SERIES 1800 THEFT AND EXTORTION
F 1807 Theft From Elder Or Dependent Adult (PC 368(d), (e))
TABLE OF CONTENTS
F 1807.1 Titles And Identification Of Parties
F 1807.1 Inst 1 Theft From Elder Or Dependent Adult—Title
F 1807.1 Inst 2 Identification Of Prosecution And Defendant
F 1807.2 Theft From Elder Or Dependent Adult—Tailoring To Facts: Persons, Places, Things And Theories
F 1807.2 Inst 1 Separate Enumeration Of Combined Elements; Tailoring To Facts
F 1807.3 Theft From Elder Or Dependent Adult—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 1807.4 Theft From Elder Or Dependent Adult—Burden Of Proof Issues
F 1807.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1807.5 Theft From Elder Or Dependent Adult—Elements And Definitions
F 1807.5 Inst 1 (a & b) Reasonably Should Have Known—Objective Standard
F 1807.6 Theft From Elder Or Dependent Adult—Defense Theories [Reserved]
F 1807.7 Theft From Elder Or Dependent Adult—Preliminary Fact Issues [Reserved]
F 1807.8 Theft From Elder Or Dependent Adult—Unanimity/Duplicity/Multiplicity [Reserved]
F 1807.9 Theft From Elder Or Dependent Adult—Lesser Offense Issues [Reserved]
F 1807 Notes
F 1807 Note 1 Theft From Elder Or Dependent Adult—CALCRIM Cross-References And Research Notes
F 1807 Note 2 Embezzlement From Elderly Person (PC 368(c))
Return to Series 1800 Table of Contents.
F 1807.1 Titles And Identification Of Parties
F 1807.1 Inst 1 Theft From Elder Or Dependent Adult—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1807.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 1807.2Theft From Elder Or Dependent Adult—Tailoring To Facts: Persons, Places, Things And Theories
F 1807.2 Inst 1 Separate Enumeration Of Combined Elements; Tailoring To Facts
*Modify CC 1807, Elements, as follows [added language is underlined; deleted language is stricken]:
1. The defendant committed (theft[,]/ embezzlement[,]/forgery[,]/ fraud[,]/ [or] identity theft);
2. To prove _______________ <e.g., theft, etc.>, the prosecution must prove all of the following beyond a reasonable doubt:
[Insert elements of alleged crime.]
2 3. The (property taken/ [or] personal identifying information used) _______________ <property taken or identification used> was (owned by/that of) (an elder/a dependent adult) _______________ <name of alleged victim>;
4. _______________ <name of alleged victim> [was at least 65 years old] [was between 18 and 64 years old and has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights] [was an adult who has physical or developmental disabilities or whose physical or mental abilities have decreased because of age] [was someone between 18 and 64 years old who is an inpatient in a [psychiatric] health facility [or chemical dependency recovery hospital/ or <insert relevant type of health facility from Health & Safety Code, §1250>] that provides 24-hour inpatient care];
3 5. The property, goods, or services obtained was worth (more than $400/$400 or less);
AND
<Alternative 4A—defendant not caretaker>
[4 6. The defendant knew or reasonably should have known that the (owner of the property/person to whom the identifying information belonged) was (an elder/a dependent adult).]
[OR]
<Alternative 4B—defendant caretaker>
[4 6. The defendant was a caretaker of the (elder/dependent adult).]
To decide whether the defendant committed (theft[,]/embezzlement[,]/ forgery[,]/ fraud[,]/ [or] identity theft), please refer to the separate instructions that I (will give/have given) you on (that/those) crime[s].
Points and Authorities
Tailoring To Facts—See FORECITE F 400.2 Inst 1.
Separate Enumeration—See FORECITE F 3500.2 Inst 1.
Incorporating Elements Of Predicate Crime—See FORECITE F 402.5 Inst 6.
F 1807.3 Theft From Elder Or Dependent Adult—Language That Is Argumentative, Confusing, Etc.[Reserved]
F 1807.4 Theft From Elder Or Dependent Adult—Burden Of Proof Issues
F 1807.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1807.5 Theft From Elder Or Dependent Adult—Elements And Definitions
F 1807.5 Inst 1 (a & b) Reasonably Should Have Known—Objective Standard
*Add to CC 1807, Element 4, as follows:
Alternative a:
*Add to CC1807, Element 4 [CC 505/851 Format]:
When [deciding, if you can,] [evaluating] whether the defendant reasonably should have known that the (owner of the property/person to whom the identifying information belonged) was (an elder/a dependent adult), consider all the circumstances as they were known by and appeared to the defendant. That is, consider what conduct would have appeared to be necessary to a reasonable person in the [same situation as the defendant] [defendant’s situation] [defendant’s circumstances] with the same knowledge as the defendant.
Alternative b:
When [deciding, if you can,] [evaluating] whether a reasonable person in the defendant’s situation would have known that the (owner of the property/person to whom the identifying information belonged) was (an elder/a dependent adult), consider all the circumstances as they were known to and appeared to the defendant. That is, consider what a reasonable person in [the defendant’s situation] [the same situation] would have known.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Known To “And” Appeared To The Defendant—CALCRIM 505 uses “and” while CALCRIM 851 uses “or.” Because the jurors must consider all the circumstances as they appeared to the person being evaluated (see People v. Humphrey (1996) 13 C4th 1073, 1087, “and” is correct.[See also FORECITE F 820.5 Inst 3.]
Situation Vs. Position Vs. Circumstances—See FORECITE F 820.5 Inst 3.
Same Vs. Similar—See FORECITE F 820.5 Inst 3.
“Would Have Appeared”—The change in tense is necessary to keep sentence 2 from CALCRIM 505 consistent with sentence 1.
Delete “Established By The Evidence”—See FORECITE F 402.5 Inst 1.
“If You Can”—See FORECITE F 100.7 Inst 1.
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization—To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1807.6 Theft From Elder Or Dependent Adult—Defense Theories [Reserved]
F 1807.7 Theft From Elder Or Dependent Adult—Preliminary Fact Issues[Reserved]
F 1807.8 Theft From Elder Or Dependent Adult—Unanimity/Duplicity/Multiplicity[Reserved]
F 1807.9 Theft From Elder Or Dependent Adult—Lesser Offense Issues [Reserved]
F 1807 NOTES
F 1807 Note 1 Theft From Elder Or Dependent Adult—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
See FORECITE F 1800 Notes
CALCRIM 1800 [Theft by Larceny]
CALCRIM 1801 [Theft: Degrees]
CALCRIM 1802 [Theft: As Part of Overall Plan]
CALCRIM 1803 [Theft: By Employee or Agent]
CALCRIM 1804 [Theft by False Pretense]
CALCRIM 1805 [Theft by Trick]
CALCRIM 1806 [Theft by Embezzlement]
Research Notes:
See CLARAWEB Forum, Theft And Extortion—Series 1800.
F 1807 Note 2 Embezzlement From Elderly Person (PC 368(c))
In a prosecution for embezzlement against an elderly person, the mental competency of the elderly person may be at issue. In such cases, the jury must be instructed upon the proper legal standard to use in determining mental competency. PC 1321 states that the rules for determining the competency of witnesses in civil actions are applicable also to criminal actions. Thus, the BAJI instructions may be tailored for use in such a case. Applicable BAJI instructions include BAJI 12.02, BAJI 12.07 and BAJI 12.08.
CALJIC NOTE: See FORECITE F 18.13 n2.
