Penal Code 368 PC – California “Elder Abuse” Criminal Laws

Updated September 6, 2021

California Penal Code 368 PC defines elder abuse as the physical or emotional abuse, neglect, or financial exploitation of a victim 65 years of age or older. The offense can be prosecuted as a misdemeanor or a felony, and is punishable by up to 4 years of jail or prison.

We will quote the full text of the code section and then provide a detailed analysis below:

368. (a) The Legislature finds and declares that elders, adults whose physical or mental disabilities or other limitations restrict their ability to carry out normal activities or to protect their rights, and adults admitted as inpatients to a 24-hour health facility deserve special consideration and protection.

(b) (1) A 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) A 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) A 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) A 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) A 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 a person who is 65 years of age or older.

(h) As used in this section, “dependent adult” means a person, regardless of whether the person lives independently, 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 a 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 a 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 a 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 a 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. A 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.

Examples of elder abuse crimes

• not feeding an 80-year-old parent who cannot care for himself.
• a caretaker ridiculing an elder patient for being wheelchair-bound.
• a person using fraud to convince a 90-year-old neighbor to make him the sole beneficiary in the elder’s will.

Defenses

A defendant can fight an elder abuse charge with a legal defense. Common defenses include:

• no willful act,
• no abuse, and/or
• falsely accused.

Penalties

A violation of this statute is charged as either;

• a misdemeanor, or
• a felony

depending on the facts of the case.

A misdemeanor conviction is punishable by imprisonment in county jail for up to one year.

A felony conviction is punishable by custody in state prison for up to four years.

In lieu of jail time, a judge can award either:

• misdemeanor (or summary) probation, or
• felony (or formal) probation.

Our California criminal defense attorneys will answer the following 10 key questions in this article:

• 1. How does California law define elder abuse?
  • 1.1. Misdemeanor elder abuse
  • 1.2. Felony elder abuse
  • 1.3. Abuse
  • 1.4. Willfully and criminal negligence
• 2. Who prosecutes senior abuse cases?
• 3. Are there defenses to Penal Code 368?
  • 3.1. No willful act
  • 3.2. No abuse
  • 3.3. Falsely accused
• 4. What are the penalties?
• 5. Are there immigration consequences?
• 6. Can a person get a conviction expunged?
• 7. Does a conviction affect gun rights?
• 8. What are some resources for victims of elder abuse?
• 9. Can victims file civil lawsuits?
• 10. Are there related offenses?
  • 10.1. Battery – PC 242
  • 10.2. Rape – PC 261
  • 10.3. Criminal threats – PC 422

1. How does California law define elder abuse?

A prosecutor has to prove different things under 368 PC:

• depending on whether he wants to convict a defendant of,
• misdemeanor elder abuse or felony abuse.

Note also that questions often arise under this statute on the meaning of:

• “abuse,” and
• “willfully” and “criminal negligence.”

1.1. Misdemeanor elder abuse

A prosecutor has to prove the following to convict a person of misdemeanor elder abuse:

1. the defendant willfully or with criminal negligence subjected an elderly person to unjustifiable physical pain or mental suffering,
2. the conduct could have endangered the life or health of the elderly person, and
3. the accused knew or should have known that the victim was 65 years old or older.¹

“Unjustifiable physical pain or mental suffering” means:

• pain or suffering that,
• is not necessary or that is excessive under the circumstances.²

1.2. Felony elder abuse

A prosecutor must prove the following to convict a person of felony elder abuse:

1. the defendant willfully or with criminal negligence subjected an elderly person to unjustifiable physical pain or mental suffering,
2. the conduct was likely to produce great bodily injury or death, and
3. the accused knew or should have known the victim was 65 years old or older.³

“Unjustifiable physical pain or mental suffering” means the same as with misdemeanor abuse.

1.3. Abuse

“Elder abuse” can mean any of the following:

• physical abuse (which is infliction of unjustifiable pain or injury on a senior victim),
• emotional abuse (which can take the form of isolation or ridicule),
• neglect and endangerment (which means placing the senior in a situation that endangers his health and safety), an
• financial exploitation (which is also known as senior fraud or elder financial abuse).⁴

Note that a prosecutor must prove the following to convict a person of financial abuse:

1. the defendant committed a financial crime (e.g., theft, fraud, or embezzlement),
2. the property stolen belonged to a person who is 65 or older, and
3. the defendant was a caretaker for this person or knew that the victim was elderly.⁵

Example: Roman works in a nursing home where all the residents are over the age of 65. Roman occasionally takes loose money that he finds in the drawers of the residents.

Here, Roman is guilty of financial elder abuse. He unlawfully took money from seniors when he knew that all the victims were 65 or older. And it does not matter that this theft did not involve bank accounts or financial institutions. Simply taking small amounts of cash is financial abuse.

1.4. Willfully and criminal negligence

For purposes of this statue, “willfully” means to do something:

• deliberately, or
• on purpose.⁶

“Criminal negligence” means that:

• a person acts so unreasonably that,
• his actions reflect a disregard for human life.⁷

Example: Janis’s 79-year-old mom lives with her. The mother cannot move or feed herself due to extreme Alzheimer’s disease. For almost two weeks, Janis does not giver her mom any food or water. The mother almost dies from dehydration.

Here, the facts show that Janis actions rise to the level of criminal negligence,

Note that a prosecutor cannot prove criminal negligence unless:

• the defendant had,
• a legal duty to act.⁸

Example: Bob is an elderly stroke victim that lives with his son Richard. Bob’s daughter, Susan, used to be his caretaker but she no longer is. But she still visits with Bob and Richard.

On a few occasions, she expresses concern about the care her brother is providing to her dad. One day Bob is found dead in his bedroom in Richard’s house. He died of septic shock that was caused by bedsores, malnutrition, and dehydration. Police arrest Susan and charge her with elder abuse.

Here, Susan is not guilty of a crime. She had no legal duty to take care of her father or control her brother’s behavior.

2. Who prosecutes senior abuse cases?

Many prosecuting agencies (like a county’s District Attorney’s Office) have:

• special units,
• that handle elder abuse cases.

This means that a specially trained deputy prosecutor will prosecute most senior abuse cases.

Local law enforcement will refer a case to these units and then a prosecutor will decide whether to:

• file charges,
• reject the case, or
• instruct a detective to investigate the allegations further.

Certain factors will determine which agency prosecutes a senior abuse case. Some of these include:

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

3. Are there defenses to Penal Code 368?

A defendant may assert a legal defense to challenge an abuse charge.

Three common defenses are:

1. no willful act,
2. no abuse, and/or
3. falsely accused.

3.1. No willful act

Recall that in many of these cases a prosecutor has to prove that a defendant acted willfully. This means it is always a defense for an accused to say that he did not act deliberately. Perhaps, for example, a senior was injured as a result of the defendant’s accidental conduct.

3.2. No abuse

Also recall that there has to be some type of abuse in these cases, like neglect. It is a defense, therefore, for an accused to say that:

• a senior did not suffer from,
• any type of abuse or harm.

Once again, for example, maybe an accident caused physical harm to an elder, and not an abusive act.

3.3. Falsely accused

False accusations do take place under these laws. Sometimes jealous family members wrongfully accuse caregivers of abuse. Mean spirited neighbors also falsely accuse siblings of elder abuse. This means an accused can raise the defense that he was unjustly blamed.

4. What are the penalties?

Misdemeanor elder abuse is punishable by:

• custody in county jail for up to one year,
• a maximum fine of $6,000, and/or
• restitution to the victim.⁹

Felony elder abuse is punishable by:

• imprisonment in state prison for up to four years,
• a maximum fine of up to $10,000, and/or
• restitution.¹⁰

Further, if a felony, and the victim actually suffers great bodily harm, then:

• the defendant can get,
• an additional seven years in prison.¹¹

5. Are there immigration consequences?

A 368 PC conviction may have negative immigration consequences.

Depending on the facts of the case:

• the abuse of a senior may,
• get labeled as a crime involving moral turpitude (CIMT).¹²

This is a problem because a CIMT can result in a non-citizen being either:

• deported, or
• marked as inadmissible.

Therefore, a PC 368 conviction could have damaging immigration consequences.

6. Can a person get a conviction expunged?

A person can get an expungement of an abuse conviction, but:

• only if convicted of misdemeanor abuse,
• and not felony abuse.

Felony convictions cannot be expunged if the person was sentenced to state prison.

However, a misdemeanor conviction can get expunged provided that the defendant:

• successfully completes probation, or
• successfully completes a jail term (whichever is applicable).

7. Does a conviction affect gun rights?

A conviction under Penal Code may negate a defendant’s gun rights.

California law says that it is illegal for convicted felons to:

• own a gun, or
• possess a gun.

This means that:

• if a defendant is convicted of felony senior abuse,
• he will be stripped of his gun rights.

8. What are some resources for victims of elder abuse?

There are many resources available for victims of senior abuse. Some of these are:

• the Center of Excellence on Elder Abuse and Neglect,
• Recognizing and Reporting Elder Abuse article,
• A Guide for Preventing Abuse in Long Term Care Facilities, and
• the website of the California Advocates for Nursing Home Reform.

The following websites are also helpful:

• Victim Connect,
• Eldercare Locator, and
• California’s Victim Compensation Board.

9. Can victims file civil lawsuits?

An elder abuse victim can file a civil lawsuit against an abuser. A suit can get filed per California Welfare and Institutions Code 15600.

This statute says the following parties can sue if abused:

1. any person 65 years of age or older, or
2. a “dependent” adult between the ages of 18 and 64.

A “dependent adult” is anyone that:

• has physical and mental limitations that,
• restrict his ability to carry out normal activities.

Note that for either of these parties to have a civil claim, the following must be true:

• the defendant had care or custody,
• of the elderly or dependent adult.¹³

Most of these suits get filed against health care providers. If a suit is successful a plaintiff may recover:

• compensatory damages, and
• punitive damages (in some cases).

10. Are there related offenses?

There are three crimes related to elder abuse. These are:

1. battery – PC 242,
2. rape – PC 261, and
3. criminal threats – PC 422.

10.1. Battery – PC 242

Penal Code 242 PC is the California statute that defines the crime of battery.

Simple battery consists of:

• any willful and unlawful use of force or violence,
• on someone else.

The offense can occur even if the defendant didn’t cause the “victim” pain or injury of any kind.

Battery of a senior would constitute as elder abuse.

10.2. Rape – PC 261

Penal Code 261 PC is the California statute that defines the offense of “rape.”

A person commits this crime if he/she has nonconsensual sexual intercourse with another person by means of threats, force or fraud.

Like elder abuse, people get unjustly blamed for this offense. Therefore, a defense for this crime is that the defendant was falsely accused.

10.3. Criminal threats – PC 422

Penal Code 422 PC is the California statute that defines the crime of “criminal threats.”

A “criminal threat” is when a person threatens to kill or physically harm someone and:

1. the “victim” is thereby placed in a state of fear,
2. the threat is specific and unequivocal, and
3. the accused communicated the threat verbally, in writing, or via an electronically transmitted device.

For additional help…

Facing charges for abuse of an elder? For additional guidance or to discuss your case or your loved one’s case with a criminal defense attorney, we invite you to contact us at Shouse Law Group. We have law offices in Los Angeles, San Diego, San Francisco, and throughout the state of California.

Also see California’s Adult Protective Services (APS). To report abuse, call the hotline 1-833-401-0832.

In Colorado? Learn about elder abuse laws (CRS 18-6.5-103).

In Nevada? Learn about elder abuse laws (NRS 200.5099).

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