(California Penal Code §§ 368 P.C., 368(B)(1) P.C., 368(d) P.C., et seq)
Elder abuse covers an entire spectrum of crimes, ranging from simple emotional neglect of a senior citizen (whom you are caring for), all the way to severe physical or financial harm of someone who is at least sixty-five years of age. To put it another way, if you are required by law to care for an elderly person, you can be convicted of this crime if you knowingly or unknowingly injured, defrauded, emotionally abused, placed in harm’s way, or otherwise neglected that individual.
More specifically, these types of crimes break down into the following four categories, beginning with the most serious down to the least serious:
Serious physical injury (felony);
Serious financial abuse or fraud (felony);
Elder endangerment or physical neglect (wobbler – can be charged as a felony or misdemeanor); and
Emotional abuse (wobbler).
Keep in mind that elder abuse – whether charged as a felony or misdemeanor – is rarely charged by itself. In other words, it is usually prosecuted along with other theft-related, criminal-neglect, or violent crimes. In addition, you could be prosecuted for elder abuse even if you had no idea the victim was a senior citizen.
For example, the LA County DA’s Office claimed that during a thirteen-month period beginning in October 2017, ten gang members committed a long string of home invasions and burglaries (both residential and commercial) all over the county. In late November 2018, these men were formally charged with elder abuse with actual injury, as well as thirty-two other felonies each. Among these were the following strike offenses: first-degree residential burglary; first-degree residential robbery; first-degree burglary with person present; and home-invasion robbery. But the elder abuse with injury felony – which would also likely be charged as a strike – allegedly stemmed from several of the defendants surprising at least one elderly person in their home during a burglary, followed by the defendants assaulting him in order to escape. As a result, each of the defendants faced a life sentence.
The DA’s Office prides itself on aggressively prosecuting elder-abuse crimes, regardless of their nature, and will spare little expense in going after you if you are a suspect. (As part of this campaign, they work closely with the LA County Adult Protective Services (APS) department, as well as the National Center on Elder Abuse.) Therefore, it is imperative that you obtain competent and experienced legal counsel as soon as you are charged with an elder abuse crime, or even if you are somehow made aware that you are merely suspected of having done so.
Examples of Misdemeanor Elder Abuse
– In mid-September 2019, Stockton residents Ms. Markkisha A. Mangum and Ms. Martavia L. Blount allegedly pick-pocketed a small purse from a woman who was over sixty-five years old in a Walnut Creek (East Bay) shopping center. Walnut Creek PD alleged that the incident was filmed by a store’s security camera, which WCPD posted online and eventually tracked down the suspects. As a result, the suspects were arrested and charged with misdemeanor financial elder abuse (Cal. Pen. Code section 368(d) PC), as well as numerous other misdemeanors. Mangum was also charged with felony ID theft with a prior ID theft conviction.
– In mid-January 2020, San Bernardino County sheriff’s deputies arrested Hesperia resident Ronald Doyle for misdemeanor elder abuse after he allegedly watered down an elderly man with a garden hose, struck him in the head with the metal tip of the hose, then shoved him down to the lawn. Paramedics arrived minutes later to treat the victim for minor head wounds. Specifically, Doyle was charged with willfully inflicting physical abuse on an elderly person (Cal. Pen. Code section 368(b)(1) P.C.) and, therefore, faced up to twelve months in county jail.
– In 2005, according to LA prosecutors, city of Orange (Orange County) resident and insurance agent Myles S. Hanashiro sold a variable universal life annuity policy to his mother’s elderly sister, but after his license was revoked in 2009, he began to secretly take withdrawals from the annuity for his own benefit by forging her signature on insurance documents – withdrawals that ultimately totaled approximately $111,000 over a twelve-month period. In early March 2014, he pled to misdemeanor theft from a person over age sixty-five (the victim was in her late 70s during the relevant period). The judge sentenced him to the following: two weeks in county jail (already served), thirty-six months’ probation, a hundred hours of volunteer work, and full restitution (which Hanashiro reportedly repaid).
Examples of Felony Elder Abuse with Physical Injury
– In late August 2018, East Palo Alto (San Mateo County) resident Steven Green allegedly walked up to a seventy-year-old woman and struck her in the face as she was waiting for a bus. Two months later, Green once again allegedly walked up to the same woman – this time outside of her residential complex – and repeatedly struck her in the face. Prosecutors believed that Green was motivated by his girlfriend’s animosity towards the woman, who was a neighbor in the same complex. In mid-April 2018, following a jury trial, he was convicted of felony elder abuse, and subsequently received twelve months in jail and thirty-six months of formal probation.
– On the Fourth of July in 2018, LA resident Laquisha Jones (an African-American woman) allegedly shattered the jaw of ninety-one-year-old Rodolfo Rodriguez (a Latino man) with a brick in a racially motivated attack near DTLA. Rodriguez suffered serious injuries, including numerous broken bones. Jones was arrested and charged with attempted murder with a hate-crime enhancement and felony elder abuse resulting in injury. In December 2018, she pled no contest to the elder abuse charge in exchange for dismissal of the attempted murder charge and the hate-crime enhancement. Four months later, the judge handed her a fifteen-year prison sentence.
– In late October 2012, seventy-eight-year-old Davis (Yolo County, near Sacramento) resident Darlene R. Mattos allegedly caused the untimely death of Cecil Wachholtz, an elderly man (age sixty-six) with mental impairments in the care of her son, James Mattos. Ms. Mattos – who pled no contest to felony elder abuse -- ultimately received almost two hundred days in county jail (all credited for her incarceration while awaiting trial, so no further jail time) and three years of formal probation. Wacholtz had died in the hospital after he had allegedly been found fourteen days earlier suffering from severe neglect. In mid-April 2014, Mr. Mattos was found by a jury to be guilty of second-degree murder, felony elder abuse likely to cause great injury, and theft from an elder or dependent adult. Two months later, he received a thirty-years-to-life prison sentence, plus almost a dozen more years as a sentencing enhancement.
Examples of Financial Elder Abuse
– In late May 2015, Mr. Keya Morgan, the business manager for Marvel comics impresario and founder Stan Lee, was arrested for felony financial elder abuse. He was actually arrested in Phoenix, Arizona by local authorities in conjunction with detectives for LAPD’s Commercial Crimes Unit, and extradited to Los Angeles. At that time, Lee was taken from Morgan’s care and a temporary restraining order, which was subsequently expanded to three years, was issued against Morgan. According to the LA County DA’s Office, Morgan, who had also been Lee’s primary caretaker for years until Lee died at age ninety-five on November 12, 2018, had been swindling large amounts of money from him. For example, prosecutors claimed that in May of that year, Morgan pocketed $268,000 in fees Lee had earned during marathon autograph sessions. The following month, police claimed Morgan removed Lee from Lee’s Hollywood Hills mansion to his own condominium in Beverly Hills so he could exert total physical and financial control of Lee, including by isolating him from his family members. According to a restraining order Lee had taken out against Morgan (also in June 2018), Morgan had embezzled millions of dollars from him. Morgan faced multiple felony counts for elder abuse, grand theft of an elder dependent adult, and false imprisonment.
– At the end of April 2019, Humboldt County resident and professional home-health-care worker Gina C. Chamberlain received almost five years in state prison after being convicted of felony elder abuse by a caretaker. Chamberlain had allegedly been stealing opioid patches and pills from her senior-citizen clients and was, therefore, charged with withholding essential medications from the elderly victims. At the time of her arrest, she had allegedly been on formal felony probation for committing similar crimes in the past, including financial elder abuse (theft).
– According to Kern County authorities, over a two-year period (2013 through 2015), Bakersfield resident Donna Crick took advantage of a man over age sixty-five and suffering from dementia, and was thereby able to write herself and cash more than one hundred and sixty personal checks amounting to almost $175,000 – all from the victim’s own checking account. Crick also allegedly withdrew all the money in the victim’s savings account, cashed in the victim’s annuity policies, and had all the victim’s insurance policies changed so she would be the sole beneficiary. In mid-April 2019, she pled no contest to felony financial elder abuse by a non-caretaker. Her maximum sentence was five years in prison.
Examples of Elder Endangerment or Physical Neglect
Even passive neglect of an elderly person can be charged as a serious felony. For example, if you as the victim’s caregiver denied him or her food or water, or withheld medications, you could end up a convicted felon, particularly if injury resulted.
– Riverside County authorities claimed that Linda M. Raye, a homeless person, had criminally neglected and financially abused her eighty-five-year-old mother, Yolanda Farrell, over a two-year period by cashing her Social Security checks and using the money to pay for rent on an apartment. Authorities also alleged that Raye convinced her invalid mother to move out of her nursing home and into that same apartment so Raye could save money, but only took her to a single doctor’s visit during that period. She also allegedly refused to allow a nurse to inspect Farrell at the apartment. Then, in 2012, Raye allegedly began receiving almost a thousand dollars a month from the state of California for ostensibly providing caretaking services for Farrell. In late 2012, Farrell allegedly suffered blood poisoning from sepsis over severely infected bedsores and died. Raye was charged with second-degree murder but was ultimately (in September 2013) able to take a reduced plea for felony elder abuse by a caretaker. The judge issued a sentence of almost a dozen years in a state correctional facility.
– According to Santa Cruz County authorities, in April 2016, sheriff’s deputies conducted a welfare check at the residence of Mr. Robin D. Dakan, a licensed attorney, and discovered that Dakan’s elderly wife was severely malnourished and incapacitated. She allegedly told them that she was entirely dependent on Dakan, and that she had literally been bed-ridden for twenty-four months. She was immediately treated at the local ER, whose chief doctor would later testify at Dakan’s criminal trial that hers was among the worst elder-abuse cases he had seen in more than three decades of practicing medicine. Dakan was found guilty of felony elder abuse and, in late February 2019, was sentenced to twenty-four months in a state penitentiary. On June 3, 2019, his license to practice law was suspended for the first time since 1977, when he was admitted to the State Bar.
False or Mistaken Accusations that Lead to Elder Abuse Charges
In our experience, this is one of the most falsely reported crimes, meaning that the defendant is often innocent of the charges and was only accused because of some ulterior motive by the accuser or even the victim him/herself.
One of the most common examples we’ve dealt with is where the defendant is the trustee of a family trust and the individual legally responsible for the eldest family member (typically a parent), and the other siblings make accusations of elder abuse against the trustee in an attempt to remove him or her so that the accusing sibling can take control of the trust. Similarly, we’ve seen cases where one of these slighted siblings convinces the elderly person that he or she is being financially taken advantage of by the defendant, when nothing could be further from the truth.
Or, in the alternative, an elder abuse charge – typically involving financial transactions – could result from an honest mistake, i.e., the purported victim believes he or she is being swindled by the defendant/caretaker when, in fact, the latter was simply handling the victim’s financial matters as instructed. Sometimes these mistakes result from dementia or other forms of mental disability from which the victim-accuser suffers.
In fact, according to a recent study conducted by the National Elder Abuse Center, the most common allegation of elder abuse in the US results from the elderly individual’s own self-neglect or lack of self care (see below).
Sometimes these mistaken accusations result from reports made by examining physical or mental health care workers who see signs of abuse when none occurred but, as required by California law, notify legal authorities. These individuals include doctors, nurses, physical therapists, orderlies, medical assistants, chiropractors, and so on.
Sentences for Elder Abuse Convictions
If you are convicted of felony elder abuse under California Penal Code section 368 P.C., you could be sentenced to two, three, or four years in prison, based on a variety of factors. For misdemeanor convictions, if the judge does decide to impose a custody sentence, you will face a maximum of a dozen months in the county jail.
These terms of incarceration do not include any possible sentencing enhancements – for example, if you had a prior strike on your record and you were on parole or probation at the time of your recent arrest. Or if grave physical injury resulted, for instance, your elder abuse charge itself could be charged as a strike (a violent felony).
Probation will also likely be imposed by the court, usually for three years (for most misdemeanors) or five years (for most felonies) unless you went to prison, which precludes probation.
You can also expect to face fines of up to six thousand dollars, court costs, victim restitution, counseling, community service, and any other terms the judge finds are appropriate.
There may be additional consequences from an elder abuse charge. For example, civil restraining orders might be issued, and civil lawsuits filed, against you. Family law proceedings could be instituted where temporary and permanent conservatorships could be sought over the victim, etc.
If you are not a United States citizen or legal resident, you could also face adverse immigration consequences, including deportation.
Defenses to Elder-Abuse Allegations
If the defendant did not actually have legal guardianship of the elderly victim, or was not otherwise his or her legal caregiver, then the defendant should be able to defeat this charge (although he or she may still be charged with another crime unrelated to the relationship, such as false imprisonment or even kidnapping).
Often the true cause of the harm is the elderly person’s self-neglect, meaning that he or she failed to follow proper medical advice, take prescribed medications as required, or otherwise failed to care for him or herself. So long as the accused did not contribute to it, self-neglect in certain cases works as a strong defense.
Sometimes when there is physical injury, the cause may have been purely accidental and through no legal fault of the accused. For example, you might be a physical therapist facing battery on an elderly person who thought you pushed her when, in fact, she accidentally slipped from your hands. Accident, then, would also be an effective defense in this situation. In other words, you had never formed the intent to harm the victim.
This specific defense would also apply in the event the elderly person, for example, instructed you to complete some financial transaction for you and, again through no fault of your own, he or she lost money but nevertheless blamed the loss on you.
Sometimes an affirmative defense may be inapplicable, such as self-defense (where you were forced to defend yourself or another person against the elderly individual).
Finally, if the victim is less than 65 years old, then the elder abuse statute is inapplicable (although the prosecution will almost certainly charge you with other crimes instead).
Calif. Pen. C. section 368 P.C.; CALCRIM Jury Instructions no. 830.
How We Approach Elder Abuse Cases
Often, elder abuse criminal charges are based entirely on the allegations of interested parties who have a personal and/or financial stake in the outcome of the dispute. In such cases, as well as others where the investigating detective or prosecuting attorney lack a complete picture of the facts, we will put together a comprehensive Pre-File or mitigation package, depending on whether charges have been filed yet or not. Usually with the assistance of one of our veteran private investigators, we will gather all evidence, including witness statements, and present it, along with other important documentation – to either sway the detective not to refer the case for prosecution, or the prosecutor from proceeding to trial.
Otherwise, if we are forced to go to trial, we take both an aggressive and comprehensive approach, which can include working with family law attorneys, immigration counsel, inpatient substance-abuse placement counselors, and family therapists, if necessary.
If necessary to counter the prosecution’s witnesses, including experts, we will present our own experts to explain why the alleged physical, emotional, and/or financial harm was not the result of elder abuse.
Some of Our Past Elder Abuse Cases:
Felony elder abuse – 8 years in prison & loss of license – result: diversion, no jail, kept license
People v. I.R.: Our client was charged with felony elder abuse and was facing almost eight years in prison, as well as the permanent revocation of her insurance broker’s license. The DA’s Office accused her of charging more than fifty thousand dollars for personal expenses on the purported elderly victim’s credit card. We were ultimately able to get our client formal diversion and zero incarceration, and once she completed that, the entire case was dismissed – with no repercussions to her license.