Elder Abuse

In California, under Penal Code 368 PC, elder abuse is a major offense, and the crime can be considered a felony based on the evidence. It is aggressively prosecuted in Vista under a special team of district attorneys. This abuse is any mistreatment aimed at a person aged over 65 years old.

Elder abuse can involve a family member or worker at a nursing home physically or sexually abusing an elderly person.  The abuse can also be psychological and entails instilling fear in an elderly person or assaulting them verbally with threats and insults. A person could be charged with other felonies such as Criminal Threats under the Penal Code 422 PC if they used words such as “kill” or “die” in their verbal assault.

Elder abuse could also include neglect where there is a failure to provide medical care, failure to give medication, failure to provide clothing, food, proper nutrition, and clean water. Other reasons one can be prosecuted under the elder abuse law are abandonment and isolation; where an elderly person is prevented from seeing others or is not given proper care.

This crime in California does not have to be physical or psychological. It can also be financial abuse. Financial elder abuse is where a person is accused of; stealing or taking money or improper use of bank accounts, real estate or other assets through breach of fiduciary duty to safeguard assets or fraud.

If charged with elder abuse in California, you could get a misdemeanor or a felony charge. If it is a misdemeanor you could face:

• Summary probation,
• A one-year sentence in county jail,
• A maximum fine of $6,000 or $10,000 for a second offense,
• Restitution to the victim,
• Counseling.

For a felony elder abuse conviction, you could face:

• Formal probation,
• Two to four years in state prison with additional and consecutive three to seven, years in prison if the victim suffers great physical harm or death,
• Up to $10,000 in fines,
• Restitution to the victim,
• Counseling.

The exact paragraphs under the 368 PC that you could be charged under are:

Under the penal code 368 (b)(1) any person that knows or should know that a person is a   dependent adult or an elder and who causes or permits an elder or dependent adult to suffer or inflicts pain, or harm, can be jailed in a county jail for a period of not more than a year. He or she could also be fined six thousand dollars ($6,000) or both the fine and prison sentence. Alternatively, the person could be jailed in state prison for two, three, or four years.

Under the penal code 368 (b) (2), if the victim suffered major bodily harm as defined by section 12022.7, the defendant will get an additional stay in state prison as follows:

1. Three years if the victim is below 70 years
2. Five years if the victim is over 70  years

Under the PC 368 (3), if the abuse described in paragraph (1) proximately led to the victim’s death, the defendant shall get an additional state prison term of five years if the victim is below 70 years and seven more years if the victim is over 70 years.

Under Section 368 (3)(c), if a person who knows or should know that a person is a dependent or an elder, causes them to suffer under conditions other than those that could cause major bodily harm or death, he or she could be punished with a fine of not more than two thousand dollars ($2,000) or imprisonment in county jail for a period of not more than a year. Alternatively, he or she could be punished with both the fine and prison term.

Under the penal code 368 (3)(d), if a person, who is not a caregiver violates a provision of the law related to forgery, fraud, embezzlement or who violates Section 530.5 on identity theft, they could also be charged in court, and be imprisoned in a county jail for a year if convicted. They could also be jailed in state prison for two, three, or four years if labor, money, services, goods, or personal property taken is worth over $400. They could also be jailed or fined a thousand dollars ($1000) if the money, labor, services, goods, or property does not exceed $400. The same applies to a caretaker of a dependent or elder.

The penal code 368 (f) elaborates on false imprisonment, where, if a person falsely imprisoned an elder or dependent adult, they could be jailed in state prison for two, three, or four years. The law in California states that an elder under the penal code 365(g) is a person older than 65 years old.

The penal code 368(h) defines a dependent adult as a person who is between 18 and 64 years whose mental or physical state restricts their ability to care for themselves. Dependent adults are also those with mental disabilities. It also includes those in inpatient care in a 24-hour facility as it is defined under 1250, 1250.2, and 1250.3 of California Health and Safety Code. The penal code defines a caretaker as a person who is charged with the custody, care, or control of a dependent adult or elder.

When a person is convicted of violating any part of the penal code section 368, the court might require that the person gets counseling as part of the probation. That person shall pay for the expenses of taking part in a counseling program that will be determined by the court. The court will not take into account the ability of a person to pay. However, probation shall not be denied based on the inability to pay.

Depending on the circumstance under which the offense of elder abuse occurred, you could be charged for other crimes under the California penal code. Some of the charges might include:

Penal Code 242 PC battery

Under this section, it is a crime to use force upon another. When you cause physical injury by intentionally hitting an elderly person, prosecutors might decide to charge you for battery and elder abuse.

If the battery does not lead to serious physical injury, you will be charged for a misdemeanor, and you could pay up two thousand dollars in fine. You might also spend up to six months incarcerated. If it is a felony, you might spend a year in county jail or up to four years in state prison.

Penal Code 261 PC Rape

If you have non-consensual intercourse with the elder using threats, force or fraud, the prosecutor could charge you for rape and elder abuse. This often occurs when evidence shows you have had sex with an elder who is incapable of giving consent. The charge of rape is also considered when force was used against an elder who cannot fight back. In California, rape can lead to a sentence of three to eight years in state prison.

Penal Code 187 PC/ Penal Code 192 PC

You could be charged for murder or manslaughter if an elder dies due to negligence or abuse.

Penal Code 422 PC Criminal Threats

If you make verbal threats against an elder, you might be charged with making criminal threats on top of the elder abuse charge. This can lead to an additional one year in county prison or incarceration in state prison.

If you are accused of elder abuse against a spouse or family member, you might be charged under the domestic violence laws of California. This usually leads to a penalty well above that of elder abuse.

Penal Code 401 PC Aiding a Suicide

When an elder suffering from a chronic illness contemplates suicide, a caregiver is not allowed to help him or her. If that happens, you could be charged with assisting suicide. In most cases, when an elder kills himself or herself, grieving family members often look for someone to blame, and thus you are charged with assisted suicide. This is even in cases where you did not know of the intent to commit suicide. It could lead to imprisonment in state prison of up to three years.

As you can see, the California penal code has severe punishment for those charged with violating the elder abuse laws. It is important that you talk to an attorney when you are charged with elder abuse. What might seem like a misdemeanor to you could end up landing you in jail for many years with huge fines.

While the offense of elder abuse is a serious one, elderly abuse accusations are sometimes made against individuals who have committed no wrong. Sometimes an accuser could lie, or it could be because the elderly person could have a condition or disease that mimics signs of psychological, physical abuse, or neglect. 

To make the problem even worse, the police, doctors, and social workers might not have the training to tell apart the signs of accidents, age, or illness. However, if they suspect abuse, they must report it.

If a doctor, social worker, or police officer does not report something suspicious, they could face criminal charges. However, if they make a report and it turns out they were wrong, they usually face no charges. Thus, they will usually report people with no facts just to ensure they are not dragged through court.

Despite this, there are various legal defenses, which we can use to protect you in California. This can help to reduce or dismiss the charges. Some common defenses we could use are:

It Was an Accident

If you did not intentionally injure an elder and you have behaved in a manner that did not rise to the legally required threshold for you to be considered negligent, prosecutors will not be able to make abuse charges stick. Thus, you can utilize the defense of it being an accident.

For instance, if you were moving an elder to bed on their wheelchair, you could slip and cause the elder to fall. As a result, they could suffer physical injuries such as a broken arm or hip. In such a case, you are innocent of any accusations of abusing the elderly. This is because you were not criminally neglecting the elder. Accidents such as this can happen to anyone, and you should not face any charges.

False Accusations

There are numerous reasons why you could falsely be accused of elder abuse. Sometimes, unhappy members of your family could be trying to isolate the elder by ensuring you never come close to them again. For instance, they may be jealous that an elder gave you a huge sum of money as a reward. In some cases, the accusation was true, but the injuries did occur due to abuse.

Mistaken Identity

This is another defense that can be used to get you off the hook. It could be very well that an elder was abused, but you did not cause it. However, if you are the primary caregiver, you might be the first suspect. Besides, if you and the elderly parent had recently been in an argument over something and soon after the elder is abused, others might assume it was you. However, you clearly know it was not you.  A good criminal attorney will be able to utilize this defense to your advantage to convey to the court that you are innocent. 

Unclear Evidence

In order for you to be prosecuted, a prosecutor needs to prove beyond all doubt that it was you and not anyone else that caused the abuse. Thus, there must not be any other suspected reason for the elder’s injuries except for the fact that it was your actions.

If there is no other evidence that can corroborate the charges against you, our criminal defense attorneys can help to cast doubt on your guilt. In some cases, we will call an expert who can testify the signs of abuse were caused by something else. For instance, we could argue that the injuries were caused by something such as age. In other cases, another witness could testify that the elder is delusional, paranoid, or even senile and that the accusations made against you are not backed by any facts.

You could also provide proof that you have routinely cared for the elder without any complaints for a long time. This could be in the form of drug store receipt for any medication prescribed to them, bills for the air conditioning unit and the heating unit, records from visits to the doctor. It generally entails bringing any evidence that proves you have not abused the elder but have taken care of him or her well.  

It Was an Isolated Incident

In some cases, the facts are too obvious and you cannot deny fact that you abused the elder. However, you could still argue that it was a one-time incident and not a pattern of abuse. If you often care for elderly people, then you know that it can take a huge toll on you in terms of both being physically fatigued, and being emotionally drained.

You will need to ensure that the members of the jury understand that you are not a bad person and this was just a slip due to an unexpected emotional breakdown due to the toll that caregiving has had on you. This could lead to some sympathy and even a reduced sentence or charge.

When you are accused of elder abuse, you should always talk to a defense attorney with years of experience in elder abuse defense. He or she will work out the best solution for you. The District Attorney has a huge amount of resources to convict those accused of this violation. A lawyer in your corner will ensure that the playing field is level. The state of California takes this violation very seriously.

For you to mount a credible defense against elder abuse charges, you will need the expertise of a law firm such as the Vista Criminal Attorney Law Firm. We have attorneys that can successfully defend you in the California legal system. Call us at 760-691-1551 to talk to our highly qualified criminal defense experts regarding your Elder Abuse case. You will want us in your corner so give our Vista Criminal Defense Attorney a call today!