BILL ANALYSIS Ó
SB 543
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Date of Hearing: July 2, 2013
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 543 (Block) - As Amended: April 10, 2013
SUMMARY : Specifies that theft, embezzlement, forgery, fraud,
and identity theft committed against an elder or dependent adult
qualify as prior convictions for the crime of petty theft with a
prior theft conviction.
EXISTING LAW :
1)Defines "grand theft" as any theft where the money, labor, or
real or personal property taken or when the property is taken
from the person of another is of a value in excess of $950.
[Penal Code Sections 487(a).]
2)Provides that theft in other cases is "petty theft." (Penal
Code Section 488.).
3)Punishes petty theft by a fine not exceeding $1,000, or by a
county-jail term not to exceed six month, or by both. [Penal
Code Section 490.]
4)Provides that, notwithstanding the punishment for petty theft,
if a person has been convicted three or more times of
specified theft-related offenses and is subsequently convicted
of petty theft, then the person is to receive an enhanced
punishment of imprisonment in the county jail not to exceed
one year, or in the county jail for a felony under
realignment. [Penal Code Section 666(a).]
5)Provides that, notwithstanding the punishment for petty theft,
if a person is required to register as a sex offender, or has
a prior violent or serious felony conviction, and also has
been convicted three or more times of specified theft-related
offenses and is subsequently convicted of petty theft, then
the person is to receive an enhanced punishment of
imprisonment in the county jail not to exceed one year, or in
the state prison. [Penal Code Section 666(b).]
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6)Lists the theft- related offenses which qualify a defendant
for enhanced status for the crime of petty theft with a prior
as:
a) Petty theft;
b) Grand theft;
c) Auto theft;
d) Burglary;
e) Carjacking;
f) Robbery; and
g) Receiving stolen property.
7)Establishes fines and other punishment for theft,
embezzlement, forgery, or fraud, and identity theft and
identity crimes against and elder or dependent adult, as
follows:
a) 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 labor, goods,
services, funds, or real and/or personal property taken
does not exceed $950, the person may be punished by a fine
not exceeding $1,000 and/or by imprisonment in a county
jail not exceeding one year. [Penal Code Section
368(d)(2).]
b) Where the defendant is 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, the person may be punished by a fine not
exceeding $2,500, up to one year in a county jail, or both;
or by a fine not exceeding $10,000, or in the county jail
for 2, 3 or 4 years, or both. [Penal Code Section
368(d)(1).]
c) Where the defendant is a caretaker, and the value of the
labor, goods, services, funds, or real and/or personal
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property taken does not exceed $950, the person may be
punished by a fine not exceeding $1,000 and/or by
imprisonment in a county jail not exceeding one year.
[Penal Code Section 368(e)(2).]
d) Where the defendant is a caretaker, and the value of the
labor, goods, services, funds, or real and/or personal
property taken exceeds $950, the person may be punished by
a fine not exceeding $2,500, up to one year in a county
jail, or both; or by a fine not exceeding $10,000, or in
the county jail for a felony 2, 3 or 4 years, or both.
[Penal Code Section 368(e)(1).]
8)Defines an "elder" as any person who is 65 years of age or
older. [Penal Code Section 368(g).]
9)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. [Penal Code Section 368(h).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "SB 543 ensures
that elder theft is treated with the same seriousness as any
other form of theft. It updates current law to remove the
ambiguity of whether or not a conviction of elder theft
qualifies as a prior for subsequent theft crimes.
"SB 543 does not create a new crime. Rather it ensures that
elder theft is added to Penal Code Section 666 which currently
lists grand theft, petty theft, burglary, auto theft, and
carjacking as qualifying prior offenses for purposes of
sentencing enhancements.
"Theft and financial abuse from an elder or dependent adult has
increased in recent years and has become a significant issue
in the area of public safety. It only makes sense to update
our current laws to ensure that we are appropriately
sentencing those who target the most vulnerable, our seniors."
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2)Ambiguity as to Whether a Prior Conviction for Elder Financial
Abuse (Penal Code Section 368) is a Theft Conviction : The
current law enumerating the qualifying theft-related
convictions describes some in general terms and describes
others by specific Penal Code provisions. In referencing
theft convictions, the statute simply states "petty theft" and
"grand theft" without reference to Penal Code provisions.
[See Penal Code Section 666(a).] The statute does not
distinguish among victims of theft crimes. Therefore, elder
theft already appears to qualify as a conviction for enhancing
the sentence of a petty theft conviction.
Further, theft from an elder or dependent adult would 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(d) or (e) does not necessarily establish that
the prior conviction involved theft. That is because
subdivisions (d) and (e) also include the underlying crimes of
embezzlement, forgery, fraud, and identity theft. 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. This bill
eliminates that argument by including all forms of elder
financial abuse as qualifying prior convictions.
The bill also eliminates a second potential argument that
theft from an elder or dependent adult is not a prior
conviction for petty theft with a prior conviction. 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 specific enumeration precludes inclusion of other
things by implication. [See e.g., People v. Palacios (2007)
41 Cal.4th 720, 732.]
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3)Argument in Support : According to the California Welfare
Directors Association of California , "SB 543 will make it
clear that theft from an elder person is a qualifying prior
offense effectively removing any ambiguity in the law and
ensuring everyone is properly charged with the crime they have
committed.
"This bill will ensure that theft committed against an elderly
person is treated with the same seriousness as any other form
of theft."
4)Prior Legislation :
a) AB 332 (Butler), Chapter 366, Statutes of 2011,
increased the fines for theft from an elder or dependent
adult.
b) AB 1844 (Fletcher), Chapter 219, Statutes of 2010,
amended petty theft with a prior to require three prior
theft-related convictions.
c) AB 6 (Burton), Chapter 610, Statutes of 1993, created
the crime of carjacking and added carjacking to the list of
theft- related offenses that qualify a defendant for
enhanced status for the crime of petty theft with a prior.
REGISTERED SUPPORT / OPPOSITION :
Support
San Diego County District Attorney (Sponsor)
California Commission on Aging
California District Attorneys Association
California State Sheriffs Association
County of San Diego
County Welfare Directors Association of California
Crime Victims Action Alliance
Elder Law and Advocacy
Senior Community Centers
Opposition
None
SB 543
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Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744