Not surprisingly, California has among the most stringent laws protecting elders – i.e., adults age 65 and over – from every possible type of abuse, whether it be physical, mental or financial. And when the victim is your relative or current or former household member, or simply someone who was in the wrong place at the wrong time during a domestic dispute – then the crime falls into the realm of domestic violence.
Alternatively, if you are legally obligated to care for a senior citizen – typically because of your occupation (e.g., nurse, home health care worker, therapist, etc.), then you can be prosecuted for elder abuse if you “merely” neglected him or her, or otherwise placed him or her in an unreasonably dangerous situation. Thus, even “passive” elder abuse, such as inadvertent neglect on your part that nevertheless rises to the level of criminal negligence, can result in you being prosecuted for a felony.
While many elder abuse crimes are relatively benign and, therefore, charged as simple misdemeanors, others – particularly those resulting in the victim’s death – can land you in prison for decades or even life.
In general, felony elder abuse consists of the following types of crimes:
- physical abuse resulting in severe injury; or
- financial malfeasance resulting in significant losses.
The following types of elder abuse cases are considered “wobblers”, meaning the DA can prosecute them either as felonies or misdemeanors (depending on the circumstances):
- moderate injury – physical or mental;
- moderate financial losses; or
- endangering or neglecting the victim.
Finally, misdemeanors typically involve minimal mental or physical injury, endangerment or financial loss to the victim.
State Statutes Regarding Domestic Violence – Elder Abuse
California Penal Code section 368
If you do physical or mental harm to someone age 65 or older in your current or previous household, or an elderly relative of a former or current lover, you would be prosecuted under certain sections of California’s domestic violence (“DV”) statute, codified at California Penal Code section 368. The elements of this crime are as follows:
- you knew or should have known that the victim was at least 65 years old;
- the act or incident occurred under circumstances that were likely to result in serious injury or even death to the victim;
- you intentionally caused, or allowed someone else to cause, the victim “unjustifiable” physical or mental harm; or
- if you had legal care or custody of the victim, you intentionally caused or allowed another to cause him or her injury or to endanger his or her well-being.
See California Penal Code section 368(b)(1).
Alternatively, you will be charged with a misdemeanor if the previous elements were met with one crucial exception: the circumstances in which the victim was harmed were not likely to cause serious injury or death. See California Penal Code section 368(b)(3)(c).
Convictions and Sentencing Terms for Domestic Violence – Elder Abuse
A felony conviction under this statute will get you the following punishment:
- state penitentiary for two, three, or four years; or
- county jail for a maximum of 12 months; or
- a maximum fine of $6,000; or
- imprisonment or jail with a fine;
- a restraining order (maximum ten years).
(For details regarding the restraining order, see California Penal Code section 368(l).)
Keep in mind, however, that sentencing prison-term enhancements will apply under the following circumstances, assuming the victim suffered serious injury:
- 36 additional months if the victim was between 65 and 69 years of age;
- 60 additional months if he or she was at least 70.
See California Penal Code section 368(b)(2). Serious injury is defined as “great bodily injury” in California Penal Code section 12022.7.
Alternatively, if you caused the victim’s death, the penalty enhancements would be:
- 60 additional months if the victim was between 65 and 69 years of age;
- 84 additional months if he or she was at least 70.
If you are convicted of a misdemeanor, the following punishment will apply:
- up to 12 months in the county jail; or
- a fine up to $2,000; or
- a restraining order (maximum ten years).
Further, if you allegedly falsely imprison the victim by force or threat of force, you will be charged with a felony, and if convicted, will receive two, three or four years in a state penal institution. See California Penal Code section 368(f).
Additionally, whether you are convicted of a felony or misdemeanor, so long as you are not sentenced to state prison, and regardless of whether or not you serve jail time, you may be placed on probation, which would include mandatory counseling. See California Penal Code section 368(k).
Finally, elder abuse convictions almost always come with ancillary punishments, whether it be a permanent restraining order against you, or repercussions to your career, job or even immigration status (if applicable). Civil law consequences may also result, such as your sibling filing for a conservatorship to take the purported victim out of your care.
Defenses to Domestic Violence – Elder Abuse
The following are all valid defenses – either partial or complete – to the various elder abuse charges described above:
- you weren’t the elderly person’s legal guardian or caretaker at the time;
- alternatively, if you were such, you didn’t allow him or her to be placed in harm’s way or allow someone else to do so;
- the physical injury resulted from an accident or the purported victim’s self-neglect;
- the alleged abuse resulted from your negligence, but not criminal negligence (i.e., you did not act so recklessly that the purported victim was exposed to an unreasonable risk of severe harm or death, and no reasonable person would have objectively believed such an act would result in such risk);
- you never intended to harm or neglect the purported victim;
- you were not responsible for his or her financial loss(es) (e.g., the purported victim simply forgot – perhaps because of dementia -- that he/she instructed you to make certain financial transactions);
- you acted out of self-defense when, for example, the elderly person attacked you;
- you did not intentionally inflict unjustifiable physical or mental harm on him/her;
- alternatively, you did act intentionally but the harm was justified (e.g., you had to restrain the elder to prevent him/her from hurting themselves – in other words, your act was necessary in that particular situation and was otherwise not excessive);
- you did not allow another person whom you supervised to inflict the alleged unjustifiable physical/mental harm;
- he or she was less than 65 at the time of the incident;
- alternatively, you should not reasonably have known he or she was at least 65.
See the following Judicial Council of California Criminal Jury Instructions (“CALCRIM”):
- CALCRIM number 831 (“Abuse of Elder or Dependent Adult”);
- CALCRIM number 830 (“Abuse of Elder or Dependent Adult Likely to Produce Great Bodily Harm or Death”);
- CALCRIM number 3162 (“Great Bodily Injury: Age of Victim”).
Examples of Domestic Violence – Elder Abuse – Misdemeanor Charges
Two women accused of misdemeanor elder abuse for picking elderly woman’s pocket at East Bay mall
According to authorities, on or about September 15, 2019, two female Stockton (Central Valley) residents, Markkisha Mangum and Martavia Blount, pulled off a purse-snatching from a senior citizen in a Bay Area shopping center. According to Walnut Creek police, CCTV cameras captured the incident, which ultimately led to the women’s arrest after the footage was uploaded to the internet.
Shortly thereafter, they were prosecuted for various misdemeanors, including financial abuse of an elderly person under Pen. Code section 368(d). In addition, Mangum faced a felony charge for ID theft. See abc7news.com.
San Bernardino County resident faces 12 months in jail for hosing down an elderly neighbor
On or about January 15, 2020, San Bernardino Co. deputies apprehended local Ron Doyle for supposedly hosing down (with water) a male senior citizen; striking him in the face with the brass end of the hose; and pushing him onto the ground. Shortly thereafter, the EMTs treated him for slight injuries. As a result, the county’s DA prosecuted Doyle for misdemeanor infliction of elder abuse resulting in (moderate) injury under Pen. Code section 368(b)(1), which entails a maximum of one year in the county lock-up.
Former insurance agent sentenced for misdemeanor after selling his aunt a high-risk annuity policy
On or about November 25, 2013, insurance broker Myles Hanashiro, a resident of Orange County, was arrested for suspicion of misdemeanor financial elder abuse after he allegedly sold an elderly relative an extremely risky life insurance policy that paid certain annual premiums. According to the Orange Co. DA’s Office, he had initially sold the policy eight years earlier, which resulted in him permanently losing his license four years later following a complaint made to the California Dept. of Insurance.
Notwithstanding the revocation of his license, over the next year, Hanashiro allegedly began diverting what would amount to over one hundred and ten thousand dollars ($110,000+) in annual payments to his own bank account after forging his aunt’s signature. In what can only be described as a highly fortuitous plea deal for Hanashiro, on or about March 1, 2014, he accepted a guilty plea for misdemeanor financial elder abuse.
As a result, he received fourteen days in the Orange County jail (with credit for time served), three years of probation, 100 hours of community service, and a restitution requirement.
Examples of Domestic Violence – Elder Abuse – Felony Charges Involving Significant Injury
San Mateo County man gets one year in jail for two separate assaults of the same elderly woman
According to authorities, on or about August 21, 2018, Stephen Green of San Mateo Co. punched an elderly female (age 70) waiting at a bus-stop, then, approximately sixty days later, attacked her again – striking her with his fist multiple times – as she exited her apartment building.
The local District Attorney’s Office believed Green’s motivation for the two incidents stemmed from bad blood between his girlfriend and the victim who were neighbors in the same building. Green was ultimately found guilty and sentenced to (a surprisingly lenient) one year in the county lock-up, as well as to three years’ probation. See smdailyjournal.com.
LA woman is sentenced to 15 years in prison for hate-crime attack on 92-year-old Latino
According to the Los Angeles District Attorney, on or about July 3, 2018, Angelena Laquisha Jones attacked a nonagenarian, Rodolfo Rodriguez, with a chunk of stone in downtown LA, because she was Black and he was Latino. Rodriguez was allegedly severely wounded, suffering, among other injuries, a shattered jaw. Five months later, facing an attempted murder count with a hate-crime enhancement, Green accepted a nolo contendre plea to felony elder abuse (with dismissal of the other charges and enhancement), and subsequently received fifteen years in a California penitentiary. See nytimes.com.
Yolo County mother and son convicted in neglect-death of 66-year-old man in their care
According to the Yolo Co. (NorCal) DA’s Office, on or about October 21, 2012, locals Darlene Mattos’ elder abuse of 66-year-old Cecil Wachholz – who was being cared for by Mattos’ son, James, at the time – directly resulted in Waccholz’s death. Specifically, authorities claimed that the mother and son so severely neglected the mentally-impaired Waccholz, that he died even after being treated for two weeks in a hospital. As a result, both were charged with serious felonies ranging from second-degree murder to felony elder abuse resulting in death. Darlene ultimately took a nolo contendre plea to the latter charge, while James went to trial and was convicted of the former. Their respective sentences reflected the nature of these convictions – she was sentenced to over six months in the county jail (with full credit for time served), and he received 30-to-life with possible parole, along with an enhancement of a dozen additional years. See yoloda.org.
Examples of Domestic Violence – Elder Abuse – Financial Crimes
Marvel Comics founder Stan Lee’s former caretaker charged with felony elder abuse (financial)
On or about May 21, 2019, authorities in Arizona arrested the late Stan Lee’s former business manager, Keya Morgan, for suspicion of felony financial elder abuse allegedly committed in Los Angeles while Lee was alive. Shortly thereafter, following his extradition to LA, Morgan was charged with suspicion of embezzling hundreds of thousands of dollars from Lee’s accounts, as well as for allegedly pocketing large sums of money from Lee’s autograph sessions at comic book conventions. Specifically, the DA is currently pursuing charges of three types of felonies: financial elder abuse, grand theft (with an enhancement because of Lee’s age at the time), and false imprisonment.
Lee, who founded Marvel Comics, had been physically cared for by Morgan for many years until just before his death in mid November 2018 (when Lee was 95). Just before his death, Lee’s family members suspected Morgan of financial malfeasance and were able to take Lee away from Morgan and obtain a TRO against Morgan, which the judge later turned into a three-year stay-away order. See washingtonpost.com.
The Los Angeles Defense Attorney Law Firm (LADALF)
As a veteran criminal defense/trial attorney, senior lawyer Ninaz Saffari has defended dozens of clients against all manner of elder abuse charges – ranging from simple battery to large-loss financial crimes.
For example, in People v. I.R., the District Attorney prosecuted her client, a licensed insurance broker, with felony elder abuse for allegedly ringing up more than $50,000 in credit card charges on a VISA belonging to her client (who was over 65 years old). Maximum sentence: just under 8 years in a California penitentiary, not to mention the loss of that license and, thus, her livelihood and career. Ninaz fought the case every step of the way, and was eventually able to get the client formal diversion (and, so, no jail) with the ultimate dismissal of the entire case. With no conviction, the client was able to keep her license and continue thriving in her chosen profession.
More than a few of LADALF’s clients have been falsely accused of elder abuse – whether physical, mental or financial – either because the purported victim was legitimately confused or because his or her relative wrongfully accused the client out of blatant self-interest.
For example, one of these purported witnesses – our client’s sibling – wanted to replace her as the trustee of their family’s trust in order to control its assets for her own use. To that end, she filed a police report against our client. Similarly, we also represented a client whose sibling convinced the elder that the client was defrauding her when, in fact, nothing of the sort occurred.
In addition, the LADALF works with a variety of top experts in their fields to help defend our clients, including financial experts. Indeed, in July 2019, researches from USC’s Keck School of Medicine, with assistance from the National Center on Elder Abuse (NCEA), found that more than half of all elder abuse allegations concern financial crimes. See journals.sagepub.com. See also ncea.acl.gov.
Whatever the elder abuse allegation or charge you’re facing, we always take the same approach: aggressively attack the DA or City’s Attorney’s case every step of the way while relentlessly pushing towards trial (where we truly excel).
Alternatively, and fortunately, many of these cases can be resolved either before or even shortly after the case is filed against you. Specifically, in these “Pre-File” matters, when appropriate, we will present an exculpatory package of evidence to the investigating detective or prosecutor to convince him or her not to refer the case for prosecution, or to dismiss it if it’s already been filed.