BILL ANALYSIS                                                                                                                                                                                                    



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

          Bill No:    SB 352        Hearing Date:    April 28, 2015    
          
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          |Author:    |Block                                                |
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          |Version:   |February 24, 2015                                    |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|MK                                                   |
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                                Subject:  Elder Abuse



          HISTORY

          Source:   San Diego District Attorney's Office

          Prior Legislation:AB 332 (Butler) Ch. 336, Stats. 2011

          Support:  Association for Deputy District Attorneys; California  
                    District Attorneys Association; California Advocates  
                    for Nursing Home Reform; California Retired Teachers  
                    Association; California State Sheriffs' Association

          Opposition:None known

                                                


          PURPOSE

          The purpose of this bill is to have the court consider issuing a  
          protective order upon a conviction of elder abuse.

          Existing law defines "dependent adult" as 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,  







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          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 provides that any person who knows or reasonably  
          should know that a person is an elder or dependent adult and  
          who, under circumstance 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 cause or permits the elder or 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 or two three or  
          four years in state prison or a fine not to exceed $6,000 or  
          both fine and imprisonment. (Penal Code  368 (b))


          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 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 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 is punishable by a fine not to exceed $1,000 or  
          imprisonment in county jail not to exceed one year, or by both  
          that fine and imprisonment. (Penal Code  368 (c))

          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: 

                 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  








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               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)(2).)

                 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 the county jail and a fine up to  
               $10,000 or by imprisonment in the county jail not exceeding  
               one year and a fine up to $2,500.  (Penal Code  368  
               (d)(1).)

                 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)(2).)

                 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 the county jail and a  
               fine up to $10,000 or by imprisonment in the county jail  
               not exceeding one year and a fine up to $2,500.  (Penal  
               Code  368 (e)(1).)

          Existing law allows for a protective order for an elder or  
          dependent adult who has suffered abuse. (Welfare and  
          Institutions Code  15657.03)

          Existing law provides that any person who commits the false  
          imprisonment of an elder or dependent adult by use of violence,  
          menace, fraud or deceit is guilty of a felony punishable in  
          county jail for 2, 3 or 4 years.

          This bill would provide that upon conviction for a violation of  
          Penal Code Section 368 (b), (c), (d), (e) or (f) the sentencing  
          court shall consider issuing an order restraining the defendant  
          from any contact with the victim for up to 10 years.


          This bill provides that in determining the length of any  








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          restraining order the court shall consider the seriousness of  
          the facts before it, the probability of future violations, and  
          the safety of the victim and his or her immediate family.

                    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.   

          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  








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          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.








          COMMENTS

          1.  Need for This Bill

          According to the author:

               California has the highest number of aging adults in  
               the nation, with 4.2 million individuals over the age  
               of 65 years. Currently, loopholes exist in the law  
               that restrict a prosecutor's ability to protect  
               victims of Elder Abuse by using post-conviction  
               Criminal Protective Orders. This leaves our most  
               vulnerable crime victims with an unnecessary level of  
               exposure to their perpetrators. This segment of our  
               population is ill equipped to pursue protection  
               through civil remedies such as Temporary Restraining  
               Orders.  

               SB 352 seeks to protect victims of elder abuse through  
               the use of the post-conviction Criminal Protective  
               Orders that are currently available to victims of  








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               domestic violence and stalking. The protective orders  
               allow up to 10 years of protection. Including victims  
               of elder abuse under these special protections is  
               consistent with the Legislature's handling of offenses  
               that target elder adults due to their potential  
               vulnerability. Elder adults are particularly  
               vulnerable after their perpetrators have been  
               convicted, sentenced and released on parole.  This  
               measure will extend a level of protection that is  
               needed in those instances. 

          2.  Elder Abuse

          Existing law makes it a crime for a person who knows or should  
          have known that a person is an elder or dependent adult to  
          willfully cause or permit the person or health of that elder  
          adult to be injured or for that person to be placed in a  
          situation in which his or her person or health is endangered.   
          Existing law also specifies penalties for a person who violates  
          any law on theft, embezzlement, forgery, fraud or identity theft  
          when the victim is an elder with increased penalties for higher  
          monetary amounts.  Existing law also makes it a crime to falsely  
          imprison an elder or dependent adult by use of violence, menace,  
          fraud or deceit.

           3. Protective Order for Eder Abuse

          Under existing law, an elder or dependent adult who has suffered  
          abuse can seek a protective order under the Welfare and  
          Institutions Code.  The order does not require a conviction and  
          can be for no more than five years. (Welfare and Institutions  
          Code  15657.03)

          This bill would require the court to consider issuing an order  
          restraining a defendant convicted of elder abuse from any  
          contact with the victim.  The restraining order may be valid for  
          up to 10 years and in determining the length of time the court  
          shall consider the seriousness of the facts of the case, the  
          probability of future violations and the safety of the victim  
          and his or her immediate family.  The protective order may be  
          issued whether the defendant served time in jail, prison or has  
          his or her sentence suspended or is placed on probation.  The  
          order is post-conviction so unlike pre-conviction orders, the  
          defendant has been found guilty of the acts that have been  








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          alleged.


          The San Diego District Attorney's Office is the sponsor of the  
          bill and believes that existing orders are not adequate in many  
          elder abuse cases:

               The thrust of SB 352 is to add a provision to PC 368  
               that mirrors the language in PC 273.5 (j) (Domestic  
               Violence) and PC 646.9(k)(l) (Stalking) and closes  
               this critical loophole in the law that makes our elder  
               victims vulnerable to further abuse and anxiety.   
               Currently, before a conviction while a case is  
               pending, a Criminal Protective Order is filed offering  
               our elder victims a firm sense of security.  However,  
               there are loopholes in the law that restricts a  
               prosecutor's ability to protect victims of Elder Abuse  
               through the use of post-conviction Criminal Protective  
               Orders.  Current law strips these victims of that  
               sense of security post-conviction unnecessarily.  This  
               leaves our most vulnerable crime victims with an  
               unnecessary level of exposure to their perpetrators.  
               SB 352 shall put victims of Elder Abuse in the same  
               category as Domestic Violence and Stalking Victims by  
               extending the reach of criminal protective orders to  
               every class of Elder Abuse victim.  

               A recent San Diego case illustrates why this law is  
               needed.  An 83-year-old victim had been living with  
               her adult son and his defendant girlfriend. The  
               defendant was the full time caregiver for the elderly  
               and very frail victim.  In November 2014, neighbors  
               reported seeing the defendant pushing the victim  
               across the street screaming at her.  The defendant was  
               seen pulling the victim by the arm and pushing her  
               into the house.  Police were dispatched and arrived in  
               time to actually witness the defendant standing over  
               the victim screaming at the elderly woman.  The  
               defendant then grabbed the victim by her clothing, and  
               violently lifted her off the ground and dropped her  
               again.  The defendant was charged with one counts of  
               felony elder abuse, which was reduced to a misdemeanor  
               by the judge.  The defendant was given 3 years summary  
               probation (no supervision) and ordered to report to a  








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               52 week elder abuse program.  Under current law, in  
               this particular situation, although a "stay away" is  
               listed as a term of probation, it lacks an enforcement  
               protocol.  If, in the future, law enforcement is  
               called to this home again, there will be no record of  
               a restraining order in the eWARRANTS system.   

                By 2050, people age 65 and older are expected to  
               comprise 20% of the total U.S. population. The fastest  
               growing segment of American's population consists of  
               those 85 and up.  In 2010, there were 5.8 million  
               people aged 85 or older. By 2050, it is projected that  
               there will be 19 million people aged 85 or older.   
               This segment of our population is least equipped to  
               pursue protection through civil remedies such as  
               temporary restraining orders.
                
               Several classes of elder abuse victims remain  
               unprotected under the current law:

               Where the defendant is unrelated to a defendant which  
               is most prevalent in the large volumes of cases  
               involving caretakers who abuse both physically;  
               financially; or through neglect; 
               Where defendant is a relative of victim but not within  
               two degrees of consanguinity leaving elders exposed to  
               perpetrators who may be cousins, aunts/uncles,  
               great-grandchildren, nieces/nephews; step-children;  
               etc.
               Where the defendant gets sentenced to probation and  
               the defendant and victim are not related within two  
               degrees of consanguinity.  This scenario is most  
               common when we have elder abuse committed by  
               caretakers.

          This bill does not require the court to order a protective order  
          but requires that they consider such an order.  Should courts be  
          required to consider a protective order in these types of elder  
          abuse cases?



                                      -- END -









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