BILL ANALYSIS                                                                                                                                                                                                    Ó




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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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            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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               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  
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            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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