Penal Code 368 is California’s elder-abuse law. The misdemeanor version, subdivision (c), covers willfully causing an elder or dependent adult to suffer, or endangering them, under circumstances not likely to produce great bodily harm or death.
The felony version, subdivision (b), applies when the circumstances are likely to produce great bodily harm or death.
What PC 368(c) Says
PC 368(c) reaches a person who knows or reasonably should know that someone is an elder or dependent adult and willfully causes or permits them to suffer unjustifiable physical pain or mental suffering, or willfully causes or permits injury or endangerment — under circumstances not likely to produce great bodily harm or death. The willfulness requirement is central: neglect that is not willful, or an accident, is not this crime.
Penalties
PC 368(c) is a misdemeanor. A first offense carries the default misdemeanor penalty under Penal Code § 19: up to six months in county jail and/or a $1,000 fine. A second or subsequent violation is punishable by up to one year in county jail and/or a $2,000 fine. Elder-abuse cases also frequently involve protective orders and civil Adult Protective Services proceedings running alongside the criminal case.
Defenses
- Not willful. The conduct has to be willful — an accident, a good-faith caregiving decision, or a genuine misunderstanding is not elder abuse.
- False or exaggerated allegation. These cases often arise from family conflict, inheritance disputes, or the cognitive decline of the alleged victim.
- No suffering or endangerment of the kind the statute requires.
- judicial diversion (PC 1001.95) and mental health diversion (PC 1001.36) may resolve an eligible case without a conviction.
Frequently Asked Questions
Is elder abuse a felony or a misdemeanor in California?
PC 368 can be either. Subdivision (c) is the misdemeanor version, for conduct under circumstances not likely to produce great bodily harm or death. Subdivision (b) is the felony version, for circumstances that are likely to produce great bodily harm or death.
What does the prosecution have to prove for misdemeanor elder abuse?
That the person knew or should have known the victim was an elder or dependent adult, and willfully caused or permitted them to suffer unjustifiable pain or mental suffering, or willfully endangered them — under circumstances not likely to produce great bodily harm. Willfulness is required.
What are the defenses to a PC 368 elder-abuse charge?
That the conduct was not willful (an accident or a good-faith caregiving decision), that the allegation is false or exaggerated (these cases often arise from family or inheritance conflict), or that there was no suffering or endangerment of the kind the statute requires.
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Ahmed S. Hasan
San Francisco Criminal Defense Attorney · State Bar of California #364992
Ahmed S. Hasan is the founder of ASH Legal, a solo criminal defense practice based in San Francisco. The firm runs on flat-fee representation: one lawyer, one fee, from arraignment through resolution. No hourly billing. No surprise invoices.
Ahmed is a graduate of Emory University School of Law and a member in good standing of the State Bar of California (Bar #364992). His practice focuses on San Francisco misdemeanor defense — DUI, domestic violence, petty theft and shoplifting, drug possession, vandalism, trespassing, and assault and battery — with particular attention to diversion-track outcomes that end in dismissal under PC 1001.95, PC 1001.36 (Mental Health Diversion), PC 1001.80 (Military Diversion), and PC 1001.83 (Parental Caregiver Diversion).
Ahmed previously served as a post-bar clerk with the San Francisco Public Defender's Office, the city's largest indigent-defense practice. He is a member of the Asian Pacific American Bar Association of Silicon Valley.
He represents clients at the San Francisco Hall of Justice (850 Bryant Street) and the Civic Center Courthouse. The ASH Legal office is at 15 Boardman Place, Suite 301, San Francisco, CA 94103.
Free 30-minute consultations are available by phone or Zoom. (510) 545-6515 · ahmed@ashlegal.com