Theft or Abuse of Elders Law & Defense
California PC 368
California has created special laws and enhanced criminal penalties for crimes against elders or dependent adults. These special laws and enhancements are found at California penal code section 368. This article covers the two most common crimes against elders and dependent adults: Theft from elders or dependent adults and abuse of elders or dependent adults.
Per PC 368, an elder is someone who is at least 65 years old and a dependent adult is someone who is between the ages of 18 and 64 years old and has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his rights.
Abuse of an elder or dependent adult (PC 368(b)(1) & PC 368(c))
To prove abuse of an elder or dependent adult the district attorney must prove that the defendant willfully inflicted unjustifiable physical pain or mental suffering on the elder or dependent adult (PC 368(b)(1) & 368(c)).
According to PC 368, if the defendant has a duty to protect the elder or dependent adult then the defendant may be criminal liable even if the defendant did not personally and willfully inflict unjustifiable physical pain or mental suffering; it is enough to prove that the defendant failed to protect the elder or dependent adult from a third person against the third person's infliction of unjustifiable physical pain or mental suffering.
Whether or not the defendant had a duty to protect is determined by several factors, including but not limited to, the defendant's relationship to the victim and/or any actual or implied contractual obligations that might exist between the defendant and the elder or dependent adult.
Theft from an elder or dependent adult (PC 368(d))
Per PC 368(d), theft from elders or dependent adults the district attorney must prove, in addition to the elements needed for theft crimes, that the victim was an elder or dependent adult. Furthermore, the defendant may be held criminally liable for willful failure to protect an elder or dependent adult even if the defendant himself did not actually commit the theft crime. Of course, this is true only if the defendant had a duty to protect the elder or dependent adult from being victimized by theft.
Sentence & Penalties for PC 368 crimes
Abuse of an elder or dependent adult is usually charged under PC 368(b)(1) or 386(c), PC 368(b)(1) may be charged as a misdemeanor or as a felony and PC 368(c) is charged as a misdemeanor only.
If found guilty of abuse of elder or dependent adult under PC 368(b)(1), the defendant may face up to 1 year in jail as a misdemeanor and up to 4 years in prison as a felony. If found guilty of PC 368(c), the defendant may face up to 180 days in the county jail for a first offense and up to 1 year in the county jail for a second offense.
There are additional enhancement for elder or dependent adult victims who are over 70, and where the elder or dependent adult dies as a result of abuse by the defendant (PC 368(b)(2)(A) and 368(b)(3)(A) respectively). Those enhancements may add additional jail or prison time to any PC 368 conviction.
Theft from elder or dependent adult is charged under PC 368(d). PC 386(d) may be charged as a misdemeanor or as a felony depending on the amount of money stolen and the defendant's criminal history. For PC 368(d)(1), the defendant may face up to 1 year in jail as a misdemeanor and up to 4 years in prison as a felony. Misdemeanor theft from elders is also sometimes filed under PC 368(d)(2) but the penalties are the same as those for misdemeanor charges of PC 368(d)(1).
Probation is allowed for all misdemeanor and felony convictions of PC 368, but probation sentences are not automatic upon a conviction. Probation is a sentencing option that is usually argued for by a criminal defense attorney. Probation is in lieu of jail or prison but often times it does include work release or electronic monitoring as part of the terms of probation (as opposed to being sentenced to jail or prison).
PC 368 crimes are not considered violent or serious as those terms are defined in California's Three Strikes Law; however, if the abuse of an elder is serious, and the district attorney charges and proves a serious bodily injury enhancement under PC 12022.7, the crime of elder abuse may be considered a strikeable offense.
In addition to a possible jail or prison sentence, if found guilty of a violation of PC 368, theft or abuse of elders or dependent adults, the defendant may face harsh probation or parole terms, fines, loss of professional or occupational license, immigration consequences (for non-U.S. citizens), criminal protective orders (CPOs), restitution, and more.
In some PC 368 cases it may be possible to reduce or dismiss the criminal charge or change the charge to a less severe crime. Whether or not a dismissal or reduction of the charges is possible depends on the facts of the case and the dependant's criminal history.
Defense to PC 368 crimes
There is not one defense that best fits a elder theft or abuse case as every case is different; however, common defenses to elder abuse or elder theft include: insufficient evidence to prove the crime or theft or age of the alleged victim, statute of limitations, mistake of facts, coerced confessions of the defendant, self-defense, and defense of others.
If you have been charged with abuse or theft from elders or dependent adults under PC 368, contact our experienced and successful criminal defense attorneys today. We offer free consultations and service seven days a week. We will patiently answer your questions, thoroughly explain your rights and options, and aggressively pursue your defenses. Call today!
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PC 368: Theft or Abuse of Elders
- Criminal Threats
- Domestic Violence
- Drunk in Public
- Elder Abuse
- Elder Theft
- False Personation
- Hit and Run
- Indecent Exposure
- Lewd Acts
- Vehicle Theft
- Welfare Fraud
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Los Angeles County
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Closely associated crime to PC 368 include:
- PC 368(c): Cause or permit injury to elder or dependent adult [Misdemeanor]
- PC 368(e)(2): Theft from elder or dependent adult by caretaker [Misdemeanor]
- PC 368(f): False imprisonment of elder or dependent adult [Felony]
- PC 368(d)(1): Theft from elder or dependent adult [Misdemeanor or Felony]
- PC 368(d)(2): Theft from elder or dependent adult [Misdemeanor]