Is Elder Abuse a Felony in California? Penal Code 368 Explained

Q: Is elder abuse a felony or a misdemeanor in California?

It can be either. Physical abuse or neglect under circumstances likely to produce great bodily harm or death is a wobbler under Penal Code section 368, subdivision (b)(1), punishable as a misdemeanor or by two, three, or four years in state prison. Abuse not likely to produce great bodily harm is a misdemeanor under subdivision (c). Financial abuse over $950 is a wobbler and $950 or less is a misdemeanor.

Q: Does an elder abuse charge come with a restraining order?

Usually yes. The criminal court typically issues a protective order under Penal Code section 136.2 at arraignment, and the elder or a representative can also seek a civil order under Welfare and Institutions Code section 15657.03 on form EA-100. Violating either order is a separate crime under Penal Code section 273.6.

Daniel Gramling, Esq.

14 minutes ago

12 min read

The short answer: elder abuse under Penal Code section 368 can be a felony or a misdemeanor. When the conduct happened under circumstances likely to produce great bodily harm or death, it is a wobbler that the prosecutor can file either way; when it did not, it is a misdemeanor. Financial elder abuse is also charged under the same statute and becomes a wobbler when the loss exceeds $950. These cases are filed against family caregivers, in-home aides, facility staff, and adult children in Riverside, San Bernardino, Victorville, Palm Springs, Los Angeles, and Orange County every week, and many of them start with a well-meaning but mistaken report. This guide explains what the statute covers, what the District Attorney must prove, the defenses that actually work, and the consequences beyond the sentence.

What Penal Code 368 Covers

The statute protects two groups. An "elder" is a person 65 years of age or older. A "dependent adult" is a person between 18 and 64 who has physical or mental limitations that restrict the ability to carry out normal activities or protect his or her rights, including people admitted to a 24-hour health facility. The definitions are in Penal Code section 368 itself, and they are broad enough to reach a healthy, independent 66-year-old as well as a bedridden patient.

Four kinds of conduct are criminalized. The statute reaches physical abuse and neglect, including inflicting unjustifiable physical pain or mental suffering, permitting an elder in your care to be injured, or placing the person in a dangerous situation; financial abuse, meaning theft, embezzlement, forgery, fraud, or identity theft directed at an elder's property; false imprisonment of an elder by violence, menace, fraud, or deceit; and the same conduct committed by a caretaker, which the statute treats separately. A single incident can be charged under more than one subdivision, and prosecutors often add companion charges such as Penal Code section 243, Penal Code section 273.5 when the victim is a spouse or parent in a qualifying relationship, or Penal Code section 487 for grand theft.

Who gets charged. The typical defendant is not a stranger. Adult children caring for a parent with dementia, spouses, in-home caregivers hired through an agency, nursing and assisted living staff, and people holding a power of attorney make up most of the cases we see at the Riverside Hall of Justice, the San Bernardino Justice Center, and the Victorville courthouse. Reports come from Adult Protective Services, mandated reporters at hospitals and care facilities, banks flagging unusual withdrawals, and siblings in the middle of a dispute over a parent's money.

What the Prosecutor Must Prove for Physical Elder Abuse

The felony-level offense has specific elements. Under Penal Code section 368, subdivision (b)(1), and the pattern jury instruction CALCRIM 830, the prosecutor must prove beyond a reasonable doubt that (1) the defendant willfully inflicted unjustifiable physical pain or mental suffering on an elder or dependent adult, or willfully caused or permitted the person to suffer that pain or suffering, or, while having care or custody of the person, willfully caused or permitted the person's health to be injured or the person to be placed in a situation where health or safety was endangered; (2) the defendant knew or reasonably should have known that the person was an elder or dependent adult; (3) the conduct occurred under circumstances or conditions likely to produce great bodily harm or death; and (4) where the charge is based on permitting rather than inflicting, the defendant acted with criminal negligence and had a legal duty to act.

"Willfully" and "criminal negligence" are not the same thing. For direct infliction, the prosecutor must show a willful act, meaning the defendant did it on purpose, not that the defendant intended to break the law or cause injury. For neglect-based charges, the standard is criminal negligence, which the courts describe as conduct so reckless that it amounts to a gross departure from what an ordinarily careful person would do in the same situation. Ordinary carelessness, a bad judgment call, or an exhausted caregiver's mistake is not enough.

The duty requirement limits "permitting" liability. In People v. Heitzman (1994) 9 Cal.4th 189, the California Supreme Court held that a person can be convicted of permitting elder abuse only if he or she had a legal duty to control the conduct of the person who actually inflicted the abuse. That case involved an adult daughter who visited but did not live with or care for her father; the Court held she could not be convicted merely for failing to intervene. The question of who had a duty, and what that duty required, is central in cases involving multiple family members or facility staff.

"Likely to produce great bodily harm or death" decides felony or misdemeanor. The same conduct is a misdemeanor under Penal Code section 368, subdivision (c), when it did not happen under circumstances likely to produce great bodily harm or death. Courts have read "likely" to mean a substantial danger, a serious and well-founded risk, not merely a possibility. Pushing an elderly parent during an argument, leaving a dependent adult alone for an afternoon, or raising a hand are often charged as felonies at the outset and later reduced once the actual risk is examined.

What the Prosecutor Must Prove for Financial Elder Abuse

Financial abuse requires an underlying theft-type offense plus the victim's status. Under Penal Code section 368, subdivision (d), for non-caretakers, and subdivision (e), for caretakers, the prosecutor must prove (1) the defendant committed theft, embezzlement, forgery, fraud, or identity theft with respect to the elder's or dependent adult's money, property, or labor; (2) the defendant knew or reasonably should have known that the victim was an elder or dependent adult; and (3) for the felony-level offense, that the value taken exceeded $950, counted in the aggregate when there were multiple takings. Below $950 the offense is a misdemeanor.

The theft element imports the ordinary theft defenses. Because the statute requires a completed theft, embezzlement, or fraud, every defense to those crimes applies: a good-faith claim of right, consent of the owner while competent, a gift, repayment of a loan, or payment for services actually rendered. The fight in these cases is usually over whether the elder had capacity to consent and whether the defendant took advantage of a confidential relationship. Bank records, the elder's medical records, estate planning documents, and the testimony of the elder, if available, decide most of them. Our guides to grand theft under Penal Code 487 and identity theft under Penal Code 530.5 explain the underlying offenses.

Powers of attorney and joint accounts are not blank checks. A person holding a power of attorney or named on a joint account can still be prosecuted if the money was used for the agent's own benefit rather than the elder's. At the same time, a properly executed power of attorney, a trust, or a written caregiving agreement that authorized the payments is powerful evidence that there was no theft. Preserve these documents immediately.

Defenses to Elder Abuse Charges

False or exaggerated accusations. Inheritance disputes, sibling rivalry over who controls a parent's care, and resentment toward a new spouse or caregiver generate a steady share of these reports. The defense investigates who made the report, when, and what they stood to gain, and gathers the records that show the elder's actual condition and finances. Credibility is tested under Evidence Code section 780. Our article on false domestic violence accusations describes the same dynamics.

The injury or decline had a medical cause. Bruising, weight loss, falls, pressure sores, and confusion are common in elderly patients with or without any abuse. Medical records, the treating physician's testimony, and a defense geriatric or forensic expert often show that what was reported as abuse was the natural course of a disease or an accepted consequence of medication. In neglect cases, the question is whether the caregiver's response was reasonable given the elder's documented condition and the resources available.

No duty, or no criminal negligence. Under People v. Heitzman (1994) 9 Cal.4th 189, a person who did not have care or custody of the elder and no legal duty to control the abuser cannot be convicted of permitting abuse. Even where there was a duty, the prosecutor must prove criminal negligence, not just an imperfect decision. A family caregiver who followed medical advice, sought help, or was overwhelmed by a situation no one could have handled alone has a defense on this element.

Lack of knowledge of the victim's status. The statute requires that the defendant knew or reasonably should have known the person was an elder or dependent adult. This is rarely contested when the victim is a parent or patient, but it matters in financial cases involving business transactions with strangers.

Consent, claim of right, or an authorized transaction. In financial cases, evidence that the elder knowingly authorized the transfer while competent, that the money was a documented gift or loan, or that the defendant reasonably believed in good faith that he or she was entitled to the property negates the theft element. These are complete defenses, not mitigation.

Self-defense and accident. When an elderly parent with dementia becomes combative, a caregiver may use reasonable force to protect himself, herself, or the elder. An injury caused while restraining a patient to prevent a fall, or by an accidental fall during transfer, is not a willful infliction of pain. Pattern instructions on self-defense and accident apply to these charges like any other.

Unlawful searches and statements. Financial records obtained without a proper warrant or subpoena, and statements taken from a caregiver during a custodial interview without warnings, can be suppressed. A motion under Penal Code section 1538.5 or a motion to exclude statements can remove the core of the case. See What Is a 1538.5 Motion and Do Not Say This to Police.

Penalties for Elder Abuse in California

Felony-level physical abuse is a wobbler. A violation of Penal Code section 368, subdivision (b)(1), can be charged as a misdemeanor punishable by up to one year in county jail or as a felony punishable by two, three, or four years in state prison, and the statute also authorizes a fine. The prosecutor chooses at filing, and the court can reduce a felony to a misdemeanor under Penal Code section 17, subdivision (b), at the preliminary hearing, at sentencing, or after probation. Our guide on reducing a felony to a misdemeanor explains how.

Enhancements for great bodily injury or death. When the victim suffers great bodily injury, the statute adds a consecutive term, with a longer term when the victim is 70 or older, and when the abuse proximately causes death the additional term is longer still. These enhancements must be pleaded and proven, and they are frequently the first thing negotiated away in a plea.

Misdemeanor elder abuse and small financial cases. Abuse that was not likely to produce great bodily harm or death under subdivision (c), and financial abuse of $950 or less, are misdemeanors punishable by up to one year in county jail, usually resolved with probation, counseling, restitution, and sometimes a short jail term or work release. Felony financial abuse over $950 carries the same two, three, or four year range as the physical abuse felony, and restitution to the victim is mandatory under Penal Code section 1202.4.

Probation terms are demanding. Expect a no-contact or stay-away order protecting the elder, which may bar you from a parent's home; mandatory counseling; restitution; and, where the victim is a spouse, parent, or other person covered by Family Code section 6211, the possibility of the 52-week batterer intervention program under Penal Code section 1203.097. Judges in Riverside and San Bernardino County take these conditions seriously because the alleged victim is often still dependent on the defendant's family. See How Probation Works in California.

Collateral Consequences of an Elder Abuse Conviction

Elder abuse restraining orders. Separately from the criminal case, the elder, or someone acting for the elder, can seek an Elder or Dependent Adult Abuse Restraining Order under Welfare and Institutions Code section 15657.03 on form EA-100. The order can exclude you from the home, bar contact, and reach financial abuse. A criminal protective order under Penal Code section 136.2 is also standard at arraignment. These orders operate on a lower standard of proof than the criminal case and must be defended on their own. Our restraining order defense page and guide to criminal protective orders explain both.

Careers in healthcare and caregiving. A conviction, and sometimes the arrest alone, can end a career as a nurse, certified nursing assistant, home health aide, or care facility employee. Licensing boards discipline for convictions substantially related to the profession under Business and Professions Code section 490, and background-check rules for licensed care facilities treat elder abuse convictions as disqualifying absent an exemption. Fiduciaries, financial advisers, and conservators face parallel consequences.

Firearms, immigration, and inheritance. A felony conviction carries a lifetime firearm ban under Penal Code section 29800, and some misdemeanor convictions carry a ten-year ban under Penal Code section 29805. For non-citizens, elder abuse convictions can be treated as crimes involving moral turpitude or crimes of violence with severe immigration consequences, and counsel must advise on them under Penal Code section 1016.3. Under Probate Code section 259, a person found liable for physical abuse, neglect, or financial abuse of an elder can be barred from inheriting from that person.

Custody and family court. An elder abuse conviction involving a family member is domestic violence under Family Code section 6211 when the victim is a parent, spouse, or cohabitant, and it can trigger the custody presumption under Family Code section 3044 in a separate custody case. See our child custody page.

How Elder Abuse Cases Move Through Court

Filing. Reports go from Adult Protective Services or law enforcement to the District Attorney, and many counties route elder abuse to a specialized unit. The filing decision is often the best opportunity to present medical records, financial documents, and witness statements that show no crime occurred. See What Prosecutors Look At Before Filing Charges and How Prosecutors Build Criminal Cases.

Arraignment, preliminary hearing, and negotiation. Felony cases proceed to a preliminary hearing under Penal Code section 859b, where the "likely to produce great bodily harm" element and the duty element are tested. Cases are heard at the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the Larson Justice Center in Indio, the San Bernardino Justice Center, the Victorville courthouse for Victorville, Hesperia, and Apple Valley, and the Clara Shortridge Foltz Criminal Justice Center in Los Angeles. Confirm the assignment on the court's website. Offers often move from a felony to a misdemeanor, or from Penal Code section 368 to a non-abuse charge, once the defense has shown the medical or financial explanation. See Should You Take a Plea Deal.

Diversion. Misdemeanor elder abuse is not on the exclusion list in Penal Code section 1001.95, so a judge may grant misdemeanor diversion, and Penal Code section 1001.36 mental health diversion is available for felonies when a qualifying condition contributed to the offense, which is common for caregivers under extreme stress. Completed diversion ends in dismissal. See Misdemeanor Diversion and Mental Health Diversion.

After the case. A conviction with probation can later be dismissed under Penal Code section 1203.4 on form CR-180, and an arrest that did not lead to a conviction can be sealed under Penal Code section 851.91. See How to Expunge a Criminal Record and How to Seal an Arrest Record.

Frequently Asked Questions

Is elder abuse a felony or a misdemeanor in California?

It can be either. Physical abuse or neglect under circumstances likely to produce great bodily harm or death is a wobbler under Penal Code section 368, subdivision (b)(1), punishable as a misdemeanor or by two, three, or four years in state prison. Abuse not likely to produce great bodily harm is a misdemeanor under subdivision (c). Financial abuse over $950 is a wobbler and $950 or less is a misdemeanor.

Can I be charged with elder abuse for neglecting a parent I care for?

Yes, if you had care or custody and acted with criminal negligence. Penal Code section 368 reaches a caregiver who willfully permits an elder's health to be injured or places the elder in danger. The standard is criminal negligence, which is far more than a mistake, and under People v. Heitzman (1994) 9 Cal.4th 189 there must be a legal duty. Medical advice followed, help sought, and the elder's own refusals of care all matter.

What counts as financial elder abuse under Penal Code 368?

Theft, embezzlement, forgery, fraud, or identity theft directed at an elder's or dependent adult's property. Penal Code section 368, subdivisions (d) and (e), require a completed theft-type offense and knowledge that the victim was an elder or dependent adult. Authorized transactions, gifts made with capacity, and good-faith claims of right are defenses.

Does an elder abuse charge come with a restraining order?

Usually yes. The criminal court typically issues a protective order under Penal Code section 136.2 at arraignment, and the elder or a representative can also seek a civil order under Welfare and Institutions Code section 15657.03 on form EA-100. Violating either order is a separate crime under Penal Code section 273.6.

Can elder abuse charges be dropped if my parent does not want to press charges?

The decision belongs to the District Attorney, not the elder. The elder's wishes carry weight, and an elder who is competent and says no abuse occurred is powerful evidence, but the DA can proceed with medical records and other witnesses. The same rules that apply to domestic violence victims who want to drop charges apply here.

Can an elder abuse conviction be expunged?

A misdemeanor or probation-eligible felony conviction can be dismissed under Penal Code section 1203.4 after probation is completed. The dismissal helps with most private employment but does not erase the conviction for licensing boards, firearm prohibitions, or immigration purposes. Felonies can first be reduced under Penal Code section 17, subdivision (b), if the offense was a wobbler.

Gramling Law Group defends elder abuse and related charges at the Riverside Hall of Justice, the Southwest Justice Center, the Larson Justice Center, the San Bernardino Justice Center, the Victorville and Barstow courthouses, and courts throughout the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options so families know the cost before the case begins. Call (909) 654-4575 or contact us through this website for a consultation.