Catley

Introduction

Defendant Norma Florentino Catley appeals from her conviction for theft by a caretaker from an elder. (Pen. Code, § 368, subd. (e).) (All further statutory references are to the Penal Code, unless otherwise noted.) We affirm.

Defendant first contends there was insufficient evidence to support her conviction for theft based on a theory of larceny, because the victim, a 68-year-old man suffering from cognitive impairment due to Parkinson’s disease and the medication taken to treat the disease, consented to her taking more than $17,000 of his money to buy herself a new sport utility vehicle (SUV). We disagree because substantial evidence showed the victim was not capable of consenting to the transfer of money.

Next, defendant argues" the trial court erred by instructing the jury in accordance with section 1127g, enacted in 2004, that a witness with a cognitive impairment is not any more or less credible than any other witness. Defendant contends the instruction lowered the prosecution’s burden of proof and thereby denied her federal constitutional due process. No published case has addressed whether an instruction tracking the language of section 1127g…