Posted on July 9, 2015

California Penal Code § 368: Elder Abuse

Elder abuse is a growing concern among prosecutors and law enforcement and prosecuted harshly due to the fact that most defendants are placed in a trusted position to care for an elder. And contrary to popular belief, to be convicted of this offense, it does not require you to be the individual who inflicts physical pain or mental suffering, but that you permitted that to occur. Most individuals accused of elder abuse are employed in senior citizen facilities – in which case the consequences are be even harsher. Consequences following a conviction for elder abuse will hinge predominantly on the level of injury, if any, received on the alleged victim in addition to their age. The most damaging evidence against someone, especially in elder abuse cases, is their own incriminating statements made to an investigator or detective. If law enforcement is requesting to speak with you, contact Attorney John Rogers immediately. Police officers are not trying to help you but rather collect evidence against you to make an arrest and gain a subsequent conviction. Anytime you say something, you are providing additional evidence to law enforcement against yourself and limiting your defense options in court. If law enforcement is contacting you, decline to give any statement and contact a lawyer right away.

In addition, elder abuse is a wobbler offense which means the prosecutor may elect to file felony or misdemeanor charges against someone. Factors the prosecutor will consider are: 1) one’s prior criminal history; 2) the severity of the circumstances; 3) how long the defendant’s conduct was; 4) whether there was a weapon involved; 5) and the level of injury received on the alleged victim. Contacting the Law Offices of John D. Rogers at the cases earliest juncture could mean the difference of facing misdemeanor charges versus felony charges, and/or a state prison sentence versus community service.

Elder Abuse Defined

In California, elder abuse is defined under Penal Code § 368(b)(1) as, “Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily injury 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 of custody of any elder 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.”

Early Defense Intervention

Early intervention by a Los Angeles Criminal Defense Attorney could mean the difference of dismissing the case completely or serving time in state prison. After someone is arrested, the police officer(s) draft a report of the incident and summary of the evidence which is subsequently forwarded to the Los Angeles County District Attorney’s Office or Los Angeles City Attorney’s Office for review to determine whether formal charges should be filed. The prosecutor will look at the evidence very narrowly, only considering the side and opinion(s) of the police officer. When appropriate, Mr. Rogers will contact the filing prosecutor to submit additional documentation on your behalf. Documentation may be character letters, letter of explanation of the event/incident, and/or additional witness statements. This tactic assures that the prosecutor will consider everything before filing charges versus only the police officer’s arrest report. Ultimately, the prosecutor may elect to reject the case completely and no charges will ever be filed against you, or they may elect to charge you with a lesser charge where your exposure is a misdemeanor versus a felony.

Penalties for Elder Abuse

If one is convicted under this statute as to a misdemeanor, then the consequences are:

• Up to 1 years in the County Jail
• Fines up to $6,000
• Three Years of Probation
• Anger Management / Counseling Classes
• Immigration Consequences
• Restitution to the alleged victim
• Stay-Away / Protective Order Imposed

If one is convicted under this statute as to a felony, then the consequences are:

• 2, 3, or 4 years in state prison
• Fines up to $6,000
• Probation or Parole Supervision
• Anger Management / Counseling Classes
• Permanent Firearm Ban
• Immigration Consequences
• Restitution to the alleged victim
• Stay-Away / Protective Order Imposed

If the alleged victim suffers great bodily injury and under the age of 70 years old then one face an additional 3 years in state prison. Additionally, if over the age of 70 years old then one faces an additional 5 years in state prison. Furthermore, in the event a death results under this statue and the alleged victim is under the age of 70 then one faces an additional 5 years added to their sentence. And if the alleged victim is over the age of 70 then one faces an additional 7 years added to their sentence.

Legal Defenses to Elder Abuse

• The individual was not 65 years old or older and/or is not a dependent adult
• The level of injury was moderate and did not rise to great bodily injury
• You did not act willfully but instead it was an accident or you were negligent
• The alleged victim was not under your care
• The health of the alleged victim was not endangered by your conduct
• The alleged victim is fabricating or exaggerating the circumstances
• You did not act with criminal negligence

Reduction to Misdemeanor

As noted above, elder abuse is a wobbler offense which means it can be charged as either a felony or misdemeanor. Fortunately, if you were convicted of this offense as to a felony and you did not serve time in California state prison, then you may be eligible to reduce your conviction to a misdemeanor pursuant to Penal Code § 17(b). Reducing your conviction requires a specified petition and usually a legitimate reason for seeking reduction. Most importantly, the judge will want to know whether you violated your probation at any time. In the event the court grants a reduction motion, the conviction is reduced for “all purposes” and the state of California will no longer recognize someone to be convicted of a felony. Reduction under P.C. § 17(b) additional restores firearm rights in an individual. For more information, or to discuss your eligibility, contact the Law Offices of John D. Rogers.

Elder Abuse Expungement

Elder abuse is a conviction that is eligible to be expunged in California. To expunge your conviction, Penal Code § 1203.4 governs in which a petition is submitted to the court. Upon proper petition, the court withdraws it’s finding of guilt, and the case is then dismissed releasing you from all “penalties and liabilities” as a result of the conviction. There are limitations for seeking an expungement. For instance, if you suffered a probation violation, the chances of expunging your conviction decrease. Most importantly, if you served any time in California state prison as a result of the offense or you are currently on probation or parole for another offense, then you cannot expunge your conviction. For more information, contact the Law Offices of John D. Rogers to discuss your eligibility in expunging your conviction.

Related Offenses

P.C. § 240 & § 242: Assault and Battery
P.C. § 243(d): Battery Causing Serious Bodily Injury

Contact Us for a Free Consultation

If you have been arrested or under investigation for elder abuse, contact Los Angeles Criminal Defense Attorney John Rogers at the Law Offices of John D. Rogers. Call 877-888-9820 for a free confidential consultation concerning your rights and defenses.

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