Reportselder abuse california EN
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78th abs 9th grade B V S code Updated May 18, 2021

https://youtu.be/bxx_gEm43P0?list=PLWMyGtcnDIh

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tbUl97MChhVEepGdp71RG

Under Penal Code 368 PC, Cali

f

ornia law de

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ines the crime o

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elder abuse as physical or emotional abuse, neglect, or

f

inancial exploitation o

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a victim who is 65 years o

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age or older. The o

f

f

ense can be prosecuted as a misdemeanor or a

f

elony, and is punishable by up to 4 years o

f

jail or prison.

PC 368 states that a "person who knows…that a person is an elder or dependent adult and who…will

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ully causes or permits any elder or dependent adult to su

f

f

er, or in

f

licts thereon unjusti

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iable physical pain or mental su

f

f

ering… [is guilty o

f

a crime].”

Examples

  • not

    f

    eeding an 80-year-old parent who cannot care

    f

    or himsel

    f

    .

  • a caretaker ridiculing an elder patient

    f

    or being wheelchair-bound.

  • a person using

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    raud to convince a 90-year-old neighbor to make him the sole bene

    f

    iciary in the elder's will.

De

f

enses

A de

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endant can

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ight an elder abuse charge with a legal de

f

ense. Common de

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enses include:

Penalties

A violation o

f

this statute is charged as either;

  • a misdemeanor, or

  • a

    f

    elony

depending on the

f

acts o

f

the case.

A misdemeanor conviction is punishable by imprisonment in county jail

f

or up to one year.

A

f

elony conviction is punishable by custody in state prison

f

or up to

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our years. By

In lieu o

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jail time, a judge can award either:

Our Cali

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ornia criminal de

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ense attorneys will answer the

f

ollowing 10 key questions in this article:

[caption id="" align="alignnone" width="500"] Penal Code 368 PC is the Cali

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ornia statute that makes it a crime

f

or a person to abuse anyone 65 years o

f

age or older.[/caption]

1. How does Cali

f

ornia law de

f

ine elder abuse?

A prosecutor has to prove di

f

f

erent things under 368 PC:

  • depending on whether he wants to convict a de

    f

    endant o

    f

    ,

  • misdemeanor elder abuse or

    f

    elony abuse.

Note also that questions o

f

ten arise under this statute on the meaning o

f

:

  • “abuse,” and

  • “will

    f

    ully” and “criminal negligence.”

1.1. Misdemeanor elder abuse

A prosecutor has to prove the

f

ollowing to convict a person o

f

misdemeanor elder abuse:

  1. the de

    f

    endant will

    f

    ully or with criminal negligence subjected an elderly person to unjusti

    f

    iable physical pain or mental su

    f

    f

    ering,

  2. the conduct could have endangered the li

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    e or health o

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    the elderly person, and

  3. the accused knew or should have known that the victim was 65 years old or older.1

Unjusti

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iable physical pain or mental su

f

f

ering” means:

  • pain or su

    f

    f

    ering that,

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

1.2.

F

elony elder abuse

A prosecutor must prove the

f

ollowing to convict a person o

f

f

elony elder abuse:

  1. the de

    f

    endant will

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    ully or with criminal negligence subjected an elderly person to unjusti

    f

    iable physical pain or mental su

    f

    f

    ering,

  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

Unjusti

f

iable physical pain or mental su

f

f

ering” means the same as with misdemeanor abuse.

1.3. Abuse

Elder abuse” can mean any o

f

the

f

ollowing:

  • physical abuse (which is in

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    liction o

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    unjusti

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    iable pain or injury on a senior victim),

  • emotional abuse (which can take the

    f

    orm o

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    isolation or ridicule),

  • neglect and endangerment (which means placing the senior in a situation that endangers his health and sa

    f

    ety), an

  • financial exploitation (which is also known as senior

    f

    raud or elder

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    inancial abuse).4

Note that a prosecutor must prove the

f

ollowing to convict a person o

f

f

inancial abuse:

  1. the de

    f

    endant committed a

    f

    inancial crime (e.g., the

    f

    t,

    f

    raud, or embezzlement),

  2. the property stolen belonged to a person who is 65 or older, and

  3. the de

    f

    endant was a caretaker

    f

    or 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 o

f

65. Roman occasionally takes loose money that he

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inds in the drawers o

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the residents.
Here, Roman is guilty o

f

f

inancial elder abuse. He unlaw

f

ully took money

f

rom seniors when he knew that all the victims were 65 or older. And it does not matter that this the

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t did not involve bank accounts or

f

inancial institutions. Simply taking small amounts o

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cash is

f

inancial abuse. 

1.4. Will

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ully and criminal negligence

For purposes o

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this statue, “will

f

ully” means to do something:

  • deliberately, or

  • on purpose.6

Criminal negligence” means that:

  • a person acts so unreasonably that,

  • his actions re

    f

    lect a disregard

    f

    or human li

    f

    e.7

Example: Janis's 79-year-old mom lives with her. The mother cannot move or

f

eed hersel

f

due to extreme Alzheimer's disease.

F

or almost two weeks, Janis does not giver her mom any

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ood or water. The mother almost dies

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rom dehydration.
Here, the

f

acts show that Janis actions rise to the level o

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criminal negligence,

Note that a prosecutor cannot prove criminal negligence unless:

  • the de

    f

    endant 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

f

ew occasions, she expresses concern about the care her brother is providing to her dad. One day Bob is

f

ound dead in his bedroom in Richard's house. He died o

f

septic shock that was caused by bedsores, malnutrition, and dehydration. Police arrest Susan and charge her with elder abuse.
Here, Susan is not guilty o

f

a crime. She had no legal duty to take care o

f

her

f

ather or control her brother's behavior.

[caption id="" align="alignnone" width="500"] Specially trained deputy prosecutors will prosecute most senior abuse cases[/caption]

2. Who prosecutes senior abuse cases?

Many prosecuting agencies (like a county's District Attorney's O

f

f

ice) have:

  • special units,

  • that handle elder abuse cases.

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

Local law en

f

orcement will re

f

er 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

    f

    urther.

Certain

f

actors will determine which agency prosecutes a senior abuse case. Some 65. o

f

these include:

  • I’m where the alleged abuse took place,

  • whether the o

    f

    f

    ense was a misdemeanor or a

    f

    elony, and

  • the exact type o

    f

    abuse that is alleged.

3. Are there de

f

enses to Penal Code 368?

A de

f

endant may assert a legal de

f

ense to challenge an abuse charge.

Three common de

f

enses are:

  1. no will

    f

    ul act,

  2. no abuse, and/or

  3. falsely accused.

3.1. No will

f

ul act

Recall that in many o

f

these cases a prosecutor has to prove that a de

f

endant acted will

f

ully. This means it is always a de

f

ense

f

or an accused to say that he did not act deliberately. Perhaps,

f

or example, a senior was injured as a result o

f

the de

f

endant's accidental conduct.

3.2. No abuse

Also recall that there has to be some type o

f

abuse in these cases, like neglect. It is a de

f

ense, there

f

ore,

f

or an accused to say that:

  • a senior did not su

    f

    f

    er

    f

    rom,

  • any type o

    f

    abuse or harm.

Once again,

f

or example, maybe an accident caused physical harm to an elder, and not an abusive act.

3.3.

F

alsely accused

False accusations do take place under these laws. Sometimes jealous

f

amily members wrong

f

ully accuse caregivers o

f

abuse. Mean spirited neighbors also

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alsely accuse siblings o

f

elder abuse. This means an accused can raise the de

f

ense that he was unjustly blamed.

4. What are the penalties?

Misdemeanor elder abuse is punishable by:

  • custody in county jail

    f

    or up to one year,

  • a maximum

    f

    ine o

    f

    $6,000, and/or

  • restitution to the victim.9

Felony elder abuse is punishable by:

  • imprisonment in state prison

    f

    or up to

    f

    our years,

  • a maximum

    f

    ine o

    f

    up to $10,000, and/or

  • restitution.10

Further, i

f

a

f

elony, and the victim actually su

f

f

ers great bodily harm, then:

  • the de

    f

    endant 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

f

acts o

f

the case:

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

There

f

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

6. Can a person get a conviction expunged?

A person can get an expungement o

f

an abuse conviction, but:

  • only i

    f

    convicted o

    f

    misdemeanor abuse,

  • and not

    f

    elony abuse.

Felony convictions cannot be expunged i

f

the person was sentenced to state prison.

However, a misdemeanor conviction can get expunged provided that the de

f

endant:

  • success

    f

    ully completes probation, or

  • success

    f

    ully completes a jail term (whichever is applicable).

7. Does a conviction a

f

f

ect gun rights?

A conviction under Penal Code may negate a de

f

endant's gun rights.

Cali

f

ornia law says that it is illegal

f

or convicted 

f

elons to:

  • own a gun, or

  • possess a gun.

This means that:

  • i

    f

    a de

    f

    endant is convicted o

    f

    f

    elony senior abuse,

  • he will be stripped o

    f

    his gun rights.

8. What are some resources

f

or victims o

f

elder abuse?

There are many resources available

f

or victims o

f

senior abuse. Some o

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these are:

The

f

ollowing websites are also help

f

ul:

9. Can victims

f

ile civil lawsuits?

An elder abuse victim can

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ile a civil lawsuit against an abuser. A suit can get

f

iled per Cali

f

ornia Wel

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are and Institutions Code 15600.

This statute says the

f

ollowing parties can sue i

f

abused:

  1. any person 65 years o

    f

    age or older, 

  2. a “dependent” adult between the ages o

    f

    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

f

or either o

f

these parties to have a civil claim, the

f

ollowing must be true:

  • the de

    f

    endant had care or custody,

  • o

    f

    the elderly or dependent adult.13

Most o

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these suits get

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iled against health care providers. I

f

a suit is success

f

ul a plainti

f

f

may recover:

10. Are there related o

f

f

enses?

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 Cali

f

ornia statute that de

f

ines the crime o

f

battery.

Simple battery consists o

f

:

  • any will

    f

    ul and unlaw

    f

    ul use o

    f

    f

    orce or violence,

  • on someone else.

The o

f

f

ense can occur even i

f

the de

f

endant didn't cause the “victim” pain or injury o

f

any kind.

Battery o

f

a senior would constitute as elder abuse.

10.2. Rape – PC 261

Penal Code 261 PC is the Cali

f

ornia statute that de

f

ines the o

f

f

ense o

f

“rape.”

A person commits this crime i

f

he/she has nonconsensual sexual intercourse with another person by means o

f

threats,

f

orce or

f

raud.

Like elder abuse, people get unjustly blamed

f

or this o

f

f

ense. There

f

ore, a de

f

ense

f

or this crime is that the de

f

endant was

f

alsely accused.

10.3. Criminal threats – PC 422

Penal Code 422 PC is the Cali

f

ornia statute that de

f

ines the crime o

f

"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 o

    f

    f

    ear,

  2. the threat is speci

    f

    ic and unequivocal, and

  3. the accused communicated the threat verbally, in writing, or via an electronically transmitted device.

For additional help...

[caption id="" align="alignnone" width="500"] Contact our law

f

irm

f

or legal advice. We o

f

f

er

f

ree consultations.[/caption]

Facing charges

f

or abuse o

f

an elder?

F

or additional guidance or to discuss your case or your loved one's case with a criminal de

f

ense attorney, we invite you to contact us at Shousez was Law Group. We have law o

f

f

ices in Los Angeles, San Diego, San

F

rancisco, and throughout the state o

f

Cali

f

ornia. 

Also see Cali

f

ornia'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).

Legal Re

f

erences:

  1. Cali

    f

    ornia Penal Code 368 PC. See also Cali

    f

    ornia Jury Instructions CALCRIM 830 and CALCRIM 831.

  2. People v. Curtiss (1931) 116 Cal.App.Supp. 771.

  3. Cali

    f

    ornia Penal Code 368 PC.

  4. See same. See also People v. Heitzman (1994) 9 Cal.4th 189.

  5. Cali

    f

    ornia Penal Code 368 PC. See also People v. Catley (2007) 148 Cal.App.4th 500.

  6. Cali

    f

    ornia Jury Instructions 1.20 - Will

    f

    ully, de

    f

    ined. See also People v. Racy (2007) 148 Cal.App.4th 1327.

  7. People v. Superior Court (Holvey) (1988) 205 Cal.App.3d 51. See also People v. Medlin (2009) 178 Cal.App.4th 1092.

  8. People v. Heitzman (1994) 9 Cal.4th 189.

  9. Cali

    f

    ornia Penal Code 368 PC.

  10. See same.

  11. Cali

    f

    ornia Penal Code 667.5 PC.

  12. See,

    f

    or example, People v. Moran (2007) Cal.App.Unpub. Lexis 9540.

  13. Winn v. Pioneer Medical Group (2016) 63 Cal.4th 148.