BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 338        Hearing Date:    April 28, 2015    
          
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          |Author:    |Morrell                                              |
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          |Version:   |February 23, 2015                                    |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|MK                                                   |
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                                Subject:  Elder Abuse



          HISTORY
          
          Source:   Placer County District Attorney

          Prior Legislation:AB 332 (Butler) - Chapter 366, Stats. 2011
                         SB 18 (Oropeza) - Chapter 25, 2009
                           AB 1424 (Davis) - Ch. 152, Stats. 2008
                           SB 1018 (Simitian) - Ch.140, Stats. 2005
                           AB 484 (Benoit) - 2005, held Assembly  
          Appropriations 
                           AB 916 (Canciamilla) - 2005, held Senate  
          Appropriations 
                           AB 2611 (Simitian) - Ch. 886, Stats. 2004 
                           AB 2474 (Wolk) - 2004, not heard in the Senate  
          Judiciary Committee
                           AB 1131 (Jackson) - Ch. 543, Stats. 2003
                           AB 255 (Zettel) - Ch. 54, Stats. 2002
                           AB 2140 (Simitian) - Ch. 369, Stats. 2002
                           AB 2735 (Chan) - Ch. 552, Stats. 2002
                           AB 109 (Alquist) - 2001, held Senate  
          Appropriations     
                                        AB 559 (Nakano) - Ch. 214, Stats.  
          2000
                           AB 2253 (Jackson) - 2000, died Assembly  
          Inactive File







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                                     SB 2199 (Lockyer) - Ch. 946, Stats.  
          1998
                           AB 880 (Hertzberg) - Ch. 934, Stats. 1998
                                        AB 3988 (Papan) - Ch. 769, Stats.  
          1986
                                       SB 248 (Carpenter) - Ch. 968,  
          Stats. 1983


          Support:  California Association of Area Agencies on Aging;   
                    California Advocates for Nursing Home Reform;  
                    California Commission on Aging; California Association  
                    of Area Agencies on Aging; California District  
                    Attorneys Association; California Retired Teachers  
                    Association; California State Sheriffs' Association 

          Opposition:California Association of Health Facilities; ACLU;  
                    California Public Defenders Association
                                                
          




          PURPOSE
          
          The purpose of this bill is to create a wobbler for causing  
          substantial mental suffering in an elder or dependent adult.

          Existing law defines "dependent adult" is 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.  (Penal Code  368(h).)

          Existing law defines "elder" as any person who is 65 years of  
          age or older.  (Penal Code  368(g).)

          Existing law establishes fines and other punishment for theft,  
          embezzlement, forgery, or fraud, and identity theft and identity  
          crimes against and elder or dependent adult, as follows: 









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                 A person who is not a caretaker, and who knows or  
               reasonably should know that the victim is an elder or a  
               dependent adult, and the value of the labor, goods,  
               services, funds, or real and/or personal property taken  
               does not exceed $950 may be punished by a fine not  
               exceeding $1,000 and/or by imprisonment in a county jail  
               not exceeding one year. (Penal Code  368 (d).)

                 A person who is not a caretaker, and who knows or  
               reasonably should know that the victim is an elder or a  
               dependent adult, and the value of the labor, goods,  
               services, funds, or real and/or personal property taken  
               exceeds $950 may be punished by up to one year in a county  
               jail or 2, 3 or 4 years in state prison.  (Penal Code  368  
               (d).)

                 A person who is a caretaker, and the value of the labor,  
               goods, services, funds, or real and/or personal  property  
               taken does not exceed $950 may be punished by a fine not  
               exceeding $1,000 and/or by imprisonment in a county jail   
               not exceeding one year. (Penal Code  368 (e).)

                 A person who is a caretaker, and the value of the labor,  
               goods, services, funds, or real and/or personal property  
               taken exceeds $950 may be punished by up to one year in a  
               county jail or 2, 3 or 4 years in state prison. (Penal Code  
                368(e).)

          Existing law provides that 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 great  
          bodily harm or death, willfully causes or permits any elder or  
          dependent adult to suffer, or inflicts thereon unjustifiable  
          physical pain or mental suffering, or having the care or custody  
          of any 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 the  
          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 two , three or four years.  If actual  
          bodily injury occurs, there is an enhancement of 3 years if the  
          victim is under 70 years of age and 5 years if the victim is  








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          over 70 years of age.  If the offense is the proximate cause of  
          the death of the victim there is an enhancement of 5 years if  
          the victim was under 70 years of age and 7 years if the victim  
          is over 70 years of age. (Penal Code  361(b)(1)(2))

          Existing law provides that any 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, willfully causes or permits  
          and elder or dependent adult to suffer, or inflicts thereon  
          unjustifiable physical pain or mental suffering, or having the  
          care or custody of an 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,  
          punishable by up to 6 months in the county jail, a fine of up to  
          $1,000 or both jail and fine.  A second or subsequent violation  
          is punishable by up to one year in county jail, a fine of up to  
          $2,000 or both jail and fine. (Penal Code  361(c))

          This bill provides that 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  
          the 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 two, three or four years.


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight 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.   








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          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:   

                 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 February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 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).

          While significant gains have been made in reducing the prison  
          population, the state now 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
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.









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          COMMENTS
          1.  Need for The Bill
          
          According to the author:

               As currently constructed, the Penal Code 368 (b)(1)  
               requires any and all alleged felony conduct occur  
               under "circumstances or conditions likely to produce  
               great bodily harm or death". The language of the code  
               intends that "unjustifiable physical pain or mental  
               suffering" be prosecuted as a felony.   However, the  
               applicable jury instruction for this code section  
               (CALCRIM 830) requires that for whichever theory the  
               prosecution is proceeding on (pain, mental suffering,  
               permitting the elder to suffer etc.) that the act must  
               be done under circumstances or conditions likely to  
               cause "great bodily injury".  Later in the jury  
               instruction, CALCRIM 830 goes on to define "great  
               bodily injury" as "significant or substantial physical  
               injury. It is an injury that is greater than minor or  
               moderate harm."

               Therefore, in order to prove a felony mental abuse or  
               painful suffering, a prosecutor would have to show  
               significant or substantial physical injury. The  
               construction of the CALCRIM and code section allows  
               for loopholes when prosecuting.  What about cases  
               where pain medication is withheld causing significant  
               pain but no lasting injury?  A recent Placer County  
               case involved an elderly nursing home patient who was  
               deprived of her pain medication for shingles by the  
               supervising nurse.  She suffered excruciating pain,  
               but no "injury" as defined in statute.  Under the  
               current jury instruction a district attorney would  
               have to show a physical mark or injury.  With pain, or  
               mental suffering, such physical signs of abuse are  
               absent.  The woman charged with depriving the elder of  
               the pain medication plead no contest, however, if the  
               case had gone to trial, the district attorneys would  
               have had a difficult time prosecuting based on the  
               current statute and jury instruction. 
                         
               Certain cases that involve significant pain and mental  
               suffering without permanent or even noticeable  








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               physical injury do in fact merit felony charges.  But  
               based on the current statute construction and  
               accompanying CALCRIM, these cases would not obtain a  
               holding order at preliminary examination, let alone a  
               guilty verdict. 

          2.  Author's Amendment
          
          The author intends to amend this bill by inserting the words  
          "pain or" in front of mental suffering on page 2 line 28.
          
          3.  New Wobbler for Significant or Substantial Mental Suffering

          Existing law makes it a wobbler for any person under conditions  
          likely to produce great bodily harm or death willfully causes or  
          permits an elder or dependent adult to suffer, or inflict  
          unjustifiable physical pain or having car or custody of the  
          elder or dependent adult causes or permits the person or health  
          of that elder or dependent adult to be injured or willfully  
          places them in a situation in which his or her health is  
          endangered.  The penalty is either one year in county jail or 2,  
          3, or 4 years in prison and/or a fine of $6,000 (with penalty  
          assessments the fine would be more than $24,000).

          The background from the author indicates this bill is necessary  
          because you often can't prove actual great bodily injury when  
          there is mental suffering.  However, showing actual physical  
          injury is not necessary, a prosecutor just needs to show that it  
          could have caused great bodily injury or death, not that it  
          actually did.  The bench notes to CALCRIM 380, the jury  
          instruction for this section, make it clear that this section  
          does not require actual injury it just requires that the harm be  
          likely to cause great bodily injury:

               If there is a question whether an elder or dependent  
               adult suffered great bodily harm, give on request the  
               bracketed paragraph stating that a person "does not  
               need to actually suffer great bodily harm." (See  
               People v. Cortes (1999) 71 Cal.App.4th 62, 80 [83  
               Cal.Rptr.2d 519]; People v. Jaramillo (1979) 98  
               Cal.App.3d 830, 835 [159 Cal.Rptr. 771] [in context of  
               parallel child abuse statute].)  (CALCRIM 830, Bench  
               Notes









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          This bill deletes mental suffering from the existing section  
          about causing mental suffering or unjustifiable pain that is  
          likely to cause great bodily injury or death.  This bill also  
          creates a new wobbler with the same penalty for under  
          circumstances or conditions likely to produce significant or  
          substantial pain or mental suffering, willfully causing or  
          permitting an elder or dependent adult to suffer or inflicting  
          thereon unjustifiable mental suffering.  

             a.   Is this new section necessary?

            If under the existing law, you do not need to show actual  
            great bodily injury or death is this section necessary?  The  
            example in the author's background is withholding of pain  
            medication for shingles.  Could withholding pain medication a  
            condition that could lead to great bodily injury or death?  If  
            not is it a crime that should be a felony?

             b.   Same penalty for conditions likely to lead to GBI and no  
               GBI?

            This bill adopts the penalty that exists for mental suffering  
            under conditions likely to produce great bodily injury or  
            death but only requires "significant or substantial mental  
            suffering."  Is a potential 2, 3 or 4 year prison term and  
            $6,000 fine ($24,000 with penalty assessments) appropriate for  
            a crime where the harm is less severe?  

             c.    Significant or substantial.

            Significant and substantial do not have clear meaning in  
            criminal law, thus it is unclear how much injury this would  
            require for the felony penalty to be imposed.  Should these be  
            defined? 

          4.  Proposed Amendment from CAHF

          The California Association of Health Facilities opposes this  
          bill because they have concerns about the unintended  
          consequences of this bill.  They are especially concerned  
          because these elder abuse Penal Code sections are often used as  
          the basis for civil actions against them, so even if an  
          accusation would not meet the standard for prosecution a broad  
          Penal Code section could be used to commence a civil action.   








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          They would like to see the bill amended as follows:

               For any elder and dependent adult residing in a  
               long-term care facility, as defined in Section  
               15610.47, that has been previously diagnosed with a  
               mental illness or dementia, the nature and seriousness  
               of the mental illness or dementia shall be taken into  
               account in determining whether the circumstances or  
               conditions were likely to produce significant or  
               substantial mental suffering and whether the elder or  
               dependent adult suffered unjustifiable mental  
               suffering, given the previously diagnosed condition.

          The amendment suggested is to address issues where mental  
          suffering may be caused for the good of the elder or dependent  
          adult, for example they are moved out of their home and placed  
          in a facility because it is no longer safe to be at home.  If  
          this is the example, should any amendment taken be broader than  
          those living in a facility?  Family members are often the  
          caregivers and elders will often call law enforcement on their  
          family members who they think are doing them harm even if the  
          reality is much different.

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