Theft From Elder or Dependent Adult – California Penal Code § 368(d), (e)
Criminal charges for theft from an elder or dependent adult fall into two categories:
- Where the Defendant is not a caretaker – Penal Code section 368(d) applies; and
- Where the Defendant is a caretaker – Penal Code section 368(e) applies.
In both instances, criminal charges for Penal Code 368(d) or Penal Code 368(e) are wobblers. This means that the prosecution may file the case as either a misdemeanor or a felony. If the case is filed as a felony, the judge may elect to reduce the case to a misdemeanor during the preliminary hearing. Pursuant to Penal Code 17(b)(5), the judge may determine that the offense is a misdemeanor as oppose to a felony at or before the preliminary hearing, in which the event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.
When the defendant is charged with theft of property from an elder/a dependent adult in violation of Penal Code section 368, the People must prove beyond a reasonable doubt the following elements:
- The defendant committed theft, embezzlement, forgery, fraud, or identity theft;
- The property taken or personal identifying information used was owned by an elder or a dependent adult; and
- If the defendant was not a caretaker, the prosecution also needs to show that the defendant knew or reasonably should have known that property belonged to an elder/a dependent adult.
Definitions:
Elder is defined as someone who is at least 65 years old.
Dependent adult is person 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. It also 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 that provides 24-hour inpatient care, such as a nursing home
A caretaker is someone who has the care, custody, or control of an elder or dependent adult or is someone who stands in a position of trust with an elder or dependent adult.
Property includes any money, labor, or real or personal property.
Examples of Theft of Elder Abuse Charges:
Generally, an elder abuse charge is brought as an enhancement to the underlining crime of theft, embezzlement, forgery or fraud. If the defense is able to negate the underlining crime, it also negates the elder abuse charge as it is an element of the enhanced crime. Allegations of theft of an elder are routinely made in property disputes amongst family members, where one sibling alleges that the other sibling misappropriated the parents’ funds while acting as a caretaker for them. Another instance is where the children are absent from the parents’ life and the parents transfer large amounts of money to a longstanding caretaker; this triggers the children to lodge a complaint against the caretaker.
In a nursing home, any misappropriation of patient funds or belongings will result in the facility reporting the incident to the Department of Public Health, Ombudsman, and local police department. This will trigger a cross-report to the Department of Justice to investigate and file criminal charges against the perpetrator. Usually, the perpetrator is terminated and the facility will hire an attorney to cooperate with the Department of Justice through the investigation process.