Review of Penal Code 368 PC Elder Abuse Charges and Defenses in California
California Penal Code 368 PC describes the crime of elder abuse as physical or emotional abuse, neglect, or financially exploiting someone who is 65 years of age or older.
In many cases, elder abuse falls under the category of domestic violence due to the illegal conduct committed by a family member.
Elder abuse is a “wobbler” crime that can be filed as either a misdemeanor or a felony and the penalties include up to four years in jail.
PC 368 protects elders, dependent adults, and persons with disabilities. This statute makes elder abuse a crime punishable by large fines, jail time, and probation.
If the victim sustained a great bodily injury (GBI), there are more severe sentences.
Elder abuse can involve more than just physical abuse. Prosecutors may charge you for:
- emotional harm, and
- financial exploitation against elders.
If you face an elder abuse charge, you must know what you're up against and retain legal representation.
Our Los Angeles criminal defense lawyers are providing more detailed information below.
What is PC 368 Elder Abuse?
To understand elder abuse laws, you must first understand what constitutes an elder. Penal Code 368 says:
- “any person who knows that someone is an elder or dependent adult and willfully causes or permits them to suffer, or inflicts unjustifiable physical pain or mental suffering, is guilty of a crime.”
California considers an elder as anyone who is 65 years of age or older. A common related crime for elder abuse is criminal threats under Penal Code 422 PC.
What is abuse?
In the context of PC 368 elder abuse, the term “abuse” can occur in different ways:
- physical abuse, such as inflicting an injury on an elder;
- emotional abuse, such as isolating an elder from others;
- neglect, such as placing an elder in a dangerous situation;
- financial abuse, such as exploitation, embezzlement, and fraud.
You can also face abuse charges against dependent adults who have physical limitations, mental disabilities, or live in an inpatient or 24-hour health facility.
Grounds for elder abuse
PC 368 also establishes the grounds for elder abuse. You can face an elder abuse charge for committing any of the following acts:
- willfully causing or permitting suffering of elder;
- inflicting unjustifiable physical pain or mental suffering on elder;
- allowing a health-related injury on an elderly person; or
- placing the elder or dependent adult in a situation that endangers their health.
Penalties for PC 368 Elder Abuse
Physical abuse against elders or dependents is either a misdemeanor or felony, depending on the type of abuse.
The punishment for a misdemeanor elder abuse is:
- up to one year in county jail,
- a fine of up to $6,000, and
- victim restitution.
The punishment for felony elder abuse is:
- up to four years in a California state prison,
- a fine up to $10,000, and
- victim restitution.
Elder abuse can also lead to more severe penalties depending on the victim's injuries and age.
If the abuse results in great bodily injury, you may face an additional term in state prison of:
- three years if the victim is under age 70
- five years if the victim is over age 70
Further, an undocumented immigrant convicted of elder abuse could face deportation because it's considered a crime involving moral turpitude.
Non-Physical Elder Abuse
In many cases, elder abuse does not involve physical harm. Punishments for non-violent elder abuse can be just as severe.
PC 368 states that a person who knowingly causes an elder or dependent adult to suffer is guilty of elder abuse.
What constitutes suffering?
PC 368 explicitly bars anyone from causing unjustifiable mental suffering against elders and dependent adults. It also prohibits financial abuse such as:
- forgery, and
Punishments for these types of elder abuse vary depending on the circumstances.
A first offense for non-violent elder abuse is a misdemeanor. Second violations include up to one year in county jail and a $2,000 fine.
The punishment for financial-related elder abuse depends on the amount of money involved.
For example, a non-caretaker who commits financial abuse against an elder faces fines up to $1,000 if the money involved in the crime does not exceed $950.
If the value exceeds $950, the fine can go up to $10,000. In both circumstances, the violation results in up to one year in county jail.
If the abuse involves false imprisonment, the consequences are more severe. False imprisonment against an elder or dependent adult leads to incarceration of two, three, or four years in jail.
Defenses Against PC 368 Elder Abuse Charges
Any PC 368 violation can result in jail time. With such high stakes, you need to contact a criminal lawyer to work to create a legal defense for you. Some common defenses include:
- not a willful act,
- no abuse of elder,
- false allegation.
For a PC 368 charge to stick, you must have acted willfully or with criminal negligence. We might be able to argue the injuries to the senior were accidental.
We have had success getting elder abuse charges dropped by proving our client did not willfully commit abuse.
Further, we have also argued that our client was unaware of the victim's age or dependent status. You must also know that the victim of the abuse is an elder or a dependent.
In other elder abuse cases, we have proved our client was falsely accused or that no abuse occurred.
While there's no certainty that the prosecutor will drop your charges, using our experienced defense attorneys gives you the best chance at a favorable outcome.
Are you charged with elder abuse? This is a serious charge that carries harsh consequences.
Our experienced criminal attorneys have spent many years defending those accused of abuse. We have successfully reduced or dropped elder abuse charges for a wide range of clients.
It might be possible to negotiate with the prosecutor to avoid the formal filing of charges through a process known as prefiling intervention.
For more information about how we can help you with elder abuse allegations, contact Eisner Gorin LLP at (310) 328-3776.
Our main office is in the San Fernando Valley at 14401 Sylvan St #112 Van Nuys, CA 91401.