Like children, elders are dependents and a vulnerable group in society. Most individuals in this category have a deteriorated mental capacity or physical health issues that require others to care for them. You commit a crime of elder abuse when you cause a senior to suffer unjustifiable physical or mental pain. Additionally, financial exploitation of a person over sixty-five years accomplished through manipulation or tricks will suffice as senior abuse. Due to the nature of the victims, in this case, elder abuse is a serious crime charged under California PC 368.

If you are responsible for caring for a senior in your home or at a medical facility, you are an easy target for the prosecution of elder abuse. A conviction for senior abuse attracts serious criminal penalties when charged as a misdemeanor and far worse as a felony. Therefore, if you face an arrest or charges under this statute, you must seek the insight of an experienced defense lawyer. We have extensive knowledge and experience defending domestic violence cases at Chula Vista Criminal Attorney. Our attorneys will guide you through the case to secure the best possible outcome.

Understanding California Penal Code 368

Elder Abuse is an increasingly common offense. Elders risk abuse from their caregivers and other people close to them. The risk increases when the individual suffers from a terminal illness or disability. Senior abuse takes different forms, including emotional, verbal, physical, and sexual abuse. California Penal Code 368 defines elder abuse as inflicting unjustifiable physical or emotional pain on an individual who is sixty-five years or older.

Before the court finds you guilty of violating elder abuse laws, the prosecution must prove these elements:

  • You deliberately cause or permit a senior to suffer unjustifiable physical, emotional, or mental pain
  • You were responsible for an elder’s care, and you caused another person to injure or harm the victim
  • You intentionally place an elder in a position where their health is endangered
  • You knew that the victim was an elder or dependent person
  • Your conduct occurred under circumstances likely to endanger the senior’s life
  • Your conduct was likely to cause great bodily injury to the victim

Willful Actions

The law considers your actions willful when you harm the victim intentionally. Without willfulness, the prosecution must prove that your actions were criminally negligent. Criminal negligence is conduct that is more than ordinary reckless behavior. You will only face a conviction under this statute if it is clear that you acted with a disregard for the safety or wellbeing of the alleged victim. Proving negligence requires that you have a duty of care towards the victim.

Unjustifiable Physical Pain

Proving that you caused unjustifiable pain is another element the prosecution must satisfy to obtain a conviction against you. Unjustifiable pain is an unnecessary injury inflicted by kicking, punching, grabbing, or beating.

Mental Suffering

Senior abuse is not only based on physical harm. Intentional mental or emotional torture of a person aged 65 or older will attract PC 368 charges. Actions such as isolating someone or making fun of them are emotional abuse.

Neglect and Endangerment

You can face charges for elder abuse for causing harm and exposing an elder to harm from another person or circumstance. Instances of neglect could include denial of basic needs while the elder is under your care or failing to offer other forms of basic care.

Financial Exploitation

Elder abuse laws seek to punish individuals who take advantage of seniors for financial gain. Using deceit, blackmail, or coercion to force a person to hand you control of their finances or assets will attract charges under this statute.

Sentencing and Punishment for Elder Abuse in California

In California, infliction of physical, mental, or financial abuse on an elder is a wobbler. The prosecution or district attorney can choose to file felony or misdemeanor charges. Different forms of conduct could raise senior abuse charges. Therefore, the prosecution will consider the specific factors of your case to determine the nature of your charges. Whether you placed the elder in danger or caused them physical harm may play a role in your charges.

     1) Misdemeanor Elder Abuse

Elder abuse includes subjecting a senior to physical or emotional harm. A conviction under this statute requires proof that you disregarded the risk you were causing the victim by acting as you did. Without the evidence of criminal negligence, your culpability under PC 368 will be lessened, and you will face misdemeanor charges. Additionally, if your attorney can prove that you were unaware of the victim's age, you face a lesser charge.

Another factor that could compel the prosecution to charge you with a misdemeanor is having no prior history of domestic violence or other violent crimes. A conviction for senior abuse as a misdemeanor attracts these penalties:

  • A maximum of one year in county jail
  • Fines that do not exceed $6,000
  • Issuance of a restraining or protective order
  • Victim restitution
  • Misdemeanor probation

     2) Felony Elder Abuse

Elder abuse ranges from simple issues like leaving a senior without food to more serious acts like inflicting injury on the person. When you pose a risk of great bodily harm to the victim, the prosecution will gear your case to felony charges. If you face felony charges and there isn’t any solid evidence to support the allegations of bodily harm, your attorney can fight to have the charge reduced to a misdemeanor.

If you have a prior conviction for elder abuse, domestic violence, or a serious felony, the prosecution will not hesitate to charge you with a felony. Being a repeat offender indicates a disregard for justice and an inability to rehabilitate. Another aggravating factor that could increase your guilt is proof that your conduct was criminally negligent

 A felony elder abuse conviction attracts the following implications:

  • A state prison sentence ranging from two to three or four years
  • Payment of fines not exceeding $10,000
  • A strike under California Three Strikes Law
  • Felony probation
  • Stay-away order
  • Victim restitution

Penalty Enhancements for Senior Abuse

A penalty enhancement is a factor in your crime that causes the court to impose an additional or harsher penalty. In California, you could face a sentence enhancement for elder abuse depending on the victim's age and the severity of the injuries that resulted from your actions. For victims under seventy years, causing great bodily injury will result in a three or five years additional state prison sentence.

If the victim was over seventy years when they committed the crime, causing great bodily injury will result in a five-year additional sentence. If an elder over seventy years died from your abuse, you would serve a seven-year additional sentence. All penalty enhancements are served consecutive to the original sentence for your crime.

You will only receive these enhancements if you know about the victim's age; Therefore, it is vital to have a skilled attorney who can establish the lack of knowledge on the age and help you avoid these enhancements.

Immigration Consequences of Elder Abuse

If you face a conviction for a serious felony or a crime of moral turpitude, you risk facing serious immigration consequences. Moral turpitude means that a crime involves extreme dishonesty or depraved conduct that is unusual for a reasonable person. When you breach the duty you have to care for the elder by causing them physical harm, neglecting them, or exploiting them financially, your crime falls under moral turpitude offenses.

Under these circumstances, a conviction for elder abuse could attract deportation or be marked inadmissible in the United States. Deportation means that you will suffer a forceful removal from the country. Inadmissibility, on the other hand, means that in an instance where you leave, you cannot reenter the country.

Elder Abuse and Gun Rights

In California, it is illegal for a felon to possess or use a firearm. Therefore, when you face a conviction for felony senior abuse, the court will strip you of your gun rights.

Legal Defenses Against Elder Abuse Charges

Not all individuals facing charges for senior abuse are guilty of the crime. Since many seniors are confused and mentally unstable, there are times when they can make non-existence claims. Additionally, these individuals' medical conditions and fragile nature could result in injury that law enforcement and prosecution could mistake for abuse. Therefore, you must fight the CPC 368 charge with the guidance of a skilled lawyer. Some of the defenses that are common for these charges include:

Your Actions Were Not Willful

In an elder abuse case, the prosecution team must prove that your actions against the senior were intentional. While using this defense will not deny your involvement in the wrongful act. However, you can argue that the alleged victim suffered accidentally. It is easy for the court to accept your argument of accidental harm to the elder if you are a first-time offender and have not exhibited any pattern of abuse against other people. Although claiming that your actions were accidental may not prompt dismissal of the case, the defense can help you receive a lower sentence of probation instead of jail.

Mistaken Identity

Elders suffer from different conditions affecting their memory or mental capabilities. Therefore, it is easy for them to identify the person that harmed them wrongly. If you claim that the senior suffered abuse in another person’s hands, you must back the claim with sufficient evidence. A skilled attorney will help you establish your whereabouts during alleged abuse. If the actual perpetrator of the crime is found and put to justice, the court will dismiss your charges.

False Accusations

Elder abuse charges cover a wide variety of circumstances. Therefore, you are not uncommon to be a victim of false accusations. Sometimes, jealous and vengeful family members can falsely accuse a caregiver of abuse. When using the false accusations defense, your lawyer will establish whether the alleged injuries are consistent with the initial crime report and witness testimonies.

Insufficient Evidence

Before you face a conviction for elder abuse, the prosecution must prove every crime element beyond a reasonable doubt. Especially in cases with no physical evidence of abuse or records of financial exploitation, it is difficult for the prosecutor to prove that you committed the crime. When the prosecution has insufficient evidence, they can offer you a plea for a lesser offense or impose a lesser sentence.

Coerced Confessions

Police officers and prosecutors feel the pressure to hold someone accountable when an instance of abuse against a senior arises. In their investigation of the case, the officers can violate a variety of your rights, including a denial of the right to seek legal guidance or coerce you to confess to the crime. Evidence obtained in a coerced confession is not admissible in court.

Expunging a PC 368 Conviction

In California, domestic violence charges like elder abuse are very serious. The prosecution tries their best to prove your guilt and have you convicted. The consequences of an elder abuse conviction can go beyond jail time. Having a record for this crime can affect your ability to obtain meaningful employment, enlist in the military or even cause you to lose a professional license.

Fortunately, some defendants convicted of this crime can seek relief from the disabilities of the conviction by expunging the record. Record expungement is a legal proceeding where the court withdraws your guilty plea and allows you to answer ‘no’ when a person asks you whether you have a prior conviction. Under PC 1203.4, you can expunge a misdemeanor and felony. You may be eligible to expunge your conviction if you meet the following criteria:

  • You do not have a prior conviction for domestic violence
  • You have completed your probation. You can petition the court for early termination if you have not violated any of the probation terms.
  • You are not currently serving probation or a jail sentence for another offense.

If you did not receive a probation sentence for your crime, you must wait up to one year from the date of your conviction to file an expungement petition. If you face a felony conviction, you are only eligible for an expungement under these circumstances:

  • After your conviction, you served time in jail instead of state prison
  • If the court ordered you to mandatory supervision, you must wait up to two years to file for the relief

Some of the benefits you accrue from expunging your PC 368 conviction are:

  • Higher chances of obtaining a job. Most employers perform a background check on all job applicants before hiring them. Although the expunged conviction remains in your record, employers cannot use it to discriminate against you for a job opportunity.
  • Keep your professional license. Facing a conviction for elder abuse can cause you to lose your professional license or denial when you apply for a renewal. Expressing the criminal charges is a great way to ensure you retain the license.
  • Witness credibility. If you have a felony conviction on your record, you cannot serve in California court as a witness. However, with an expunged conviction, no one can question your credibility as a witness.
  • Personal satisfaction. Having a conviction hanging over your neck is very disturbing. A successful expungement of your record could offer immense relief, and you can continue your life on a clean slate.

Offenses Related to Elder Abuse in California

Elder abuse falls under the broad category of domestic violence. There are several offenses related to the crime, and they include:

Criminal Threats

California PC 422 makes it a crime to threaten another person with immediate bodily harm or death. When you use threatening words towards a person over sixty-five years, the prosecution can file charges for criminal threats and elder abuse. The elements that a prosecutor must prove to establish a violation of PC 422 include:

  • You deliberately threaten to cause serious bodily harm or death to another person
  • You made the threat in writing, orally, or through electronic communication
  • You intended for your statement to be understood as a threat by the alleged victim
  • The threat was immediate, and you intended to carry it out
  • Your message or utterances caused the alleged victim to fear for their safety and that of their immediate families

The prosecutor does not need to show that you carried out your threats. The present ability to go through with a threat is enough to secure a conviction under this statute.

Violation of PC 422 can attract either a felony or misdemeanor charge. As a felony, issuing criminal threats attracts a three-year prison sentence and a $10,000 fine.  In addition to the above penalties, felony PC 422 is a strike under the three strikes law. For a misdemeanor conviction, criminal threats attract a one-year jail sentence and $1,000 in fines. You could face harsher penalties if you are issued criminal threats associated with a domestic violence crime.


You commit a crime of battery when you willfully and maliciously touch another person. Acts that constitute battery include punching, slapping, kicking, and poking. Unlike popular belief, evidence of injury is unnecessary for battery charges to stick. Any form of offensive touch can result in a conviction. Offensive touching of an older adult under your care will attract charges for battery and elder abuse. Battery laws are addressed under California PC 242, and the offense has these key elements:

  • You touched someone else offensively.
  • Your actions were willful.

Simple battery is a misdemeanor in the absence of injury to a victim. A conviction under PC 242 is punishable by a jail sentence that does not exceed six months, a $2,000 fine, and misdemeanor probation.

Child Abuse

In addition to protecting elderly citizens, California law is stringent on individuals who cause harm or endanger the safety of children. Child abuse involves the intentional infliction of physical injury on a person under eighteen. During your prosecution for child abuse, these elements are necessary:

  • You intentionally inflicted cruel punishment on a minor
  • Your actions resulted in a traumatic condition for the child

When you face charges for child abuse, prior convictions for domestic violence will increase the severity of your charges and enhance the potential sentence. Depending on the severity of the injuries, inflicting corporal injury on a juvenile can attract felony or misdemeanor charges. In addition to a lengthy jail time and hefty fines, a child abuse conviction can affect your relationships with your family and ruin your career.


Rape is one of the most severe sex offenses under California law. PC 261 defines the crime as using threats, fraud, or force to engage in non-consensual sex with someone else. The court will find you guilty of rape if the following is true about your case:

  • You engaged in sexual intercourse with someone else
  • You were not married to the alleged victim at the time of the incident
  • The alleged victim did not consent to the act
  • You acted with force, fear, or threats

Rape attracts felony charges in California. A conviction for the offense is punishable by up to eight years in prison and the requirement to register as a sex offender. It is not uncommon to face false or baseless accusations of rape like elder abuse. Therefore, seeking legal guidance to fight these charges is important.

Find a Competent Chula Vista Criminal Defense Lawyer Near Me

Because of their helplessness and inability to protect themselves, elders receive special protection from the Government. Any attempts to cause them harm or exploit them will attract an arrest and severe charges under California Penal Code 368. Elder abuse charges cover acts like emotional pain, physical pain, or neglect from caregivers. Prosecutors have pressure from the law and society to severely prosecute cases of elder abuse and impose harsh penalties on defendants that the court finds guilty of the crime.

Sometimes, elders have mental incapacitation or confusion from the medications they take. This can cause them to make unfounded claims of abuse against you. Sadly, even under these circumstances, law enforcement will put these accusations into account and file charges against you. Fortunately, facing an arrest is not the end for you. You can beat elder abuse charges by building a solid defense with the guidance of your attorney.

At Chula Vista Criminal Attorney, we will investigate all the factors of your case and prove to the court that you are either a victim of false accusations or the apparent signs of abuse stem from the elder’s medical condition. We serve clients requiring legal guidance to fight domestic violence charges in Chula Vista, CA. Call us at 619-877-6894 today.