Domestic Violence Crimes

Crime: Elder Abuse

Code Section: Penal Code 368 (click here to view the statute)

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=368.

Related CALCRIM Jury Instruction: 830, 831

PC 368 Brief Summary:

Penal Code 368 addresses crimes against elders and dependent adults with disabilities. An “elder” for purposes of elder abuse is anyone age 65 or older. Penal Code 368 covers a wide range of situations, but in general it applies to situations where a person inflicts, causes, or permits unjustifiable pain or mental suffering to an elder (or adult dependent), or where a caretaker permits an elder (or adult dependent) they are caring for to be endangered or injured. Penal Code 368 is occasionally filed in connection with domestic violence cases.

PC 368 Elements:

To prove someone guilty of this crime, the government must prove:

1. The defendant inflicted unjustifiable pain or mental suffering on a person;
2. The person was an elder or adult dependent;
3. The defendant knew or should have known the person was an elder or adult dependent.

PC 368 Punishment:

Penal Code 368 is punishable as either a felony or as a misdemeanor. Because Penal Code 368 addresses a wide range of conduct, the maximum felony exposure differs based on the specific conduct charged. The basic felony elder abuse exposure for Penal Code 368(b)(1) is two, three, or four years in prison. Other parts of Penal Code 368 address more serious elder abuse situations, thus the maximum exposure for those felony convictions is higher. As a misdemeanor, Penal Code 368(b)(1) is punishable with up to a year in county jail. Probation can be granted for this offense if the defendant is not sentenced to prison. Other fines, fees, and possible probation terms could be applied.

PC 368 Lesser Included Offenses:

A lesser included offense is one that contains all of the elements of the charged offense, but for which the consequences are less severe. Typically, a conviction for a lesser included offense only occurs when there is no conviction for the more serious offense. An attempt is often times a lesser included offense to a charged offense and occurs when the defendant intended and tried to commit the charged offense, but for whatever reason, was unable to finish committing that crime. In general, there are no other lesser included offenses for Penal Code 368.

PC 368 Related Charges:

• Penal Code 166(c)-Violating A Court Order
• Penal Code 243(e)(1)-Domestic Battery
• Penal Code 273.5(a)-Domestic Violence