Elder Theft Law & Defense
Information on the crime of theft from elders is found at California penal code section 368(d).
Theft Defined: Theft is defined as the unlawful taking and carrying away the personal property of another with intent to permanently deprive the person of that Property. Essentially, theft is taking property from another person with the intent to never return that property.
For purposes of elder theft, the property that is stolen does not need to be "carried away" as it does in a regular theft case. Theft by embezzlement, without carrying away money or property, is sufficient to meet the theft requirement in PC 368(d) law.
Elder Defined: Per PC 368(d), an elder is anyone over the age of 65.
PC 368(d) Law
In order to find the defendant guilty of the crime of theft from elders, the district attorney must prove that a theft occurred and that the alleged victim of that theft was over the age of 65.
PC 368(d) Penalties
PC 368(d) Theft from elders is charged as a misdemeanor or as a felony. When PC 368(d) is charged as a felony, the defendant may face up to four years in jail. When PC 368(d) is charged as a misdemeanor, the defendant may face up to one year in jail.
Probation: A probation sentence is period of supervision in lieu of jail Probation sentences are allowed in PC 368 case, but they are not guaranteed. Whether or not a defendant will be granted a probation sentence after a conviction for PC 368 depends largely on the defendants' criminal history and the facts of the case.
Note: A probation sentence may still require the defendant to serve actual jail time; however, jail sentences associated with probation are usually much shorter than the maximum sentence allowed under the law and sometimes those jail sentences can be served alternatively on work release or house arrest.
A defendant who is convicted of felony theft from elders, and who is not granted a probation sentence, may be allowed to serve his or her incarceration in a local county jail, as opposed to a state prison. Also, a jail sentence for a PC 368(d) conviction may be split (served half in custody and half out of custody on work release or house arrest), or suspended (not served absent a violation of some condition of the court).
Good Behavior Credits: PC 368(d) is eligible for 50% percent good behavior credits, which means that for every day that the defendant is on his or her good behavior while in custody, or on work release, he or she will receive two days credit towards completing that sentence.
Three Strikes Law: Elder theft is not a crime listed in California's Three Strikes Law.
CIMT: PC 368(d), Elder Theft, is a crime involving moral turpitude. A conviction for a crime involving moral turpitude is a crime that involves dishonesty or is otherwise considered to be morally wrong. Crimes involving moral turpitude carry special consequences for individuals with professional licenses (doctors, therapists, barber, etc.), or who have immigration concerns.
Bail: The felony bail schedule amount for charges of PC 368(d) is $50,000, or the amount stolen, whichever is more (San Bernardino County 2020).
In addition to a possible jail sentence, if found guilty of a violation of PC 368(d), the defendant may face harsh probation or parole terms, court fines and fees, criminal protective orders (CPO), loss of the right to own and possess firearm (felony convictions), restitution, and more.
Defense to PC 368(d)
Common defenses to theft from elders include, insufficient evidence to prove the underlying crime of theft, mistake of fact, coerced confessions, consent to use or appropriate the elder's assets or money, and more.
Note: If the district attorney cannot prove that the defendant intended to permanently deprive the elder of her property, or at a minimum, subject the elder's property to substantial risk of loss, then the defendant is entitled to a an acquittal of the PC 368 charges.
If you have been charged with theft from elders pursuant to PC 368, contact our experienced and successful criminal defense attorneys today. We offer free consultations seven days a week. We will patiently answer your questions, thoroughly explain your rights and options, and aggressively pursue your defenses. Call today!
PC 368(e)(2): Theft from elder or dependent adult by caretaker [Misdemeanor]
PC 368(d)(1): Theft from elder or dependent adult [Misdemeanor or Felony]
PC 368(d)(2): Theft from elder or dependent adult [Misdemeanor]
Quick Legal Reference
Crime: Theft from Elder
Code: PC 368(d)(1) (CalCrim No. 1807)
Wobbler: Yes. PC 368(d)(1) is a wobbler crime. This means that PC 368(d)(1) may be charged as a felony or as a misdemeanor.
Incarceration: Felony PC 368(d)(1) jail sentence range: 2, 3, or 4 years (if probation not granted). Misdemeanor jail sentence up to 1 year.
Probation: Probation may be available in PC 368(d)(1) cases (assuming other crimes or enhancements that bar a probation sentence are not present). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.
Work Release or House Arrest: In some cases, a probation sentence can include actual in-custody county jail, house arrest (electronic monitoring), or work release (or some combination of these penalties); however, most in-custody jail sentence orders that are required as terms of probation are much shorter than the maximum jail sentence.
PC 1170(h)): Yes. PC 368(d)(1) is subject to PC 1170(h) sentencing. This means that any jail or prison sentence may be:
Split (half in-custody / half out-of-custody)
Suspended (possibly never served)
Served in county jail (not state prison)
Note: Limitations may apply
Strike: PC 368(d)(1) is not a strike offense listed in California's Three Strikes law.
Credits: 50% good conduct credits available.
CIMT: PC 368(d)(1) is a crime involving moral turpitude, which means that an arrest or conviction could lead to the following:
Professional Licensing problems
Impeachment on credibility
Firearms: Felony PC 368(d)(1) convictions prohibit a defendant from owning or possessing a firearm.
Bail: $50,000, or amount stolen, whichever is greater