The specific intent for the crime of selling cocaine to a minor is the intent to sell cocaine, not the intent to sell it to a minor. ... It follows that ignorance as to the age of the offeree neither disproves criminal intent nor negates an evil design on the part of the offerer. It therefore does not give rise to a 'mistake of fact' defense to the intent element of the crime." (CALCRIM No. 2380, Related Issues, quoting People v. Williams (1991) 233 Cal.App.3d 407, 410 to 411)
Other case-specific questions a lawyer will examine include whether the substance was correctly identified and tested, whether the defendant actually had control over the drug or only appeared to, and whether the minor's age on the relevant date is accurately established. Which defenses apply depends on the specific facts of a case.
How does this charge relate to other drug offenses involving minors?
Three related statutes cover a different combination of adult, minor, and drug: using a minor to sell drugs, selling a fake drug, and selling to an adult.
Using a minor to sell, carry, or deliver drugs, rather than selling or giving a drug directly to a minor, is a different crime under Health and Safety Code 11353(b) and 11380. See the firm's using a minor to sell drugs page for that scenario.
Offering or agreeing to sell a real drug but delivering something else is a separate crime under Health and Safety Code 11355 or 11382 and does not require a minor at all. See the firm's selling fake drugs page for that question.
Selling or giving a controlled substance to an adult, without the minor element, falls under the general sale statutes. See the firm's sale of a controlled substance page, which also discusses the 11353.1 and 11380.1 enhancements.
Frequently asked questions
Does it matter whether the minor is my own child or a relative?
No. Health and Safety Code 11353 does not require any particular relationship between the adult and the minor; it applies the same way regardless of who the minor is.
Does the prosecution have to prove I knew the person's exact age?
No. CALCRIM No. 2380 requires proof that the defendant was 18 or older and the recipient was under 18, but a mistaken belief about the recipient's age is not a defense.
Can I get probation for a first 11353(c) conviction?
Generally no. Health and Safety Code 11370(b) bars probation for a first-time conviction of this kind, except in an unusual case where the court states its reasons on the record.
Does Penal Code 1000 drug diversion apply to this charge?
No. Penal Code 1000 covers a specific list of personal-use offenses, such as simple possession; selling or giving a drug to a minor under 11353 is not on that list.
Is there a different law if the person who did the selling was under 18?
Yes. Health and Safety Code 11354 covers the same acts when the person who solicited, hired, or furnished the drug was themselves under 18, and states that it does not affect juvenile court jurisdiction.
Is this the same charge as using a minor to sell drugs for someone else?
No. Using a minor as the seller or courier is a different crime under 11353(b) or 11380; this page covers an adult selling or giving the drug directly to a minor under 11353(c).
Talk to a lawyer
The Law Offices of David S. Chesley offers a free consultation and is available 24/7 to discuss a drug charge involving a minor, with payment plans and Se habla español. Call (800) 755-5174 or request a free consultation online.