Elders and dependent adults are people whose mental capacity is deteriorated or have physical handicaps that require others to take care of them. In California, the people who take on this responsibility to care for them have become easy targets for the prosecution of elder abuse! Imagine that an elder or dependent adult makes an unfounded claim of abuse against you. This often happens because the person is confused as a result of the medications they are taking or because they are suffering from some type of mental disorder. So their accusations are not based on real facts but are the product of their mental state. Sadly, even under these conditions the person’s claim of abuse will have serious consequences. This is because elders and dependent adults receive special consideration and protection under the law for any allegations of elder abuse. Which means that the mere utterance of the words abuse by the elder is sufficient for adult protective services to open an investigation against you. As part of the investigation, the alleged victim will be examined by a doctor for signs of abuse. The problem with this is that a lot of times there are symptoms present from causes other than abuse that are similar to those one would expect to see from abuse. Under these circumstances, the doctor tends to be quick to make a finding of abuse. The issuing attorney at the District Attorney’s office will charge you with elder abuse based on these findings. Don’t let this happen to you! Contact San Diego criminal defense Attorney Vik Monder at (619) 405-0063. He will put his team of experts to work for you. Together they will demonstrate the accuser’s mental state and alleged signs of abuse are both consistent with an illness and not abuse!
Elder Abuse in San Diego
This offense occurs under California Penal Code 368 when a person causes or permits or inflicts unjustifiable physical, mental or financial suffering on an elder or dependent adult.
A person who is over the age of 65.
A person who is between the ages of 18 and 64 years old, whose physical disability and/ or mental limitation makes them dependent on others.
Excessive under the circumstances.
Physical mistreatment inflicted by other than accidental means.
Non-physical mistreatment, emotional suffering inflicted by other than accidental means.
Endangering a person’s health or safety.
Exploitation by theft, embezzlement, or fraud.
Understanding Penal Code Section 368
In consideration of the seriousness of elder abuse, California has criminalized it under Penal Code section 368. Under this law, “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, or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years.”
Basically, to convict someone of California PC 368, the prosecutor must prove the following elements:
- The defendant knowing the victim was an elder or dependent adult;
- Either subjected or allowed an elder to suffer unjustifiable physical pain or mental suffering;
- The defendant did so willfully or with criminal negligence;
- Under circumstances that were likely to produce great bodily harm or death.
Ordinary Negligence vs. Criminal Negligence
Ordinary negligence is when a person’s conduct falls short of how a reasonable person under the same or similar circumstances would have acted. Ordinary negligence in the care of an elder or dependent adult is not enough for a conviction of elder abuse under California PC 368.
Example: A careless person’s reasonable mistake in judgment can lead to negligence but not to a conviction of elder abuse.
Criminal negligence in the care of an elder or dependent adult will result in a conviction under California PC 368. However, in order to be guilty of elder abuse by criminal negligence, the defendant must have had a legal duty to act. If no such duty existed to the elder, the defendant could not commit criminal negligence. Criminal negligence is when a person’s conduct is so unreasonable, it marks a clear departure from the way a reasonable person would act in the same or similar situation. In other words, the defendant’s actions reflect a clear disregard for human life because a reasonable person would have known that the defendant’s act naturally and probably would result in harm to other people.
Example: A person’s reckless indifference to the consequences of his actions created a high risk of death or great bodily harm to an elder or dependent person.
Elder Abuse Charges Can Be Filed As a Misdemeanor or a Felony
The infliction of physical, mental, or financial abuse on an elder is a wobbler offense. This means that the issuing attorney at the District Attorney’s office may choose to prosecute elder abuse as either a misdemeanor or a felony. For elder abuse cases, the prosecutor’s decision will come down to the circumstances under which the conduct occurred. Whether the defendant’s conduct merely placed the elder or dependent person in danger, at risk of great bodily harm or at risk of death. This range of possibilities is what makes elder abuse a wobbler offense.
Endangerment constitutes causing or permitting an elder or dependent adult’s health or life to be placed in danger. Mitigating factors are your opportunity to explain the underlying circumstances under which your conduct occurred. A conviction under California PC 368 requires that you act with reckless disregard to a known risk to an elder or dependent person’s well being. The evidence particular to an elder abuse case of endangerment that may be considered to lessen your culpability is the fact that you neither knew, nor was the risk of danger obvious at the time you engaged in the conduct. If your attorney is successful mitigating the circumstances in which your conduct occurred, your charges may wobble down to misdemeanor elder abuse.
Misdemeanor Elder Abuse
A successful wobble down will result in misdemeanor charges for elder abuse. The misdemeanor penalties under California PC 368 are as follows:
- Receive a maximum sentence of 1 year in county jail;
- Receive a fine of up to $6,000;
- Be issued a Protective Order;
- Be issued a Stay Away Order;
- Informal probation;
- Restitution to the victim.
Aggravating Risk of Great Bodily Harm
The risk of great bodily harm is an aggravating factor in any elder abuse case. Aggravating factors are used by the issuing attorney to increase a criminal defendant’s culpability. Actual injury to an elder or dependent person is not required to wobble up under California PC 368. It is sufficient for the person to be placed in circumstances where significant harm was likely to result from your conduct.
However, if there is nothing to corroborate the alleged abuse your attorney must do everything to mitigate the severity of the risk of harm. You want to minimize any exposure to felony charges at all costs. You should argue that your conduct could not have resulted in great bodily injury to anyone. That at most the risk was moderate and the likelihood is that if an injury to the elder or dependent adult had occurred, under the circumstances it would have been minor. It is important to note, however, that if the issuing attorney at the District Attorney’s office finds that your conduct did in fact occur under circumstances likely to produce great bodily injury to the alleged victim, you will be charged for felony elder abuse.
Felony Elder Abuse
If elder abuse wobbles up, this will result in felony charges. The felony penalties under California PC 368 are as follows:
- Be sentenced 2, 3, or 4 years in California state prison;
- Receive a fine of up to $10,000;
- Receive a strike on your record under California’s Three Strikes law;
- Formal probation;
- Be issued a Protective Order;
- Be issued a Stay Away Order;
- Restitution to the Victim.
Moreover, if the victim did suffer great bodily injury, the issuing attorney will consider this an aggravating factor in your case.
Enhancements for Elder Abuse
An enhancement offense is an offense whose commission alone increases the penalties for the original crime. In California, if you are found guilty of elder abuse, you would be facing a sentence enhancement of additional time in state prison depending on the victim’s age. Moreover, you will receive a felony strike on your record if the elder or dependent adult sustains great bodily injury or dies during the offense.
Great Bodily Injury
If as a result of the alleged abuse, the elder suffers great bodily injury, you could receive an additional 3 years in California state prison.
If as a result of the alleged abuse, the elder suffers death, you could receive an additional 5 years in California state prison.
Great Bodily Injury
If as a result of the alleged abuse, the elder suffers great bodily injury, you could receive an additional 5 years in California state prison.
If as a result of the allege abuse, the elder suffers death, you could receive an additional 7 years in California state prison.
The enhancements for elder abuse have serious repercussions for people convicted under Penal Code 368. Yet, it is important to note that the only way to be subjected to these enhancements is for the issuing attorney to prove that at the time of the offense you knew the alleged victim’s age. Here the best defense is to attack the victim’s age! People suffer from dementia and sometimes don't know how old they are. This means that until conclusive evidence is obtained verifying the victim’s age you must contest.
Given the severity of the penalties involved with an elder abuse charge, your criminal defense attorney will have to determine which legal defense theory will work best in your particular situation. Possible defenses associated with this charge can include:
If you didn't willfully injure the elder victim and your conduct didn't rise to the level of criminal negligence,
- False Allegations; you did not commit elder abuse.
- Mistaken Identity; someone else committed elder abuse.
- Elder’s injuries were caused by something other than abuse.
- Accident; you did not purposely injure an elder.