People v. Marquez

Filed 3/30/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061264
v. (Super. Ct. No. 20HF1486)
JACKIE B. MARQUEZ, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Michael
A. Leversen, Judge. Affirmed.
Vanessa Place, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Donald
W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A “‘caretaker’ means a person who has the care, custody, or control of, or
who stands in a position of trust with, an elder or a dependent adult.” (Pen. Code, § 368,
subd. (i).) An “elder” is a person 65 years of age or older. (§ 368 (b).) A person who is
1
a caretaker who steals from an elder is guilty of violating section 368 (e). A person who
is not a caretaker who steals from an elder “and who knows or reasonably should know
that the victim is an elder” is guilty of violating section 368 (d). Depending on the value
of the stolen property, both crimes are “wobblers” punishable to the same degree.
Over several months, Jackie B. Marquez stole about $100,000 from her
brother-in-law Robert C., who was then about 80 years old. The prosecution elected to
charge Marquez with eight felony counts of elder theft as a noncaretaker. (§ 368 (d).) A
jury found Marquez guilty of all counts. The court imposed a five-year sentence.
Marquez contends the trial court erred by failing to instruct the jury that the
prosecution needed to prove she was “not a caretaker.” We disagree. We hold that a
defendant’s status as a noncaretaker is not an element of section 368 (d); rather, it is more
properly characterized as a charging option for the prosecution.
Here, the trial court instructed the jury that the prosecution needed to prove
the required elements of the crime: (1) Marquez committed a theft, (2) the victim was an
elder, (3) Marquez stole more than $950, and (4) Marquez knew, or reasonably should
have known the victim was at least 65 years old. Thus, we affirm the judgment.
I
FACTS AND PROCEDURAL BACKGROUND
When Robert was 79 years old, he started showing signs of dementia,
although he appeared to be able to care for himself. Robert moved in with Marquez,
1
Further undesignated statutory references are to the Penal Code. From this point
forward, we will also omit the word “subdivision” and/or its abbreviation.
2
signed a lease, and began renting a room in her house for $1,345 per month. Over the
next 22 months, Marquez transferred $102,971.92 from Robert’s accounts to her accounts
(in excess of the amount owed for rent). Among other things, Marquez used Robert’s
money to buy furniture, to do home repairs, to pay her taxes, and to give cash to her son.
The prosecution filed an information charging Marquez with eight counts
of elder theft. (§ 368 (d).) During a jury trial, Marquez claimed her responsibilities had
changed during the time Robert lived with her, the lease had been verbally modified to
$2,000 per month, and Robert had given her multiple gifts of cash. The jury found
Marquez guilty of all eight counts. The court imposed a five-year sentence.
II
DISCUSSION
Marquez contends the trial court failed to instruct the jury sua sponte on all
the elements of elder theft under section 368 (d). We disagree.
We review instructional error claims under a de novo standard of review.
(People v. Fiore (2014) 227 Cal.App.4th 1362, 1378.) “The proper test for judging the
adequacy of instructions is to decide whether the trial court ‘fully and fairly instructed on
the applicable law . . . .’” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)
In a criminal case, a trial court has a sua sponte duty to instruct the jury as
to all the elements of the alleged crimes. (People v. Owen (1991) 226 Cal.App.3d 996,
1004.) The “elements” of a crime are defined as: “Those constituent parts of a crime
which must be proved by the prosecution to sustain a conviction.” (Black’s Law Dict.
(6th ed. 1990) p. 520, col. 2, italics added.) The word “constituent” is defined as “an
essential part.” (Webster’s 11th Collegiate Dict. (2007) p. 267, col. 2.) “‘The elements
of crimes are of three varieties: actus reus, mens rea and attendant circumstances.’”
(People v. Mackreth (2020) 58 Cal.App.5th 317, 330.)
Section 368 (d) provides: “A person who is not a caretaker who violates
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any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates
Section 530.5 proscribing identity theft . . . and who knows or reasonably should know
that the victim is an elder or a dependent adult, is punishable” as a felony or a
misdemeanor, depending on the amount of property taken. (§ 368, subds. (1) & (2).)
Courts have long presumed (without deciding) that the relevant provisions
of section 368 are substantive offenses, rather than sentencing enhancements. (See, e.g.,
People v. Eastburn (2010) 189 Cal.App.4th 1501, 1505 [upholding conviction for elder
theft]; People v. Brock (2006) 143 Cal.App.4th 1266, 1270 [reversing conviction for
elder theft].) This presumption makes sense when the statute as whole is considered. For
instance, a sentencing provision of section 368 (l) provides: “Upon conviction for a
violation of subdivision (b), (c), (d), (e), or (f), the sentencing court shall also consider
issuing a restraining order . . . .” (Italics added.)
Here, the trial court instructed the jury on the elements of section 368 (d)
using two official jury instructions. (See Cal. Rules of Court, rule 2.1050(a) [“The
California jury instructions approved by the Judicial Council are the official instructions
for use in the state of California”].) The court used CALCRIM No. 1800 for the crime of
theft by larceny (§ 484), and CALCRIM No. 1807 for the crime of elder theft (§ 368 (d)).
“As part of the elements of the crimes charged in Counts 1-8 (Theft from an
Elder), the People must prove that the defendant committed a theft by larceny. [¶] To
prove that the defendant is guilty . . . the People must prove that: [¶] 1. The defendant
took possession of property owned by someone else; [¶] 2. The defendant took the
property without the owner’s consent; [¶] 3. When the defendant took the property she
intended to deprive the owner of it . . . ; [¶] AND [¶] 4. The defendant moved the
property . . . and kept it for any period of time, however brief.” (CALCRIM No. 1800.)
“The defendant is charged in Counts 1-8 with theft of property from an
elder in violation of Penal Code section 368. [¶] To prove that the defendant is guilty of
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this crime, the People must prove that: [¶] 1. The defendant committed theft; [¶] 2. The
property taken was owned by an elder; [¶] 3. The property, goods, or services obtained
was worth more than $950; [¶] AND [¶] [4. The defendant knew or reasonably should
have known that the owner of the property was an elder. [¶] . . . [¶] An elder is
someone who is at least 65 years old.” (CALCRIM No. 1807.)
“All criminal defendants have the right to ‘a jury determination that the
defendant is guilty of every element of the crime with which he is charged, beyond a
reasonable doubt.’” (People v. Merritt (2017) 2 Cal.5th 819, 824.) We find that by using
the relevant portions of the two official jury instructions, the trial court instructed the jury
on every element of the crime of elder theft. (§ 368 (d).) Thus, we find the trial court
fulfilled its sua sponte instructional obligations and did not commit error.
Marquez argues by using the words “not a caretaker” in section 368 (d), the
Legislature intended that a defendant’s status as “not a caretaker” is to be treated as an
element of the crime and therefore CALCRIM No. 1807 is wrong. We disagree.
This is an issue of statutory interpretation. “Our fundamental task is to
determine the legislative intent and effectuate the law’s purpose, giving the statutory
language its plain and commonsense meaning. We examine that language, not in
isolation, but in the context of the statutory framework as a whole to discern its scope and
to harmonize various parts of the enactment. [Citation.] ‘If the language is clear, courts
must generally follow its plain meaning unless a literal interpretation would result in
absurd consequences the Legislature did not intend. If the statutory language permits
more than one reasonable interpretation, courts may consider other aids, such as the
statute’s purpose, legislative history, and public policy.’” (Mendoza v. Fonseca McElroy
Grinding Co., Inc. (2021) 11 Cal.5th 1118, 1125.)
Section 368 lists several crimes against elders or dependent adults,
including crimes of physical abuse and endangerment. And again, section 368 (d)
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provides: “A person who is not a caretaker who violates any provision of law
proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5
proscribing identity theft . . . and who knows or reasonably should know that the victim is
an elder or a dependent adult, is punishable” as a misdemeanor or a felony. (Italics
added.) Similarly, there are other crimes within section 368, that “do not require that a
defendant be in a caretaker relationship with the victim.” (People v. Matye (2008) 158
Cal.App.4th 921, 926, fn. 2, italics added [“Defendant was convicted of violating
subdivisions (b)(1) and (f) of section 368, which apply to any person who commits the
acts specified therein”].)
Conversely, section 368 (e) provides: “A caretaker of an elder or a
dependent adult who violates any provision of law proscribing theft, embezzlement,
forgery, or fraud, or who violates Section 530.5 proscribing identity theft with respect to
the property or personal identifying information of that elder or dependent adult is
punishable as” a misdemeanor or felony. (Italics added.) A “‘caretaker’ means a person
who has the care, custody, or control of, or who stands in a position of trust with, an elder
or a dependent adult.” (§ 368 (i).) Under section 368 (e), the caretaker is not required to
know, or reasonably know, that the victim was an elder or a dependent adult.
Section 368 (d) and section 368 (e) can both be charged as misdemeanors
or felonies (the crimes are “wobblers”), depending on the value of the property stolen,
and not on the person’s status as a “caretaker” or “not a caretaker.” Both crimes provide
for the same aggravated punishments. (§ 368 (d)(1)-(2), (e)(1)-(2).) For most theft
crimes, the sentencing triad for a felony violation is 16 months, two years, or three years.
(§ 489 (c)(1).) For theft crimes against elders and dependent adults, the sentencing triad
is two, three, or four years. (§ 368 (d)(1)-(2), (e)(1)-(2).)
Prior to 1998, section 368 only applied to thefts committed by caretakers.
(See Stats. 1997, ch. 698, § 1.) In 1998, the Legislature expanded the scope of section
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368 to include all perpetrators who steal, embezzle, or commit frauds upon elderly
victims, regardless of whether the perpetrator is a caretaker or not. (See Stats.1998, ch.
934, § 1; Stats. 1998, ch. 935 § 2; Stats. 1998, ch. 936, § 7; Stats. 1998, ch. 936, § 7.5.)
The intent of the Legislature was to “target criminals who victimize elders”
even though they do not fit within the statutory definition of a “caretaker.” (Assem.
Com. on Public Safety, Analysis of Assem. Bill No. 880 (1997-1998 Reg. Sess.) as
amended Jan. 12, 1998, p. 2.) “The elder abuse law is intended to provide special
protection for elder adults, whose advanced age may render them particularly susceptible
to criminal opportunists.” (People v. Eastburn (2010) 189 Cal.App.4th 1501, 1506.)
Section 368 is intended to punish more harshly those who steal from elders
or dependent adults, but who could only have previously been prosecuted under general
thefts statutes (grand theft or petty theft) that carry lower punishments. (See Legis.
Council’s Dig., Sen. Conc. Amends to Assem. Bill No. 880 (1997-1998 Reg. Sess.); Sen.
Rules Committee, Off. of Sen. Floor Analyses, 3d Reading Analysis of Assem. Bill No.
880 (1997-1998 Reg. Sess.) as amended July 7, 1998.)
Understood in context, section 368 provides that those defendants charged
with theft who have an affirmative duty to protect the victim—caretakers—are subject to
increased penalties under section 368 (e), but only if the prosecution proves the
heightened duty of care (caretaker status). On the other hand, those defendants charged
with theft who have no affirmative duty to protect the victim—noncaretakers—are also
subject to increased penalties under section 368 (d), but only if the prosecution proves
actual or reasonable knowledge of the adult victim’s age or dependency. Therefore, the
essential requirements of the two relevant statutes are: 1) the defendant’s caretaker status
under section 368 (e); or 2) the defendant’s knowledge under 368 (d).
We hold that a defendant’s status as a noncaretaker is not an essential act,
an essential mental state, or an essential attendant circumstance under section 368 (d);
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thus, it is not an element of the crime. (See People v. Mackreth, supra, 58 Cal.App.5th at
p. 330 [“‘The elements of crimes are of three varieties: actus reus, mens rea and
attendant circumstances’”].) Rather, the defendant’s status as a noncaretaker is a relevant
consideration for the prosecution when charging the offense (both crimes carry the same
penalty). That is, if a person was stealing from an elder, and was arguably a caretaker,
but the prosecution lacked proof of the caretaker element under section 368 (e), the
prosecution might elect to file the charge under section 368 (d), and then be required to
prove the knowledge element. Under section 368 (d), the person’s status as a caretaker
(or “not a caretaker”) would not be essential for the prosecution to secure a conviction.
Similarly, under section 1170 (e), an accused caretaker’s knowledge of the victim’s age
(or lack of knowledge) would not be essential for the prosecution to secure a conviction.
In sum, given the entire scheme of section 368 and its legislative history,
we find the Legislature did not intend that a defendant’s status as noncaretaker was to be
treated as a required element of section 368 (d). Rather, to bring noncaretakers within the
ambit of section 368, and to punish noncaretakers to the same degree as caretakers, the
Legislature effectively substituted one element of the elder or dependent adult theft crime
under section 368 (e)—caretaker status—with a different element under section 368
(d)—actual or reasonable knowledge that the victim is an elder or a dependent adult.
Marquez’s novel interpretation of section 368 (d)—treating “not a
caretaker” as an element of the crime—would require the prosecution to prove a
nonessential fact about the defendant. This proposed interpretation would also place the
burden on the prosecution to prove a negative, which would tend to further frustrate the
policy goals of the Legislature by making the crime unnecessarily more difficult to prove.
(See Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [“Literal construction should not
prevail if it is contrary to the legislative intent apparent in the statute”]; Franklin v.
Reiner (1857) 8 Cal. 340, 341 [“The respondent could not be expected to prove a
8
negative, that he never had notice”].) Indeed, under Marquez’s notion concerning the
elements of section 368 (d), the prosecution would have been required to prove Marquez
did not stand in a position of trust with her brother-in-law Robert, who was apparently
suffering from varying levels of dementia, and who was deceased at the time of the trial.
Jury instructions are not legal authority, but we note that our interpretation
is consistent with CALCRIM No. 1807, which does not treat the “not a caregiver” phrase
in the statute as an additional element of section 368 (d). (See People v. Morales (2001)
25 Cal.4th 34, 48, fn. 7 [jury instructions are not themselves legal authority, but they may
accurately reflect the state of the law].) Further, we note that in the 25 years since section
368 was amended to include subdivision (d) as a separate theft crime, no published
opinion has ever found “not a caretaker” status to be an element under 368 (d), nor has
any appellate court ever been asked to consider the issue, to the best of our knowledge.2
(See, e.g., People v. Baratang (2020) 56 Cal.App.5th 252, 257 [“The standard
CALCRIM No. 1807 instruction states that the People must prove four elements for
felony elder theft under section 368 (d)”]; People v. Brock, supra, 143 Cal.App.4th at p.
1281 [“defendant was convicted of violating Penal Code section 368, subdivision (d) . . . ,
crimes against elder or dependent adults, by committing a theft of money or personal
property exceeding $400 knowing that the victim was an elder or dependent adult”].)
Marquez quotes People v. Valencia (2017) 3 Cal.5th 347, 357, for the
proposition “we generally must ‘accord[] significance, if possible, to every word, phrase
and sentence in pursuance of the legislative purpose,’ and have warned that ‘[a]
construction making some words surplusage is to be avoided.’” This is known as the
“canon against surplusage.” (Sturgeon v. County of Los Angeles (2015) 242 Cal.App.4th
1437, 1447 (Sturgeon).) Marquez argues “had the Legislature thought there need be no
2
Because this appears to be a matter of first impression, we are certifying this opinion for
publication. (See Cal. Rules of Court, rule 8.1105(c)(1)-(2).)
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distinction between caretakers and noncaretakers, the ‘not a caretaker’ language would
have been omitted from subdivision (d)(1), and the subdivision would simply prohibit
theft by anyone ‘who knows or reasonably should know that the victim is an elder or
dependent adult.’” We disagree with the premise, but we agree with the observation.
That is, the Legislature did, in fact, intend for there to be a distinction
between caretakers and noncaretakers. This is why the statute does not include a
knowledge element for caretakers charged under section 368 (e), but it does include a
knowledge element for any other persons charged under section 368 (d). However, we
agree with Marquez to the extent that the Legislature could have made the statute clearer
by simply referring to any person under section 368 (d), rather than by using the phrase
“not a caretaker” because that language is unnecessary and superfluous.
Although courts generally interpret a statute “so as to eliminate surplusage,
there is no rule of construction requiring us to assume that the Legislature has used the
most economical means of expression in drafting a statute.” (Voters for Responsible
Retirement v. Board of Supervisors (1994) 8 Cal.4th 765, 772-773.)
Indeed, in People v. Valencia, supra, 3 Cal.5th at page 357, after restating
the canon against surplusage, the Supreme Court elaborated that “‘[t]he words of the
statute must be construed in context, keeping in mind the statutory purpose, and statutes
or statutory sections relating to the same subject must be harmonized, both internally and
with each other, to the extent possible.’” The Court stated, “that statutory language, even
if it appears to have a clear and plain meaning when considered in isolation, may
nonetheless be rendered ambiguous when the language is read in light of the statute as a
whole or in light of the overall legislative scheme.” (Id. at p. 360, italics added.)
“The canon against surplusage should not be invoked when it leads to an
unreasonable result. The canon against surplusage is not absolute.” (Sturgeon v. County
of Los Angeles, supra, 242 Cal.App.4th at p. 1448, italics omitted [“If invocation of the
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canon results in an unreasonable reading of the legislation, it should be discarded”];
People v. Raybon (2021) 11 Cal.5th 1056, 1070-1071, fn. 10 [“‘like all . . . interpretive
canons, the canon against surplusage is a guide to statutory interpretation and is not
invariably controlling’”].)
The related maxim “‘[s]uperfluity does not vitiate’” means “that the
presence of arguably unnecessary terms in a statute should not, by itself, produce an
interpretation that will defeat the Legislature’s central aim in enacting the law.” (See
General Development Co., L.P. v. City of Santa Maria (2012) 202 Cal.App.4th 1391,
1395.) For instance, if the Legislature made it an aggravated theft crime to steal a
“striped zebra” (a redundancy), the prosecution would likely not have to prove the stolen
zebra was “striped.”
When section 368 (d) is read in isolation, it might appear to require that the
prosecution has to prove a defendant is “not a caretaker” in order to secure a conviction.
However, the phrase “not a caretaker” is irrelevant when read in the context of section
368 (e), which does, in fact, state the relevant requirement of being a caretaker.
Marquez also argues the elder theft jury instruction (CALCRIM No. 1807)
deprived her of presenting a “caretaker defense.” Marquez argues, “had the jury been
properly instructed, the question would have been to what extent did [Marquez] exceed or
abuse her caretaking position—for example, was the $2,000 monthly charge . . . larceny
in light of [Marquez’s] then-expanded caretaking duties.” We disagree.
As discussed, the Legislature’s intent in amending section 368 was plainly
to expand the scope of the elder and dependent adult theft statute, which had previously
been limited to caretakers. It would defy logic to presume the Legislature also intended
to somehow create a “caretaker defense” for persons other than caretakers who are
charged with committing thefts against elders or dependent adults. (See § 368 (d).)
Moreover, Marquez’s defense was essentially that she did not commit the
11
crime of theft. (See § 484.) Marquez’s purported role as a caretaker may have been
3
somewhat relevant as to her defense (to try to show that she did not intend to steal or she
had the victim’s consent), but there is no question the trial court properly instructed the
jury on the elements of theft. Therefore, we find Marquez was not somehow precluded
from presenting any perceived defenses to the crime of elder theft under section 368 (d),
through the court’s use of CALCRIM Nos. 1800 and 1807.
To reiterate and conclude, we find the Legislature intended to impose
harsher punishments on all persons who commit thefts against elders and dependent
adults, be they caretakers or not. We hold that a defendant’s status as a noncaretaker is
not a required element of section 368 (d), because a contrary holding would serve no
purpose and would frustrate the Legislature’s intent. Thus, we find the trial court
committed no instructional errors. 4
3
The four elements of theft by larceny are the defendant’s (1) taking of property owned
by someone else, (2) without consent, (3) with the intent to permanently deprive the
owner of the property, and (4) movement of the property. (See § 484 (a).)
4
Given our holding that a defendant’s status as a noncaretaker is not an element of
section 368 (d), it is not necessary for us to analyze Marquez’s additional argument that
the prosecution presented insufficient evidence she was “not a caretaker.”
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III
DISPOSITION
The judgment is affirmed.
MOORE, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
GOETHALS, J.
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