BILL NUMBER: SB 1259 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 24, 2008
INTRODUCED BY Senator Margett
FEBRUARY 15, 2008
An act to amend Sections 237, 368, 1048, and 14213 of the Penal
Code, relating to crime.
LEGISLATIVE COUNSEL'S DIGEST
SB 1259, as amended, Margett. Crimes against elders and dependent
adults.
Existing law proscribes various crimes committed against an elder
or dependent adult when the person has knowledge or reasonably should
know that the victim is an elder or dependent adult. These crimes
include willfully causing or permitting an elder or dependent adult
to suffer or inflicting unjustifiable physical pain or mental
suffering, or causing or permitting the person or health of the elder
or dependent to be injured or placed in a situation in which his or
her health is endangered. Existing law also establishes an additional
penalty for a person who violates any provision of law proscribing
theft, embezzlement, forgery, fraud, or identity theft, with respect
to the person or property of an elder or dependent adult.
This bill would apply the above penalty to knowingly engaging in
exploitation of or exerting criminal undue influence upon a
vulnerable an elder or dependent adult in order
to acquire possession or control of an interest in funds or property
of the vulnerable elder or dependent adult. This
bill would also establish a 2-year penalty enhancement for each prior
conviction for any person who violates the above provisions
governing abuse of an elder or dependent adult in addition to the
sentences set forth in those provisions. The bill would revise and
recast the definitions of terms used in those provisions and make
technical changes to related provisions.
By expanding the definitions of crimes, the 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 237 of the Penal Code is amended to read:
237. (a) False imprisonment is punishable by a fine not exceeding
one thousand dollars ($1,000), or by imprisonment in the county jail
for not more than one year, or by both that fine and imprisonment.
If the false imprisonment be effected by violence, menace, fraud, or
deceit, it shall be punishable by imprisonment in the state prison.
(b) False imprisonment of an elder or dependent adult by use of
violence, menace, fraud, or deceit shall be punishable as described
in subdivision (g) of Section 368.
SEC. 2. 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 resist financial
exploitation or criminal undue influence, 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, or who knowingly engages in exploitation of, or
exerts criminal undue influence upon, a vulnerable
an elder or dependent adult in order to acquire possession
or control of an interest in funds or property belonging to the
vulnerable elder or 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 moneys, 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) 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, or who knowingly engages in exploitation
of, or exerts criminal undue influence upon, a vulnerable
an elder or dependent adult in order to acquire
possession or control of an interest in funds or property belonging
to the vulnerable elder or 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 moneys,
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).
(f) Any person convicted of a felony violation of subdivision (b),
(d), or (e) who has any prior conviction for a violation of
subdivision (b), (d), or (e), shall receive two years in the state
prison for each prior conviction in addition to the sentence provided
in subdivision (b), (d), or (e). The existence of any fact that
would subject a person to a penalty enhancement pursuant to this
subdivision shall be alleged in the accusatory pleading and either
admitted by the defendant in open court or found to be true by the
trier of fact.
(g) 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.
(h) For purposes of this section, the following definitions shall
apply:
(1) "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, or who has assumed any of the duties correspondent
to the role of a caregiver for the elder or dependent adult.
(2) (A) "Criminal undue influence" means the exploitation by a
person of a known physical or mental infirmity or other physical,
mental, or emotional dysfunction in a vulnerable
an elder or dependent adult for financial gain by one of
the following methods:
(i) Using a position of trust or confidence or using any real or
apparent authority over the vulnerable elder or
dependent adult for the purpose of obtaining an unfair advantage over
the vulnerable elder or dependent adult.
(ii) Knowingly taking an oppressive and unfair advantage of
a vulnerable an elder or dependent
adult's weakness of mind, necessities, or distress.
(B) It is a defense to criminal undue influence if the person held
a good-faith belief that the vulnerable elder or
dependent adult had the capacity to consent, and did consent to the
transaction. For this defense to apply, the person must engage in the
transaction or attempt to take the funds or property openly. If the
person attempts to conceal the taking, either when it occurs or after
it is discovered, the defense is unavailable.
(3) "Dependent adult" means any person who is between the ages of
18 and 64, who has physical or mental limitations that 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, or who receives services at or
from a facility required to be licensed by the State of California to
serve dependent adults, or who receives services from a home care
provider required to be licensed by the State of California or from a
person or organization that offers, provides, or arranges for
personal care assistance services.
(4) "Elder" means any person who is 65 years of age or older.
(5) "Exploitation of a vulnerable an elder
or dependent adult" means either of the following:
(A) Knowingly, by means of threats, force, duress, menace, fraud,
intimidation, or criminal undue influence, obtaining or using, or
endeavoring to obtain or use, the vulnerable
elder or dependent adult's funds, assets, or real or personal
property with the intent to temporarily or permanently deprive the
vulnerable elder or dependent adult of
the use, benefit, or possession of the funds, assets, or real or
personal property, or to benefit someone other than the
vulnerable elder or dependent adult, by a person
who either:
(i) Stands in a position of trust and confidence with the elder or
dependent adult.
(ii) Has a personal, professional, or business relationship with
the elder or dependent adult.
(B) Obtaining or using, endeavoring to obtain or use, or
conspiring with another to obtain or use the vulnerable
elder or dependent adult's funds, assets, or
property with the intent to temporarily or permanently deprive the
elder or dependent adult of the use, benefit, or possession of the
funds, assets, or property, or to benefit someone other than the
elder or dependent adult, by a person who knows that the elder or
dependent adult lacks the capacity to consent.
(6) A vulnerable An elder or
dependent adult "lacks the capacity to consent" to an act or
transaction if any of the following applies:
(A) He or she acts as a result of threats, force, duress,
harassment, menace, fraud, or criminal undue influence.
(B) He or she lacks knowledge of the true nature of the act or
transaction involved.
(C) He or she lacks the mental capacity to make an intelligent
choice about whether or not to do something proposed by another
person.
(7) "Vulnerable elder or dependent adult" means an adult who,
regardless of place of residence, possesses a physical or mental
infirmity or other physical, mental, or emotional dysfunction that
impairs his or her ability to provide adequately for his or her own
care without assistance, including the provision of food, shelter,
clothing, health care, medication, hygiene tasks, mobility
assistance, or supervision, or to resist criminal undue influence in
regard to the adult's financial matters if, because of the physical
or mental infirmity or other physical, mental, or emotional
dysfunction, the individual has an impaired ability to protect him or
herself from physical abuse, financial abuse, maltreatment, or
exploitation.
(i) This section does not 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.
(j) 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. 3. Section 1048 of the Penal Code is amended to read:
1048. (a) The issues on the calendar shall be disposed of in the
following order, unless for good cause the court directs an action to
be tried out of its order:
(1) Prosecutions for felony, when the defendant is in custody.
(2) Prosecutions for misdemeanor, when the defendant is in
custody.
(3) Prosecutions for felony, when the defendant is on bail.
(4) Prosecutions for misdemeanor, when the defendant is on bail.
(b) Notwithstanding subdivision (a), all criminal actions in which
(1) a minor is detained as a material witness or is the victim of
the alleged offense, (2) a person who was 70 years of age or older at
the time of the alleged offense or is a dependent adult, as defined
in subdivision (h) of Section 368, was a witness to, or is the victim
of, the alleged offense or (3) any person is a victim of an alleged
violation of Section 261, 262, 264.1, 273a, 273d, 285, 286, 288,
288a, or 289, committed by the use of force, violence, or the threat
thereof, shall be given precedence over all other criminal actions in
the order of trial. In those actions, continuations shall be granted
by the court only after a hearing and determination of the necessity
thereof, and in any event, the trial shall be commenced within 30
days after arraignment, unless for good cause the court shall direct
the action to be continued, after a hearing and determination of the
necessity of the continuance, and states the findings for a
determination of good cause on the record.
(c) Nothing in this section shall be deemed to provide a statutory
right to a trial within 30 days.
SEC. 4. Section 14213 of the Penal Code is amended to read:
14213. (a) As used in this title, "missing person" includes, but
is not limited to, a child who has been taken, detained, concealed,
enticed away, or retained by a parent in violation of Chapter 4
(commencing with Section 277) of Title 9 of Part 1. It also includes
any child who is missing voluntarily or involuntarily, or under
circumstances not conforming to his or her ordinary habits or
behavior and who may be in need of assistance.
(b) As used in this title, "evidence that the person is at risk"
includes, but is not limited to, evidence or indications of any of
the following:
(1) The person missing is the victim of a crime or foul play.
(2) The person missing is in need of medical attention.
(3) The person missing has no pattern of running away or
disappearing.
(4) The person missing may be the victim of parental abduction.
(5) The person missing is mentally impaired.
(c) As used in this title, "child" is any person under the age of
18.
(d) As used in this title, "center" means the Violent Crime
Information Center.
(e) As used in this title, "dependent adult" is any person
described in paragraph (3) of subdivision (h) of Section 368.
(f) As used in this title, "dental or medical records or X-rays,"
include all those records or X-rays which are in the possession of a
dentist, physician and surgeon, or medical facility.
SEC. 5. 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.