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
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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
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