BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                           Senator Gloria Romero, Chair              S
                             2007-2008 Regular Session               B

                                                                     1
                                                                     2
                                                                     5
          SB 1259 (Margett)                                          9
          As Amended March 24, 2008 
          Hearing date:  April 15, 2008
          Penal Code
          MK:br                           VOTE ONLY  

                      CRIMES AGAINST ELDERS AND DEPENDENT ADULTS  

                                       HISTORY

          Source:  California District Attorneys Association

          Prior Legislation: None

          Support: Aging Services of California

          Opposition:California Public Defenders Association


                                        KEY ISSUES
           
          SHOULD IT BE A WOBBLER FOR A PERSON TO KNOWINGLY ENGAGE IN THE  
          EXPLOITATION OF, OR EXERT CRIMINAL UNDUE INFLUENCE UPON AN ELDER OR  
          DEPENDENT ADULT IN ORDER TO ACQUIRE POSSESSION OR CONTROL OF AN  
          INTEREST IN FUNDS OR PROPERTY BELONGING TO THE ELDER OR DEPENDENT  
          ADULT?

          SHOULD A PERSON RECEIVE AN ADDITIONAL ENHANCEMENT OF TWO YEARS FOR  
          EVERY PRIOR ELDER ABUSE CONVICTION?


                                       PURPOSE





                                                                     (More)







                                                          SB 1259 (Margett)
                                                                      PageB

          The purpose of this bill is to add theft by exploitation and  
          theft by undue influence to existing elder abuse statutes and to  
          create an enhancement for prior elder abuse convictions.

           Existing law  provides that 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 a fine not to exceed $6000 or by  
          imprisonment in the state prison for 2, 3 or 4 years.  (Penal  
          Code  368 (b)(1).)

           Existing law  provides that the penalty for the above is enhanced  
          by 3 years if the victim is under 70 years of age and 5 years if  
          the victim is 70 years of age or older, if in the commission of  
          the offense the victim suffers great bodily injury.  (Penal Code  
           368 (b)(2).)

           Existing law  provides that the penalty for the above is enhanced  
          by 5 years if the victim is under 70 years of age and 7 years if  
          the victim is 70 years of age or older, if in the commission of  
          the offense the defendant proximately causes the death of the  
          victim.  (Penal Code  368 (b)(3).)

           Existing law  provides that 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  




                                                                     (More)







                                                          SB 1259 (Margett)
                                                                      PageC

          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 is punishable by  
          a fine not to exceed $2000 or by imprisonment in a county jail  
          not to exceed one year, or by both that fine and imprisonment.   
          (Penal Code  368 (c).)

           Existing law  provides that any person who is not a caretaker who  
          violates any provision of law proscribing theft, embezzlement,  
          forgery, or fraud, or identity theft, with respect to the  
          property or personal identifying information of an elder or  
          dependent adult and who knows or reasonably should know that the  
          victim is an elder or dependent adult, is punishable by  
          imprisonment in a county jail not exceeding one year, or in  
          state prison for 2, 3, or 4 years, when the moneys, labor,  
          goods, services or real or personal property taken or obtained  
          is of a value exceeding $400 and by a fine not exceeding $1000,  
          by imprisonment in county jail not exceeding one year or by both  
          the fine and imprisonment when the moneys, labor, goods,  
          services, or real or personal property taken or obtained is a  
          value not exceeding $400.  (Penal Code  368 (d).)

           This bill  adds to the above provision a person who is not a  
          caretaker who knowingly engages in exploitation of, or exerts  
          criminal undue influence upon, a vulnerable 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.

           Existing law  provides that any caretaker of an elder or a  
          dependent adult who violates any provision of law proscribing  
          theft, embezzlement, forgery, or fraud, or who commits identity  
          theft with respect to the property or personal identifying  
          information of that elder or dependent adult is punishable by  
          imprisonment in the county jail not exceeding one year, or in  
          the state prison for 2, 3 or 4 years when the money, labor or  
          goods, services, or real or property taken or obtained is of a  
          value exceeding $400 and by a fine not exceeding $1000, by  
          imprisonment in a county jail not exceeding one year, or by both  
          that fine and imprisonment when the moneys, labor, goods,  




                                                                     (More)







                                                          SB 1259 (Margett)
                                                                      PageD

          services, or real or personal property taken or obtained is of a  
          value not exceeding $400.  (Penal Code  368 (e).)

           This bill  provides that the above penalty also applies to a  
          caregiver who knowingly engages in exploitation of, or exerts  
          criminal undue influence upon, a vulnerable 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.
           
          This bill  provides that any person who commits a felony  
          violation of Penal Code Section 368 (b) (d) or (e) shall receive  
          an additional two years in prison for each prior violation.  The  
          existence of any fact that would subject a person to this  
          penalty enhancement shall be alleged in the accusatory pleading  
          and found to be true by the trier of fact.

           Existing law  defines the following:

                 "Elder" - any person who is 65 years of age or  
               older.
                 "Dependent adult" - 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.
                 "Caretaker" - any person who has the care,  
               custody, or control of, or who stands in a position  
               of trust with, an elder or dependent adult.  (Penal  
               Code  368 (g).)

           This bill  deletes the above definitions.

           This bill  defines "caretaker" as any person who has the care,  
          custody, or control of, or who stands in a position of trust  




                                                                     (More)







                                                          SB 1259 (Margett)
                                                                      PageE

          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.

           This bill  defines "criminal undue influence" as the exploitation  
          by a person of a known physical or mental infirmity or other  
          physical, mental, or emotional dysfunction in a vulnerable elder  
          or dependent adult for financial gain by one of the following  
          methods:

                 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.
                 Knowingly taking an oppressive and unfair  
               advantage of a vulnerable elder or dependent adult's  
               weakness of mind, necessities, or distress.

           This bill  provides that 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.

           This bill  provides that a "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 or who receives services  
          at or from a facility that is 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  




                                                                     (More)







                                                          SB 1259 (Margett)
                                                                      PageF

          the State of California or from a person or organization that  
          offers, provides or arranges for personal care assistance  
          services.

           This bill  provides that "elder" means any person who is 65 years  
          of age or older.

           This bill  provides that "exploitation of an elder or dependent  
          adult" means either of the following:

                 Knowingly, by means of threats, force, duress,  
               menace, fraud, intimidation, or criminal undue  
               influence, obtaining or using, or endeavoring to  
               obtain or use, the elder or dependent adult's funds,  
               assets, or real or personal 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 real or personal property,  
               or to benefit someone other than the elder or  
               dependent adult by a person who either: stands in a  
               position of trust and confidence with the elder or  
               dependent adult, or; has a personal professional, or  
               business relation ship with the elder or dependent  
               adult.

                 Obtaining or using, endeavoring to obtain or use,  
               or conspiring with another to obtain or sue the  
               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.

           This bill  provides that an elder or dependent adult "lacks the  
          capacity to consent" to an act or transaction if any of the  
          following applies:





                                                                     (More)







                                                          SB 1259 (Margett)
                                                                      PageG

                 He or she acts as a result of threats, force,  
               duress, harassment, menace, fraud, or criminal undue  
               influence.
                 He or she lacks knowledge of the true nature of  
               the act or transaction involved.
                 He or she lacks the mental capacity to make an  
               intelligent choice about whether or not to do  
               something proposed by another person.

           Existing law  provides that the Legislature finds and declares  
          that crimes against elders and dependent adults are deserving of  
          special consideration and preparation, 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.  (Penal Code 368 (a).)

           This bill  also adds to the findings that elders and dependent  
          adults may be less able to resist financial exploitation or  
          criminal undue influence.

           This bill  makes cross-reference changes to provisions relating  
          to the order in which cases on a criminal calendar should be  
          disposed of and evidence that a missing person is a risk because  
          of the changes to Penal Code  368 in this bill.  
           
              RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
          
          California continues to face an extraordinary and severe prison  
          and jail overcrowding crisis.  California's prison capacity  
          remains nearly exhausted as prisons today continue to be  
          operated with a significant level of overcrowding.<1>  A year  
          ago, the Legislative Analyst's office summarized the trajectory  
          of California's inmate population over the last two decades:

          ---------------------------
          <1>  Analysis of the 2007-08 Budget Bill:  Judicial and Criminal  
          Justice, Legislative Analyst's Office (February 21, 2007); see  
          also, court orders, infra.



                                                                     (More)







                                                          SB 1259 (Margett)
                                                                      PageH

              During the past 20 years, jail and prison  
              populations have increased significantly.  County  
              jail populations have increased by about 66  
              percent over that period, an amount that has been  
              limited by court-ordered population caps.  The  
              prison population has grown even more dramatically  
              during that period, tripling since the  
              mid-1980s.<2>

          The level of overcrowding, and the impact of the population  
          crisis on the day-to-day prison operations, is staggering:

              As of December 31, 2006, the California Department  
              of Corrections and Rehabilitation (CDCR) was  
              estimated to have 173,100 inmates in the state  
              prison system, based on CDCR's fall 2006  
              population projections.  However, . . . the  
              department only operates or contracts for a total  
              of 156,500 permanent bed capacity (not including  
              out-of-state beds, . . . ), resulting in a  
              shortfall of about 16,600 prison beds relative to  
              the inmate population.  The most significant bed  
              shortfalls are for Level I, II, and IV inmates, as  
              well as at reception centers.  As a result of the  
              bed deficits, CDCR houses about 10 percent of the  
              inmate population in temporary beds, such as in  
              dayrooms and gyms.  In addition, many inmates are  
              housed in facilities designed for different  
              security levels.  For example, there are currently  
              about 6,000 high security (Level IV) inmates  
              housed in beds designed for Level III inmates.

              . . .  (S)ignificant overcrowding has both  
              operational and fiscal consequences.  Overcrowding  
              and the use of temporary beds create security  
              concerns, particularly for medium- and  
              high-security inmates.  Gyms and dayrooms are not  
              designed to provide security coverage as well as  

              --------------------
          <2>  California's Criminal Justice System:  A Primer.   
          Legislative Analyst's Office (January 2007).



                                                                     (More)







                                                          SB 1259 (Margett)
                                                                      PageI

              in permanent housing units, and overcrowding can  
              contribute to inmate unrest, disturbances, and  
              assaults.  This can result in additional state  
              costs for medical treatment, workers'  
              compensation, and staff overtime.  In addition,  
              overcrowding can limit the ability of prisons to  
              provide rehabilitative, health care, and other  
              types of programs because prisons were not  
              designed with sufficient space to provide these  
              services to the increased population.  The  
              difficulty in providing inmate programs and  
              services is exacerbated by the use of program  
              space to house inmates.  Also, to the extent that  
              inmate unrest is caused by overcrowding,  
              rehabilitation programs and other services can be  
              disrupted by the resulting lockdowns.<3>

          As a result of numerous lawsuits, the state has entered into  
          several consent decrees agreeing to improve conditions in the  
          state's prisons.  As these cases have continued over the past  
          several years, prison conditions nonetheless have failed to  
          improve and, over the last year, the scrutiny of the federal  
          courts over California's prisons has intensified.

          The federal court has appointed a receiver to take over the  
          direct management and operation of the prison medical health  
          care delivery system from the state.  The crisis has continued  
          to escalate and, in July of last year, the federal court  
          established a three-judge panel to consider placing a cap on the  
          number of prisoners allowable in California prisons.  It is  
          anticipated that the court will reach its decision this year.



          In his order establishing the judicial panel, Judge Thelton  
          Henderson stated in part:

            It is clear to the Court that the crowded conditions  
            of California's prisons, which are now packed well  


            ----------------------
          <3>  Analysis 2007-08 Budget Bill, supra, fn. 1.



                                                                     (More)







                                                          SB 1259 (Margett)
                                                                      PageJ

            beyond their intended capacity, are having - and in  
            the absence of any intervening remedial action, will  
            continue to have - a serious impact on the Receiver's  
            ability to complete the job for which he was  
            appointed:  namely, to eliminate the unconstitutional  
            conditions surrounding delivery of inmate medical  
            health care.

            . . .  (T)his case is also somewhat unique in that even  
            Defendants acknowledge the seriousness of the  
            overcrowding problem, which led the Governor to declare  
            a state of emergency in California's prisons in October  
            2006.  While there remains dispute over whether crowded  
            conditions are the primary cause of the constitutional  
            problems with the medical health care system in  
            California prisons, or whether any relief other than a  
            prisoner release order will remedy the constitutional  
            deprivations in this case, there can be no dispute that  
            overcrowding is at least part of the problem.  . . .   
            The record is equally clear that the Receiver will be  
            unable to eliminate the constitutional deficiencies at  
            issue in this case in a reasonable amount of time  
            unless something is done to address the crowded  
            conditions in California's prisons.  This Court  
            therefore believes that a three-judge court should  
            consider whether a prisoner release order is warranted  
            . . . .  (Hon. Thelton Henderson, Order dated July 23,  
            2007 in Plata v. Schwarzenegger (N.D. Cal) No. C01-1351  
            TEH (citations omitted).)

          Similarly, Judge Lawrence Karlton stated:

            There is no dispute that prisons in California are  
            seriously and dangerously overcrowded.  ()  The  
            record suggests there will be no appreciable change  
            in the prison population in the next two years.   
            (Hon. Lawrence K. Karlton, Senior Judge, United  
            States District Court, Order dated July 23, 2007 in  
            Coleman v. Schwarzenegger (E.D. Cal.) No. S90-0520  
            LKK JFM P (citations omitted).)




                                                                     (More)







                                                          SB 1259 (Margett)
                                                                      PageK


           This bill  appears to aggravate the prison overcrowding crisis  
          outlined above.

                                      COMMENTS

          1.  Need for This Bill  

          According to the sponsor:

              In People v. Brock, 143 Cal.App.4th, 1266 (2006), the  
              victim "gave" defendant 141 checks and cash totaling  
              $661,400.  Of that total, the defendant wrote, over the  
              victim's objection but eventually with his acquiescence,  
              88 checks totaling $208,900 during just the last eleven  
              months of their relationship.  The defendant had the  
              victim sign a new will that made him (defendant) the  
              sole beneficiary of the victim's estate.  The defendant  
              told the victim that he had prepared victim's tax  
              returns for several years, but returns were not filed  
              for 7 years.  The victim ultimately lost a home after a  
              $350,000 mortgage he acquired at the defendant's  
              insistence was foreclosed due to the defendant failing  
              to make the mortgage payments.  The defendant also  
              liquidated the victim's annuities and money market  
              accounts so that the victim could continue to give him  
              money.

              The appellate court found that despite the manipulative  
              conduct and oppressive requests that the defendant made  
              to a person he knew was cognitively unable to resist his  
              demands for money, since there had been no "fraud or  
              misrepresentation," this conduct amounted to nothing  
                                                         more than hard-bargaining or over-persuasion.   
              Furthermore, despite the fact that the jury specifically  
              found that the victim's vulnerabilities were open and  
              obvious, that the defendant was subjectively aware of  
              them, and that the defendant intentionally exploited  
              those vulnerabilities in order to gain possession of the  
              victim's assets and that he did so in bad-faith, the  




                                                                     (More)







                                                          SB 1259 (Margett)
                                                                      PageL

              appellate court held that under PC  368 as it currently  
              exists, this is not a crime in California.  Under  
              current law, consent cannot be undermined by the  
              defendant's exploitation or exercise of undue influence.

              Accordingly, amending PC  368 to include financial  
              exploitation and criminal undue influence as legally  
              supportable theories that vitiate the consent of an  
              elder or dependent adult would support the Legislature's  
              previously stated intent to provide special  
              consideration and protection to elders and dependent  
              adults because of their increased vulnerability.

           2.  Theft by Exploitation and Theft by Undue Influence  

           Existing law creates specific penalties for theft,  
           embezzlement, forgery, fraud or identity theft of the  
           property or personal identifying information of an elder or  
           dependent adult by a person who is not their caretaker.   
           The penalty is a wobbler if the value of the money, labor,  
           goods, services or real personal property taken or obtained  
           is over $400.  This bill adds to this wobbler by making it  
           a crime to knowingly engage in the exploitation of, or  
           exert criminal undue influence upon an elder or dependent  
           adult in order to acquire possession or control of an  
           interest in funds or property belonging to the elder or  
           dependent adult.

           When the theft, embezzlement, forgery, fraud or identity  
           theft of the property or personal identifying information  
           of an elder or dependent adult is a caregiver, the penalty  
           is also a wobbler if the value of the money, labor, goods,  
           services or real personal property taken or obtained is  
           over $400.  This bill adds to this wobbler by making it a  
           crime to knowingly engage in the exploitation of, or exert  
           criminal undue influence upon an elder or dependent adult  
           in order to acquire possession or control of an interest in  
           funds or property belonging to the elder or dependent  
           adult.





                                                                     (More)







                                                          SB 1259 (Margett)
                                                                      PageM

           The sponsor asserts that the addition of these provisions  
           criminalizing financial exploitation and undue influence is  
           necessary to deal with the issue that arose in People v.  
           Brock as noted in the sponsor's statement above.  In that  
           case the Court found there was no violation of these  
           provisions because there was not fraud or misrepresentation  
           involved despite the fact that the defendant knew or should  
           have known the defendant was cognitively unable to resist  
           the demands for money.

           SHOULD IT BE A WOBBLER FOR A PERSON TO KNOWINGLY ENGAGE IN  
           THE EXPLOITATION OF, OR EXERT CRIMINAL UNDUE INFLUENCE UPON  
           AN ELDER OR DEPENDENT ADULT IN ORDER TO ACQUIRE POSSESSION  
           OR CONTROL OF AN INTEREST IN FUNDS OR PROPERTY BELONGING TO  
           THE ELDER OR DEPENDENT ADULT?

           3.  Enhancements  

          In addition to the crimes for theft, embezzlement, forgery,  
          fraud or identity theft against an elder the law makes it a  
          wobbler for any person who knows or reasonably should know  
          that a person is an elder or dependent adult to under  
          circumstances or conditions likely to produce great bodily  
          harm or death, willfully cause or permit any elder or  
          dependent adult to suffer, or inflict thereon unjustifiable  
          physical pain or mental suffering, or having the care or  
          custody of any elder or dependent adult, willfully cause or  
          permit 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.

          This bill creates an enhancement for any person convicted  
          either of a theft crime or the crime of causing injury or  
          endangering the health of a dependent adult.  If the person  
          has one prior, he or she shall receive an additional two  
          years for each prior conviction.  The existence of any fact  
          that would subject a person to the enhancement must be  
          alleged, proven and found to be true.





                                                                     (More)







                                                          SB 1259 (Margett)
                                                                      PageN

          In support of these additional enhancements the sponsor  
          states:

              Under current law, there are no sentence  
              enhancements for prior convictions of financial  
              elder abuse.  Therefore, a defendant can defraud an  
              elder or dependent adult, serve a jail sentence,  
              and then re-offend and still only face the same  
              sentencing scheme the defendant faced with the  
              first conviction.  Amending PC  368 by adding a  
              sentence enhancement provision would prevent a  
              defendant from continuing to victimize an elder or  
              dependent adult without facing any additional  
              punishment for repeatedly harming this very  
              vulnerable class of victims.  Imposing penalty  
              enhancements on defendants who repeatedly mistreat  
              elder or dependent adults would be a useful tool in  
              deterring recidivism and punishing criminals for  
              exploiting a class of people that the Legislature  
              has previously identified as extraordinarily  
              vulnerable and needing special protection.

          SHOULD A PERSON RECEIVE AN ADDITIONAL ENHANCEMENT OF TWO  
          YEARS FOR EVERY PRIOR ELDER ABUSE CONVICTION?




















                                                                     (More)











          4.  Changes to Definitions in Elder Abuse Statutes  

          This bill makes a number of changes and additions to  
          definitions that apply to the elder abuse provisions.

          Existing law defines a "dependent adult" as 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.  This bill changes this  
          definition providing instead that a "dependent adult" is 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 or who receives services  
          at or from a facility that is 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.

          The California Public Defenders Association believes that this  
          new definition is too broad:

              It is paternalistic in equating physically  
              disabled adults with people who are unable to  
              protect themselves due to dementia.  As written  
              the bill applies to seniors who have no  
              significant disabilities that affect their  
              cognitive processes.  Furthermore, given the  




                                                                     (More)







                                                          SB 1259 (Margett)
                                                                      PageP

              budget shortfall and prison overcrowding, any  
              legislation that increases penalties is ill timed  
              and poor public policy.

          This bill also defines "criminal undue influence" and provides  
          that it is a defense to criminal undue influence if the person  
          held a good-faith belief that the elder or dependent adult had  
          the capacity to consent, and did consent to the transaction.   
          However, the bill provides that 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.

          The California Public Defenders Association objects that this  
          defense:

              [w]ould first place an initial burden on the defense to  
              prove by a preponderance of the evidence that the  
              financial transaction was done "openly."  "Openly" is a  
              question of fact, which is subject to interpretation and  
              should properly be placed before the trier of fact.  The  
              court should not hold a separate evidentiary hearing to  
              decide this question of fact, namely whether the  
              transaction was done openly.

              CPDA recommends that 1) the jury decide as a question of  
              fact whether the transaction was done openly; and 2) the  
              defense not be required to make a prima facie showing as  
              to whether a transaction was done openly.  Instead,  
              whether a transaction was done openly is one factor to  
              be properly considered by the jury in conjunction with  
              all of the other facts of the case.  A person might have  
              conducted the transaction openly and then for various  
              reasons, attempted to conceal the transaction after it  
              was discovered.  Proposed Section 368(h)(2)(B) would  
              make the defense of consent unavailable completely if  
              the person concealed the taking when it occurs or after  
              it was discovered regardless of mitigating factors that  
              might be present.  Also, SB 1259 does not specify which  












                                                          SB 1259 (Margett)
                                                                      PageQ

              person/entity would need to discover the concealment or  
              attempt to conceal.

          IS IT APPROPRIATE TO REQUIRE A DEFENDANT TO PROVE A TRANSACTION  
          TOOK PLACE OPENLY BEFORE ASSERTING A DEFENSE THAT HE OR SHE HELD  
          A GOOD-FAITH BELIEF THAT THE ELDER OR DEPENDENT ADULT HAD THE  
          CAPACITY TO CONSENT OR SHOULD THE OPENNESS OF THE TRANSACTION BE  
          A QUESTION OF FACT FOR THE JURY TO DECIDE?



                                   ***************