CALIFORNIA PENAL CODE 368 PC – ELDER ABUSE LAWS

Elder abuse is a serious crime that is defined by California Penal Code § 368 PC as the physical or emotional abuse, neglect, or financial exploitation of a victim who is 65 years of age or older. This crime can be prosecuted as either a misdemeanor or a felony, and the punishment can range up to four years in jail or prison.

Examples of elder abuse crimes include not feeding an elderly parent who cannot care for themselves, a caretaker ridiculing an elderly patient for being wheelchair-bound, or a person using fraud to convince an elderly neighbor to make them the sole beneficiary in the elder’s will. There are certain defenses that can be used in elder abuse cases, such as no willful act, self-defense, and/or falsely accused.

Elements – Penal Code 368 PC

Elder abuse is often domestic violence related. In order to successfully prosecute a defendant for elder abuse as a felony crime, a prosecutor must prove certain elements.

• Firstly, they need to establish that the defendant either deliberately or acted negligently and caused the elderly person to experience unjustifiable mental suffering or physical pain.
• Moreover, the conduct leading to such a situation must have happened under circumstances that could potentially cause severe body injury or even death.
• Lastly, it’s essential to show that the defendant knew or had reasons to know that the victim was 65 years old or older. Only after successfully demonstrating all these elements can a prosecutor successfully charge someone with felony-level elder abuse.

When it comes to misdemeanor-level elder abuse, the prosecution must be able to demonstrate the following elements:

• The defendant intentionally or negligently caused an elderly person to endure physical pain or mental suffering that was unjustifiable.
• The conduct occurred in circumstances that could potentially jeopardize the life or well-being of the elderly person.
• Additionally, the defendant knew or should have known that the victim was 65 years old or older.

To establish that a defendant committed fraud or another type of financial crime against a senior, the prosecutor needs to prove the following elements:

• The defendant engaged in a financial crime such as theft, fraud, or embezzlement.
• The property that was stolen or affected belonged to a person who is 65 years old or older.
• Furthermore, it must be demonstrated that the defendant either served as a caretaker for the victim or had knowledge or reason to know about the victim’s elderly status.

Elder abuse can manifest as an ongoing pattern of behavior or as a single incident. This section of the Penal Code 368 also extends protection to dependent or vulnerable adults who are unable to care for themselves.

Example Of California Penal Code 368 PC

A woman named Sarah works as a caregiver for an elderly man named John, who lives alone in his own home. Sarah is responsible for assisting John with his daily activities, including cooking his meals, helping him with personal hygiene, and managing his medications. However, Sarah regularly neglects her duties and fails to provide John with the care he needs.

Sarah often leaves John alone for long periods of time without adequate supervision. As a result, John frequently falls and sustains injuries. Sarah does not seek medical attention for him or inform anyone about the falls. Additionally, she fails to ensure that John is taking his prescribed medications, causing his health to deteriorate. Furthermore, Sarah manipulates John to gain access to his financial resources. She persuades him into signing over power of attorney to her and uses his money for her personal expenses instead of using it to meet his needs.

In this scenario, Sarah could be charged with elder abuse under California Penal Code Section 368 PC. Her neglectful behavior, which leads to John’s frequent falls and injuries, and her financial exploitation of him constitute acts of elder abuse. It is crucial for caregivers to fulfill their obligations and provide proper care and support to the elderly individuals they are responsible for, in order to prevent elder abuse charges.

Related Crimes

• Embezzlement – California Penal Code Section 503 PC
• Forgery – California Penal Code Section 470 PC 
• Theft – Various Sections under California Penal Code 
• False Imprisonment – California Penal Code Section 236 PC 
• Identity Theft – California Penal Code Section 530.5 PC
• Physical Abuse – Various Sections under California Penal Code 
• Fraud  – Various Sections under California Penal Code 
• Battery – California Penal Code Section 242 PC
• Petty Theft – California Penal Code Section 484 PC
• Grand Theft – California Penal Code Section 487 PC

Penalties – California Elder Abuse Law PC 368

In Los Angeles County, when someone is charged with elder abuse, the nature of the abuse and the individual’s past criminal record will influence whether the case is prosecuted as a misdemeanor or a felony. This type of law, which allows for such discretion, is often referred to as a “wobbler” due to its flexibility.

If convicted of a misdemeanor offense, the consequences can be quite serious which include:

• Up to one year in a Los Angeles County jail.
• A fine of up to $6,000.
• Restitution to the victim.
• Required counseling.
• Informal probation.

On the other hand, if convicted of a felony elder abuse offense, the penalties can be more severe and may include:

• Up to four years in a California state prison.
• A fine of up to $10,000.
• Required counseling.
• Restitution to the victim.
• Formal probation.

It’s important to note that if the elder abuse resulted in significant physical harm, the legal repercussions would be more severe. In such cases, the accused might also face an additional ‘strike’ under California’s Three Strikes Law, which could lead to even longer prison sentences for repeat offenders.

Related to this, the crime of firearm possession in violation of a court order is defined under Penal Code 29825 PC. Additionally, there is a sentencing enhancement for great bodily injury under California Penal Code Section 12022.7.

Immigration Consequences Of Elder Abuse Crime California

The immigration consequences of “elder abuse” crimes in California can vary depending on the specific circumstances and severity of the offense. However, certain misdemeanor convictions related to elder abuse may trigger the deportation ground based on committing a crime involving moral turpitude (CIMT).

• Convictions for elder abuse may trigger deportation proceedings against non-citizens. Certain criminal convictions, especially those categorized as crimes of moral turpitude or aggravated felonies, can render a non-citizen deportable under U.S. immigration law.
• A conviction for elder abuse might also render a non-citizen inadmissible to the United States. Inadmissibility bars entry to the U.S. and can also prevent adjustment of status to that of a lawful permanent resident.
• A conviction might affect an individual’s eligibility for immigration bond, which is crucial for those seeking release from detention during immigration proceedings.

Can I Get A Conviction Expunged?

Please note: Felony elder abuse convictions can never be expunged from a person’s record.

But, It is possible to have a misdemeanor conviction related to elder abuse expunged in California if certain requirements are met. Specifically, the necessary requirements are:

• Successful completion of probation, or
• Successful completion of a jail term, whichever is applicable.

If the defendant meets these requirements, they can petition the court to expunge the conviction from their criminal record. To know more about domestic violence charges expungement, check out our detailed blog: Can Domestic Violence Charges Be Expunged in California? If you’re looking for information on expunging a crime in California, contact our Los Angeles expungement attorney. 

Defenses To Fight Elder Abuse Charges Under California Penal Code 368 PC

In Los Angeles County, prosecuting authorities actively pursue charges against individuals accused of elder abuse. The situation becomes increasingly complicated as, often, the accused are family members emotionally attached to the alleged victims, making the legal defense process quite overwhelming.

Hiring an experienced criminal defense lawyer from Tabibnia Law firm in Los Angeles could significantly aid in navigating through such complex cases. Cyrus Tabibnia employs a range of legal defenses to combat elder abuse charges, as illustrated below:

• False Accusation: In some instances, accusations of elder abuse are baseless, stemming either from deliberate falsehoods or misconstrued physical or mental conditions that mimic signs of neglect or abuse. The law mandates prompt action on any suspicion of abuse by police and social workers, who might otherwise face legal repercussions for non-compliance. This urgency could precipitate accusations with scant or no supporting evidence. Our attorney might be able to discredit such unfounded claims.
• Accidental Injury: The defendant may have caused the victim harm inadvertently, and in such cases, you did not willfully cause unjustifiable physical pain. Our defense lawyer can help establish that the injuries were the result of an accident, and there was no willful intent to harm.
• Insufficient Evidence: To secure a conviction, the prosecution must substantiate, beyond a reasonable doubt, the elements of the alleged crime, including the accused’s culpability in abusing the elderly victim. By leveraging expert testimonies, our lawyer might cast doubt on the prosecution’s case, arguing that the purported signs of abuse are attributable to illnesses or the aging process. Moreover, he could challenge the veracity of accusations if they appear to emanate from an elderly individual’s senility, paranoia, or delusional state.
• Self-Defense: In some cases, the defendant may have acted in self-defense or defense of another individual. An elderly person may become physically aggressive and put the defendant at risk of harm. Our criminal defense attorney can help demonstrate that the force the defendant used was reasonable and necessary to avoid immediate harm, and did not use more force than was reasonably necessary to address the threat.

Criminal Defense Lawyer For Elder Abuse Cases California

If you’re accused of elder abuse in Los Angeles, it’s a smart move to call a lawyer right away, especially from Tabibnia Law. They know the ropes when it comes to elder abuse cases. Our Los Angeles criminal lawyer, Cyrus Tabibnia, has a stellar history of helping clients who are facing these difficult charges.

For example, there was a client who was accused of mistreating an older person and stealing from them. This person was looking at the possibility of spending five years in prison. But after talking a lot with the prosecutor, Cyrus managed to get a deal where the client just got probation and had to do some community service, avoiding jail.

In another situation, there was a client accused of financially taking advantage of an elderly person with a large sum of money involved, about $200,000. Again, after a lot of talking and negotiating, Cyrus got a deal for this client too. The client got probation, had a work release, and paid back the money.

There’s also a made-up example to consider: say, a client was accused of neglecting an elderly person they were supposed to take care of. The accusation could lead to severe penalties. But Cyrus managed to prove that the client had no bad intentions and the neglect was unintentional. The client ended up with a lighter sentence of attending a caregiving course to better understand the needs of the elderly.

So, if you’re facing elder abuse charges, give Tabibnia Law a call at (866) 713-2159 to talk about your case with an experienced lawyer for elder abuse crime California.

Legal References

leginfo.legislature.ca.gov | justice.gov | findlaw.com | law.justia.com | sdsheriff.gov