BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 332 (Butler)
As Amended May 11, 2011
Hearing date: June 14, 2011
Penal Code
MK:dl
ELDER ABUSE
HISTORY
Source: California Senior Legislature
Prior Legislation: None
Support: County of San Joaquin; AARP; City of Vacaville;
California State Sheriffs' Association; Consumer
Federation of California; Congress of California
Seniors; California Reliance for Retired Americans;
California Advocates for Nursing Home Reform;
California District Attorneys Association; American
Federation of State, County and Municipal Employees
(AFSCME)
Opposition:None Known
Assembly Floor Vote: Ayes 78 - Noes 0
KEY ISSUE
SHOULD THE FINES BE INCREASED FOR FRAUD, EMBEZZLEMENT, THEFT,
FORGERY, ETCETERA, AGAINST AN ELDER OR DEPENDENT ADULT WHEN THE
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AMOUNT TAKEN IS MORE THAN $950?
PURPOSE
The purpose of this bill is to increase the fines for fraud,
embezzlement, theft, etcetera, against an elder or dependent
adult when the amount taken is more than $950.
Existing law 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. (Penal Code § 368(h).)
Existing law defines "elder" as any person who is 65 years of
age or older. (Penal Code § 368(g).)
Existing law establishes fines and other punishment for theft,
embezzlement, forgery, or fraud, and identity theft and identity
crimes against and elder or dependent adult, as follows:
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
does not exceed $950 may be punished by a fine not
exceeding $1,000 and/or by imprisonment in a county jail
not exceeding one year. (Penal Code § 368 (d).)
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 may be punished by up to one year in a county
jail or 2, 3 or 4 years in state prison. (Penal Code § 368
(d).)
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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 may be punished by a fine not
exceeding $1,000 and/or by imprisonment in a county jail
not exceeding one year. (Penal Code § 368 (e).)
A person who is a caretaker, and the value of the labor,
goods, services, funds, or real and/or personal property
taken exceeds $950 may be punished by up to one year in a
county jail or 2, 3 or 4 years in state prison. (Penal Code
§ 368(e).)
This bill provides that the penalties for a person who is not a
caretaker shall be by a fine not exceeding $2,500 and or up to
one year in county jail or by a fine up to $10,000 and/or 2, 3
or 4 years in state prison when the amount is more than $950.
This bill provides instead that the penalties for a person who
is a caretaker shall be by a fine not exceeding $2,500 and/or
imprisonment in the county jail not exceeding one year or by a
fine up to $10,000 or by imprisonment in the state prison for 2,
3 or 4 years or by both fine and imprisonment when the amount
taken is more than $950.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
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state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
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This legislation is needed in order to protect
California's seniors and dependent adults. This
population is vulnerable and there is very little
deterrence to stop criminals from repeatedly stealing
from them.
In the Last 10 Years, There Have Been 4735
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 by
increasing the fines outlined in Penal Code Section
368 by those who have preyed on this population.
2. Increase in Fine for Fraud Against an Elder
Under existing law, a person who is convicted of fraud, theft,
embezzlement or forgery against an elder or dependent adult, and
the amount taken exceeds $950, is guilty of a wobbler punishable
by one year in county jail or 2, 3 or 4 years in prison. This
bill would provide that if the person is convicted of a
misdemeanor in addition to the one year in jail he or she would
be subject to a fine up to $2,500 and if he or she were
convicted of the felony then in addition to the 2, 3 or 4 years
in prison the person would be subject to a fine up to $10,000.
3. Penalties and Assessments
In addition to the base fine penalty assessments are added to
every criminal fine or traffic violation. Currently, penalty
assessments are 270% of the base fine, with a flat $103 added to
each fine.
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Calculation of penalty assessments on a base fine of $10,000:
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
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