BILL ANALYSIS Ó
AB 1718
Page 1
Date of Hearing: April 19, 2016
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1718 (Kim) - As Amended February 29, 2016
VOTE ONLY
SUMMARY: Requires the court to sentence a defendant convicted
of felony financial abuse of an elder or dependent adult to
state prison. Specifically, this bill: Allows the sentence for
the crime of theft from an elder or dependent adult, when the
value of the property exceeds $950, to be served in state prison
rather than in county jail.
EXISTING LAW:
1)Defines a "felony" as "a crime that is punishable with death,
by imprisonment in the state prison, or notwithstanding any
other provision of law, by imprisonment in a county jail."
(Pen. Code, § 17, subd. (a).)
2)Prohibits a term of more than one year in the county jail
except for executed felony sentences. (Pen. Code, § 19.2.)
3)Specifies that any person who is not a caretaker who violates
any provision of law proscribing theft, embezzlement, forgery,
fraud, or identity theft, with respect to the property or
AB 1718
Page 2
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:
a) By a fine not exceeding $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 $10,000, or by
imprisonment in the county jail 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 $950; or
b) By a fine not exceeding $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 $950. (Pen. Code, § 368, subd. (d).)
4)Provides that any caretaker of an elder or a dependent adult
who violates any provision of law proscribing theft,
embezzlement, forgery, fraud, or identity theft, with respect
to the property or personal identifying information of that
elder or dependent adult, is punishable as follows:
a) By a fine not exceeding $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 $10,000, or by
imprisonment in the county jail 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 $950; or
b) By a fine not exceeding $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 $950. (Pen. Code, § 368, subd. (e).)
5)Defines "elder" as "any person who is 65 years of age or
older." (Pen. Code, § 368, subd. (g).)
6)States that upon conviction of any felony it shall be
AB 1718
Page 3
considered a circumstance in aggravation in imposing the upper
term if the victim of an offense is particularly vulnerable,
or unable to defend himself or herself, due to age or
significant disability. (Pen. Code, § 1170.85, subd. (b).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the Author, "AB 1718
strengthens seniors' protections against financial abuse by
giving judges the option to sentence criminals convicted of
felony financial elder abuse to state prison instead of the
current option of only county jail. We have an obligation to
protect the most vulnerable in our society, and our senior
citizens are regularly targeted for financial abuse. By
sending these criminals to state prison, we can end
slap-on-the wrist punishments for doing the unconscionable -
preying on the savings of seniors. "
2)Legislative History and Intent of Elder Abuse: Specifically,
elder abuse was punished as a crime in 1986; abuse of a
dependent person was punished in 1984. (See Statutes of 1984,
Chapter 144, Section 160.) Although the statute has been
renumbered, the language originally stated:
"Any person, who, under circumstances or conditions likely to
produce great bodily harm or death, willfully causes or
permits any elder or dependent adult, with knowledge that he
or she is an elder or dependent adult, willfully causes or
permits the person or health of 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 the
county jail not exceeding one year or in state prison for two,
three or four years." [Original Pen. Code § 368, subd. (a) as
cited in People vs. Heitzman (1994) 9 Cal.4th 189, 194]
AB 1718
Page 4
In 1994, the California Supreme Court construed Penal Code
Section 368 as requiring a tort grounded duty of care to save
the statute from being unconstitutionally vague. The Court in
Heitzman stated:
"In 1983, the Legislature passed the state's first law focusing
exclusively on those 65 years of age or older, requiring elder
care custodians and other specified professionals to report
instances of elder abuse. ( Welf. & Inst. Code, § 9380- 9386 ,
added by Stats. 1983, ch. 1273, § 2 and repealed by Stats.
1986, ch. 769, § 1.3, eff. Sept. 15, 1986.) That same year,
Senate Bill No. 248, 1983-1984 Regular Session, was introduced
at the request of the Santa Ana Police Department. An
analysis of the bill prepared for the Senate Committee on the
Judiciary indicates that the goal of the legislation was to
aid in the prosecution of people who harm or neglect dependent
adults. (Sen. Com. on Judiciary, Analysis of Sen. Bill No.
248 (1983-1984 Reg. Sess.) p. 2.) According to this document,
law enforcement agencies receiving reports concerning
suspected abuse or neglect of dependent adults were having
difficulty finding Penal Code sections under which they could
prosecute such cases. (Ibid.) The solution proposed by the
bill was to establish the same criminal penalties for the
abuse of a dependent adult as those found in sections 273a and
273d for child abuse. (Sen. Com. on Judiciary, Analysis of
Sen. Bill No. 248.) When drafting the new legislation, the
bill's author lifted the language of the child abuse statutes
in its entirety, replacing the word 'child' with 'dependent
adult' throughout (internal citation omitted).
"After the statute was enacted late in 1983, several
non-substantive changes were made. (Stats. 1984, ch. 144, §
160, p. 482.) Later, in conjunction with legislation designed
to consolidate the two sets of conflicting reporting laws for
elder abuse and dependent adult abuse, a 1986 amendment to
section 368(a) made the section expressly applicable to elders
as well as dependent adults. (Stats. 1986, ch. 769, § 1.2, p.
2531, urgency measure eff. Sept. 15, 1986.) [Heitzman at
245.]"
In 2004, AB 3095 (Committee on Aging and Long Term Care),
AB 1718
Page 5
Chapter 893, Statutes of 2004, related to conditions of
probation when an offender is guilty of the crime of elder
abuse, as specified. However, the Senate amended AB 3095 to
strike "with knowledge that he or she is an elder or dependent
adult" and instead included any person who "knows or
reasonably should know that a person is an elder or dependent
adult". This language is presumably broader than simple
knowledge because it includes persons who reasonably should
have known of the victim's status as an elderly or dependent
person.
The stated intent behind the increased penalty for crimes
against the elderly is to punish those who would prey on
person who might not be able to defend himself or herself.
(Pen. Code § 368, subd. (a).) The offenses specified in the
elder abuse section, such as battery and fraud, are all
punishable as substantive offenses. Pen. Code § 368 is meant
to impose a more severe punishment on a person who victimizes
an elderly person. The intent behind the legislation was to
make crimes against the elderly more severe, not necessarily
to be punished by imprisonment in the state prison.
3)Effect on Criminal Justice Realignment: Criminal justice
realignment created two classifications of felonies: those
punishable in county jail and those punishable in state
prison. Realignment limited which felons can be sent to state
prison, thus requiring that more felons serve their sentences
in county jails. The law applies to qualified defendants who
commit qualifying offenses and who were sentenced on or after
October 1, 2011. Specifically, sentences to state prison are
now mainly limited to registered sex offenders and individuals
with a current or prior serious or violent offense. In
addition to the serious, violent, registerable offenses
eligible for state prison incarceration, there are
approximately 70 felonies which have be specifically excluded
from eligibility for local custody (i.e., the sentence for
which must be served in state prison).
This bill specifies that any defendant who is convicted of theft
from an elder or dependent adult, when the value of the
property taken is more than $950, shall serve that sentence in
state prison rather than in the county jail. Thus, this bill
creates a new exclusion for county-jail eligibility.
AB 1718
Page 6
4)On-Going Concerns for Prison Overcrowding: On February 10,
2014, the federal court ordered California to reduce its
in-state adult institution population to 137.5% of design
capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of last year the administration reported that as
"of February 11, 2015, 112,993 inmates were housed in the
State's 34 adult institutions, which amounts to 136.6% of
design bed capacity, and 8,828 inmates were housed in
out-of-state facilities. This current population is now below
the court-ordered reduction to 137.5% of design bed capacity."
(Defendants' February 2015 Status Report In Response To
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part
and Denying in Part Defendants' Request For Extension of
December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC),
3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14).
AB 1718
Page 7
However, even though the state has complied with the federal
court order, the prison population needs to be maintained, not
increased. And according to the Legislative Analyst's Office
(LAO), "CDCR is currently projecting that the prison
population will increase by several thousand inmates in the
next few years and will reach the cap by June 2018 and exceed
it by 1,000 inmates by June 2019."
( http://www.lao.ca.gov/reports/2014/budget/criminal-justice/cri
minal-justice-021914.aspx .) The LAO also notes that
predicting the prison population is "inherently difficulty"
and subject to "considerable uncertainty." (Ibid.)
Nevertheless, creating a new exclusion for county jail
sentences when the prison population is already expected to
increase seems imprudent.
5)Argument in Support: According to the California Long-Term
Care Ombudsman Association, "Currently the law allows a person
convicted of committing a crime against a senior or dependent
adult, when the value of money, goods, services, or personal
property stolen exceeds $950, to be sentenced to county jail
for either a misdemeanor or a felony.
"AB 1718 revises California statue to allow for the court's
discretion when sentencing a person found guilty of a
misdemeanor in a county jail or as a felony in state prison.
"Without changes to the penalties levied by the court, persons
inclined to commit crimes against seniors are not sufficiently
discouraged from committing illegal conduct; hence frail,
elderly and vulnerable adults suffer needlessly."
6)Argument in Opposition: According to the California Attorneys
for Criminal Justice, "This bill would revise the penalty for
violation of Penal Code 3689(e) from incarceration in county
jail to imprisonment in state prison.
"Existing law makes it a crime for a caretaker of an elder or
AB 1718
Page 8
dependent adult to knowingly steal or defraud an elder or
dependent adult. The existing penalty for a violation of Penal
Code section 368, when the moneys, labor, goods, services, or
real or personal property taken or obtained is of a value
exceeding $950.
"CACJ understands that admirable intent of the legislation to
continue protecting the vulnerable elder population. However,
CACJ must object to the increased penalties without any
showing that the existing laws are deficient. Current law
allows for the sentencing of a person for up to three years in
county jail. This bill would not only remove that sentence
from jail to state prison, but also increase the maximum time
served to four years.
"Furthermore, without express justification for this
sentencing increase and expansion of state prison crimes,
California is still under a court order to reduce the state
prison population. This would further exacerbate this issue
and prevent offenders from receiving much needed specialized
reentry services that are provided in county jail."
7)Prior Legislation:
a) AB 441 (Wilk), of the 2015-2016 Legislative Session,
would have created a sentence enhancement of two additional
years of imprisonment for any person convicted of identity
theft if the victim was 65 years of age or older at the
time of the offense. AB 441 failed passage in this
committee.
b) AB 332 (Butler), Chapter 366, Statutes of 2011,
increased the fines for fraud, embezzlement, theft, and
identity theft against an elder or dependent adult when the
amount taken is more than $950.
c) AB 1293 (Blumenfield), Chapter 371, Statutes of 2011,
AB 1718
Page 9
authorizes prosecutors to petition for forfeiture of assets
in specified cases involving financial abuse of elder or
dependent adults.
REGISTERED SUPPORT / OPPOSITION:
Support
California Long-Term Care Ombudsman Association
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Coalition for elder and Dependent Adult Rights
Analysis Prepared
by: Gabriel Caswell / PUB. S. / (916) 319-3744
AB 1718
Page 10