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HomeMy WebLinkAboutAgenda Report - June 15, 1994 (47)OP �r CITY OF LODI - COUNCIL COMMUNICATION AGENDA TITLE: Report by the East Side Improvement Committee MEETING DATE: June 15. 1994 PREPARED BY: City Clerk RECOMMENDED ACTION: None required. BACKGROUND INFORMATION: FUNDING: JMP Attachment None required. The East Side Improvement Committee has requested to make a report to the Lodi City Council. Colleen Dixon and Harry Marzolf will be present to make this report. fifer M. n I y Clerk APPROVED _ �, THOMAS A PETERSON •ecrUea pope, City Manager 00 cc.1 RECEIVED flay 18, 1994 ,HAY 20 At' 3* b9 Jenni/ea Peaain City Cleak/City of Lodi 221. W. mine Staeet Lodi, CA 95240 Dean Jennijeea, The Ea4tbide Impaovement Committee aepaehented 4'y myaett and 11a44y Ma4zh011 would Eike to le .included in the Council Meeting undea Committee Rep04th /oa the June 1ht meeting. We would like to paehent the concept o/ aa-en/oacing the [74ug Faee Zone laWA in the City o/ Lodi. We hope to get enough i.nteaeet o/ the Council to tning it !Lack to an Agenda item /oa action at a /Utuze meeting. IAC you need 4 4thea inloamation, pleaee contact me at (209) 339-9953 duaing the day. Thank Jou /oa youa attention to thi.� mattez. Sinceaely, ! n Colleen Dixon Ca4t4idc Impaovement Committee Chaia/NeighQoahood Watch MAY •CA&FORNIA HEALTH and SAFEIN CODE Sections 11353, 11353.1, 353.5, 11353.6, 11353.7, 11380, 11111 referencing enhanced penalities for drug dealing in and around schools, parks, youth centers, etc. Common term: "Drug Free Zones" § 11353. Adult inducing minor to violate provisions; use or employment of minors; punishment 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), (c). or (b) of Section 11055. 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 unlaw. fully 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. (Added by Stats.1972, c. 1407, p. 3013. § 3. Atttended by Stats.1973, c. 1078, p. 2174. § 5, cff. Oct. 1. 1973; Stats.1976, c. 1139, p. 5080, § 68, operative July 1. 1977; Slam 1983. c. 790. § 6. Slats. 1984. c. 1635. § 53; Slats. 1985. c. 1377. § 1; Slats. 1986. c. 1035. § 1; Stats.1986, c. 1044, § 6; Stats.1487, c. 970. § 4; Stats.1900, c. 1664 (A.B. 2645). 4 1.5.) Historical and Statutory Notes I he 1471 arncndownt dcsirriatcd wlxl%. (a) %ion (d) ul %ct limn 113154. us %pcsihLA in sulssh. 10 (c) and conditions (1) and (2) of subd. (a); vision (b) or (c) n( section 11055, or"; substi- insettcd in subd. (aH1) the words "specified in tuted. at the beginning or subd. (a)(2), the suhdivision (b) or (c) rrf section 11504, speci• words "any controlled substance classified in fied in paragraph 01), (12), or (17), of sub clivi• Schedule Ill. IV, or V which is a narcotic drug" 421 § 11353 UNIFORM CONTROLLED SUBSTANCES Div. 10 for the words classified in Schedule 1 or 11, release upon completion of sentence or on other than marijuana' substituted in subd. parole or any other basis until he has been (a)(2). in two instances, the words 'any such imprisoned for a period of not less than 13 controlled substance for the words 'any cora years in the state prison. trolled substance classified in Schedule I or 11": "(d) Any previr.us cr.nvtati..n ..f any of ibe substituted in suhds. (b) and (c), the wdnods following offenses, w of an offense under the "any offense described in subdivision (dr for laws of another state or of the United States the words "any felonry described in this dM. which. if committed in this state, would have sion or of any offense under the laws of any been punishable as such an offense, shall be other state or the United States which, if sorts charged pursuant to subdivi%ion .bl •:r (c) ..f mitted in this state would have been punisha• this section: ble of a felony offense described in this divi- sion : and added subd. (d). '(1) Any felonv nffcn%e dr%cribet: °.. 44-t 10.01 Following the 1977 amrnJrncm, the section 11378, 11379. or IIM. provided: "(2) Any felony offense described in this di - "(a) Every person I8 ars of a or Duet vision involving a controlled substance speci. fied in subdivision (b) or (c) of Section 11054, who in any voluntary manner solicits, induces, specified in paragraph (10), (11), (12L or (t') t encourages, or intimidates any minor with the of subdivision (d) of Section 11054, or s ci. s intent that the minor shall knowingly violate fled in subdivision (b) or (c) of Section 1,053. any provision of this chapter or Section 1ISS0 with respect to (1) a controlled substance13) Any felony offense described in this di• which is specified in subdivision (b) of (c) of vision involving a narcotic drug classified in Section 11054, specified in paragraph (I1). Schedule Ill. IV. or V.- (12). or (17) of subdivision (d) of Section Resentencing for violations between March 11054, or specified in subdivision (b) or (c) of 7. 1973, and October 1, 073, see Historical Section 11055 or. (2) any controlled substance Note under § 11350. classified in Schedule III, IV, or V which is a The I976 amendment deleted those proO. narcotic drug, who hires, employs, or uses a Bions relating to punishment following -state minor to knowingly and unlawfully transport, prison" and substituted the words "for a peri.wl carry. sell. give away, Prepare for sale. or pod - oaf three, fr.ur, or five years", and % h.1cd subd. dle any such controlled substance• or who un- (b) lu (d) lawfully sells, furnishes, administers, gives, or to sell, furnish, administer, or give, any me 198) amendment rcytxd subdivision ci- such controlled substance to a minor shall be tations to reflect the addition of subd. (r) of ' punished by imprisonment in the state prison S t loss. for a period of 10 years to life and shall not be The 1984 amendment substituted "paragraph eligible for release upon completion of scn. (14). (I5), or (20)" for "paragraph (11). (12). far tense or on parole or any other basis until he (17)": and made a nonsub%tanttvc punctu rtiun has been imprisoned for a period of not less change• than five years in the state prison. The 1985 amendment deleted "knowingly" "(b) If such person has been previously con. from "with the intent that the minor shall victedonce of any offense dmrihcdinsubdivi. knowingly vt..law" and "knowingly and•• Iro.tt sion (d), the previous conviction shall be "who hires, employs. or uses a minor to know - charged in the indictment or information and, ingly and unlawfully transport". if found to be true by the jury upon a jury trial The (986 amendment by c. 1044. 1 6, invert. or by the court upon a court trial or if admit- ed a reference Nr suhd (f) of 4 110%4 rclating ted by the person, he shall be imprisoned in to et.ca.nc' and tncrcawd the punishment the state prison for a period of 10 years to life from 3. 4, or 5 veers to 3, a, or 7 years. and shall not be eligible for release upon com- pletion of sentence or on parole or any other Amendment of this section by 4 6.5 of Stats. i basis until he has been imprisoned for a period 1086, e. 1044, failed to become nperati%e under the provistom of § 16 of that Am of not less than 10 years in the state prison. 10!t such person has been previously tom Effect of amendment of section by two or more acts at the same sesan.n of the Icgisla I victed two or more times of any offense de• scribed in subdivision (d), the previous convic. lure, sec C,ovcrnment C -.dc 1, 14605. tions shall be charged in the indictment or The 1987 amendment substituted "(b). (c). or information and, if found to be true by the jury (g) of Section 11055" for ••(b) or (c) of Section upon a jury trial or by the court upon a court 11055". trial or if admitted by the person, he shall be The IQ90 arncndmrnt mcreawd the term of imprisoned in the state prison for a period of imprisonment to three, six or nine years from 13 years to life and shall not be eligible for three. five or seven years. 422 NARCOTICS—OFFENSES Ch. b soon of that sctiitttn. the prior (clom cotit"cttt+n may be pleaded. 3 11p.Atty.Gcn. 269 (1944). 18. Felson}- murder rule Death resulting from commission of a felon such as selling or administering of narcotics Its A nnn+n• ton%liltMes rmnak-r ttf tltc wrttnc) .k•- g+ar. It+q+k• v. Ptti+ttksleo (19534) JIM 1'.2J 763. 51 C.2d 142. 19. Judgment and sentence Rclus;d u+ grant new trial, which was st+urill on gr..und of ncuh discm-cred evidence, on gomend Own tt•slimonv sof wisokea, wM+ was tua avail:J+h• ;it total Ina MIM+ was Itt6'Nnl ;is Inar Ing ton nudit+n lt+r two► trial and whit related that he was present at sale of rwrcaics but that dcfcndam did not given or sell such narmics its undertrntr 4--cnt. was intndiblc and that Arc;+s w tJ aibn-%, tt.+itt+ing Iaivikt-c aEai++%t sclGinc-riminmiun and skreby being unable to it-stify fully concerning meeting a different rc• sult as a new trial wa% not reavnnably prnba• Mc, ua% wd altov -.1 .hitwhom; Lott that w-ttttrs% appeared and trsldtvJ to a 111161cd c•s- tent did not conslnuir a waiver of Ins privilege. § 11353.1 People v. Hernandez (1971) 96 Cal.Rptr. 854, 19 C.A.3d 411. Acquittal on charge of furnishing, adminis- tering and giving a minor a preparation of heroin was not inconsistent with verdict of guilty on charge of using such minor for pur- strove of trangw+rling herrtin. Penpte v. De Pau- la 11954) 276 P.2J etc). 43 C.2J 643. Imposition of sentences, after conviction of furnishing minor with a narcotic on four cepa• rate counm to four consecutive terms of im- p+iv+nownt of five yeah each as to one dcfen. dant, and to two consecutive terms of impris. t+mnent of five years with two concurrent Icnn% of a like proud as u+ another dclendant. was within coun's discretion an8 did not con. asottne cruel or inhuman punishment in consti. tutional sense. People v. Tipton (1954) 268 I'.2d 106, 124 C.A.2d 213. 20. P -view On. --cal from conviction for sale of heroin - tn a .nr. croon could not rcurigh evidence .u►d ...aw +nictcows:% conlrary to those drawn by the jury. Pcupic v. Candalana (1954) 264 P. ?d 71. 121 C.A.2d 686. § 11353.1. Enhancement of sentence imposed under § 11353 (a) Notwithstandingany other provision of law. any person 18 years of age or t+t'et whit i% cullvictcd sol is violation of Scction 11353. in addition to the punishment imposed for that conviction. shall receive an additional punish- mcnt as follows: (1) If the offen%c involved heroin, cocaine, cocaine base, or any analog of them: substances and occurred upon the grounds of, or within, a church or synagogue, a playground, a public or private youth center. or a public swimming pool. during hours in which the facility is open for business. classes, or school -related programs, or at any time when minors are using the facility. the defendant shall. as a full and separately served enhancement to any other enhancement provided in paragraph (3). be punished by imprison- ment in the state prison for one vear. (2) if the offense involved heroin, cocaine, cocaine base, or any atlalog of throe %ubmances and occurred upon, or within 1.000 feet of, the grounds of any public or private elementary, vocational. junior high. or high school, during hour% that the school is open for classes or school related programs, or at any time when minors are using the facility where the offense occurs, the defendant shall, as a full and separately served enhancement to any other cnhanccmcnt prnvidcd in paragraph (3), be punished by imprisonment in the %laic prix+tt fur two year!,. (3) 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 enhance- rncnt to any other enhancement provided in this subdivision. be punished by 427 § 11353.1 UNiFORM CONTROLLED SUBSTANCES Div. 10 imprisonment in the state prison for one. two. or three years. at the discretion of the court. (b) The additional punishment provided in this section shall not be im- posed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found Ito be true by the trier of (ae.t. (c) The additional punishment provided in this section shall be in addition to any other punishment provided by law and shall not be limited by any other provision of taw. (d) Notwithstanding any other provision of law. the court may strike the additional punishment provided for in this scctinn if it determine% that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment. (e) As used in this section the following definitions shall appy. (1) "Playground" means any park or recreational area specificallydesigned to be used by children which has play equipment installed, including public grounds designed for athletic activities such as baseball. football, soccer, or basketball, or any similar facility located on public or private school grounds, or on city, county, or state parks. (2) "Youth center" means any public or private facility that is primarily used to host recreational or social activities for minors. including, but not limited to, private youth membership organizations or clubs, social service teenage club facilities, video arcades, or similar amusement park faciiities. (3) "Video arcade" means any premises where 10 or more video game machines or devices are operated. and where minors are legally permitted to conduct business. (4) "Video game machine" means any mechanical amusement device. which is characterized by the use of a cathode ray tube display and which. upon the insertion of a coin. slug, or token in any slot or receptacle attached to, or connected to. the machine. may be operated for use as a game. contest. or amusement. (5) "Within 1.000 feet of the grounds of any public or private elementary. vocational. junior high, or high school" means any public arca or business establishment where minors are legally permitted to conduct business which is located within i.000 feet of any public or private elementary, vocation:a., junior high, or high school. (f) This section does not require either that notice be posted regarding the proscribed conduct or that the applicable 1.000•foot boundary limit be marked. (Added by Stats.1989, c. 1178. § 1. Amended by Siats.19W. c. 1663 (A.11.3744), ti 1; Stats.1990, c. 1664 (A.11.2645). § 2. Stats.1990, c. 1665 (5.11.2112). § I.) Historical and Statutory Notes The 1990 amendment by e. 1665 rewrote "Notwithstanding any other provision of law, subd. (a) which read: any person 18 years of age or over who is convicted of a violation of Section 11353 with 428 NARCOTICS—OFFENSES Ch. 6 tc\ttttt to istov 4t.nnt.91W %uWarKc \pit iltcd in subdivision M. (L). Of te), Or parUefaph 11) of subdivision (f) of Section 11054, specified in paragraph (14). (IS). or (20) of subdivision (d) of section 1105. specified in subdivision (b). (c). or (g) of Section 11055. or any controlled substance classified in Schedule 111. IV, or V which it a narcotic drug- where the defendant is al ka\t role" Wei% .older than the rttinttr, § 113535 \hall nit-tvr an additional puni\hmcnt of one, two, to three years at the court's discretion:' The 1990 amendment also added subd. (e) containing definitions and subd. (f) relating to notice and marking boundaries. Effect of amendment of season by two or more acts at the same session of the legisla- iure, we rAwernnwnt Gide 4 WAS. Library References Drugs and Narcotics 4-133. CJ.S. Drugs and Narcotics §§ 225 to 229. Infants <>20. C.J.S. Infants % 95 to 107. W ST1-AW Topa Nus. 138. 211. § 11353.5. Adult preparing for sale, selling, or giving controlled sub. stance to minor upon school grounds, public playgrounds, churches, or synagogues; comparative ages of defendant and minor Except as authorized by law, any person 18 years of age or older who unlawfully prepares for sale upon school grounds or a public playground, a church or a synagogue, or sells or gives away a controlled substance, other than a controlled substance described in Section 11353 or 11380, to a minor upon the grounds of, or within, any school. public playground. church, or synagogue providing instruction in kindergarten, or any of grades 1 to 12. inclusive, during hours in which those facilities are open for classes or school -related programs, or at any time when minors are using the facility 1A here the ulfense occurs. or upon the grounds of a public playground during the hours in which school -related programs for minors are being conducted. or at any time when minors arc using the facility where the offense occurs, shall be punished by imprisonment in the state prison for five, seven, or nine years. Application of this section shall be limited to persons at least five years older than the minor to whom he or she prepares for sale. sells, or gives away a controlled substance. (Added by Stats.1983. e. 951. § 1. Amended by Stats.1986. c. 1038. § 1; Stats.1988. e. 1266, § l: Stais.1990. c. 1663 (A.B.3744). § 2: Stais.1990. c. 1664 (A.8.2645). § 3: Stats.1990. c. 1665 (S.B.2112), § 2.) Historical and Statutory Notes Section 2 of Stats 1933, c. 951. provides: The 1990 amendment by c. 166S rewrote the -Thi\ act -.hall sK- Ln..wn and may to cited as tectinn which read: The Stluwd Safety Att til I933:" "Extepf as aulhuri.,cd by law, any person 18 The 1986 amendment substituted, in the first years of age or older who unlawfuily prepares \entente. "try tell-. or give\ away' for "-.cllt, or for sale upon school grounds or a public play gars away". and changed the imprisonment at ground, or sells or gives away a controlled the end of the section from "5. 6. or 7 years" substance to a minor under the age of 18 years for "5. 7, or 9 years-. upon the grounds of. or within. any school The MIS amendment incrca%cd the age of providing instruction in kindergarten. or any thr Dmm.r rr-t gticnt .d t r.mtr•.Ilt d \uh.l:ul.r-\ ..f grach•t t thretugh 12, inclusive, during hours from "14 years" to "18 years-. and added the to which floc elms,) is upon (err cla\xs or Iasi sentence relating to application of the sec. school -related programs, or upon the grounds tion to persons at least five years older than of a public playground during the hours in the minor recipient. w%ich school -related programs for minors are 429 1 9 0 $11353.5 UNIFORM CONTROLLED SUBSTANCES Div. to being conducted, shag be punished by imprts• Effect of amendment of section by two or onment in the state prison for five. seven, or more acts at the same session of the Icgisla• nine )ears. Application of this section shall be lure, %cc Gm-crnment Code 4 9605. limited kr permits at Icaa love warsoldcr titan the mutur to wlttnu 1k eft slw- prcpares (on vk. sells. or gives away a controlled substance.` Cross References Life sentence for person who has served two or moire prior terms few certain drug offenses involving minors. sec Penal Code § 667.75. Library References Drugs and Narcotics 4-133. CJ.S. Drugs and Narcotics §0 225 to 229. Infants 0020. C.J.S. Infants §§ 95 to 107. W ESTLAW Topic Nos. 138. 211. § 11353.6. Juvenile Drug Trafficking and Schoolyard Act of 19st addi- tional punishment (a) This section shall be known and may be cited as the Juvenile Drub Trafficking and Schoolyard Act of 1988. (b) Any person 18 years of age or over who is convicted of a violation of Section 11351.5 or of Section 11352 or 11379.6, as those sections apply to paragraph (1) of subdivision (f) of Section 11054 or a conspiracy to commit such offense, where such violation takes place upon the ground-. of, or within 1,000 feet of, a public or private cicmcniary, vocational, junior high School or high school, shall receive an additional punishment of 3, 4, or 5 years at the court's discretion. (c) Any person 18 years of age or older who is convicted of a violation pursuant to subdivision (b) which involves a minor who is at least four years younger than that person shall, as a full and separately served cnfiancemcnt to that provided in subdivision (b), be punished by imprisonment in the state prison for 3, 4, or 5 years at the court's discretion. (d) The additional terms provided in this section shall not he imposed unless the allegation is charged in the accusatory pleading and admitted oi- found to be true by the trier of fact. (e) The additional terms provided in this sc•c-tiun shall be in addition to any l other punishment provided by law and shall not be limited by any other I provision of law. (f) Notwithstanding any other provision of law. the court may strike the additional punishment for the enhancements provided in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reaxtns for striking the additional punishment. (Added by Stats.1988, e. 1248, § 1.) Library References Drugs and Narcotics 468 to 70. 133. C.J.S. Drugs and Narcotics §§ 164 to 173, Infants 6-20. 225 to 229. WESTLAW Topic Nos. 138. 211. C.J.S. Infants §§ 95 too 107. 430 M HEALTH AND SAFETY CODE Notes of Decisions L InteM Defendant's mistake about ase of preen w when he sold cocaine was net defense a charge of selling es Baine to a miner; specifir Moat for offense -M intent to telt cocaine. out latest to sell to a mwiot, and Kn6' ranee an to peeaoa's age —liber disproved iriteat nor negated evil design on part of defendant- people v. § 11353.6 Williams (App. 2 Vist.19911 28I Ca1.Rptr. ISI, 233 GL App.34 107. Specific wont for ermw of selling cocaina to a tains► is intent to seb cocaine. riot intett to sell it to a minor. People v. 71r'1lisrns (App. 2 Dist.1911) 294 Ca1.Rptr.161. 233_Cd App -3d 407. I 11353.1. Enhancement of sentence Imposed under i 11353 Historical and Stalisfiry Notes 1992 1.►gislotlon Amendment of this section by li 1 of Stats M"2. e. 823 4A.B.176SL failed to become oprmtwe eado the provisions of 1 S of that Act. 11353.5. Adult preparing for sale. selling, or giving controlled substance to minor upon school grounds, public playgrounds, churches, or synagogues: comparative pen of defen. dant and minor Historical and Statutory Notes 1»2 1,esislallon Amendment of thin •"Iran by 1 2 of Suu 1992. t 9= 4A.11.3765). failed to 1-comr operative reds► the provisions of f 6 of that Am 111353.6. Juvenile Drug Trafficking and Schoolyard Act of 1986: additional punishment (a) This section shall be known, and may be cited, as the Juvenile Drug Trafficking and Schoolyard Act of 191(8. (b) Any person 19 years of age or over who is convicted of a violation of Section 11351.5, or of Section 11352, or 11379.6. as those sections apply to paragraph (1) of subdivision (f) of Section 11051, or of Section 11351. 11352, or 11379.6. as those sections anoly to Paragraph (I1) of subdivision (c) of an T I1051., or of a conspiracy to commit ' ' • one of those offenses, where the violation takes upon the grounds of, or within 1,000 feet of, a public or private elementary, vocational, junior • ', or high school during hours_ that the school is open for classes or school -related I, or 5 years (c) Any person 18 years of age or older who is convicted of a violation pursuant to subdivision (b) which involves a minor who is at least four years younger than that person • e as a full and separately served enhancement to that provided in subdivision (b), shall be punished by imprisonment in the state prison for 3. I, or 5 years at the court's discretion. (d) The additional terms provided in this section shall not be imposed unless the allegation is charged in the accusatory pleading and admitted or found to be true by the trier of fact (e) The tddiUonal terms provided in this section shall be in addition to any other punishment provided by law and shall riot be limited by any other provision of law. (f) Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment. (Amended by Stats.1992, c. 989 (A.B.2121). i 1.) Additlons or changes Indicated by underline: deletions by asterisks • • • 25 IWA NARCOTICS— OFFENSES § 11354 Ch. 6 § 11353.7. Adult preparing for sale. sale or gift of controlled substance to minor in public parks Except as authorized by law. and except as provided otherwise in Sections 11353.1. 11353.6. and 11380.1 with respect to playgrounds situated in a public park.:nsv Peu% n 1R vcars sf ape ur older who unlawfully prepares for sale in a public park. including unit% ..1 slit: state hark system and state vehicular recreation areas. or sells or gives au -ay a controlled substance to a minor under the age of 14 years in a public park. including units of the state park system and state vchicular recreation areas. during hours in which the public park. including units of the state park system and state vehicular recreation areas. is ttpen fr►r usc. with knowledge that the person is a minor under the age of 14 years. shall be punished by imprisunnlcnt in the state prison for three. six. or nine years. (Added by Siat%.1988. (:. 1177. § 1. Amended by Stats.1990. e. 1665 (S.13.2112). § 3.) Illsturical and Statutory Notes The 1900 amendrnem inwrted "and except as 11353.6. and 11380.1 with respect to play pr..vrtird t.t6er ew in Stttutns 111%3 1. grounds situated in a public park". t.lbrary Rererences drug% and Narrnitcc ahR tat 70. 111 C 1 S. Drugs and Narcotics §6 164 to 173. lnlant+ art 22% In 220. WESTLAW 1't#1m hos. 138. 211. C 3 S. Inlanls 9§ YS to 107. RESTRICTED DANGEROUS DRUGS § 11380 Ch. 6 t;....rl (App. % tb-r.lWRtl Mn f_.d.kpn. M14. 217 Cal.App.3d 1533. rc%iew denied. § 11380. Adult using minor as agent; inducing minor to violate provl- slons; furnishing to minor. punishment (a) Every person 18 years of age or over who violates any provision of this chapter involving controlled substances which arc (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 subdivi. sion (d), 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 puni%hcd by imprisonment in the stale prison for a period of three. six. or nine years. (b) Nothing in this section applies to a registered pharmacist furnishing controlled suhstances pursuant to a prescription. (Added by Stats.1972. c. 1407, p. 3023, § 3. Amended by Stats.1973, e. 1078, p. 2186. § 25, cff. Oct. 1, 1973; Stats.1976. c. 1139, p. 5085, § 44, operative July 1, 1977; Stats.1984, c. 1635. § 70; St3ts.1985. c. 3, § 9, cff. Jan. 29. 1985; Stats.1986, c. 248, § 145: Stats.1986. c. 1035, § I. Stats -1986. c. 1044. § 23: Stats.1990. c. 1664 (A.B. 2645). § 5; Stats.1990, c. 1665 (S.B.2112), § 5.) 111storlcal and Statutory Notes As aJded in 1972. the section read: or Information and, if found to be true by the "Every person 18 years of age or over who jury upon a jury trial or by the court upon a violates ant provision of this chaptcr involving court trial or if admitted by the person. he tontrrollcd %ub%tancc% clas%ified in Schedule %hall be imprisoned in the state prison for a Ill. IV, or V by the use of a minor as agent, period of 10 years to life and shall not be ..Iso solicits. induces. encourages, or intim• eligible for release upon completion of sen- idaics any minor with the intent that the minor knee or on parole or any other basis until he shall violate any provic;on of this chapter in. has leen imprisoned for a period of not less volving controlled substances classified in than 10 years in the state prison. Schedule Ill. IV. or V. or who unlawfully fur. ~if such person has been perviously convict - noshes. offers furnish, attempts to furnish ed two or more times of any felony offense III. 1V, or V to a minor shall be punished by controlled substances classified Schedule described in this division, of a conspiracy to imprisonment in the state prison for a period commit any offense described in this division. of 10 years to life and shall not be eligible for or of any offense under the laws of any other rcica%c upon completion of sentence or on state or the United States which, if committed parole or any #other basis until he has been in this state. would have been punishable as a impr;a.ncd for a peri(ol of not le -s than five felony offense dc%cribed in this division. the yo:u% uI the %tate privin. previrnts convictions shall be charged in the -If such perwn has been previously convict• indictment or information and, if found to be ed once of any felony offense described in this true by the jury upon a jury trial or by the division, of a conspiracy to commit any of. court upon a court trial or if admitted by the fcn%c described in this division, or of any of. person, he shall be imprisoned in the state fcn.e under tlac law-. of any other %talc or the pri%on for a period of 15 years to life and stall United States which, it committed in this %laic, not he eligible fur Ielease upon completion of .would have been punishable as a felony of. sentence or on parole or any other basis until fense described in this division. the previous he has been imprisoned for a period of not less conviction shall be charged in the indictment titan 15 years in the state prison. 629 § 11380 UNIFORM CONTROLLED SUBSTANCES Div. 10 "Nothing contained in this section shall ap• 13 years to life and shall not be eligible (or piy to a registered pharmacist furnishing eon• release upon etrmp)ction of sentence ow an trolled substances classified in Schedule Ill, parole or any other basis until he has been IV. or V pursuant to a prescription" imprisoned for a period of not less than IS The 1973 amendment designated the original years in the state prison. four paragraphs as subd-. (a). (h). (c). ;level Ick '(d) Any pevvieus t onvicuun art any r4 the - it rewrote subd. (a); it substituted in subds. (b) following offenses, of a conspiracy to commit and (c) the words "offense described in subdi. such an offense. or of an offense under the vision (dr for the words -felony offense de- laws of another state or of the United States scribed in this division, of a conspiracy to which. if committed in this state. would have commit any offense described in this division. been punishable as such an offense. shall be or of any offense under the laws of any other charged pursuant to subdivision (b) or (c) of state or the United States which. if committed this section: in this state. would have been punishable as a "(1) Anv felOnv Offense described in Section felony offense described in this division; it 11351. 11352. 11353. 11354. 11358. 11359, added subd. (d); and in subd. (e) following the 11360, 11361. 11363, or 11366. words "controlled substances it deleted the words "classified in Schedule III, IV, or V" `(2) Any felony offense described in this ar• Following the 1973 amendment the section ttcie. • provided: "(e) Nothing contained in this section shall "(a) Every person •iS years of age or over apply to a registered pharmacist furnishing controlled suh.tance% pursuant to a prcatrtp- who sinlatcs any prewisis.n of this chaph•o in- tion" volving controlled substances which arc (1) classified in Schedule Ill. IV, or V and which Resentencing !or violations between March are not narcotic drugs or (2) which are spcci. 7. 1973, and Orlober 1. 1973. see ifistorical ficd in subdivision (d) of &-etion 1105-4, except Near under 6 11350. paragraphs (10). (11). (12), and (17) of such The 1976 amendment deleted the punish - subdivision. or specified in subdivision (d) of mens provi+ions following "state prison" in Section 11055. by the use of a minor as agent, subd. (a) and substituted "for a period of three, who solicits, induces, encourages, ter intim• fitter ter five vc;nti . d0vicd atxl%. (h) t.. (J); idascs any minor with the intent tliat the nunus and relettewd lutntcr subd. (e) to be subd. (b). shall violate any provision of this article in- The 1984 amendment substituted, in the first volving such controlled substances or who un- paragraph, "except paragraphs (13). (14). (15). lawfully furnishes, offers to furnish, or at. and (20) of subdivision (d)" for "except para - tempts to furnish such controlled substances to graphs (10). (11). (12), and (17) of such subdi- a minor shall be punished by imprisonment in vision."; and made nonsubstantive changes in the state prison for a period of 10 years to life wording and shall not he eligible for rci a%c upon cant pletion of sentence or on parole tit any other 7 be 1985 amcnJmtnt w. ttJ in the first until he has been imprisoned for a period and paragraph "(20). (21), and (23)" for "and of not leu than five years in the state prison. o r S (20)". and ". (e), or (f) of Section 11055, except "(b) If such person has been previously t+nt• paragraph (3) subdivi.ion (e) and subpara- graphs (A) and (B) of paragraph (2) of subdivi- victed once of any offense described in subdivi- sion (f)." for "of Section 11055."; substituted Sion (d). the previous conviction shall be charged in the indictment or information and, 'Nothing in this section applies" for 'Nothing if found to be true by rite jury upon a jury trial contained in this section shall apply" in subd. (h): and made -Wwr nonsuhstanlive thanj;v-,. or by tlxe t•uurt silliest a totes trial us if admit. ted by the person, he shall be imprisoned in The 1986 amendment b e. 1044 inserted Y the state prison for a period of 10 years to life interna) references to § 11054 relating to co - and shall not be eligible for release upon com- carne; and increased the penalty from 3. 4, or pletion of sentence or on parole or any other = years to 3. 5. or 7 years at the end of subd. basis until he has been imprisoned for a period (a)• of not less than 10 dears in the state prison. Effect of amendment of section by two or "(c) If such person has been previously con• mnre acts at the same sessinn of the lcgisla• victed two or more times of any offenw dc- iurc, str Government Cock 4 9605. 1 scribed in subdivision (d) the previous convic- The 1990 amendment by c. 1665. in subd. tions shall be charged in the indictment or (a), deleted the reference to paragraphs (21) to • information and, if found to be true by the jury (23) following the reference to paragraph (20). upon a jury trial or by the court upon a court deleted "except paragraph (3) of subdivision trial or if admitted by the person, he shall be (e) and subparagraphs (A) and (B) of para - imprisoned in the state prison for a period of graph (2) of subdivision (f)." following -Sec. 630 { I EN RESTRICTED DANGEROUS DRUGS Ch. 6 tion 11055', and substituted'Yhree, six, or nine yean' for -3. S. or 7 yeari . Under the provisions of § a of Slats. 1990. c. 1665. the 1990 amendments of this section by e. 1664 and e. 1665 uere given effect and incorporated in the form set forth in § S of e. 1665. An amendment of ibis section by 14 of $11380.1 Stats.1990. C. 1665. failed to become operative under the provisions of 18 of that Act. Derivation: Former § 11913. added by Stats. 1965. c. 2030. p. 4605. § 1. amended by Stats. 1969. c. 403. P. 937. § 3: Stats.1970 c. 1098. p. 1956. § 17. Stats.1971. c. 1748. p. 3758. § 43.6. Cross References Ctmvittiorts untkr this %ection, prohibition of probation or suspension of sentence. see Penal Code § 1203.07. Fines. increment for each separate offense, see § 11372.5. Life sentence for person who has served two or more prior terms for certain drug offenses involving minors. see Penal Code § 667.75. Marijuana of ense%. effect of prior conviction under this section, see § 11357 et seq. Persons convicted of §§ 11351. 11351.5. or 11352, sentence enhancements for prior conviction of this section. see § 11370.2. 11cyt,lc offcmcs, %cc § 11363. Library References Criminal Law e51200. C.I.S. Criminal Law § 1638. Drugs and Narctttics e-76. 133. C.I.S. thugs and Narcotics % 172. 173. 181. Infants cy20. 225 to 229. WESTLAW Topic Nix_ 110. 138. 211. CJ.S. infants §§ 95 to 107. Notes of Decisions Arrest 1 Instructions 2 1. Arrest Where mother informed narcotics investiga- tor that she overheard telephone conversation in whith Ikr tho,ghter ntatfc aplu,intrncol to meet man after school in order to be taken to someone who would furnish her with methe• drinc, investigator who observed defendant with girl had probable cause to arrest dcfen- dant for inducing and encouraging minor to violate law against possession of dangerous drugs, or for offering to furnish restricted dan- gerous drug. People v. Bevins (1970) 85 Cal. Rptr. 876. 6 C.A.3d 421. 2. Instructions In prosecution for using minor as agent to furnish ampltctam.nes and dexadrine under this section description or offense in jury in- struction using language of § 11353 prohibit- ing using minor to furnish other controlled substances was harmless error. People v. Car. bonie (1975) 121 Cal.Rpir. 831. 48 C.A.3d 679. § 11380.1. Enhancement of sentence Imposed under § 11380 (a) Notwithstanding any other provision of law. any person 18 years of age or over who is convicted of a violation of Section 11380, in addition to the punishment imposed for that conviction, shall receive an additional punish- ment as follows: (1) If the offense involved phencyclidine (PCP), methamphetamine, or any analog of these substances and occurred upon the grounds of, or within, a church or synagogue, a playground, a public cr private youth center, or a public swimming pool, during hours in which the facility is open for business, classes, or school -related programs, or at any time when minors are using the facility, the defendant shall, as a full and separately served enhancement to any other enhancement provided in paragraph (3), be punished by imprison- ment in the state prison for one year. (2) 1f the offense involved phencyclidine (PCP), methamphetamine, or any analog of these substances and occurred upon, or within 1,000 feet of, the 631 HTA § 11380.1 UNIFORM CONTROLLED SUBSTANCES Div. 10 grounds of a^v public or private elementary, vocational. junior high school, or high school. during hours that the school is open for classes or school•relat. ed programs. or at any time when minors are using the facility where the offense occurs, the defendant shall. as a full and separately served enhance- ment to any other enhancement providcd in paragraph (3). he punished by imprisonment in the state prison for two years. (3) 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 enhance- ment to any other enhancement providcd in this subdivision. be punished by imprisonment in the state prison for one. t%vo. or three years. at the discretion of the court. (b) The additional punishment provided in this section shall not be im- posed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact. (c) The additional punishment provided in this section shall be in addition to any other punishment provided by law and shall not be limited by any other provision of law. (d) Notwithstanding any other provision of law. the court may strike the i additional punishment provided for in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment. (e) The definitions contained in subdivision (e) of Section 11353.1 shall apply to this section. (f) This section does not require either that notice be posted regarding the proscribed conduct or that the applicable 1.000 -foot boundary limit be marked. (Added by Stats.1990. c. 1663 (A.B.3744). § 3: Stats.1990. c. 1664 (A.B.2645). § 6: Stats.1990. c. 1665 (S.B.2112). § 6.) Historical and Statutory Notes Section affected by two or more acts at the same session of the tegiskture. see Govern. merit Code § 9605.