Elder Abuse Law & Defense
PC 368(b)(1) Crimes
California has created special laws and enhanced criminal penalties for crimes against elders and dependent adults. These special laws and enhancements are found at California penal code section 368. This article covers the crime of physical or emotional abuse against elders and dependent adults found at PC 368(b)(1) & 368(c). For information on theft crimes against elders, see Theft from Elders.
Elder Defined: Per PC 368, an elder is someone who is at least 65 years old and a dependent adult is someone who is between the ages of 18 and 64 years old and has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his rights.
To prove abuse of an elder or dependent adult the district attorney must prove that the defendant willfully inflicted unjustifiable physical pain or mental suffering on the elder or dependent adult (PC 368(b)(1) & 368(c)).
According to PC 368, if the defendant has a duty to protect the elder or dependent adult, then the defendant may be criminal liable even if the defendant did not personally and willfully inflict unjustifiable physical pain or mental suffering. It is sufficient evidence to prove a PC 368 violation if the district attorney can prove that the defendant negligently failed to protect the elder or dependent adult from a third person against the third person's infliction of unjustifiable physical pain or mental suffering.
Duty to Protect: Whether or not the defendant had a duty to protect is determined by several factors, including but not limited to, the defendant's relationship to the victim and/or any actual or implied contractual obligations that might exist between the defendant and the elder or dependent adult.
PC 368(b)(1) Sentence
Abuse of an elder or dependent adult is usually charged under PC 368(b)(1) or 386(c).
PC 368(b)(1): Elder Abuse, may be charged as a misdemeanor or as a felony (wobbler). When PC 368(b)(1) is charged as a felony, the defendant may be punished by up to four years in prison. When PC 368(b)(1) is charged as a misdemeanor, the defendant may be punished by up to one year in jail.
PC 368(c): Cause or permit injury to an elder or dependent adult, is charged as a misdemeanor only. If found guilty of PC 368(c), the defendant could face up to 180 days in jail.
Enhancements: There are additional enhancement for elder or dependent adult victims who are over 70 years old, or where the elder or dependent adult dies as a result of abuse by the defendant (PC 368(b)(2)(A) and 368(b)(3)(A) respectively). Those enhancements adds additional jail or prison time to PC 368 punishment.
Probation Sentence: Probation is a period of supervision lieu of jail or prison, but often times, a probation sentence does include either a short jail sentence, work release or electronic monitoring as part of a condition of probation in PC 368 cases.
PC 1170(h) Sentence: If the defendant is convicted of elder abuse as a felony, and he or she is not grated a probation sentence, then the defendant must serve his or her sentence in a California state prison, as opposed to a local county jail, and no part of that prison sentence may be split or suspended.
Three Strikes Law: PC 368(b)(1) is not a strike offense in California (negligent conduct). However, a common penalty enhancement to elder abuse, found at PC 12022.7, may be considered a serious offense and a strike offense in California under California's Three Strikes Law.
CIMT: Elder abuse, charged under PC 368(b)(1) or 368(c,) is not considered a crime of moral turpitude, so long as any injury to an elder is considered negligent.
In addition to a possible jail or prison sentence, if found guilty of a violation of PC 368(b)(1) or 368(c), abuse of elders or dependent adults, the defendant may face harsh probation or parole terms, fines, loss of professional or occupational license, immigration consequences (for non U.S. citizens), criminal protective orders (CPO), restitution, civil lawsuits, and more.
Defense to PC 368
There is not one type of defense that best fits an elder abuse case as every case is different; however, common defenses to abuse to elder or dependent adult includes: insufficient evidence to prove injury resulted from neglect, the injury that resulted from defendant's neglect is minor, statute of limitations, mistake of facts, coerced confessions of the defendant, self-defense, and defense of others.
If you have been charged with abuse of an elder or dependent adult pursuant to PC 368(b)(1), or 368(c), contact our experienced and successful criminal defense attorneys today. We offer free consultations seven days a week. We will patiently answer your questions, thoroughly explain your rights and defense options, and aggressively pursue your best defenses. Call today!
Quick Legal Reference
Crime: Elder Abuse
Code: PC 368(b)(1) (CalCrim No. 830 & 831)
Wobbler: Yes. PC 368(b)(1) is a wobbler crime. This means PC 368(b)(1) crime may be charged as a felony or as a misdemeanor.
Incarceration: Felony PC 368(b)(1) prison sentence range: 2, 3, or 4 years (If probation not granted). Misdemeanor jail sentence up to 1 year.
Probation: Probation may be available in PC 368(b)(1) cases (assuming other crimes or enhancements that bar a probation sentence are not present). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.
PC 1170(h)): No. PC 368(b)(1) is not subject to PC 1170(h) sentencing. This means that any incarceration ordered after a felony conviction must be served in state prison (as opposed to a county jail), and the sentence may not be split or suspended.
Strike: PC 368(b)(1) is not a strike offense listed in California's Three Strikes law.
Credits: 50% good conduct credits available.
CIMT: PC 368(b)(1) (Negligence) is not a crime involving moral turpitude.
Firearms: Felony PC 368(b)(1) convictions prohibit a defendant from owning or possessing a firearm.
Bail: $50,000 (Felony) (San Bernardino County)
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Closely Related Crimes
PC 368(c): Cause or permit injury to elder or dependent adult [Misdemeanor]
PC 368(e)(2): Theft from elder or dependent adult by caretaker [Misdemeanor]
PC 368(f): False imprisonment of elder or dependent adult [Felony]
PC 368(d)(1): Theft from elder or dependent adult [Misdemeanor or Felony]