Los Angeles Criminal Lawyers Blog

California Penal Code §368 defines several different forms of abuse against elders that could lead to a conviction. The statute takes elder abuse seriously, because elderly folks are more vulnerable and need to be protected from certain potential harms and abuse.

The statute applies to any person that is the age of 65 or older. The statute also applies to dependent adults. A dependent adult is defined by the statute as "a person between the age of 18 and 64, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights".

The applicable legal section outlines several different forms of abuse, and a range of potential consequences each may incur. The exact sentence will be determined by the Court, based on the specific facts of the case and the criminal history of the person being charged. When the circumstances under which the crime incurred is particular severe, the penalty will be closer to the harsher end of the spectrum. Similarly, if the person has previously been convicted of elder abuse in Los Angeles, it is likely that they will be serving a higher sentence along the range of consequences in comparison to someone who is being tried for their first offense.

One of the major types of abuse outlined by the statute is fraud or embezzlement directed towards elderly or dependent adults. Any person who violates any statute relating to fraud or embezzlement as described in the California Penal Code section that knows, or should have known that the person at whom the act was directed was an elderly person will be charged under CPC §368.

The potential range of consequences differs based on whether the person who is being charged is a caretaker of the elderly or dependent adult. The statute defines a caretaker as 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. This can be the attendants at a retirement community, doctors, nurses or even a family member.

A person who have fraudulently acquired either money, labor, or real and/or personal property exceeding the value of $400 will serve anywhere between one year in county jail and 2 to 4 years in state prison and/or a fine up to $1,000. Caretakers who commit abuse that does not exceed $400, will face up to one year in county jail and/or a fine of up to $1,000.

When a person has been charged with elder abuse, the court will not look favorably upon that person, especially when they are in the role of caretaker. The Court's initial perception might not be a good one, and it will be the task of an experienced Los Angeles Criminal Defense lawyer to present a powerful argument that not only change the Prosecutor's assumption, but also leads to a reduction or dismissal of charges.

California Penal Code §368 specifically outlines the crimes and consequences that are committed against elders. The Legislature feels that crimes committed against elders deserve special consideration because elder's are especially vulnerable and needing of special protection. Unlike children, elders and dependent adults may be "confused, on various medications, mentally or physically impaired or incompetent".

Additionally, elders and dependent adults may not be able to report crimes, file charges or testify to any kind of abuse that may be committed against them. For those reasons, the legislature dedicates specific attention to crimes committed against any elders and/or dependent adults, and outlines a specific set of consequences for those that are convicted.

Elder abuse comes in many different forms, and the applicable penal code sections recognizes each as unlawful.

The first is physical abuse. Any kind of physical abuse directed at an elder will be considered abuse. Anyone who willfully inflicts or permits unjustifiable pain will be charged under Penal code §368. This includes, but is not limited to, hitting, slapping, bruising or restraining by any means.

Emotional abuse will be taken as seriously as physical abuse because elderly people are vulnerable and more prone to the emotional and verbal abuse of others. Under the Penal Code, this abuse will be considered as severe as physical abuse and may be charged under PC §368.

Sexual abuse will also be charged under California Penal Code §368. Any kind of non-consensual sexual contact will trigger legal ramifications and will be taken very seriously by the Courts.

Neglect is another form of elder abuse that is quite common. Neglect will be failure to adequately and properly provide food, shelter, health care or protection to an elder by those responsible for those items. Any person who is responsible for the care of an elder puts them in a situation which can cause physical or mental suffering, or for another to take advantage of their vulnerability may be charged with neglect under the applicable statute.

Similar to neglect, anyone who is responsible for the care of an elderly person or dependent adult who then abandons the person will also be considered to have committed abuse under this statute.

Elderly people are also a lot more prone to being exploited financially. Any person who take advantage of an elderly person through means of illegally taking, misusing, or concealing property, assets or funds so that another can benefit will be charged under the statute of elder abuse.

If you have been charged under and elder abuse charge, the prosecutor's must prove that there was abuse beyond a reasonable doubt, just like any other criminal case. The court's take a serious stance on elder abuse and a person who has been charged should seriously consider having an experienced Los Angeles criminal defense attorney on their side to prepare a powerful argument in their favor. It is a fine line as to what constitutes abuse, and can be argued favorably in either direction. The consequences are significant, and it is in the best interest of the person charged to give it the best chance they have to have it reduced.

If you are involved in a criminal act in Southern California, even if you did not participate directly in the criminal act itself, you may be charged as an accomplice to the crime. Someone who is charged as an accomplice is charged with a lesser sentence than the actual perpetrator, but must go through the criminal justice process just like the person who committed the crime.

They will appear in Court before the Judge at an arraignment, be offered a plea bargain and may choose to plead guilty, not guilty or no contest. If convicted of the charge, they will be given a sentence and must comply with court mandated requirements. The possible consequences may include a fine, probation and possibly even jail time depending on the extent of the theft and the facts of the case.

An accessory to a crime is a person who helps another to commit a crime, either beforehand or during the duration. If the person assists the perpetrator after the fact, then they are considered an accessory after the fact, not an accomplice. An accomplice is a person who helps either before the crime is committed or after. For example, if a person helps another obtain blueprints for a bank that they are planning to rob, that person will be considered an accessory to robbery. In contrast, if a person kills someone then asks another to help hide the body, the person will be an accessory after the fact, because they did not help in committing the criminal act, they helped hide it. In the second example, the assisting was after the crime had been completed, the person did not help in committing the murder.

If a person hires someone to commit a crime, then they will be as liable as the person who actually committed the crime. In this situation, they are not assisting in a crime, they are the sole reason the crime is being committed, at their request. If a person hires another to "rough up" someone who owes them money, then they will be just as liable for assault and/or battery as the person who did the actual criminal act.

There must also be actual involvement before a person can be charged as an accessory. They have to have done an act that contributed to the eventual crime. For example, if a person distracted a store owner so that their friend can steal some items, then that person will be charged as an accomplice to theft. By distracting the store owner, they made it easier for their friend to commit the crime of theft.

However, in situations where the person did not know they were helping their friend commit the act, the person cannot be charged as an accomplice. The person must know or suspect that a crime is being committed. They cannot feign ignorance and not know that they were involved in helping aid the criminal.

An accomplice to a crime is a significant charge and will remain on your record if you are convicted. The standards for what acts constitute aiding are subjective and will be determined by the Court. A knowledgeable Los Angeles Criminal Defense lawyer can assess the facts of your case and determine whether there is a strong charge against you or one that can be dismissed with the properly prepared defense.

Self defense is a defense that may be applicable in certain Southern California assault cases. Whether the defense will apply depends on the specific facts of the case. If a knowledgeable San Diego Criminal Defense attorney is able to argue self defense successfully, then the case may be completely dismissed.

The evaluation of whether self defense will be influential will depend on certain factors that must be met in an assault. If all the elements are not met, then self defense will not apply and the case will go.

It is the prosecutor's job to demonstrate to the Court that the person charged is guilty beyond a reasonable doubt. In an assault case, they must prove each element beyond a reasonable doubt before a person can be found guilty and charged. They will do this by presenting evidence to the Judge and in certain cases, the jury. Evidence may include an officer's report, witness testimony, photographs and any other evidence that was gathered from the scene.

When a defense is asserted by a defendant, the burden to prove the elements of the defense rests on the person being charged. If the person is represented by a San Diego Criminal defense attorney, then the attorney must present the case with the relevant evidence. Evidence that the defense presents will also be in the form of witness testimony, pictures, and evidence gathered at the scene. Oftentimes, the strongest evidence for defense will be witness testimony in an assault case.

For a person to assert self defense they must have had 1)fear of imminent danger, 2)felt that the only way to prevent the danger was to use force, and 3)they must have used a reasonable amount of force.

The self defense examples is best described through the use of two scenarios:
Scenario A: Donna and Victoria find themselves at a restaurant and get into an argument. Without warning, Donna hits Victoria and Victoria, in an effort to protect herself, kicks Donna. Donna ends up falling to the floor and hitting her head.
Scenario B: Donna and Victoria find themselves at a restaurant and get into an argument. Out of nowhere, Donna hits Victoria. Victoria falls to the floor and grabs her purse and takes out a gun and shoots Donna.

Scenario A will be a good case in which Victoria can make an argument for self defense and Scenario B will likely not stand up in court as a defense for several reasons. In Scenario A, the hit from Donna came without warning, and Victoria had imminent danger that she would suffer harm if she did not do anything about it. So in order to prevent Donna from hitting her, she had to kick her to get her away from her. She used the reasonable amount of force necessary to assure Donna would not be able to harm her or that she would not suffer immediate injury.

Scenario B, on the other hand, had the same initial facts, but Victoria had already fallen to the floor. An argument can be made anything Victoria did from there would not have prevented the harm, unless Donna had the intention or showed that she would hit Victoria again. Furthermore, Victoria did not use a reasonable amount of force to prevent the injury. She could have walked away, or possibly pushed Donna away if she felt that there was harm. The use of a gun would not be reasonable.

The facts of each case are unique and need to evaluated by a Southern California Defense Lawyer that has handled thousands of assault cases. Consulting a professional will give you a better idea of what defenses you have available to you.

Self Defense is a defense that may be applicable in certain Los Angeles criminal cases. If a successful self defense assertion can be made, then it provides a complete defense and the case may be dismissed.

In order for self defense to be an appropriate defense, several elements must be met. First and foremost, you must believe that you are in imminent danger. The standard that is used, is that of the reasonable person. The Court will look to determine if a reasonable person in your situation would feel that they were in imminent danger.
For example, let's say that Dan sends Victor an email saying " I hate you, I am going to kill you". Victor then takes his gun, goes over to Dan and shoots him. Victor does not have a self defense argument. When Dan sent the email, he was not in the same room as Victor, and Victor had no reason to believe that his life was in imminent danger. The reasonable person in Victor's situation would not have believe there was any immediate harm to his well being and therefore, the first element of self defense would not be met.
The second element of self defense is that you believe imminent force is necessary to prevent the danger. Meaning, you have to act right away otherwise you will suffer harm.

Lets say that Dan and Victor are in a bar. Dan says that he is going to go down the street to buy some cigarettes, then when he comes back he is going to kill you. You wait until Dan returns, and then you hit him with a beer bottle. In this situation, force was not the only way you could have prevented the harm. You could have left the bar while Dan was gone. Let's say Dan swings at Victor with no warning and Victor reacts by swinging back. In this second example, force is necessary to prevent the harm, because Victor did not have any time to react. The second element of self defense would be met.

The final element of self defense requires that you defend yourself with a reasonable amount of force. This means that you must take into consideration how you are being attacked, and how you respond. If it is unreasonable, then you may not have a valid self defense argument. For example, Dan attacks Victor by socking him. Victor takes out his gun and shoots him. This is unreasonable force and Victor will likely be charged with murder. If Victor had hit back, he would have had a reasonable defense given that the other elements were met.

When you are involved in a Los Angeles assault case, or something similar, be sure to know your options as far as defenses. If an experienced Los Angeles Criminal Defense attorney can assert a valid self defense on your behalf, your case may be dismissed.

In May 2011, actress Lindsay Lohan was charged and convicted of shoplifting. The Judge sentenced her to 480 hours of community service , to be completed by April 2012.

Lohan was scheduled to complete her hours by providing service to the Los Angeles Downtown Woman's shelter. However, the Downtown shelter has recently terminated their agreement with Lohan because she has failed to appear for several shifts and on days that she appeared, only completed a minimal amount of hours. According to Los Angeles District Attorney, Jane Robison, her hours will be transferred from the Woman's shelter to the Red Cross. In addition, Lohan also has 120 hours of janitorial work that she is signed up for at the Los Angeles County Coroner's Office.

To date, the young actress has only completed 21 of the 480 required hours. In addition to not completing required community service hours, Lohan has also not been attending court mandated counseling sessions. Lohan defends that she has missed community service hours and counseling sessions because she has been out of the country possibly filming a movie.

The type of violations committed by Lohan are referred to as Internal Probation Violations. They are violations due to a failure to comply with orders and terms of the probation rather than because of a new criminal charge.

The Judge will review progress on probation service at an upcoming court date. If the adolescent has not been upholding her obligations to the court and the community, there may be additional charges and serious consequences to her already growing list of violations.

The Judge will consider several factors when assessing the progress of the probation sentence. She will consider the seriousness and the nature of the violation. In this case, it is not as serious as some probation violations can be. A serious violation would be committing an additional crime of the same nature while on probation for the another case on the same charge. Another serious violation would be disappearing from town and failing to inform a probation officer while on formal probation.

Lindsay was sentenced to informal probation (where she does not have to check in with a probation officer on set schedule). Therefore, the nature of her violation is not as serious as some other probation violations.

However, that is not to say that the consequences she faces will not be significant. Based on the facts, and Lohan's failure to adhere to her obligations, the Judge will likely not take the situation lightly. In the last 7 months, she has only completed 21 hours of service, whereas she has 480 to complete. Within 7 months, she should have a significant amount of time completed if she is to follow the deadline of April sentenced by the court.

If she does not start to take her obligations more seriously, she may be facing some jail time in lieu of the community service. Jail time may be a part of the penalty for a shoplifting case. A knowledgeable Los Angeles Probation Violation attorney can persuade the Judge to allow the person to complete community service instead of jail time, as long as they can show that they will take their service seriously.

Lindsay Lohan's actions show otherwise and she may be asked to complete some of her community service time as jail time.