Monday, February 26, 2007
C.A.: Liability for Using Minor to Transport Drugs Does Not Require Actual Possession by Child
By a MetNews Staff Writer
A statute prohibiting an adult from using a minor to transport controlled substances does not require that the minor personally carry the contraband, the Third District Court of Appeal held Friday.
In largely upholding Joseph Duarte’s convictions and sentence for his role in an interstate cocaine trafficking conspiracy, the court rejected his contention that he should not have been found guilty of violating Health & Safety Code Sec. 11353.
Sec. 11353 provides that every adult “who hires, employs or uses a minor to unlawfully transport, carry, sell, give away, prepare for sale, or peddle any such controlled substance” is subject to punishment in state prison.
In the course of his participation as a load car driver in a large-scale operation of obtaining, transporting and selling methamphetamine and cocaine, Duarte allegedly took his young son with him on a trip to Texas—ostensibly at the encouragement of one of the ring leaders—in order to divert suspicion during his return trip to California with the cocaine.
After obtaining his ex-wife’s permission to take their son on a road trip from his Riverside home, he drove with the boy to Texas and stayed in a motel room while waiting for the drug delivery.
Duarte waited for more than a week with his son but the scheduled drug delivery never occurred. At that point, his ex-wife, who wanted Duarte to bring their son back to Riverside, went to Texas, took the boy and returned home by bus.
The delivery never occurred, and Duarte eventually flew back to California.
Duarte was indicted along with 14 others in connection with the cocaine conspiracy.
A jury convicted Duarte as charged on three counts, including one for conspiring to use a minor to transport controlled substances, and he was sentenced to a total term of 26 years in state prison.
On appeal, he argued as to his son that “mere accompaniment” by a minor did not fall within the ambit of Sec. 11353, and his conviction under that statute was thus supported by insufficient evidence.
The word “uses,” Duarte argued, means that the minor “himself undertakes the transportation or other proscribed act instead of the adult.”
But the Court of Appeal, in the only published portion of its analysis, disagreed.
Writing for himself and Justice Rick Sims, Justice George Nicholson said that “under the language of the statute, defendant conspired to ‘use’ his son to transport cocaine because his son’s presence, in the estimation of defendant and his coconspirators, would have enabled defendant to avoid detection.”
“Establishing that a defendant is guilty if the minor actually transported the contraband does not establish that the defendant is not guilty if the minor did not actually transport the contraband.”
Dissenting, Justice Coleman Blease—who concurred in the majority opinion on all other points—asserted that the majority had “mislaid its grammar book” in its reading of Sec. 11353.
“To unlawfully transport” a controlled substance means to “carry” it, just as the term following “transport” says, he said, explaining:
“It does not say ‘in’ the transportation of or in the carrying of a controlled substance. Moreover, the operative terms to ‘hire, employ or use’ a minor to transport drugs patently mean to employ or use them to transport drugs.”
Based on their reversal of a sentence enhancement and a conviction on another count, the justices remanded Duarte’s case for resentencing.
The case is People v. Duarte, 07 S.O.S. 921.
Copyright 2007, Metropolitan News Company