BILL NUMBER: SB 586 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 15, 2011
AMENDED IN ASSEMBLY JUNE 29, 2011
AMENDED IN SENATE MAY 27, 2011
AMENDED IN SENATE MAY 10, 2011
AMENDED IN SENATE APRIL 25, 2011
AMENDED IN SENATE APRIL 13, 2011
AMENDED IN SENATE MARCH 21, 2011
INTRODUCED BY Senator Pavley
(Coauthor: Senator Alquist)
FEBRUARY 17, 2011
An act to add Sections 953.5 and 14409.5 to the Financial Code,
and to amend Section 368 of the Penal Code, relating to banks and
credit unions.
LEGISLATIVE COUNSEL'S DIGEST
SB 586, as amended, Pavley. Banks and credit unions: signature
stamps.
Existing law, the Banking Law, regulates the organization and
operations of state-organized banks, and the California Credit Union
Law regulates the organization and operation of credit unions, the
willful violation of which is a crime. Existing law does not regulate
the issuance or use of a signature stamp in financial transactions.
This bill would define "signature stamp" and regulate the issuance
of a signature stamp by a state-organized bank or credit union to an
accountholder and the use of the signature stamp by the
accountholder in financial transactions with a bank or credit union.
The bill would require a stampholder to report a lost or stolen
signature stamp to the bank or credit union, as specified.
Existing law prohibits various types of elder abuse, punishable by
incarceration, fines, or both incarceration and fines, including
imprisonment in the county jail not exceeding one year, or by a fine
not to exceed $1,000, for specified types of abuse involving theft,
embezzlement, forgery, fraud, or identity theft.
This bill would increase the amount of each of the fines otherwise
imposed for the existing law offenses, and would provide that the
additional fine amount be allocated to the adult protective services
agency, or equivalent elder abuse prevention agency, of the county
prosecuting the offense. The bill would make changes to conform those
provisions to changes made in AB 109 of the 2011-12 Regular Session.
The bill would provide for restitution for a violation of these
provisions committed through use of a signature stamp. The bill
would additionally incorporate changes to Section 368 of the Penal
Code proposed by AB 332, to be operative if both bills are enacted
and become operative, as specified.
Because this bill would create new crimes, the bill would create a
state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 953.5 is added to the Financial Code, to read:
953.5. (a) As used in this section, "signature stamp" means a
rubber or other synthetic stamp or device that is used to accurately
imitate the signature of an individual. Nothing in this section shall
limit the use of signature stamps issued by a bank prior to the
enactment of this section.
(b) A bank shall only issue a signature stamp to an existing
accountholder if either (1) the accountholder is present to request
the stamp and an employee of the bank witnesses and acknowledges in
writing that the signature stamp was requested by the stampholder, or
(2) an accountholder is unable to physically come into a bank due to
disability, the accountholder provides a letter from a physician
attesting to the physical limitation, and the requesting
accountholder's signature has been notarized on an appropriate form
approved and issued by the bank.
(c) A bank that issues a signature stamp to an accountholder shall
inform the accountholder of the risks associated with loss, theft,
or misuse of the signature stamp, and his or her rights and
responsibilities as a stampholder, including, but not limited to, the
responsibility to review the account frequently and report any
unauthorized transactions promptly, and to report a lost or stolen
signature stamp as quickly as possible, upon the discovery that it
has been lost or stolen. Nothing in this subdivision shall be
construed to limit or expand any civil liabilities that may exist
between a bank and an individual customer.
(d) A bank shall not honor a request to open a new account that is
received by mail from a signature stamp holder.
(e) Any person who uses a signature stamp when committing a
violation of subdivision (d) or (e) of Section 368 of the Penal Code
shall, in addition to the penalties set forth therein, be liable for
restitution of all funds fraudulently obtained thereby, including the
monetary value of any goods or services so obtained.
(f) This section shall apply only to a natural person with respect
to his or her personal accounts, including, but not limited to,
those held in trust, and shall not apply to a natural person acting
in the capacity of a representative or an agent of an entity that is
not a natural person.
SEC. 2. Section 14409.5 is added to the Financial Code, to read:
14409.5. (a) As used in this section, "signature stamp" means a
rubber or other synthetic stamp or device that is used to accurately
imitate the signature of an individual. Nothing in this section shall
limit the use of signature stamps issued by a credit union prior to
the enactment of this section.
(b) A credit union shall only issue a signature stamp to an
existing accountholder if either (1) the accountholder is present to
request the stamp, and an employee of the credit union witnesses and
acknowledges in writing that the signature stamp was requested by the
stampholder, or (2) an accountholder is unable to physically come
into a credit union due to disability, the accountholder provides a
letter from a physician attesting to the physical limitation, and the
requesting accountholder's signature has been notarized on an
appropriate form approved and issued by the credit union.
(c) A credit union that issues a signature stamp to an
accountholder shall inform the accountholder of the risks associated
with loss, theft, or misuse of the signature stamp, and his or her
rights and responsibilities as a stampholder, including, but not
limited to, the responsibility to review the account frequently and
report any unauthorized transactions promptly, and to report a lost
or stolen signature stamp as quickly as possible, upon the discovery
that it has been lost or stolen. Nothing in this subdivision shall be
construed to limit or expand any civil liabilities that may exist
between a credit union and an individual customer.
(d) A credit union shall not honor a request to open a new account
that is received by mail from a signature stamp holder.
(e) Any person who uses a signature stamp when committing a
violation of subdivision (d) or (e) of Section 368 of the Penal Code
shall, in addition to the penalties set forth therein, be liable for
restitution of all funds fraudulently obtained thereby, including the
monetary value of any goods or services so obtained.
(f) This section shall apply only to a natural person with respect
to his or her personal accounts, including, but not limited to,
those held in trust, and shall not apply to a natural person acting
in the capacity of a representative or an agent of an entity that is
not a natural person.
SEC. 3. Section 368 of the Penal Code , as amended by Section
9 of Chapter 28 of the Third Extraordinary Session of the Statutes
of 2009, is amended to read:
368. (a) The Legislature finds and declares that crimes against
elders and dependent adults are deserving of special consideration
and protection, not unlike the special protections provided for minor
children, because elders and dependent adults may be confused, on
various medications, mentally or physically impaired, or incompetent,
and therefore less able to protect themselves, to understand or
report criminal conduct, or to testify in court proceedings on their
own behalf.
(b) (1) 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
thereon unjustifiable physical pain or mental suffering, 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 in which his or her person or
health is endangered, is punishable by imprisonment in a county jail
not exceeding one year, or by a fine not to exceed twelve thousand
dollars ($12,000), of which any amount in excess of six
thousand dollars ($6,000) of which shall be
allocated to the adult protective services agency, or equivalent
elder abuse prevention agency, of the county prosecuting the offense,
or by both that fine and imprisonment, or by imprisonment in the
state prison for two, three, or four years.
(2) If in the commission of an offense described in paragraph (1),
the victim suffers great bodily injury, as defined in Section
12022.7, the defendant shall receive an additional term in the state
prison as follows:
(A) Three years if the victim is under 70 years of age.
(B) Five years if the victim is 70 years of age or older.
(3) If in the commission of an offense described in paragraph (1),
the defendant proximately causes the death of the victim, the
defendant shall receive an additional term in the state prison as
follows:
(A) Five years if the victim is under 70 years of age.
(B) Seven years if the victim is 70 years of age or older.
(c) 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 thereon unjustifiable physical pain or mental
suffering, 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 in which his or
her person or health may be endangered, is guilty of a misdemeanor. A
second or subsequent violation of this subdivision is punishable by
a fine not to exceed four thousand dollars ($4,000), of which
any amount in excess of two thousand dollars ($2,000)
of which shall be allocated to the adult protective
services agency, or equivalent elder abuse prevention agency, of the
county prosecuting the offense, or by imprisonment in a county jail
not to exceed one year, or by both that fine and imprisonment.
(d) Any person who is not a caretaker who violates any provision
of law proscribing theft, embezzlement, forgery, or fraud, or who
violates Section 530.5 proscribing identity theft, with respect to
the property or personal identifying information of an elder or a
dependent adult, and who knows or reasonably should know that the
victim is an elder or a dependent adult, is punishable by
imprisonment in a county jail not exceeding one year, or in the state
prison for two, three, or four years, when the moneys, labor, goods,
services, or real or personal property taken or obtained is of a
value exceeding nine hundred fifty dollars ($950), and by a fine not
exceeding two thousand dollars ($2,000), of which any
amount in excess of one thousand dollars ($1,000) of which
shall be allocated to the adult protective services agency,
or equivalent elder abuse prevention agency, of the county
prosecuting the offense, by imprisonment in a county jail not
exceeding one year, or by both that fine and imprisonment, when the
moneys, labor, goods, services, or real or personal property taken or
obtained is of a value not exceeding nine hundred fifty dollars
($950).
(e) Any caretaker of an elder or a dependent adult who violates
any provision of law proscribing theft, embezzlement, forgery, or
fraud, or who violates Section 530.5 proscribing identity theft, with
respect to the property or personal identifying information of that
elder or dependent adult, is punishable by imprisonment in a county
jail not exceeding one year, or in the state prison for two, three,
or four years when the moneys, labor, goods, services, or real or
personal property taken or obtained is of a value exceeding nine
hundred fifty dollars ($950), and by a fine not exceeding two
thousand dollars ($2,000), of which any amount in excess
of one thousand dollars ($1,000) of which shall be
allocated to the adult protective services agency, or equivalent
elder abuse prevention agency, of the county prosecuting the offense,
by imprisonment in a county jail not exceeding one year, or by both
that fine and imprisonment, when the moneys, labor, goods, services,
or real or personal property taken or obtained is of a value not
exceeding nine hundred fifty dollars ($950).
(f) Any person who commits the false imprisonment of an elder or a
dependent adult by the use of violence, menace, fraud, or deceit is
punishable by imprisonment in the state prison for two, three, or
four years.
(g) As used in this section, "elder" means any person who is 65
years of age or older.
(h) As used in this section, "dependent adult" means any person
who is between 18 and 64 years of age, 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.
"Dependent adult" includes any person between 18 and 64 years of age
who is admitted as an inpatient to a 24-hour health facility, as
defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety
Code.
(i) 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.
(j) Nothing in this section shall preclude prosecution under both
this section and Section 187 or 12022.7 or any other provision of
law. However, a person shall not receive an additional term of
imprisonment under both paragraphs (2) and (3) of subdivision (b) for
any single offense, nor shall a person receive an additional term of
imprisonment under both Section 12022.7 and paragraph (2) or (3) of
subdivision (b) for any single offense.
(k) In any case in which a person is convicted of violating these
provisions, the court may require him or her to receive appropriate
counseling as a condition of probation. Any defendant ordered to be
placed in a counseling program shall be responsible for paying the
expense of his or her participation in the counseling program as
determined by the court. The court shall take into consideration the
ability of the defendant to pay, and no defendant shall be denied
probation because of his or her inability to pay.
SEC. 3.5. Section 368 of the Penal Code, as amended by Section 336
of Chapter 15 of the Statutes of 2011, is amended to read:
368. (a) The Legislature finds and declares that crimes against
elders and dependent adults are deserving of special consideration
and protection, not unlike the special protections provided for minor
children, because elders and dependent adults may be confused, on
various medications, mentally or physically impaired, or incompetent,
and therefore less able to protect themselves, to understand or
report criminal conduct, or to testify in court proceedings on their
own behalf.
(b) (1) 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
thereon unjustifiable physical pain or mental suffering, 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 in which his or her person or
health is endangered, is punishable by imprisonment in a county jail
not exceeding one year, or by a fine not to exceed twelve thousand
dollars ($12,000), of which any amount in excess of six
thousand dollars ($6,000) of which shall be
allocated to the adult protective services agency, or equivalent
elder abuse prevention agency, of the county prosecuting the offense,
or by both that fine and imprisonment, or by imprisonment in the
state prison for two, three, or four years.
(2) If in the commission of an offense described in paragraph (1),
the victim suffers great bodily injury, as defined in Section
12022.7, the defendant shall receive an additional term in the state
prison as follows:
(A) Three years if the victim is under 70 years of age.
(B) Five years if the victim is 70 years of age or older.
(3) If in the commission of an offense described in paragraph (1),
the defendant proximately causes the death of the victim, the
defendant shall receive an additional term in the state prison as
follows:
(A) Five years if the victim is under 70 years of age.
(B) Seven years if the victim is 70 years of age or older.
(c) 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 thereon unjustifiable physical pain or mental
suffering, 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 in which his or
her person or health may be endangered, is guilty of a misdemeanor. A
second or subsequent violation of this subdivision is punishable by
a fine not to exceed four thousand dollars ($4,000), of which
any amount in excess of two thousand dollars ($2,000)
of which shall be allocated to the adult protective
services agency, or equivalent elder abuse prevention agency, of the
county prosecuting the offense, or by imprisonment in a county jail
not to exceed one year, or by both that fine and imprisonment.
(d) Any person who is not a caretaker who violates any provision
of law proscribing theft, embezzlement, forgery, or fraud, or who
violates Section 530.5 proscribing identity theft, with respect to
the property or personal identifying information of an elder or a
dependent adult, and who knows or reasonably should know that the
victim is an elder or a dependent adult, is punishable by
imprisonment in a county jail not exceeding one year, or pursuant to
subdivision (h) of Section 1170 for two, three, or four years, when
the moneys, labor, goods, services, or real or personal property
taken or obtained is of a value exceeding nine hundred fifty dollars
($950), and by a fine not exceeding two thousand dollars ($2,000),
of which any amount in excess of one thousand dollars
($1,000) of which shall be allocated to the adult
protective services agency, or equivalent elder abuse prevention
agency, of the county prosecuting the offense, by imprisonment in a
county jail not exceeding one year, or by both that fine and
imprisonment, when the moneys, labor, goods, services, or real or
personal property taken or obtained is of a value not exceeding nine
hundred fifty dollars ($950).
(e) Any caretaker of an elder or a dependent adult who violates
any provision of law proscribing theft, embezzlement, forgery, or
fraud, or who violates Section 530.5 proscribing identity theft, with
respect to the property or personal identifying information of that
elder or dependent adult, is punishable by imprisonment in a county
jail not exceeding one year, or pursuant to subdivision (h) of
Section 1170 for two, three, or four years when the moneys, labor,
goods, services, or real or personal property taken or obtained is of
a value exceeding nine hundred fifty dollars ($950), and by a fine
not exceeding two thousand dollars ($2,000), of which any
amount in excess of one thousand dollars ($1,000) of which
shall be allocated to the adult protective services agency,
or equivalent elder abuse prevention agency, of the county
prosecuting the offense, by imprisonment in a county jail not
exceeding one year, or by both that fine and imprisonment, when the
moneys, labor, goods, services, or real or personal property taken or
obtained is of a value not exceeding nine hundred fifty dollars
($950).
(f) Any person who commits the false imprisonment of an elder or a
dependent adult by the use of violence, menace, fraud, or deceit is
punishable by imprisonment pursuant to subdivision (h) of Section
1170 for two, three, or four years.
(g) As used in this section, "elder" means any person who is 65
years of age or older.
(h) As used in this section, "dependent adult" means any person
who is between 18 and 64 years of age, 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.
"Dependent adult" includes any person between 18 and 64 years of age
who is admitted as an inpatient to a 24-hour health facility, as
defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety
Code.
(i) 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.
(j) Nothing in this section shall preclude prosecution under both
this section and Section 187 or 12022.7 or any other provision of
law. However, a person shall not receive an additional term of
imprisonment under both paragraphs (2) and (3) of subdivision (b) for
any single offense, nor shall a person receive an additional term of
imprisonment under both Section 12022.7 and paragraph (2) or (3) of
subdivision (b) for any single offense.
(k) In any case in which a person is convicted of violating these
provisions, the court may require him or her to receive appropriate
counseling as a condition of probation. Any defendant ordered to be
placed in a counseling program shall be responsible for paying the
expense of his or her participation in the counseling program as
determined by the court. The court shall take into consideration the
ability of the defendant to pay, and no defendant shall be denied
probation because of his or her inability to pay.
SEC. 3.7. Section 368 of the Penal Code
, as amended by Section 9 of Chapter 28 of the Third
Extraordinary Session of the Statutes of 2009, is amended to read:
368. (a) The Legislature finds and declares that crimes against
elders and dependent adults are deserving of special consideration
and protection, not unlike the special protections provided for minor
children, because elders and dependent adults may be confused, on
various medications, mentally or physically impaired, or incompetent,
and therefore less able to protect themselves, to understand or
report criminal conduct, or to testify in court proceedings on their
own behalf.
(b) (1) 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
thereon unjustifiable physical pain or mental suffering, 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 in which his or her person or
health is endangered, is punishable by imprisonment in a county jail
not exceeding one year, or by a fine not to exceed twelve
thousand dollars ($12,000), of which any amount in excess of
six thousand dollars ($6,000), or ($6,000)
shall be allocated to the adult protective services
agency, or equivalent elder abuse prevention agency, of the county
prosecuting the offense, or by both that fine and imprisonment,
or by imprisonment in the state prison for two, three, or four
years.
(2) If in the commission of an offense described in paragraph (1),
the victim suffers great bodily injury, as defined in Section
12022.7, the defendant shall receive an additional term in the state
prison as follows:
(A) Three years if the victim is under 70 years of age.
(B) Five years if the victim is 70 years of age or older.
(3) If in the commission of an offense described in paragraph (1),
the defendant proximately causes the death of the victim, the
defendant shall receive an additional term in the state prison as
follows:
(A) Five years if the victim is under 70 years of age.
(B) Seven years if the victim is 70 years of age or older.
(c) 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 thereon unjustifiable physical pain or mental
suffering, 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 in which his or
her person or health may be endangered, is guilty of a misdemeanor. A
second or subsequent violation of this subdivision is punishable by
a fine not to exceed four thousand dollars ($4,000), of which
any amount in excess of two thousand dollars ($2,000)
shall be allocated to the adult protec tive services
agency, or equivalent elder abuse prevention agency, of the county
prosecuting the offense, or by imprisonment in a county jail
not to exceed one year, or by both that fine and imprisonment.
(d) Any person who is not a caretaker who violates any provision
of law proscribing theft, embezzlement, forgery, or fraud, or who
violates Section 530.5 proscribing identity theft, with respect to
the property or personal identifying information of an elder or a
dependent adult, and who knows or reasonably should know that the
victim is an elder or a dependent adult, is punishable by
imprisonment in a county jail not exceeding one year, or in the state
prison for two, three, or four years, when the moneys, labor, goods,
services, or real or personal property taken or obtained is of a
value exceeding nine hundred fifty dollars ($950); and by a fine not
exceeding one thousand dollars ($1,000), by imprisonment in a county
jail not exceeding one year, or by both that fine and imprisonment,
when the moneys, labor, goods, services, or real or personal property
taken or obtained is of a value not exceeding nine hundred fifty
dollars ($950). as follows:
(1) By a fine not exceeding two thousand five hundred dollars
($2,500), or by imprisonment in a county jail not exceeding one year,
or by both that fine and imprisonment or, by a fine not exceeding
ten thousand dollars ($10,000), or by imprisonment in the state
prison for two, three, or four years, or by both that fine and
imprisonment, when the moneys, labor, goods, services, or real or
personal property taken or obtained is of a value exceeding nine
hundred fifty dollars ($950).
(2) By a fine not exceeding two thousand dollars ($2,000), of
which any amount in excess of one thousand dollars ($1,000) shall be
allocated to the adult protective services agency, or equivalent
elder abuse prevention agency, of the county prosecuting the offense,
by imprisonment in a county jail not exceeding one year, or by both
that fine and imprisonment, when the moneys, labor, goods, services,
or real or personal property taken or obtained is of a value not
exceeding nine hundred fifty dollars ($950).
(e) Any caretaker of an elder or a dependent adult who violates
any provision of law proscribing theft, embezzlement, forgery, or
fraud, or who violates Section 530.5 proscribing identity theft, with
respect to the property or personal identifying information of that
elder or dependent adult, is punishable by imprisonment in a
county jail not exceeding one year, or in the state prison for two,
three, or four years when the moneys, labor, goods, services, or real
or personal property taken or obtained is of a value exceeding nine
hundred fifty dollars ($950), and by
a as follows:
(1) By a fine not exceeding two thousand five hundred dollars
($2,500), or by imprisonment in a county jail not exceeding one year,
or by both that fine and imprisonment, or by a fine not exceeding
ten thousand dollars ($10,000), or by imprisonment in the state
prison for two, three, or four years, or by both that fine and
imprisonment, when the moneys, labor, goods, services, or real or
personal property taken or obtained is of a value exceeding nine
hundred fifty dollars ($950).
(2) By a fine not exceeding
two thousand dollars ($2,000), of which any amount in excess of
one thousand dollars ($1,000), ($1,000)
shall be allocated to the adult protective services agency, or
equivalent elder abuse prevention agency, of the county prosecuting
the offense, by imprisonment in a county jail not exceeding one
year, or by both that fine and imprisonment, when the moneys, labor,
goods, services, or real or personal property taken or obtained is
of a value not exceeding nine hundred fifty dollars ($950).
(f) Any person who commits the false imprisonment of an elder or a
dependent adult by the use of violence, menace, fraud, or deceit is
punishable by imprisonment in the state prison for two, three, or
four years.
(g) As used in this section, "elder" means any person who is 65
years of age or older.
(h) As used in this section, "dependent adult" means any person
who is between the ages of 18 and 64,
64 years of age 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.
"Dependent adult" includes any person between the ages of
18 and 64 years of age who is admitted as an
inpatient to a 24-hour health facility, as defined in Sections 1250,
1250.2, and 1250.3 of the Health and Safety Code.
(i) 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.
(j) Nothing in this section shall preclude prosecution under both
this section and Section 187 or 12022.7 or any other provision of
law. However, a person shall not receive an additional term of
imprisonment under both paragraphs (2) and (3) of subdivision (b) for
any single offense, nor shall a person receive an additional term of
imprisonment under both Section 12022.7 and paragraph (2) or (3) of
subdivision (b) for any single offense.
(k) In any case in which a person is convicted of violating these
provisions, the court may require him or her to receive appropriate
counseling as a condition of probation. Any defendant ordered to be
placed in a counseling program shall be responsible for paying the
expense of his or her participation in the counseling program as
determined by the court. The court shall take into consideration the
ability of the defendant to pay, and no defendant shall be denied
probation because of his or her inability to pay.
SEC. 3.9. Section 368 of the Penal Code
, as amended by Section 336 of Chapter 15 of the Statutes
of 2011, is amended to read:
368. (a) The Legislature finds and declares that crimes against
elders and dependent adults are deserving of special consideration
and protection, not unlike the special protections provided for minor
children, because elders and dependent adults may be confused, on
various medications, mentally or physically impaired, or incompetent,
and therefore less able to protect themselves, to understand or
report criminal conduct, or to testify in court proceedings on their
own behalf.
(b) (1) 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
thereon unjustifiable physical pain or mental suffering, 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 in which his or her person or
health is endangered, is punishable by imprisonment in a county jail
not exceeding one year, or by a fine not to exceed twelve
thousand dollars ($12,000), of which any amount in excess of
six thousand dollars ($6,000), or ($6,000)
shall be allocated to the adult protective services
agency, or equivalent elder abuse prevention agency, of the county
prosecuting the offense, or by both that fine and imprisonment,
or by imprisonment in the state prison for two, three, or four
years.
(2) If in the commission of an offense described in paragraph (1),
the victim suffers great bodily injury, as defined in Section
12022.7, the defendant shall receive an additional term in the state
prison as follows:
(A) Three years if the victim is under 70 years of age.
(B) Five years if the victim is 70 years of age or older.
(3) If in the commission of an offense described in paragraph (1),
the defendant proximately causes the death of the victim, the
defendant shall receive an additional term in the state prison as
follows:
(A) Five years if the victim is under 70 years of age.
(B) Seven years if the victim is 70 years of age or older.
(c) 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 thereon unjustifiable physical pain or mental
suffering, 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 in which his or
her person or health may be endangered, is guilty of a misdemeanor. A
second or subsequent violation of this subdivision is punishable by
a fine not to exceed four thousand dollars ($4,000), of which
any amount in excess of two thousand dollars ($2,000),
or ($2,000) shall be allocated to the
adult protective services agency, or equivalent elder abuse
prevention agency, of the county prosecuting the offense, or by
imprisonment in a county jail not to exceed one year, or by both
that fine and imprisonment.
(d) Any person who is not a caretaker who violates any provision
of law proscribing theft, embezzlement, forgery, or fraud, or who
violates Section 530.5 proscribing identity theft, with respect to
the property or personal identifying information of an elder or a
dependent adult, and who knows or reasonably should know that the
victim is an elder or a dependent adult, is punishable by
imprisonment in a county jail not exceeding one year, or pursuant to
subdivision (h) of Section 1170 for two, three, or four years, when
the moneys, labor, goods, services, or real or personal property
taken or obtained is of a value exceeding nine hundred fifty dollars
($950); and by a fine not exceeding one thousand dollars ($1,000), by
imprisonment in a county jail not exceeding one year, or by both
that fine and imprisonment, when the moneys, labor, goods, services,
or real or personal property taken or obtained is of a value not
exceeding nine hundred fifty dollars ($950) .
as follows:
(1) By a fine not exceeding two thousand five hundred dollars
($2,500), or by imprisonment in a county jail not exceeding one year,
or by both that fine and imprisonment, or by a fine not exceeding
ten thousand dollars ($10,000), or by imprisonment pursuant to
subdivision (h) of Section 1170 for two, three, or four years, or by
both that fine and imprisonment, when the moneys, labor, goods,
services, or real or personal property taken or obtained is of a
value exceeding nine hundred fifty dollars ($950).
(2) By a fine not exceeding two thousand dollars ($2,000), of
which any amount in excess of one thousand dollars ($1,000) shall be
allocated to the adult protective services agency, or equivalent
agency, of the county prosecuting the offense, by imprisonment in a
county jail not exceeding one year, or by both that fine and
imprisonment, when the moneys, labor, goods, services, or real or
personal property taken or obtained is of a value not exceeding nine
hundred fifty dollars ($950).
(e) Any caretaker of an elder or a dependent adult who violates
any provision of law proscribing theft, embezzlement, forgery, or
fraud, or who violates Section 530.5 proscribing identity theft, with
respect to the property or personal identifying information of that
elder or dependent adult, is punishable by imprisonment in a
county jail not exceeding one year, or pursuant to subdivision (h)
of Section 1170 for two, three, or four years when the moneys, labor,
goods, services, or real or personal property taken or obtained is
of a value exceeding nine hundred fifty dollars ($950), and by a
as follows:
(1) By a fine not exceeding two thousand five hundred dollars
($2,500), or by imprisonment in a county jail not exceeding one year,
or by both that fine and imprisonment, or by a fine not exceeding
ten thousand dollars ($10,000), or by imprisonment pursuant to
subdivision (h) of Section 1170 for two, three, or four years, or by
both that fine and imprisonment, when the moneys, labor, goods,
services, or real or personal property taken or obtained is of a
value exceeding nine hundred fifty dollars ($950).
(2) By a fine not exceeding
two thousand dollars ($2,000), of which any amount in excess of
one thousand dollars ($1,000), ($1,000)
shall be allocated to the adult protective services
agency, or equivalent elder abuse prevention agency, of the county
prosecuting the offense, by imprisonment in a county jail not
exceeding one year, or by both that fine and imprisonment, when the
moneys, labor, goods, services, or real or personal property taken or
obtained is of a value not exceeding nine hundred fifty dollars
($950).
(f) Any person who commits the false imprisonment of an elder or a
dependent adult by the use of violence, menace, fraud, or deceit is
punishable by imprisonment pursuant to subdivision (h) of Section
1170 for two, three, or four years.
(g) As used in this section, "elder" means any person who is 65
years of age or older.
(h) As used in this section, "dependent adult" means any person
who is between the ages of 18 and 64,
64 years of age 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.
"Dependent adult" includes any person between the ages of
18 and 64 years of age who is admitted as an
inpatient to a 24-hour health facility, as defined in Sections 1250,
1250.2, and 1250.3 of the Health and Safety Code.
(i) 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.
(j) Nothing in this section shall preclude prosecution under both
this section and Section 187 or 12022.7 or any other provision of
law. However, a person shall not receive an additional term of
imprisonment under both paragraphs (2) and (3) of subdivision (b) for
any single offense, nor shall a person receive an additional term of
imprisonment under both Section 12022.7 and paragraph (2) or (3) of
subdivision (b) for any single offense.
(k) In any case in which a person is convicted of violating these
provisions, the court may require him or her to receive appropriate
counseling as a condition of probation. Any defendant ordered to be
placed in a counseling program shall be responsible for paying the
expense of his or her participation in the counseling program as
determined by the court. The court shall take into consideration the
ability of the defendant to pay, and no defendant shall be denied
probation because of his or her inability to pay.
SEC. 4. (a) Section 3.5 of this bill
incorporates amendments to Section 368 of the Penal Code proposed by
both this bill and AB Assembly Bill
109, which has been chaptered but is not operative. Section 3.5 shall
become operative only if (1) this bill is enacted and becomes
effective on or before January 1, 2012, (2) this bill amends Section
368 of the Penal Code, and (3) AB (3)
Assembly Bill 332 is not enacted or, as enacted, does not amend
Section 368 of the Penal Code, and (4) Assembly Bill 109
becomes operative, in which case Section 368 of the Penal Code, as
amended by Section 3 of this bill, shall remain operative only until
the operative date of AB Assembly Bill
109, at which time Section 3.5 of this bill shall become operative
and Sections 3.7 and 3.9 of this bill shall not become operative
.
(b) Section 3.7 of this bill incorporates amendments to Section
368 of the Penal Code, as amended by Section 9 of Chapter 28 of the
Third Extraordinary Session of the Statutes of 2009, proposed by both
this bill and Assembly Bill 332. Section 3.7 shall only become
operative if (1) both bills are enacted and become effective on or
before January 1, 2012, (2) each bill amends Section 368 of the Penal
Code as amended by Section 9 of Chapter 28 of the Third
Extraordinary Session of the Statutes of 2009, (3) Assembly Bill 109
has not become operative, and (4) this bill is enacted after Assembly
Bill 332, in which case Sections 3, 3.5, and 3.9 of this bill shall
not become operative.
(c) Section 3.9 of this bill incorporates amendments to Section
368 of the Penal Code proposed by this bill, Assembly Bill 109, which
has been chaptered but is not operative, and Assembly Bill 332. It
shall only become operative if (1) this bill and Assembly Bill 332
are enacted and become effective on or before January 1, 2012, (2)
this bill and Assembly Bill 332 amend Section 368 of the Penal Code,
(3) Assembly Bill 109 has become operative, and (4) this bill is
enacted after Assembly Bill 332, in which case Sections 3, 3.5, and
3.7 of this bill shall not become operative. If Assembly Bill 109
becomes operative after January 1, 2012, Section 368 of the Penal
Code, as amended by Section 3.7 of this bill shall remain operative
until Assembly Bill 109 becomes operative, at which time Section 3.9
of this bill shall become operative.
SEC. 5. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.