California's Elder Abuse Law: Penal Code (PC) 368
America's population is aging and this segment is repeatedly targeted by criminals. Thus, California enacted a powerful set of laws to help prevent abuse and neglect to its seniors. California's elder abuse statute PC 368 applies to any harm to any person age 65 or older.
Facing a charge or investigation of elder abuse is a devastating experience. Usually the parties involved are related in some form or another, and therefore, the situation is emotionally charged. We encourage you to contact us at Gedulin & Greany if you or someone you know is involved in an elder abuse situation. An experienced and compassionate San Diego criminal attorney can guide you through this difficult time and obtain the best possible outcome.
What is elder abuse?
Elder abuse encompasses many underlying crimes that affect victims of all ages, i.e., theft, assault/battery, identity theft. However, when the victim is 65 years of age or older, the accused could face much stricter penalties and punishment.
It is interesting to note that the laws no longer require that the victim be a "dependent adult", or mentally or physically challenged. Rather, anyone age 65 or older is within the elder abuse statute's protection.
What must the prosecutor prove for a conviction under PC 368?
To be convicted of a felony under PC 368, the prosecutor must establish the following elements:
(1) that you willfully or with criminal negligence either:
a. personally subjected an elder to unjustifiable physical pain or mental suffering, or
b. allowed another to do so; and
(2) the conduct occurred under circumstances likely to produce great bodily harm or death; and
(3) you knew or reasonably should have known that the victim was age 65 or older.
To be convicted of a misdemeanor under PC 368, the distinction is that the conduct was under circumstances that may have endangered the life or health of the elder. Conviction does NOT require conduct likely to produce great bodily harm or death.
What does "willful" mean?
The act must be intentional, deliberate, or on purpose. It is not willful, and therefore not abuse, if the caregiver is assisting his charge into bed and an injury occurs.
What does "criminal negligence" mean?
Criminal negligence means that the act was something more than ordinary carelessness or a mistake in judgment and is so unreasonable that your actions reflect a disregard for human life.
What is "unjustifiable pain or mental suffering"?
This refers to any pain or suffering that is not necessary or is deemed excessive under the circumstances.
What are the main defenses to a PC 368 charge?
A conviction under PC 368 can be devastating, and often based upon complex facts and evidence. Consequently, there are many applicable defenses, including:
∙you were falsely accused/wrongfully arrested: jealousy and emotion can cause people to make accusations when a loved one is injured, even if abuse is not the cause of the injury;
∙there is mistaken identity: maybe you are the caregiver, but you did not cause the abusive harm, someone else did;
∙there is insufficient evidence: the prosecutor must prove abuse beyond a reasonable doubt--you can claim that illness, accident, age-related afflictions were the actual cause.
San Diego criminal lawyer George Gedulin explains, "Elder abuse cases are commonly charged with other serious offenses including battery, domestic violence and abuse, rape. Felony charges are possible in any situation where physical injury occurred or a deadly weapon was involved."
What are the punishment and penalties for a PC 368 conviction?
PC 368 is a "wobbler" and can be charged as a felony or a misdemeanor, depending upon the facts surrounding the case, along with defendant's past criminal history.
Whether you are convicted of a felony or misdemeanor, your life will be severely affected, and you will face one or more of the following: probation, jail or prison time, fines into the thousands, an order to pay restitution, or an order to complete counseling or other programs.
Because an elder abuse charge can have very serious consequences, we encourage you to contact San Diego criminal attorneys George Gedulin and Mark Greany. We have years of experience handling diverse domestic and elder abuse cases, and therefore, we can advise you on and develop the best and strongest legal strategy for your case.