Criminal Law

1807. Theft From Elder or Dependent Adult

The defendant is charged [in Count ______] with theft of property from (an elder/a dependent adult).

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant committed (theft[,]/ embezzlement[,]/ forgery[,]/ fraud[,]/ [or] identity theft);

2. The (property taken/ [or] personal identifying information used) was (owned by/that of) (an elder/a dependent adult);

3. The property, goods, or services obtained was worth (more than $400/$400 or less);


<Alternative 4A—defendant not caretaker>

[4. 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).]


<Alternative 4B—defendant caretaker>

[4. 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].

[An elder is someone who is at least 65 years old.]

[A dependent adult is someone who is 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.] [This definition includes an adult who has physical or developmental disabilities or whose physical or mental abilities have decreased because of age.] [A dependent adult is also 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.]

[A caretaker is someone who has the care, custody, or control of (a/an) (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.]

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.

In element 3, if the defendant is charged with taking property valued at more than $400, give the phrase "more than $400." (See Pen. Code, § 368(d), (e).) Otherwise, give the phrase "$400 or less."

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].)


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.

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, § 169.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes Against Property, § 143.01[1], [4][h] (Matthew Bender).

Lesser Included Offenses

Attempted Theft From Elder or Dependent Adult. Pen. Code, §§ 664, 368(d), (e).

Theft. Pen. Code, § 484.

(New January 2006)