California Elder Abuse Laws | Penal Code 368 PC

December 31, 2017

California legislature has expressly declared that elders should be granted special protection and consideration because they may not be able to protective themselves via medication, physical impairment, or deemed incompetent. Elder abuse is charged under Penal Code 368 pc making it a crime to commit or place in a situation of physical harm or financial abuse against an elder.[1]

Notice the law does not require physical abuse to warrant this charge. It merely states that if you place an elder in a situation where harm is likely to be suffered, then you could be charged with this offense. Conversely, financial abuse is common among family members or close friends of the elder who perhaps commit fraud or embezzlement of the property interests held by the elder. Commonly, this charge can result from carrying out identity theft of the elder.

PC 368 is a wobbler allowing the prosecutor to file either felony or misdemeanor charges. Your prior criminal history coupled with the aggravating circumstances of the case are ordinarily considered prior to electing to file misdemeanor or felony charges.

Punishment and Sentence for PC 368 – Elder Abuse

A misdemeanor conviction for PC 368 carries up to one year in the county jail and a fine not exceeding $6,000. The court usually imposes additional terms such as probation, therapy, and community service. In addition, you may be ordered to repay any economic loss the elder has suffered as a result separate from the underlying court fine.

A felony conviction carries a sentencing range of 2, 3, or 4 years in state prison and a fine not exceeding $6,000. Depending on the circumstances, your attorney can argue for probation and more additional terms to avoid jail. Fortunately, however, you may be able to reduce your felony to a misdemeanor at the expiration of your probation period.

If certain aggravating factors are present, you could face additional prison time in addition to your underlying sentence.

  • If the elder suffers great bodily injury or death and is under the ages of 70 years old, you face an additional 3 or 5 years in state prison.
  • If the elder suffers great bodily injury or death and is over the age of 70, you face an additional 5 or 7 years in state prison.

California Elder Abuse Defenses

There are several defenses to addressing Penal Code 368 pc charges. First, if the elder is not at least 65 years old and not a dependent adult then you did not commit elder abuse. In addition, the conduct is punishable if you acted willfully and on purpose. Consequently, if the abuse occurred on accident, was the product or misfortune, or you acted with ordinary negligence, then you are not guilty of this offense. Furthermore, the health and/or safety of the elder was not endangered by your conduct. And the elder could be exaggerating the circumstances or suffer from a mental illness that affects their ability to understand or recall the incident.

Contact Us to Schedule a Free Consultation

If you have been charged or are under investigation for elder abuse under PC 368, then you probably have a lot of questions. Contact the Law Offices of John D. Rogers to speak with an experienced Newport Beach criminal defense attorney. We provide free confidential consultations and we’re available to address all your questions and concerns.

 

 

Legal References:

[1] Penal Code 368 defined – (“(a) The Legislature finds and declares that crimes against elders and dependent adults are deserving of special consideration and protection, not unlike the special protections provided for minor children, because elders and dependent adults may be confused, on various medications, mentally or physically impaired, or incompetent, and therefore less able to protect themselves, to understand or report criminal conduct, or to testify in court proceedings on their own behalf.

(b) (1) 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 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 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, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years.

(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 years of age.

(B) Five years if the victim is 70 years of age 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 years of age.

(B) Seven years if the victim is 70 years of age or older.

(c) Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions other than those 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 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 may be endangered, is guilty of a misdemeanor. A second or subsequent violation of this subdivision is punishable by a fine not to exceed two thousand dollars ($2,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.

(d) Any person who is not a caretaker who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of an elder or a dependent adult, and who knows or reasonably should know that the victim is an elder or a dependent adult, is punishable as follows:

(1) By a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding nine hundred fifty dollars ($950).

(2) By a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding nine hundred fifty dollars ($950).

(e) Any caretaker of an elder or a dependent adult who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of that elder or dependent adult, is punishable as follows:

(1) By a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding nine hundred fifty dollars ($950).

(2) By a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding nine hundred fifty dollars ($950).

(f) Any person who commits the false imprisonment of an elder or a dependent adult by the use of violence, menace, fraud, or deceit is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.

(g) As used in this section, “elder” means any person who is 65 years of age or older.

(h) As used in this section, “dependent adult” means any person who is between the ages of 18 and 64, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age. “Dependent adult” includes any person between the ages of 18 and 64 who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.

(i) As used in this section, “caretaker” means any person who has the care, custody, or control of, or who stands in a position of trust with, an elder or a dependent adult.

(j) Nothing in this section shall preclude prosecution under both this section and Section 187 or 12022.7 or any other provision of law. However, a person shall not receive an additional term of imprisonment under both paragraphs (2) and (3) of subdivision (b) for any single offense, nor shall a person receive an additional term of imprisonment under both Section 12022.7 and paragraph (2) or (3) of subdivision (b) for any single offense.

(k) In any case in which a person is convicted of violating these provisions, the court may require him or her to receive appropriate counseling as a condition of probation. Any defendant ordered to be placed in a counseling program shall be responsible for paying the expense of his or her participation in the counseling program as determined by the court. The court shall take into consideration the ability of the defendant to pay, and no defendant shall be denied probation because of his or her inability to pay.

(l) Upon conviction for a violation of subdivision (b), (c), (d), (e), or (f), the sentencing court shall also consider issuing an order restraining the defendant from any contact with the victim, which may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of any restraining order be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family. This protective order may be issued by the court whether the defendant is sentenced to state prison or county jail, or if imposition of sentence is suspended and the defendant is placed on probation.”)

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