California Penal Code §368 sets out the crime of elder abuse. California Penal Code §368 sets out the types of crimes that could result in criminal charge for elder abuse. The law clarifies that an elder is anybody over the age of sixty-five years old. This section protects the elderly from various forms of abuse, including physical, financial, emotional, exploitative, and endangerment. The statute also made a legislative finding that crimes against the elderly, as well as adults who are dependent on others, are entitles to special protections, similar to those protections afforded to minors. This is so because the elderly may become confused as a result of multiple medications, they might be impaired physically and mentally, or they may be incompetent. This results in a lesser ability to protect themselves, or to understand and report criminal conduct. Finally, they may be unable to testify in Court for their own benefit.

There are numerous ways an individual could perform acts, which would result in a conviction under the elder abuse law.

  • A doctor who molests a patient who is 66 years old in the emergency room.
  • A neighbor who punches a 70 year old woman on the hip
  • A nurse who convinces a 90 year old man to sign over all of his money to her.
  • A man who gives his 87 year old grandmother 8 pain killers instead of the recommended amount of one pill.

To be convicted of elder abuse, the Prosecution must prove one of three sets of facts beyond a reasonable doubt:

1. You willfully caused or permitted an elderly person to suffer unjustifiable mental suffering or pain, or as a result of criminal negligence, you allowed an elderly person to suffer unjustifiable mental suffering or pain

2. You had care or custody of an elderly person who you willfully caused or as a result of criminal negligence allowed, an elderly person (or an elderly person’s health) to be injured.

3. You had care or custody of an elderly person who you willfully caused or as a result of criminal negligence placed an elderly person (or an elderly person’s health) in a position where their health is endangered.

Since the Prosecution must prove one of the factual scenarios above beyond a reasonable doubt, it is important to understand the various aspects of each fact pattern. The attorneys at Orange County Criminal Attorney have extensive experience representing clients against different criminal charges, including elder abuse. Utilizing their specialized knowledge in criminal defense, OCCA attorneys will built the strongest case available to obtain a verdict of not guilty, to have the case thrown out before it goes to trial, or in the unfortunate event that you are convicted – advocate for the lowest penalty available. A detailed analysis of the various elements of a §368 violation is produced below.

What Does It Mean To Act Willfully In An Elder Abuse Charge?

The first element the Prosecution must prove beyond a reasonable doubt to obtain a guilty verdict for elder abuse is that the Defendant acted willfully, meaning the Defendant intended to do the act, which resulted in the harm. It is immaterial whether or not the Defendant intended that the harmful result occur.

In order to prove willfulness, the Prosecution must show that the Defendant engaged in conduct, which by its very nature, is likely to result in direct injury to a person who is defined as an elder by the law. The Prosecution does not need to prove a specific objective of causing a specific harm to the elderly person, but they must show that the Defendant engaged in conduct that was like to produce negative results to an elderly person.

In addition to the requirements mentioned above, the Prosecution must prove that the Defendant had knowledge of information that would be sufficient to lead a person of reasonable intelligence to conclude that the act is likely to result in harm to the victim.

What Is Criminal Negligence As It Relates To An Elder Abuse Charge?

Pursuant to California law, criminal negligence is described as failing a duty of care which you owed, when a reasonable person in a circumstance that is the equivalent of the situation you were in, would have determined that a different action would have been proper. If you failed to care for an elderly person, or acted in a reckless manner when you had a duty of care, you may face criminal charges for elder abuse under a negligence theory. To put i9t differently, you will be found criminally negligent if you caused, or allowed an elderly person to be injured, endangered, or made to suffer. 
It should be noted that it is not enough to show that you were negligent towards the elderly person; it must also be shown that your negligence was the cause of the harm to an elderly person.

Further, it should be noticed that criminal negligence is not mere inattention, or ordinary care. You will be found to have acted in a criminally negligent manner if:

1. You acted so recklessly that it could properly be described as an extreme departure from one reasonably careful people would do in the same situation;

2. Your conduct is tantamount to a blatant disregard for human life, or callous indifference to the probable outcome of their actions.


Tom’s father, Marty, was diagnosed with Alzheimer’s 5 years ago. Today, Marty is unable to clean himself, or take a shower by himself. Tom personally finds it gross to have to clean his dad’s feces off of him, and does not clean Marty for nearly two months. In this Case, Tom may be guilty of criminal negligence, since he had a duty to take care of his father, and he failed to conform his conduct to what a reasonable person in an identical situation would have done.

What Is “Unjustifiable Pain Or Mental Suffering”?

An additional element the Prosecution must prove is that the pain or suffering that the elderly person experiences, was the result of conduct which was unnecessary or unjustifiable in a manner that a person of ordinary person would not have done. Essentially, if the suffering or pain was not reasonably necessary, you may have violated §368.

What Is The Definition Of Great Bodily Harm?

If as a result of the Defendant’s conduct, the elderly person has suffered great bodily harm, the charge against the Defendant could be charged with a felony. In California, the Courts have determined that great bodily harm mean a serious injury, as opposed to a trivial injury. Great bodily harm is not a required element for a conviction of elder abuse, but if great bodily harm is shown, the Defendant will face much harsher penalties if they are convicted of the crime.

What Are The Penalties I Could Face If I Am Convicted Of Elder Abuse?

Elder abuse is known as a “wobbler offense” in California. This means the Prosecution can bring the charge of elder abuse against you as either a misdemeanor or as a felony. The decision will be based the degree of culpability in your conduct. If you had a duty of care to an elderly person who could not feed themselves, and you did not go to feed them for a week, you will likely face felony charges. However, if you knew someone you had a duty of care to fell a lot, and showed up to their house one hour later than normal to find that they fell, you would be charged with a misdemeanor, if you were charged at all.

If you are charged with misdemeanor elder abuse, you will face up to one (1) year of incarceration, a fine of up to six thousand ($6,000), misdemeanor probation, or a combination of all three.

If you were charged with felony elder abuse the penalties could be ramped up to a fine of up to six thousand ($6,000), incarceration for a period ranging from two (2) to four (4) years, felony probation, or a combination of all three. Further, if the Prosecution can show that the victim suffered great bodily injury, the incarceration period could be increased by three (3) to seven (7) years

What Are The Legal Defenses My OCCA Attorney Can Raise If I Am Charged With Elder Abuse?

Under California law, elder abuse is a serious offense. As mentioned above, it is known as a “wobbler offense.” This means the Prosecution has the choice to bring the charge against you as a felony or as a misdemeanor. Regardless of what form of the charge is brought against you, notwithstanding the penalties associated with both type, the conviction will appear on your background check. Your criminal history can be seen by potential employers who are conducting a background check to determine whether or not they want to hire you. Many employers do not want to hire people with prior criminal convictions, especially if they are felonies. Additionally, you may have to be entered into the domestic violence registry if the facts call for it. This is accessible by many people, and could harm your reputation in the community. If you have been charged with elder abuse contact an attorney at Orange County Criminal Attorney immediately. It is crucial that you and your OCCA attorney begin working to build the strongest defense available to avoid the harmful consequences of a conviction for this crime. One of the many defenses your OCCA attorney can raise on your behalf, in an effort to obtain a verdict of not guilty include:

  • You did not act willfully
  • You were wrongfully accused
  • The injury that the elderly person suffered was the result of an excusable accident.