BILL ANALYSIS Ó
AB 332
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Date of Hearing: April 12, 2011
ASSEMBLY COMMITTEE ON AGING AND LONG-TERM CARE
Mariko Yamada, Chair
AB 332 (Butler) - As Amended: April 6, 2011
SUBJECT : Elder Abuse.
SUMMARY : Elder and Dependent Financial Abuse: fines:
Specifically, this bill :
As Amended April 6, 2011
1)Increases fines for theft, embezzlement, forgery, or fraud,
and identity theft and identity crimes against an elder or
dependent adult from a maximum of $1,000 to a maximum of
$2,500, when the value of the losses from the crime do not
exceed $950.
2)Increases fines for theft, embezzlement, forgery, or fraud,
and identity theft and identity crimes when perpetrated by a
caregiver from a maximum of $1,000 to a maximum of $2,500,
when the value of the losses from the crime do not exceed
$950.
3)Adds a new fine for theft, embezzlement, forgery, or fraud,
and identity theft and identity crimes against an elder or
dependent adult when the value of the losses exceed $950, but
do not exceed $100,000, in the amount of $5,000.
4)Adds an additional new fine for theft, embezzlement, forgery,
or fraud, and identity theft and identity crimes against an
elder or dependent adult in the amount of $25,000 when the
value of the losses exceed $100,000.
5)Makes various technical and grammatical changes.
EXISTING LAW:
1)Generally guarantees rights associated with acquiring,
possessing, and protecting property, and pursuing and
obtaining safety, happiness, and privacy.
2)Provides that crimes against elders and dependent adults are
deserving of special consideration and protection, because
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elders and dependent adults may be cognitively or physically
impaired, and therefore less able to protect themselves, to
understand or report criminal conduct, or to testify in court
proceedings on their own behalf.
3)Defines "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.
4)Defines "elder" as any person who is 65 years of age or older.
5)Establishes fines and other punishment for theft,
embezzlement, forgery, or fraud, and identity theft and
identity crimes, as follows:
a) For those persons who are not a caretaker, and who knows
or reasonably should know that the victim is an elder or a
dependent adult, and the value of the labor, goods,
services, funds, or real and/or personal property taken
does not exceed $950:
i) By a fine not exceeding $1,000;
ii) By imprisonment in a county jail not exceeding one
year; or,
iii) By both that fine and imprisonment.
b) For those persons who are not a caretaker, and who knows
or reasonably should know that the victim is an elder or
a dependent adult, and the value of the labor, goods,
services, funds, or real and/or personal property taken
exceeds $950:
i) Up to one year in a county jail; or,
ii) State prison for two, three or four years.
c) For those persons who are a caretaker, and the value of
the labor, goods, services, funds, or real and/or personal
property taken does not exceed $950:
i) By a fine not exceeding $1,000;
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ii) By imprisonment in a county jail not exceeding one
year; or,
iii) By both that fine and imprisonment.
d) For those persons who are a caretaker, and the value of
the labor, goods, services, funds, or real and/or personal
property taken exceeds $950:
i) Up to one year in a county jail; or,
ii) State prison for two, three or four years.
FISCAL EFFECT : Unknown
COMMENTS : According to the author, "(c)riminal abuse of our
seniors must be fought at every level possible. That is why I
am asking for an increased fine for those who commit this crime
whether or not they are a caregiver or non-caregiver."
Recent reports describe identity theft and other financial
crimes as having catastrophic consequences, including the loss
of homes, life savings, and independence. Adult Protective
Services (APS) workers, law enforcement officials, and others
rank financial abuse and exploitation among their most
challenging cases because perpetrators of identity theft, fraud,
financial abuse, and exploitation have demonstrated remarkable
agility in changing practices in response to new laws,
regulations, and market forces. As a result, laws created to
respond to specific forms of abuse quickly become obsolete.
Discussion:
Recent amendments to AB 332 bring a degree of balance to the
fine and penalty structure for Penal Code Section 368 with
regard to theft, embezzlement, forgery, or fraud, and identity
theft and identity crimes against elder or dependent adults.
Existing law provides for incarceration of up to one year in
county jail and/or a fine of up to $1,000 if the value of the
moneys, labor, goods, services, or real, or personal property
taken or obtained is less than $950. In the event the value of
moneys, labor, goods, services, or real, or personal property
taken or obtained exceeds $950, there is no fine, though the
incarceration is incrementally increased from up to one year in
county jail, to up to one year in county jail or 2, 3 or 4 years
in state prison.
AB 332 increases the existing fine of $1,000 to $2,500. AB 332
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also adds language to establish two additional fines; one in the
amount of $5,000 for violations that result in losses exceeding
$950 but do not exceed $100,000, and another fine of $25,000
when the value of the losses from the violation exceeds
$100,000. AB 332 does not impact incarceration.
Arguments in support:
The author and staff, on behalf of the sponsors, the California
Senior Legislature, have expressed a desire to see a more
effective deterrent in statute. The sponsor states that there
is a great burden of time and money devoted to repairing the
damage to existing accounts as a result of identity theft and
that elders and dependent adults are often not equipped to
protect themselves from unscrupulous criminals who prey on those
who are vulnerable and isolated and may not have friends or
family looking out for them. AB 332 bolsters the protections
that elders and dependent adults need.
The California Long-Term Care Ombudsman Association states that
elder abuse has terrible consequences for care facility
residents and their loved ones, and references studies that
prove that abused elders have significantly shorter life spans,
often "giving-up'" after having become a victim.
The California State Sheriffs Association states that AB 332
protects the most vulnerable among us by maximizing fines for
persons who steal the identity of elders.
Arguments in opposition:
Legal Service of Prisoners with Children argues that current law
provides for restitution and that increasing fines will not
benefit the elderly person who has been harmed, and that they
are concerned that California is attempting to balance our state
budget by turning to criminal defendants.
Conflict in statute:
Penal Code Section 672, provides the following:
"Upon a conviction for any crime punishable by imprisonment in
any jail or prison, in relation to which no fine is herein
prescribed, the court may impose a fine on the offender not
exceeding one thousand dollars ($1,000) in cases of misdemeanors
or ten thousand dollars ($10,000) in cases of felonies, in
addition to the imprisonment prescribed."
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Penal Code Section 672 may provide a more meaningful deterrent
than current language in AB 332 when losses from crimes exceed
$950, but are less than $100,000. Penal Code 672 allows for
fines up to $10,000. AB 332 as written provides for fines up to
$5,000. The author may wish to consider addressing the
potential conflict in the Public Safety Committee as this bill
is dual referred next to that committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Senior Legislature (CSL) - sponsor
AFSCME
California Advocates for Nursing Home Reform (CANHR)
California Long-Term Care Ombudsman Association (CLTCOA)
California State Sheriff's Association (CSSA)
Opposition
Legal Services for Prisoners with Children (LSPC)
Analysis Prepared by : Robert MacLaughlin / AGING & L.T.C. /
(916) 319-3990