People over 65 are considered vulnerable members of society and are at risk of being mistreated. California Penal Code 368 describes and establishes punishments for actions that cause emotional or mental distress, physical harm, or financial exploitation of an elderly person.

If you are accused of elder abuse, the state will use the DA's office to try to prove your guilt under PC 368. However, the senior or their family can still pursue a separate civil case for damages, even if there is a criminal prosecution.

Being charged with elder abuse can lead to either a misdemeanor or felony conviction, significantly impacting your social and economic life. If you face elder abuse charges, contacting a skilled attorney is crucial. At the Los Angeles Criminal Attorney, we are here to help and ready to provide legal assistance. Contact our lawyers today to start building a solid defense strategy.

Elder Abuse Definition Under California Law

Elder abuse is a serious issue that affects vulnerable members of society. In California, elder abuse is defined under Penal Code Section 368. The statute addresses crimes committed against individuals 65 years of age or older, as well as dependent adults aged 18 to 64 with physical or mental limitations that restrict their ability to carry out normal activities or protect their rights.

Misdemeanor Elder Abuse

Misdemeanor elder abuse carries relatively lower penalties compared to its felony counterpart. Before the judge can sentence you, the prosecutor must establish the following three elements beyond a reasonable doubt:

  1. You willfully caused unjustifiable physical pain or mental suffering to an elder or dependent adult. This could involve direct physical violence or actions that inflict emotional harm. It is important to note that the pain or suffering must be without any reasonable justification or excuse.
  2. You knew or reasonably should have known that the victim was an elder (65 years or older) or a dependent adult (18 to 64 years old with physical or mental limitations).
  3. Your negligent criminal actions could have compromised the health or endangered the life of the elderly person.

Unjustifiable physical pain or mental suffering, as defined in the context of misdemeanor elder abuse, refers to any infliction of harm, discomfort, distress, or anguish upon an elder or dependent adult that lacks a valid or reasonable justification.

Felony Elder Abuse

Felony elder abuse constitutes a more severe category of elder abuse offenses under California law. Committing felony elder abuse involves subjecting an elder or dependent adult to significant harm or mistreatment. For the prosecutor to secure a conviction for felony elder abuse, they must establish three essential elements beyond a reasonable doubt. The elements include:

  1. You willfully caused or permitted unjustifiable physical pain, mental suffering, or endangerment to an elder or dependent adult. The " willful " element implies that the harm or neglect was intentional, purposeful, and not accidental.
  2. The elder or dependent adult suffered great physical or mental harm. The suffering or injury inflicted must be more than trivial or incidental.
  3. You knew or reasonably should have known that the victim was 65 years or older.

Abuse

Elder abuse encompasses various forms of mistreatment and harm inflicted upon elder adults or dependent adults. Under California law, elder abuse can manifest in different ways, including:

  • Physical Abuse: Physical abuse refers to any intentional act that results in physical harm or pain to an elder or dependent adult. It involves using physical force, violence, or mistreatment that causes injury, pain, or impairment. Examples of physical abuse include hitting, punching, kicking, slapping, pushing, or using restraints to restrict the movement of the individual.
  • Emotional Abuse: Emotional abuse involves the infliction of mental anguish, psychological harm, or emotional distress upon an elder or dependent adult. This form of abuse often includes verbal attacks, threats, intimidation, humiliation, or constant belittling.
  • Neglect and Endangerment:
    • Neglect - It occurs when a caregiver or responsible individual fails to meet the basic needs and provide adequate care to an elder or dependent adult. It involves the deprivation of basic necessities, such as food, water, shelter, medical care, medication, personal hygiene, or assistance with daily activities.
    • Endangerment - This refers to situations where an elder or dependent adult is placed at risk of harm or injury due to the actions or omissions of another individual. This can include exposing the individual to hazardous conditions, unsafe environments, or situations that may result in physical harm or injury.
  • Financial Exploitation/ Senior Fraud: Financial exploitation involves the unauthorized or improper use of an elder or dependent adult's financial resources for personal gain. It includes actions such as theft, fraud, forgery, undue influence, or coercion to manipulate or control the individual's finances. Perpetrators may exploit the elder or dependent adult's vulnerability, trust, or cognitive impairment to access their bank accounts, assets, property, or other financial resources.

Willfully And Criminal Negligence

Under California law, "willfully" refers to the intentional and voluntary commission of an act that leads to unjustifiable physical pain, mental suffering, or endangerment for an elder or dependent adult. It implies that you acted with deliberate intent, purpose, or willingness to cause harm or neglect the well-being of the senior.

Criminal negligence occurs when an individual fails to exercise reasonable care or caution, resulting in a substantial and unjustifiable risk of harm to others. It involves a gross deviation from the standard of care that a reasonable person would exercise in similar circumstances.

A legal duty is crucial for criminal negligence to be applicable. It means that the accused had a specific obligation, either imposed by law or through a contractual or fiduciary relationship, to act in a certain manner to prevent harm to the elder or dependent adult. Without such a legal duty, the prosecutor cannot successfully prove criminal negligence in an elder abuse case.

Prosecution Of Senior Abuse Cases

In California, special units within the county's District Attorney's Office often take the lead in addressing elder abuse. Specific considerations and factors determine how the prosecution of senior abuse cases is handled. These include:

  • The location where the alleged abuse occurred. Typically, the agency with jurisdiction in that particular area will handle the case. This could be the local police department, the county sheriff's office, or a specialized elder abuse unit within the District Attorney's Office.
  • The nature and severity of the alleged abuse. Different agencies may have different expertise and resources to handle specific types of abuse, such as physical abuse, financial exploitation, or neglect. The agency with the necessary specialization and experience in addressing that particular form of abuse may be assigned the case.
  • The vulnerability and special needs of the victim.
  • Whether the crime was a felony or misdemeanor.

Legal Defenses to a Violation of Penal Code 368

If you face elder abuse charges, you could use several defenses to challenge the accusations. These include:

No Willful Act

As mentioned above, "willfully" refers to the intentional and voluntary commission of an act that causes harm or suffering to an elder or dependent adult. If you could demonstrate that your conduct was not deliberate or purposeful, your defense lawyer could argue that there was no willful act. Your charges could be dropped if you present evidence or testimony showing that your actions were accidental, unintentional, or resulted from a misunderstanding.

No Abuse

The “no abuse” defense involves contesting the claim that your actions or omissions constitute elder abuse as defined by PC 368. During your defense, you must present evidence or raise reasonable doubt regarding the existence of abuse.

For example, your criminal defense attorney may argue that your conduct does not meet the legal criteria for elder abuse, such as unjustifiable physical pain, mental suffering, neglect, or endangerment.

Falsely Accused

In some instances, you could find yourself falsely accused of elder abuse. This defense asserts that the accusations against the defendant are unfounded, fabricated, or based on mistaken identity. It may involve presenting evidence, alibis, or witness testimonies contradicting the allegations and supporting the defendant's innocence.

You want to thoroughly investigate the circumstances surrounding the accusations and gather evidence that challenges the credibility or reliability of the accuser's statements. Afterward, you could cast doubt on the veracity of the allegations and demonstrate that you have been wrongfully implicated in the elder abuse case.

Punishment, Sentencing, And Penalties To a Penal Code 368 Violation

Violating PC 368 could lead to significant punishments, including jail or prison time, fines, and restitution. The severity of the punishment depends on whether the prosecution considers your offense a misdemeanor or a felony.

Misdemeanor Elder Abuse

For misdemeanor elder abuse convictions, the following punishments may apply:

  • Imprisonment in the county jail for up to one year.
  • A fine of up to $6,000.
  • The court may order you to pay restitution to the victim.

Felony Elder Abuse

Felony elder abuse carries more severe penalties compared to misdemeanor offenses. These are:

  • Serving up to four years in prison and another seven years if the senior suffered great bodily harm.
  • A fine not exceeding $10,000.
  • The judge could order them to pay restitution to the victim.

Immigration Consequences Of Elder Abuse Conviction

A conviction for elder abuse under Penal Code 368 can have significant immigration consequences, especially for non-citizens residing in the United States. When evaluating the immigration impact of a criminal conviction, one important consideration is whether the offense qualifies as a "crime involving moral turpitude" (CIMT).

If a non-citizen is convicted of a CIMT like elder abuse, several immigration consequences may arise, including:

  • Marked as inadmissible. A CIMT conviction can render a non-citizen inadmissible to the United States. This means they may be barred from entering or reentering the country after traveling abroad or being deported.
  • Deportation: A conviction can also lead to deportation or removal proceedings. Immigration authorities have the discretion to initiate removal proceedings against immigrants convicted of CIMTs, potentially resulting in their forced departure from the United States.
  • Compromising Immigration Applications: Non-citizens with CIMT convictions may face difficulties obtaining or maintaining immigration benefits. A conviction for elder abuse can adversely affect visa applications, green cards, naturalization, and other immigration-related processes.

Having a Conviction for PC 368 Violation Expunged

If you have a conviction for a Penal Code 368 violation, such as elder abuse in California, you may wonder if it is possible to expunge that conviction from your record. Expungement is a legal process that allows for the dismissal of a conviction and can provide you with a fresh start.

Obtaining an expungement for a PC 368 violation may be possible if you meet certain criteria. You may be eligible for expungement if you have completed your sentence, including probation or jail time, and have complied with all the terms of your sentence. It typically requires completing probation, paying all fines and restitution, and fulfilling other court-ordered requirements.

The court has discretion in granting or denying an expungement request for a PC 368 violation. They will consider factors such as the nature of the offense, your criminal history, your behavior since the conviction, and the interests of justice. While expungement is generally favored in California, it is not an automatic right, and the court will evaluate the case based on its merits.

Does A Conviction Affect Gun Rights?

California law prohibits individuals convicted of certain offenses, including felonies and certain misdemeanor crimes, from owning or possessing firearms. A conviction for a violation, like a felony elder abuse, could potentially impact your gun rights.

Related Offenses to PC 368 Violation

When discussing offenses related to PC 368, other relevant crimes can occur in similar contexts. Related offenses include:

Battery, Penal Code 242

Battery refers to any willful and unlawful use of force or violence against another person, even if it does not result in serious bodily injury. It can include acts such as striking, hitting, or unlawfully touching someone. The prosecutor must establish the following elements:

  • You willfully and unlawfully used force or violence upon another person.
  • The force you used was harmful or offensive.
  • The alleged victim did not consent to the touching or contact.

Battery is typically charged as a misdemeanor offense in California. Upon conviction, potential penalties may include:

  • Up to six months in county jail.
  • Fines of up to $2,000.
  • Probation.
  • Restitution to the victim, if applicable.

Common defenses against a battery charge may include:

  • Self-defense or defense of others.
  • Lack of intent.
  • Consent by the alleged victim.
  • False accusations.

Rape, Penal Code 261

Rape, as defined by PC 261, refers to non-consensual sexual intercourse accomplished through force, fear, or when the victim cannot give consent due to intoxication, unconsciousness, or other factors. The prosecutor must establish the following elements to prove the crime of rape:

  • Sexual intercourse occurred.
  • Lack of consent from the alleged victim.
  • The lack of consent was due to force, fear, or the victim's incapacitation.

Rape is a felony offense in California and carries severe penalties. These include:

  • Imprisonment for a substantial period, ranging from three years to life.
  • Lifetime sex offender registration.
  • Restitution to the victim, if applicable.

Common defenses against rape charges may include the following:

  • Consent or mutual agreement.
  • Mistaken identity.
  • Lack of force or fear.
  • Challenging the credibility of the alleged victim's testimony.

Criminal Threats, Penal Code 422

Criminal threats occur when someone willfully threatens to commit a crime resulting in death or great bodily injury to another person. The threat must be specific, unequivocal, and immediate. To establish the crime of making criminal threats, the prosecutor must prove the following elements:

  • You willfully threatened to commit a crime resulting in death or great bodily injury.
  • Your threat was made intending to be taken as a threat.
  • You communicated the threat verbally, in writing, or via an electronic device.

Criminal threats can be charged as a misdemeanor or felony offense, depending on the circumstances. The potential penalties for a conviction may include the following:

  • Misdemeanor: Up to one year in county jail or fines of up to $1,000.
  • Felony: Imprisonment in state prison for up to four years or fines.

Common defenses against criminal threats charges may include:

  • Lack of intent or subjective intent to carry out the threat.
  • Insufficient evidence of a specific and credible threat.
  • Lack of communication or dissemination of the threat.

Find a Los Angeles Criminal Attorney Near Me

Because elderly people are helpless and cannot protect themselves, the government provides them with special protection. Any attempts to harm or exploit them will result in arrest and severe charges under California Penal Code 368. Elder abuse encompasses actions such as causing emotional or physical pain or neglect by caregivers.

Sometimes, seniors may have mental incapacity or confusion due to their medications. This can cause them to make unfounded claims of abuse against you. Unfortunately, even in these circumstances, law enforcement will consider these accusations and file charges against you. However, facing an arrest does not mean facing a conviction. With the guidance of your attorney, you can mount a strong defense to fight elder abuse charges against you.

At the Los Angeles Criminal Attorney, we will thoroughly investigate your case and demonstrate to the court that you are either a victim of false accusations or that the apparent signs of abuse stem from the elder's medical condition. We assist clients needing legal guidance to fight domestic violence charges in Los Angeles, CA. Give us a call today at 424-333-0943.