Penal Code § 368 – Elder or Dependent Adult Abuse

Code Details

Penal Code – PEN

PART 1. OF CRIMES AND PUNISHMENTS [25 – 680.4] ( Part 1 enacted 1872. )

TITLE 9. OF CRIMES AGAINST THE PERSON INVOLVING SEXUAL ASSAULT, AND CRIMES AGAINST PUBLIC DECENCY AND GOOD MORALS [261 – 368.7] ( Heading of Title 9 amended by Stats. 1982, Ch. 1111, Sec. 2. )

CHAPTER 13. Crimes Against Elders, Dependent Adults, and Persons with Disabilities [368 – 368.7] ( Chapter 13 heading added by Stats. 2010, Ch. 617, Sec. 2. )

Exact Statute Text

(a) The Legislature finds and declares that elders, adults whose physical or mental disabilities or other limitations restrict their ability to carry out normal activities or to protect their rights, and adults admitted as inpatients to a 24-hour health facility deserve special consideration and protection.

(b) (1) A person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which their person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years.

(2) If, in the commission of an offense described in paragraph (1), the victim suffers great bodily injury, as defined in Section 12022.7, the defendant shall receive an additional term in the state prison as follows:

(A) Three years if the victim is under 70 years of age.

(B) Five years if the victim is 70 years of age or older.

(3) If, in the commission of an offense described in paragraph (1), the defendant proximately causes the death of the victim, the defendant shall receive an additional term in the state prison as follows:

(A) Five years if the victim is under 70 years of age.

(B) Seven years if the victim is 70 years of age or older.

(c) A person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured or willfully causes or permits the elder or dependent adult to be placed in a situation in which their person or health may be endangered, is guilty of a misdemeanor. A second or subsequent violation of this subdivision is punishable by a fine not to exceed two thousand dollars ($2,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.

(d) A person who is not a caretaker who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of an elder or a dependent adult, and who knows or reasonably should know that the victim is an elder or a dependent adult, is punishable as follows:

(1) By a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding nine hundred fifty dollars ($950).

(2) By a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding nine hundred fifty dollars ($950).

(e) A caretaker of an elder or a dependent adult who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of that elder or dependent adult, is punishable as follows:

(1) By a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding nine hundred fifty dollars ($950).

(2) By a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding nine hundred fifty dollars ($950).

(f) A person who commits the false imprisonment of an elder or a dependent adult by the use of violence, menace, fraud, or deceit is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.

(g) As used in this section, “elder” means a person who is 65 years of age or older.

(h) As used in this section, “dependent adult” means a person, regardless of whether the person lives independently, who is between the ages of 18 and 64, who has physical or mental limitations which restrict their ability to carry out normal activities or to protect their rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age. “Dependent adult” includes a person between the ages of 18 and 64 who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.

(i) As used in this section, “caretaker” means a person who has the care, custody, or control of, or who stands in a position of trust with, an elder or a dependent adult.

(j) Nothing in this section shall preclude prosecution under both this section and Section 187 or 12022.7 or any other provision of law. However, a person shall not receive an additional term of imprisonment under both paragraphs (2) and (3) of subdivision (b) for a single offense, nor shall a person receive an additional term of imprisonment under both Section 12022.7 and paragraph (2) or (3) of subdivision (b) for a single offense.

(k) In any case in which a person is convicted of violating these provisions, the court may require them to receive appropriate counseling as a condition of probation. A defendant ordered to be placed in a counseling program shall be responsible for paying the expense of participation in the counseling program as determined by the court. The court shall take into consideration the ability of the defendant to pay, and no defendant shall be denied probation because of the inability to pay.

(l) Upon conviction for a violation of subdivision (b), (c), (d), (e), or (f), the sentencing court shall also consider issuing an order restraining the defendant from any contact with the victim, which may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of any restraining order be based upon the seriousness of the facts before the court, the probability of future violations, the safety of the victim and their immediate family, and the information provided to the court pursuant to Section 273.75. This protective order may be issued by the court whether the defendant is sentenced to state prison or county jail, or if imposition of sentence is suspended and the defendant is placed on probation.

(Amended by Stats. 2024, Ch. 538, Sec. 5. (AB 2907) Effective January 1, 2025.)

Penal Code § 368 Summary

California Penal Code § 368 makes it a crime to abuse or neglect an elder or dependent adult. This statute provides special protection for individuals aged 65 or older (“elders”) and those between 18 and 64 who have physical or mental limitations restricting their ability to protect themselves (“dependent adults”), including inpatients in 24-hour health facilities.

The law broadly covers several forms of abuse:

• Physical or Mental Abuse/Neglect (Subdivisions b & c): This is the core of the statute.

* Felony Abuse (b): Occurs when a person (who knows or should know the victim is an elder/dependent adult) willfully causes or permits them to suffer unjustifiable physical pain or mental suffering, or endangers their health, under circumstances likely to produce great bodily harm or death. Penalties include state prison time. Significant enhancements apply if the victim suffers great bodily injury or death, with harsher penalties for victims 70 years or older.
* Misdemeanor Abuse (c): Applies when similar actions occur under circumstances other than those likely to produce great bodily harm or death. This is a misdemeanor, with increased penalties for repeat offenses.

• Financial Abuse (Subdivisions d & e): Criminalizes theft, embezzlement, forgery, fraud, or identity theft against elders or dependent adults.

* Non-Caretaker Financial Abuse (d): Applies to individuals who are not in a position of care or trust. Penalties vary based on the value of the property taken.
* Caretaker Financial Abuse (e): Imposes the same penalties as non-caretaker financial abuse, but specifically targets individuals in a position of care or trust, recognizing the heightened vulnerability.

• False Imprisonment (Subdivision f): Prohibits the false imprisonment of an elder or dependent adult through violence, menace, fraud, or deceit, punishable by state prison time.

The statute also defines “caretaker” as someone with care, custody, control of, or standing in a position of trust with, an elder or dependent adult. It specifies that prosecution under PC 368 does not preclude prosecution under other related laws and allows for counseling and restraining orders as part of sentencing.

Purpose of Penal Code § 368

The California Legislature enacted Penal Code § 368 to provide specific and enhanced legal protections for two particularly vulnerable groups: elders (individuals 65 and older) and dependent adults (those aged 18-64 with significant physical or mental limitations). The legislative intent, explicitly stated in subdivision (a), recognizes that these individuals often face restricted abilities to carry out normal activities or protect their rights, making them susceptible to various forms of abuse and neglect.

This statute addresses a critical societal problem by imposing criminal penalties on those who exploit or harm these vulnerable populations. Its purpose is multifaceted: to deter potential abusers, to hold perpetrators accountable through specific criminal charges, and to offer a measure of justice and protection to victims. By differentiating between felony and misdemeanor abuse based on the potential for harm, and by explicitly addressing financial exploitation and false imprisonment, PC 368 aims to cover the wide spectrum of harms that elders and dependent adults may suffer, especially at the hands of those entrusted with their care. It underscores the state’s commitment to safeguarding the dignity, well-being, and security of its most susceptible citizens.

Real-World Example of Penal Code § 368

Scenario: Neglect Leading to Severe Injury

Maria is an 88-year-old widow who suffers from advanced dementia and requires 24-hour care. Her grandson, David, is her primary caregiver, living in her home and managing her affairs. David, however, has developed a severe gambling addiction. To free up time and money for his habit, he begins to neglect Maria. He frequently leaves her alone for extended periods, sometimes for more than 12 hours, without proper supervision, food, or medication. He stops changing her adult diapers regularly, leading to severe bedsores and infections. He also withholds her prescribed heart medication to save money he diverts for gambling.

One day, Maria falls out of bed because David failed to properly set up her bed rails. She lies on the floor, injured, for several hours before David returns. By the time emergency services are called, Maria has suffered a broken hip, severe dehydration, and her bedsores have become critically infected, requiring extensive hospitalization. Medical reports confirm that her injuries and exacerbated health conditions were a direct result of chronic neglect and lack of medication.

Application of Penal Code § 368:

• Victim Status: Maria is an “elder” (over 65) and a “dependent adult” (due to dementia and reliance on care).
• Perpetrator Knowledge: David “knows or reasonably should know” that Maria is an elder and dependent adult.
• Caretaker Status: David is Maria’s primary caregiver, placing him in a “position of trust” as a “caretaker.”
• Willful Act/Omission: David “willfully causes or permits” Maria to suffer by intentionally neglecting her, failing to administer medication, and leaving her in dangerous conditions.
• Harm: The circumstances (prolonged neglect, withholding medication, inadequate supervision) were “likely to produce great bodily harm or death,” and indeed, Maria suffered “great bodily injury” (broken hip, severe infections, dehydration).

Based on these facts, David could be prosecuted under Penal Code § 368(b)(1) for felony elder abuse. Given Maria is over 70 and suffered great bodily injury, David would also face enhanced sentencing under Penal Code § 368(b)(2)(B), adding five years to his prison sentence for the victim being 70 years of age or older and suffering great bodily injury. Additionally, if he misused her funds for gambling, he could also face charges under PC 368(e) for financial elder abuse.

Related Statutes

Several other California statutes are closely related to Penal Code § 368, often addressing similar forms of harm or providing civil remedies for abuse:

• Welfare and Institutions Code § 15600 et seq. – Elder Abuse and Dependent Adult Civil Protection Act (EADACPA): This is perhaps the most significant related statute for personal injury cases. While PC 368 provides criminal penalties, EADACPA establishes civil causes of action for elder and dependent adult abuse. It allows victims to sue for damages, including pain and suffering, medical expenses, and, critically, provides for enhanced remedies (such as attorney’s fees, costs, and punitive damages) when a defendant is found to have committed abuse by “clear and convincing evidence” and has acted with “recklessness, oppression, fraud, or malice.”
• Penal Code § 187 – Murder: Referenced in PC 368(j), this statute would be applied if the abuse proximately results in the death of the elder or dependent adult, allowing for dual prosecution.
• Penal Code § 12022.7 – Great Bodily Injury Enhancement: Also referenced in PC 368(b)(2) and (j), this enhancement allows for additional prison time when a person personally inflicts “great bodily injury” during the commission of a felony. PC 368 specifically incorporates this concept for elder/dependent adult abuse, providing its own tiered enhancements based on the victim’s age.
• Penal Code § 273a – Child Abuse/Endangerment: While not directly covering elders or dependent adults, this statute provides analogous protections for children, criminalizing the willful infliction of unjustifiable pain or mental suffering, or placing a child in a dangerous situation. It reflects a similar legislative intent to protect vulnerable individuals.
• Penal Code § 530.5 – Identity Theft: Specifically referenced in PC 368(d) and (e) regarding financial elder abuse. This statute makes it a crime to willfully obtain personal identifying information of another person and use it for an unlawful purpose without consent.
• Various Theft, Embezzlement, Forgery, and Fraud Statutes: Penal Code § 368(d) and (e) explicitly incorporate violations of general laws against these financial crimes when committed against an elder or dependent adult, often leading to enhanced penalties. Examples include Penal Code § 484 (theft), Penal Code § 503 (embezzlement), and Penal Code § 470 (forgery).

Case Law Interpreting Penal Code § 368

Case law provides crucial interpretations of Penal Code § 368, clarifying its elements, definitions, and application. Here are some examples of the types of interpretations courts have made:

• People v. Superior Court (Holm) (2009) 175 Cal.App.4th 393: This case addressed the “care or custody” element for purposes of the felony elder abuse statute, particularly in the context of residential care facilities.
• People v. Gomez (2019) 39 Cal.App.5th 1241: This case discussed the meaning of “willfully causes or permits” in the context of elder abuse, emphasizing the mental state required for conviction.
• People v. Wallace (2018) 27 Cal.App.5th 1177: This decision clarified the scope of “dependent adult” for purposes of the statute, particularly in relation to individuals with diminished physical or mental abilities.

For a comprehensive review of relevant case law, you can search Google Scholar: California Penal Code 368 Elder Dependent Adult Abuse Case Law

Why Penal Code § 368 Matters in Personal Injury Litigation

While Penal Code § 368 is a criminal statute, its existence and enforcement profoundly impact personal injury litigation, particularly for victims of elder or dependent adult abuse in California. Here’s how:

1. Setting the Standard of Care: PC 368 clearly defines what constitutes criminal abuse and neglect. In civil personal injury cases, these definitions can be used to establish the standard of care that individuals and institutions (like nursing homes or care facilities) owe to elders and dependent adults. A violation of PC 368 can serve as strong evidence of negligence or even gross negligence in a civil suit.
2. Facilitating Civil Claims under EADACPA: The Elder Abuse and Dependent Adult Civil Protection Act (Welfare and Institutions Code § 15600 et seq.) is the primary civil mechanism for victims to seek compensation. A criminal conviction under PC 368 can significantly strengthen an EADACPA claim, potentially streamlining the process of proving abuse. Moreover, findings of egregious conduct that lead to PC 368 charges (like recklessness, oppression, fraud, or malice) are precisely what can trigger enhanced remedies under EADACPA, such as recovery of attorney’s fees, litigation costs, and even punitive damages.
3. Evidentiary Value: A conviction or even charges under PC 368 can be highly persuasive in a civil trial. While a criminal conviction might not always be directly admissible as proof of civil liability, the facts and evidence gathered during a criminal investigation can be invaluable for the plaintiff’s personal injury attorney in building their case. It can provide a roadmap for discovery, identify key witnesses, and corroborate victim testimony.
4. Deterrence and Accountability: The severe criminal penalties outlined in PC 368 act as a deterrent. Knowing that abusers face not only civil lawsuits but also potential felony convictions and lengthy prison sentences encourages responsible care and discourages harmful behavior. This promotes greater accountability among caregivers, family members, and institutions.
5. Understanding “Willfulness” and “Knowledge”: PC 368’s requirement that an abuser “knows or reasonably should know” the victim is an elder or dependent adult and “willfully causes or permits” harm is a high bar for criminal conviction. However, this definition of “willfulness” can also guide civil attorneys in demonstrating the intentionality or extreme recklessness necessary to secure enhanced civil damages.
6. Victim Empowerment: For victims and their families, the existence of both criminal and civil avenues for justice provides multiple layers of recourse. While a criminal prosecution focuses on punishment, personal injury litigation offers a way to recover financial losses, cover medical expenses, compensate for pain and suffering, and ensure future care needs are met, thereby empowering victims to rebuild their lives.

In essence, Penal Code § 368 lays the foundational criminal framework for protecting vulnerable adults, which then acts as a powerful leverage point and evidentiary resource for personal injury attorneys pursuing civil justice and compensation for abuse victims.