BILL ANALYSIS AB 880 Page 1 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 Page 2 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 AB 880 Page 3 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