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
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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;
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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:
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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
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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
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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
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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