BILL ANALYSIS
AB 768
Page 1
Date of Hearing: April 28, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 768 (Torres) - As Amended: April 15, 2009
SUMMARY : Eliminates the requirement that a person "know or
reasonably should know" a victim is an elder or dependent adult
when charged with elder abuse, as specified, and expands the
definition of "elder abuse" to include willfully causing or
permitting an elder or dependent adult to sustain any wound or
physical or psychological injury.
EXISTING LAW :
1)States 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; by a
fine not to exceed $6,000; by both that fine and imprisonment;
or by imprisonment in the state prison for two, three, or four
years. [Penal Code Section 368(b)(1).]
2)Provides, if in the commission of an offense described in
existing law, the victim suffers great bodily injury, the
defendant shall receive an additional term in the state prison
as follows:
a) Three years if the victim is under 70 years of age.
b) Five years if the victim is 70 years of age or older.
c) If in the commission of an offense described, the
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defendant proximately causes the death of the victim, the
defendant shall receive an additional term in the state
prison as follows: five years if the victim is under 70
years of age or seven years if the victim is 70 years of
age or older. [Penal Code Section 368(a)(1) to (3).]
3)States any person who knows, or reasonably should know, that a
person is an elder or dependent adult and who, under
circumstances or conditions other than those likely to produce
great bodily harm or death, willfully causes or permits any
elder or dependent adult to suffer, or inflicts thereon
unjustifiable physical pain or mental suffering, or having the
care or custody of any elder or dependent adult, willfully
causes or permits the person or health of the elder or
dependent adult to be injured or willfully causes or permits
the elder or dependent adult to be placed in a situation in
which his or her person or health may be endangered, is guilty
of a misdemeanor. A second or subsequent violation of this
subdivision is punishable by a fine not to exceed $2,000; by
imprisonment in a county jail not to exceed one year; or by
both that fine and imprisonment. [Penal Code Section 368(c)]
4)Provides that any person who is not a caretaker and who
violates any provision of law proscribing theft, embezzlement,
forgery, or fraud, or who violates existing law proscribing
identity theft, with respect to the property or personal
identifying information of an elder or a dependent adult, and
who knows, or reasonably should know, that the victim is an
elder or a dependent adult, is punishable by imprisonment in a
county jail not exceeding one year or in the state prison for
two, three, or four years when the moneys, labor, goods,
services, or real or personal property taken or obtained is of
a value exceeding $400; and by a fine not exceeding $1,000; by
imprisonment in a county jail not exceeding one year; or by
both that fine and imprisonment when the moneys, labor, goods,
services, or real or personal property taken or obtained is of
a value not exceeding $400. [Penal Code section 368(d).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "California's
elder and dependant adult population deserve to be fully
protected from abuse. Too many elders suffer from
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exploitation and abuse at the hands of both strangers and
their own family members without ever seeing their abusers
brought to justice. Prosecutors seeking to protect victims of
elder abuse face challenges holding perpetrators accountable
because of unnecessarily restrictive language related to elder
abuse in the Penal Code. Unlike Penal Code guidelines on
child abuse or sexual assault against minors, elder abuse
guidelines mandate that prosecutors must prove that the
perpetrator knew the victim was elderly and that the abuse
caused physical pain or mental suffering to the victim, above
and beyond the actual injury or financial loss.
"These restrictions leave elders without adequate legal
protection against abuse and force the criminal justice system
to allow abusers to go free. Elders are often victimized by
people they know and love. They are often hesitant to testify
against their abusive relatives and friends or they minimize
the mental suffering or physical pain and deny the severity of
what occurred. They also may be in a coma or might be
medicated with pain killers and unable to testify to physical
pain or mental suffering. Thus, proving physical pain or
mental suffering beyond the actual injury or loss can be
extremely difficult."
2)Elder Abuse : Existing law states "any person who knows or
reasonably should know a person is an elder or dependant adult
and creates circumstances in which the victim is likely to
suffer great bodily injury or death, or otherwise causes a
person unjustifiable pain or suffering is guilty of a felony
and may be sentenced to a term of up to one year in the county
jail or a term of imprisonment of two, three or four years."
[Penal Code Section 368(b).] If in the commission of that
offense, an elderly or dependent person suffers great bodily
harm, as specified, the defendant may be sentenced to an
enhanced sentence of three to five years depending on the age
of the victim. [Penal Code Section 368(b)(2)(A).] If the
defendant proximately causes the death of the victim, he or
she may be sentenced to an additional five to seven years
depending on the age of the victim. [Penal Code Section
368(b)(3)(A).] If the actions of the defendant do not create
circumstances likely to cause great bodily harm
but willfully causes an elderly or dependent person to suffer
unjustifiable pain and suffering, he or she is guilty of a
misdemeanor punishable by up to six months in the county jail.
[Penal Code Section 368(c); see also Penal Code Section 19.]
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If a defendant is not a caretaker of an elderly or disabled
person but knows or reasonably should know the victim is an
elderly or dependent and who violates provisions of law
related to theft, fraud or embezzlement, he or she shall be
sentenced to a term of two, three or four years or up to one
year in the county jail if the value of the theft more than
$400. If the value of theft is $400 or less, he or she shall
be sentenced up to one year in the county jail [Penal Code
Section 368(d).] This bill eliminates the requirement that a
defendant know or reasonably should know that the victim is
over the age of 65 and also expands liability for punishment
under Penal Code Section 368 to include willfully causing or
permitting an elder or dependent adult to sustain any wound or
physical or psychological injury. Under existing law, the
actions of the defendant must be likely to produce great
bodily injury. Great bodily injury is defined as "substantial
or significant injury." [Penal Code Section 12022.7(f).] The
proposed amendments to Penal Code Section 368 appear to be a
significant expansion of the existing crime. Even the
slightest injury could now be charged under Penal Code Section
368(d), whereas before, if there was no likelihood for great
bodily injury, the defendant might only be charged with a
misdemeanor and punished to six months in the county jail.
[Penal Code Section 368(c).]
3)Legislative History and Intent of Elder Abuse : Specifically,
elder abuse was punished as a crime in 1986; abuse of a
dependent person was punished in 1984. (See Statutes of 1984,
Chapter 144, Section 160.) Although the statute has been
renumbered, the language originally stated:
"Any person, who, under circumstances or conditions likely to
produce great bodily harm or death, willfully causes or
permits any elder or dependent adult, with knowledge that he
or she is an elder or dependent adult, willfully causes or
permits the person or health of 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 the
county jail not exceeding one year or in state prison for two,
three or four years." [Original Penal Code Section 368(a) as
cited in People vs. Heitzman (1994) 9 Cal.4th 189, 194]
In 1994, the California Supreme Court construed Penal Code
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Section 368 as requiring a tort grounded duty of care to save
the statute from being unconstitutionally vague. The Court in
Heitzman stated:
"In 1983, the Legislature passed the state's first law focusing
exclusively on those 65 years of age or older, requiring elder
care custodians and other specified professionals to report
instances of elder abuse. (Welf. & Inst. Code, 9380- 9386,
added by Stats. 1983, ch. 1273, 2 and repealed by Stats.
1986, ch. 769, 1.3, eff. Sept. 15, 1986.) That same year,
Senate Bill No. 248, 1983-1984 Regular Session, was introduced
at the request of the Santa Ana Police Department. An
analysis of the bill prepared for the Senate Committee on the
Judiciary indicates that the goal of the legislation was to
aid in the prosecution of people who harm or neglect dependent
adults. (Sen. Com. on Judiciary, Analysis of Sen. Bill No.
248 (1983-1984 Reg. Sess.) p. 2.) According to this document,
law enforcement agencies receiving reports concerning
suspected abuse or neglect of dependent adults were having
difficulty finding Penal Code sections under which they could
prosecute such cases. (Ibid.) The solution proposed by the
bill was to establish the same criminal penalties for the
abuse of a dependent adult as those found in sections 273a and
273d for child abuse. (Sen. Com. on Judiciary, Analysis of
Sen. Bill No. 248.) When drafting the new legislation, the
bill's author lifted the language of the child abuse statutes
in its entirety, replacing the word 'child' with 'dependent
adult' throughout (internal citation omitted).
"After the statute was enacted late in 1983, several
non-substantive changes were made. (Stats. 1984, ch. 144,
160, p. 482.) Later, in conjunction with legislation designed
to consolidate the two sets of conflicting reporting laws for
elder abuse and dependent adult abuse, a 1986 amendment to
section 368(a) made the section expressly applicable to elders
as well as dependent adults. (Stats. 1986, ch. 769, 1.2, p.
2531, urgency measure eff. Sept. 15, 1986.) [Heitzman at
245.]"
In 2004, AB 3095 (Committee on Aging and Long Term Care),
Chapter 893, Statutes of 2004, related to conditions of
probation when an offender is guilty of the crime of elder
abuse, as specified. However, the Senate amended AB 3095 to
strike "with knowledge that he or she is an elder or dependent
adult" and instead included any person who "knows or
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reasonably should know that a person is an elder or dependent
adult". This language is presumably broader than simple
knowledge because it includes persons who reasonably should
have known of the victim's status as an elderly or dependent
person.
The stated intent behind the increased penalty for crimes
against the elderly is to punish those who would prey on
person who might not be able to defend himself or herself.
[Penal Code Section 368(a).] The offenses specified in the
elder abuse section, such as battery and fraud, are all
punishable as substantive offenses. Penal Code Section 368 is
meant to impose a more severe punishment on a person who
victimizes an elderly person. However, if there is no
requirement the defendant knows or reasonably should know a
person is elderly or is a dependent adult, punishing that
person as if he or she did know seems contrary to the intent
of the statute.
4)Concerns about Prison Overcrowding and the Threat of a
Court-Ordered Population Cap : Given this bill proposes to
greatly expand the definition of elder abuse, there will
likely be an increase in the number of inmates incarcerated in
state prison or incarcerated for a longer term. This being
the case, it is important to raise the issue of prison
overcrowding. The California Policy Research Center (CPRC)
recently issued a report on the status of California's
prisons. The report stated, "California has the largest
prison population of any state in the nation, with more than
171,000 inmates in 33 adult prisons, and the state's annual
correctional spending, including jails and probation, amounts
to $8.92 billion. Despite the high cost of corrections, fewer
California prisoners participate in relevant treatment
programs than comparable states, and its inmate-to-officer
ratio is considerably higher. While the nation's prisons
average one correctional officer to every 4.5 inmates, the
average California officer is responsible for 6.5 inmates.
Although officer salaries are higher than average, their ranks
are spread dangerously thin and there is a severe vacancy
rate." (Petersilia, Understanding California Corrections,
California Policy Research Center, May 2006). California's
prison population will likely exceed 180,000 by 2010.
According to the Little Hoover Commission, "Lawsuits filed in
three federal courts alleging that the current level of
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overcrowding constitutes cruel and unusual punishment ask that
the courts appoint a panel of federal judges to manage
California's prison population. United States District Judge
Lawrence Karlton, the first judge to hear the motion, gave the
State until June 2007 to show progress in solving the
overpopulation crisis. Judge Karlton clearly would prefer not
to manage California's prison population. At a December 2006
hearing, Judge Karlton told lawyers representing the
Schwarzenegger administration that he is not inclined 'to
spend forever running the state prison system.' However, he
also warned the attorneys, 'You tell your client June 4 may be
the end of the line. It may really be the end of the line.'
"Despite the rhetoric, thirty years of 'tough on crime' politics
has not made the state safer. Quite the opposite: today
thousands of hardened, violent criminals are released without
regard to the danger they present to an unsuspecting public.
Years of political posturing have taken a good idea -
determinate sentencing - and warped it beyond recognition with
a series of laws passed with no thought to their cumulative
impact. And these laws stripped away incentive s for offenders
to change or improve themselves while incarcerated.
"Inmates, who are willing to improve their education, learn a
job skill or kick a drug habit find that programs are few and
far between, a result of budget choices and overcrowding.
Consequently, offenders are released into California
communities with the criminal tendencies and addictions that
first led to their incarceration. They are ill-prepared to do
more than commit new crimes and create new victims . . . . ".
[Little Hoover Commission Report, Solving California's
Corrections Crisis: Time is Running Out, pg. 1, 2 (2007).]
According to the California Department of Corrections and
Rehabilitation, there are approximately 8,000 inmates serving
a sentence for lewd and lascivious acts on a child.
Incarcerating 8,000 more inmates for a term of
25-years-to-life would cripple the corrections system.
On February 9, 2009, a United States district court three-judge
panel issued a tentative ruling mandating the State of
California to resolve chronic prison overcrowding. In the
tentative ruling, the judges state "[t]he evidence is
compelling that there is no relief other than a prisoner
release order that will remedy the unconstitutional prison
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conditions." With prisons housing twice the population they
were built to accommodate, the prospect of early release of
inmates appears imminent unless the Legislature relieves the
current prison population. Given the untenable legal
disparity this bill proposes and the strength of existing law,
does it make sense to further contribute to the state's
mounting overcrowding problem?
5)Argument in Support : According to the District Attorney
Kamala Harris, City and County of San Francisco : "Prosecutors
seeking to protect victims of elder abuse face unique
challenges holding abusers accountable. Unlike Penal Code
guidelines on child abuse or sexual assault against minors, in
elder abuse cases, prosecutors must demonstrate that the
perpetrator knew the victim was elderly and that the bused
caused 'unjustifiable physical pain or mental suffering to the
victim', above and beyond the actual injury. Elders and
dependent adults are frequently targeted for exploitation and
abuse from family members or others on whom they depend. My
office has encountered elders abused by their own children but
fearful of hurting their children by attesting to the pain
they suffer and elders suffering from dementia or too infirm
to recall specifics about the impact of the crimes committed
against them. Under current law, despite their injuries,
these victims cannot testify to unjustifiable physical pain or
mental suffering, making it very difficult to bring their
abusers to justice. AB 768 eliminates the requirement that
the perpetrator have specific knowledge of the victim's status
as an elder or dependent adult and includes physical or
psychological injury as evidence of elder abuse, in addition
to unjustifiable pain and suffering California lawmakers
have already recognized elders as uniquely vulnerable and
deserving of protection."
6)Argument in Opposition : According the California Attorneys for
Criminal Justice (CACJ), "Penal Code Section 368 prohibits the
abuse of elder and dependent adults. This statute requires
proof that the alleged violator 'knows or reasonably should
know that the person is an elder or dependent adult'. This
'knowing' requirement ensures that these specialized penalties
will only apply to offenders who have decided to prey on a
vulnerable person. However, AB 768 would remove this vital
knowledge threshold element. As a result, your measure would
permit 'elder abuse' prosecutions for offenders who were
completely unaware and had no reason to know to that their
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chosen victim was an elderly or dependent person. Such an act
is already prohibited by current law; however, your bill would
permit 'elder abuse' prosecutions without requiring an elder
or dependent adult as the targeted victim.
"Eliminating the subjective knowledge requirement is also
frowned upon by the courts because it encourages ignorance of
such elements [Pryor vs. Municipal Courts (1979) 25 Cal.3rd
238.] CACJ is also concerned that AB 768 expands the scope of
Penal Code Section 368 to include 'psychological injury',
This term is vague and overbroad. On its face it appears that
this language would permit prosecution with nominal emotional
turmoil; causing someone to become upset or disturbed in any
way. Many dependent adults suffer from afflictions such as
Alzheimer's disease which can cause paranoia and unreasonable
emotional response. The language of AB 768 would authorize
prosecutions based on emotional responses of an alleged
victim, even if that response is a byproduct of fully onset
dementia and paranoia. CACJ cannot imagine that this is your
intent. However, the actual language of the statute would
capture these situations which a person 'causes' psychological
injury.
"Passage of AB 768 would expose caretakers and citizens alike to
enhanced felony prosecutions merely for an encounter with a
combative or assaultive stranger. AB 768 also seeks to
engraft unnecessary verbiage that would make the accidental
infliction of harm upon an elder or dependent adult, in
effect, a strict liability tort and crime. California already
has enacted ample legislation to deal with criminal
negligence. Adding such terms to a Penal law would only serve
to confuse the roles and responsibilities of law abiding
caretakers and even family members, who are already at
heightened risk for frivolous liability claims."
7)Prior Legislation :
a) AB 2038 (Lieber), of the 2007-08 Legislative Session,
would have replaced the phrase "dependant adult" with the
phrase "adult with disability" and "inpatient adults", as
specified, in numerous code sections and defines
"disability" as a mental or physical disability as defined
in the Fair Employment and Housing Act, as specified. AB
2038 died on the Senate Appropriations Committee's Suspense
File.
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b) AB 3095 (Committee on Aging and Long Term Care), Chapter
893, Statutes of 2004, expanded provisions related to elder
abuse to include a situation in which the person reasonably
should have known that the victim was an elder or dependent
adult.
REGISTERED SUPPORT / OPPOSITION :
Support
California Advocates for Nursing Home Reform
California Alliance for Retired Americans
Institute on Aging
Office of the District Attorney, City and County of San
Francisco
Tuolumne County District Attorney's Office
Two private individuals
Opposition
California Attorneys for Criminal Justice
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744