Under California Penal Code 368 protects the abuse of elder people, the statute established different types of crimes that could lead a person to a conviction of elder abuse. As defined in the code, the elder is anyone who is sixty-five (65) years of age or older and the rules protects them from physical abuse, endanger, financial exploitation and emotional abuse. The statute also specified the following: "(a) The Legislature finds and declares that crimes against elders and dependent adults are deserving of special consideration and protection, not unlike the special protections provided for minor children, because elders and dependent adults may be confused, on various medications, mentally or physically impaired, or incompetent, and therefore less able to protect themselves, to understand or report criminal conduct, or to testify in court proceedings on their own behalf."

Examples of conduct that could lead a person of this conviction:

  • A nurse who sexually molest the elder patient of the hospital.
  • A man who hits his elder father. 
  • A nurse that takes advantage of the patient mental condition.
  • A daughter that intentionally gives her elder mom more medication that she needs.

In order for someone being convicted of elder abuse, the prosecution must prove the following essential elements and facts of the crime:

  • The defendant willfully, or willfully and as a result of criminal negligence, inflicted unjustifiable physical pain or mental suffering on the victim.
  • The defendant willfully caused or, willfully and as a result of criminal negligence, permitted the victim to suffer unjustifiable physical pain or mental. suffering
  • A person who had care or custody of the victim:
  • Willfully caused or, willfully and as a result of criminal negligence, permitted the person or health of the victim to be injured.
  • Willfully caused or, willfully and as a result of criminal negligence, permitted the victim  to be placed in a situation in which his or her person or health is endangered.

Let's explain in details those elements of elder abuse for better comprehension. These conditions are essential for someone being convicted of this offense, if the prosecution does not prove these elements, a person should not be convicted of elder abuse.   San Diego Criminal Attorney will work to prove the innocence of its clients.


The first element that prosecution needs to prove to initiate the elder abuse charges is that there was a willful action of the defendant, meaning, there was an intention to do something on purpose, even if there was no intent to hurt someone, gain advantage or break the law.

The evidence necessary to proof, is that the person, the defendant, willfully committed a conduct that by its nature will probably directly result in injury the elder. The prosecution does not need to prove a specific intent to inflict a specific harm. However, it must show that the defendant intentionally engaged in an act that would produce detrimental consequences to the elder.

Moreover, it requires an intentional act and knowledge of facts sufficient to lead a reasonable person to realize that the act by its nature will probably and directly result in the application of physical force against another. 1

Example: Catarine used to take care of her elder father, however, her dad was never happy and always complained about Catarine food's. One day, she was mad and the moment that her father complain about the food, she slapped his face.

Criminal Negligence

Under California rules, criminal negligence is defined a failure to provide a duty of care, when a reasonable person in the similar circumstance would have engaged in a different behaviour. If you did not take care of the elder, or acted with reckless, when you had a duty of care, you could be guilty of elder abuse, under the negligence theory. In others words, someone is going to be "criminal negligent when he/she caused or permitted the elder to suffer or be injured or be endangered".

However, even if the defendant have been negligent to the elder, but the negligence was not the reason why the elder was in danger and if a reasonable person in the similar conditions would not be able to foreseen the harm that arose from the action, the defendant could not be guilty of criminal negligence. 

Furthermore, a criminal negligence involves more than ordinary care or inattention, a person acted with negligence when:

  1. The defendant acted in reckless way that is a gross departure from the way an ordinarily careful person would act in the same situation.
  2. The defendant's acts amount to disregard for human life or indifference to the consequences of his or her acts. CALCRIM 821.


Joseph dad's suffers with Alzheimer's disease, in which the elder neither clean himself nor take a shower by himself. Joseph thinks that is disgusting to clean his dad's excretion and does not clean his dad for almost a month.

In this case Joseph could be guilty of criminal negligence, since he had a duty to take care of his dad and he failed to provide a reasonable care. 

Unjustifiable Pain or Mental Suffering

The prosecution must prove that the elder's pain occurred out of an unjustifiable conduct or unnecessary, in a way that a prudent person would not act in an excessive manner. In California, "unjustifiable physical pain or mental suffering is pain or suffering that is not reasonably necessary or is excessive under the circumstances." CALCRIM 821

Great Bodily Harm

If the victim had suffered great bodily harm from the defendant's actions and conduct, the defendant could face a felony punishment.  In California, Courts have already decided that great bodily harm refers to significant or substantial injury, in which does not refer to trivial or insignificant injury.  In order for someone to be convicted of elder abuse, it does not need to occur a great bodily harm on the victim, however, if that happened, the defendant will face a severe penalty for the injury committed.


The offense of elder abuse can be charged as either misdemeanor or a felony, depending on the circumstances of the case and the defendant's criminal background. This is called wobbler in California, the prosecution has an option to charge the defendant with either misdemeanor or felony.

A misdemeanor is punishable by a fine not exceeding six thousand dollars ($6,000) or by imprisonment in the county jail not exceeding one year, or misdemeanor probation, or the fine, imprisonment and probation.

However, if someone was charged as a felony, the penalties could be aggravated depending on the facts of the case, a felony is punishable by a fine not exceeding six thousand dollars ($6,000) or by imprisonment in county jail not from two (2) years to four (4) years, and a felony probation, or both fine, imprisonment and the probation.

Moreover, if the elder suffered a great bodily injury or died, the defendant could face an additionally an imprisonment from three (3) to seven (7) years.

Legal Defense

A elder abuse is serious offense in California Law, meaning a person could carries severe penalties from this offense, if a person is convicted with this type of crime, the conviction  is going to be on the person's  criminal records. If you are looking for a job and the employer does a criminal background check and there is a domestic violence offense register, it is likely that the employer won't hire someone with a misdemeanor or felony background.  If you have been charged with this offense, you should promptly look for a Lawyer. San Diego Criminal Attorney has a great deal of success defending our clients and we can help you build legal defenses that it could be use to contest these types of charges. If you would like more information, please contact our successful staff to help you with your legal problems. 

To contest the charges of elder abuse, San Diego Criminal Attorney would be able to use the following legal defenses:

  • Lack of willfully

Sometimes the actions of the defendant were accidental or misunderstanding by the elder. Under this type of defense, it is essential that the defense attorney and the prosecution get the entire facts of the accident. If you have been charged with elder abuse make sure you contact an attorney immediately. San Diego Criminal Attorney can help you build a strong defense, if you did not act willfully.

  • Wrongfully accused

Under the rules of Californa Law, it is too easy for a victim falsely accuse another of committing this crime, sometimes the cause of action is out of anger, revenge or jealousy. However, San Diego Criminal Attorney know how to protect its clients from wrongfully accusations. If this is your case, contact an attorney promptly.

  • The injury was an accident

Sometimes, the elder physical harm is caused out of an accident, in which the parents did not intentionally harmed the victim, as burning the person while cooking, or slamming the door on the elder's face. If the defendant had no criminal intent to cause injury or harm to the victim and the actions were not negligent, you could be excuse of elder abuse, if the defense could prove that the defendant did not act with negligent or criminal intent.