ELDER ABUSE – PENAL CODE SECTION 368
Pete, a handyman, began his relationship with Stan, a man of seventy-five (75) years old, by performing odd jobs for pay. The relationship soon morphed into Pete running a crew to do work on Stan’s large rural property. Also, Stan started to request that Pete run small errands for Stan such as taking him to the store or taking him to medical appointments. Pete, feeling sympathy for Stan, complied and ran many errands for free. Soon Stan stopped paying Pete for the work that Pete and his crew were doing on Stan’s property. Instead, Stan worked out a barter system with Pete in which Stan would give Pete some of the antique property Stan had collected over the years.. Stan, who was suffering from dementia, soon forgot the barter deals that he had made with Pete and instead accused Pete of stealing the property from him. After Stan reported him to the police, Pete was charged with elder abuse and theft. After extensive investigation, I was able to determine that Stan had accused many others from stealing from him in the past and had left a trail of people that he had falsely accused or from whom Stan had stolen from. After presenting the D.A. with interview statements from the witnesses I was able to convince the D.A. to dismiss the charges against Pete.
What is Elder Abuse:
Elder Abuse encompasses a number of acts perpetrated on someone age sixty-five (65) or above. Elder Abuse includes:
- Physical Abuse – Intentionally Inflicting Unjustifiable Physical Pain or Mental Suffering:
- Neglect – Placing the Elder in a situation where his or her health is endangered;
- Financial exploitation – theft or embezzlement in respect to an elder;
Examples of Elder Abuse:
- Any theft crime, but with the victim being someone over 65, such as robbery, auto theft, or grand theft;
- Any crime of violence with the victim being an elder, such as assault and battery, false imprisonment, or manslaughter;
- Allowing an elder for whom you are a caretaker to live in squalid conditions, or to go without sufficient food or water;
- Forging the signature of an elder on a check, or misusing an elder’s credit card;
- Doing some work on the home of an elder, but charging an unconscionable fee or not completing the work in a workmanlike manner;
- Caring for the financial affairs of an elder and embezzling some of the elder’s money through taking money from their bank account, or writing yourself checks and having the elder sign them.
Penalties for Elder Abuse:
A violation of Penal Code Section 368 can be either a misdemeanor of a felony. Physical Elder Abuse, if charged as a felony can carry a sentence of two, three, or four years in prison. If in committing the abuse one inflicts great bodily injury, there is a sentence enhancement of 3-5 years depending upon the age of the elder. (Under age 70, or age 70 or older). In some cases, the Court may grant probation, with the option of sentencing up to a year in the county jail. In deciding whether to grant probation the Court will look at the defendant’s prior record, the severity of the loss or injury, whether there was one act, or a series of acts, and the character traits of the perpetrator.
In regards to financial elder abuse, the sentence also can be two, three, or four years in state prison. Should there be a prison sentence, the Court will look at circumstances in mitigation and circumstances in aggravation in determining the length of the prison sentence. If the taking from the elder is less than $950 the matter is a misdemeanor and can be punished by up to three years on probation and one year in the county jail. If the taking is in an amount over $950 the matter can be charged as either a felony or a misdemeanor. If the matter is charged as a felony the sentence can include prison time or time in the county jail up to one year.
As to either crime – financial elder abuse, or elder abuse involving infliction of physical suffering, there may be sentencing enhancements. The enhancements might be if there are prior strikes, which would double any sentence, that of the age of the elder (one year enhancement if the elder is 75 years or older), and as stated previously if great bodily injury or death is the result.
Common Defenses to Elder Abuse:
Because of the nature of the situation – a complaining witness of advancing years – there are often situations in which the defendant is falsely accused. Oftentimes the elder is suffering from dementia or paranoia because of their age and as a result they misperceive situations or are suffering from delusions. Because of the possibility of mistake the cases must be thoroughly investigated – fully determining whether the elder has engaged in such behavior in the past, or has levied false charges against others.
At other times, the district attorney just does not have sufficient evidence to prove the charges. In cases of physical injury, proper medical testimony from an expert witness can demonstrate that the injuries were not as a result of abuse, but instead were self-inflicted in an accident.
In other situations, you can demonstrate that the act may have occurred, but the Defendant otherwise had a stellar record and abuse is not likely to occur again. In those cases it is important that your attorney gather evidence in mitigation - letters of recommendation, commendations that you have received at work, evidence that you had a drug or alcohol problem but are now seeking treatment.
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