BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 543 (Block)
As Introduced February 22, 2013
Hearing date: April 2, 2013
Penal Code
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PETTY THEFT WITH A PRIOR CONVICTION FOR
THEFT FROM THE ELDERLY OR DEPENDENT ADULTS
HISTORY
Source: San Diego District Attorney
Prior Legislation: None directly on point
Support: California District Attorneys Association; California
State Sheriffs' Association; Senior Community Centers
and Elder Law & Advocacy
Opposition:None known
KEY ISSUE
SHOULD THEFT FROM AN ELDERLY PERSON OR DEPENDENT ADULT BE
SPECIFICALLY LISTED AS A PRIOR QUALIFYING OFFENSE IN THE CRIME OF
PETTY THEFT WITH A SPECIFIED PRIOR CONVICTION?
PURPOSE
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The purpose of this bill is to specifically include "theft from
an elder person or dependent adult under [Penal Code] Section
368" as a prior qualifying conviction in the crime of petty
theft with a prior conviction.
Existing law provides that every person who is convicted of
petty theft in the current case, and who has previously been
convicted on three or more occasions of petty theft, grand
theft, auto theft, burglary, carjacking, robbery, or receiving
stolen property, is guilty of an alternate misdemeanor,
punishable by imprisonment in the county jail not exceeding one
year, or in the state prison.
Exiting law provides that a person who is required to register
as a sex offender, or who has a prior serious or violent felony
conviction, or who has been previously sentenced under the Three
Strikes Law, remains subject to imprisonment in the state prison
if convicted of petty theft with a single prior qualifying
offense.
Existing law defines a "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. (Pen. Code § 368(h).)
Existing law defines "elder" as any person who is 65 years of
age or older. (Penal Code § 368(g).)
Existing law establishes fines and other punishment for theft,
embezzlement, forgery, fraud, and identity theft against an
elder or dependent adult, as follows:
Where the defendant is not a caretaker and knows or
reasonably should know that the victim is an elder or a
dependent adult, and the value of the property, labor or
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services does not exceed $950, the defendant may be punished
by a fine not exceeding $1,000, by imprisonment in a county
jail not exceeding one year, or both. (Pen. Code § 368 (d).)
Where the defendant is not a caretaker and knows or
reasonably should know that the victim is an elder or a
dependent adult, and the value of the property, labor or
services exceeds $950, the defendant may be punished by
imprisonment of up one year in a county jail and a fine of
up to $1,000, or by felony imprisonment 2, 3 or 4 years in
state prison or the county jail pursuant to Penal Code
Section 1170, subdivision (h). (Pen. Code § 368 (d).)
Where the defendant is a caretaker and the value of the
property, labor or services does not exceed $950, the
defendant may be punished by a fine not exceeding $1,000,
imprisonment in a county jail not exceeding one year, or
both. (Pen. Code § 368 (e).)
A person who is a caretaker, and the value of the labor,
goods, services, funds, or real and/or personal property
taken exceeds $950 may be punished by up to one year in a
county jail or 2, 3 or 4 years in state prison. (Pen. Code §
368(e).)
This bill provides that "theft from an elder or dependent adult"
is a prior qualifying conviction for purposes of the crime of
petty theft with a prior theft conviction.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
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Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order to reduce the state's prison population to
137.5 percent of design capacity. The State submitted in part
that the, ". . . population in the State's 33 prisons has been
reduced by over 24,000 inmates since October 2011 when public
safety realignment went into effect, by more than 36,000 inmates
compared to the 2008 population . . . , and by nearly 42,000
inmates since 2006 . . . ." Plaintiffs, who oppose the state's
motion, argue in part that, "California prisons, which currently
average 150% of capacity, and reach as high as 185% of capacity
at one prison, continue to deliver health care that is
constitutionally deficient."
In an order dated January 29, 2013, the federal court granted
the state a six-month extension to achieve the 137.5 % prisoner
population cap by December 31st of this year.
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unsettled. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
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questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error; whether a measure proposes
penalties which are proportionate, and cannot be achieved
through any other reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Under current law, if someone is convicted three or
more times of petty theft, grand theft, auto theft,
burglary, carjacking, or robbery and then later
commits petty theft, that subsequent petty theft crime
may be punished as a felony.
There is confusion as to whether elder theft qualifies
as a prior for sentencing purposes under Penal Code
Section 666. And because current law does not specify
elder theft as being a qualifying offense for
sentencing, it often leads District Attorneys to
charge a different theft offense that does qualify as
a prior to ensure the appropriate punishment is in
place.
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Elder theft is just as important as any other form of
theft and should be included in the list of qualifying
priors in Penal Code 666 as it specifically targets
the most vulnerable.
SB 543 will make it clear that theft from an elder is
a qualifying prior offense effectively removing any
ambiguity in the law and ensuring everyone is properly
charged with the crime they have committed. It also
ensures that elder theft is treated with the same
seriousness as any other form of theft.
2. This Bill Does not Change Penalties for Theft From an Elder or
Dependent Adult
This bill specifically adds the crime of theft from an elder or
a dependent adult to the list of crimes qualifying as prior
convictions for the crime of petty theft with a prior theft
conviction. The bill does not affect the penalty for theft from
an elder or dependent adult, nor does the bill affect how that
crime (Pen. Code § 368) is charged or proved. However,
assuming that the crime of petty theft with a prior conviction
does not clearly include theft from an elder person as a
qualifying prior offense, this bill makes that certain and
specific. The inclusion of theft from an elderly person as a
qualifying prior conviction in petty theft with a prior
conviction allows prosecutors to obtain a felony conviction
against a defendant with a history of three prior convictions
for petty thefts (thefts exceeding $950 in value) from an elder
or dependent adult. Where the defendant has been previously
convicted of a serious felony, a violent felony, a sex crime or
an aggravated white-collar offense, he or she can be convicted
of felony petty theft with a single prior qualifying conviction.
3. Ambiguity as to Whether a Prior Conviction for Financial or
Physical Abuse of an Elder or Dependent Adult (Pen. Code §
368) is a Theft Conviction - Author's Proposed Amendment
Under existing law, theft from an elder or dependent adult would
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appear to require proof of every element of theft (taking or
destruction of property with the intent to permanently deprive
the owner of the use or value of the property) and the
additional element that the victim was dependent or at least 65
years old. However, the fact that a defendant was convicted
under Penal Code Section 368 - even under the subdivisions (d)
and (e), which involve theft - does not necessarily establish
that the prior conviction involved theft. That is because
subdivision (d) and (e) of Section 368 also include the
underlying crimes of forgery and unauthorized use of another
person's identity. Unless the record of the prior conviction
establishes that the defendant committed theft, he or she would
have a tenable argument that the prior conviction is not a
qualifying conviction for purposes of petty theft with a prior
conviction. Thus, the bill would not likely eliminate all
ambiguity or problems of proof concerning convictions for
financial abuse of an elder or dependent adult as a qualifying
prior conviction under the statute defining petty theft with a
prior conviction.
However, the bill does appear to eliminate another potential
argument that theft from an elder or dependent adult is not a
prior conviction for petty theft with a prior conviction (Pen.
Code § 666). Under existing law, a defendant could argue that
because Penal Code Section 666 includes a list of specific
crimes as a qualifying prior convictions, the exclusion of theft
from an elder or dependent adult from that list indicates that
the Legislature did not intend to include the crime as a
qualifying conviction for purposes of petty theft with a prior
conviction. Such an argument would be based on the maxim of
statutory construction that the expression of specific things in
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a statute operates to exclude all others.<1>
An argument that theft from an elder or dependent adult is not a
qualifying conviction for petty theft with a prior would appear
to be weak, however, as noted above, every conviction for theft
from an elder or dependent adult would necessarily include proof
that the defendant committed theft. That is, theft is a lesser
included offense of theft from an elder or dependent adult, as
one cannot commit the crime of theft from an elder or dependent
adult without committing theft.
Author's Proposed Amendment to Include a Conviction Under Penal
Code Section 368, subdivision (d) or (e) as a Qualifying Prior
Conviction for Purposes of the Crime of Petty Theft with a Prior
Conviction
A defendant who argues that financial abuse of an elder or
dependent adult must be specifically listed as a qualifying
prior in the definition of petty theft with a prior conviction
would likely note that Section 666 (petty theft with a prior)
includes burglary as a qualifying prior conviction. While a
burglary typically involves the intent to steal, a burglary is
also committed where the perpetrator enters a structure with the
intent to commit any felony. As such, one would argue that
Penal Code Section 666 does not simply set a generic standard
for theft-related prior convictions and that a qualifying crime
must be specifically included in the statute.
The inclusion of burglary as a qualifying offense for purposes
of petty theft with a prior conviction demonstrates how this
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<1>A defendant making such an argument would likely note that
Penal Code Section 666 includes burglary as a qualifying prior
conviction. While a burglary typically involves the intent to
steal, a burglary is also committed where the perpetrator
entered a structure with the intent to commit any felony. As
such, one would argue that Penal Code Section 666 does not
simply set a generic standard for theft-related prior
convictions and that a qualifying prior crime must be
specifically included in the statute.
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bill could be amended to eliminate any ambiguity as to whether
or not a conviction for financial abuse of an elder or dependent
adult constitutes a qualifying prior conviction. The bill could
be amended to provide that any conviction under subdivision (d)
or (e) of Section 368 is a qualifying prior conviction. These
subdivisions include theft, forgery and identity theft where the
victim is an elder or dependent adult. Committee staff has
discussed this issue with the sponsor and author. The author
will offer this amendment at the hearing on the bill.
According to prosecutors familiar with these cases, the great
majority of convictions under these subdivisions involve theft
per se. Further, convictions that were based on forgery or
identity theft involve conduct that is essentially equivalent to
theft. The distinctions among the crimes of theft, forgery and
identity theft are largely technical. Forgery typically
involves the obtaining of property, services or other advantage
through the use of a false document. The financial harm to a
victim of identity theft is typically much greater than that
caused by a simple theft of money or property. While the
perpetrator of identity theft may obtain property in the crime,
the greatest cost to the victim involves repairing his or her
credit standing and avoiding liability for acts done by the
perpetrator in the name of the victim.
SHOULD THE BILL BE AMENDED TO PROVIDE THAT A CONVICTION UNDER
SUBDIVISION (d) OR (e) OF PENAL CODE SECTION 368 IS A QUALIFYING
PRIOR CONVICTION IN THE CRIME OF PETTY THEFT WITH A PRIOR
CONVICTION?
4. Redundant Statutes Concerning Crimes Against Elderly Persons
and Dependent Adults
Penal Code Section 368 sets out a number crimes or penalty
provisions where the victim was a dependent adult or elderly
person. It appears that prosecutions under Section 368 are
relatively common.
Welfare and Institutions Code Section 15656 includes crime
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definitions and provisions that are essentially identical to
those in Section 368. Welfare and Institutions Code Section
15656 was added to the law in 1994 by SB 1681 (Mello) Ch. 594.
The section is found in a chapter of that code that sets
standards and requirements for reporting of physical and
financial abuse of a dependent adult or elderly person.
It may be confusing to practitioners, the courts and the public
for essentially identical crimes to be found in two different
codes of law. The redundant statutes concerning physical and
financial abuse of dependent adults and elderly persons could be
interpreted differently by appellate courts. This concern is
heightened if the more commonly used statute - Penal Code
Section 368 - is amended without corresponding amendments being
made to Welfare and Institutions Code Section 15656. It is
suggested that Welfare and Institutions Code Section be amended
to repeal the crime provision and include a cross-reference to
Penal Code Section 368, with a direction for elder and dependent
adult financial and physical abuse cases to be prosecuted under
the Penal Code Section. The amendments should provide that the
repeal does not eliminate a crime or indicate legislative intent
to eliminate or reduce penalties for abuse of dependent adults
and the elderly.
If Welfare and Institutions Code Section 15656 is not repealed,
perhaps a reference to that section should also be included in
this bill as a prior qualifying conviction for petty theft with
a prior conviction.
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SHOULD PROVISIONS IN THE WELFARE AND INSTITUTIONS CODE THAT ARE
REDUNDANT OF THE PENAL CODE PROVISION CONCERNING FINANCIAL AND
PHYSICAL ABUSE OF THE ELDERLY BE REPEALED?
SHOULD THE SECTION THAT CONTAINED THE WELFARE AND INSTITUTIONS
CODE ELDER AND DEPENDANT ADULT ABUSE PROVISIONS INCLUDE A
DIRECTIVE THAT ABUSE OF THE ELDERLY AND DEPENDENT ADULTS SHOULD
BE PROSECUTED UNDER PENAL CODE SECTION 368, WITH A CLEAR
STATEMENT THAT THE LEGISLATURE DOES NOT INTEND THEREBY TO REDUCE
OR ELIMINATE PENALTIES FOR PHYSICAL OR FINANCIAL ABUSE OF
DEPENDENT ADULTS AND THE ELDERLY?
IF THE WELFARE AND INSTITUTIONS CODE SECTION 15656, WHICH
DEFINES CRIMES OF PHYSICAL AND FINANCIAL ABUSE AGAINST AN ELDER
OR DEPENDENT ADULT, IS NOT REPEALED, SHOULD THIS BILL BE AMENDED
TO INCLUDE A REFERENCE TO THAT WELFARE AND INSTITUTIONS CODE
SECTION?
5. Sentencing Considerations
This bill does not appear to define a new offense or increase
penalties for an existing offense. This bill is intended to
clarify that theft from an elder or dependent adult is a
qualifying prior conviction for purposes of the crime of petty
theft with a prior conviction. As noted above, if it can be
proved that a prior conviction under the statute concerning
physical or financial abuse of an elder or dependent adult
involved theft, a petty theft or grand theft has necessarily
been established. The elder or dependent adult crime merely
adds an element that the victim be dependent or at least 65
years of age.
DOES THIS BILL EFFECTIVELY CLARIFY THAT THEFT FROM AN ELDER OR
DEPENDENT ADULT IS A QUALIFYING PRIOR CONVICTION FOR PURPOSES OF
THE CRIME OF PETTY THEFT WITH A SPECIFIED PRIOR CONVICTION?
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