BILL ANALYSIS Ó
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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