California Criminal Jury Instructions (CALCRIM) (2017)

831. Abuse of Elder or Dependent Adult

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831.Abuse of Elder or Dependent Adult (Pen. Code, § 368(c))
The defendant is charged [in Count ] with (elder/dependent
adult) abuse [in violation of Penal Code section 368(c)].
To prove that the defendant is guilty of this crime, the People must
prove that:
<Alternative 1A—inflicted pain>
[1. The defendant willfully inflicted unjustifiable physical pain or
mental suffering on <insert name or description of
elder or dependent adult>;]
<Alternative 1B—caused or permitted to suffer pain>
[1. The defendant allowed someone, whose conduct the defendant
had a duty to supervise and control, to inflict unjustifiable
physical pain or mental suffering on <insert name
or description of elder or dependent adult>;]
<Alternative 1C—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 that person or (his/her) health to be
injured;]
<Alternative 1D—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 that person to be placed in a situation
where (his/her) person or health was endangered;]
2. <insert name or description of elder or dependent
adult> (is/was) (an elder/a dependent adult);
[AND]
3. When the defendant acted, (he/she) knew or reasonably should
have known that <insert name or description of elder
or dependent adult> was (an elder/a dependent adult)(;/.)
<Give element 4 when giving alternative 1B and it is alleged the
defendant permitted the suffering.>
[AND]
[4. The defendant had a legal duty to supervise and control the
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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 5 when giving alternative 1B, 1C, or 1D.>
[AND
(4/5). 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.
[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,
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.
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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.]
[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
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Give alternative 1A if it is alleged that the defendant directly inflicted unjustifiable
physical pain or mental suffering. Give alternative 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 alternative 1C. Finally, give alternative 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(c).)
Give bracketed element 4 if it is alleged under alternative 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 4 is given, also give the bracketed paragraph defining
who has a “legal duty to supervise and control the conduct of a third person.”
Give bracketed element 5 regarding criminal negligence, and the bracketed
definition of “criminal negligence,” if alternative 1B, 1C, or 1D is given alleging
that 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 in 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 in 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
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suffering. (See People v. Curtiss (1931) 116 Cal.App. Supp. 771, 779–780 [300 P.
801].)
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(c).
Willfully 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];
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 (3d ed. 2000) Sex Offenses and
Crimes Against Decency, §§ 168–170.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.13[5] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure § 12:17 (The
Rutter Group).
COMMENTARY
See Commentary to CALCRIM No. 830, Abuse of Elder or Dependent Adult Likely
to Produce Great Bodily Harm or Death.
RELATED ISSUES
See the Related Issues section of CALCRIM No. 830, Abuse of Elder or
Dependent Adult Likely to Produce Great Bodily Harm or Death.
832–839. Reserved for Future Use
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