Yes. For an adult, using a minor to transport, carry, sell, give away, prepare for sale, or peddle drugs is its own felony in California, punished by three, six, or nine years in state prison for most drugs and three, five, or seven years for cannabis. For many drugs, the court can add one to three more years if the minor is at least four years younger than you.

Which statute applies depends on the drug

Three parallel statutes cover this conduct:

  • Heroin, cocaine, cocaine base, other opiates, and certain other listed drugs: Health and Safety Code section 11353(b) applies to anyone 18 or older who “hires, employs, or uses a minor to unlawfully transport, carry, sell, give away, prepare for sale, or peddle” the controlled substances that section lists, including narcotic drugs in Schedules III, IV, and V. The punishment is three, six, or nine years in state prison.
  • Methamphetamine, PCP, LSD, certain other listed drugs, and Schedule III, IV, or V drugs that are not narcotics: Health and Safety Code section 11380(a) applies to an adult who violates the drug laws involving those substances “by the use of a minor as agent,” with the same three, six, or nine year range.
  • Cannabis: Health and Safety Code section 11361(a) applies to an adult who hires, employs, or uses a minor in unlawfully transporting, carrying, selling, giving away, preparing for sale, or peddling cannabis or a cannabis product, with a different range: three, five, or seven years in state prison.

Heroin, cocaine base, and LSD are listed in Health and Safety Code section 11054, and cocaine, methamphetamine, and PCP in section 11055; the cross-references in sections 11353 and 11380 decide which statute a particular drug falls under. None of the three statutes requires any relationship to the minor: your own child, a relative, or someone else’s teenager can all qualify. If the person accused was under 18, a different section, Health and Safety Code section 11354, covers using a minor for the drugs listed in section 11353, and it states that it is not intended to affect the jurisdiction of the juvenile court.

The added time when the minor is much younger

After a conviction under section 11353 or 11380, the court can add one, two, or three years in state prison, served separately, if “the offense involved a minor who is at least four years younger than the defendant” (Health and Safety Code section 11353.1(a)(3); section 11380.1(a)(3)). That added time requires the prosecution to plead it and then either your admission or a finding that it is true, and the court may strike it for mitigating circumstances, stating its reasons on the record (11353.1(b), (d); 11380.1(b), (d)). The same sections also carry separate enhancements for offenses at or near schools and certain other places, such as playgrounds and youth centers, covered on the drug-free school zone page.

What the prosecution has to prove

For section 11353, CALCRIM No. 2382 lists the elements: you hired, employed, or used the minor; the minor was hired, employed, or used to transport, carry, sell, give away, prepare for sale, or peddle a controlled substance; the substance was the one alleged; you were 18 or older and the minor was under 18 at that time; and you knew of the substance’s nature or character as a controlled substance. For section 11380(a), CALCRIM No. 2383 uses parallel elements and requires that you used the minor as an agent, meaning a person authorized to act for you in dealings with other people. Under both instructions, the prosecution does not have to prove you knew which specific controlled substance was involved, only that you were aware it was a controlled substance.

Whether the time adds up

Using a minor is a separate crime from the sale or transportation itself. But when one act is punishable under more than one statute, Penal Code section 654(a) allows it to be punished under only one of them, so the actual exposure depends on how the charges line up with what happened.

What to pin down early

  • Exactly which controlled substance is alleged, since that decides the statute, the range, and whether the age-gap enhancement can apply.
  • What the minor was actually asked or allowed to do, and whether it fits the acts the statute lists.
  • Both ages on the date in question: whether you were 18 or older, whether the minor was under 18, and whether the gap was at least four years.
  • What you knew about the substance’s nature as a controlled substance.

If you are facing a charge like this, the defense team at the Law Offices of David S. Chesley can identify the exact statute charged and examine the facts behind it. Call (800) 755-5174 to talk about your case.