Not surprisingly, California has among the most stringent laws protecting elders – i.e., adults age 65 and over – from every possible type of abuse, whether it be physical, mental or financial. And when the victim is your relative or current or former household member, or simply someone who was in the wrong place at the wrong time during a domestic dispute – then the crime falls into the realm of domestic violence.
Alternatively, if you are legally obligated to care for a senior citizen – typically because of your occupation (e.g., nurse, home health care worker, therapist, etc.), then you can be prosecuted for elder abuse if you “merely” neglected him or her, or otherwise placed him or her in an unreasonably dangerous situation. Thus, even “passive” elder abuse, such as inadvertent neglect on your part that nevertheless rises to the level of criminal negligence, can result in you being prosecuted for a felony.
While many elder abuse crimes are relatively benign and, therefore, charged as simple misdemeanors, others – particularly those resulting in the victim’s death – can land you in prison for decades or even life.
In general, felony elder abuse consists of the following types of crimes:
physical abuse resulting in severe injury; or
financial malfeasance resulting in significant losses.
The following types of elder abuse cases are considered “wobblers”, meaning the DA can prosecute them either as felonies or misdemeanors (depending on the circumstances):
moderate injury – physical or mental;
moderate financial losses; or
endangering or neglecting the victim.
Finally, misdemeanors typically involve minimal mental or physical injury, endangerment or financial loss to the victim.
California Penal Code section 368
If you do physical or mental harm to someone age 65 or older in your current or previous household, or an elderly relative of a former or current lover, you would be prosecuted under certain sections of California’s domestic violence (“DV”) statute, codified at California Penal Code section 368. The elements of this crime are as follows:
you knew or should have known that the victim was at least 65 years old;
the act or incident occurred under circumstances that were likely to result in serious injury or even death to the victim;
you intentionally caused, or allowed someone else to cause, the victim “unjustifiable” physical or mental harm; or
if you had legal care or custody of the victim, you intentionally caused or allowed another to cause him or her injury or to endanger his or her well-being.
See California Penal Code section 368(b)(1).
Alternatively, you will be charged with a misdemeanor if the previous elements were met with one crucial exception: the circumstances in which the victim was harmed were not likely to cause serious injury or death. See California Penal Code section 368(b)(3)(c).
A felony conviction under this statute will get you the following punishment:
state penitentiary for two, three, or four years; or
county jail for a maximum of 12 months; or
a maximum fine of $6,000; or
imprisonment or jail with a fine;
a restraining order (maximum ten years).
(For details regarding the restraining order, see California Penal Code section 368(l).)
Keep in mind, however, that sentencing prison-term enhancements will apply under the following circumstances, assuming the victim suffered serious injury:
36 additional months if the victim was between 65 and 69 years of age;
60 additional months if he or she was at least 70.
See California Penal Code section 368(b)(2). Serious injury is defined as “great bodily injury” in California Penal Code section 12022.7.
Alternatively, if you caused the victim’s death, the penalty enhancements would be:
60 additional months if the victim was between 65 and 69 years of age;
84 additional months if he or she was at least 70.
If you are convicted of a misdemeanor, the following punishment will apply:
up to 12 months in the county jail; or
a fine up to $2,000; or
a restraining order (maximum ten years).
Further, if you allegedly falsely imprison the victim by force or threat of force, you will be charged with a felony, and if convicted, will receive two, three or four years in a state penal institution. See California Penal Code section 368(f).
Additionally, whether you are convicted of a felony or misdemeanor, so long as you are not sentenced to state prison, and regardless of whether or not you serve jail time, you may be placed on probation, which would include mandatory counseling. See California Penal Code section 368(k).
Finally, elder abuse convictions almost always come with ancillary punishments, whether it be a permanent restraining order against you, or repercussions to your career, job or even immigration status (if applicable). Civil law consequences may also result, such as your sibling filing for a conservatorship to take the purported victim out of your care.
The following are all valid defenses – either partial or complete – to the various elder abuse charges described above:
you weren’t the elderly person’s legal guardian or caretaker at the time;
alternatively, if you were such, you didn’t allow him or her to be placed in harm’s way or allow someone else to do so;
the physical injury resulted from an accident or the purported victim’s self-neglect;
the alleged abuse resulted from your negligence, but not criminal negligence (i.e., you did not act so recklessly that the purported victim was exposed to an unreasonable risk of severe harm or death, and no reasonable person would have objectively believed such an act would result in such risk);
you never intended to harm or neglect the purported victim;
you were not responsible for his or her financial loss(es) (e.g., the purported victim simply forgot – perhaps because of dementia — that he/she instructed you to make certain financial transactions);
you acted out of self-defense when, for example, the elderly person attacked you;
you did not intentionally inflict unjustifiable physical or mental harm on him/her;
alternatively, you did act intentionally but the harm was justified (e.g., you had to restrain the elder to prevent him/her from hurting themselves – in other words, your act was necessary in that particular situation and was otherwise not excessive);
you did not allow another person whom you supervised to inflict the alleged unjustifiable physical/mental harm;
he or she was less than 65 at the time of the incident;
alternatively, you should not reasonably have known he or she was at least 65.
See the following Judicial Council of California Criminal Jury Instructions (“CALCRIM”):
– CALCRIM number 831 (“Abuse of Elder or Dependent Adult”);
– CALCRIM number 830 (“Abuse of Elder or Dependent Adult Likely to Produce Great Bodily Harm or Death”);
– CALCRIM number 3162 (“Great Bodily Injury: Age of Victim”).