BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2721|
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CONSENT
Bill No: AB 2721
Author: Rodriguez (D)
Introduced:2/19/16
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/14/16
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 78-0, 5/12/16 (Consent) - See last page for
vote
SUBJECT: Elder and dependent adult fraud: informational
notice
SOURCE: Author
DIGEST: This bill requires the Department of Justice 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.
ANALYSIS:
Existing law:
1)Defines "elder" as "any person who is 65 years of age or
older." (Penal 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
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Page 2
significant disability. (Penal 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
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. (Penal 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
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Page 3
value not exceeding $950. (Penal Code § 368, subd. (e).)
This bill 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, and requires the
notice to be made available on the Internet Web site of the
Attorney General.
Background
Over 44 million Americans, or nearly one in four seniors, are
victims of elder abuse each year with a substantial proportion
of it being financial abuse. The senior population loses a
combined total of over $36 billion every year due to fraud and
financial abuse (https://www.truelinkfinancial.com/research).
Every 10 seconds a senior in California is a victim of financial
abuse, and over $4.8 billion in assets are at stake every year
in California. There are more residents over 65 in California
than in any other state, and the state's elderly population will
almost double within the next 20 years from 3.7 million to more
than 6.4 million according to the U.S. Census Bureau
(http://www.cwda.org/publication/anna-and-joe-importance-adult-pr
otective-services-fight-against-elder-financial-abuse).
Financial abuse is often committed by serial abusers who will
come back again for money. For example, a senior who loses $20
due to financial exploitation will go on to lose an average of
$2,000 to other scams in the course of five years
(http://www.forbes.com/sites/johnwasik/2016/05/04/how-to-beat-the
-elder-financial-abuse-epidemic/#52e3645c72ea). The typical
profile of perpetrators is likely to be individuals who are
between 40 and 59 years old with females being just as likely as
males to be the perpetrator. The vast majority of perpetrators
have a close relationship to victim, such as a caregiver, family
member or friend where approximately two-thirds are family
members of the victim, but these crimes also come from random
individuals posing as sweepstakes, lottery or IRS
representatives alongside romantic, healthcare, or magazine
claims, among other scams.
The Federal Trade Commission says that fraud complaints to its
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offices by individuals 60 and older have risen at least 47
percent between 2012 and 2014, but it is difficult to know the
actual amount of elderly fraud cases.
(http://www.consumerreports.org/cro/consumer-protection/preventin
g-elder-abuse) Seniors are often deeply ashamed and humiliated
after they have figured out that they have been scammed and
consequently fail to report the crime or tell family members
that they have been victims of elderly financial abuse. Research
confirms that in New York State, only 1 in 44 cases of elderly
financial abuse were actually reported. In California
specifically, 1 in 100 incidents of elder financial abuse is
actually reported
(http://www.cwda.org/publication/anna-and-joe-importance-adult-pr
otective-services-fight-against-elder-financial-abuse).
A sample voicemail left by a fraudster goes as follows:
This is the Internal Revenue Service and this call is for
you. The issue is extremely time sensitive. As soon as
you receive this message, I need you to leave your work
aside and dial the following number?this is Officer John
Smith and I am working with the IRS. If you or your
lawyer fails to return the call, then the only thing I
can do is wish you good luck as this situation unfolds on
you. Goodbye.
Legislative history and Intent of Elder Abuse
Elder abuse was identified as a discrete crime in 1986 and
abuse of a dependent person was in 1984. 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
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Penal 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.
(Welfare & Institutions 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. (Senate
Committee on Judiciary, Analysis of Senate. 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
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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 id 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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
SUPPORT: (Verified6/27/16)
None received
OPPOSITION: (Verified6/27/16)
None received
ASSEMBLY FLOOR: 78-0, 5/12/16
AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker,
Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Calderon,
Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper,
Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines,
Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson,
Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger
Hernández, Holden, Irwin, Jones, Kim, Lackey, Levine, Linder,
Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina,
AB 2721
Page 7
Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen,
Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago,
Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber,
Wilk, Williams, Wood, Rendon
NO VOTE RECORDED: Burke, Jones-Sawyer
Prepared by:Molly Lao / PUB. S. /
6/29/16 15:50:52
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