BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 1293 (Blumenfield) 3
As Amended June 28, 2011
Hearing date: July 5, 2011
Penal Code
MK:dl
ELDER ABUSE:
THEFT OR EMBEZZLEMENT
HISTORY
Source: Author
Prior Legislation: AB 1199 (Richardson) - Ch. 408, Stats. 2007
AB 2827 (Escutia) - Ch. 431, Stats. 1996
SB 950 (Killea) - Ch. 794, Stats. 1995
Support: (All support to prior version of bill) Consumer
Attorneys of California; California Police Chiefs
Association; Office of the Attorney General; AARP;
California Senior Legislature
Opposition:None known
Assembly Floor Vote: Not relevant
KEY ISSUE
WHEN A DEFENDANT IS CHARGED WITH FELONY FINANCIAL ABUSE AGAINST AN
ELDER OR DEPENDENT ADULT IN WHICH OVER $100,000 WAS TAKEN OR LOST,
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SHOULD THE PROSECUTION BE AUTHORIZED TO SEEK AN ORDER SEIZING AND
HOLDING THE DEFENDANT'S ASSETS?
PURPOSE
The purposes of this bill are to allow the seizing and
preservation of assets of a criminal defendant charged with
felony elder or dependent adult financial abuse.
Existing law provides that where a defendant is convicted of two
or more related felonies involving fraud or embezzlement, and
the pattern of conduct involves the taking or loss of more than
$100,000, the defendant shall be punished by an "aggravated
white collar crime enhancement" of specified prison enhancement
term. The following applies to such cases:
The enhancement imposed only once in a criminal
proceeding.
A "pattern of related felony conduct" means engaging in
at least two felonies that have the same or similar
purpose, result, principals, victims, or methods of
commission, or are otherwise interrelated and are not
isolated events. "Two or more related felonies" are
felonies committed against two or more separate victims or
against the same victim on two or more occasions.
If the crimes involved taking or loss of more than
$500,000, the additional prison term shall be two, three,
or five years.
If the crimes involved taking or loss of between
$100,000 and 500,000, the additional prison term shall be
one or two years, as specified. (Pen. Code §§ 186.11,
subd. (a)(1)-(3) and 12022.6, subd. (a)(1)-(2).)
Existing law allows the prosecution in a case involving an
aggravated white collar crime enhancement to obtain an order for
the seizing and holding of the defendant's assets in order to
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prevent the defendant from hiding or dissipating the assets.
(Pen. Code § 186.11, subd. (e).)
Existing law provides that a person who claims an interest in
the protected property may file a claim concerning his or her
interest in seized property, as specified. (Pen. Code § 186.11,
subd. (e)(6).)
Existing law provides that the court shall order a defendant
subject to punishment under the white collar crime provisions to
make full restitution to victims. The court can order the
defendant to remain on probation for up to 10 years in order to
ensure payment of restitution. The provisions for protection of
assets seized from defendants shall remain in effect through
sentencing in order to satisfy fines and restitution orders.
(Pen. Code § 186.11, subds. (d) and (i)(1)(A)-(B).)
This bill provides for the preservation of assets and property
by the court of any person charged with felony elder or
dependent financial abuse if that conduct involves the taking or
loss of $100,000 or more.
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
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
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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.
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This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
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.
While district attorneys are spending scarce taxpayer
dollars prosecuting these complex cases, the
defendants often are defending themselves in court
using the assets they stole from the elderly victim.
Even when cases are successful, victims are unable to
recover their stolen property if it has been
transferred away or spent on exorbitantly priced
defense attorneys working on behalf of the
perpetrator.
To address this problem, in cases where more than
$100,000 has been stolen, Assembly Bill 1293 allows
the courts to freeze the assets of a financial
predator to ensure that the victim is made whole once
the defendant has been convicted. AB 1293 prevents
financial predators from spending down or secreting
away stolen assets while they are at trial.
2. " Seize and Freeze" for Elder Abuse Cases
Under existing law, a person convicted of elder financial abuse
will be required to pay restitution to the victim or the
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victim's estate. However, there are times when the defendant
may have liquidated their assets before the conviction and thus
have nothing left with which to pay the restitution. This bill
would allow a prosecutor to freeze the defendant's assets, in
elder or dependent adult financial abuse cases at the time of
the filing of the complaint and thus those assets will be
available upon conviction to help pay restitution.
3. Similar Legislation
AB 364 (Bonilla) which passed this committee on June 7, 2011
(5-2) and is currently on the Senate Floor Third Reading File,
provides for the preservation of assets and property by the
court of any person charged with a single act of fraud or
embezzlement if that conduct involves the taking or loss of
$100,000 or more. This bill would have some potential overlap
with Bonilla but would cover those elder financial abuse
situations where theft and not fraud or embezzlement was
involved.
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