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    Criminal Defense Division

    § 368 PC – “Elder Abuse” – California Law & Penalties

    Penal Code 368 - Elder Abuse - A former DA explains

    California Penal Code § 368 PC prohibits elder abuse, which is the physical or emotional abuse, neglect, endangerment, or financial exploitation of a victim 65 years old or older. Elder abuse can be a misdemeanor or a felony punishable by up to four years in prison.

    Examples of elder abuse may include:

    • Not feeding an 80-year-old parent who cannot care for himself.
    • A caretaker severely ridiculing an elderly patient for being wheelchair-bound.
    • A person using fraud to convince a 90-year-old neighbor to make him the sole beneficiary in the elderly person’s will.

    Graphic that shows elder abuse defenses, such as accident, self-defense, and false accusations

    In this article, our California criminal defense attorneys discuss the following elder abuse topics:


    1. Elements of 368 PC

    For you to be convicted of misdemeanor elder abuse in California, prosecutors have to prove beyond a reasonable doubt the following three elements of the jury instructions:

    1. You willfully – or with criminal negligence – subjected an elderly person to unjustifiable physical pain or mental suffering (which is pain that is unnecessary or excessive under the circumstances); and
    2. The conduct could have endangered the life or health of the elderly person; and
    3. You knew – or should have known – that the victim was 65 years old or older.

    The elements are the same for felony elder abuse, except that prosecutors need to prove that your conduct was likely to produce great bodily injury or death.1

    Regarding the first element, you act “willfully” when your actions are on purpose, even if you did not mean to break the law. Meanwhile, “criminal negligence” is acting so unreasonably that it reflects a disregard for human life.2

    Example: Janis’s 79-year-old live-in mom cannot move or feed herself due to Alzheimer’s disease. She nearly dies of hydration because Janis does not give her mom any food or water for a week. Here, the facts show that Janis’s actions rise to the level of felony criminal negligence.

    Note that prosecutors cannot prove you acted with criminal negligence in elder abuse cases unless you had a duty under the law to act.3

    Example: Bob is an elderly stroke victim who lives with his son Richard. One day while Bob’s daughter Susan is visiting, Bob died of septic shock that was caused by bedsores, malnutrition, and dehydration.

    Here, the police can arrest Richard for felony elder abuse because he was supposed to be Bob’s caretaker. However, Susan should not be arrested since she had no duty to care for Bob or control Richard’s behavior.

    Female prosecutor presenting her elder abuse case in a courtroom during a trial as the female judge watches

    Many prosecuting agencies (like a county’s District Attorney’s Office) have special units that handle elder abuse cases.

    2. Elder Abuse Types

    In California, “elder abuse” under 386 PC comprises not only physical abuse but also:

    • Emotional abuse, which often takes the form of isolation or ridicule,
    • Neglect and endangerment, which means placing the senior in a situation that endangers their health and safety, or
    • Financial exploitation, which is also known as “senior fraud” or “elder financial abuse.”

    Note that a prosecutor must prove the following three elements to convict you of financial abuse:

    1. You committed a financial crime (such as theft, fraud, or embezzlement),
    2. The property stolen belonged to a person who is 65 or older, and
    3. You were a caretaker for this person or knew that the victim was elderly.4

    Example: Nursing home staffer Roman occasionally takes loose money that he finds in the drawers of the residents. Here, Roman is guilty of financial elder abuse. It does not matter that this theft did not involve bank accounts or large amounts of cash.

    3. Defenses

    Here at Shouse Law Group, we have represented literally thousands of people accused of abuse, including elder abuse. In our experience, the following three defenses have proven very effective with prosecutors at plea bargaining 386 PC charges down to a reduced charge or dismissal.

    1. There was no willful act. Innocent accidents are not crimes, even if a senior citizen gets seriously hurt as a result. By thoroughly examining all the available evidence, we can often raise a “reasonable doubt” as to the element of “criminal intent.”
    2. You acted in self-defense. You are allowed to use reasonable and proportional physical force against anyone (even the elderly) if they attack you. By relying on such evidence as eyewitness accounts, surveillance video, and medical records, we may be able to show that you were lawfully defending yourself (or someone else).
    3. You were falsely accused. It is not uncommon for angry patients or their family members to wrongfully accuse caregivers of abuse. If we can impeach the accuser’s credibility and show their motivations to lie about you, you should not be convicted.

    4. What are the penalties?

    Misdemeanor elder abuse is punishable by:

    • Up to 1 year in county jail and/or $6,000 in fines, and
    • Restitution to the victim.

    However, the judge may grant you up to two years of summary probation instead of jail.

    Meanwhile, felony elder abuse is punishable by:

    • 2, 3, or 4 years in state prison (and an additional 7 years if the victim suffers great bodily harm),
    • Up to $10,000 in fines, and
    • Restitution to the victim.

    Though it may be possible to get up to five years of formal probation in lieu of prison.5

    Judge in a robe at the bench in front of an American flag speaking with attorney about an elder abuse case

    Elder abuse can be a felony or misdemeanor.

    5. Immigration Consequences

    Depending on the facts of the case, elder abuse can be a crime involving moral turpitude (CIMT). Therefore, a conviction can get a non-citizen deported following the sentence.6

    This is why non-citizens should retain experienced legal counsel to try to get the charges reduced or changed to non-deportable crimes. It may be the only way to avoid removal from the U.S.

    6. Expungements

    Felony convictions of elder abuse cannot be expunged from your criminal record if you were sentenced to California State Prison. However, a misdemeanor conviction can get expunged provided that you successfully complete probation or jail.7

    7. Gun Rights

    If you are convicted of felony elder abuse, you will be stripped of your gun rights for life in California. A misdemeanor conviction should not affect your gun rights unless it was related to domestic violence.8

    8. Can victims sue?

    Yes, elder abuse victims in California can sue their alleged abusers who had care or custody over them.9

    Most of these suits get filed against healthcare providers. If a suit is successful, the victim may recover compensatory damages and possibly punitive damages.

    9. Related Offenses

    • Battery (PC 242) – Any willful and unlawful use of force or violence on someone else, whether or not it causes an injury.
    • Criminal threats (PC 422) – Threatening to kill or physically harm someone, thereby placing the victim in a state of fear.
    • Rape (PC 261) – Nonconsensual sexual intercourse with another person by means of threats, force, or fraud.
    Young nurse standing over an elderly woman sitting at the foot of her bed, and the nurse is about to smack the elderly woman, who is recoiling in fear

    Penal Code 368 PC is the California statute that makes it a crime for you to abuse anyone 65 years of age or older.

    Additional Resources

    There are many resources available for victims of senior abuse. Some of these are:

    Legal References:

    1. California Penal Code 368 PC.

      (a) The Legislature finds and declares that elders, adults whose physical or mental disabilities or other limitations restrict their ability to carry out normal activities or to protect their rights, and adults admitted as inpatients to a 24-hour health facility deserve special consideration and protection.

      (b) (1) A 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, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years.

      (2) If, in the commission of an offense described in paragraph (1), the victim suffers great bodily injury, as defined in Section 12022.7, the defendant shall receive an additional term in the state prison as follows:

      (A) Three years if the victim is under 70 years of age.

      (B) Five years if the victim is 70 years of age or older.

      (3) If, in the commission of an offense described in paragraph (1), the defendant proximately causes the death of the victim, the defendant shall receive an additional term in the state prison as follows:

      (A) Five years if the victim is under 70 years of age.

      (B) Seven years if the victim is 70 years of age or older.

      (c) A person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions other than those 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 may be endangered, is guilty of a misdemeanor. A second or subsequent violation of this subdivision is punishable by a fine not to exceed two thousand dollars ($2,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.

      (d) A person who is not a caretaker who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of an elder or a dependent adult, and who knows or reasonably should know that the victim is an elder or a dependent adult, is punishable as follows:

      (1) By a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding nine hundred fifty dollars ($950).

      (2) By a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding nine hundred fifty dollars ($950).

      (e) A caretaker of an elder or a dependent adult who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of that elder or dependent adult, is punishable as follows:

      (1) By a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding nine hundred fifty dollars ($950).

      (2) By a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding nine hundred fifty dollars ($950).

      (f) A person who commits the false imprisonment of an elder or a dependent adult by the use of violence, menace, fraud, or deceit is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.

      (g) As used in this section, “elder” means a person who is 65 years of age or older.

      (h) As used in this section, “dependent adult” means a person, regardless of whether the person lives independently, who is between the ages of 18 and 64, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age. “Dependent adult” includes a person between the ages of 18 and 64 who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.

      (i) As used in this section, “caretaker” means a person who has the care, custody, or control of, or who stands in a position of trust with, an elder or a dependent adult.

      (j) Nothing in this section shall preclude prosecution under both this section and Section 187 or 12022.7 or any other provision of law. However, a person shall not receive an additional term of imprisonment under both paragraphs (2) and (3) of subdivision (b) for a single offense, nor shall a person receive an additional term of imprisonment under both Section 12022.7 and paragraph (2) or (3) of subdivision (b) for a single offense.

      (k) In any case in which a person is convicted of violating these provisions, the court may require him or her to receive appropriate counseling as a condition of probation. A defendant ordered to be placed in a counseling program shall be responsible for paying the expense of his or her participation in the counseling program as determined by the court. The court shall take into consideration the ability of the defendant to pay, and no defendant shall be denied probation because of his or her inability to pay.

      (l) Upon conviction for a violation of subdivision (b), (c), (d), (e), or (f), the sentencing court shall also consider issuing an order restraining the defendant from any contact with the victim, which may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of any restraining order be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family. This protective order may be issued by the court whether the defendant is sentenced to state prison or county jail, or if imposition of sentence is suspended and the defendant is placed on probation.

    2. See People v. Racy (2007) 148 Cal.App.4th 1327. People v. Superior Court (Holvey) (1988) 205 Cal.App.3d 51. See also People v. Medlin (2009) 178 Cal.App.4th 1092.
    3. People v. Heitzman (1994) 9 Cal.4th 189.
    4. Same. California Penal Code 368 PC. See also People v. Catley (2007) 148 Cal.App.4th 500.
    5. California Penal Code 368 PC. California Penal Code 667.5 PC.
    6. See, for example, Singh v. Holder (9th Cir. 2011) 414 Fed. Appx. 909.
    7. 1203.4 PC.
    8. 29800 PC.
    9. Winn v. Pioneer Medical Group (2016) 63 Cal.4th 148. California Welfare and Institutions Code 15600 WI.

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