BILL ANALYSIS Ó
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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