BILL NUMBER: AB 1293 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 28, 2011
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, An act to add Section 186.12 to the
Penal Code, relating to elder abuse.
LEGISLATIVE COUNSEL'S DIGEST
AB 1293, as amended, Blumenfield. Elder abuse: theft or
embezzlement: forfeiture. restitution.
Existing law provides criminal penalties for any
caretaker of an elder or a dependent adult person
who steals or embezzles commits a crime
involving theft, embezzlement, forgery, fraud, or identify theft,
with respect to the property or personal information
of the elder or dependent adult , as specified .
This bill would authorize the prosecuting agency, as defined, in
conjunction with a criminal proceeding alleging theft or embezzlement
of property of an elder or dependant adult 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 for preservation of property of the
defendant for purposes of restitution to the victim, as specified
.
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 186.12 is added to the
Penal Code , to read:
186.12. (a) (1) A felony for purposes of this section means a
felony violation of subdivision (d) or (e) of Section 368, or a
felony violation of subdivision (c) of Section 15656 of the Welfare
and Institutions Code, that involves the taking or loss of more than
one hundred thousand dollars ($100,000).
(2) If a person is charged with a felony as described in paragraph
(1) and an allegation as to the existence of those facts has been
made, any property that is in the control of that person, and any
property that has been transferred by that person to a third party,
subsequent to the commission of any criminal act alleged pursuant to
this subdivision, other than in a bona fide purchase, whether found
within or outside the state, may be preserved by the superior court
in order to pay restitution imposed pursuant to this section. Upon
conviction of the felony, this property may be levied upon by the
superior court to pay restitution imposed pursuant to this section.
(b) (1) To prevent dissipation or secreting of property, the
prosecuting agency may, at the same time as or subsequent to the
filing of a complaint or indictment charging a felony subject to this
section, file a petition with the criminal division of the superior
court of the county in which the accusatory pleading was filed,
seeking a temporary restraining order, preliminary injunction, the
appointment of a receiver, or any other protective relief necessary
to preserve the property. The filing of the petition shall commence a
proceeding that shall be pendent to the criminal proceeding and
maintained solely to affect the criminal remedies provided for in
this section. The proceeding shall not be subject to or governed by
the provisions of the Civil Discovery Act as set forth in Title 4
(commencing with Section 2016.010) of Part 4 of the Code of Civil
Procedure. The petition shall allege that the defendant has been
charged with a felony as described in paragraph (1) of subdivision
(a) and shall identify that criminal proceeding and the property to
be affected by an order issued pursuant to this section.
(2) A notice regarding the petition shall be provided, by personal
service or registered mail, to every person who may have an interest
in the property specified in the petition. Additionally, the notice
shall be published for at least three successive weeks in a newspaper
of general circulation in the county where the property affected by
an order issued pursuant to this section is located. The notice shall
state that any interested person may file a verified claim with the
superior court stating the nature and amount of their claimed
interest. The notice shall set forth the time within which a claim of
interest in the protected property is required to be filed.
(3) If the property to be preserved is real property, the
prosecuting agency shall record, at the time of filing the petition,
a lis pendens in each county in which the real property is situated
which specifically identifies the property by legal description, the
name of the owner of record as shown on the latest equalized
assessment roll, and the assessor's parcel number.
(4) If the property to be preserved are assets under the control
of a banking or financial institution, the prosecuting agency, at the
time of the filing of the petition, may obtain an order from the
court directing the banking or financial institution to immediately
disclose the account numbers and value of the assets of the accused
held by the banking or financial institution. The prosecuting agency
shall file a supplemental petition, specifically identifying which
banking or financial institution accounts shall be subject to a
temporary restraining order, preliminary injunction, or other
protective remedy.
(5) Any person claiming an interest in the protected property may,
at any time within 30 days from the date of the first publication of
the notice of the petition, 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 the nature and amount
of his or her interest in the property. A verified copy of the claim
shall be served by the claimant on the Attorney General or district
attorney, as appropriate.
(6) The imposition of restitution pursuant to this section shall
be determined by the superior court in which the underlying criminal
offense is sentenced. Any judge who is assigned to the criminal
division of the superior court in the county where the petition is
filed may issue a temporary restraining order in conjunction with, or
subsequent to, the filing of an allegation pursuant to this section.
Any subsequent hearing on the petition shall also be heard by a
judge assigned to the criminal division of the superior court in the
county in which the petition is filed. At the time of the filing of
an information or indictment in the underlying criminal case, any
subsequent hearing on the petition shall be heard by the superior
court judge assigned to the underlying criminal case.
(c) Concurrent with or subsequent to the filing of the petition
pursuant to this section, the prosecuting agency may move the
superior court for, and the superior court may issue, the following
pendente lite orders to preserve the status quo of the property
identified in the petition:
(1) An injunction to restrain any person 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 properties so that the property may be
maintained and preserved. The court may order that a receiver
appointed pursuant to this section shall be compensated for all
reasonable expenditures made or incurred by him or her in connection
with the possession, care, management, and operation of any property
that is subject to this section.
(3) A bond or other undertaking, in lieu of other orders, of a
value sufficient to ensure the satisfaction of restitution imposed
pursuant to this section.
(d) (1) No preliminary injunction may be granted or receiver
appointed by the court without notice that meets the requirements of
paragraph (2) of subdivision (b) to all known and reasonably
ascertainable interested parties and upon a hearing to determine that
an order is necessary to preserve the property pending the outcome
of the criminal proceedings. A temporary restraining order may be
issued by the court, ex parte, pending that hearing in conjunction
with or subsequent to the filing of the petition upon the application
of the prosecuting attorney. The temporary restraining order may be
based upon the sworn declaration of a peace officer with personal
knowledge of the criminal investigation that establishes probable
cause to believe that a felony has taken place and that the amount of
restitution established by this section exceeds or equals the worth
of the property subject to the temporary restraining order. The
declaration may include the hearsay statements of witnesses to
establish the necessary facts. The temporary restraining order may be
issued without notice upon a showing of good cause to the court.
(2) The defendant, or a person who has filed a verified claim as
provided in paragraph (5) of subdivision (b), shall have the right to
have the court conduct an order to show cause hearing within 10 days
of the service of the request for hearing upon the prosecuting
agency, in order to determine whether the temporary restraining order
should remain in effect, whether relief should be granted from any
lis pendens recorded pursuant to paragraph (3) of subdivision (b), or
whether any existing order should be modified in the interests of
justice. Upon a showing of good cause, the hearing shall be held
within two days of the service of the request for hearing upon the
prosecuting agency.
(3) In determining whether to issue a preliminary injunction or
temporary restraining order in a proceeding brought by a prosecuting
agency in conjunction with or subsequent to the filing of an
allegation pursuant to this section, the court has the discretion to
consider any matter that it deems reliable and appropriate, including
hearsay statements, in order to reach a just and equitable decision.
The court shall weigh the relative degree of certainty of the
outcome on the merits and the consequences to each of the parties of
granting the interim relief. If the prosecution is likely to prevail
on the merits and the risk of dissipation of the property outweighs
the potential harm to the defendants and the interested parties, the
court shall grant injunctive relief. The court shall give significant
weight to the following factors:
(A) The public interest in preserving the property pendente lite.
(B) The difficulty of preserving the property pendente lite where
the underlying alleged crimes involve issues of fraud and moral
turpitude.
(C) The fact that the requested relief is being sought by a public
prosecutor on behalf of alleged victims of elder or dependent adult
financial abuse.
(D) The likelihood that substantial public harm has occurred where
a felony is alleged to have been committed.
(E) The significant public interest involved in compensating the
elder or dependent adult victim of financial abuse and paying
court-imposed restitution.
(4) The court, in making its orders, may consider a defendant's
request for the release of a portion of the property affected by this
section in order to pay reasonable legal fees in connection with the
criminal proceeding, any necessary and appropriate living expenses
pending trial and sentencing, and for the purpose of posting bail.
The court shall weigh the needs of the public to retain the property
against the needs of the defendant to a portion of the property. The
court shall consider the factors listed in paragraph (3) prior to
making any order releasing property for these purposes.
(5) The court, in making its orders, shall seek to protect the
interests of any innocent third persons, including an innocent
spouse, who were not involved in the commission of any criminal
activity.
(6) Any petition filed pursuant to this section shall be part of
the criminal proceedings for purposes of appointment of counsel and
shall be assigned to the criminal division of the superior court of
the county in which the accusatory pleading was filed.
(7) Based upon a noticed motion brought by the receiver appointed
pursuant to paragraph (2) of subdivision (c), the court may order an
interlocutory sale of property identified in the petition when the
property is liable to perish, to waste, or to be significantly
reduced in value, or when the expenses of maintaining the property
are disproportionate to the value thereof. The proceeds of the
interlocutory sale shall be deposited with the court or as directed
by the court pending determination of the proceeding pursuant to this
section.
(8) The court may make any orders that are necessary to preserve
the continuing viability of any lawful business enterprise that is
affected by the issuance of a temporary restraining order or
preliminary injunction issued pursuant to this action.
(9) In making its orders, the court shall seek to prevent any
property subject to a temporary restraining order or preliminary
injunction from perishing, spoiling, going to waste, or otherwise
being significantly reduced in value. Where the potential for
diminution in value exists, the court shall appoint a receiver to
dispose of or otherwise protect the value of the property.
(10) A preservation order shall not be issued against any assets
of a business that are not likely to be dissipated and that may be
subject to levy or attachment to meet the purposes of this section.
(e) If the allegation that the defendant committed a felony
subject to this section is dismissed or found by the trier of fact to
be untrue, any preliminary injunction or temporary restraining order
issued pursuant to this section shall be dissolved. If a jury is the
trier of fact, and the jury is unable to reach a unanimous verdict,
the court shall have the discretion to continue or dissolve all or a
portion of the preliminary injunction or temporary restraining order
based upon the interests of justice. However, if the prosecuting
agency elects not to retry the case, any preliminary injunction or
temporary restraining order issued pursuant to this section shall be
dissolved.
(f) (1) (A) If the defendant is convicted of a felony subject to
this section, the trial judge shall continue the preliminary
injunction or temporary restraining order until the date of the
criminal sentencing and shall make a finding at that time as to what
portion, if any, of the property subject to the preliminary
injunction or temporary restraining order shall be levied upon to pay
restitution to victims of the crime. The order imposing restitution
may exceed the total worth of the property subjected to the
preliminary injunction or temporary restraining order. The court may
order the immediate transfer of the property to satisfy any judgment
and sentence made pursuant to this section. Additionally, upon motion
of the prosecution, the court may enter an order as part of the
judgment and sentence making the order imposing restitution pursuant
to this section enforceable pursuant to Title 9 (commencing with
Section 680.010) of Part 2 of the Code of Civil Procedure.
(B) Additionally, the court shall order the defendant to make full
restitution to the victim or to make restitution to the victim based
on his or her ability to pay, as defined in subdivision (b) of
Section 1203.1b. The payment of the restitution ordered by the court
pursuant to this section shall be made a condition of any probation
granted by the court. Notwithstanding any other provision of law, the
court may order that the period of probation continue for up to 10
years or until full restitution is made to the victim, whichever is
earlier.
(C) The sentencing court shall retain jurisdiction to enforce the
order to pay additional restitution and, in appropriate cases, may
initiate probation violation proceedings or contempt of court
proceedings against a defendant who is found to have willfully failed
to comply with any lawful order of the court.
(D) If the execution of judgment is stayed pending an appeal of an
order of the superior court pursuant to this section, the
preliminary injunction or temporary restraining order shall be
maintained in full force and effect during the pendency of the
appellate period.
(2) The order imposing restitution shall not affect the interest
in real property of any third party that was acquired prior to the
recording of the lis pendens, unless the property was obtained from
the defendant other than as a bona fide purchaser for value. If any
assets or property affected by this section are subject to a valid
lien, mortgage, security interest, or interest under a conditional
sales contract and the amount due to the holder of the lien,
mortgage, interest, or contract is less than the appraised value of
the property, that person may pay to the state or the local
government that initiated the proceeding the amount of the difference
between the appraised value of the property and the amount of the
lien, mortgage, security interest, or interest under a conditional
sales contract. Upon that payment, the state or local entity shall
relinquish all claims to the property. If the holder of the interest
elects not to make that payment to the state or local governmental
entity, the interest in the property shall be deemed transferred to
the state or local governmental entity and any indicia of ownership
of the property shall be confirmed in the state or local governmental
entity. The appraised value shall be determined as of the date
judgment is entered either by agreement between the holder of the
lien, mortgage, security interest, or interest under a conditional
sales contract and the governmental entity involved, or if they
cannot agree, then by a court-appointed appraiser for the county in
which the action is brought. A person holding a valid lien, mortgage,
security interest, or interest under a conditional sales contract
shall be paid the appraised value of his or her interest.
(3) In making its final order, the court shall seek to protect the
legitimately acquired interests of any innocent third persons,
including an innocent spouse, who were not involved in the commission
of any criminal activity.
(g) In all cases where property is to be levied upon pursuant to
this section, a receiver appointed by the court shall be empowered to
liquidate all property, the proceeds of which shall be distributed
in the following order of priority:
(1) To the receiver, or court-appointed appraiser, for all
reasonable expenditures made or incurred by him or her in connection
with the sale or liquidation of the property, including all
reasonable expenditures for any necessary repairs, storage, or
transportation of any property levied upon under this section.
(2) To any holder of a valid lien, mortgage, or security interest
up to the amount of his or her interest in the property or proceeds.
(3) To any victim as restitution for any fraudulent or unlawful
acts alleged in the accusatory pleading that were proven by the
prosecuting agency as part of the pattern of fraudulent or unlawful
acts.
(h) Unless otherwise expressly provided, the remedies or penalties
provided by this section are cumulative to each other and to the
remedies or penalties available under all other laws of this state,
except that two separate actions against the same defendant and
pertaining to the same fraudulent or unlawful acts may not be brought
by a district attorney or the Attorney General pursuant to this
section and Chapter 5 (commencing with Section 17200) of Part 2 of
Division 7 of the Business and Professions Code.
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.
(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.