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Elder Abuse

If an individual is accused of elder abuse, the accusation alone can have a significant impact on the accused’s career and reputation in the community. The significant consequences associated with elder abuse make it essential that you contact Los Angeles Criminal Lawyer immediately after you have been accused of the crime, this will provide you the best opportunity to minimize the damage associated with the accusation as well as provide you the best chance to obtain a favorable outcome to your case. There are several benefits to contacting LACL immediately after you have been accused.

Once you contact Los Angeles Criminal lawyer, an FREE initial consultation will be scheduled. At that consultation you will have the opportunity to provide your attorney with all the information surrounding the event that resulted in you being accused of elder abuse while it is still fresh in your mind. At LACL we know that know piece of information is meaningless, and having all of that information will allow your attorney to build the strongest defense possible to your case.

One your attorney has developed a theory of defense to your case utilizing the information you have given them, they will approach the District Attorney and present a persuasive argument in support of dismissing the charges against you altogether, or reducing the charges against you. In an ideal world, the charges will be dropped and the harms associated with an accusation of elder abuse will not manifest.

In the event that your case must go to trial, your attorney will have had a significant amount of time to develop and perfect their theory of defense. Having additional time to prepare will place your attorney at a significant advantage over the Prosecution in the courtroom, and will provide you the best chance of obtaining a favorable outcome to your case.

At the outset, it is important to note that according to California Penal Code §369, an “elderly person” is any person who is over the age of sixty-five (65) at the time the Defendant engaged in the conduct that resulted in harm to the Victim. California Penal Code §368 is designed to insulate the elderly from a number of types of abuse including: (1) financial, (2) physical, (3) endangerment, (4) exploitative; and (5) emotional. The California legislature declared that like children, the elderly are also dependent on the care of others, and are therefore a special class of people entitled to additional protections. The elderly are more likely to be impaired as the result of medication, or old age, and therefore unable to report criminal conduct of testify in open court on their own behalf.

The list below is a non-exhaustive list of types of conduct that might expose an individual to liability under the Elder Abuse laws:

  1. A doctor sexual assaults a female patient who is 72 years old in the ER
  2. A man who punches his 83 year old neighbor for complaining about his dogs
  3. A nurse who persuades a 67 year old man to give her all his money in his will
  4. A man gives his 69 year old mother 6 painkillers instead of 1, which was recommended by the doctor.

In order to obtain a conviction for elder abuse, the Prosecution must prove the following elements beyond a reasonable doubt:

  1. The Defendant acted willfully; OR
    1. The Defendant acted with criminal negligence
  2. As a result of the Defendant’s act, an elderly person experienced: AND
    1. mental suffering or pain;
    2. Harm to their health
    3. Danger to themselves
  3. The Defendant had custody or care of the Victim

It is a fundamental aspect of criminal law in the United States that the Prosecution proves every element of the crime the Defendant is accused of committing beyond a reasonable doubt. This requirement is found in the Due process Clause of the United States Constitution. As such, it is a common defense strategy to simply negate one or more of the elements of the crime that the Prosecution must prove. The attorneys at Los Angeles Criminal Lawyer have decades of combined experience representing clients accused of all manners of criminal conduct; including elder abuse. LACL prides itself on providing superior service to their clients. A major part of providing superior service is providing our clients with information relevant to their case. The remainder of this article will focus on: (1) the elements of elder abuse, (2) the penalties you may face if you are convicted of elder abuse; and (3) how Los Angeles Criminal Lawyer can assist you if you have been accused of elder abuse.

Willfully

There are two types of criminal intent required for nearly every criminal act; general or specific. General intent means that the Defendant intended to do the act that gave rise to the crime. Specific intent means the Defendant intended the outcome of their act, or acted for a specific reason. Almost all forms of battery are general intent crimes, which means that to satisfy the intent element of the crime, the Defendant only had to intend to do the action that resulted in the touching. It does not matter if the Defendant had no ill-will, or only meant to frighten the Victim The legal community has been engaged in a discussion as to whether this definition is sufficient, it has been suggested that the correct definition of willfully is a person acts “willfully” when they engage in conduct on purpose, they are aware of what they are doing, and they intend to engage in that act[i]. For practical purposes, absent extenuating circumstances, this element is fairly easy for the Prosecution to prove; many of the defenses your LACL attorney can raise will be aimed at negating the possibility that the Defendant was acting willfully.

For Elder Abuse charges, it is irrelevant that you didn’t intend to harm the elder, it only matters that you intended to engage in the conduct which resulted in the harm to the elder. Willfully in the elder abuse context requires that the Defendant knew, or should have known, that their conduct could result in harm to an elder. Whether the Defendant should have known something is determined by the jury, which applies the “reasonable person test” to decide if a reasonable person aware of the same facts as the Defendant would have determined that the act may cause harm to an elder.

Criminal Negligence

A Defendant can be found guilty of elder abuse if they acted willfully or with criminal negligence. Criminal negligence occurs when the Defendant fails to exercise the duty of care a reasonable person in an identical situation would have provided. If you failed to act, or acted recklessly, as it relates to an elderly person you had custody or care of, you may face elder abuse charges based on your negligence.

In addition to proving that the defendant acted with criminal negligence, the Prosecution must also prove that your negligence was the actual cause of the harm to the elderly person.

It is not criminal negligence does not encompass inattention, the Prosecution must show that:

  1. Your conduct was so reckless, that it amounts to a major departure from what a reasonable person would do in an identical situation;
  2. Your conduct amounted to a disregard for human life or a cold indifference to the likely outcome of your conduct.

“Unjustifiable Pain or Mental Suffering”

The next element the Prosecution must prove is that the harm that the Defendant caused to the elderly Victim was the result of the Defendant’s conduct, and that conduct was either unjustifiable, unnecessary, or was performed in a manner that a reasonable person would have refrained from doing.

What is the Definition of Great Bodily Harm?

If the Defendant’s conduct results in serious bodily injury to the Victim, the Defendant will face felony charges for elder abuse. Serious Bodily Injury in turn, means a serious injury as opposed to a minor injury. It is not necessary that the Prosecutor prove that serious bodily injury occurred, but if that is shown, the Defendant will face penalties which are far more severe than the penalties associated with elder abuse not resulting in serious bodily injury.

I Have Been Convicted of Elder Abuse, What Penalties Might I Face?

In California, the crime of elder abuse is known as a “wobbler offense.” This means the Prosecution has the choice of bringing the chargers against the Defendant as either a misdemeanor or a felony. This decision is based on the degree of harm the Defendant’s conduct caused the Victim. If the harm is insignificant, the charge will be brought as a misdemeanor. If the harm is significant, the charge will be brought as a felony.

If you are convicted of misdemeanor elder abuse, you will face incarceration in county jail for up to one (1) year and/or a fine of six-thousand ($6,000) dollars.

If you are convicted of felony elder abuse, you may face incarceration in a California State Prison for a period ranging from two (2) to four (4) years and/or a fine of up to six-thousand ($6,000).If you are convicted of felony elder abuse, and the Victim suffered serious bodily injury, you will face incarceration in a California State Prison for a period of time ranging from three (3) to seven (7) years.

I Have Been Accused of Elder Abuse, How Can Los Angeles Criminal Lawyer Assist Me?

Elder abuse in California is commonly referred to as a “wobbler” offense. This means that the Prosecutor can choose to bring the charge as either a felony or a misdemeanor. This determination is based on the severity of the harm to the Victim.

If you are convicted of elder abuse, it will appear on your criminal background. Many employers conduct a background check in an effort to weed out applicants for positions with their company. Generally speaking, employers are not fond of hiring people with criminal convictions; misdemeanor or felony. As such, a conviction could have a significant impact on your future job prospects.

Further, your name will be included in the Domestic Violence Registry, which can be viewed by anyone who conducts an internet search of your name.

It is imperative that you retain competent counsel immediately after you have been accused of elder abuse. The attorneys at Los Angeles Criminal Lawyer have decades of combined experience representing clients accused of all manners of criminal conduct, and have perfected the art of effective advocacy in jury trials. Your LACL will raise several defenses including:

  • Your conduct was not willful
  • You were falsely accused;
  • The injury the Victim sustained was caused by an excusable mistake
  • The Victim’s injury was not caused by the Defendant
  • Insufficient evidence
  • Illegally obtained evidence

If you or a loved one has been accused of elder abuse, contact Los Angeles Criminal Lawyer immediately at 310-502-1314 for a FREE consultation.


i California Crim. Jury Instr. Companion Handbook § 5:1, California Crim. Jury Instr. Companion Handbook § 5:1

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