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
There are a handful of crimes that judges and prosecutors are particularly harsh on 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 of the cases that I have defended in the past, I have noticed that the police and prosecutors do not always have the full extent of the story. There are mitigating factors that 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 they must authorize everything they do on the issues 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 that results in material and mental pain or suffering towards an elder or a dependent adult (someone over the age of 65).
This definition is broadly construed by prosecuting agencies and judges alike. The primary policy aim and concern is to protect the elderly and make sure 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 the 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. There is a protective order put in place by the judge protecting the abused person and having the defendant stay away from them and not do anything that could be construed as further abuse.
If convicted as 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, our ultimate goal is 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. Your best first step is to set up a consultation so you can get clarity on what you are facing and begin the process of designing a plan that will assist in the resolution of your matter. Contact the Hedding Law Firm and set up a free consultation.