BILL NUMBER: AB 2611 CHAPTERED
BILL TEXT
CHAPTER 886
FILED WITH SECRETARY OF STATE SEPTEMBER 29, 2004
APPROVED BY GOVERNOR SEPTEMBER 29, 2004
PASSED THE ASSEMBLY AUGUST 25, 2004
PASSED THE SENATE AUGUST 23, 2004
AMENDED IN SENATE AUGUST 9, 2004
AMENDED IN SENATE JULY 6, 2004
AMENDED IN SENATE JUNE 28, 2004
AMENDED IN SENATE JUNE 16, 2004
AMENDED IN ASSEMBLY MAY 24, 2004
AMENDED IN ASSEMBLY MAY 5, 2004
AMENDED IN ASSEMBLY APRIL 27, 2004
AMENDED IN ASSEMBLY APRIL 16, 2004
AMENDED IN ASSEMBLY APRIL 1, 2004
INTRODUCED BY Assembly Member Simitian
FEBRUARY 20, 2004
An act to amend Section 368 of the Penal Code, and to amend
Sections 15656 and 15657 of, and to add Section 15657.5 to, the
Welfare and Institutions Code, relating to elder and dependent adult
abuse.
LEGISLATIVE COUNSEL'S DIGEST
AB 2611, Simitian. Elder and dependent adult abuse.
(1) Existing law proscribes crimes against elder and dependent
adults involving physical and financial abuse.
Existing law establishes criminal penalties for the willful abuse
of an elder or dependent adult, when the person who permits or
inflicts the abuse has knowledge that the victim is an elder or
dependent adult.
Under existing law, with respect to theft, embezzlement, forgery,
fraud, or identity theft perpetrated against an elder or dependent
adult by certain persons, the applicable fine or imprisonment is
determined based on whether the money, labor, goods, services, or
real or personal property taken or obtained exceeds a value of $400.
This bill would make technical changes to these provisions. This
bill would also raise the $400 threshold amount to $800, only if AB
2705 is enacted and becomes effective on or before January 1, 2005.
This bill would provide that in any case in which a person is
convicted of violating these provisions the court may order, as a
condition of probation, that the defendant be placed in an
appropriate counseling program. This bill would require the
defendant to pay the expense of his or her participation in the
counseling program, as specified.
By changing the definition of an existing crime and increasing
probation supervision duties, this bill would impose a state-mandated
local program.
(2) Existing law includes provisions relating to the award of
attorney's fees and costs, and damages to a plaintiff, when it is
proven by clear and convincing evidence that a defendant is liable
for physical abuse, neglect, or financial abuse, and the defendant
has also been guilty of recklessness, oppression, fraud, or malice in
the commission of the abuse.
This bill would revise these provisions to change the standard of
proof for the commission of financial abuse to a preponderance of the
evidence, but to permit additional recovery where there is clear and
convincing evidence of recklessness, oppression, fraud, or malice.
(3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 368 of the Penal Code is amended to read:
368. (a) The Legislature finds and declares that crimes against
elders and dependent adults are deserving of special consideration
and protection, not unlike the special protections provided for minor
children, because elders and dependent adults may be confused, on
various medications, mentally or physically impaired, or incompetent,
and therefore less able to protect themselves, to understand or
report criminal conduct, or to testify in court proceedings on their
own behalf.
(b) (1) Any person who knows or reasonably should know that a
person is an elder or dependent adult and who, under circumstances or
conditions likely to produce great bodily harm or death, willfully
causes or permits any elder or dependent adult to suffer, or inflicts
thereon unjustifiable physical pain or mental suffering, or having
the care or custody of any elder or dependent adult, willfully causes
or permits the person or health of the elder or dependent adult to
be injured, or willfully causes or permits the elder or dependent
adult to be placed in a situation in which his or her person or
health is endangered, is punishable by imprisonment in a county jail
not exceeding one year, or by a fine not to exceed six thousand
dollars ($6,000), or by both that fine and imprisonment, or by
imprisonment in the state prison for two, three, or four years.
(2) If in the commission of an offense described in paragraph (1),
the victim suffers great bodily injury, as defined in Section
12022.7, the defendant shall receive an additional term in the state
prison as follows:
(A) Three years if the victim is under 70 years of age.
(B) Five years if the victim is 70 years of age or older.
(3) If in the commission of an offense described in paragraph (1),
the defendant proximately causes the death of the victim, the
defendant shall receive an additional term in the state prison as
follows:
(A) Five years if the victim is under 70 years of age.
(B) Seven years if the victim is 70 years of age or older.
(c) Any person who knows or reasonably should know that a person
is an elder or dependent adult and who, under circumstances or
conditions other than those likely to produce great bodily harm or
death, willfully causes or permits any elder or dependent adult to
suffer, or inflicts thereon unjustifiable physical pain or mental
suffering, or having the care or custody of any elder or dependent
adult, willfully causes or permits the person or health of the elder
or dependent adult to be injured or willfully causes or permits the
elder or dependent adult to be placed in a situation in which his or
her person or health may be endangered, is guilty of a misdemeanor.
A second or subsequent violation of this subdivision is subject to a
fine not to exceed two thousand dollars ($2,000), or by imprisonment
in a county jail not to exceed one year, or by both that fine and
imprisonment.
(d) Any person who is not a caretaker who violates any provision
of law proscribing theft, embezzlement, forgery, or fraud, or who
violates Section 530.5 proscribing identity theft, with respect to
the property or personal identifying information of an elder or a
dependent adult, and who knows or reasonably should know that another
person is an elder or dependent adult, is subject to imprisonment in
a county jail not exceeding one year, or in the state prison for
two, three, or four years, when the money, labor, goods, services, or
real or personal property taken or obtained is of a value exceeding
four hundred dollars ($400); and by a fine not exceeding one thousand
dollars ($1,000), by imprisonment in a county jail not exceeding one
year, or by both that fine and imprisonment, when the money, labor,
goods, services, or real or personal property taken or obtained is of
a value not exceeding four hundred dollars ($400).
(e) Any caretaker of an elder or a dependent adult who violates
any provision of law proscribing theft, embezzlement, forgery, or
fraud, or who violates Section 530.5 proscribing identity theft, with
respect to the property or personal identifying information of that
elder or dependent adult, is subject to imprisonment in a county jail
not exceeding one year, or in the state prison for two, three, or
four years when the money, labor, goods, services, or real or
personal property taken or obtained is of a value exceeding four
hundred dollars ($400), and by a fine not exceeding one thousand
dollars ($1,000), by imprisonment in a county jail not exceeding one
year, or by both that fine and imprisonment, when the money, labor,
goods, services, or real or personal property taken or obtained is of
a value not exceeding four hundred dollars ($400).
(f) Any person who commits the false imprisonment of an elder or a
dependent adult by the use of violence, menace, fraud, or deceit is
subject to imprisonment in the state prison for two, three, or four
years.
(g) As used in this section, "elder" means any person who is 65
years of age or older.
(h) As used in this section, "dependent adult" means any person
who is between the ages 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, including, but not
limited to, persons who have physical or developmental disabilities
or whose physical or mental abilities have diminished because of age.
"Dependent adult" includes any person between the ages of 18 and 64
who is admitted as an inpatient to a 24-hour health facility, as
defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety
Code.
(i) As used in this section, "caretaker" means any person who has
the care, custody, or control of, or who stands in a position of
trust with, an elder or a dependent adult.
(j) Nothing in this section shall preclude prosecution under both
this section and Section 187 or 12022.7 or any other provision of
law. However, a person shall not receive an additional term of
imprisonment under both paragraphs (2) and (3) of subdivision (b) for
any single offense, nor shall a person receive an additional term of
imprisonment under both Section 12022.7 and paragraph (2) or (3) of
subdivision (b) for any single offense.
(k) In any case in which a person is convicted of violating these
provisions, the court may require him or her to receive appropriate
counseling as a condition of probation. Any defendant ordered to be
placed in a counseling program shall be responsible for paying the
expense of his or her participation in the counseling program as
determined by the court. The court shall take into consideration the
ability of the defendant to pay, and no defendant shall be denied
probation because of his or her inability to pay.
SEC. 1.5. Section 368 of the Penal Code is amended to read:
368. (a) The Legislature finds and declares that crimes against
elders and dependent adults are deserving of special consideration
and protection, not unlike the special protections provided for minor
children, because elders and dependent adults may be confused, on
various medications, mentally or physically impaired, or incompetent,
and therefore less able to protect themselves, to understand or
report criminal conduct, or to testify in court proceedings on their
own behalf.
(b) (1) Any person who knows or reasonably should know that a
person is an elder or dependent adult and who, under circumstances or
conditions likely to produce great bodily harm or death, willfully
causes or permits any elder or dependent adult to suffer, or inflicts
thereon unjustifiable physical pain or mental suffering, or having
the care or custody of any elder or dependent adult, willfully causes
or permits the person or health of the elder or dependent adult to
be injured, or willfully causes or permits the elder or dependent
adult to be placed in a situation in which his or her person or
health is endangered, is punishable by imprisonment in a county jail
not exceeding one year, or by a fine not to exceed six thousand
dollars ($6,000), or by both that fine and imprisonment, or by
imprisonment in the state prison for two, three, or four years.
(2) If in the commission of an offense described in paragraph (1),
the victim suffers great bodily injury, as defined in Section
12022.7, the defendant shall receive an additional term in the state
prison as follows:
(A) Three years if the victim is under 70 years of age.
(B) Five years if the victim is 70 years of age or older.
(3) If in the commission of an offense described in paragraph (1),
the defendant proximately causes the death of the victim, the
defendant shall receive an additional term in the state prison as
follows:
(A) Five years if the victim is under 70 years of age.
(B) Seven years if the victim is 70 years of age or older.
(c) Any person who knows or reasonably should know that a person
is an elder or dependent adult and who, under circumstances or
conditions other than those likely to produce great bodily harm or
death, willfully causes or permits any elder or dependent adult to
suffer, or inflicts thereon unjustifiable physical pain or mental
suffering, or having the care or custody of any elder or dependent
adult, willfully causes or permits the person or health of the elder
or dependent adult to be injured or willfully causes or permits the
elder or dependent adult to be placed in a situation in which his or
her person or health may be endangered, is guilty of a misdemeanor.
A second or subsequent violation of this subdivision is punishable by
a fine not to exceed two thousand dollars ($2,000), or by
imprisonment in a county jail not to exceed one year, or by both that
fine and imprisonment.
(d) Any person who is not a caretaker who violates any provision
of law proscribing theft, embezzlement, forgery, or fraud, or who
violates Section 530.5 proscribing identity theft, with respect to
the property or personal identifying information of an elder or a
dependent adult, and who knows or reasonably should know that the
victim is an elder or a dependent adult, is subject to imprisonment
in a county jail not exceeding one year, or in the state prison for
two, three, or four years, when the money, labor, goods, services, or
real or personal property taken or obtained is of a value exceeding
eight hundred dollars ($800); and by a fine not exceeding one
thousand dollars ($1,000), by imprisonment in a county jail not
exceeding one year, or by both that fine and imprisonment, when the
money, labor, goods, services, or real or personal property taken or
obtained is of a value not exceeding eight hundred dollars ($800).
(e) Any caretaker of an elder or a dependent adult who violates
any provision of law proscribing theft, embezzlement, forgery, or
fraud, or who violates Section 530.5 proscribing identity theft, with
respect to the property or personal identifying information of that
elder or dependent adult, is subject to imprisonment in a county jail
not exceeding one year, or in the state prison for two, three, or
four years when the money, labor, goods, services, or real or
personal property taken or obtained is of a value exceeding eight
hundred dollars ($800), and by a fine not exceeding one thousand
dollars ($1,000), by imprisonment in a county jail not exceeding one
year, or by both that fine and imprisonment, when the money, labor,
goods, services, or real or personal property taken or obtained is of
a value not exceeding eight hundred dollars ($800).
(f) Any person who commits the false imprisonment of an elder or a
dependent adult by the use of violence, menace, fraud, or deceit is
subject to imprisonment in the state prison for two, three, or four
years.
(g) As used in this section, "elder" means any person who is 65
years of age or older.
(h) As used in this section, "dependent adult" means any person
who is between the ages 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, including, but not
limited to, persons who have physical or developmental disabilities
or whose physical or mental abilities have diminished because of age.
"Dependent adult" includes any person between the ages of 18 and 64
who is admitted as an inpatient to a 24-hour health facility, as
defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety
Code.
(i) As used in this section, "caretaker" means any person who has
the care, custody, or control of, or who stands in a position of
trust with, an elder or a dependent adult.
(j) Nothing in this section shall preclude prosecution under both
this section and Section 187 or 12022.7 or any other provision of
law. However, a person shall not receive an additional term of
imprisonment under both paragraphs (2) and (3) of subdivision (b) for
any single offense, nor shall a person receive an additional term of
imprisonment under both Section 12022.7 and paragraph (2) or (3) of
subdivision (b) for any single offense.
SEC. 2. Section 15656 of the Welfare and Institutions Code is
amended to read:
15656. (a) Any person who knows or reasonably should know that a
person is an elder or dependent adult and who, under circumstances or
conditions likely to produce great bodily harm or death, willfully
causes or permits any elder or dependent adult to suffer, or inflicts
unjustifiable physical pain or mental suffering upon him or her, or
having the care or custody of any elder or dependent adult, willfully
causes or permits the person or health of the elder or dependent
adult to be injured, or willfully causes or permits the elder or
dependent adult to be placed in a situation such that his or her
person or health is endangered, is punishable by imprisonment in the
county jail not exceeding one year, or in the state prison for two,
three, or four years.
(b) Any person who knows or reasonably should know that a person
is an elder or dependent adult and who, under circumstances or
conditions other than those likely to produce great bodily harm or
death, willfully causes or permits any elder or dependent adult to
suffer, or inflicts unjustifiable physical pain or mental suffering
on him or her, or having the care or custody of any elder or
dependent adult, willfully causes or permits the person or health of
the elder or dependent adult to be injured or willfully causes or
permits the elder or dependent adult to be placed in a situation such
that his or her person or health may be endangered, is guilty of a
misdemeanor.
(c) Any caretaker of an elder or a dependent adult who violates
any provision of law prescribing theft or embezzlement, with respect
to the property of that elder or dependent adult, is punishable by
imprisonment in the county jail not exceeding one year, or in the
state prison for two, three, or four years when the money, labor, or
real or personal property taken is of a value exceeding four hundred
dollars ($400), and by a fine not exceeding one thousand dollars
($1,000), or by imprisonment in the county jail not exceeding one
year, or by both that imprisonment and fine, when the money, labor,
or real or personal property taken is of a value not exceeding four
hundred dollars ($400).
(d) As used in this section, "caretaker" means any person who has
the care, custody, or control of or who stands in a position of trust
with, an elder or a dependent adult.
(e) Conduct covered in subdivision (b) of Section 15610.57 shall
not be subject to this section.
SEC. 2.5. Section 15656 of the Welfare and Institutions Code is
amended to read:
15656. (a) Any person who knows or reasonably should know that a
person is an elder or dependent adult and who, under circumstances or
conditions likely to produce great bodily harm or death, willfully
causes or permits any elder or dependent adult to suffer, or inflicts
unjustifiable physical pain or mental suffering upon him or her, or
having the care or custody of any elder or dependent adult, willfully
causes or permits the person or health of the elder or dependent
adult to be injured, or willfully causes or permits the elder or
dependent adult to be placed in a situation such that his or her
person or health is endangered, is punishable by imprisonment in the
county jail not exceeding one year, or in the state prison for two,
three, or four years.
(b) Any person who knows or reasonably should know that a person
is an elder or dependent adult and who, under circumstances or
conditions other than those likely to produce great bodily harm or
death, willfully causes or permits any elder or dependent adult to
suffer, or inflicts unjustifiable physical pain or mental suffering
on him or her, or having the care or custody of any elder or
dependent adult, willfully causes or permits the person or health of
the elder or dependent adult to be injured or willfully causes or
permits the elder or dependent adult to be placed in a situation such
that his or her person or health may be endangered, is guilty of a
misdemeanor.
(c) Any caretaker of an elder or a dependent adult who violates
any provision of law prescribing theft or embezzlement, with respect
to the property of that elder or dependent adult, is subject to
imprisonment in the county jail not exceeding one year, or in the
state prison for two, three, or four years when the money, labor, or
real or personal property taken is of a value exceeding eight hundred
dollars ($800), and by a fine not exceeding one thousand dollars
($1,000), or by imprisonment in the county jail not exceeding one
year, or by both that imprisonment and fine, when the money, labor,
or real or personal property taken is of a value not exceeding eight
hundred dollars ($800).
(d) As used in this section, "caretaker" means any person who has
the care, custody, or control of or who stands in a position of trust
with, an elder or a dependent adult.
(e) Conduct covered in subdivision (b) of Section 15610.57 shall
not be subject to this section.
SEC. 3. Section 15657 of the Welfare and Institutions Code is
amended to read:
15657. Where it is proven by clear and convincing evidence that a
defendant is liable for physical abuse as defined in Section
15610.63, or neglect as defined in Section 15610.57, and that the
defendant has been guilty of recklessness, oppression, fraud, or
malice in the commission of this abuse, the following shall apply, in
addition to all other remedies otherwise provided by law:
(a) The court shall award to the plaintiff reasonable attorney's
fees and costs. The term "costs" includes, but is not limited to,
reasonable fees for the services of a conservator, if any, devoted to
the litigation of a claim brought under this article.
(b) The limitations imposed by Section 377.34 of the Code of Civil
Procedure on the damages recoverable shall not apply. However, the
damages recovered shall not exceed the damages permitted to be
recovered pursuant to subdivision (b) of Section 3333.2 of the Civil
Code.
(c) The standards set forth in subdivision (b) of Section 3294 of
the Civil Code regarding the imposition of punitive damages on an
employer based upon the acts of an employee shall be satisfied before
any damages or attorney's fees permitted under this section may be
imposed against an employer.
SEC. 4. Section 15657.5 is added to the Welfare and Institutions
Code, to read:
15657.5. (a) Where it is proven by a preponderance of the
evidence that a defendant is liable for financial abuse, as defined
in Section 15610.30, in addition to all other remedies otherwise
provided by law, the court shall award to the plaintiff reasonable
attorney's fees and costs. The term "costs" includes, but is not
limited to, reasonable fees for the services of a conservator, if
any, devoted to the litigation of a claim brought under this article.
(b) Where it is proven by a preponderance of the evidence that a
defendant is liable for financial abuse, as defined in Section
15610.30, and where it is proven by clear and convincing evidence
that the defendant has been guilty of recklessness, oppression,
fraud, or malice in the commission of the abuse, in addition to
reasonable attorney's fees and costs set forth in subdivision (a),
and all other remedies otherwise provided by law, the following shall
apply:
(1) The limitations imposed by Section 377.34 of the Code of Civil
Procedure on the damages recoverable shall not apply.
(2) The standards set forth in subdivision (b) of Section 3294 of
the Civil Code regarding the imposition of punitive damages on an
employer based upon the acts of an employee shall be satisfied before
any damages or attorney's fees permitted under this section may be
imposed against an employer.
(c) Nothing in this section affects the award of punitive damages
under Section 3294 of the Civil Code.
SEC. 5. Sections 1.5 and 2.5 of this act shall only become
operative if Assembly Bill 2705 is enacted and becomes effective on
or before January 1, 2005, in which case Sections 1 and 2 of this act
shall not become operative.
SEC. 6. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.