BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1754 Hearing Date: June 28, 2016
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|Author: |Waldron |
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|Version: |May 31, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Crime Victim Compensation: Elder or Dependent Adult
Financial Abuse
HISTORY
Source:California Commission on Aging; California Elder Justice
Coalition
Prior Legislation:SB 60 (Wright) - Ch. 147, Stats. 2013
Support: AARP; Arc and United Cerebral Palsy California
Collaboration; California Association of Area Agencies
on Aging; California Association for Health Services
at Home; California Association of Marriage and Family
Therapists; Crime Victim Compensation: Elder and
Dependent Adult; Elder Law and Advocacy; Office of the
State Long-Term Care Ombudsman; Professional Fiduciary
Association of California; San Diego County District
Attorney; San Diego Victim Compensation Pilot Project
Opposition:None known
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Assembly Floor Vote: 80 - 0
PURPOSE
The purpose of this bill is to create a pilot program in San
Diego County permitting the Victims of Crime Program (CalVCP) to
reimburse victims of elder and dependent adult financial abuse
for costs of financial and mental-health counseling.
Existing provisions in the California Constitution state that
all persons who suffer losses as a result of criminal activity
shall have the right to restitution from the perpetrators.
(Cal. Const. Art. 1 § 28(b).)
Existing law directs a sentencing court to order a defendant to
make restitution to the victim or victims of the defendant's
crime. (Pen. Code § 1202.4, subds. (a) and (f).)
Existing law requires the court to impose on each convicted
criminal defendant a restitution fine:
a) For a felony, the fine ranges from $300 to $10,000. The
misdemeanor fine ranges from $150 to $1,000.
b) Penalty assessments and state surcharges are not applied
to restitution fines.
c) The fines are deposited in the Victims of Crime Fund in
the State Treasury. (Pen. Code § 1202.4, subds. (b)-(g).)
Existing law states that all persons who suffer loss as a result
of criminal activity shall have the right to restitution from
the perpetrators. (Cal. Const. Art. 1, § 28(b).)
Existing law establishes CalVCP administered by the board to
reimburse crime victims for the pecuniary losses they suffer as
a direct result of criminal acts. Indemnification is made from
the Restitution Fund, which is continuously appropriated to the
board for these purposes. (Gov. Code, §§ 13901 & 13950 et.
seq.)
Existing law authorizes the board to reimburse victims of crimes
causing physical injury or emotional injury with a threat of
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physical injury for pecuniary loss for specified types of
losses, including medical expenses, mental-health counseling,
loss of income or loss of support, and installing or increasing
residential security. (Gov. Code, §§ 13955, subd. (f), and
13957.)
Existing law authorizes the board to establish maximum rates and
service limitations for medical and medical-related services,
and for mental health and counseling services. (Gov. Code, §
13957.2)
Existing law defines an "elder" as "any person who is 65 years
of age or older." (Pen. Code, § 368, subd. (g).)
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, subd. (h).)
Existing law 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 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.
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).)
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Existing law 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).)
This bill contains legislative findings and declaration about
the extent of financial abuse of the elderly and dependent
adults, the response of other legislative bodies to the problem,
of the need for a pilot program, and why San Diego County is
well-situated for the pilot program.
This bill establishes the San Diego County Elder or Dependent
Adult Financial Abuse Crime Victim Compensation Pilot Program.
This bill limits compensation to direct victims of theft,
identity theft, embezzlement, forgery, or fraud of an elder or
dependent adult and deems derivative victims ineligible.
This bill limits compensation to a particular victim to $3,000.
This bill permits compensation for up to 10 sessions of mental
health counseling and up to 10 session of financial counseling.
This bill limits the distribution of the total funds under the
pilot program to one million dollars.
This bill states that funding authorization stops on January 1,
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2019.
This bill sunsets the program on January 1, 2020.
Existing law requires the California Victim Compensation and
Government Claims Board (board) to report to the Legislature and
the Governor, by July 1, 2020, the following:
a) The number of victims who received payment under the
pilot program
b) The number of victims who received mental health
counseling;
c) The average payment for mental health counseling per
recipient;
d) The number of victims who received financial counseling;
e) The average payment for financial counseling per
recipient; and,
f) Any other data on the pilot program that the board
wishes to include.
This bill states that a compensation program for elderly victims
of financial abuse is applicable to San Diego County alone
because San Diego is unique in the particularly high number of
reported elder and dependent adult financial abuse crimes.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing 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:
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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 December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 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).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 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 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). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
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Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Need for This Bill
According to the author:
This bill would establish a pilot program for victims
of elder and dependent adult financial abuse in San
Diego County to be eligible for financial assistance
through the California Victims' Compensation program.
Elder and dependent adult financial abuse can lead to
large costs to victims, families, and society. The
Penal Code specifically cites the increased
vulnerability of the elderly and dependent adult
victims as a justification for higher criminal
penalties for perpetrators of financial crimes. In
the Welfare and Institutions Code, the Elder and
Dependent Adult Civil Protection Act cites the
Legislature's responsibility to protect this
vulnerable population from criminal acts.
2.Compensation Issues for Elderly and Dependent Victims of Theft
and Fraud
Nature and Extent of Abuse of the Elderly
There has been a growing amount of research into the nature and
extent of elder and dependent adult abuse. One study suggests
that approximately 6% of the population of those age 65 and
older will report physical, financial, mental and other forms of
abuse in any given year. The Department of Social Services
(DSS) which oversees the Adult Protective Services (APS) program
found that approximately 9,500 cases per month of elder and
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dependent adult abuse are reported and investigated. About
1,600 of the reports reflect financial abuse or exploitation.
In 2014-2015, San Diego County's Adult Protective Services
confirmed a total of 1,148 unique reports of elder and dependent
adult financial abuse. The San Diego District Attorney
estimates approximately 600 elderly and dependent adult victims
are served annually, averaging about 50 clients per month. It
is estimated that elder victims of financial abuse suffer
upwards of $2.9 billion annual financial loss. Data from the
National Center on Elder Abuse shows that women are about twice
as likely as men to be abused, and that the older one is, the
greater the risk is for suffering abuse.
Vulnerability of Elderly Financial Crime Victims
Many elderly persons have fixed minimal incomes. A loss of
income or assets could severely limit an elderly person's
ability to pay for basic needs, such as utilities and rent.
Elderly persons who are the victims of theft or fraud may have
difficulty dealing with the stress of victimization' leading to
rapid declines in health. Further, research<1> has found that
changes in the brains of the elderly render them less able to
recognize a fraudulent scheme or scam. A dependent adult who
has a limited ability to care for himself or herself, or who has
an intellectual disability, may also be especially vulnerable to
thieves and perpetrators of fraudulent schemes. SB 60 (Wright)
Ch. 147, Stats. 2013, was originally drafted to extend
compensation to dependent adult and elderly victims of financial
abuse. The bill was amended to only extend eligibility to
victims of human trafficking.
Specific Issues Concerning Compensation for Financial Crimes
against the Elderly
Two major issues or objections have been raised to an extension
of compensation to elderly and dependent adult victims of
financial fraud. One concern was that compensation through the
fund has always been limited to victims of violent crime.
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<1> Why It's Easier to Scam the Elderly, NPR Morning Edition,
December 6, 2012:
http://www.npr.org/blogs/health/2012/12/06/166609270/why-its-easi
er-to-scam-the-elderly
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Supporters of compensation for elderly victims of financial
fraud that the physical and mental harm experienced by elderly
and dependent adult victims of financial fraud can be similar or
equivalent to the harm suffered by victims of crimes covered by
the program.
Further, supporters of both this bill and the introduced version
of SB 60 in 2013 have noted that federal law authorizes
compensation to victims of financial crimes and that the state
would receive federal matching funds for reimbursement of
elderly fraud victims. The 2001 Federal Register<2> on victim
compensation notes: "States may choose to broaden the range of
compensable crimes to include those involving threats of injury
or economic crime where victims are traumatized but not
physically injured." The Final Program Guidelines issued by the
Department of Justice, Office for Victims of Crime<3> explains:
"Although VOCA-funded programs cannot restore the financial
losses suffered by victims of fraud, victims are eligible for
the counseling, criminal justice advocacy, and other support
services offered by VOCA-funded victim assistance programs."
The second major concern was that the fund is chronically low on
reserves or heading toward a deficit. However, it has been
noted that the compensation program has long been criticized for
overspending on administrative costs and for being inefficient
in evaluating and processing claims. Arguably, changes in the
program could allow extension of compensation to the victims
covered by this bill. AB 1140 (Bonta) Ch. 569, Stats. 2015,
codified many suggestions for reform that the board has heard
over the 10 to 15 years. The Senate Floor analysis of AB 1140
lists 34 separate changes made to the law governing victim
compensation in the bill.
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<2> http://ojp.gov/ovc/voca/pdftxt/voca_guidelines2001.pdf
<3> http://ojp.gov/ovc/voca/vaguide.htm
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