BILL ANALYSIS Ó
AB 1293
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Date of Hearing: April 12, 2011
ASSEMBLY COMMITTEE ON AGING AND LONG-TERM CARE
Mariko Yamada, Chair
AB 1293 (Blumenfield) - As Introduced: February 18, 2011
SUBJECT : Elder and dependent adult abuse: theft or
embezzlement: forfeiture.
SUMMARY :
AB 1293 will do the following:
1)Allows prosecutors to re-claim property and/or funds that were
stolen or embezzled from an elder or dependent adult; and,
2)Upon conviction, allows prosecutors to be reimbursed by the
defendant for reasonable court costs of cases involving elder
or dependent adults and theft, fraud or embezzlement.
Specifically, this bill :
1)Defines "Prosecuting Agency" as the Attorney General or the
district attorney of any county.
2) Permits prosecuting agencies to file a petition of forfeiture
with the Superior Court of the County in which a defendant has
been charged with theft or embezzlement of an elder or
dependent adult's property valued in excess of $100,000.
3)Requires the prosecuting agency to serve notice to every
interested party of the property in question if a forfeiture
action is initiated.
4)Permits any interested party to file a verified claim with the
court stating the amount of their claimed interest and an
affirmation or denial of the allegation.
5)Provides for special treatment of real property.
6)Allows persons with an interest in the forfeited property to
file a claim. The defendant may deny or affirm the claim. If
the defendant fails to, the court may enter a response of
denial on behalf of the defendant.
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7)If the defendant is found guilty of the underlying offense,
the issue of forfeiture will be tried in the same court.
8)Requires the prosecuting agency to prove beyond a reasonable
doubt that the property was acquired through embezzlement or
theft.
9)Upon conviction, the prosecuting agency's request for
restitution in the form of reasonable costs shall take into
consideration the defendant's ability to pay after the
defendant has forfeited the property, or proceeds.
10)Orders the property returned, even if the property had been
sold to an otherwise innocent purchaser.
11)Provides for a right of action for a bona fide innocent
purchaser of stolen or embezzled property of an elder or
dependent adult to recover his or her interest against the
defendant.
EXISTING LAW
1)Generally guarantees rights associated with acquiring,
possessing, and protecting property, and pursuing and
obtaining safety, happiness, and privacy.
2)Provides that crimes against elders and dependent adults are
deserving of special consideration and protection, because
elders and dependent adults may be cognitively or physically
impaired, and therefore less able to protect themselves, to
understand or report criminal conduct, or to testify in court
proceedings on their own behalf.
3)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.
4)Defines "elder" as any person who is 65 years of age or older.
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5)Establishes fines and other punishment for theft,
embezzlement, forgery, or fraud, and identity theft and
identity crimes, as follows:
a) For those persons who are 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:
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 those persons who are 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) Up to one year in a county jail; or,
ii) State prison for two, three or four years.
c) For those persons who are 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 those persons who are a caretaker and the value of
the labor, goods, services, funds, or real and/or personal
property taken exceeds $950:
i) Up to one year in a county jail; or,
ii) State prison for two, three or four years.
FISCAL EFFECT : Unknown
COMMENTS :
According to the Author: "This measure will allow prosecutors
to try more cases of severe financial elder abuse and will
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prevent predators from using ill-gotten gains for their defense.
It will protect a victim's assets by allowing the courts to
freeze the stolen assets when warranted."
Supporters assert that due to long-standing budgetary
constraints, many county district attorney offices need to be
very savvy about how they allocate resources. Financial abuse
cases can be some of the most complicated, time consuming and
complicated cases. AB 1293 offers DA's an important tool to
recoup the costs after prosecution.
REGISTERED SUPPORT / OPPOSITION :
Support
AARP
California Advocates for Nursing Home Reform (CANHR)
California Police Chiefs Association
Opposition
None on file.
Analysis Prepared by : Robert MacLaughlin / AGING & L.T.C. /
(916) 319-3990