Senate Bill No. 338

Introduced by Senator Morrell

(Coauthor: Assembly Member Waldron)

February 23, 2015

An act to amend Section 368 of the Penal Code, relating to elder abuse.

LEGISLATIVE COUNSEL’S DIGEST

SB 338, as introduced, Morrell. Elder abuse.

Existing law provides that a person who knows or reasonably should know that the victim is an elder or dependent adult, and under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits the victim to suffer unjustifiable physical pain or mental suffering, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed $6,000, or by both that fine and imprisonment, or by imprisonment in the state prison for 2, 3, or 4 years.

This bill would provide that a person who knows or reasonably should know that the victim is an elder or dependent adult, and under circumstances or conditions likely to produce significant or substantial mental suffering, willfully causes or permits the victim to suffer unjustifiable mental suffering, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed $6,000, or by both that fine and imprisonment, or by imprisonment in the state prison for 2, 3, or 4 years.

By expanding the scope of an existing crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 368 of the Penal Code is amended to
read:

368.  

(a) The Legislature finds and declares that crimes against
elders and dependent adults are deserving of special consideration
and protection, not unlike the special protections provided for
minor children, because elders and dependent adults may be
confused, on various medications, mentally or physically impaired,
or incompetent, and therefore less able to protect themselves, to
understand or report criminal conduct, or to testify in court
proceedings on their own behalf.

(b) (1)  begin delete Any end delete begin insert (A) end insert begin insert   end insert begin insert A end insert person who knows or reasonably should
know that a person is an elder or dependent adult and who, under
circumstances or conditions likely to produce great bodily harm
or death, willfully causes or permits begin delete any end delete begin insert an end insert elder or dependent
adult to suffer, or inflicts thereon unjustifiable physical pain begin delete or
mental suffering end delete , or having the care or custody of begin delete any end delete begin insert an end insert elder or
dependent adult, willfully causes or permits the person or health
of the elder or dependent adult to be injured, or willfully causes
or permits 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 a county jail not exceeding one year, or by a
fine not to exceed six thousand dollars ($6,000), or by both that
fine and imprisonment, or by imprisonment in the state prison for
two, three, or four years.

begin insert

(B) A person who knows or reasonably should know that a
person is an elder or dependent adult and who, under
circumstances or conditions likely to produce significant or
substantial mental suffering, willfully causes or permits an elder
or dependent adult to suffer, or inflicts thereon unjustifiable mental
suffering, is punishable by imprisonment in a county jail not
exceeding one year, or by a fine not to exceed six thousand dollars
($6,000), or by both that fine and imprisonment, or by
imprisonment in the state prison for two, three, or four years.

end insert

(2) If in the commission of an offense described in paragraph
(1), the victim suffers great bodily injury, as defined in Section
12022.7, the defendant shall receive an additional term in the state
prison as follows:

(A) Three years if the victim is under 70 years of age.

(B) Five years if the victim is 70 years of age or older.

(3) If in the commission of an offense described in paragraph
(1), the defendant proximately causes the death of the victim, the
defendant shall receive an additional term in the state prison as
follows:

(A) Five years if the victim is under 70 years of age.

(B) Seven years if the victim is 70 years of age or older.

(c)  begin delete Any end delete begin insert A end insert person who knows or reasonably should know that
a person is an elder or dependent adult and who, under
circumstances or conditions other than those likely to produce
great bodily harm or death, begin insert or likely to produce significant or
substantial mental suffering, end insert willfully causes or permits begin delete any end delete begin insert an end insert
elder or dependent adult to suffer, or inflicts thereon unjustifiable
physical pain or mental suffering, or having the care or custody
of begin delete any end delete begin insert an end insert elder or dependent adult, willfully causes or permits the
person or health of the elder or dependent adult to be injured or
willfully causes or permits the elder or dependent adult to be placed
in a situation in which his or her person or health may be
endangered, is guilty of a misdemeanor. A second or subsequent
violation of this subdivision is punishable by a fine not to exceed
two thousand dollars ($2,000), or by imprisonment in a county jail
not to exceed one year, or by both that fine and imprisonment.

(d)  begin delete Any end delete begin insert A end insert person who is not a caretaker who violates begin delete any end delete begin insert a end insert
provision of law proscribing theft, embezzlement, forgery, or fraud,
or who violates Section 530.5 proscribing 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:

(1) By a fine not exceeding two thousand five hundred dollars
($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 ten thousand dollars ($10,000), or by imprisonment
pursuant to subdivision (h) of Section 1170 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 nine hundred fifty dollars ($950).

(2) By a fine not exceeding one thousand dollars ($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 nine hundred fifty dollars ($950).

(e)  begin delete Any end delete begin insert A end insert caretaker of an elder or a dependent adult who violates
begin delete any end delete begin insert a end insert provision of law proscribing theft, embezzlement, forgery,
or fraud, or who violates Section 530.5 proscribing identity theft,
with respect to the property or personal identifying information of
that elder or dependent adult, is punishable as follows:

(1) By a fine not exceeding two thousand five hundred dollars
($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 ten thousand dollars ($10,000), or by imprisonment
pursuant to subdivision (h) of Section 1170 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 nine hundred fifty dollars ($950).

(2) By a fine not exceeding one thousand dollars ($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 nine hundred fifty dollars ($950).

(f)  begin delete Any end delete begin insert A end insert person who commits the false imprisonment of an
elder or a dependent adult by the use of violence, menace, fraud,
or deceit is punishable by imprisonment pursuant to subdivision
(h) of Section 1170 for two, three, or four years.

(g) As used in this section, “elder” means begin delete any end delete begin insert a end insert person who is
65 years of age or older.

(h) As used in this section, “dependent adult” means begin delete any end delete begin insert a end insert
person who is between begin delete the ages of end delete 18 and begin delete 64, end delete begin insert 64 years of age end insert 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. “Dependent adult” includes begin delete any end delete
begin insert a end insert person between begin delete the ages of end delete 18 and 64 begin insert years of age end insert who is
admitted as an inpatient to a 24-hour health facility, as defined in
Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.

(i) As used in this section, “caretaker” means begin delete any end delete begin insert a end insert person who
has the care, custody, or control of, or who stands in a position of
trust with, an elder or a dependent adult.

(j)  begin delete Nothing in this end delete begin insert This end insert section shall begin insert not end insert preclude prosecution
under both this section and Section 187 or 12022.7 or any other
provision of law. However, a person shall not receive an additional
term of imprisonment under both paragraphs (2) and (3) of
subdivision (b) for begin delete any end delete begin insert a end insert single offense, nor shall a person receive
an additional term of imprisonment under both Section 12022.7
and paragraph (2) or (3) of subdivision (b) for begin delete any end delete begin insert a end insert single offense.

(k)  begin delete In any case in which end delete begin insert When end insert a person is convicted of violating
these provisions, the court may require him or her to receive
appropriate counseling as a condition of probation. begin delete Any end delete begin insert A end insert
defendant ordered to be placed in a counseling program begin delete shall be end delete
begin insert is end insert responsible for paying the expense of his or her participation in
the counseling program as determined by the court. The court shall
take into consideration the ability of the defendant to pay, and no
defendant shall be denied probation because of his or her inability
to pay.

SEC. 2.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.