BILL NUMBER: AB 378 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 1, 2007
AMENDED IN ASSEMBLY APRIL 19, 2007
AMENDED IN ASSEMBLY MARCH 27, 2007
INTRODUCED BY Assembly Member Benoit
FEBRUARY 15, 2007
An act to amend Section 368 of the Penal Code, and to amend
Section 15656 of the Welfare and Institutions Code, relating to elder
and dependent adult abuse.
LEGISLATIVE COUNSEL'S DIGEST
AB 378, as amended, Benoit. Elder and dependent adult abuse.
Under existing law, a caretaker, as defined, of an elder or
dependent adult who violates a law proscribing theft, embezzlement,
forgery, fraud, or identity theft with respect to the property of the
elder or dependent adult, may be subject to imprisonment in a county
jail, or imprisonment in the state prison if the value of the money,
labor, or real or personal property taken exceeds $400. Existing
law, the Elder and Dependent Adult Civil Protection Act, includes a
similar provision with respect to a caretaker who violates a law
proscribing theft or embezzlement with respect to the property of an
elder or dependent adult.
This bill would provide that a caretaker of an elder or dependent
adult who commits a 2nd or subsequent violation of a law proscribing
theft, embezzlement, forgery, fraud, or identity theft with respect
to the property of an elder or dependent adult, regardless of the
value of the money, labor, or real or personal property taken would
be subject to punishment by imprisonment in the state prison for 2,
3, or 4 years , or by imprisonment in the county jail not
exceeding one year, by a fine not exceeding $1,000, or by both that
fine and imprisonment . This bill would make other conforming,
technical, and nonsubstantive changes. By creating a new crime, this
bill would impose a state-mandated local program.
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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
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
elder and dependent adults are deserving of special consideration and
protection, because elder 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 punishable by
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 moneys, labor, goods, services, or real or personal property
taken or obtained is of a value not exceeding four hundred dollars
($400).
(e) (1) Any caretaker of an elder or a dependent adult who
violates a provision of law proscribing theft, embezzlement, forgery,
or fraud, or who violates Section 530.5 proscribing identity theft,
with respect to the property of that elder or dependent adult, is
subject to punishment by imprisonment in a 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), by imprisonment in a county jail not
exceeding one year, or by both that fine and imprisonment, when the
money, labor, or real or personal property taken is of a value not
exceeding four hundred dollars ($400).
(2) A caretaker of an elder or dependent adult who violates a
provision of law proscribing theft, embezzlement, forgery, or fraud,
or who violates Section 530.5 proscribing identity theft with respect
to the property of that elder or dependent adult, after having been
previously convicted of a violation pursuant to paragraph (1), is
subject to punishment by imprisonment in the state prison for two,
three, or four years , or by imprisonment in a county jail not
exceeding one year, by a fine not exceeding one thousand dollars
($1,000), or by both that fine and imprisonment .
This paragraph shall apply regardless of the value of the money,
labor, or real or personal property taken.
(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
punishable by 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. 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 subject to punishment 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) (1) A caretaker of an elder or a dependent adult who violates
a provision of law proscribing theft, embezzlement, forgery, or
fraud, or who violates Section 530.5 of the Penal Code proscribing
identity theft, with respect to the property of that elder or
dependent adult, is subject to punishment by imprisonment in a 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), imprisonment in the
county jail not exceeding one year, or by both that fine and
imprisonment, when the money, labor, or real or personal property
taken is of a value not exceeding four hundred dollars ($400).
(2) A caretaker of an elder or dependent adult who violates a
provision of law proscribing theft, embezzlement, forgery, or fraud,
or who violates Section 530.5 of the Penal Code proscribing identity
theft with respect to the property of that elder or dependent adult,
after having been previously convicted of a violation pursuant to
paragraph (1), is subject to punishment by imprisonment in the state
prison for two, three, or four years , or by imprisonment in a
county jail not exceeding one year, by a fine not exceeding one
thousand dollars ($1,000), or by both that fine and imprisonment
. This paragraph shall apply regardless of the value of the
money, labor, or real or personal property taken.
(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. 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.