BILL ANALYSIS                                                                                                                                                                                                    




                                                          AB 880  
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CONCURRENCE IN SENATE AMENDMENTS
AB 880 (Hertzberg)
As Amended July 7, 1998
Majority vote 

  ASSEMBLY: 76-1  (January 28, 1998)SENATE:  36-0(August 17, 1998)     


Original Committee Reference:   PUB. S.  

  SUMMARY  :  Expands criminal sanctions for offenses pertaining to  
financial abuse of the elderly and dependent adults so as to apply  
to all persons, not just caretakers.  

  The Senate amendments  :

1)  Provide that any person who is not a caretaker who violates  
any provision of law proscribing theft or embezzlement, with  
respect to the property of an elder or a dependent adult, and who  
knows or reasonably should know that the victim is an elder or  
dependent adult, shall be punished, as specified, based on the  
value of the money, labor, or property taken:

    a)  If the loss exceeds $400, the offense is a felony,  
       punishable by two, three, or four years in state prison, or  
       up to one year in the county jail; or

    b)  If the loss is less than $400, the offense is a  
       misdemeanor, punishable by up to one year in the county  
       jail and a fine up to $1,000.

2)  Delete the Assembly amendment including attempted murder  
within a penalty enhancement statute.

  EXISTING LAW  : 

1) Provides that any caretaker of an elder or a dependent adult  
   person who violates any provision of law proscribing theft or  
   embezzlement, with respect to the property of that elder or  
   dependent adult, shall be punished, as specified, based on the  
   value of the money, labor, or property taken:

    a)  If the loss exceeds $400, the offense is a felony,  
       punishable by two, three, or four years in prison, or up to  
       one year in the county jail; or
   
    b)  If the loss is less than $400, the offense is a  
       misdemeanor, punishable by up to one year in the county  
       jail.

2) Defines "Elder" as 65 or older; "Dependent adult" as any person  
   between age 18 to 64 and has physical or mental limitations  
   which restrict his or her ability to carry out normal  
   activities or to protect his or her rights; "Caretaker" as any  
   person who has the care, custody or control of, or who stands  








                                                          AB 880  
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   in a position of trust with, an elder or dependent adult.  

3) Provides if the suspect is not a "caretaker", the theft or  
   embezzlement 
crime may still be charged under other sections, but the increased  
punishment of Penal Code Section 368 is not applicable.  

  AS PASSED BY THE ASSEMBLY  , this bill:

1) Provided that any person (i.e., as opposed to a caretaker) who  
   stole or embezzled the property of an elder person committed:

    a)  An alternate felony/misdemeanor, punishable by two, three  
       or four years in state prison or by up to one year in the  
       county jail if the property was valued over $400; or

    b)  A misdemeanor, punishable by up to one year in the county  
       jail if the property was valued $400 or less.

2) Included attempted murder within the penalty enhancement  
   statute for crimes committed against people 65 years of age or  
   older, the blind, deaf, developmentally disabled, paraplegic,  
   quadriplegic, and persons under the age of 14.

  FISCAL EFFECT  :  According to the Assembly Appropriations Committee  
analysis,   unknown annual ongoing General Fund costs, well in  
excess of $150,000, for increased state incarceration based on the  
2,226 offenders serving state time for various theft and  
embezzlement offenses in 1995-96.  Unknown, probably minor,  
nonreimbursable local incarceration costs.

  COMMENTS  :  According to the author, "The Legislature has not  
extended special findings about the needs of elderly and dependent  
adults and criminal sanctions for elder abuse or neglect to most  
instances of financial abuse of the elderly.  Penal Code Section  
368(c) is limited to 'care-takers', that is, any person who has  
the care, custody, or control of or who stands in a position of  
trust with, an elder or a dependent adult.  As written, the  
statute only targets a small fraction of those who financially  
abuse the elderly.

"For example, the statute does not reach persons who target the  
elderly with home repair and roofing scams, fraudulent auto  
crashes, utility scams, mortgage fraud, bunco schemes, annuity  
frauds, telemarketing scams, fraudulent marriages, and the like.   
Nor does it reach family members who financially abuse elderly  
relatives but do not provide care.  Persons who engage in these  
egregious acts must be prosecuted under the general theft statutes  
which carry lower penalties and do not identify the perpetrator as  
one who victimizes the elderly.

"We need to target criminals who victimize elders by means of  
fraud.  Many of these patters of criminal conduct do not include  
establishing a relationship akin to a "caretaker" as presently  
required under Penal Code 368(c).  Nevertheless, these criminals  








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are still focusing on our elders and yet we can only prosecute  
them under established grand theft statutes, if that.  
   
"I am committed to protect the vulnerable of our society by  
increasing punishment for financial elder abuse.  At our interim  
hearing on elder abuse, there was overwhelming consensus that  
there are groups of criminals who prey solely on our elder  
population because they are elders and possess money and property.  
 We are at the stage that domestic violence and child abuse was  
several years ago.  We know that these crimes are being committed  
but our tools of enforcement are inadequate.  We need to help  
prevent elders from 
becoming wards of the state after their life savings have been  
depleted by the abuser."  

  Analysis prepared by  :  Judith M. Garvey / apubs / (916) 319-3744
                                                                  FN 041768