Elderly men and women in our communities are not just elderly adults because they have emotions, feelings, and self-respect like us. Unfortunately, it is not uncommon for these people to fall victim to the despicable abusive behaviors of their family members, nursing homes, and caregivers.

Mistreating or abusing an elder is a form of domestic violence that attracts severe penalties under the law. If someone accuses you of elder abuse, you might be subject to civil and criminal penalties if the court finds the allegations against you to be true beyond a reasonable doubt.

For legal guidance on how to maneuver this new area of law, you should retain the services of a Fresno criminal defense attorney. Experienced defense attorneys at California Criminal Lawyer Group know what the prosecutor must prove in court to secure a conviction against you.

We are ready to take your call any time of the day to begin building applicable legal defenses to counter this detrimental charge against you for the best possible results.

An Overview of Elder Abuse

Elder abuse is a widespread form of domestic violence that occurs in many people's homes despite the relentless efforts by law enforcement officers to curb this immoral behavior. According to section 368 of the Penal Code, you commit the crime of elder abuse when you cause or permit an elder or dependent adult to experience unjustifiable physical pain or mental anguish.

Elder abuse can also mean deprivation by a family member or caregiver of necessary services and goods an elder or dependent adult needs to avoid mental or physical suffering. For the sake of this statute, an elder is any person who is aged 65 years and above. On the other hand, a dependent adult is any person aged between 18 to 65 years, but he/she lives with a physical or mental disability that prevents him/her from taking care of himself or herself.

Elder abuse is a crime that can make you subject to hefty fines, probation, and a lengthy prison sentence upon conviction. If someone accuses you of abusing an elder, you should know you are up against a crime that can affect your freedom and many aspects of your life.

If you are under investigation for an alleged elder abuse case, you should retain a legal representative's services because this is a confusing area of law. While an attorney cannot assure you that the prosecutor will dismiss the alleged elder abuse charges against you, he/she can help you achieve the best favorable outcome that you deserve.

Forms of Elder Abuse Under PC 368

Elaborated below are ways you can violate elder abuse laws under PC 368:

Physical Abuse of an Elder

You abuse an elder physically when you intentionally and knowingly use force or coerce against an elder or dependent adult, causing him/her to experience unjustifiable physical pain or suffer an injury. In the context of PC 368, the following acts or behaviors can count as physical abuse of an elder:

  • Sexual battery.
  • Prolonged deprivation of water or food.
  • Assault.
  • Unreasonable physical constraint.

Below are the warning signs or indicators the law enforcement officers will look at during an investigation for alleged physical abuse of an elder:

  • Unexplained or sudden hair loss on the alleged victim.
  • Bruises on any part of the alleged victim body.
  • Burns on any part of the alleged victim body.
  • Whether the alleged victim has a tooth loss.
  • Whether the alleged victim has broken bones or dislocated joints.

Emotional or Psychological Elder Abuse

Emotional or psychological elder abuse is any behavior that can cause distress, fear, confusion, agitation, or mental pain to an elder. Under PC 368, emotional or psychological elder abuse can happen through any of the following ways:

  • Isolation.
  • Threatening.
  • Intimidation.
  • Humiliation.
  • Insults.

Elderly or dependent adults who are subject to emotional or physical abuse will exhibit some notable signs such as:

  • Mood swings.
  • Appearing depressed.
  • Different sleeping patterns.
  • Low self-esteem.

Neglect and Endangerment of an Elder

Another way you can commit the offense of elder abuse is by neglecting and endangering an elder adult or dependent adult. Failure by a family member or a caretaker to fulfill the following types of caretaking responsibilities to an elder can count as elder abuse under PC 368:

  • Helping in personal hygiene.
  • Preventing malnutrition.
  • Providing adequate water and food.
  • Providing clean clothing and a safe shelter.

Financial Exploitation or Abuse of an Elder

Also known as senior fraud, the financial exploitation of an elder will count as elder abuse under PC 368. Typically, financial exploitation of an elder is unauthorized, fraudulent, improper, or illegal use of an elder's funds, assets, or other resources because you are in a position of entrustment by that person.

The behaviors mentioned below will count as financial exploitation or abuse of an elder under PC 368:

  • Stealing an elder's identity to commit fraudulent acts (identity theft).
  • Stealing an elder's property or assets.
  • Unlawfully withdrawing an elder's money from an ATM.

Sexual Abuse of an Elder

Sexual abuse of an elder occurs when you intentionally force an elder to engage in certain non-consensual sexual acts, for example:

  • Forcing an elder to undress.
  • Forcing an elder to touch your genitals.
  • Forcing an elder to watch a pornographic film.

Prosecution of an Elder Abuse Case

Once you are under arrest for any of the above forms of elder abuse, you become a defendant in the confusing criminal justice system. When a police officer arrests you for an alleged elder abuse charge, he/she will refer your case to the District Attorney's (DA) office for prosecution. Depending on the pieces of evidence available, the prosecutor may decide to take any of the following actions:

  • Reject the case.
  • File formal charges.
  • Instruct a police officer or detective to investigate the alleged case against you further.

Since elder abuse is a wobbler offense, the elements of the crime the prosecutor will prove in court to secure a conviction against you for violating PC 368 will vary, depending on whether your case is a felony or misdemeanor. Let's take a look at different elements of crime in a misdemeanor and felony elder abuse charge, respectively:

Misdemeanor Elder Abuse

To convict you for PC 368 violation as a misdemeanor during your case's trial, the prosecutor will use the available evidence, including eyewitness statements, to prove the following elements of the crime beyond a reasonable doubt:

  • An elder adult was subject to unjustifiable mental and physical suffering due to your willful conduct or criminal negligence.
  • Your conduct or behavior was endangering the life or health of the alleged elderly person.
  • You knew or had enough reason to know that the alleged victim was an elder adult, meaning he/she is 65 years or older.

For the sake of PC 368, unjustifiable mental and physical suffering typically means the pain and suffering the elder person had to endure due to your actions or behavior was unnecessary and excessive, considering the context of the case.

Felony Elder Abuse

To secure a felony elder abuse conviction against you, the prosecutor must provide viable pieces of evidence to prove the following elements of the crime to a judge or jury beyond a reasonable doubt:

  • An elder adult was subject to unjustifiable mental and physical suffering because of your willful conduct or criminal negligence.
  • Your intentional conduct was likely to cause a significant bodily injury or death to the alleged elderly person.
  • You knew or should have reasonably known the alleged victim was aged 65 years or older.

For the sake of this statute, unjustifiable mental and physical suffering in a felony elder abuse has the same meaning as with a misdemeanor elder abuse.

Penalties of Elder Abuse Conviction

Possible penalties you might be subject to following a conviction for violating PC 368 will depend on whether your case is a misdemeanor or a felony. Elder abuse conviction as a misdemeanor will make you subject to the following potential penalties:

  • Restitution or reimbursement to the victim.
  • A fine amounting up to $6,000.
  • An incarceration term in the county jail for a maximum of one year.

On the other hand, if the prosecutor files your alleged elder abuse case as a felony, the penalties you will be subject to after conviction will include:

  • Reimbursement to the victim.
  • Custody in the state prison for a maximum of four years.
  • A fine not exceeding $10,000.

If aggravating factors exist in the context of your elder abuse case, you will face harsher penalties. For instance, if the victim suffers a significant bodily injury due to your abusive behavior or conduct, you will be subject to an additional and consecutive seven (7) years in prison for a felony elder abuse conviction. That means your custody time in the state prison will be 11 years for elder abuse conviction as an aggravated felony.

Other Negative Consequences You Might Face for an Elder Abuse Conviction

Apart from the hefty fines and lengthy prison terms listed above, you will also be subject to additional negative consequences upon conviction for either a misdemeanor or felony elder abuse. Other negative consequences you may face for elder abuse conviction under PC 368 include:

Negative Immigration Consequences

For non-citizens, a conviction for violating PC 368 will also make you subject to negative immigration consequences because abuse of an elder or senior qualifies as a crime involving moral turpitude (CIMT). A CIMT offense under the law is any crime that involves either vile, base, or dishonest conduct like financial exploitation of an elder.

According to immigration law, If you are an alien or non-citizen, a conviction for an elder abuse crime can make you subject to deportation and inadmissibility consequences. Being inadmissible under this statute means you will not be able to:

  • Re-enter the country after removal or deportation.
  • Apply for adjustment of your immigration status.
  • Apply for a green card.

A conviction for a CIMT offense like elder abuse can also attract the following consequences:

  • Loss of your professional license if you are a doctor or lawyer.
  • Loss of employment.

Loss of Rights to Own and Possess a Gun

A conviction for violating PC 368 as a felony may also affect your rights to own and possess a firearm in the country. Under the law, it is unlawful for convicted felons to possess and buy guns because lawmakers consider these people dangerous to the safety and wellness of other people.

Expungement of an Elder Abuse Conviction

According to PC 1203.4, you can withdraw a plea of "no contest" or "guilty" to renter a new plea of "not guilty" for dismissal of the elder abuse case, meaning it will cease to exist on your criminal record. An expungement under this statute will release you from several negative consequences you might already be experiencing following a conviction for elder abuse.

Regardless of whether you are guilty of elder abuse as a misdemeanor or a felony, you will be eligible for expungement as long as:

  • You did finish your misdemeanor or felony probation successfully.
  • You aren't currently:
    • On probation for any offense.
    • Charged with any offense.
    • Serving a sentence or prison term for any offense.

When you file an expungement petition under PC 1203.4, the court will consider the following factors when determining whether to grant an expungement or not:

  • Your criminal record.
  • Your overall performance during the probation.
  • The severity and sophistication of the underlying elder abuse offense.
  • Any evidence of good cause to show you deserve this form of relief after conviction, for example:
    • Strong community ties.
    • An opportunity for employment.

Petitioning the court to expunge your elder abuse case following a conviction is a brilliant idea because having a criminal record for any offense can affect many of your life endeavors. For instance, it could be challenging to secure reliable employment if you have a conviction record for violating elder abuse laws under PC 368.

To increase your chances of winning an expungement petition after serving your jail term or probation successfully, you should have an attorney by your side. Your attorney will help you prepare every piece of document necessary when filing an expungement petition to convince the court you deserve this form of post-conviction relief.

Offenses Related or Similar to Elder Abuse

Often the prosecutor will file a related charge against you if the evidence he/she has is insufficient or weak to prove you guilty for violating PC 368. Some of the offenses related to or similar to elder abuse include:

Battery

Often confused with assault, the crime of battery is a common offense that involves the willful and illegal use of violence or force against another person. Police could arrest you for violating battery laws under PC 242 even if the alleged victim didn't suffer any physical injury as long as there was unwanted physical contact with him/her.

However, it is worth noting that if the alleged victim suffers a physical injury, you will be subject to a different related offense under PC 243(d). Here are examples of cases that could lead to battery charges under PC 242:

  • Striking an elder with your fist during a confrontation or argument.
  • Hitting an elder with a small object that causes a physical injury to him/her.

According to PC 242, simple battery is a misdemeanor offense that can attract the following penalties upon conviction:

  • Custody in the county jail for six months.
  • A fine not exceeding $2,000.
  • Summary/misdemeanor probation.

Criminal Threats

Section 422 of the Penal Code is the statute that criminalizes communication of criminal threats, also formally known as terrorist threats. PC 422 violation is an interesting criminal charge because it criminalizes words alone.

Generally, this statute makes it a crime to threaten another person with the intent of causing him/her to sustain reasonable fear for the safety of his/her life. Below are examples of criminal threats:

  • Sending an email to your ex-boyfriend to inform him that you will put his house on fire.
  • Threatening to shoot a person while holding a shotgun.

To convict you for violating PC 422, the prosecutor will have the legal obligation of proving specific elements of the crime to a judge beyond a reasonable doubt. The elements of crime in a criminal threat charge include:

  • The alleged threats to injure or kill another person were wilful.
  • You did communicate the alleged threats verbally, in writing, or using an electronic communication device.
  • The alleged threats were unequivocal, meaning the alleged victim had a reason to perceive them as actual threats under those circumstances.
  • The alleged victim was in reasonable fear for the safety of his/her life or his/her immediate family's safety.

The prosecutor could obtain a conviction against you for PC 422 violation even if there is no evidence to prove you had the intent to execute the alleged criminal threats. Since the offense of criminal threats is chargeable as a wobbler, the penalties you will face will depend on whether your case is a misdemeanor or felony.

For a misdemeanor PC 422 violation, you should expect the penalties listed below upon conviction:

  • A fine not exceeding $1,000.
  • Detention in the county jail for up one year.

However, for a felony PC 422 violation, you should expect harsher penalties upon conviction which include:

  • Detention in the state prison for a maximum of 16 months, 2 or 3 years.
  • A maximum fine of $10,000.

Rape

A rape charge is one of the most severe charges the prosecutor could file against you if his/her evidence is weak to secure a conviction against you for PC 368 violation because it is a felony. Rape is a sexual crime that involves the use of force, violence, menace, or threats to have non-consensual sexual intercourse with another person who is not your wife or spouse.

When prosecuting a rape charge, the prosecutor will consider whether the alleged victim could consent or not. According to PC 261, which defines rape laws, a person is incapable of consent if:

  • He/she has a mental disorder.
  • He/she is under the influence of alcohol or other illegal drugs.
  • He/she is unconscious.

Even if the alleged victim was incapable of consent, you could still be subject to a rape charge under PC 261. To prove rape allegations against you are factual, the prosecutor must have concrete evidence to prove the following elements of the crime:

  • You had sexual intercourse with the alleged victim (woman or a man).
  • The alleged victim didn't consent to the act of sexual intercourse.
  • You and the alleged victim were unwed.
  • You had to use force, threats, coercion, or menace to make the alleged victim consent to the unlawful act.

It is worth noting that, to be guilty of rape under this statute, the alleged victim must be alive. Since rape is a felony offense, the penalties you will be subject to upon conviction will be severe and life-changing. These penalties include:

  • Formal/felony probation.
  • A maximum fine of $10,000.
  • Custody in the state prison for a maximum of eight years.

If the alleged victim suffers a bodily injury during the commission of the alleged rape offense, a conviction will attract an additional and consecutive term in the state prison. An aggravated rape offense will make you subject to an additional 3 to 5 years in the state prison on top of the underlying offense standard penalties upon conviction.

Like any other sex offense, a conviction for PC 261 violation will also make you subject to life-long sex offender registration duties, according to PC 290. Inclusion in the sex offender registry will negatively impact the quality of your life because there will be a limitation in places you can live and where you can go.

Find a Criminal Defense Attorney Near Me

The crime of elder abuse under PC 368 is severe in the eyes of the law, as you can see above. You cannot risk dealing with the Fresno police or prosecutors without an experienced defense attorney on your side. Credible attorneys at California Criminal Lawyer Group have extensive and valuable knowledge of the criminal justice system to help you fight for a less severe charge or dismissal of the case.

Call us at 559-712-8377 to schedule your first obligation-free consultation with our attorneys for an exceptional and aggressive legal representation in the alleged elder abuse case.