Elder Abuse

Ensuring senior citizens’ safety and well-being is becoming increasingly important as the aging population continues to rise. Fortunately, even lawmakers recognize it, and there is a specific law in place for protecting our vulnerable elders from any form of abuse, including physical, emotional, and financial abuse.

Any form of abuse against a person aged sixty-five (65) or older is a crime. While it is often associated with domestic violence (DV) cases, elder abuse offenses can occur in any context, including nursing homes, where you expect them to be safe.

If you or someone you care about is under investigation or charged as a suspect in a criminal case that involves the abuse of a senior or elder, consulting with a criminal defense attorney is paramount. At the Law Offices of Anna R. Yum, we can help shed light on what you are up against and offer you legal representation on the case to secure a favorable outcome wherever you are in San Diego.

A Look at Elder Abuse Offense Under Penal Code 368 PC

PC 368 defines elder abuse as emotional or physical abuse, endangerment, financial exploitation, or neglect of a person aged 65 years or older. Below are examples of behaviors that could qualify as elder abuse under PC 368:

• A caregiver severely ridiculed a 70-year-old man for being wheelchair-bound
• Refusing to feed a 75-year-old parent who cannot feed herself
• Using fraudulent means to convince a 90-year-old man to make you the beneficiary of his/her wealth in his/her will

In other words, elder abuse is any omission or act that causes harm or distress to a person aged 65 years or older. If you are under investigation or charged with elder abuse, consulting with an attorney is paramount to increasing your chances of securing a favorable outcome.

Types of Elder Abuse

Elder abuse under PC 386 could manifest in various ways. Below are some of the common types of elder abuse you ought to know about:

Physical Abuse

One of the common forms of elder abuse is physical abuse. You commit physical abuse of an elder when you use violence or force that causes bodily injury to him/her. Unexplained injuries, cuts, fractures, or bruises, or frequent hospital visits could indicate physical abuse.

Financial Abuse

Also often referred to as elder financial abuse or senior fraud, financial abuse involves the improper or unauthorized use of the financial resources of an elderly person. Examples of acts that could qualify as elder financial abuse include forging signatures or stealing possessions.

Elder Endangerment and Neglect

Elder endangerment or neglect is another form of elder abuse that occurs when you place a senior in a situation that puts his/her safety and health at risk. Inadequate hygiene or untreated medical conditions are examples of elder neglect or endangerment.

Emotional Abuse

As the name suggests, emotional abuse is any act that can cause fear, distress, or mental anguish in an elderly person, including isolation and ridicule.

Sexual Abuse

You commit sexual abuse against an elderly person when you engage in unwanted sexual activity or contact with him/her without his/her consent.

Committing any of these acts against a person aged 65 or older can attract elder abuse charges under PC 368. When you face allegations for the commission of any of the above acts, your future and freedom could be at risk because a conviction for a PC 368 violation can attract lengthy jail time.

What You Should Expect at Your Case Arraignment Hearing if You are Facing an Elder Abuse Charge

When you are under arrest or charged with elder abuse, arraignment will be your first court hearing. Unless the court requires your appearance, an attorney can attend the arraignment hearing on your behalf. During this initial legal proceeding, the judge will:

• Inform of your legal rights, including the right to legal representation by a public defender if you cannot afford a personal attorney
• Read the charges you are facing and ask you to take a plea of your choice, including “guilty,” “not guilty,” and “no contest” plea
• Determine your eligibility for a pretrial release on bail

Since every plea choice has consequences, your attorney must evaluate your case keenly to know which one will work in your favor. Choosing a guilty plea means accepting that the allegations you face are true. In that case, the court will sentence you without a trial.

Your attorney could recommend this plea choice if the evidence the prosecutor has against you is overwhelming, meaning there are minimal chances of winning at trial. However, if loopholes exist in the prosecutor’s case against you, your attorney will likely recommend a not guilty plea.

That means you are ready to face your charges at trial and present your side of the story to the judge or jury for the best possible outcome. If the judge allows you to secure a pretrial release on bail, he/she will likely require you to adhere to a restraining order as part of your bail conditions. A restraining order prevents you from contacting or communicating with the victim.

Elements of Crime in a PC 368 Charge

At trial, the prosecution team will bear the legal weight of proving to the jury or judge that the allegations you are facing are true beyond a reasonable doubt for a conviction under PC 368. Specifically, to secure a PC 368 violation conviction against you, the prosecutor bears the legal burden to prove the following facts, also known as elements of the crime, before a judge or jury:

• You willfully or with criminal negligence caused an elderly person to endure unjustifiable mental suffering or physical pain
• Your conduct or inaction under those circumstances could have negatively impacted the health and safety of the elderly individual
• You knew or should have known the victim was aged 65 years or older

Since elder abuse is a wobbler, the prosecutor could also file the charge as a felony. However, when charged with felony elder abuse, the prosecutor must prove that your conduct was more likely to cause the elderly person to sustain a severe bodily injury or die to secure a conviction against you under PC 368.

According to PC 368, you act “willfully” when your actions or conduct were on purpose, even though you did not violate any law. On the other hand, you act with criminal negligence if your conduct or behavior shows disregard for human life.

However, it is worth noting that the prosecutor cannot prove that you acted with criminal negligence when charged with an elder abuse offense, unless you were legally obligated to act in a certain way.

Potential Penalties You Could Face for a Conviction Under PC 368

Depending on your criminal record and the specific type of abuse you committed, the prosecutor can file a PC 368 offense as either a misdemeanor or a felony. A misdemeanor PC 368 violation conviction will result in a fine of up to $6,000 and a jail term of up to one (1) year. However, the judge could grant you summary or misdemeanor probation of up to two (2) years.

A felony PC 368 violation conviction will carry the following possible sentence:

• A fine not exceeding $10,000
• Two, three, or four years in state prison
• Restitution to the victim

However, with the help of a skilled attorney, you could qualify for felony or formal probation for up to five years instead of the lengthy jail time.

Other Possible Repercussions of a PC 368 Violation Conviction

Unfortunately, an elder abuse charge conviction could carry other negative repercussions beyond the jail time and the hefty fines. Some of these negative consequences include the following:

Deportation

Depending on your case facts, an elder abuse offense could qualify as a crime involving moral turpitude, meaning you could face deportation after conviction when you are a non-citizen. That is why having an attorney on your side is important if you have elder abuse charges. A seasoned attorney can help secure a dismissal or convince the prosecutor to reduce your charge to a non-deportable, lighter charge.

Loss of Your Gun Rights

According to PC 29800(a)(1), it is unlawful for a felon to purchase, carry, receive, possess, or own a firearm. A PC 29800(a)(1) violation is also a felony, carrying a jail term of not more than three (3) years. Therefore, if the prosecutor secures a felony PC 368 violation conviction against you, you will lose your right to own a gun, which can significantly impact your life.

Challenges Securing Employment

A criminal record, even for a misdemeanor offense, can significantly affect your job opportunities because most employers will scrutinize your criminal background before hiring you. Additionally, a criminal record could disqualify you when applying for a practice license, making it difficult to kickstart your career. That is particularly true if you are a medical practitioner or caregiver.

Loss of Your Professional License

Some licensing agencies treat criminal convictions against their licensees seriously, especially if the offense is related to their qualifications and duties. Unfortunately, a PC 368 violation is one of those offenses that could negatively affect your professional license status.

After conviction under PC 368, your licensing agency could revoke or suspend your practice license. That means you cannot offer professional services to earn income during the revocation or suspension period.

Defenses to a PC 368 Charge

Preparing legal defenses to a PC 368 charge can seem overwhelming, especially if the victim is a family member and you have an emotional connection to him/her. That is why involving a skilled criminal defense attorney in your case is crucial. Your attorney will scrutinize the facts of your unique case to determine the best defenses that will work to your advantage and secure the best possible outcome.

Here are some of the legal defenses your attorney could use to challenge the PC 368 charge at trial to secure a lighter offense or dismissal:

You are a Victim of False Accusations

Issues of false accusations are not uncommon in DV-related cases. For example, if you are a caregiver, an angry patient or his/her family members could accuse you of abusing a senior to punish you. If your defense attorney can impeach the accusers’ credibility and prove their motive for fabricating the allegations, the judge could dismiss or reduce your charges.

The Injury Was Accidental

According to PC 368, the prosecutor must prove that you willfully caused the alleged senior to suffer unjustifiable mental suffering or physical pain. Therefore, if your attorney can prove that the senior’s injury was accidental and you had no criminal intent to harm him/her, the court could dismiss or reduce your charges.

You Were Defending Yourself (Self-Defense)

Self-defense is another viable legal defense for an elder abuse charge. Lawmakers allow you to use reasonable physical force against any person, including the elderly, when they attack you or a loved one. Using surveillance videos and eyewitness testimonies, your criminal defense attorney can use this legal defense to assist you in challenging a PC 368 charge.

The Prosecutor’s Evidence is Insufficient

For the court to convict you of any criminal offense, the prosecutor has to prove all the elements of the crime beyond a reasonable doubt. If the prosecutor lacks evidence necessary to prove a critical element of the crime on the PC 368 charges you are facing, the court could reduce or dismiss your case.

Crimes Related to Elder Abuse Offenses and Their Penalties

An elder abuse offense is closely related to several other crimes because they share some common facts that the prosecutor must prove at trial to secure a conviction against you. When the prosecutor lacks sufficient evidence to secure a 368 violation conviction against you, he/she could file any of the following related charges against you:

Simple Battery

You commit a simple battery offense when you willfully and illegally use violence or force against another person. According to Penal Code 242, the court can convict you of a simple battery offense even if the victim did not sustain injury after using force against him/her. To secure a PC 242 violation conviction against you, the prosecutor will bear the legal burden to prove the following facts:

• You willfully and illegally touched another person in an offensive way
• You were not acting in self-defense

If the prosecutor secures a battery conviction against you under PC 242, your sentence could include:

• A county jail term not exceeding six months
• Up to $2,000 maximum fine
• Informal or summary probation

Criminal Threats

You commit a criminal threats offense if you threaten to kill or physically harm someone, causing him/her to sustain reasonable fear and worry for his/her health and safety. Depending on your unique case particulars and circumstances, the prosecutor will file criminal threats charges as either a misdemeanor or felony since this offense qualifies as a wobbler. To secure a conviction against you under Penal Code 422, he/she must prove the following:

• You knowingly and willfully threatened to cause a physical injury to another person or illegally kill him/her
• You communicated the threats orally, through writing, or using an electronic communication gadget
• You had the intent to make the victim interpret your threat as credible
• The threat was immediate, clear, and specific
• The threats caused the victim to sustain reasonable fear for his/her safety or that of his/her loved ones

A felony PC 422 violation conviction will attract the following potential penalties:

• Imprisonment for not more than three years
• A fine not exceeding $10,000
• A criminal protective order

However, if your offense is a misdemeanor, a PC 422 violation conviction will carry lighter penalties, including not more than one year of detention in the county jail and a fine not exceeding $1,000. The court will also issue a criminal protective order, which prohibits you from contacting or communicating with the victim.

Rape

Rape is another common offense related to elder abuse, and the prosecutor could file this offense against you in addition to or instead of the underlying offense. PC 261 is the statute that defines rape and the penalties you could face after conviction. According to this law, it is illegal to use force, fear, or fraud to engage in non-consensual sexual intercourse with another person.

All the prosecutor needs to secure a rape conviction against you is enough evidence to prove that you engaged in non-consensual sexual intercourse with another person. “Sexual intercourse” under this statute means any penetration, regardless of how slight, of the genitalia or vagina of another person using your penis.

Proving that you ejaculated on the person is not required for a PC 261 violation conviction. When the court convicts you of a rape offense, your penalty could depend on the victim’s age. In the case of a senior or someone aged 65 years or older, your sentence could include:

• Three, six, or eight years of imprisonment
• Inclusion on the sex offender registry for up to twenty years or life, depending on the facts of your unique case
• Felony probation
• Up to $10,000 fine

Domestic Battery

You commit the crime of domestic battery under PC 243(e)(1) when you use violence or force against any of the following:

• A cohabitant
• A former or current spouse, dating partner, or fiancée
• Your child’s other parent

For the court to convict you of a domestic battery offense, the prosecution team must prove the following:

• You willfully and knowingly touched another person in an offensive or harmful way
• That person was your intimate or romantic partner
• You were not acting in self-defense

After conviction at trial, you should anticipate the following misdemeanor penalties:

• Up to $2,000 maximum fine
• A county jail term of up to one (1) year
• Summary probation

If the court grants you probation, it could require you to adhere to certain strict conditions, including enrolling in a batterer’s intervention program or any appropriate counseling classes.

Assisted Suicide

PC 601 makes it illegal to encourage or assist another person to commit suicide. However, it is lawful for a licensed physician to prescribe life-ending medication to someone under the End of Life Option Act. A PC 601 violation is a felony punishable by:

• A fine not exceeding $10,000
• Sixteen months to two or three years of jail sentence

In addition to the fines and imprisonment, a conviction under PC 601 will strip you of your firearm rights since it is a felony.

How an Attorney Can Help When Charged With an Elder Abuse Offense

Working with a skilled criminal defense attorney when charged with an elder abuse crime is vital. In addition to being your legal counsel during these challenging and nerve-wracking moments, your attorney will do the following:

Evaluate Your Case and Prepare Appropriate Legal Defenses

The attorney you work with will scrutinize the facts of your unique case, interview eyewitnesses, and gather all the necessary evidence to assist you in securing a favorable outcome. Hence, it is important to consult with an attorney as soon as possible if you are under arrest or investigation as a suspect in an elder abuse case to begin evaluating your case immediately.

Represent You in Court

Without an attorney in court, especially at trial, the chances of securing a dismissal of your offense or a lighter charge are few. However, if you have an attorney, he/she can act as your legal voice in court and challenge the prosecutor’s evidence against you to secure a favorable outcome.

Find a Credible Criminal Defense Attorney Near Me

Facing an elder abuse offense can be intimidating and demoralizing. However, you do not have to handle your case alone. With a skilled criminal defense attorney, you could secure a desirable verdict in a criminal justice system that is definitely not on your side.

Call our reliable attorneys at the Law Offices of Anna R. Yum at 619-493-3461 if you are under arrest or have pending PC 368 charges in San Diego. We have experience representing clients with similar charges and will leave no stone unturned when preparing defenses to challenge the alleged offense.