Elder Abuse (Penal Code 368 PC)

What is California Penal Code 368 PC Elder Abuse?

In California, most suspects of elder abuse are members of the alleged victim’s family.  However, caregivers are also commonly suspected.  It is a crime increasingly on the rise.  And it is rampant on every level in California – regardless of the community, financial, or cultural background of the victim.  One estimate states that 1/7th of the seniors in the United States have experienced elder abuse.  As a result, law enforcement and prosecutors in California are starting to aggressively pursue allegations of elder abuse.  On the overall, this is a welcome pursuit by the authorities. However, this also means many defendants are going to be falsely accused or overly punished for the crime.  Prosecutors and law enforcement are increasingly trying to make examples out of the cases that arrive on their desks.

The law governing against criminal elder abuse is codified in California Penal Code 368 PC.  California Penal Code 368 PC Elder Abuse was designed to cast a wide net and prohibit a broad range of conduct.  California Penal Code 368 PC Elder Abuse covers physical mistreatment, financial mistreatment, and any type of mistreatment that ends up causing the victim physical or mental pain.  Under California Penal Code 368 PC Elder Abuse, physical mistreatment goes beyond just causing physical injuries.  It includes sexual mistreatment, negligence, desertion, and kidnapping.  Furthermore, financial abuse includes thievery and fraudulent conduct.

California Penal Code 368 PC Elder Abuse is specifically designed to provide a heightened level of protection for older people.  Older people are more likely to have either a mental or physical disability due to their age.  Moreover, older people might be suffering the effects of an ailment or medication that makes them more easily confused, frustrated, or forgetful.  As a result, older people have difficulty dealing with their day-to-day needs.  Additionally, they are limited in their ability to both defend themselves and stand up to others when they are facing real or potential mistreatment.  California Penal Code 368 PC Elder Abuse is just part of a long series of laws, both civil and criminal, that recognizes these facts.  

In California, many counties maintain prosecution departments that specialize in pursuing California Penal Code 368 PC Elder Abuse cases.  Usually, a specialized and trained prosecutor will manage the California Penal Code 368 PC Elder Abuse case from start to finish.  Most cases arrive on the desk of prosecutors from police officers, but many county district attorney or city attorney offices maintain hotline numbers so members of the public can report California Penal Code 368 PC Elder Abuse type abuses directly.  Cases can arise from reports filed from anyone, including the elder victims themselves, family members, friends, physicians, or even caregivers.  These specialized departments will follow up and investigate the cases to determine whether or not to pursue charges.

The organization that pursues your case will depend on a set of factors, such as where the elder abuse occurred, the classification of charges (felony or misdemeanor), and the specific nature of the crime.  Typically, the local district attorney will oversee felony California Penal Code 368 PC Elder Abuse cases.  Similarly, the city attorney will usually oversee misdemeanor California Penal Code 368 PC Elder Abuse cases.  The California Attorney General’s office will only pursue cases that arise out of nursing homes or treatment facilities.  Furthermore, depending on the county, specialized departments will only pursue financial California Penal Code 368 PC Elder Abuse cases or physical California Penal Code 368 PC Elder Abuse cases.

What is the legal description of California Penal Code 368 PC Elder Abuse?

To be convicted of a domestic violence crime in the state of California through a trial hearing, the prosecutor must prove their case against you.  This means for a particular domestic violence charge, the prosecutor must prove each of the elements pertaining to the charge.  An “element” is simply a fact related to a crime.  The prosecutor must prove each element up to a set level of certainty.  For a California domestic violence crime, the prosecutor must prove each element “beyond a reasonable doubt.”  Keep in mind, however, that the prosecutor must only prove their case in a trial hearing, where the verdict of guilt or innocence is ultimately decided by a judge (bench trial) or a jury (jury trial).  Note that you can still earn a conviction if you accept a plea offer or formally confess to charges.  In these cases, a prosecutor is not required to demonstrate the elements.

The elements for felony California Penal Code 368 PC Elder Abuse are the following:

  1. You purposefully or negligently (criminal level) either (A) directly subjected an elder person to indefensible bodily pain or psychological anguish or (B) permitted another individual to commit the action in (A).
  2. The behavior happened in conditions that were likely to result in pronounced bodily harm or fatality. (Note, if you are being charged with a misdemeanor, then this element will read: The behavior happened in conditions that could have imperiled the life or healthiness of the elder.)
  3. You had knowledge or should have reasonably had knowledge that the supposed victim was an elder.

Now, we will review each of these elements in more detail.  It is important to understand the nuances of California Penal Code 368 PC Elder Abuse, because they largely dictate what will be the central issues of your criminal prosecution.  Your ability (or your domestic violence attorney’s ability) to investigate and bolter your case with evidence on particular elements will improve your standing to negotiate a dismissal of charges or reduced charges with the prosecutor.  And if the case goes to trial, it is extremely helpful to have evidence that can be presented to a jury that can counter the prosecutor’s evidence.

Purposefully

The prosecutor may have to prove that you committed the California Penal Code 368 PC Elder Abuse violation purposefully, or in other words, intentionally.  This means that if you accidentally hurt an elder person, you are not criminally liable under California Penal Code 368 PC Elder Abuse.  In general, it is difficult for prosecutors to prove intent.  This is because it is truly difficult to get in the mind of another person.  However, the prosecutor can use circumstantial evidence to prove intent.  Your actions and things said could be used against you to prove intent.  Additionally, a jury may not give you the benefit of the doubt and could surmise that your actions or the harm that occurred is enough to surmise intent.  This is why it’s important to have a Domestic Violence Attorney who knows how to pick a winnable jury and is experienced in trial-work.

Elder

Under California Penal Code 368 PC Elder Abuse, an elder is a person who is 65 years or older.  If the supposed victim is under the age of 65, then California Penal Code 368 PC Elder Abuse does not apply.  Note, however, that you may be liable for another crime if you harm someone under the age of 65.

Criminally Negligent

The prosecutor is not just limited to showing that you acted purposefully.  You can also be convicted under California Penal Code 368 PC Elder Abuse if they can show you acted negligently (criminal level).  This is a higher form of negligence than is required in a California civil case.  It goes beyond just commonplace sloppiness.  Under California Penal Code 368 PC Elder Abuse, the prosecutor needs to show that you acted so unreasonably such that your behavior demonstrates a disdain for the elder person’s life or well-being.  As discussed above, a prosecutor can use direct or circumstantial evidence to prove intent.  Note, that you can only be convicted on the basis of being criminally negligent if you had a lawful responsibility to act.  Hence, if it can be shown that you had no legal duty to intercede, then you cannot be held criminally liable under California Penal Code 368 PC Elder Abuse.

Example: Linda suffers from dementia.  Linda previously lived with her son, Hercules, who was in charge of her while they lived together.  Now, Linda lives with her sister, Betty.  Hercules visits his mother a few times a year.  When he visits his mother at Betty’s house, he finds that his mother is living in filth and is rarely being fed.  This concerns him but he doesn’t take any actions.  Eventually, Linda dies from lack of nutrition and preventable diseases.  In this example, Betty might be criminally liable under California Penal Code 368 PC Elder Abuse.  But Hercules is not.  Even though he used to be the official caretaker, he was not at the time of the abuse.  Therefore, he did not have a duty to report Betty’s abuse or take any remedial action.  Hence, even though morally, Hercules should have taken some actions to protect his mother, he was not bound by law to do so.

Indefensible Pain/Psychological Anguish

The prosecutor has to show, given the surrounding circumstances, that the pain or anguish caused was unnecessary or undue.  Hence, if you are a caregiver who needs to administer an injection of insulin for a diabetic elder person, then the pain created by the needle would most likely be seen as necessary and therefore out of the purview of California Penal Code 368 PC Elder Abuse.  However, if the caregiver wants to use the needle as a form of punishment and purposefully uses it in a painful manner, then this would probably fall under California Penal Code 368 PC Elder Abuse.

Conditions that are likely to result in pronounced bodily harm or fatality

Keep in mind that a violation under California Penal Code 368 PC Elder Abuse does not require that an elder person be actually injured.  Felony California Penal Code 368 PC Elder Abuse punishes those who purposefully or negligently (criminal level) place an elder person in a condition where they are likely to undergo an injury.  This is an important distinction.  California Penal Code 368 PC Elder Abuse focuses on the creation of circumstances that leads to actual harm.  No actual harm needs to occur to be liable under California Penal Code 368 PC Elder Abuse.

What are the potential punishments under California Penal Code 368 PC Elder Abuse?

California Penal Code 368 PC Elder Abuse is considered a “wobbler.”  A wobbler is a charge that can be pursed as either a misdemeanor or a felony.  The decision to charge a California Penal Code 368 PC Elder Abuse as a misdemeanor or felony is decided by the prosecutor.  To make this decision, the prosecutor considers the particular facts of the violation and the defendant’s criminal record.  If the violation is particularly heinous or if you have a history of elder abuse, then it is more likely the prosecutor will charge you with a felony.  The classification as a misdemeanor or a felony has a huge impact on the potential punishments.

A misdemeanor California Penal Code 368 PC Elder Abuse conviction can result in any, or all, of the following: up to 1 year in county jail, up to six thousand dollars in sanctions for a 1st time offense (up to ten thousand dollars for later convictions), misdemeanor probation, payment of restitution, and/or mandatory therapy.

A felony California Penal Code 368 PC Elder Abuse conviction can result in any, or all, of the following: up to 4 years in a state prison (which may increase depending on if any sentencing enhancements apply or if you have earned a “strike” in the past), up to ten thousand dollars in sanctions, payment of restitution, felony probation, and/or mandatory therapy.

What are the legal defenses available to fight a charge under California Penal Code 368 PC Elder Abuse?

The punishments under California Penal Code 368 PC Elder Abuse can be quite severe.  However, there are many legal defenses available to fight charges of California Penal Code 368 PC Elder Abuse.  You should talk with an experienced Domestic Violence Attorney to find out which specific defenses are available in your specific case.  Below, we explain some of the more common legal defenses to California Penal Code 368 PC Elder Abuse.  Remember, these legal defenses will form part of what is a larger defense strategy that your Domestic Violence Attorney will construct to maximize the best possible outcome in your case.  For example, your Domestic Violence Attorney may also want to utilize procedural strategies to bolster your case.  Regardless, these defenses will be not only helpful at trial but also in negotiating for reduced or dismissed charges with the prosecutor.

It was an accident.

Remember, one of the elements of California Penal Code 368 PC Elder Abuse is intent.  The necessary intent for a conviction is purposefulness or criminal negligence.  Hence, if it can be shown that the source of any injuries was an accident, this would serve as a legal defense under California Penal Code 368 PC Elder Abuse.  Given that taking care of an elderly person is a difficult and emotionally taxing responsibility, it is not uncommon for accidents to occur.

You are being falsely accused.

It is not uncommon to be falsely accused of a California Penal Code 368 PC Elder Abuse violation.  The reason might be innocent.  Elder abuse is difficult to spot.  This is especially the case with an elderly person who may suffer from a variety of ailments.  An injury might be confused with abuse when really it’s a symptom of a medical problem.  Furthermore, medical professionals are under a duty to report any potential abuse.  If they don’t report it, they might be criminally liable or lose their professional licenses.  This is why in many cases medical professionals will err on the side of caution and report abuse.  This potentially results in the criminal prosecution of an innocent person.

Or the reason might be sinister.  The family of the elder person might be seeking a payday by falsely accusing a caregiver of abuse.  Or one family member might be upset that another family member is being given a large gift of money in the elderly person’s will.  As a result, they fabricate stories of abuse to either get revenge or to possibly get a leg up in a planned testamentary challenge.

Whatever the reason, a skilled Domestic Violence attorney can hire an investigator, utilize knowledgeable medical experts, and conduct witness interviews to help bring the truth to light.

The mistreatment was a singular occurrence.

Taking care of an older person is no doubt a demanding and difficult job.  It takes a tremendous amount of energy, patience, and resolve to deal with an older person, especially if they suffer from a physical or mental disability.  A Domestic Violence Attorney can present to the court that the abuse was a single and unintended incident.  For example, they can show that you had a particularly difficult day and it lead to unintended conduct that caused harm to the person you care for.  By doing this, your Domestic Violence attorney can persuade the court or a prosecutor to reduce or even dismiss charges.

5) What should you do if you are charged with California Penal Code 368 PC Elder Abuse?

Call an experienced and diligent Domestic Violence Attorney immediately.  As discussed above, a conviction under California Penal Code 368 PC Elder Abuse can lead to serious punishments.  It is important that you have someone fighting on your behalf.  And the earlier you retain a Domestic Violence Attorney, the better potential outcomes you leave open.  This is because the police and prosecutors often build biased, one-sided cases.  If you go into court relying on their version of the evidence, you enter with a serious disadvantage.  A Domestic Violence attorney can build a supporting evidentiary record that tilts in your favor.  This is easier to do when witness memories are still fresh and when physical evidence doesn’t go stale.  Additionally, a Domestic Violence Attorney can start the negotiating process early –letting a prosecutor know that there is someone on your side who is capable and willing to fully fight the charges.  This makes it more likely a prosecutor will reduce or dismiss charges.  And depending on the stage of criminal prosecution, a Domestic Violence Attorney may be able to stop charges from ever being filed in the first place.

Feel free to talk to one our Domestic Violence Attorney.  They will gladly review your case and discuss any important legal issues, potential punishments, and available defenses.

Call 424-276-6060 for a free consultation today.

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