THE SAFFARI LAW FIRM

Elder Abuse

California Penal Code 368 P.C.

Elder abuse concerns the physical or financial mistreatment of senior citizens, with the latter act committed for the purpose of financial gain.

What is an Elder Abuse Charge?

Under California Penal Code 368 P.C., Elder Abuse covers a broad range of both physical and financial criminal allegations, depending on the circumstances. Sometimes these charges are justified, but often they are not.

Specifically, certain types of medical professionals (doctors, nurses, physical therapists, etc.), caretakers, as well as other licensed individuals in the social-work or mental-health fields, are required by California law to report any indication of physical abuse they see on persons over the age of 65.

Similarly, many different types of financial transactions that involve elderly persons also too often result in criminal charges in California. The most common types of Elder Abuse charges are as follows:

  • Physical Abuse;
  • Physical Neglect or Endangerment;
  • Emotional Abuse;
  • Financial Abuse or Fraud.

Elder Abuse charges also frequently involve family members who physically care for elderly relatives, or who manage an elderly relative’s finances. Or criminal charges may result from something as simple as using the credit card of an elderly relative.

In general, if you are legally responsible for financially or physically caring for anyone age 65 or older and you intentionally or unintentionally cause them harm, or negligently allow harm to come to them, then you can be charged and prosecuted for Elder Abuse.

Elder Abuse is a wobbler offense, which means that the prosecutor can charge you with a misdemeanor or a felony, depending on the facts of the case and your criminal record.

What are Examples of Elder Abuse?

Examples of situations involving Elder Abuse include the following:

  • While working as a nurse at the hospital, you physically abused a senior citizen.
  • While serving as a caretaker of an elderly person, you failed to administer her medication as you had been trained and were required to do.
  • As a Certified Public Accountant, you diverted funds from an elderly client ostensibly to pay the client’s outstanding federal taxes, but instead you withdrew the funds for your own personal use.

What Does the Prosecutor Need to Prove for an Elder Abuse Charge?

To prove that you are guilty of Elder Abuse under California Penal Code 368 P.C., the prosecutor must prove each of the following elements (as required by the Judicial Council of California Criminal Jury Instructions CALCRIM 830):

  • You willfully inflicted unjustifiable physical pain or mental suffering on an elderly person (age 65 or older); or
  • You willfully inflicted caused or permitted an elderly person to suffer unjustifiable physical pain or mental suffering; or
  • While having care or custody of an elderly person, you willfully caused or permitted his or her health to be injured, or placed him or her in a situation where his or her health was endangered; or
  • You inflicted suffering on an elderly person, or caused or permitted an elderly person to suffer, be injured or be endangered under circumstances or conditions likely to produce great bodily harm;
  • When you acted, you knew or reasonably should have known that the victim was an elderly person; and
  • You were criminally negligent when you caused or permitted the elderly person to suffer, be injured or be endangered.

What Happens If I am Convicted of an Elder Abuse Charge?

If you are convicted of Elder Abuse under California Penal Code 368 P.C., you face the following punishment (excluding any sentencing enhancements):

  • Two, three, or four years in prison (if you are convicted of a felony); or
  • One year in county jail (if you are convicted of a misdemeanor); and
  • A maximum fine of $6,000 (felony or misdemeanor);
  • Probation of three or five years (felony or misdemeanor);
  • Possible imposition of a protective order to stay away from the victim;
  • Possible victim restitution;
  • Possible counseling (felony or misdemeanor);
  • Possible community service (felony or misdemeanor); and
  • Possible loss of ability to obtain or maintain a professional license, loss of employment or educational opportunities, or adverse immigration consequences (if applicable).
  • If physical elder abuse results in great bodily injury or death, you can be charged with a strike offense under the California three strikes law.

What are My Possible Defenses to an Elder Abuse Charge?

Elder Abuse charges are often highly defensible, even if you did, in fact, commit some type of physical or financial crime against a senior citizen in your care. This is particularly true if the allegations are overstated, which is often the case with jealous or spiteful family members who wish to replace you as the caretaker for their own personal gain.

Or many times, the senior being cared for is simply confused, mentally ill or otherwise mistaken about the alleged abuse. Further, if there was some financial or physical harm suffered, it may have been the result of completely innocent/accidental actions on your part.

Elder Abuse cases can often be resolved in its investigation stage even before criminal charges are actually filed. Specifically, a highly experienced and skilled Los Angeles County Elder Abuse attorney like Ninaz Saffari might be able to convince the investigating detective to not refer the case to the District Attorney’s Office for prosecution, or to convince the D.A.’s Office not to file charges if the case has already been referred. These are called Pre-Files, which Ms. Saffari has a great deal of experience in successfully negotiating. See her Case Results.

If you are charged with Elder Abuse, Ms. Saffari will first conduct a thorough investigation, often with the help of her private investigator, to ascertain all relevant facts. Again, if possible, she will attempt to get the charges dismissed either before or shortly after they are filed. If she takes the case to trial, she will often use an expert witness who will argue that the alleged harm never occurred, did not occur to the degree claimed, occurred but was the result of an accident or unintentional conduct, or that the District Attorney has otherwise failed to provide enough evidence to meet the high threshold to prove Elder Abuse.

The following are the possible defenses to an Elder Abuse charge:

  • The alleged victim is under 64 years of age.
  • Lack of physical, mental or financial injury or harm. You did not actually physically, emotionally or financially harm the alleged victim, or place the alleged victim in harmful or potentially circumstances.
  • Self-defense of yourself or another (physical Elder Abuse). The alleged victim threatened you with force, attempted to assault you, or did in fact attack you or another person, and you reasonably believed you or the other person were in danger. Under California law, you are entitled to use force against someone to prevent wrongful injury to yourself or another. However, the force must be only that which was reasonably necessary to prevent the injury.
  • Lack of willfulness. For example, the injury resulted from an accident, misfortune or ordinary negligence.
  • Lack of general intent. At the time of the incident, you did not have the intent to commit the alleged act.
  • False accusations. The alleged victim or supposed eyewitness may have ulterior motives for lying to the police. Some of the most common motives include child custody disputes and romantic strife with current or former lovers.
  • Misidentification by the accuser or witness. For example, your act was misunderstood or misinterpreted, or you were not the actual person who committed the alleged elder abuse. Eyewitness identification can be affected by many different factors, including bad lighting, witness stress, cross-racial identification, suggestions by the police, etc.
  • Constitutional defenses. These include lack of probable cause, police misconduct (coerced confession, planted evidence, falsified police report, etc.), Miranda violations (suppressing any statements you made to the police if your Miranda rights were violated), and suppression of evidence that was seized without reasonable suspicion, probable cause, or a valid warrant (in violation of the Fourth Amendment).
  • Insufficient evidence. The prosecutor failed to provide sufficient evidence to prove you are guilty beyond a reasonable doubt of one or more charges.
  • The accuser and/or witnesses are not credible. In other words, for any host of reasons, the jury simple does not believe what the accuser and/or witnesses are claiming about your criminal culpability.

What Kind of Elder Abuse Charges Has Ninaz Saffari Defended?

Since 2005, Ninaz Saffari has successfully represented many clients against Elder Abuse charges, including both felonies and misdemeanors, as well as both physical and financial abuse cases. Some of her successfully defended clients faced many years in prison, as well the loss of professional licenses. See her Case Results.

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If you or a loved one are currently being investigated or prosecuted for this crime, it is critical that you immediately hire a highly skilled, aggressive and experienced Los Angeles County Elder Abuse criminal defense attorney like Ninaz Saffari. Contact the Saffari Law Firm, P.C. now for a free telephone consultation. If Ms. Saffari believes she can help you, she will immediately schedule a free in-person meeting or, if you are in custody, she will visit you in jail (again, for free and with no obligation to hire her).

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