Amended in Assembly February 29, 2016

California Legislature—2015–16 Regular Session

Assembly BillNo. 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 amended, Kim. Elder abuse.

Existing law makes it a crime forbegin delete a person who is not a caretakerend deletebegin insert any personend insert to violate specified laws proscribing theft, embezzlement,begin insert forgery,end insert fraud, or identity theft with respect to the property or identifying information of an elder or dependentbegin delete adult, knowing that he or she is an elder or dependentend delete adult. Existing law makes a violation ofbegin delete that provisionend deletebegin insert those provisionsend insert 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 ofbegin delete that provisionend deletebegin insert those provisionsend insert 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:

P1    1

SECTION 1.  

Section 368 of the Penal Code is amended to
2read:

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368.  

(a) The Legislature finds and declares that crimes against
2elders and dependent adults are deserving of special consideration
3and protection, not unlike the special protections provided for
4minor children, because elders and dependent adults may be
5confused, on various medications, mentally or physically impaired,
6or incompetent, and therefore less able to protect themselves, to
7understand or report criminal conduct, or to testify in court
8proceedings on their own behalf.

9(b) (1) Any person who knows or reasonably should know that
10a person is an elder or dependent adult and who, under
11circumstances or conditions likely to produce great bodily harm
12or death, willfully causes or permits any elder or dependent adult
13to suffer, or inflicts thereon unjustifiable physical pain or mental
14suffering, or having the care or custody of any elder or dependent
15adult, willfully causes or permits the person or health of the elder
16or dependent adult to be injured, or willfully causes or permits the
17elder or dependent adult to be placed in a situation in which his or
18her person or health is endangered, is punishable by imprisonment
19in a county jail not exceeding one year, or by a fine not to exceed
20six thousand dollars ($6,000), or by both that fine and
21imprisonment, or by imprisonment in the state prison for two,
22three, or four years.

23(2) If, in the commission of an offense described in paragraph
24(1), the victim suffers great bodily injury, as defined in Section
2512022.7, the defendant shall receive an additional term in the state
26prison as follows:

27(A) Three years if the victim is under 70 years of age.

28(B) Five years if the victim is 70 years of age or older.

29(3) If, in the commission of an offense described in paragraph
30 (1), the defendant proximately causes the death of the victim, the
31defendant shall receive an additional term in the state prison as
32follows:

33(A) Five years if the victim is under 70 years of age.

34(B) Seven years if the victim is 70 years of age or older.

35(c) Any person who knows or reasonably should know that a
36person is an elder or dependent adult and who, under circumstances
37or conditions other than those likely to produce great bodily harm
38or death, willfully causes or permits any elder or dependent adult
39to suffer, or inflicts thereon unjustifiable physical pain or mental
40suffering, or having the care or custody of any elder or dependent
P3    1adult, willfully causes or permits the person or health of the elder
2or dependent adult to be injured or willfully causes or permits the
3elder or dependent adult to be placed in a situation in which his or
4her person or health may be endangered, is guilty of a
5misdemeanor. A second or subsequent violation of this subdivision
6is punishable by a fine not to exceed two thousand dollars ($2,000),
7or by imprisonment in a county jail not to exceed one year, or by
8both that fine and imprisonment.

9(d) Any person who is not a caretaker who violates any provision
10of law proscribing theft, embezzlement, forgery, or fraud, or who
11violates Section 530.5 proscribing identity theft, with respect to
12the property or personal identifying information of an elder or a
13dependent adult, and who knows or reasonably should know that
14the victim is an elder or a dependent adult, is punishable as follows:

15(1) By a fine not exceeding two thousand five hundred dollars
16($2,500), or by imprisonment in a county jail not exceeding one
17year, or by both that fine and imprisonment, or by a fine not
18exceeding ten thousand dollars ($10,000), or by imprisonment in
19the state prison for two, three, or four years, or by both that fine
20and imprisonment, when the moneys, labor, goods, services, or
21real or personal property taken or obtained is of a value exceeding
22nine hundred fifty dollars ($950).

23(2) By a fine not exceeding one thousand dollars ($1,000), by
24imprisonment in a county jail not exceeding one year, or by both
25that fine and imprisonment, when the moneys, labor, goods,
26services, or real or personal property taken or obtained is of a value
27not exceeding nine hundred fifty dollars ($950).

28(e) Any caretaker of an elder or a dependent adult who violates
29any provision of law proscribing theft, embezzlement, forgery, or
30fraud, or who violates Section 530.5 proscribing identity theft,
31with respect to the property or personal identifying information of
32that elder or dependent adult, is punishable as follows:

33(1) By a fine not exceeding two thousand five hundred dollars
34($2,500), or by imprisonment in a county jail not exceeding one
35year, or by both that fine and imprisonment, or by a fine not
36exceeding ten thousand dollars ($10,000), or by imprisonment
37begin delete pursuant to subdivision (h) of Section 1170end deletebegin insert in the state prisonend insert for
38two, three, or four years, or by both that fine and imprisonment,
39when the moneys, labor, goods, services, or real or personal
P4    1property taken or obtained is of a value exceeding nine hundred
2fifty dollars ($950).

3(2) By a fine not exceeding one thousand dollars ($1,000), by
4imprisonment in a county jail not exceeding one year, or by both
5that fine and imprisonment, when the moneys, labor, goods,
6services, or real or personal property taken or obtained is of a value
7not exceeding nine hundred fifty dollars ($950).

8(f) Any person who commits the false imprisonment of an elder
9or a dependent adult by the use of violence, menace, fraud, or
10deceit is punishable by imprisonment pursuant to subdivision (h)
11of Section 1170 for two, three, or four years.

12(g) As used in this section, “elder” means any person who is 65
13years of age or older.

14(h) As used in this section, “dependent adult” means any person
15who is between the ages of 18 and 64, who has physical or mental
16limitations which restrict his or her ability to carry out normal
17activities or to protect his or her rights, including, but not limited
18to, persons who have physical or developmental disabilities or
19whose physical or mental abilities have diminished because of
20age. “Dependent adult” includes any person between the ages of
2118 and 64 who is admitted as an inpatient to a 24-hour health
22facility, as defined in Sections 1250, 1250.2, and 1250.3 of the
23Health and Safety Code.

24(i) As used in this section, “caretaker” means any person who
25has the care, custody, or control of, or who stands in a position of
26trust with, an elder or a dependent adult.

27(j) Nothing in this section shall preclude prosecution under both
28this section and Section 187 or 12022.7 or any other provision of
29law. However, a person shall not receive an additional term of
30imprisonment under both paragraphs (2) and (3) of subdivision
31(b) for any single offense, nor shall a person receive an additional
32term of imprisonment under both Section 12022.7 and paragraph
33(2) or (3) of subdivision (b) for any single offense.

34(k) In any case in which a person is convicted of violating these
35provisions, the court may require him or her to receive appropriate
36counseling as a condition of probation. Any defendant ordered to
37be placed in a counseling program shall be responsible for paying
38the expense of his or her participation in the counseling program
39as determined by the court. The court shall take into consideration
P5    1the ability of the defendant to pay, and no defendant shall be denied
2probation because of his or her inability to pay.

3(l) Upon conviction for a violation of subdivision (b), (c), (d),
4(e), or (f), the sentencing court shall also consider issuing an order
5restraining the defendant from any contact with the victim, which
6may be valid for up to 10 years, as determined by the court. It is
7the intent of the Legislature that the length of any restraining order
8be based upon the seriousness of the facts before the court, the
9probability of future violations, and the safety of the victim and
10his or her immediate family. This protective order may be issued
11by the court whether the defendant is sentenced to state prison or
12county jail, or if imposition of sentence is suspended and the
13defendant is placed on probation.



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