Penal Code 368 PC - The Crime of Elder Abuse in California
California Penal Code 368 PC defines elder abuse as the physical or emotional abuse, neglect, or financial exploitation of someone 65 years of age or older. This crime can be prosecuted as a misdemeanor or a felony (wobbler) and is punishable by up to four years in jail.
This elder abuse law covers various situations when someone could be charged with this crime. Victims 65 years or older are given special protections as abuse cases continue to rise.
These types of criminal charges, often related to domestic violence, are severe. The Los Angeles County District Attorney's Office has a separate unit specializing in prosecuting elder abuse cases, also known as “senior abuse.”
Notably, the victims under this law don't always have to be senior citizens but also someone who is a dependant with mental or physical limitations that impair their ability to perform routine daily activities.
Defendants of elder abuse cases are frequently family members or caregivers. Elder abuse occurs in many forms, including physical, mental, or financial abuse. Further, it's also a crime to willfully cause or allow an elderly or dependent individual to suffer unjustifiable pain.
The law protects any dependant adult who has mental or physical limitations that would impair their ability to perform daily routine activities. Physical abuse includes causing injuries, such as bruising or abrasions, but also includes bruises, fractures, or burns. Physical abuse also includes the following:
- neglect,
- abduction,
- abandonment, or
- sexual abuse.
Emotional abuse includes mental suffering, such as ridicule or isolation. Financial abuse involves embezzlement and fraud, such as identity theft, credit card fraud, and forgery. Let's review this state law in more detail below.
What Does the Law Say?
As noted, Penal Code 368 PC is the California statute defining severe elder abuse crime: anyone at least 65 years old. A dependent adult is anyone between 18 and 64 years old with physical or mental limitations restricting their ability to carry out everyday activities.
PC 368 says, “(a) The Legislature finds and declares that elders, adults whose physical or mental disabilities or other limitations restrict their ability to carry out everyday activities or to protect their rights, and adults admitted as inpatients to a 24-hour health facility deserve special consideration and protection.
(b)(1) A person who knows or reasonably should know that a person is an elder or dependent adult and who, under the circumstances likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elderly or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable….”
(2) If, in the commission of an offense described in paragraph (1), the victim suffers great bodily injury, as defined in Section 12022.7, the defendant shall receive an additional term in the state prison as follows:
(A) Three years if the victim is under 70.
(B) Five years if the victim is 70 or older.
(3) If, in the commission of an offense described in paragraph (1), the defendant proximately causes the death of the victim, the defendant shall receive an additional term in the state prison as follows:
(A) Five years if the victim is under 70.
(B) Seven years if the victim is 70 or older.
What Must Be Proven for a Conviction?
To be convicted of PC 368 elder abuse, the prosecutor must prove, beyond a reasonable doubt, some aspects of the crime, including the following:
- The victim was age 65 years or older.
- You knew or should have known they were at least 65.
- You willfully caused unjustified physical pain or mental suffering OR
- You allowed someone else to do so.
- Your conduct could have endangered their health or life.
- You had a legal duty to act.
“Willfully” means it was on purpose or deliberate. Unjustifiable pain or mental suffering means causing pain that is not necessary or that is excessive. “Great bodily harm” means a significant physical injury. “Unjustifiable physical pain or mental suffering” means pain or suffering that is not necessary or excessive under the circumstances.
Notably, however, the elder does not have actually to suffer an injury; they are only placed in a situation where it could have happened.
What Does Elder Abuse Mean?
As noted, elder abuse can occur in many different ways, including the following:
- Physical abuse, such as inflicting unjustifiable pain or injury on a senior victim.
- Emotional abuse, such as ridicule or isolation.
- Neglect and endangerment, such as placing the senior in a situation that might endanger their health and safety.
- Financial exploitation is known as senior fraud, such as theft, fraud, or embezzlement while you were a caretaker.
What About a Caregiver?
A typical example in Los Angeles of elder abuse is when a normally loving and caring family member becomes overwhelmed with all the demands of caring for an elderly person. Then, quickly, they lose their temper and physically assault them.
Suppose you are the caregiver of an elder or dependent adult. In that case, the district attorney must be able to prove that while having care or custody of the victim, you willfully or negligently caused their injuries or placed them in a dangerous situation that was likely to cause injury. An elder adult is anyone who is at least 65 years old. A dependent adult is:
- Anyone between 18 and 64 years old, and
- Has a physical or mental limitation that restricts their ability to carry out everyday activities.
Criminal negligence means your conduct, or lack of action, created a substantial risk of great bodily injury or death. For example, a caregiver failing to give an elder their prescribed medication could be considered negligent and enough to support PC 368 elder abuse charges.
Failing to give an elder their prescribed medication could be considered negligent and sufficient evidence to support an elder abuse charge. Whatever the circumstances that resulted in elder abuse charges, it's a serious crime with potentially harsh legal consequences.
What Are the Penalties for PC 368?
Penal Code 368 PC, elder abuse, is a “wobbler” that can be filed as either a misdemeanor or felony crime, depending on the case details.
If convicted of a misdemeanor, the penalties include the following:
- Up to one year in county jail.
- A fine of up to $6,000 fine.
- Victim restitution.
- Informal probation.
If convicted of a felony elder abuse, the penalties include the following:
- Up to four years in California state prison.
- A fine of up to $10,000 fine.
- Victim restitution.
- Formal probation.
- Counseling.
If the victim suffers great bodily injury, the penalties can increase, and you could face a “strike” under California's Three Strikes Law. Related sentencing laws include the great bodily injury sentencing enhancement defined under California Penal Code Section 12022.7 and the crime of firearm possession violating a court order defined under Penal Code 29825 PC.
Also, under California Welfare and Institutions Code 15600, an elder abuse victim can file a civil lawsuit against their abuser.
What are PC 368 Related Crimes?
- Penal Code 422 PC criminal threats. This law defines a criminal threat as when someone threatens to kill or physically harm another person, which places a victim in fear. The threat must be specific and unequivocal, and the person must communicate the threat verbally, in writing, or via an electronic device.
- Penal Code 261 PC rape. This law defines the crime of rape as nonconsensual sexual intercourse with another person using threats, force, or fraud.
- Penal Code 242 PC battery. This law defines the crime of battery as any willful and unlawful use of force or violence on another person. The offense can occur even if you did not cause the victim pain or injury.
What Are the Defenses for PC 368?
Suppose you are facing charges of violating Penal Code 368 PC. In that case, our California criminal defense lawyers can use different strategies for the best possible outcome, as discussed below.
Perhaps we can argue that you are the victim of a false accusation. Sometimes, elder abuse charges are filed against innocent people. Maybe the alleged victim is lying or suffers from physical or mental conditions that may give signs of neglect or physical abuse. Perhaps the elderly victim is senile, paranoid, or delusional.
Perhaps we can argue that the injury was an accident. Under the law, you must deliberately cause unjustifiable physical pain or mental suffering to an elderly victim. Maybe we can prove the injuries resulted from an accident and that you did not intend to cause harm.
Perhaps there is a lack of evidence to obtain a conviction. Maybe we can cast some doubt by calling on experts to testify that the signs of abuse are consistent with an illness or age.
Perhaps we can argue self-defense. Maybe you were acting in self-defense or defense of another individual after the elderly person became physically aggressive and put you at risk of harm.
If you have been accused of elder abuse, you should immediately contact our law firm for a free case evaluation. We have a track record of success defending people against elder abuse offenses. To review the details of your elder abuse case, contact us by phone or using the contact form. The Hedding Law Firm is located in Los Angeles, CA.
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