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Penal Code 368 – Elder Abuse

368.  “(a) The Legislature finds and declares that crimes against elders and dependent adults are deserving of special consideration and protection, not unlike the special protections provided for minor children, because elders and dependent adults may be confused, on various medications, mentally or physically impaired, or incompetent, and therefore less able to protect themselves, to understand or report criminal conduct, or to testify in court proceedings on their own behalf.

(b) (1) Any person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered…”

This offense is used against people accused of physically or mentally mistreating an elderly person (someone over 65 years old) or a dependent adult. The offense is a wobbler, and can be charged as a misdemeanor or felony.

Potential Sentence: In a misdemeanor charge, county jail time for a maximum of one year or a maximum fine of six thousand dollars. In felony cases involving great bodily injury, a defendant can be sentenced to an additional term in state prison for three years ( if the victim is under 70 years old), five years (where victim is 70 or older). Where the act causes the death of the victim the defendant can be sentenced to an additional term of five to seven years in prison.

The prosecution is initially required to demonstrate one of the following theories:

(1) Defendant was responsible for willfully inflicting pain or mental anguish in an unjustifiable manner on a dependent adult or elder, OR

(2) The defendant's willful act resulted in or allowed for an elderly person's physical injury or mental suffering, OR

(3) The elderly person was under the care and/or custody of the defendant and the defendant willfully allowed for or caused an injury to health or physical well-being, OR

(4) While under the custody or care of defendant the elderly person was put into a situation of danger.

And the prosecution must also prove:

a.The defendant's act which actually caused suffering/injury or created a situation for possible injury of an elderly person occurred under conditions likely to produce great bodily harm or death.

b.That the victim was in fact a elderly or dependent adult, AND

c.The defendant knew at the time he or she acted that it was known the victim was an elderly adult or it should have reasonably been known, AND

d.Defendant had a legal duty to control the conduct or someone who caused pain and mental suffering on the elderly person but did not adequately supervise that person.

e.Under some of the above theories, the prosecution must also show criminal negligence on the defendant's part


• “Willfully” means that the person committed the act on purpose.

• “Great bodily injury” means that the injury is so significant it cannot be classified as mere minor or moderate injury. Pen. Code, §§ 368(b)(2)12022.7(f)People v. Cortes (1999) 71 Cal.App.4th 62

• “Elder” is a person 65 years or older.

• “Dependent Adult” is a person who is at least 18 and at most 64 years of age. A dependent adult has mental or physical problems which prevent them from carrying out a normal life, or to protect themselves on their own. The term can also describe someone who is in the same age range as above and is in a care facility.

• “Unjustifiable physical pain and mental suffering”- refers to an excessive amount of pain that is not necessary under the circumstances. People v. Curtiss (1931) 116 Cal.App. Supp. 771, 779–780.

Explanation of the Elements:

• Element (D) on Indirect Conduct: This element covers situations where the defendant may have a duty to ensure the well being of the victim even if they are not the actual care taker. In order to establish that a duty exists, it must be shown that there is a special relationship between the defendant and the elderly person. This occurs where someone such as the defendant accepts the obligation to control the conduct of the person who will actually take care of the elderly person. Generally the defendant undertakes this responsibility knowing that the third party caretaker could cause harm to the elderly person if not controlled appropriately, AND the defendant has the ability to control the third party's conduct.

• Element (E): “criminal negligence” means an act occurred which amounted to more than ordinary careless behavior, mistakes, or a lack of attention. Criminal negligence exists if the following two elements are met:

• the defendant acted in a manner that constitutes recklessness and creates a high risk of great bodily injury or death.

• A person acting reasonably would know that acting in the proscribed manner would create this type of risk. People v. Manis (1992) 10 Cal.App.4th 110

• Under any of the theories for this offense, a person “does not need to actually suffer great bodily harm.” People v. Cortes (1999) 71 Cal.App.4th 62. All that is required is that the conduct be “likely” to cause great bodily harm. In People v. Cortes, supra, the court found that the victim's bruising, reddened areas on the face, and cut inside the mouth were sufficient to indicate that great bodily injury was likely under the circumstances.

• If the elderly person does die as a result of the defendant's actions, the punishment can be increased (or enhanced) according to the victim's age. Pen. Code, § 368(b)(2) & (3); People v. Adams (2001) 93 Cal.App.4th 1192, 1198 [113 Cal.Rptr.2d 722.


• Lack of evidence: As you can see from the above discussion, the prosecution is required to prove many different elements to succeed in a charge of Penal Code 368. Since it is the prosecution's burden to prove the elements beyond a reasonable doubt, any weakness in the prosecutor's case can be detrimental to their attempt to obtain a conviction. Defense counsel may be able to make successful arguments against the prosecution's evidence to prove that the defendant is truly not guilty.

• Wrong person or fabricated allegations: Sometimes elderly people or dependent adults are cared for by many different people, i.e. different family members or different living assistants. In cases where abuse may be happening, it is often hard for the elderly person or family members to point out the exact person responsible for the mistreatment. This can sometimes cause the wrong person to be charged with a crime under this section. If you or someone you know find yourselves falsely accused of a crime, it is important to have an attorney advocating on your behalf to clear your name of charges. Furthermore, in some cases a caretaker may be accused of acts that he or she did not actually commit. Under some circumstances, what appears to be abuse may actually be caused by accidents or acts by other family members which have nothing to do with the person charged. Sometimes the actual guilty party themselves may point the finger at an innocent party to avoid detection. Criminal Defense Attorneys can examine the evidence against you to find out if it really shows you are responsible, or to discover who the guilty party actually is.


People v. Manis (1992) 10 Cal.App.4th 110

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