In a prosecution for elder theft by a noncaretaker (Pen. Code, § 368(d)), trial court properly omitted an instruction that the prosecution must prove a defendant’s noncaretaker status because this is not an element of the crime. Marquez was convicted of eight counts of elder theft as a noncaretaker. The trial court instructed the jurors on the elements of the offense: (1) the commission of a theft; (2) the victim was an elder; (3) the amount stolen was greater than $950; and (4) it was known, or reasonably should have been known, that the victim was at least 65 years old. On appeal, Marquez argued instructional error on the ground that “the prosecution needed to prove she was ‘not a caretaker.’” Held: Affirmed. Section 368(d), provides “[a] person who is not a caretaker who violates any provision of law proscribing theft, . . . [on an] elder . . .  , is punishable as a misdemeanor or a felony.” The Court of Appeal determined that the Legislature “did not intend that a defendant’s status as noncaretaker was to be treated as a required element of section 368, subdivision (d).” Rather, a defendant’s noncaretaker status “is a relevant consideration for the prosecution when charging the offense” under either subdivision (d), or as a caretaker pursuant to subdivision (e). Both crimes carry the same harsher penalty for thefts from an elder, but the crimes have different elements. Section 368(d) requires actual or reasonable knowledge that the victim is an elder or a dependent adult and the person’s status as a caretaker (or “not a caretaker”) is not essential for the prosecution to secure a conviction.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/G061264.PDF