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