California law defines an elder as any person aged 65 years and above. You can face elder abuse charges if you cause or allow an elderly person to suffer physically or emotionally. The California Penal Code 368 outlines the crime of elder abuse. PC 368 defines elder abuse as abuse, financial exploitation, or neglect of a victim of 65 years or older. The crime can be a felony or a misdemeanor, depending on the facts of your case. If you are currently experiencing elder abuse accusations in Bakersfield, you need an aggressive attorney by your side. Our experienced attorneys at the California Criminal Lawyer Group can help you craft a solid defense to fight your charges.

Misdemeanor Elder Abuse

The following must be evident for the prosecutor to accuse you of misdemeanor elder abuse:

  • You intentionally or with criminal justice made an elderly person experience unnecessary or unjustifiable physical pain or emotional suffering.
  • Your conduct could have endangered the elderly person’s life or health.
  • You knew, or you should reasonably have known, that the person was a victim aged 65 and above.

Most people often wonder about the meaning of unjustifiable pain. This is physical or mental pain or suffering that is uncalled for and excessive under the circumstances.

Felony Elder Abuse

The prosecutor must prove these elements to accuse you of felony elder abuse:

  • You intentionally and with criminal negligence subjected an elder to unnecessary physical pain or mental anguish.
  • Your actions were likely to cause significant bodily injury or even death.
  • You were aware, or you should have been aware, that the victim was an elder aged 65 years and

Elder abuse also involves situations whereby you allow an elder to be placed in a situation that can endanger their health.

Acting Willfully And With Criminal Negligence

As outlined by PC 368, acting intentionally or willfully means doing something on purpose or deliberately. Acting with criminal negligence means acting unreasonably, reflecting a conscious disregard for human life.

Your actions can qualify as criminal negligence if, for example, you deny an elderly person food and water, significantly if the victim cannot move or feed themselves. For the prosecutor to prove criminal negligence, you must have had a legal duty to act. You cannot face charges if the elder is not under your care.

Forms of Elder Abuse

The following are the common forms of elder abuse:

  • Abandonment — This involves the dissertation of an elder by a person who is supposed to care for them, for example, a caretaker. Abandonment can be committed by caretakers, family members, institutions, or employees. Most people associate abandonment with leaving an elderly person alone in their homes and removing any care that was previously provided. However, it can also occur in assisted living facilities and nursing homes. In one instance, a California assisted living establishment abandoned its inhabitants after losing its business license. The only staff members left were the janitor and a cook, who contacted 911 after being made to look after 14 elderly people for two days on their own.
  • Financial abuse — This is the unlawful or wrongful taking of an elder's money, property, or other assets. For the prosecutor to accuse you of financial abuse, it must be evident that you committed a financial crime. The crime can be fraud, theft, or embezzlement. The money or property involved must belong to a victim who is older than 65 years. The prosecutor must further prove that when you committed the crime, you were the victim's caregiver or that you knew that the victim was over 65 years old.
  • Abduction — This involves moving an elder to another location without their consent or that of their caregiver.
  • Isolation – intentional prevention of an elder from receiving telephone calls, emails, or visitors.
  • Mental Suffering — This is the infliction of fear, confusion, or agitation on an elder through harassment, threats, or other forms of intimidating behavior.
  • Physical Abuse — This involves inflicting injury or physical pain, molestation, sexual abuse, or the use of physical restraint to punish an elder.
  • Neglect — You could face elder abuse charges if you are an elder's caregiver and fail to help with the elder's hygiene, offer food, provide shelter or clothing, or protect an elder from harm or physical hazards. Neglect occurs when someone with custody or care of an elderly or dependent adult fails to offer the care that a normal person would. EADACPA defines "self-neglect" as identifying elders incapable of caring for themselves and requiring assistance.
  • Coercion — This situation involves excessive persuasion of an elderly person, overcoming an elder’s free will. It involves making the victim act or refrain from acting in a certain manner.

The Signs of Elder Abuse

The signs of elder abuse fall into several categories:

Neglect Indicators

The common signs that an elder has been neglected include, but are not limited to:

  • Dehydration, malnutrition, bed sores, and unexpected weight loss.
  • Unexpected or unforeseen physical injuries. In addition, an elder can exhibit painful reactions when touched.
  • Skin tears, bruises, broken teeth, or broken bones.

Behavioral Indicators

The behavioral indicators of elder abuse include the following:

  • Anger or agitation.
  • Disorientation or confusion.
  • Depression and fearfulness.
  • Defensiveness.
  • Helplessness.
  • The elder can be hesitant to speak openly.
  • Appearing withdrawn.
  • Non-responsiveness.
  • Giving implausible excuses.

Prevalence of Elder Abuse In California

According to estimates by the National Council on Aging, abbreviated as NCOA, one out of ten people over the age of 60 has experienced a particular form of elder abuse. Elder abuse can involve physical abuse or even sexual assault. However, it can also involve neglect, confinement, financial abuse, or willful deprivation. In 1982, the California legislature created the Elder Abuse and Dependent Adult Civil Protection Act, abbreviated as EADACPA, to address the unique dangers faced by seniors.

The purpose of this act was to protect seniors and dependent adults across California against abuse, neglect, and abandonment. Seniors are part of the most vulnerable population in society, making them more susceptible to abuse and neglect. Other than criminal prosecutions, the act also outlines the requirements for elder abuse reporting.

Most experts outline that financial abuse is the most common form of elder abuse. Financial abuse is also covered under EADACPA. Financial abuse occurs when a person obtains, retains, or misappropriated property that belongs to an elder. This is done to wrongly use the property or defraud the owner of the property. You could face charges even if you only assist with misappropriating an elder's property.

Signs Of Abuse By A Relative Or Caregiver

The common signs that an elder is facing abuse from a relative or caregiver include the following:

  • The elderly do not have a chance to speak for themselves.
  • The family member or caregiver can portray an attitude of anger or indifference towards the elder.
  • A conflicting account of incidents by the caregiver or family member.
  • Restriction of social activity or isolation of the elder.
  • The person responsible for taking care of the elderly can show signs of substance abuse or gambling addiction.

Reporting Elder Abuse

Any concerned person can report elder abuse. However, the law outlines the mandatory elder abuse reporting requirements. The law compels some individuals to file reports of elder abuse:

  • Supervisors, administrators, and any licensed employees of a public or private establishment that offers services or care for the elderly.
  • Any elder or dependent adult care custodian.
  • Health practitioners.
  • Employees of a county adult protective services agency.
  • Clergy members.
  • Any individual who has assumed full or periodic responsibility for taking care of or custody of an elder, regardless of whether the person is compensated.
  • Employees of a local law enforcement agency.
  • Financial institutions' officers and employees are required to report suspected elder financial abuse.

When do Mandatory Reporters Submit Their Reports?

Immediately, or as soon as possible by phone, provide a written or online report via the secure internet reporting option within two (2) business days. If the suspected or claimed abuse is physical abuse that occurred in a long-term care institution, a report must be filed with both the ombudsman and police enforcement. When significant physical harm occurs, the reporter must call the police within two hours and file a report with the ombudsman within twenty-four hours. Complaints of less severe bodily injury are forwarded to the police and ombudsmen within 24 hours.

The sole exception to dual reporting is where a resident has committed abuse but there has been no serious injury. In these cases, the reporter must report to the police or the ombudsman.

Failure To Report

A mandated reporter's refusal to report or interfere with a report of physical elder abuse, abduction, abandonment, financial abuse, isolation, or elder neglect is a misdemeanor crime. The crime is punishable by six months in jail and a $1,000 fine.

Any mandated reporter who deliberately fails to report elder physical abuse, abduction, abandonment, financial abuse, isolation, or elder neglect resulting in death or significant injuries shall be sentenced to no more than a year in county jail. The court can also impose a $5,000 fine. A financial institution official or employee who fails to disclose financial abuse faces a $1,000 fine, with a $5,000 fine if the omission is willful.

Prosecution of Elder Abuse Cases

There are several prosecuting agencies for elder abuse cases, the most common being the District Attorney's Office. Many offices have special units to handle elder abuse. Usually, a specially-trained prosecutor prosecutes elder abuse. When law enforcement refers to senior abuse cases, the prosecution can decide to:

  • File charges against the senior abuse perpetrator.
  • Dismiss the case.
  • Instruct law enforcement or the detective to investigate the allegations further.

The specific agency that prosecutes elder abuse will vary depending on the following:

  • Where the alleged elder abuse took place.
  • Whether the crime was a misdemeanor or felony.
  • The particular type of elder abuse that is alleged to have occurred.

The Penalties Of Elder Abuse

The punishment for elder abuse depends on whether you commit misdemeanor or felony elder abuse. You could face the following penalties for a misdemeanor conviction of elder abuse:

  • A jail time that does not exceed one year in a county jail.
  • A fine not exceeding $6,000.
  • The judge can order you to pay restitution to the victim.

The consequences for a felony conviction of elder abuse are:

  • Imprisonment of up to four years in state prison. If the abuse victim sustains significant bodily injury, you could face an additional seven years in a state prison.
  • A fine that does not exceed $10,000.
  • The judge can order you to pay restitution to the victim.

Immigration Consequences Of An Elder Abuse Conviction

An elder abuse conviction could have negative immigration consequences, depending on the facts of your case. Elder abuse can be categorized as a crime involving moral turpitude. A crime involving moral turpitude can cause a non-citizen to be:

  • Deported from the United States.
  • Marked as inadmissible into the U.S.

It is best to have an experienced attorney by your side to mitigate the adverse immigration consequences following a conviction.

Whether a Conviction Will Affect Your Gun Rights

Under California law, it is illegal for a person convicted of a felony to possess or own a gun. Therefore, if the judge convicts you of felony elder abuse, the conviction will hurt your gun rights.

Expungement Of An Elder Abuse Conviction

You cannot have an elder abuse conviction expunged if you were sentenced to imprisonment in a state prison. However, if the court convicts you of a misdemeanor, you can expunge your conviction if you:

  • Complete probation successfully.
  • Complete your jail term successfully.

Victims Of Elder Abuse Can File A Civil Lawsuit

An elder abuse victim can also bring a civil lawsuit against you under California WIC 15600. Under this statute, any person aged 65 or older can bring civil charges against you. A dependent adult between 18 and 64 can also bring civil charges against you.

The law defines a dependent adult as any individual with physical or mental limitations. These limitations can restrict a person's ability to perform everyday activities. For a senior or dependent adult to bring civil charges against you, you must have had custody or care responsibility for them.

Most elder abuse civil lawsuits are brought against healthcare providers or caregivers. If a senior or dependent adult files a civil lawsuit against you, the victim can recover compensatory damages and, in some cases, punitive damages.

Fighting Elder Abuse Charges

You can use several defenses to fight elder abuse charges. You need an attorney who has handled senior abuse cases before and recorded satisfactory outcomes. An attorney can fight to have your criminal charges reduced or even dismissed. The typical defenses for elder abuse charges include:

No Willful Act

You can only face senior abuse charges if you act intentionally or on purpose. If your actions were accidental, you cannot face charges. An innocent accident is not a crime, even if the victim suffers extensive injuries due to the accident. The court will examine all the evidence brought against you to raise a reasonable doubt regarding your criminal intent.

Your attorney can allege that even if you inflicted physical harm on the victim, your actions were accidental. As long as the prosecutor cannot prove that you acted with criminal intent, elder abuse charges will not apply.

You Were Falsely Accused

An angry senior or their family members can accuse you of elder abuse, even if you have not committed the offense. Your attorney will compile all the relevant evidence to prove you did not commit the crime. The evidence can include inconsistent statements that the victim has made. An attorney will also cross-examine witnesses if your case proceeds to trial.

You cannot be convicted of elder abuse if your attorney succeeds in impeaching the accuser's credibility and shows their motivation to bring false accusations against you.

You Acted In Self-Defense

The law allows you to use reasonable physical force against someone, even an elder, if they attack you. An attorney can help you prove that you acted in self-defense. Proving this defense can involve using eyewitness accounts, surveillance videos, or medical records indicating that the elder has irrational behavior to prove that the elder attacked you. If you prove that you were only defending yourself, you cannot face elder abuse charges.

Related Offenses

Several offenses can be prosecuted alongside or instead of elder abuse. The related crimes include:

Battery – PC 242

Battery, outlined under California PC 242, is a common criminal offense, including deliberate and unlawful physical contact with another person. Battery is sometimes mentioned in conjunction with the offense of assault outlined under California PC 240. However, these are two distinct crimes with their unique elements.

For proof of an allegation of battery, a prosecution must demonstrate the following elements:

  • The defendant purposefully and illegally touched another individual in a harmful or offensive way.
  • The defendant was not acting in self-defense, in defense of others, or when legitimately disciplining a child.

If done in a harsh or hostile manner, even the tiniest touch can meet the requirements of the battery statute. Any contact with a person, even touching the person through their clothing, is sufficient to violate the law.

The touch in question is not required to inflict pain or injury. Additionally, physical touch can be made with something intimately related to a person. For example, if an individual is holding an item or riding a bicycle and another individual strikes the object or bicycle, the individual could face battery charges in both cases due to the close relationship between the object and the victim.

Rape – PC 261

Rape is among the most serious felony charges that an individual can face in California. It is a crime under California PC 261, which entails non-consensual sexual intercourse using threats, force, or fraud. Rape under PC 261 requires that the offender be unmarried to the victim. Raping a spouse remains unlawful under PC 262, and the crime bears the same elements and punishments as non-spousal rape.

Rape is a felony violation punishable by jail time of up to eight years. Furthermore, if the victim suffers significant bodily harm, the sentence might be increased by three to five years. A rape conviction will also count as a strike on your record, according to California's Three Strikes Law. If the rape victim is a child under the age of 18, the offender faces up to 11 years in jail. On the other hand, if the victim is under 14, the prison penalty increases to 13 years. Additionally, a conviction for rape would result in a lifetime sex offender registration.

Criminal Threats – PC 422

California PC 422 makes it an offense to communicate a threat that can result in significant bodily injury or the victim's death, also known as "criminal threats." The statute prohibits threatening to hurt or kill a person if the threat makes the victim fear for their safety or the safety of their loved ones. It is important to note that the threat must entail inflicting significant bodily injury or killing the complainant or those in their immediate family.

Violation of PC 422 is a "wobbler," meaning it can be prosecuted as a misdemeanor crime or a felony. If you are guilty of a misdemeanor, the penalties are:

  • A jail term not exceeding one year.
  • A fine not exceeding $1,000.

Following a conviction of felony PC 422 criminal threats, the penalties include:

  • An imprisonment of 16 months, two years, or three years in a state prison.
  • A fine not exceeding $10,000.

If you employed a lethal or hazardous weapon to express the criminal threat, the judge could give you an extra and consecutive one-year sentence in state prison.

Find an Experienced Criminal Defense Attorney Near Me

If you or your family member faces elder abuse charges under Penal Code Section 368, call our skilled criminal defense attorneys for legal advice. We could potentially argue that you were wrongly accused and unlawfully arrested. Perhaps the supposed victim was driven by rage or jealousy and attempted to conceal their participation in a crime. Our attorneys at the California Criminal Lawyer Group have helped thousands of people fight elder abuse charges in Bakersfield, and they are happy with the results. Contact us at 661-750-8230 to speak to one of our attorneys.