California Penal Code 368 is the penal code section enacted to criminalize elder abuse. If you have been charged under California Penal Code 368, it is important that you hire an experienced criminal defense attorney, and that you know what the prosecution must prove in order to obtain a conviction of elder abuse under PC 368.
Elder abuse can be in the form of physical abuse, emotional abuse, neglect and/or endangerment, or financial fraud when directed towards someone over the age of 65.
California elder abuse law is very complex and requires the assistance of an experienced law firm. Our Los Angeles criminal lawyers have a combined 55 years of experience and are knowledgeable on elder abuse laws.
Law of Elder Abuse in California
Under California Penal Code Section 368 elder abuse is defined as physical abuse, financial abuse, or any other treatment that results in physical and/or mental pain or suffering towards an elder or a dependent adult.
To be convicted of elder abuse the prosecution must prove beyond a reasonable doubt that defendant willfully or negligently subjected an elder to unjustifiable physical pain or mental suffering or allowed another person to do so; that the conduct occurred under circumstances likely to produce great bodily injury; that defendant knew or should have known that alleged victim was an elder (over 65 years of age).
As defense attorneys, our objective at LACD is to avoid these harsh penalties for our clients. We fight aggressively and do whatever we can to get the best possible results. We will assert any and all defenses applicable to our client’s case such as insufficient evidence, mistaken identity, accidental injury, or any other applicable defense.
If you or someone you know face criminal charges, contact a Los Angeles elder abuse attorney at our office to learn how we can defend you in court.
Types of Elder Abuse
There are two distinct types of elder abuse that an individual can be accused of committing. These two types of elder abuse are financial abuse and physical abuse.
Financial Elder Abuse:
Financial elder abuse is when an individual abuses the trust of the elderly person for financial gain. This can be when you are the trustee of an elderly person’s estate or merely a friend who convinces them to take part in an unwise investment. Financial elder abuse can result in a civil lawsuit from a family member or interested party, or possibly even a criminal charge.
Physical Elder Abuse:
If an individual is looking after an older person and they suffer an injury, that individual may be at fault for the injury and accused of physical abuse. Older people are much more susceptible to injury, and in many cases those accused of physical abuse of an elder have done nothing wrong. Regardless, a criminal charge may be filed, and criminal charges against the aged often come with more punitive penalties.
Penalties and Consequences
Elder abuse is considered a wobbler offense, meaning that depending on the circumstances, the crime may be charged as either a misdemeanor or a felony.
If convicted of misdemeanor elder abuse, a defendant faces informal probation, a maximum of one year in jail, fines ranging from $6,000 to $10,000, restitution to victim ,and counseling. If convicted of felony elder abuse, a defendant faces formal probation, two to four years in state prison and an additional seven years if the victim suffered great bodily injury, up to $10,000 in fines, restitution to victim, and counseling.
FELONY CONVICTION
If convicted under PC 368 as a felony, the defendant will face all or any of the following punishments:
- State imprisonment for two-four years, or
- Imprisonment in the county jail for up to a year, or
- Fines up to $6,000, or
- Both imprisonment and fines.
If the victim suffers great bodily harm or death then the prison sentence is increased by three to seven years. In addition to the fines and prison time, the defendant faces all or any of the following matters:
- probation/parole
- restitution
- complete community service as ordered by the court,
- undergo any type of counseling services ordered by the court.
If convicted of a felony the defendant cannot possess guns, vote, serve on a jury or hold a public office.
MISDEMEANOR CONVICTION
If the defendant is convicted of a misdemeanor PC 368 he is subject to same fines as a felony conviction, but is only subject to up to one year in county jail. A defendant convicted of a misdemeanor PC 368 charge can also face informal probation, restitution, and counseling.
Strategies and Legal Defenses
A lot of defenses in elder abuse cases really center around the facts of the case and whether or not the authorities are able to prove that the person that’s charged with elder abuse actually did anything wrong.
Sometimes, when it comes to financial elder abuse, the person that’s being accused is really just trying to help the other party and they’re permitted to use funds for themselves while they take the time and effort to try to help their elderly parent or someone that’s a family member to them.
So, what it really comes down to when it comes to elder abuse is whether or not the authorities have the evidence to prosecute somebody for this type of serious offense. An experienced attorney can assist you in mounting an effective defense against the charge of PC 368. There are many legal defenses to this charge and below are the most common:
Victim Was Not 65 Years Or Older /
Defendant Were Unaware:
According to Penal Code 368, the victim must have been 65 or older at the time of the alleged abuse, and the offender must have been aware that the victim was at least 65 years old. You cannot be charged with this felony if the victim is under the age of 65 unless the victim is an adult who is dependent on you. Also, you cannot be found guilty of elder abuse if the victim does not appear to be 65 years old and the defendant had no reason to believe the victim was at least 65.
Injuries were an accident:
As we mentioned before, the most important element the prosecution has to prove is that the defendant’s conduct was willful. If the defendant accidentally injures the victim through no willful act of his own, then the accident serves as a defense to the crime of elder abuse.
Defendant Was Not Criminally Negligent:
If the victim was in your care or custody, the prosecution must show that you willfully violated the penal code 368 or you were criminally negligent at the time the victim was injured. In order for the prosecution to prove criminal negligence, they have to show that the defendant acted in a way that created a high likelihood of injury to the victim. In most cases if the victim was in the defendant’s care but the defendant was simply careless when the victim was injured, the defendant cannot be convicted.
False Accusation:
In some cases, elder abuse charges are filed against innocent individuals. The alleged victim is intentionally lying or suffers from physical or mental conditions that may give signs of neglect or physical abuse. Furthermore, police and social workers are required to act on any suspected abuse and could face legal issues for failing to report. As a result, you may find yourself facing elder abuse charges with little to no evidence to support the accusations. Our criminal defense attorneys may be able to prove the allegations are false.
Self Defense:
It may be possible to show that you were acting in self-defense or defense of another individual. In some cases, an elderly person may become physically aggressive and put you at risk of harm. Our criminal defense attorneys may be able to prove it was reasonable to believe you or another person was in imminent danger of suffering great bodily injury, and you had to use immediate force to avoid the threat and did not use any more force than necessary to defend against the immediate threat.
Lack or Evidence:
The prosecutor has to prove, beyond any reasonable doubt, the elements of the crime to obtain a conviction. This means proving you were responsible for abusing the elderly victim and there were no other reasonable explanations. Our criminal defense lawyers may be able to cast some doubt by calling on experts to testify the signs of abuse are consistent with an illness or their age. Additionally, it may be possible to prove the accusations are not based on facts, but the elderly victim is senile, paranoid, or delusional.
Frequently Asked Question
California has the Elder Abuse and Dependent Adult Civil Protection Act. This law prohibits the following behavior directed towards anyone 65 years of age or older:
- Physical abuse
- Psychological abuse
- Neglect and endangerment
- Financial exploitation
California elder abuse laws also allow victims to file civil lawsuits for damages against their abusers. If you suspect that your loved one is suffering from elder abuse in California, contact our elder abuse attorneys today.
Under California’s elder abuse statute, physical elder abuse encompasses many types of force. Physical abuse in California can mean:
- Assault
- Battery
- Assault with a deadly weapon or force likely to cause bodily injury
- Unreasonable physical constraint
- Deprivation of basic needs, such as food and water
- Sexual assault
- Physical or chemical restraints for punishment or any other purpose not authorized by the physician
Accordingly to the elder abuse laws in California, an elder adult is anyone who is at least 65 years old. A dependent adult is anyone who is between 18 and 64 years old and has physical or mental limitations that restrict his or her ability to carry out normal activities or protect his or her rights. Abuse relating to the treatment of either an elder adult or a dependent adult is covered under CA Penal Code section 368.
“Unjustifiable physical pain or suffering” is defined as pain or suffering that is either excessive under the circumstances, or not reasonably necessary. Although restraining an elder adult may be justifiable in certain situations, restraints that are clearly unreasonable or excessive are a form of elder abuse. Reasonableness is determined on a case by case basis and will depend on all the circumstances present at the time of alleged abuse.
Legal Advice and Free Consultation
If you have been accused of elder abuse, you should immediately contact a Los Angeles criminal defense lawyer at the top-ranked law firm of LACD. Retaining a lawyer with experience in elder abuse cases can be critical to the outcome of your case.
We have a track with a record of success defending our clients against elder abuse criminal offenses. Our attorneys have over 55 years of combined criminal law experience and are ready to defend you. Call us right away (818) 855-2115, or fill this form and we will contact you as soon as possible.
You also have the option to schedule your 30 minutes face to face Free Consultation with your criminal lawyer through this link. Do not hesitate as we are more than happy to help.