Elder Abuse Law - Penal Code 368 PC
California elder abuse law is very complex and requires the assistance of a knowledgeable criminal defense attorney who has successfully handled these cases in Los Angeles and San Fernando Valley Courthouses.
Each courthouse has its policies, and in defending these cases, I have learned that they must be supported on a case-by-case basis to give the prosecutors what they want if they have a solid case against your client.
If, on the other hand, the case against the client is weak and there is no way for them to prove that elder abuse occurred successfully, then there is a different approach that is taken, which involves litigating the cases and making sure the client's rights, freedom, reputation, and criminal record are protected at all costs.
Elder Abuse is Physical and Emotional
Judges and prosecutors are particularly harsh on a handful of crimes in Los Angeles, and elder abuse is one of them. In the past 25 years, I have handled many elder abuse cases, and it is always a battle to achieve a fair resolution for the client.
Another thing that I have noticed in these cases is that the alleged abuse can take many different forms. Sometimes the alleged abuse is physical, other times mental, and abuse of an older adult stems from financial issues.
In many cases I have defended in the past, I have noticed that the police and prosecutors do not always have the full extent of the story. Some mitigating factors can be uncovered and presented to them that can make a huge difference.
Of course, as you might guess, these elder abuse cases spin on their facts. There are varying levels of abuse that will be addressed with varying degrees of punishment by the authorities tasked with investigating and prosecuting these cases.
In my experience, when I defend one of these cases, the prosecuting agency will usually assign a special prosecutor who works for the family violence unit of the District Attorney's Office. These prosecutors are given specific instructions for elder abuse cases and must authorize everything they do through their chain of command. As you can probably see, without a seasoned criminal defense attorney on your side, the deck can become quickly stacked against you.
What Are the California Elder Abuse Laws?
Elder abuse is considered a felony. Under California Penal Code Section 368 is defined as physical abuse, financial abuse, or any other treatment resulting in material and mental pain or suffering towards an elder or a dependent adult (someone over 65).
This definition is broadly construed by prosecuting agencies and judges alike. The primary policy aim and concern is to protect the elderly and ensure they are not taken advantage of because they do not have the faculties to fend for themselves. To be convicted, the prosecution must prove beyond a reasonable doubt that the defendant willfully or negligently subjected an elder to uncalled-for physical pain or mental suffering or allowed another person to do so.
And that the conduct occurred under circumstances likely to produce significant bodily injury; the defendant knew or should have known that the alleged victim was an elder (over 65). Again, the legislature has made laws related to elder abuse in such a way as to stand up to attack and protect those older members of society.
The crime is considered a wobbler offense, meaning that it may be charged as a misdemeanor or a felony depending on the severity of the abuse and other circumstances that may be occurring.
What Are the Penalties for PC 368?
Whether to file a case as a felony or misdemeanor is at the discretion of the various prosecuting agencies in Los Angeles. The defense will have to argue against an unfavorable decision after the case is filed against the client.
If convicted as a misdemeanor, a defendant faces informal probation, a maximum of one year in jail, fines, restitution to the victim, and counseling. Typically a person is put on three years of probation. The judge puts a protective order in place to protect the abused person and have the defendant stay away from them and not do anything that could be construed as further abuse.
If convicted of a felony, a defendant faces formal probation, either prison or jail (depending on how serious the abuse, restitution, fines, and various other punishments depending on the specific nature of the abuse and the damage inflicted on the victim.
As elder abuse lawyers, we aim to avoid these harsh penalties for our clients. We fight aggressively and do whatever we can to get the best possible results by arguing on your behalf and asserting any applicable defenses.
How to Get the Best Result in an Elder Abuse Case?
As you might guess, California Penal Code 368 PC elder abuse charges are severe. As a result, judges, prosecutors, and the police want to send people involved in these offenses to jail or prison. So, getting the best result is extremely important as it relates to your criminal record and your freedom.
What I have you do is come into the office. We sit down and review the case to set up our roadmap on exactly how we will handle the case.
Whether we're going to fight the case, whether we're going to try to settle the case, investigate the case – we've got to get that roadmap first, so we have an idea of what we're going, where we're going, etc.
Review of the Case Details
How we do that is please tell me the truth about what happened, what your involvement is, and what's going on in your criminal case.
Elder abuse can come in many different forms. It can be some physical abuse. It can be financial abuse. So there are all sorts of different angles that prosecutors and police can use to charge somebody with elder abuse.
It falls under an extensive umbrella, so we've got to talk about what they're claiming that you did that amounts to elder abuse first. So, you want to figure that out before you come into the meeting, and then we can go over it, and you can tell me your position as it relates to those particular allegations.
I do see the police trying to twist some of these cases into an elder abuse scenario when it's not the case once we look at everything and figure out exactly what's going on. So in deciding how we will attack an elder abuse case, we've got to look at the following:
- What happened?
- What are they claiming you did wrong?
- Do we have any defenses?
Preparing a Mitigation Package
If we don't have any defenses, what mitigating circumstances can we bring to bear on your case?
- We'll look at character letters.
- We'll look at whether or not you've got a job.
- We'll look at your criminal history.
These are all things that the judge and prosecutor will consider when trying to figure out how to deal with your case. Once we have our game plan together on what we will do, I will use my 30 years of experience to work for you.
I've worked for the district attorney's office early in my career and for a superior court judge, so I have a good idea about how the other side will attack the case and how the judge will view the case.
Then in 1994, I started defending people like you for elder abuse charges, so I know what it takes to get the best result. So if you need the best, pick up the phone and ask for a meeting with Ron Hedding. I stand at the ready to help you.