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? ***************