People v. BaratangAnnotate this Case
Baratang used the debit card belonging to the sister of his father’s wife. The victim suffers from dementia. An officer testified that the total amount taken from her bank account as a result of the transactions was $8,710.44. A jury convicted Baratang of felony theft from an elder under Penal Code section 368(d).
Baratang contends that the court prejudicially erred by instructing the jury it could convict him of felony elder theft based on an identity theft theory regardless of the value of the property taken or obtained. The court of appeal reversed. The jury instruction contradicts the plain language and legislative history of section 368, and the error cannot be deemed harmless beyond a reasonable doubt. The $950 requirement in section 368(d)(1) applies to a felony violation of section 368(d) based on identity theft. The court could not rule out a reasonable possibility that the jury relied on the identity theft theory to support a felony violation of section 368(d). It is reasonably possible that one or more jurors found Baratang guilty of felony theft from an elder under the identity theft theory based solely on two ATM withdrawals totaling $700.