California Criminal Jury Instructions (CALCRIM) (2017)

830. Abuse of Elder or Dependent Adult Likely to Produce Great Bodily Harm or Death

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(ii) Elder or Dependent Adult
830.Abuse of Elder or Dependent Adult Likely to Produce Great
Bodily Harm or Death (Pen. Code, § 368(b)(1))
The defendant is charged [in Count ] with (elder/dependent
adult) abuse likely to produce great bodily harm or death [in violation
of Penal Code section 368(b)(1)].
To prove that the defendant is guilty of this crime, the People must
prove that:
<Alternative A—inflicted pain>
[1. The defendant willfully inflicted unjustifiable physical pain or
mental suffering on <insert name or description of
elder or dependent adult>;]
<Alternative B—caused or permitted to suffer pain>
[1. The defendant willfully caused or permitted <insert
name or description of elder or dependent adult> to suffer
unjustifiable physical pain or mental suffering;]
<Alternative C—while having custody, caused or permitted to be
injured>
[1. The defendant, while having care or custody of
<insert name or description of elder or dependent adult> willfully
caused or permitted (his/her) person or health to be injured;]
<Alternative D—while having custody, caused or permitted to be placed
in danger>
[1. The defendant, while having care or custody of
<insert name or description of elder or dependent adult> willfully
caused or permitted (him/her) to be placed in a situation where
(his/her) person or health was endangered;]
2. The defendant (inflicted suffering on <insert name
or description of elder or dependent adult>/[or] caused or
permitted <insert name of elder or dependent adult>
to (suffer/ [or] be injured/ [or] be endangered)) under
circumstances or conditions likely to produce great bodily harm
or death;
3. <insert name or description of elder or dependent
adult> (is/was) (an elder/a dependent adult)(;/.)
[AND]
4. When the defendant acted, (he/she) knew or reasonably should
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have known that <insert name or description of elder
or dependent adult> was (an elder/a dependent adult)(;/.)
<Give element 5 when giving alternative 1B and it is alleged the
defendant permitted the suffering.>
[AND]
[5. The defendant had a legal duty to supervise and control the
conduct of the person[s] who caused or inflicted unjustifiable
physical pain or mental suffering on <insert name
or description of elder or dependent adult>, but failed to supervise
or control that conduct(;/.)]
<Give element 6 when giving alternative 1B, 1C, or 1D.>
[AND
6. The defendant was criminally negligent when (he/she) caused or
permitted <insert name or description of elder or
dependent adult> to (suffer/ [or] be injured/ [or] be endangered).]
Someone commits an act willfully when he or she does it willingly or on
purpose.
Great bodily harm means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.
[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 (health facility/psychiatric health facility/ [or] chemical
dependency recovery hospital)].]
[Unjustifiable physical pain or mental suffering is pain or suffering that
is not reasonably necessary or is excessive under the circumstances.]
[A person who does not have care or custody of (an elder/a dependent
adult) may still have a legal duty to supervise and control the conduct of
a third person who can inflict abuse on the (elder/dependent adult) if the
person has a special relationship with the third person. A special
relationship is created, for example, when (1) a person takes charge of a
third person whom (he/she) knows or should know is likely to cause
bodily harm to others if not controlled, and (2) the person has the
ability to control the third person’s conduct.]
[Criminal negligence involves more than ordinary carelessness,
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inattention, or mistake in judgment. A person acts with criminal
negligence when:
1. He or she acts in a reckless way that creates a high risk of death
or great bodily harm;
AND
2. A reasonable person would have known that acting in that way
would create such a risk.
In other words, a person acts with criminal negligence when the way he
or she acts is so different from the way an ordinarily careful person
would act in the same situation that his or her act amounts to disregard
for human life or indifference to the consequences of that act.]
[(An elder/A dependent adult) does not need to actually suffer great
bodily harm. But if (an elder/a dependent adult) does suffer great bodily
harm, you may consider that fact, along with all the other evidence, in
deciding whether the defendant committed the offense.]
[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 March 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Give element 1A if it is alleged that the defendant directly inflicted unjustifiable
physical pain or mental suffering. Give element 1B if it is alleged that the
defendant caused or permitted an elder or dependent adult to suffer. If it is alleged
that the defendant had care or custody of an elder or dependent adult and that the
defendant caused or permitted the elder’s or dependent adult’s person or health to
be injured, give element 1C. Finally, give element 1D if it is alleged that the
defendant had care or custody of an elder or dependent adult and that the defendant
endangered the elder’s or dependent adult’s person or health. (See Pen. Code,
§ 368(b)(1).)
Give bracketed element 5 if it is alleged under element 1B that the defendant
permitted an elder or dependent adult to suffer unjustifiable pain or mental
suffering. (See People v. Heitzman (1994) 9 Cal.4th 189, 212 [37 Cal.Rptr.2d 236,
886 P.2d 1229].) If element 5 is given, also give the bracketed paragraph defining
who has a “legal duty to control the conduct of a third person.”
Give bracketed element 6 regarding criminal negligence, and the bracketed
definition of “criminally negligent,” if element 1B, 1C, or 1D is given alleging that
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the defendant committed any indirect act. (People v. Manis (1992) 10 Cal.App.4th
110, 114 [12 Cal.Rptr.2d 619], disapproved on other grounds by People v.
Heitzman (1994) 9 Cal.4th 189, 212 [37 Cal.Rptr.2d 236, 886 P.2d 1229]; People v.
Superior Court (Holvey) (1988) 205 Cal.App.3d 51, 60 [252 Cal.Rptr. 335],
disapproved on other grounds by People v. Heitzman (1994) 9 Cal.4th 189, 212 [37
Cal.Rptr.2d 236, 886 P.2d 1229]; see People v. Valdez (2002) 27 Cal.4th 778, 788,
789 [118 Cal.Rptr.2d 3, 42 P.3d 511]; People v. Peabody (1975) 46 Cal.App.3d 43,
48–49 [119 Cal.Rptr. 780] [latter two cases in context of parallel child abuse
statute].)
Give the bracketed definition of “elder” or “dependent adult” depending on the
status of the alleged victim. (See Pen. Code, § 368(g) & (h).)
Give on request the bracketed definition of “unjustifiable” physical pain or mental
suffering if there is a question about the necessity for or the degree of pain or
suffering. (See People v. Curtiss (1931) 116 Cal.App. Supp. 771, 779–780 [300 P.
801].)
If there is a question whether an elder or dependent adult suffered great bodily
harm, give on request the bracketed paragraph stating that a person “does not need
to actually suffer great bodily harm.” (See People v. Cortes (1999) 71 Cal.App.4th
62, 80 [83 Cal.Rptr.2d 519]; People v. Jaramillo (1979) 98 Cal.App.3d 830, 835
[159 Cal.Rptr. 771] [in context of parallel child abuse statute].)
If a victim actually suffers great bodily injury or dies, the defendant’s sentence may
be enhanced based on the victim’s age. (See Pen. Code, § 368(b)(2) & (3); see
People v. Adams (2001) 93 Cal.App.4th 1192, 1198 [113 Cal.Rptr.2d 722].) Give
CALCRIM No. 3162, Great Bodily Injury: Age of Victim, or any other appropriate
instructions on enhancements. (See series 3100–3399.)
Give the 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(b)(1).
Great Bodily Harm or Injury Defined. Pen. Code, §§ 368(b)(2), 12022.7(f);
see People v. Cortes (1999) 71 Cal.App.4th 62, 80 [83 Cal.Rptr.2d 519] [in
context of parallel child abuse statute].
• Sentence Enhancements. Pen. Code, § 368(b)(2) & (3); see People v. Adams
(2001) 93 Cal.App.4th 1192, 1198 [113 Cal.Rptr.2d 722].
• Willful Defined. Pen. Code, § 7, subd. 1; see People v. Lara (1996) 44
Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402]; People v. Vargas (1988) 204
Cal.App.3d 1455, 1462, 1468–1469 [251 Cal.Rptr. 904].
• Criminal Negligence Required for Indirect Conduct. People v. Manis (1992)
10 Cal.App.4th 110, 114 [12 Cal.Rptr.2d 619]; People v. Superior Court
(Holvey) (1988) 205 Cal.App.3d 51, 60 [252 Cal.Rptr. 335]; see People v.
Valdez (2002) 27 Cal.4th 778, 788, 789 [118 Cal.Rptr.2d 3, 42 P.3d 511];
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People v. Peabody (1975) 46 Cal.App.3d 43, 47, 48–49 [119 Cal.Rptr. 780] [in
context of parallel child abuse statute].
• Duty to Control Conduct of Person Inflicting Abuse. People v. Heitzman
(1994) 9 Cal.4th 189, 212 [37 Cal.Rptr.2d 236, 886 P.2d 1229].
• General Criminal Intent Required for Direct Infliction of Pain or
Suffering. See People v. Sargent (1999) 19 Cal.4th 1206, 1224 [81 Cal.Rptr.2d
835, 970 P.2d 409] [in context of parallel child abuse statute].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 179–187.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, §§ 142.11[1][f], 142.13[5] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure § 12:17 (The
Rutter Group).
COMMENTARY
Any violation of Penal Code section 368(b)(1) must be willful. (See People v.
Smith (1984) 35 Cal.3d 798, 806 [201 Cal.Rptr. 311, 678 P.2d 886]; People v.
Cortes (1999) 71 Cal.App.4th 62, 80 [83 Cal.Rptr.2d 519] [both in context of
parallel child abuse statute]; but see People v. Valdez (2002) 27 Cal.4th 778, 789
[118 Cal.Rptr.2d 3, 42 P.3d 511] [the prong punishing a direct infliction of
unjustifiable physical pain or mental suffering does not expressly require that the
conduct be willful].) Following Smith and Cortes, the committee has included
“willfully” in element 1A regarding direct infliction of abuse until there is further
guidance from the courts.
LESSER INCLUDED OFFENSES
• Attempted Abuse of Elder or Dependent Adult. Pen. Code, §§ 664, 368(b)(1).
Misdemeanor Abuse of Elder or Dependent Adult. Pen. Code, § 368(c).
RELATED ISSUES
Care or Custody
“The terms ‘care or custody’ do not imply a familial relationship but only a
willingness to assume duties correspondent to the role of a caregiver.” (See People
v. Toney (1999) 76 Cal.App.4th 618, 621–622 [90 Cal.Rptr.2d 578] [quoting People
v. Cochran (1998) 62 Cal.App.4th 826, 832 [73 Cal.Rptr.2d 257]; both in context
of parallel child abuse statute].)
Unanimity
The court has a sua sponte duty to instruct on unanimity when the prosecution has
presented evidence of multiple acts to prove a single count. (People v. Russo
(2001) 25 Cal.4th 1124, 1132 [108 Cal.Rptr.2d 436, 25 P.3d 641].) However, the
court does not have to instruct on unanimity if the offense constitutes a “continuous
course of conduct.” (People v. Napoles (2002) 104 Cal.App.4th 108, 115–116 [127
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Cal.Rptr.2d 777].) Elder abuse may be a continuous course of conduct or a single,
isolated incident. (People v. Rae (2002) 102 Cal.App.4th 116, 123 [125 Cal.Rptr.2d
312].) The court should carefully examine the statute charged, the pleadings, and
the evidence presented to determine whether the offense constitutes a continuous
course of conduct. (People v. Napoles, supra, 104 Cal.App.4th at pp. 115–116.) See
generally CALCRIM No. 3500, Unanimity.
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