California Legislature—2015–16 Regular Session

Assembly Bill No. 1718

Introduced by Assembly Member Kim

January 27, 2016

An act to amend Section 368 of the Penal Code, relating to elder abuse.

LEGISLATIVE COUNSEL’S DIGEST

AB 1718, as introduced, Kim. Elder abuse.

Existing law makes it a crime for a person who is not a caretaker to violate specified laws proscribing theft, embezzlement, fraud, or identity theft with respect to the property or identifying information of an elder or dependent adult, knowing that he or she is an elder or dependent adult. Existing law makes a violation of that provision punishable as a misdemeanor or a felony in county jail, as prescribed, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding $950.

This bill would instead make a violation of that provision punishable as a misdemeanor in county jail or as a felony in state prison, as prescribed.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 368 of the Penal Code 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
six thousand dollars ($6,000), 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 two thousand dollars ($2,000),
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 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
begin delete pursuant to subdivision (h) of Section 1170 end delete begin insert in the state prison end insert 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 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).

(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 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 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).

(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, 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 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.

(l) Upon conviction for a violation of subdivision (b), (c), (d),
(e), or (f), the sentencing court shall also consider issuing an order
restraining the defendant from any contact with the victim, which
may be valid for up to 10 years, as determined by the court. It is
the intent of the Legislature that the length of any restraining order
be based upon the seriousness of the facts before the court, the
probability of future violations, and the safety of the victim and
his or her immediate family. This protective order may be issued
by the court whether the defendant is sentenced to state prison or
county jail, or if imposition of sentence is suspended and the
defendant is placed on probation.