F 9.38

F 9.38 n1 Elder/Dependent Adults: Neglect And Endangerment.

In its July 1994 pocket part, CALJIC provided instructions for elder neglect cases prosecuted under PC 368(a). However, the first two alternative theories of liability in the CALJIC instructions may be constitutionally overbroad because they are not limited to persons who have care or custody of the elder or dependent adult. (See FORECITE F 18.13.)

In People v. McKelvey (91) 230 CA3d 399, 403-04 [281 CR 359], the court recognized that the scope of the first clause of PC 368 is “uncertain.” The clause does not describe those persons liable for permitting or causing a dependent adult to suffer and, hence, it appears to include within its reach any and all persons. Such a construction would render the statute excessively broad in scope and subject to constitutional challenge. (See Walker v. Superior Court (88) 47 C3d 112, 141 [253 CR 1].)

Nevertheless, the McKelvey court did not reach the constitutional issue because the defendant was found liable under the second clause of 368 which limits liability to those “having the care or custody of any elder or dependent adult ….”

(See also, FORECITE F 9.38a and F 16.172, et seq.)

F 9.38 n2 Elder Abuse: Enhancement Limited To Crime Described In PC 368(b)(1).

See People v. Adams (2001) 93 CA4th 1192 [113 CR2d 722].

F 9.38 n3 Elder/Dependent Adults: Whether Actual Harm Or Injury Is Required.

PC 368 is patterned on the felony child abuse statute, PC 273a. The relevant passage of section 273a makes it a felony for a person to harm or endanger a child "under circumstances or conditions likely to produce great bodily harm or death…." (Emphasis added.) The California Supreme Court has recognized this derivation of PC 368 and has held that it is appropriate to review decisions interpreting PC 273a in addressing issues concerning the scope of PC 368. (People v. Heitzman (94) 9 C4th 189, 204-205.) Courts have held that there is no requirement under PC 273a that the victim actually suffer great bodily injury. (People v. Cortes (99) 71 CA4th 62, 80; see also Roman v. Superior Court (2003) 113 CA4th 27, 34-35.)

F 9.38 n4 Elder/Dependent Adults: Failure To Report Elder Abuse (WI 15600).

People v. Davis (2005) 126 CA4th 1416 construed failure to report abuse or suspected abuse of an elder (WI 15600 et seq.) to mean that a mandated reporter who has seen or has knowledge of abuse or is told by an elder that he or she has been abused, or reasonably suspects such abuse, must report it. "Reasonably suspects" means facts that could cause a reasonable person in a like position to suspect abuse, which is an objective standard. This is a strict liability crime as to the misdemeanor version of the crime as WI 15630(h) makes clear.

F 9.38a

Elder Abuse: Requirement That Defendant Have Duty To Supervise And Control

(PC 368(a))

*Add to CJ 9.38:

In order for criminal liability to arise for permitting an elder to suffer unjustifiable pain or suffering at the hands of another person(s), it must be found that:

1. The defendant stood in a special relationship with the individual inflicting the pain or suffering on the elder such that the defendant was under an existing duty to supervise and control that individual’s conduct; and

2. The defendant was criminally negligent in failing to prevent the individual from inflicting abuse on the elder.

Points and Authorities

In People v. Heitzman (94) 9 C4th 189, 197-99 [37 CR2d 236], the court held that, to avoid being unconstitutionally vague, PC 368 must be interpreted to allow criminal liability for permitting another to inflict abuse upon an elder only when the defendant and the person inflicting the abuse stand in a special relationship requiring the defendant to supervise and control the individual’s conduct.

(See also FORECITE F 9.38 n1.)

F 9.38b

Elder Abuse: “Willfully” Requires Knowledge

Of Consequences

*Modify CJ 9.38 ¶ 11 defining “willfully” to provide as follows [deleted language is between <<>>]:

The word “willfully” as used in this instruction means PURPOSEFULLY AND with knowledge of the consequences. <<“ or “purposefully>>.”

Points and Authorities

The term “willfully”, as a component of general intent, requires actual knowledge of the nature and consequences of the act committed. (See FORECITE F 1.20a and FORECITE F 3.30a.) The term “purposefully” does not alone encompass this requirement since it could be interpreted to apply to the act without regard to the consequences.

Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]

NOTES:

See FORECITE F 1.20b regarding negation of knowledge element by intoxication or other mental impairments.