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xavierjd
xavierjd, Attorney
Category: Legal
Satisfied Customers: 3400
Experience:  20+ yrs in criminal, landlord/tenant, family, & small claims
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I am falsely being accused of elderly domestic violence. My

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I am falsely being accused of elderly domestic violence. My father has been verbally and physically abusing my mother and I, their daughter stepped forward to stop it. He pushed me twice and each time I pushed him off me. My mother was a witness. He got a scratch on his arm and head in the scuffle and had my sister take pictures after he had smeared blood all over his shirt. They are now threatening to take me to court. May I get a legal perspective on this?
Thank you
Submitted: 2 years ago.
Category: Legal
Expert:  xavierjd replied 2 years ago.
Thanks for using JustAnswer.com It will be my pleasure to assist you.

In order for me to better help answer your question, please provide the following information:

1. What state are you in?

2. Have you ever been convicted of any type of domestic violence or any other assaultive crime in the past?

Thank you.
Customer: replied 2 years ago.
California

NO, I have never been convicted of anything.
Expert:  xavierjd replied 2 years ago.
I'm sorry for the delay. I was researching your answer.

One last question..... have you been charged with "domestic violence" or "elder abuse" which includes domestic violence?

Thanks
Customer: replied 2 years ago.
never. I was simply trying to protect my mother. She was there and is my witness. I am being falsely accused because he is mad that I am exposing his abuse to my family.
Expert:  xavierjd replied 2 years ago.
I understand from your post that you are being falsely accused of domestic violence.

But....my question is, have you been CHARGED with a crime yet? If so, what is the EXACT charge?

Thanks
Customer: replied 2 years ago.
I'm sorry I misunderstood. No I have not been charged with anything yet. My sister has said she is going to pursue a charge but that is all I know. The incident happened 2 days ago on the 1st.
Expert:  xavierjd replied 2 years ago.
Thanks for the information.

It is VERY important that you seek the advice on an attorney in your area who specializes in criminal law. Sometimes, an initial consultation is free or at a minimal charge. You can discuss the specific facts of your case and evaluate your options. Sometimes, an attorney will get involved for his/her client "pre-charge" to try to work with law enforcement to stop charges from being sent to the prosecutor for authorization. Also, if by chance, you are charged, an attorney will advise you as to your rights.

Below is a review of the laws on domestic violence and the possible penalties. That is why it is necessary to consult with a criminal law attorney ASAP so that you avoid making any mistakes if you are charged. Hopefully, however, that won't happen because the police and prosecutor will see that you were only defending your mother against abuse by your father.

Many attorney will advise you to DO NOT SPEAK TO THE POLICE until you speak to an attorney. The police may want you to "come in to the station and tell your side of the story, or make a statement." However, sometimes, you may make a statement, unknowingly, that can be used against you. An attorney will either attend any interview with law enforcement, or advise you not to speak to police. You have a constitutional right not to do so. Another reason for not speaking to law enforcement without the advice of counsel is that the police may NOT have enough evidence to charge you, but may try to get information from you that can allow them to present the case to the prosecutor to request authorization of charges.

Below is information regarding "domestic violence" charges, and the possible penalties that may apply if you were to be convicted.

What Is Domestic Violence under California Law?

California domestic violence laws are governed by how the terms “domestic” and “abuse” are defined in the statutes.

To be found guilty of domestic abuse you must commit “abuse” to someone you have a “domestic” relationship with.

Many people are surprised that the alleged victim in the case does not have to be a spouse or family member for the crime to be considered domestic.

Any of the following relationships could be considered domestic:

  • Spouse or former spouse
  • Someone you are dating
  • Someone you formerly dated
  • Roommate or former roommate
  • Parent of your child
  • Family including parents, siblings, aunts, uncles, nieces, nephews and 1st cousins

Under California statute, abuse is defined as: intentionally or recklessly causing or attempting to cause bodily injury, sexual assault, or placing a person in reasonable fear of imminent serious bodily injury.

Reference: California Family Code Division 10

Does that mean I can be found guilty of domestic abuse without even touching someone?

The short answer is yes. What may have seemed like empty threats in a time of anger, can misinterpreted by the alleged victim and be considered domestic abuse under California law.

What if a person wants to drop the charges once they are authorized by the prosecutor?

In domestic violence cases, it is very rare to near impossible for the alleged victim to get the charges dropped. Even if she (or he) wants to forgive and forget, the state prosecutor may not be so forgiving.

Once the charges are filed the prosecution for the state takes over the case and has the final say in if charges are dropped.

Is domestic violence a felony or misdemeanor?

Under California law, domestic violence cases are handled by a domestic violence unit with special prosecutors who only handle these types of cases. The prosecutor in your case decides if your domestic violence charge will be a misdemeanor or a felony.


How the prosecutor decides to charge you depends mostly on the circumstances of the alleged crime. If there were serious injuries involved, the chance is good that you will be charged with a felony. However, if there were only threats or minor injuries you may get charged with a misdemeanor.

What are California’s Domestic Violence Penalties?

I’m sure you are worried about what can happen to you. The penalties in sentencing if you are convicted of a domestic violence charge are severe. A well planned and expert legal defense can minimize the risk of the harshest penalties.

Your potential sentence depends on if the prosecutor opted to charge you with a felony or a misdemeanor.

Misdemeanor
  • 52 week domestic violence counseling
  • 40 hours community service
  • Fines
  • Up to 6 months in jail
Felony
  • 52 week domestic violence counseling
  • 40 hours community service
  • Fines
  • 3 months to 3 years in prison

http://www.mycaliforniadefenselawyer.com/criminal-charges/california-domestic-violence-laws/
California Elder Abuse Laws
Penal Code 368 PC

California "elder abuse" law covers a variety of crimes and can occur in a variety of situations. "Elder abuse" can be in the form of


  • physical abuse (infliction of unjustifiable pain or injury on a senior victim),


  • emotional abuse (sometimes seen in the form of mental suffering through isolation or ridicule),


  • neglect and endangerment (willfully placing the elder or dependent adult in a situation where his/her health or safety is endangered)

  • and/or


  • financial fraud (which is discussed in our related article on California Senior Fraud & Elder Financial Abuse),

when it is directed at anyone over 65 years of age.1


Because California elder abuse law is complex...and is an area of the law that is ripe for false accusations and wrongful arrests...it is important to consult with an attorney who has experience handling these types of offenses.

 

888.327.4652 | 24/7 Fraud Consultations California Elder Abuse Laws
Penal Code 368 PC

California "elder abuse" law covers a variety of crimes and can occur in a variety of situations. "Elder abuse" can be in the form of


  • physical abuse (infliction of unjustifiable pain or injury on a senior victim),


  • emotional abuse (sometimes seen in the form of mental suffering through isolation or ridicule),


  • neglect and endangerment (willfully placing the elder or dependent adult in a situation where his/her health or safety is endangered)

  • and/or


  • financial fraud (which is discussed in our related article on California Senior Fraud & Elder Financial Abuse),

when it is directed at anyone over 65 years of age.


Because California elder abuse law is complex...and is an area of the law that is ripe for false accusations and wrongful arrests...it is important to consult with an attorney who has experience handling these types of offenses.

Having prosecuted and successfully defended against California elder abuse crimes, our criminal defense lawyers understand the most effective ways to fight your elder abuse charges.

In an effort to help you better understand the specifics of California elder abuse law, this will address the following:


 

What is Elder Abuse?

Elder abuse (sometimes interchangeably referred to as "senior abuse") is on the rise, affecting people from every social, economic, and ethnic background. Those accused of violating California elder abuse laws are typically either family members of (or caregivers for) the alleged elderly victim.

Under California Penal Code 368, elder abuse consists of


  • physical abuse (which includes inflicting physical injuries and/or sexual abuse, neglect, abandonment, and abduction),


  • financial abuse (which is committed via fraud or theft), or


  • any other treatment that results in physical and/or mental pain or suffering.

Why do elders receive increased protection?

The California Legislature first addressed elder abuse in the early 1980's. The Legislature acknowledged in 1982 that "dependent adults" are frequently confused, medicated, and/or otherwise mentally or physically impaired. Because of this...and the related fact that they are therefore less able to protect themselves and/or to understand or report criminal conduct...they should receive special legal protection.

Then in 1983...in response to a request from the Santa Ana Police Department...the Legislature enacted Penal Code 368 PC. Law enforcement agencies requested this statute because they didn't have a Penal Code section that allowed them to prosecute those who were reportedly abusing or neglecting "dependent adults".

Recognizing that "dependent adults" are often as vulnerable as children when it comes to being abused, lawmakers simply used the same language that they had previously used for child abuse statutes, simply replacing the word "child" with the term "dependent adults".

Finally in 1986, the Legislature amended Penal Code 368 PC to include "elders" as well as dependent adults. This amendment expanded the scope of coverage from "dependent adults" who, because of age, were unable to care for their own personal needs, now to any person over 65, regardless of his/her mental or physical abilities.

Today, both classes of persons receive this special protection under California elder abuse law.

Reporting and prosecuting criminal elder abuse charges

Many prosecuting agencies have special units that handle California's elder abuse charges. These units "vertically" prosecute these special cases, which means that a specially trained deputy prosecutor will oversee the entire case, from beginning to end.

Many of these agencies (such as the Orange County District Attorney's Office) provide telephone numbers to their elder abuse units so that the public can directly report suspected criminal activity. However, most elder abuse cases are referred to these agencies by the police.

The police receive elder abuse complaints from a variety of sources...from concerned family members or friends of the alleged elderly victim...from Adult Protective Services...and from doctors or other caregivers.

Once the prosecuting agency receives the report, it must decide whether to file or reject the charges...or whether to instruct a detective to investigate the allegations further.

As Riverside criminal defense lawyer Michael Scafiddi explains, "Elder abuse allegations...like many other California crimes...are frequently directed at innocent individuals. Sometimes the alleged elderly victim is confused and makes unfounded claims. Sometimes an angry or jealous family member reports another family member in order to gain control over the senior citizen's finances. And sometimes well-meaning friends or family report a caregiver without sufficient justification."

Who decides which agency prosecutes a reported elder abuse case?

It depends. Factors include


  • where the alleged elder abuse takes place,


  • whether the offense is a felony or a misdemeanor, and


  • the exact type of abuse that is alleged.

Some special elder abuse enforcement units will only prosecute felony senior abuse allegations. Similarly, some agencies will only handle misdemeanor elder abuse allegations. Some, like the California Attorney General, will only handle California elder abuse cases that involve nursing homes or other residential treatment facilities.

And while physical, emotional, and financial elder abuse are all prosecuted as criminal acts, some of the elder abuse task forces limit themselves even within these areas.

 

An on that note, this focuses on physical elder abuse.

 

Similarly, this only addresses California's criminal elder abuse laws. It is important to recognize that violating California's elder abuse laws can subject an offender to both civil and criminal penalties.

If someone is suing you for personal injury or wrongful death charges arising out of allegations of senior abuse, it is advisable to speak with a California civil defense attorney as well.

How Do Prosecutors Prove that I am Guilty of Violating California Elder Abuse Law?

In order to convict you of violating California's elder abuse laws under Penal Code 368 PC, the prosecutor must prove the following facts (otherwise known as "elements of the crime"):


  1. that you willfully or negligently either (a) personally subjected an elder to unjustifiable physical pain or mental suffering or (b) allowed another person to do so,


  2. that your conduct occurred under circumstances that were likely to produce great bodily injury or death, and


  3. that you knew or reasonably should have known that the alleged victim was an elder.

∗The above elements are for felony elder abuse cases. If the prosecution has charged you with misdemeanor elder abuse, in lieu of the second element, the prosecutor must prove that your conduct occurred under circumstances that may have endangered the life or health of the elder.

Let's take a closer look at some of these elements to better understand California elder abuse law.

Willfully

If you do something willfully, you do it deliberately or on purpose.

For example, if you intentionally hit an elder patient out of frustration, you have willfully abused that individual.

With respect to elder abuse, the act can be either willful or negligent.

Criminal negligence

Criminal negligence is more than ordinary carelessness or a mistake in judgment. For purposes of violating California's elder abuse law, you act negligently when you act so unreasonably that your actions reflect a disregard for human life.

For example, a helpless 79-year-old mother resided with her daughter. During a two-week period, the daughter reportedly failed to feed, clean, or move her mother, leaving her literally to rot away. The daughter was convicted of California Penal Code 368 felony elder abuse because her conduct was "criminally negligent".

It is important to understand that prosecutors can only convict you of elder abuse by criminal negligence if you have a legal duty to act.

This is one of the reasons why we say that elder abuse law is complex. Even thought it might appear as though you have a legal duty to intervene, that's not always the case...which is why consulting with a California criminal defense attorney who has expertise defending elder abuse cases is critical.

Take, for example, a case where an elderly father was found dead in his bedroom in his son's home. The victim was found lying on a mattress that was rotted through from constant wetness (exposing the metal springs). He also had bed sores on 1/6 of his body. The forensic pathologist determined that he had died from septic shock due to the sores, caused by malnutrition, dehydration, and severe neglect.

Prosecutors filed charges against the elderly man's two sons (who resided in the home), as well as the man's daughter who did not live there, but who occasionally visited and who expressed concern about her father's condition.

The Supreme Court of California held that...while the daughter certainly had a moral duty to report her father's abuse...she had no legal duty to control her brother's behavior, and therefore wasn't guilty of Penal Code 368 PC. Based on that reasoning, the court reversed her conviction for elder abuse.

Unjustifiable pain or mental suffering

Unjustifiable pain or mental suffering is just that...pain or suffering that isn't necessary or that is excessive under the circumstances.

Circumstances likely to produce great bodily harm

"Great bodily harm" means a significant or substantial injury. It does not refer to trivial or insignificant harm.

However, it is important to understand that it isn't necessary that the elder actually suffer great bodily harm...only that the elder be placed in a situation where he/she was likely to suffer such an injury.

For example, if you are a caregiver, and refuse to give your elderly patient anymore of his necessary heart medications, the effects may not be immediate. However, withholding the drugs is likely to cause a substantial injury...and would therefore be enough to charge you with felony elder abuse.

Penalties, Punishment, and Sentencing for California Penal Code 368 PC

Elder abuse is a "wobbler" which means that prosecutors can charge it either as a misdemeanor or as a felony. The most important considerations in making this decision include


  1. the facts of your specific case, and


  2. your criminal history.

Misdemeanor elder abuse

If convicted of California Penal Code 368 misdemeanor elder abuse, you face:


  • informal probation (otherwise known as summary probation),


  • a maximum one-year county jail sentence,


  • a maximum fine of $6,000 (or $10,000 for a second or subsequent offense),


  • restitution to the victim, and


  • counseling.

Felony elder abuse

If convicted of California Penal Code 368 felony elder abuse, you face:



How Do I Defend Against California Elder Abuse Charges?

Elder abuse charges are often falsely alleged against innocent people. Sometimes these allegations are intentionally fraudulent. But other times, these false charges result because seniors frequently suffer from conditions and diseases that mimic the signs of physical abuse and neglect.

To compound this problem further, social workers, police, and even doctors, aren't always trained to distinguish between signs of abuse and signs of accident, illness, or age...but they are required to report suspected abuse.

 

If any of these individuals (or other "mandated reporters") fail to report suspected abuse or neglect, they can face their own criminal charges...but face no ramifications if they are wrong. As a result, often times these people report suspected abuse with little support or investigation in an effort to protect themselves against criminal liability.

Fortunately, there are a variety of defenses that a California criminal defense lawyer can present on your behalf in an effort to either reduce or dismiss your elder abuse charges. The following are some of the most common.

The injury was the result of an accident

If you didn't willfully injure the elder victim and your conduct didn't rise to the level of criminal negligence, prosecutors can't convict you of violating California elder abuse law.

This means that if you accidentally injure an elder...perhaps you unintentionally drop her while you are transferring her from her wheel chair to her bed, which causes her to break her hip...you aren't guilty of elder abuse.

False accusations / wrongful arrest

As previously stated, there are a number of reasons why someone may have falsely accused you of elder abuse. Sometimes jealous family members accuse a caregiver of abuse, because the elder has bestowed large sums of money or other gifts upon that individual. Perhaps the allegations were honestly made, but the injuries simply weren't the result of abuse.

Mistaken identity

Along these same lines, you may have been falsely accused based on a case of mistaken identity. It could very well be that the senior in question was abused...just not by you. If, for example, you are the primary caregiver, others would probably assume that you were responsible.

Similarly, if, for example, you and your elderly parent were at odds about the elder's estate...and soon after the argument, the elder showed signs of abuse...other family members may incorrectly assume that you were the abuser.

Insufficient evidence

In order to convict you of elder abuse, the prosecutor must prove "beyond a reasonable doubt" that you are guilty. This means that there is no reasonable explanation for the elder's injuries other than the fact that you abused him or her.

If there is nothing to corroborate the alleged abuse or neglect, your California criminal defense attorney may be able to cast a reasonable doubt as to your guilt.

Many times defense lawyers will call in an expert to testify that the alleged signs of abuse were more consistent with illness or age. Sometimes an expert (or other witnesses) will testify that the elder is paranoid, delusional, or even senile, and that his/her accusations are not based on real facts.

If you are accused of neglecting the elder (which placed him in a harmful situation), you could bring in evidence to demonstrate how you've routinely cared for him. Provide receipts for drugs, heating and air conditioning bills, records from doctor visits...anything revealing that you are not guilty of neglect, but rather have more than adequately cared for the alleged elder victim.

And even if you are guilty of elder abuse...and there's no way to get around that fact...try to gain empathy and explain that

The abuse was an isolated incident

Anyone who has cared for an elderly person...especially an elderly relative...understands the physical and emotional demands that you face on a regular (if not daily) basis.

If you can convince the judge, prosecutor, and/or jury that your actions were an isolated (and unintentional) event, triggered by an emotional breakdown, you may garner sympathy...and a lesser or reduced charge and/or sentence.

California Elder Abuse Law and Related Offenses

Depending on the circumstances of the alleged offense, there are a variety of crimes that may be closely related to Penal Code 368, either because


  1. they share elements with elder abuse, or


  2. because they are frequently committed in connection with elder abuse.

Examples of these offenses include (but are by no means limited to) the following:

Penal Code 242 PC "battery"

California Penal Code 242 PC battery is the unlawful and willful use of force or violence upon another. If you intentionally commit physical elder abuse, prosecutors could charge you with both elder abuse and battery.

 

Penal Code 422 "criminal threats"

If you


  1. threaten to harm an elder,


  2. the elder is actually placed in fear, and


  3. you actually carry out your threat and inflict an injury on the elder,

prosecutors could charge you with elder abuse and California Penal Code 422 PC criminal threats.

California domestic violence laws

If you are accused of elder abuse and the elder is your spouse, significant other, parent, grandparent, or roommate, prosecutors could charge you with elder abuse under California's domestic violence laws.

 

As you can see, violating California's elder abuse laws subjects you to a variety of offenses and a variety of penalties. As a result, it is imperative that you consult with a defense attorney who understands the complex issues that California elder abuse charges often trigger. http://www.shouselaw.com/elder_abuse_defense.html#prove

 

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xavierjd, Attorney
Category: Legal
Satisfied Customers: 3400
Experience: 20+ yrs in criminal, landlord/tenant, family, & small claims
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