BILL NUMBER: AB 1293	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MAY 11, 2011

INTRODUCED BY   Assembly Member Blumenfield

                        FEBRUARY 18, 2011

   An act to amend Section 15656 of, and to add Sections 15656.1,
15656.2, 15656.3, and 15656.4 to, the Welfare and Institutions Code,
relating to elder abuse.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 1293, as amended, Blumenfield. Elder abuse: theft or
embezzlement: forfeiture.
   Existing law provides criminal penalties for any caretaker of an
elder or a dependent adult who steals or embezzles the property of
the elder or dependent adult.
   This bill would authorize the prosecuting agency, as defined, in
conjunction with a criminal proceeding alleging theft or embezzlement
of property worth $100,000 or more, to file a petition of
forfeiture, as prescribed, with the superior court of the county in
which the defendant has been charged with the underlying criminal
offense, and alleging that the defendant has acquired the property or
proceeds through theft or embezzlement of an elder or dependent
adult's property.  This bill would also authorize, upon
conviction, the prosecuting agency to request restitution in the form
of reimbursement for reasonable trial costs. The court, in ordering
payment of restitution, would be required to take into account the
defendant's ability to pay after the defendant has forfeited the
property or proceeds acquired through theft or embezzlement of an
elder or dependent adult's property. 
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 15656 of the Welfare and Institutions Code is
amended to read:
   15656.  (a) Any person who knows or reasonably should know that a
person is an elder or dependent adult and who, under circumstances or
conditions likely to produce great bodily harm or death, willfully
causes or permits any elder or dependent adult to suffer, or inflicts
unjustifiable physical pain or mental suffering upon him or her, or
having the care or custody of any elder or dependent adult, willfully
causes or permits the person or health of the elder or dependent
adult to be injured, or willfully causes or permits the elder or
dependent adult to be placed in a situation such that his or her
person or health is endangered, is punishable by imprisonment in the
county jail not exceeding one year, or in the state prison for two,
three, or four years.
   (b) Any person who knows or reasonably should know that a person
is an elder or dependent adult and who, under circumstances or
conditions other than those likely to produce great bodily harm or
death, willfully causes or permits any elder or dependent adult to
suffer, or inflicts unjustifiable physical pain or mental suffering
on him or her, or having the care or custody of any elder or
dependent adult, willfully causes or permits the person or health of
the elder or dependent adult to be injured or willfully causes or
permits the elder or dependent adult to be placed in a situation such
that his or her person or health may be endangered, is guilty of a
misdemeanor.
   (c) (1) Any caretaker of an elder or a dependent adult who
violates any provision of law prescribing theft or embezzlement, with
respect to the property of that elder or dependent adult, is
punishable as follows:
   (A) By imprisonment in the county jail not exceeding one year, or
in the state prison for two, three, or four years when the money,
labor, or real or personal property taken is of a value exceeding
nine hundred fifty dollars ($950).
   (B) By a fine not exceeding one thousand dollars ($1,000), or by
imprisonment in the county jail not exceeding one year, or by both
that imprisonment and fine, when the money, labor, or real or
personal property taken is of a value not exceeding nine hundred
fifty dollars ($950).
   (2) The prosecuting agency may, in conjunction with a criminal
proceeding alleging theft or embezzlement of assets worth one hundred
thousand dollars ($100,000) or more, file a petition of forfeiture
with the superior court of the county in which the defendant has been
charged with the underlying criminal offense, alleging that the
defendant has acquired the property or proceeds through theft or
embezzlement of an elder or dependent adult's property and seeking to
have the property or proceeds returned to the victim. 
   (3) Upon conviction, the prosecuting agency may request
restitution in the form of reimbursement for reasonable trial costs.
The court, in ordering payment of restitution, shall take into
account the defendant's ability to pay after the defendant has
forfeited the property or proceeds pursuant to paragraph (2) and
Sections 15656.1 to 15656.4, inclusive. 
   (d) As used in this section, "caretaker" means any person who has
the care, custody, or control of or who stands in a position of trust
with, an elder or a dependent adult.
   (e) As used in this article "prosecuting agency" means the
Attorney General or the district attorney of any county.
   (f) Conduct covered in subdivision (b) of Section 15610.57 shall
not be subject to this section.
  SEC. 2.  Section 15656.1 is added to the Welfare and Institutions
Code, to read:
   15656.1.  (a) The prosecuting agency, in filing a petition of
forfeiture pursuant to paragraph (2) of subdivision (c) of Section
15656, shall make service of process of a notice regarding that
petition upon every individual who may have a property interest in
the alleged proceeds, which notice shall state that any interested
party may file a verified claim with the superior court stating the
amount of their claimed interest and an affirmation or denial of the
prosecuting agency's allegation. If the notices cannot be given by
registered mail or personal delivery, the notices shall be published
for at least three successive weeks in a newspaper of general
circulation in the county where the property is located. If the
property alleged to be subject to forfeiture is real property, the
prosecuting agency shall, at the time of filing the petition of
forfeiture, record a lis pendens in each county in which the real
property is situated which specifically identifies the real property
alleged to be subject to forfeiture. The judgment of forfeiture shall
not affect the interest in real property of any third party which
was acquired prior to the recording of the lis pendens.
   (b) All notices shall set forth the time within which a claim of
interest in the property seized is required to be filed pursuant to
Section 15656.2.
  SEC. 3.  Section 15656.2 is added to the Welfare and Institutions
Code, to read:
   15656.2.  (a) Any person claiming an interest in the property or
proceeds, at issue in the forfeiture petition, may, at any time
within 30 days from the date of the first publication of the notice
of seizure, or within 30 days after receipt of actual notice, file
with the superior court of the county in which the action is pending
a verified claim stating his or her interest in the property or
proceeds. A verified copy of the claim shall be given by the claimant
to the Attorney General or district attorney, as appropriate.
   (b) The defendant may admit or deny that the property is subject
to forfeiture pursuant to the provisions of this article. If the
defendant fails to admit or deny or to file a claim of interest in
the property or proceeds, the court shall enter a response of denial
on behalf of the defendant.
   (c) (1) The forfeiture proceeding shall be set for hearing in the
superior court in which the underlying criminal offense will be
tried.
   (2) If the defendant is found guilty of the underlying offense,
the issue of forfeiture shall be promptly tried, either before the
same jury or before a new jury in the discretion of the court, unless
waived by the consent of all parties.
   (d) At the forfeiture hearing, the prosecuting agency shall have
the burden of establishing beyond a reasonable doubt that the
property alleged in the petition was acquired by the defendant
through theft or embezzlement from an elder or dependent adult.
  SEC. 4.  Section 15656.3 is added to the Welfare and Institutions
Code, to read:
   15656.3.  (a) Concurrent with, or subsequent to, the filing of the
forfeiture petition, the prosecuting agency may move the superior
court for the following pendente lite orders to preserve the status
quo of the property alleged in the petition of forfeiture:
   (1) An injunction to restrain all interested parties and enjoin
them from transferring, encumbering, hypothecating, or otherwise
disposing of that property.
   (2) Appointment of a receiver to take possession of, care for,
manage, and operate the assets and properties so that such property
may be maintained and preserved.
   (b) No preliminary injunction may be granted or receiver appointed
without notice to the interested parties and a hearing to determine
that an order is necessary to preserve the property, pending the
outcome of the criminal proceedings, and that there is probable cause
to believe that the property alleged in the forfeiture proceedings
are proceeds or property interests forfeitable under subdivision (c)
of Section 15656. However, a temporary restraining order may issue
pending that hearing pursuant to the provisions of Section 527 of the
Code of Civil Procedure.
   (c) Notwithstanding any other provision of law, the court in
granting these motions may order a surety bond or undertaking to
preserve the property interests of the interested parties.
   (d) The court shall, in making its orders, seek to protect the
interests of those who may be involved in the same enterprise as the
defendant, but who were not involved in the commission of the theft
or embezzlement.
  SEC. 5.  Section 15656.4 is added to the Welfare and Institutions
Code, to read:
   15656.4.  (a) If a trier of fact at the forfeiture hearing finds
that the alleged property or proceeds is forfeitable pursuant to
subdivision (c) of Section 15656 and subdivision (d) of Section
15656.2, the court shall declare that property or proceeds forfeited
and order the property or proceeds be returned to the elder or
dependent adult from whom it was stolen or embezzled.
   (b) A bona fide or innocent purchasers of the stolen or embezzled
property of the elder or dependent adult shall be ordered by the
court to return the property or proceeds to the elder or dependent
adult, and that bona fide or innocent purchaser shall have the right
to bring an action against the defendent to recover his or her
interest in the property or proceeds.