BILL ANALYSIS Ó AB 332 Page 1 Date of Hearing: May 3, 2011 Counsel: Gabriel Caswell ASSEMBLY COMMITTEE ON PUBLIC SAFETY Ammiano, Tom, Chair AB 332 (Butler) - As Amended: April 6, 2011 As Proposed to be Amended in Committee SUMMARY : Increases the fines for theft, embezzlement, forgery, or fraud, and identity theft and identity crimes against an elder or dependent adult. Specifically, this bill : 1)Increases the fine for misdemeanor 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, from up to $1,000 to up to $2,500 ($18,603 with penalties and assessments). 2)Creates a fine not to exceed an amount of $10,000 ($37,103 with penalties and assessments) for felony theft, embezzlement, forgery, or fraud, end identity theft and identity crimes against an elder or dependent adult when the value of the loss exceeds $950. EXISTING LAW : 1)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. İPenal Code Section 368(h).] 2)Defines "elder" as any person who is 65 years of age or older. İPenal Code Section 368(g).] 3)Establishes fines and other punishment for theft, embezzlement, forgery, or fraud, and identity theft and identity crimes, as follows (Penal Code Section 368): a) For a person who is not a caretaker, and who knows or AB 332 Page 2 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 a person who is 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) By a fine not exceeding $1,000; ii) Up to one year in a county jail; or, iii) State prison for two, three or four years. c) For a person who is 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; ii) By imprisonment in a county jail not exceeding one year; or, iii) By both that fine and imprisonment. d) For a person who is a caretaker, and the value of the labor, goods, services, funds, or real and/or personal property taken exceeds $950: i) By a fine not exceeding $1,000; AB 332 Page 3 ii) Up to one year in a county jail; or, iii) State prison for two, three or four years. FISCAL EFFECT : Unknown COMMENTS : 1)Author's Statement : According to the author, "Currently, the penalties proscribed for theft, embezzlement, forgery, or fraud with respect to the property or personal identifying information of an elder or a dependent adult are far below any reasonable standard that would deter a criminal from committing multiple offenses. This bill enhances the fines imposed so that the punishment fits the crime." 2)Background : According to background material supplied by the author, "Our elder population is vulnerable and there is very little deterrence to stop criminals from repeatedly stealing from them. In the last 10 years, there were 4,735 convictions under Penal Code Section 368 crimes against seniors. "Elders and dependent adults are often not equipped to protect themselves from unscrupulous criminals who prey on those who are isolated and may not have families and friends watching out for them. Considering the current economic environment in California, it has never been more important to bolster protections for dependent seniors. "This bill does not create any sentence enhancements. It only increases the fines associated with the penalties. "This bill protects the most vulnerable among us, by maximizing the fine for any person who knowingly steals the identity or property of an elderly person." 3)Penalties and Assessments : With state and local budget constraints in recent years, penalty assessments have become a way for California and its counties to raise needed funds. Currently, penalty assessments are 270% of the base fine, with a flat $103 added to each fine. Calculation of penalty assessments on a base fine of $10,000: AB 332 Page 4 Base Fine: $10,000 Penal Code 1464 Assessment: $10,000($10 for every $10 in fines) Penal Code 1465.7 Assessment: 2,000(20% surcharge) Penal Code 1465.8 Assessment: 40($40 fee per fine) Government Code 70372 Assessment: 5,000($5 for every $10 in fines) Government Code 76000 Assessment: 7,000($7 for every $10 in fines) Government Code 76000.10 Assessment: 4($4 fee per fine) Government Code 76000.5 Assessment: 2,000 ($2 for every $10 in fines) Government Code 76104.6 Assessment: 1,000($1 for every $10 in fines) Vehicle Code 42007.1(a) Assessment: 49($49 fee per fine) Vehicle Code 40508.6 Assessment: 10($10 fee per fine) Total Fine with Assessment: $37,103 4)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." İOriginal 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 Section 368 as requiring a tort grounded duty of care to save AB 332 Page 5 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.) İHeitzman 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 reasonably should know that a person is an elder or dependent AB 332 Page 6 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. İPenal 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 that 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. 5)Argument in Support : According to the Consumer Federation of America , "İt]his bill will strengthen protections from identity theft for California's most vulnerable consumers: seniors. Seniors are particularly susceptible to identity theft due to their frequent use of their social security numbers in hospitals, nursing homes, and on Medicare cards and correspondence. By increasing the penalties for stealing the identities of elders, AB 332 (Butler) will help hold elder abusers and identity thieves accountable and potentially prevent this terrible crime from occurring." 6)Argument in Opposition : According to Legal Services for Prisoners with Children (LSPC), "LSPC does not condone the financial abuse of the elderly, or of anyone. However, the law as it stands today provides for restitution. Increasing the fine will not benefit the elderly person who has been harmed. People who have criminal convictions have a difficult time obtaining gainful employment as it is. Placing additional financial burdens on individuals only makes it more difficult for them to survive." 7)Related Legislation : AB 1293 (Blumenfield) authorizes prosecutors to petition for forfeiture of assets in specified cases involving financial abuse of elder or dependent adults. AB 1293 will be heard by this Committee today. REGISTERED SUPPORT / OPPOSITION : AB 332 Page 7 Support California Alliance for Retired Americans Congress of California Seniors Consumer Federation of America Opposition Legal Services for Prisoners with Children Analysis Prepared by : Gabriel Caswell / PUB. S. / (916) 319-3744