Section 1807 | CALCRIM (Jury Instructions)

(elder/dependent adult), or is someone who stands in a position of trust
with (a/an) (elder/dependent adult).]
[Property includes money, labor, or real or personal property.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised February 2012, February 2013, October 2021, March
2024*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime. The court also has a sua sponte duty to instruct on the elements of the
underlying theft offense.
If the defendant is charged with taking property valued at more than $950 (see Pen.
Code, § 368(d), (e)), give element 3.
If the person charged is not alleged to be a caretaker (see Pen. Code, § 368(i)), give
alternative 4A. If the person charged stipulated to be a caretaker, give alternative
4B. If it is in dispute whether the person charged is a caretaker, give both
alternatives 4A and 4B and the bracketed paragraph defining caretaker.
Give the bracketed definition of “elder” or “dependent adult” (see Pen. Code,
§ 368(g), (h)) on request depending on the evidence in the case. Give the second
and/or third bracketed sentences of the definition of “dependent adult” if a further
definition is requested.
The definition of “property” may be given on request. (See Pen. Code, § 368(d),
(e).)
Give the final 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].)
AUTHORITY
•
Elements. Pen. Code, § 368(d), (e).
•
“Caretaker” Defined. Pen. Code, § 368(i).
•
“Dependent Adult” Defined. Pen. Code, § 368(h).
•
“Elder” Defined. Pen. Code, § 368(g).
•
24-Hour Health Facility. Health & Saf. Code, §§ 1250, 1250.2, 1250.3.
•
Felony Value Threshold Applies to Identity Theft. People v. Baratang (2020) 56
Cal.App.5th 252, 260–263 [270 Cal.Rptr.3d 280].
•
Noncaretaker Status Not an Element of Pen. Code, § 368(d). People v. Marquez
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(2023) 89 Cal.App.5th 1212, 1221–1222 [306 Cal.Rptr.3d 664].
LESSER INCLUDED OFFENSES
•
Attempted Theft From Elder or Dependent Adult. Pen. Code, §§ 664, 368(d), (e).
•
Theft. Pen. Code, § 484.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 179–184.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01[1], [4][h] (Matthew Bender).
1808–1819.
Reserved for Future Use
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