BILL ANALYSIS Ó
AB 1293
Page 1
Date of Hearing: May 3, 2011
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1293 (Blumenfield) - As Introduced: February 18, 2011
SUMMARY : Permits prosecuting agencies to seek "restitution"
for the costs of the prosecution and permits prosecuting
agencies to seek forfeiture of a defendant's assets which are
derived from theft of embezzlement of an elder or dependent
adult. Specifically, this bill :
1)Authorizes, upon a conviction of elder abuse involving fraud
or embezzlement, the prosecuting agency to request
reimbursement for reasonable trial costs.
2)Authorizes 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.
3)Specifies that the court, in ordering payment of restitution
to the prosecuting agency, 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.
4)Defines "prosecuting agency" as the Attorney General or the
district attorney of any county.
EXISTING LAW :
1)States that 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
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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. ÝWelfare and
Institutions Code (WIC) Section 15656.]
2)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. (WIC Section 15656.)
3)Provides for forfeiture of assets for embezzlement under the
criminal profiteering scheme. ÝPenal Code Section 186.2(5).]
4)Provides concurrent with, or subsequent to, the filing of a
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 (Penal Code Section 186.6):
a) An injunction to restrain all interested parties and
enjoin them from transferring, encumbering, hypothecating
or otherwise disposing of that property.
b) 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.
c) No preliminary injunction may be granted or receiver
appointed without notice to the interested parties and a
hearing to determine that such an order is necessary to
preserve the property, pending the outcome of the criminal
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proceedings, and that there is probable cause to believe
that the property alleged in the forfeiture proceedings are
proceeds or property interests forfeitable. However, a
temporary restraining order may issue pending that hearing.
d) 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.
e) 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 criminal profiteering activity.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Every year in
California, a growing number of senior citizens are victimized
by those who steal the money they worked a lifetime to save.
Prosecuting these cases can be extremely complex, especially
in instances where financial predators have stolen hundreds of
thousands of dollars. As a result, it is very expensive to
prosecute. Many times, prosecuting agencies do not have the
financial resources to bring all of the cases to court.
"This measure will allow prosecutors to try more cases of severe
financial elder abuse and will prevent predators from using
ill-gotten gains for their defense. Additionally, it will
protect a victim's assets by allowing the courts to freeze the
stolen assets when warranted."
2)Prosecutors Cannot Receive Restitution from Criminal
Defendants : Restitution is for crime victims. Prosecutors
are not crime victims simply because they engage in their
designated government function - prosecution of alleged
criminal activity. Governmental entities that incur costs in
prosecuting crimes are not victims. (People v. Baker, 39
Cal.App.4th 550.) Governmental agencies carrying out their
assigned tasks are not "victims" under Penal Code Section
1202.4. (People v. Martinez 36 C4th 384.)
Existing law requires criminal defendant pay restitution to
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direct victims of crimes. ÝPenal Code Section 1202.4(k).]
The purpose of criminal restitution is to make the victim
whole and to punish and rehabilitate the defendant. ÝPeople
v. Moser (1996) 50 Cal.App.4th 130.] The current statute is
consistent with interpretations of former Government Code
Section 13967(c) which also required defendants to pay
restitution to crime victims. ÝPeople v. Torres, 59
Cal.App.4th 1.]
Courts have held made holdings on this direct issue. In People
v. Torres, 59 Cal.App.4th 1; a Sonoma County trial court
ordered a defendant to pay restitution to Sonoma County for
the costs of the undercover officers' purchases of cocaine
from the defendant. The First District Appellate overturned
the superior court's restitution order, holding that law
enforcement is not a "direct victim of the crime" when
engaging in the regular course of investigating criminal
activity. Further, the Appellate Court noted "earlier cases
make it fairly obvious distinction between the costs attendant
upon enforcing the criminal law and restitution to victims of
crime." The court went on to elaborate that in instances when
a law enforcement agency is actually the victim of
embezzlement or fraud, then it would be the victim of a crime
and entitled to restitution. For instance, a government
agency, such as a defrauded welfare department, may be a
victim of crime and eligible for restitution. (People v.
Crow, 6 Cal.4th 952.)
3)Ethical Conflict for a Prosecuting Agency to Receive a Direct
Financial Benefit from the Outcome of a Criminal Case : Under
general principles, of law prosecutors have a higher ethical
standard. Prosecutors are entrusted by the public to hold a
great deal of power. As such, they have a responsibility to
avoid even the appearance of impropriety. Unlike in civil
cases, prosecutors have ethical obligations that go above and
beyond those that apply to standard California attorneys
engaged in litigation. These standards apply because they are
given the power to seek the deprivation of liberty from
California citizens.
Examples of ethical obligations placed on prosecutors include
disclosing exculpatory evidence, even when it is detrimental
to the case and even without the request of the defense.
(Brady v. Maryland, 373 US 83.) Prosecutors must disclose
when their witnesses have perjured themselves. (U.S. v. Alli,
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344 F3d 1002.) Prosecutors have a duty to not mislead defense
counsel in plea bargain negotiations. (Monroe v. State Bar,
55 C2d 145.) Prosecutors may not file charges that are not
supported by probable cause. ÝCal Rules of Prof. Conduct
5-200(B).]
Permitting a prosecuting agency to derive a financial benefit
from the outcome of a criminal trial casts a shadow of
impropriety and conflict of interest over these ethical rules.
Prosecutors actually stand to financially gain by not
disclosing exculpatory evidence, failing to disclose perjured
witnesses, engaging in falsified plea bargains, filing charges
without probable cause, or simply falsifying evidence. The
criminal justice system as a whole benefits when there is no
appearance of ethical conflict.
Additionally, it is unclear whether defense counsel would be
able to impeach prosecution witnesses on the issue of bias.
Generally, attorneys are permitted to question witnesses on
the stand when they stand to benefit from the outcome of the
case. If prosecutors pay witnesses to testify as experts, or
as in house investigators, the defense should be able to point
out that they stand to profit from the outcome of the case.
This could unnecessarily cast doubt on the veracity of the
witnesses' testimony.
4)If Prosecutors are Given Restitution Actual Victims Will be
Less Likely to Collect Restitution : Crime victims who suffer
economic loss as a result of the defendant's criminal activity
are entitled to restitution. ÝPenal Code Sections 1202.4(f)
and 1203.1(j).] It is a general principal of criminal law
that victim restitution is to be paid prior to other fines or
fees. Victims are placed into the same pool of individuals
from which victims may collect from the limited funds of a
defendant, who is generally represented by a public defender.
Under this bill, prosecuting agencies would have the same right
to try to obtain restitution funds after the initial payment
for restitution as the actual victims of the criminal
activity. Prosecutors, who have the immense resources of a
governmental agency, would have a much easier time enforcing
an order of the court for restitution than a general crime
victim. The actual result of this bill could be that
prosecuting agencies would be paid first for the reasonable
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trial costs, and actual victims would never be repaid for
their actual economic losses.
5)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." ÝOriginal 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
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
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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.) ÝHeitzman 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
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.
ÝPenal 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.
6)Argument in Support : According to the California Senior
Legislature , "Ýt]his bill allows prosecuting agencies to file
a petition of forfeiture in criminal proceedings where
$100,000 or more is alleged to have been stolen or embezzled
from an elder or dependent adult. It requires a forfeiture
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proceeding upon conviction where prosecutors must prove that
the property was acquired through the theft or embezzlement of
the elder or dependent adult. In addition, it allows the
court to order the preservation of stolen property to prevent
it from being spent, and authorizes the prosecuting agency to
recover reasonable trial costs."
7)Argument in Opposition : According to the American Civil
Liberties Union , "Ýt]he financial costs of general police
services, including trial costs and prosecutor's attorney fees
should generally be the responsibility of the state and not of
the individual defendant. Public safety services benefit the
society at large and those costs should be borne by the
community. While the government may be the beneficiary of
restitution resulting from the crime committed, it may not
recover costs for the expenses of performing its regular
duties. See People v. Rugamas (2001) 93 Cal.App.4th 518.
"The public policy implications of charging criminal
defendants for prosecutorial costs are significant. We urge
caution in heading in this direction. Requiring payment for
costs could lead to actual victims not being paid if the court
has ordered restitution and could make it more financially
difficult for defendants and their families to become
productive members of society."
REGISTERED SUPPORT / OPPOSITION :
Support
AARP
California Police Chiefs Association
California Senior Legislature
Consumer Attorneys of California
Opposition
American Civil Liberties Union
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744
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