PC 368 (b), (c)

PC 368 (b), (c)

Offense

Elder abuse: Injure, Endanger

Aggravated Felony (AF)

Should not be AF as COV because it is an indivisible statute that can be committed by negligence. Still, try to plead to 364 days or less. See Advice.

Crime Involving Moral Turpitude (CIMT)

Should never be a CIMT because it is an indivisible statute that can be committed by negligence. But best practice is specific plea to negligence. See Advice.

Other Removal Grounds

Not deportable DV offense, unless elder is protected by DV laws and offense is held a COV (which arguably would be incorrect).

Advice and Comments

AF, CIMT. Other than type of victim, PC 368(b), (c) uses the very same statutory language as PC 273a(a), (b) (child abuse). The Ninth Cir found that 273a(a) and (b) can be committed by negligence and are not divisible statutes, and thus that no conviction is a COV.1In considering Pen C § 368, see Ramirez v. Lynch, 810 F.3d 1127, 1133-34 (9th Cir 2016) on the nearly identically worded statute on child endangerment, Pen C § 273a. “Although section 273a(a) requires a mens rea of ‘willful[ness]’ for the three prongs of the statute that criminalize indirect infliction of harm or passive conduct, the California Supreme Court has interpreted ‘willful[ness]’ in this context to require proof only of criminal negligence.” See also CALCRIM 830, requiring negligence for Pen C § 368. No 273a conviction should be a CIMT, for the same reason.

The same findings should apply to 368(b), (c). But to provide more protection, plead specifically to negligent, less egregious conduct, and try to obtain 364 or less.

2020-05-19T18:38:09+00:00Updated January 29th, 2020|