California Elder Abuse Laws
Penal Code 368 PC


California "elder abuse" law covers a variety of crimes and can occur in a variety of situations.  Under Penal Code 368 PC, California's elder abuse statute, "elder abuse" can be any of the following . . . directed at anyone who is sixty-five (65) years of age or older:

  • physical abuse (infliction of unjustifiable pain or injury on a senior victim),
  • emotional abuse (sometimes seen in the form of mental suffering through isolation or ridicule),
  • neglect and endangerment (willfully placing the elder or dependent adult in a situation where his/her health or safety is endangered), and/or
  • financial exploitation (also known assenior fraud or elder
    financial abuse).1
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More specific examples of scenarios that can lead to charges of elder abuse in California include:

  • A nursing home work sexually molesting a resident at the home,
  • An adult son deliberately withholding medication that he is supposed to give his elderly mother, and
  • A man taking advantage of his elderly aunt's senility to divert her Social Security checks to his own use.
Penalties

Under Penal Code 368, elder abuse can be prosecuted as either a felony or a misdemeanor...it's the prosecutor's choice, depending on the defendant's criminal history and the facts of the case.2

When elder abuse is prosecuted as a misdemeanor, potential penalties include up to one (1) year in county jail and a fine of thousands of dollars. If it is prosecuted as a felony, the defendant may be sentenced to state prison for two (2) to four (4) years.3

Legal Defenses

The penalties for California elder abuse (Penal Code 368) are steep...and, as we discuss below, prosecutors are quite vigilant about prosecuting cases of suspected elder abuse. Because defendants are often caregivers to elderly people, they are usually busy people with a good deal of stress in their lives...and a complicated emotional relationship to the alleged victim. So facing elder abuse charges can be a devastating experience.

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Luckily, there are a number of legal defenses that can help to fight these charges. These include:

  • false accusations,
  • mistaken identity, and
  • insufficient evidence.

Because California elder abuse law is complex...and is an area of the law that is ripe for false accusations and wrongful arrests...it is important to consult with an attorney who has experience handling these types of offenses.

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Having prosecuted and successfully defended against California elder abuse crimes, our criminal defense lawyers understand the most effective ways to fight your elder abuse charges.

In an effort to help you better understand the specifics of California elder abuse law, our California criminal defense attorneys4 will address the following:

1. What is Elder Abuse in Penal Code 368?
2. How Do Prosecutors Prove that I am Guilty of Elder Abuse?
3. Penalties, Punishment, and Sentencing for Penal Code 368 PC

3.1. Misdemeanor elder abuse

3.2. Felony elder abuse

4. Fighting Penal Code 368 Elder Abuse Charges
5. California Elder Abuse Law and Related Offenses

5.1. Penal Code 242 PC battery

5.2. Penal Code 261 PC rape

5.3. Penal Code 187 PC "murder" / Penal Code 192 PC
"involuntary manslaughter"

5.4. Penal Code 422 PC criminal threats

5.5. California domestic violence laws

If, after reading this article, you have additional questions, we invite you to contact us at Shouse Law Group.

In addition, you may find helpful information in our related articles on California Financial Senior Fraud Laws; California Nursing Home Abuse; The Legal Definition of Great Bodily Harm Penal Code 12022.7 PC; Legal Definition of a "Wobbler" in California Law; Legal Definition of a Misdemeanor in California Law; Legal Definition of a Felony in California Law; The Legal Definition of Great Bodily Injury/Harm California Penal Code 12022.7 PC; California Three Strikes Law; Common Legal Defenses to California Crimes; The California Legal Defense of Accident; Penal Code 242 PC Battery; Penal Code 261 PC Rape; Penal Code 187 PC Murder; Penal Code 192 PC Involuntary Manslaughter; Penal Code 422 Criminal Threats; and California Domestic Violence Law.

1. What is Elder Abuse in Penal Code 368?

Elder abuse (sometimes interchangeably referred to as "senior abuse") is on the rise, affecting people from every social, economic, and ethnic background.  One source estimates that 1 out of every 7 senior citizens in America has been a victim of elder abuse.5 As America's population ages, reports of elder abuse...both true and false...are only likely to increase.

Those accused of violating California elder abuse laws are typically either family members of ... or caregivers for ... the alleged elderly victim.

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Under the California elder abuse statute, elder abuse consists of:

  • physical abuse (which includes inflicting physical injuries and/or sexual abuse, neglect, abandonment, and abduction),
  • financial abuse (which is committed via fraud or theft), or
  • any other treatment that results in physical and/or mental pain or suffering.6

Why do elders receive increased protection?

The California Legislature first addressed elder abuse in the early 1980s.  The Legislature acknowledged in 1982 that "dependent adults"-meaning people who, because of either their age or a disability, are dependent on others to meet their daily needs- are frequently confused, medicated, and/or otherwise mentally or physically impaired.  Because of this...and the related fact that they are therefore less able to protect themselves and/or to understand or report criminal conduct...they should receive special legal protection.7

Then in 1983...in response to a request from the Santa Ana Police Department...the Legislature enacted Penal Code 368 PC.  Law enforcement agencies requested this statute because they didn't have a Penal Code section that allowed them to prosecute those who were reportedly abusing or neglecting "dependent adults."8

Recognizing that "dependent adults" are often as vulnerable as children when it comes to being abused, lawmakers used the same language that they had previously used for child abuse statutes, simply replacing the word "child" with the term "dependent adult."9

Finally, in 1986, the Legislature amended Penal Code 368 PC to include all "elders" -- not just those who are "dependent."  This amendment expanded the scope of coverage from "dependent adults" who, because of age or a mental or physical disability, were unable to care for their own personal needs... to any person over 65, regardless of his/her mental or physical abilities.10 Today, both classes of persons receive this special protection under California elder abuse law.11

Reporting and prosecuting criminal elder abuse charges

Many prosecuting agencies have special units that handle California's elder abuse charges.  These units "vertically" prosecute these special cases, which means that a specially trained deputy prosecutor will oversee the entire case, from the initial filing of charges to trial and sentencing.

Many of these agencies (such as the Orange County District Attorney's Office) provide direct telephone numbers to their elder abuse units so that the public can easily report suspected criminal activity.  However, most elder abuse cases are referred to these agencies by the police.

The police receive elder abuse complaints from a variety of sources...from concerned family members or friends of the alleged elderly victim...from Adult Protective Services...and from doctors or other caregivers.

Once the prosecuting agency receives the report, it must decide whether to file or reject the charges...or whether to instruct a detective to investigate the allegations further.

As Riverside criminal defense lawyer Michael Scafiddi explains12,

"Elder abuse allegations...like many other California crimes...are frequently directed at innocent individuals.  Sometimes the alleged elderly victim is confused and makes unfounded claims.  Sometimes an angry or jealous family member reports another family member in order to gain control over the senior citizen's finances.  And sometimes well-meaning friends or family report a caregiver without sufficient justification."
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Who decides which agency prosecutes a reported elder
abuse case?

It depends.  Factors include

  • where the alleged elder abuse takes place,
  • whether the offense is a felony or a misdemeanor, and
  • the exact type of abuse that is alleged.

Some special elder abuse enforcement units will only prosecute felony) senior abuse allegations.  Similarly, some agencies will only handle misdemeanor elder abuse allegations.  Some, like the California Attorney General, will only handle California elder abuse cases that involve nursing homes or other residential treatment facilities.

And while physical, emotional, and financial elder abuse are all prosecuted as criminal acts, some of the elder abuse task forces limit themselves even within these areas.

The Los Angeles District Attorney's Elder Abuse Unit, for example, only prosecutes allegations of financial elder abuse if the monetary amount reportedly taken either is in the thousands of dollars or involved a very sophisticated level of fraud or theft.

And, on that note, this article focuses specifically on physical elder abuse.  We address California financial senior fraud and exploitation and California nursing home abuse in separate articles.

Similarly, this article only addresses California's criminal elder abuse laws.  It is important to recognize that violating California's elder abuse laws can subject an offender to both civil and criminal penalties.

If someone is suing you for personal injury or wrongful death charges arising out of allegations of senior abuse, it is advisable to speak with a California civil defense attorney as well.

2. How Do Prosecutors Prove that I am Guilty of Violating California Elder Abuse Law?

In order to convict you of violating California's senior abuse laws under Penal Code 368 PC, California's criminal elder abuse statute, the prosecutor must prove certain facts (otherwise known as "elements of the crime").

If you are charged with felony elder abuse, the elements are as follows:

  1. you willfully or with criminal negligence either (a) personally subjected an elder to unjustifiable physical pain or mental suffering or (b) allowed another person to do so,
  2. your conduct occurred under circumstances that were likely to produce great bodily injury or death, and
  3. you knew or reasonably should have known that the alleged victim was an elder (i.e., a person 65 years of age or older).13

If you are charged with misdemeanor elder abuse, the elements are almost the same...but with one critical difference. They are:

  1. you willfully or with criminal negligence either (a) personally subjected an elder to unjustifiable physical pain or mental suffering or (b) allowed another person to do so,
  2. you knew or reasonably should have known that the alleged victim was an elder (i.e., a person 65 years of age or older), and
  3. your conduct occurred under circumstances that may have endangered the life or health of the elder (instead of circumstances likely to produce great bodily injury or death).14

Let's take a closer look at some of these elements to better understand California elder abuse law.

Willfully

If you do something willfully, you do it deliberately or on purpose.15

Example: Tanya is a single mother who also takes care of her elderly bedridden mother. One day, frustrated with her mother's constant demands and lack of gratitude, Tanya deliberately hits her mother in the face. This was a willful act and may be elder abuse...depending on whether, under the circumstances, Tanya's act may have endangered her mother's life or health.

Criminal negligence

You can be guilty of elder abuse if your conduct was either willful or criminally negligent.16

Criminal negligence is more than ordinary carelessness or a mistake in judgment.  For purposes of violating California's elder abuse law, you act negligently when you act so unreasonably that your actions reflect a disregard for human life.17

Example: Janis's 79-year-old mother lives with her. The mother cannot move or feed herself due to extreme Alzheimer's disease. For almost two weeks, Janis does not give her mother any food or water and does not clean or move her...so she almost dies from bedsores and dehydration.
Janis is guilty of California Penal Code 368 felony elder abuse because her conduct was "criminally negligent."18

BUT

Example: Nora's elderly aunt has just moved in with her family. Nora is a busy working mother. Nora's aunt takes more than 10 medications every day, and Nora is now responsible for managing them. One day, Nora mixes up several of the medications and gives her aunt too much of one pill...which makes the aunt very ill and lands her in the hospital.
Nora's actions were the result of ordinarily carelessness and a simple mistake. Therefore, she was not criminally negligent and cannot be convicted of elder abuse.
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It is also important to understand that prosecutors can only convict you of elder abuse by criminal negligence if you have a legal duty to act.19

This is one of the reasons why we say that elder abuse law is complex.  Even thought it might appear as though you have a legal duty to intervene, that's not always the case...which is why consulting with a California criminal defense attorney who has expertise defending elder abuse cases is critical.

Example: Bob, an elderly stroke victim, lives with his son Richard. Bob's daughter Susan used to be Bob's caretaker and visits Richard's house regularly. On a few occasions Susan expresses concern about the care that her brother Richard is providing to Bob.
One day Bob is found dead in his bedroom in Richard's house.  It appears that Bob was the victim of severe neglect and died of septic shock due to bedsores, compounded by malnutrition and dehydration.20
Prosecutors file elder abuse charges against Susan ... but, according to the Supreme Court of California, Susan is not guilty of the California crime of elder abuse. While she certainly had a moral duty to report her father's abuse, she had no legal duty to control her brother's behavior ... and therefore ian't guilty under Penal Code 368 PC.21

Unjustifiable pain or mental suffering

Unjustifiable pain or mental suffering is just that...pain or suffering that isn't necessary or that is excessive under the circumstances.22

Circumstances likely to produce great bodily harm

"California's domestic violence laws " means a significant or substantial physical injury.23 It does not refer to trivial or insignificant harm.

However, it is important to understand that it isn't necessary that the elder actually suffer great bodily harm...only that the elder be placed in a situation where he/she was likely to suffer such an injury (for felony senior abuse only).24

Example: Jackie is the home health care provider for an unpleasant elderly woman named Peggy. Peggy regularly insults Jackie and treats her poorly. Jackie finds herself wishing that Peggy would die and stops giving Peggy her necessary heart medications.
Peggy's son discovers this fact and has Jackie arrested for elder abuse. Jackie may be guilty ... even though Peggy doesn't appear to have suffered any injury from going for a few days without her medication.  Withholding the drugs was probably likely to cause a substantial injury...and would therefore be enough to charge Jackie with felony elder abuse.
3. Penalties, Punishment, and Sentencing for California Penal Code 368 PC

Elder abuse is a "wobbler" in California law ... which means that prosecutors can charge it either as a misdemeanor or as a felony .25 The most important considerations in making this decision include

  1. the facts of your specific case, and
  2. your criminal history.

Whether the crime is charged as a misdemeanor or a felony determines the potential penalties under California elder abuse law.

3.1. Misdemeanor elder abuse

If convicted of California Penal Code 368 misdemeanor elder abuse, you may face any or all of the following penalties:

  • informal probation (otherwise known as summary probation),
  • a maximum one-year county jail sentence,
  • a maximum fine of $6,000 (or $10,000 for a second or subsequent offense),
  • restitution to the victim, and/or
  • counseling.26
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3.2. Felony elder abuse

If convicted of California Penal Code 368 felony elder abuse, you may face any or all of the following penalties:

4. Fighting Penal Code 368 Elder Abuse Charges

Senior abuse charges are often falsely alleged against innocent people.  Sometimes the accuser is intentionally lying.  But other times, these false charges result because seniors frequently suffer from conditions and diseases that mimic the signs of physical abuse and neglect.

To compound this problem further, social workers, police, and even doctors aren't always trained to distinguish between signs of abuse and signs of accident, illness, or age...but they are required to report suspected abuse.29

If any of these individuals (or other "mandated reporters") fail to report suspected abuse or neglect, they can face their own criminal charges...but they face no ramifications if they report someone who turns out to be innocent.30 Consequently, often times these people report suspected abuse with little support or investigation in an effort to protect themselves against their own liability.

Fortunately, there are a variety of legal defenses to the California crime of elder abuse that a California criminal defense lawyer can present on your behalf in an effort to reduce, dismiss, or beat your elder abuse charges.  The following are some of the most common.

The injury was the result of an accident

If you didn't willfully injure the elder victim and your conduct didn't rise to the level of criminal negligence, prosecutors can't convict you of violating California elder abuse law.31 This is similar to the California legal defense of "accident."

Example: Pablo is a home health care provider who takes care of a 90-year-old man named Stanley. While Pablo is transferring Stanley from his wheelchair to his bed, he accidentally drops Stanley...which causes Stanley to break his hip.
Pablo is not guilty of elder abuse...because his conduct was not willful or criminally negligent.

False accusations / wrongful arrest

As previously stated, there are a number of reasons why someone may have falsely accused you of elder abuse.  Sometimes jealous family members accuse a caregiver of abuse, because the elder has bestowed large sums of money or other gifts upon that individual.  Perhaps the allegations were honestly made, but the injuries simply weren't the result of abuse.

Mistaken identity

Along these same lines, you may have been falsely accused based on a case of mistaken identity.  It could very well be that the senior in question was abused...just not by you.  If, for example, you are the primary caregiver, others would probably assume that you were responsible.

Similarly, if, for example, you and your elderly parent were at odds about the elder's estate...and soon after the argument, the elder showed signs of abuse...other family members may incorrectly assume that you were the abuser.

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Insufficient evidence

In order to convict you of elder abuse, the prosecutor must prove "beyond a reasonable doubt" that you are guilty.  This means that there is no reasonable explanation for the elder's injuries other than the fact that you abused him or her.

If there is nothing to corroborate the alleged abuse or neglect, your California criminal defense attorney may be able to cast a reasonable doubt as to your guilt.

Many times defense lawyers will call in an expert to testify that the alleged signs of abuse were more consistent with illness, accident or simply age.  Sometimes an expert (or other witnesses) will testify that the elder is paranoid, delusional, or even senile, and that his/her accusations are not based on real facts.

If you are accused of neglecting the elder (which placed him in a harmful situation), you could bring in evidence to demonstrate how you've routinely cared for him/her.  You could do this by providing receipts for prescription drugs, heating and air conditioning bills, records from doctor visits...anything revealing that you are not guilty of neglect, but rather have more than adequately cared for the alleged elder victim.

And even if you are guilty of senior abuse...and there's no way to get around that fact...you try to gain empathy and explain that:

The abuse was an isolated incident

Anyone who has cared for an elderly person...especially an elderly relative...understands the physical and emotional demands that you face on a regular (if not daily) basis.

If you can convince the judge, prosecutor, and/or jury that your actions were an isolated (and unintentional) event, triggered by an emotional breakdown, you may garner sympathy...and a lesser or reduced charge and/or sentence.

5. California Elder Abuse Law and
Related Offenses

Depending on the circumstances of the alleged offense, there are a variety of crimes that may be closely related to Penal Code 368, either

  1. because they share elements with elder abuse, or
  2. because they are frequently committed in connection with elder abuse.

Examples of these offenses include (but are by no means limited to) the following:

5.1. Penal Code 242 PC battery

California Penal Code 242 PC battery is the unlawful and willful use of force or violence upon another.32 If you intentionally commit physical elder abuse by hitting or otherwise violently attacking an elderly person...prosecutors could charge you with both elder abuse and battery.

If battery does not cause serious bodily injury to the victim, it is usually a
misdemeanor subjecting you to up to a fine of up to two thousand dollars ($2,000), up to six (6) months in county jail, or both.  But if it results in serious bodily injury, then it is a wobbler punishable by either up to one (1) year in county jail...or up to four (4) years in prison if it is tried as a felony.34

5.2. Penal Code 261 PC rape

If you have nonconsensual sexual intercourse with an elder, accomplished by means of force, threats, or fraud, prosecutors could charge you with both California Penal Code 261 PC rape35 and California elder abuse.

This offense usually arises when someone finds out that another person is having sex with an elder who is incapacitated or incapable of giving consent.  That said, more typical forcible "rape" scenarios also take place with elders who are too weak to fight the attack.

Rape in California is a felony and can lead to a sentence of three (3), six (6), or eight (8) years in state prison.36 This would be in addition to any penalties you would face for elder abuse.

Similarly, if you engage in nonconsensual sexual acts (other than intercourse) with an elder who is dependent on others due to his/her declining mental/physical abilities, prosecutors could charge you with elder abuse and Penal Code 288 lewd or lascivious acts.37

5.3. Penal Code 187 PC "murder" / Penal Code 192 PC
"involuntary manslaughter"

If you are accused of killing an elder, prosecutors could charge you with both elder abuse and either California Penal Code 187 PC murder38 (if the killing is done with "malice aforethought") .... or California Penal Code 192 PC involuntary
manslaughter
(if, for example, the elder died due to your criminal negligence).39

5.4. Penal Code 422 PC criminal threats

If

  1. You threaten to harm an elder,
  2. the elder is actually placed in fear, and
  3. you actually carry out your threat and inflict an injury on the elder,

prosecutors could charge you with elder abuse and California Penal Code 422 PC criminal threats.40

In addition to the penalties for elder abuse, a criminal threats charge can lead to imprisonment in a county jail for up to one (1) year, or imprisonment in state prison.41

5.5. California domestic violence laws

If you are accused of elder abuse and the elder is your spouse, significant other, parent, grandparent, or roommate, prosecutors could charge you with elder abuse under California's domestic violence laws.42 These laws will typically increase the maximum penalties above those normally associated with the crime of senior abuse.

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As you can see, violating California's elder abuse laws can subject you to a variety of offenses and a variety of penalties.  As a result, it is imperative that you consult with a defense attorney who understands the complex issues that California elder abuse charges often trigger.

Call us for help
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If you or loved one is charged with Penal Code 368 PC elder abuse and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Online Resource:

Helpguide.org-

Provides warning signs, risk factors, prevention, and help for dealing with elder abuse

A Citizen's Guide to Reporting and Preventing Elder Abuse

California Department of Aging - Long Term Care Ombudsman Program

Legal References:

1 California Penal Code 368 PC - Elder abuse.  ("(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) upon a first conviction or a fine not to exceed ten thousand dollars ($10,000) upon a second or subsequent conviction, or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years... (d) Any person who is not a caretaker who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates [California Penal Code] 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 by imprisonment in a county jail not exceeding one year, or in the state prison for two, three, or four years, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding four hundred dollars ($400); and 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 four hundred dollars ($400).  (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 [California Penal Code] Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of that elder or dependent adult, is punishable by imprisonment in a county jail not exceeding one year, or in the state prison for two, three, or four years when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding four hundred dollars ($400), and 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 four hundred dollars ($400)...(g) As used in this section, "elder" means any person who is 65 years of age or older.")

2 See same.

3 See same.

4 Our Los Angeles criminal defense attorneys have local criminal law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.

5 State Bar of California, What Should I Know About Elder Abuse?

6 California Welfare and Institutions Code 15610.07 WIC -- Elder abuse.  ( "'Abuse of an elder or a dependent adult' means either of the following: (a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. (b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.")

7 People v. Heitzman (1994) 9 Cal.4th 189, 201. ("The first of several reports on elder abuse commissioned by the House of Representatives was released in 1981 (see House Select Com. on Aging, 97th Cong., 1st Sess., Elder Abuse: An Examination of a Hidden Problem (Com. Print 1981)), and in its wake, the subject received much congressional attention and national publicity. (Note, Elder Abuse and the States' Adult Protective Services Response (1991) 42 Hastings L.J. 861, 869.) California lawmakers responded to the newly documented evidence of elder abuse in 1982 with legislation recognizing "that dependent adults may be subject to abuse, neglect, or abandonment and that this state has a responsibility to protect such persons." (Former Welf. & Inst. Code, § 15600, added by Stats. 1982, ch. 1184, § 3, p. 4223.)")

8 See same at 202.  ("In 1983, the Legislature passed the state's first law focusing exclusively on those 65 years of age or older, requiring elder care custodians and other specified professionals to report instances of elder abuse. (Welf. & Inst. Code, §§ 9380-9386, added by Stats. 1983, ch. 1273, § 2 and repealed by Stats. 1986, ch. 769, § 1.3, eff. Sept. 15, 1986.) That same year, Senate Bill No. 248, 1983-1984 Regular Session, was introduced at the request of the Santa Ana Police Department. An analysis of the bill prepared for the Senate Committee on the Judiciary indicates that the goal of the legislation was to aid in the prosecution of people who harm or neglect dependent adults. (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 248 (1983-1984 Reg. Sess.) p. 2.) According to this document, law enforcement agencies receiving reports concerning suspected abuse or neglect of dependent adults were having difficulty finding Penal Code sections under which they could prosecute such cases. ( Ibid.)")

9 See same.  ("The solution proposed by the bill was to establish the same criminal penalties for the abuse of a dependent adult as those found in sections 273a and 273d for child abuse. (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 248, supra, at p. 1.) When drafting the new legislation, the bill's author lifted the language of the child abuse statutes in its entirety, replacing the word "child" with "dependent adult" throughout. (See id at. pp. 2-3.)")

10 See same at 203.  ("Later, in conjunction with legislation designed to consolidate the two sets of conflicting reporting laws for elder abuse and dependent adult abuse, a 1986 amendment to [California Penal Code] section 368(a) [PC elder abuse] made the section expressly applicable to elders as well as dependent adults. (Stats. 1986, ch. 769, § 1.2, p. 2531, urgency measure eff. Sept. 15, 1986.) Although the amendment was intended merely to conform the definition of "dependent adult" in the Penal Code to the definition of "dependent adult" in the Welfare and Institutions Code (see Sen. Judiciary Com. Rep. on Assem. Bill No. 3988 (1985-1986 Reg. Sess.)), it appears to have, at the same time, broadened the class of persons protected by the statute. "Elder" is defined as "any person who is 65 years of age or older." ([California Penal Code] § 368, subd. (d).) The preamendment definition of "dependent adult" referred to "any person who, because of any mental disability due to birth defect, physical disorder, or advanced age, is unable to properly provide for his or her own personal needs with regard to his or her physical health, food clothing or shelter ...." Thus, following the 1986 amendment, any elder, regardless of whether he or she could properly provide for his or her personal needs, was protected by the [California elder abuse] statute.")

11 California Welfare and Institutions Code 15600 WIC - Elder abuse. ("(a) The Legislature recognizes that elders and dependent adults may be subjected to abuse, neglect, or abandonment and that this state has a responsibility to protect these persons. (b) The Legislature further recognizes that a significant number of these persons are elderly. The Legislature desires to direct special attention to the needs and problems of elderly persons, recognizing that these persons constitute a significant and identifiable segment of the population and that they are more subject to risks of abuse, neglect, and abandonment. (c) The Legislature further recognizes that a significant number of these persons have developmental disabilities and that mental and verbal limitations often leave them vulnerable to abuse and incapable of asking for help and protection.")

See also California Penal Code 368 -- Elder abuse.  ("(a) The Legislature finds and declares that elders and dependent adults are deserving of special consideration and protection against crimes, 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.")

12 Riverside criminal defense lawyer Michael Scafiddi is a former police officer who now uses that inside knowledge to help defend clients accused of violating California elder abuse laws. He practices criminal defense primarily in  San Bernardino and Riverside Counties, and makes appearances at the Murrieta Southwest Justice Center and in Banning, Fontana, Joshua Tree, Barstow, and Victorville.

13 California Jury Instructions - Criminal "(CALJIC") 9.38 - Felony elder abuse.  ("In order to prove this crime, each of the following elements must be proved: [1] A person willfully, or willfully and as a result of criminal negligence, inflicted unjustifiable physical pain or mental suffering on [an elder] [a dependent adult];] [or] [1] A person willfully caused or, willfully and as a result of criminal negligence, permitted [an elder] [a dependent adult] to suffer unjustifiable physical pain or mental suffering;] [or] [1] A person who had care or custody of an [an elder] [a dependent adult] [a.] [willfully caused or, willfully and as a result of criminal negligence, permitted the person or health of the [elder] [dependent adult] to be injured;] [or] [b.] [willfully caused or, willfully and as a result of criminal negligence, permitted the [elder] [dependent adult] to be placed in a situation in which his or her person or health is endangered;]] [2] The perpetrator's conduct occurred under circumstances likely to produce great bodily harm or death [; and [3] The perpetrator knew or reasonably should have known the other person was [an elder] [a dependent adult]].")

14 CALJIC 16.172 - Misdemeanor elder abuse. ("In order to prove this crime, each of the following elements must be proved: [1] A person willfully, or willfully and as a result of criminal negligence inflicted unjustifiable physical pain or mental suffering on [an elder] [a dependent adult][.]] [; or] [1] A person willfully caused or willfully and as a result of criminal negligence permitted [an elder] [a dependent adult] to suffer unjustifiable physical pain or mental suffering[.]] [; or] [1] A person who had care or custody of [an elder] [a dependent adult]: [a] Willfully caused or willfully and as a result of criminal negligence permitted the person or health of the [elder] [dependent adult] to be injured[.]] [; or] [b] Willfully caused or as a result of criminal negligence permitted the [elder] [dependent adult] to be placed in a situation in which his or her person or health may be endangered][.]] [; and [2] The perpetrator knew or reasonably should have known that the other person was [an elder] [a dependent adult].]")

15 CALJIC 1.20 - Willfully, defined.  ("The word "willfully" when applied to the intent with which an act is done or omitted means with a purpose or willingness to commit the act [in this case, elder abuse] or to make the omission in question. The word "willfully" does not require any intent to violate the law, or to injure another, or to acquire any advantage.")

16 CALJIC 9.38 - Felony elder abuse.

17 People v. Superior Court (Holvey) (1988) 205 Cal.App.3d 51, 61.  (Disapproved on other grounds.)  ("Although [California Penal Code] section 273a does not require a specific intent, it does require proof of criminal negligence. Criminal negligence "means that the defendant's conduct must amount to a reckless, gross or culpable departure from the ordinary standard of due care; it must be such a departure from what would be the conduct of an ordinarily prudent person under the same circumstances as to be incompatible with a proper regard for human life." ( People v. Peabody (1975) 46 Cal.App.3d 43, 48-49, 119 Cal.Rptr. 780.) The same proof is required for a conviction under section 368. Real parties in interest's argument that many of their practices result in pain and injury and they would be unable to distinguish criminal acts from good-faith acts or acts resulting in only civil liability is unavailing. To violate [California Penal Code] section 368 [PC "elder abuse" law], their conduct must be 'a reckless, gross or culpable departure from the ordinary standard of due care.'")

18 People v. Manis (1992) 10 Cal.App.4th 110, 114.  ("As so construed, the statute clearly reaches the conduct of appellant. By any standard, appellant's action in permitting her mother to literally rot away in appellant's house, from simple lack of food or water and untreated infections resulting from failure to move the victim out of a chair for a week at a time, would be considered "criminal[ly] negligen[t]." Since criminal negligence only arises from a gross violation of an already existing duty of care-a duty clearly assumed by appellant with respect to her helpless mother's care while the mother lived in appellant's house, the statute would not reach the conduct of a passerby who noticed such a situation but did nothing. Of course, such a passerby would have a moral, if not a legal, duty to report the problem to competent authority.")

19 People v. Heitzman (1994) 9 Cal.4th 189, 194. ("We conclude that the [elder abuse] statute may properly be upheld by interpreting its imposition of criminal liability upon "[a]ny person who ... permits ... any elder or dependent adult ... to suffer ... unjustifiable pain or mental suffering" to apply only to a person who, under existing tort principles, has a duty to control the conduct of the individual who is directly causing or inflicting abuse on the elder or dependent adult.")

20 See same at 194.  ("On December 3, 1990, police were summoned to the house, where they discovered Robert [the elder abuse victim] dead in his bedroom. His body lay on a mattress that was rotted through from constant wetness, exposing the metal springs. The stench of urine and feces filled not only decedent's bedroom, but the entire house as well. His bathroom was filthy, and the bathtub contained fetid, green-colored water that appeared to have been there for some time...At the time of his death, decedent had large, decubitus ulcers, more commonly referred to as bed sores, covering one-sixth of  his body. An autopsy revealed the existence of a yeast infection in his mouth, and showed that he suffered from congestive heart failure, bronchial pneumonia, and hepatitis. The forensic pathologist who performed the autopsy attributed decedent's death to septic shock due to the sores which, he opined, were caused by malnutrition, dehydration, and neglect.")

21 See same at 215.  ("Furthermore, given defendant's failure to intercede on her father's behalf under the egregious circumstances presented here, we can well understand the prosecution's decision to charge defendant under [California Penal Code] section 368(a) [California's elder abuse law]. Because the People presented no evidence tending to show that defendant had a legal duty to control the conduct of either of her brothers, however, we reverse the judgment of the Court of Appeal with directions to reinstate the trial court's order dismissing the charges against defendant.")

22 People v. Curtiss (1931) 116 Cal.App.Supp. 771, 300 P. 801, 804.  ("By the use of the word "unjustifiable," the Legislature intended to make use of the antonym of "justifiable," and to designate as criminal the infliction of physical pain or mental suffering upon a child, which could not be defended, or vindicated, or which was not exculpable, excusable, or authorizable, under the circumstances. The standard thus set up is not abstract. It is concrete. The concept by which it shall be determined whether the punishment is or is not unjustifiable is a fluid one-like the concept by which the action of the "reasonable man" serves as a criterion in determining the violations of duty which amount to negligence.  As in that instance, the test is "external and objective."")  Although this case specifically deals with child abuse, courts frequently use child abuse and other domestic violence cases to interpret California elder abuse law under Penal Code 368 PC.

23 Penal Code 12022.7 PC - Terms of imprisonment for persons inflicting great bodily injury while committing or attempting felony [including felony elder abuse]. ("(f) As used in this section, "great bodily injury" means a significant or substantial physical injury.")

24 People v. Cortes (1999) 71 Cal.App.4th 62, 80.  ("For a defendant to be guilty of violating [California Penal Code] section 273a, subdivision (a), his conduct must be willful and it must be committed under circumstances "likely to produce great bodily harm or death." (See People v. Lee (1991) 234 Cal.App.3d 1214, 1221, 286 Cal.Rptr. 117.) "Great bodily harm refers to significant or substantial injury and does not refer to trivial or insignificant injury." (CALJIC No. 9.37.) However, there is no requirement that the victim suffer great bodily harm. ( People v. Jaramillo (1979) 98 Cal.App.3d 830, 835, 159 Cal.Rptr. 771.)")  And, as stated above in endnote 22, even though this case specifically deals with child abuse, courts frequently use child abuse and other domestic violence cases to interpret California elder abuse law.

25 California Penal Code 368 PC - Elder abuse.  ("(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) upon a first conviction or a fine not to exceed ten thousand dollars ($10,000) upon a second or subsequent conviction, or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years... (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 five thousand dollars ($5,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment...(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.")

26 See same.

27 California Penal Code 667.5 PC - Prior prison terms; enhancement of prison terms for new offenses. ("(c) For the purpose of this section, "violent felony" shall mean any of the following: (8) Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice... ")

See also California Penal Code 667 PC - Habitual criminals; enhancement of sentence; amendment of section (otherwise known as California's Three Strikes Law). ("(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.")

28 California Penal Code 368 PC - Elder abuse.  ("(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) upon a first conviction or a fine not to exceed ten thousand dollars ($10,000) upon a second or subsequent conviction, 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 [California Penal Code] 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...(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.")

See also California Penal Code 672 PC - Offenses for which no fine prescribed; fine authorized in addition to imprisonment.  ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")

29California Welfare and Institutions Code 15630 WIC - Mandated reporters, suspected elder abuse.  This section defines "mandated reporters" as ("(a) Any person who has assumed full or intermittent responsibility for the care or custody of an elder or dependent adult, whether or not he or she receives compensation, including administrators, supervisors, and any licensed staff of a public or private facility that provides care or services for elder or dependent adults, or any elder or dependent adult care custodian, health practitioner, clergy member, or employee of a county adult protective services agency or a local law enforcement agency...")  The code further goes on to detail the reporting procedures for such an individual who suspects that a violation of California's elder abuse law has taken place.

See also California Penal Code 11160 PC - Reporting duties for suspected elder abuse.  ("(a) Any health practitioner employed in a health facility, clinic, physician's office, local or state public health department, or a clinic or other type of facility operated by a local or state public health department who, in his or her professional capacity or within the scope of his or her employment, provides medical services for a physical condition to a patient whom he or she knows or reasonably suspects is a person described as follows, shall immediately make a report in accordance with subdivision (b)...")  This section then goes on to describe the reporting details for suspected elder abuse.

30 See California Welfare and Institutional Code 15630 WIC, endnote 28 above.

See also California Penal Code 11161.9 PC - Immunity from liability.  ("(a) A health practitioner who makes a report in accordance with this article shall not incur civil or criminal liability as a result of any report required or authorized by this article.")

See also California Penal Code 11162 PC - Violation for failing to report suspected elder abuse.  ("A violation of this article is a misdemeanor , punishable by imprisonment in a county jail not exceeding six months, or by a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment.")

31 CALJIC 16.172 - Misdemeanor elder abuse; CALJIC 9.38 - Felony elder abuse.

32 California Penal Code 242 PC  -- Battery. ("A battery is any willful and unlawful use of force or violence upon the person of another.")

33 California Penal Code 243 PC - Battery; punishment [excluding elder abuse penalties]. ("(a) A battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment.")

34 Same. ("(d) When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.")

35 California Penal Code 261 PC - Rape defined.  Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any a variety of circumstances that include force, fear, fraud, or when a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act.

36 California Penal Code 264 PC - Rape; punishment [excluding elder abuse penalties]. ("(a) Except as provided in subdivision (c), rape, as defined in Section 261 or 262, is punishable by imprisonment in the state prison for three, six, or eight years.")

37 California Penal Code 288 PC - Lewd or lascivious acts.  This section punishes those who commit lewd acts on a child or on a dependent person.  "Dependent persons" include elders if the victimized individual is over 65 and whose physical or mental abilities have significantly diminished because of age.

38 California Penal Code 187 PC - Murder.  ("(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.")

39 California Penal Code 192(b) PC - Involuntary manslaughter.  ("Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:...(b) Involuntary--in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.")  If one's criminal negligence caused an elder's death under California elder abuse law, he/she would also be charged with involuntary manslaughter under this section.

40 California Penal Code 422 PC - Criminal threats.  ("Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.")  Although the defendant need not carry out the threat in order to be convicted of this offense, he/she would need to actually harm the elder in order to be convicted of Penal Code 368 PC California elder abuse law.

41 See same.

42 California domestic violence laws punish a variety of offenses that are committed against one's family member or other protected persons...including the offense of elder abuse.  Penalties for violating California domestic violence laws often include counseling, restraining orders, fines, and a county jail or state prison sentence. See, e.g., California Penal Code 243 PC -- Battery; punishment. ("(e)(1) When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, fianc�, or fianc�e, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment.")

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