BILL ANALYSIS Ó
AB 2721
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Date of Hearing: April 5, 2016
Consultant: Matt Dean
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Chair
AB
2721 (Rodriguez) - As Introduced February 19, 2016
SUMMARY: Requires the Department of Justice (DOJ) to develop
and distribute an informational notice that warns the public
about elder and dependent adult fraud and provides information
regarding how and where to file complaints. The bill would also
require the notice to be made available on the Internet Web site
of the Attorney General.
EXISTING LAW:
1)Defines "elder" as "any person who is 65 years of age or
older." (Pen. Code, § 368, subd. (g).)
2)States that upon conviction of any felony it shall be
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).)
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
personal identifying information of an elder or a dependent
adult, and who knows or reasonably should know that the victim
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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).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Each year,
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thousands of California senior citizens find that they have
become victims of various types of fraud. In some of these
cases the crime is reported but most are not because many
seniors are simply too humiliated to report the fraud or may
not know where to turn to for help.
"The common thread that runs through almost all telemarketing
and other scams is the demand for payment upfront. While
California cannot constantly be there to keep our citizens
safe, we can create an informational brochure to be
distributed to retail outlets and banks that access money or
sell financial instruments.
"AB 2721 will place vital information in locations where
seniors typically access their funds when they are being
scammed. The brochure will serve as a resource for seniors
before they lose scarce retirement dollars and a source of
information to let them know where to report fraud and scams.
"The California Department of Justice regularly issues
consumer alerts warning consumers against scams. These alerts
are generally public service announcements that are made in
the media and on the DOJ website. Some past consumer alerts
have included information on "A Roundup of Senior Citizen
Scams Alert (grandparent scams, IRS, etc.) and Veteran Pension
Poaching Scam Alert."
"These are general broadcast alerts to the general population
as a whole and do not provide needed information at the
location where seniors withdraw or access money during a scam.
"The Department of Justice, by developing and distributed this
informational about scams will help prevent dependent adult
fraud and provides information regarding how and where to file
complaints. The bill would also require the notice to be made
available on the Internet Web site of the Attorney General."
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2)Background: According to background submitted by the author,
"Each year, thousands of California senior citizens find that
they have become victims of various types of fraud. In some of
these cases the crime is reported but most are not because
many seniors are simply too humiliated to report the fraud or
may not know where to turn to for help.
"Consumer fraud perpetrated against senior citizens is a very
serious issue; it creates fear, difficulty and financial
problems for the elderly. Worst of all, it victimizes them and
robs them of their savings and their peace of mind. A recent
study found that around thirty percent of complaints about
consumer fraud come from senior citizens, along with just over
a quarter of identity theft complaints. According to a
national consumer group nearly a third of all telemarketing
fraud victims are age 60 or older. Studies by AARP show that
most of older fraud victims don't realize that the voice on
the phone could belong to someone who is trying to steal their
money.
"Senior citizens are viewed as easy targets and the scams that
target them come in many different forms. Some include scams
about Medicare, funeral arrangements, and prescription drugs.
In these scams, the perpetrator may pretend to be an official
medical or government worker and ask for confidential details
or payment. Many of these schemes are perpetrated through
telemarketing and the Internet.
"The California Department of Justice regularly issues
consumer alerts warning consumers against scams. These alerts
are generally public service announcements that are made in
the media and on the DOJ website. Some past consumer alerts
have included information on "A Roundup of Senior Citizen
Scams Alert (grandparent scams, IRS, etc.) and Veteran Pension
Poaching Scam Alert."
"These are general broadcast alerts to the general population
as a whole and do not provide needed information at the
location where seniors withdraw or access money during a
scam."
3)Legislative History and Intent of Elder Abuse: Specifically,
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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]
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
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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),
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.
REGISTERED SUPPORT / OPPOSITION:
Support
None
Opposition
None
Analysis Prepared
by: Matt Dean / PUB. S. / (916) 319-3744
AB 2721
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