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 :   








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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