BILL NUMBER: SB 1715 CHAPTERED
BILL TEXT
CHAPTER 935
FILED WITH SECRETARY OF STATE SEPTEMBER 28, 1998
APPROVED BY GOVERNOR SEPTEMBER 28, 1998
PASSED THE SENATE AUGUST 30, 1998
PASSED THE ASSEMBLY AUGUST 27, 1998
AMENDED IN ASSEMBLY AUGUST 24, 1998
AMENDED IN ASSEMBLY AUGUST 21, 1998
AMENDED IN ASSEMBLY JULY 7, 1998
AMENDED IN ASSEMBLY JUNE 17, 1998
AMENDED IN SENATE APRIL 28, 1998
AMENDED IN SENATE APRIL 20, 1998
AMENDED IN SENATE APRIL 13, 1998
INTRODUCED BY Senator Calderon
(Coauthor: Assembly Member Washington)
FEBRUARY 17, 1998
An act to amend Sections 237 and 368 of the Penal Code, to amend
Section 2583 of, to amend the heading of Part 7 (commencing with
Section 250) of Division 2 of, and to add Section 259 to, the Probate
Code, relating to elder abuse.
LEGISLATIVE COUNSEL'S DIGEST
SB 1715, Calderon. Elder and dependent adult abuse.
(1) Under existing law, the offense of false imprisonment is
punishable by a fine not exceeding $1,000, or by imprisonment in a
county jail for not more than one year, or by both that fine and
imprisonment.
This bill would make false imprisonment punishable by imprisonment
in the state prison for 2, 3, or 4 years, where that offense is
committed upon an elder or dependent adult by the use of force,
menace, fraud, or deceit. By increasing the punishment of a crime,
this bill would impose a state-mandated local program.
(2) Existing law provides for the distribution of an estate upon
the death of a person owning real or personal property, or both,
where the deceased has been the victim of a homicide.
This bill would deem a person to predecease an elder or dependent
adult who was victimized by that person, barring that person from
receiving any property, damages, or costs from the estate of the
deceased elder or dependent adult, under specified conditions. Those
conditions require that the person was either convicted of any of
specified acts of abuse against an elder or dependent adult, as
specified, or found liable for having (a) abused the elder or
dependent adult, as specified, (b) acted in bad faith, and (c) been
reckless, oppressive, fraudulent, or malicious in the commission of
the abusive acts. In addition, the bill would require that the
decedent be found to have been substantially unable to manage his or
her financial resources or to resist fraud or undue influence. This
provision would not apply to a dependent who, at any time following
the prohibited act or acts, was substantially able to manage his or
her financial resources and to resist fraud or undue influence as
defined.
(3) Existing law authorizes judicial proceedings under which a
conservator may be appointed to manage the property and financial
affairs of a person. The court is required to consider the relevant
circumstances in determining whether to authorize a proposed action
in connection with the conservatee's property, including
circumstances enumerated in existing law.
This bill would add as a specific circumstance for the court's
consideration in this context whether there are allegations that a
beneficiary of the conservatee has committed physical abuse, neglect,
false imprisonment, or fiduciary abuse against the conservatee under
certain conditions.
(4) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
(5) This bill would incorporate additional changes in Section 368
of the Penal Code proposed by SB 2168, AB 880, and AB 1955, to be
operative if this bill and one or more of the other bills are enacted
and become effective on or before January 1, 1999, and this bill is
enacted last.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 237 of the Penal Code is amended to read:
237. (a) False imprisonment is punishable by a fine not exceeding
one thousand dollars ($1,000), or by imprisonment in the county jail
for not more than one year, or by both that fine and imprisonment.
If the false imprisonment be effected by violence, menace, fraud, or
deceit, it shall be punishable by imprisonment in the state prison.
(b) False imprisonment of an elder or dependent adult by use of
violence, menace, fraud, or deceit shall be punishable as described
in subdivision (e) of Section 368.
SEC. 2. Section 368 of the Penal Code is amended to read:
368. (a) The Legislature finds and declares that crimes against
elders and dependent adults are deserving of special consideration
and protection, not unlike the special protections provided for minor
children, because elders and dependent adults may be confused, on
various medications, mentally or physically impaired, or incompetent,
and therefore less able to protect themselves, to understand or
report criminal conduct, or to testify in court proceedings on their
own behalf.
(b) (1) Any person who, under circumstances or conditions likely
to produce great bodily harm or death, willfully causes or permits
any elder or dependent adult, with knowledge that he or she is an
elder or a 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 causes or permits the elder or dependent 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 not
exceeding one year, or in the state prison for two, three, or four
years.
(2) If in the commission of an offense described in paragraph (1),
the victim suffers great bodily injury, as defined in subdivision
(e) of Section 12022.7, the defendant shall receive an additional
term of three years in the state prison, except that if the victim is
70 years of age or older the additional term shall be five years.
(3) If in the commission of an offense described in paragraph (1),
the defendant proximately causes the death of the victim, the
defendant shall receive an additional term of five years in the state
prison, except that if the victim is 70 years of age or older the
additional term shall be seven years.
(c) Any person 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, with knowledge that he or
she is an elder or a 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 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.
(d) Any caretaker of an elder or a dependent adult who violates
any provision of law proscribing theft or embezzlement, with respect
to the property of that elder or dependent adult, is punishable by
imprisonment in a county jail not exceeding one year, or in the state
prison for two, three, or four years when the money, labor, or real
or personal property taken is of a value exceeding four hundred
dollars ($400), and by a fine not exceeding one thousand dollars
($1,000), by imprisonment in a county jail not exceeding one year, or
by both that fine and imprisonment, when the money, labor, or real
or personal property taken is of a value not exceeding four hundred
dollars ($400).
(e) Any person who commits the false imprisonment of an elder or
dependent adult by the use of violence, menace, fraud, or deceit is
punishable by imprisonment in the state prison for two, three, or
four years.
(f) As used in this section, "elder" means any person who is 65
years of age or older.
(g) As used in this section, "dependent adult" means 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, but not
limited to, persons who have physical or developmental disabilities
or whose physical or mental abilities have diminished because of age.
"Dependent adult" includes any person between the ages of 18 and 64
who is admitted as an inpatient to a 24-hour health facility, as
defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety
Code.
(h) As used in this section, "caretaker" means 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.
(i) Nothing in this section shall preclude prosecution under both
this section and Section 187 or 12022.7 or any other provision of
law. However, a person shall not receive an additional term of
imprisonment under both paragraphs (2) and (3) of subdivision (a) for
any single offense, nor shall a person receive an additional term of
imprisonment under both Section 12022.7 and paragraph (2) or (3) of
subdivision (a) for any single offense.
SEC. 2.1. Section 368 of the Penal Code is amended to read:
368. (a) The Legislature finds and declares that crimes against
elders and dependent adults are deserving of special consideration
and protection, not unlike the special protections provided for minor
children, because elders and dependent adults may be confused, on
various medications, mentally or physically impaired, or incompetent,
and therefore less able to protect themselves, to understand or
report criminal conduct, or to testify in court proceedings on their
own behalf.
(b) (1) Any person who, under circumstances or conditions likely
to produce great bodily harm or death, willfully causes or permits
any elder or dependent adult, with knowledge that he or she is an
elder or a 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 causes or permits the elder or dependent 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 not
exceeding one year, or in the state prison for two, three, or four
years.
(2) If in the commission of an offense described in paragraph (1),
the victim suffers great bodily injury, as defined in subdivision
(e) of Section 12022.7, the defendant shall receive an additional
term in the state prison as follows:
(A) Three years if the victim is under 70 years of age.
(B) Five years if the victim is 70 years of age or older.
(3) If in the commission of an offense described in paragraph (1),
the defendant proximately causes the death of the victim, the
defendant shall receive an additional term in the state prison as
follows:
(A) Five years if the victim is under 70 years of age.
(B) Seven years if the victim is 70 years of age or older.
(c) Any person 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, with knowledge that he or
she is an elder or a 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 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.
(d) 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 dependent adult, and who knows or reasonably
should know that the victim is an elder or dependent adult, is
punishable by imprisonment in a county jail not exceeding one year,
or in the state prison for two, three, or four years, when the money,
labor, or real or personal property taken is of a value exceeding
four hundred dollars ($400); and by a fine not exceeding one thousand
dollars ($1,000), by imprisonment in a county jail not exceeding one
year, or by both that fine and imprisonment, when the money, labor,
or real or personal property taken is of a value not exceeding four
hundred dollars ($400).
(e) Any caretaker of an elder or a dependent adult who violates
any provision of law proscribing theft or embezzlement, with respect
to the property of that elder or dependent adult, is punishable by
imprisonment in a county jail not exceeding one year, or in the state
prison for two, three, or four years when the money, labor, or real
or personal property taken is of a value exceeding four hundred
dollars ($400), and by a fine not exceeding one thousand dollars
($1,000), by imprisonment in a county jail not exceeding one year, or
by both that fine and imprisonment, when the money, labor, or real
or personal property taken is of a value not exceeding four hundred
dollars ($400).
(f) Any person who commits the false imprisonment of an elder or
dependent adult by the use of violence, menace, fraud, or deceit is
punishable by imprisonment in the state prison for two, three, or
four years.
(g) As used in this section, "elder" means any person who is 65
years of age or older.
(h) As used in this section, "dependent adult" means 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, but not
limited to, persons who have physical or developmental disabilities
or whose physical or mental abilities have diminished because of age.
"Dependent adult" includes any person between the ages of 18 and 64
who is admitted as an inpatient to a 24-hour health facility, as
defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety
Code.
(i) As used in this section, "caretaker" means 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.
(j) Nothing in this section shall preclude prosecution under both
this section and Section 187 or 12022.7 or any other provision of
law. However, a person shall not receive an additional term of
imprisonment under both paragraphs (2) and (3) of subdivision (b) for
any single offense, nor shall a person receive an additional term of
imprisonment under both Section 12022.7 and paragraph (2) or (3) of
subdivision (b) for any single offense.
SEC. 2.2. Section 368 of the Penal Code is amended to read:
368. (a) The Legislature finds and declares that crimes against
elders and dependent adults are deserving of special consideration
and protection, not unlike the special protections provided for minor
children, because elders and dependent adults may be confused, on
various medications, mentally or physically impaired, or incompetent,
and therefore less able to protect themselves, to understand or
report criminal conduct, or to testify in court proceedings on their
own behalf.
(b) (1) Any person who, under circumstances or conditions likely
to produce great bodily harm or death, willfully causes or permits
any elder or dependent adult, with knowledge that he or she is an
elder or a dependent adult, to suffer, or inflicts thereon
unjustifiable physical pain or mental suffering, shall be punished by
imprisonment in a county jail not exceeding one year, or in the
state prison for two, three, or four years.
(2) If in the commission of an offense described in paragraph (1),
the victim suffers great bodily injury, as defined in subdivision
(e) of Section 12022.7, the defendant shall receive an additional
term in the state prison as follows:
(A) Three years if the victim is under 70 years of age.
(B) Five years if the victim is 70 years of age or older.
(3) If in the commission of an offense described in paragraph (1),
the defendant proximately causes the death of the victim, the
defendant shall receive an additional term in the state prison as
follows:
(A) Five years if the victim is under 70 years of age.
(B) Seven years if the victim is 70 years of age or older.
(c) Any person 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, with knowledge that he or
she is an elder or a dependent adult, to suffer, or inflicts thereon
unjustifiable physical pain or mental suffering, is guilty of a
misdemeanor.
(d) Any caretaker of an elder or dependent adult, who, under
circumstances or conditions likely to produce great bodily harm or
death, willfully causes or permits any elder or dependent adult, with
knowledge that he or she is an elder or a dependent adult, to be
neglected through a failure to prevent malnutrition, provide medical
care for physical and mental health needs, assist with personal
hygiene, or furnish food, clothing, or shelter or willfully causes or
permits the elder or dependent adult to be placed in a situation
where his or her person or health is endangered, shall be punished,
in addition to any other punishment, by imprisonment in a county jail
not exceeding one year, or in the state prison for two, three, or
four years.
(e) Any caretaker of an elder or dependent adult, 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, with knowledge that he or she is an elder or
dependent adult, to be neglected through a failure to prevent
malnutrition, provide medical care for physical and mental health
needs, assist with personal hygiene, or furnish food, clothing, or
shelter, or willfully causes or permits the elder or dependent to be
placed in a situation such that his or her person or health is
endangered, is guilty of a misdemeanor.
(f) In determining the punishment to be imposed upon a conviction
under subdivisions (d) and (e), the court shall consider all relevant
facts, including, but not limited to, the following:
(1) Whether the neglect exposed the elder or dependent adult to
the risk of death or serious physical harm.
(2) Whether the neglect had a direct or immediate relationship to
the health, safety, or security of the elder or dependent adult.
(3) The presence or absence of good faith efforts by the defendant
to prevent the neglect.
(g) Any caretaker of an elder or a dependent adult who violates
any provision of law proscribing theft or embezzlement, with respect
to the property of that elder or dependent adult, is punishable by
imprisonment in a county jail not exceeding one year, or in the state
prison for two, three, or four years when the money, labor, or real
or personal property taken is of a value exceeding four hundred
dollars ($400), and by a fine not exceeding one thousand dollars
($1,000), by imprisonment in a county jail not exceeding one year, or
by both that fine and imprisonment, when the money, labor, or real
or personal property taken is of a value not exceeding four hundred
dollars ($400).
(h) 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 dependent adult, and who knows or reasonably
should know that the victim is an elder or dependent adult, is
punishable by imprisonment in a county jail not exceeding one year,
or in the state prison for two, three, or four years, when the money,
labor, or real or personal property taken is of a value exceeding
four hundred dollars ($400); and by a fine not exceeding one thousand
dollars ($1,000), by imprisonment in a county jail not exceeding one
year, or by both that fine and imprisonment, when the money, labor,
or real or personal property taken is of a value not exceeding four
hundred dollars ($400).
(i) Any person who commits the false imprisonment of an elder or
dependent adult by the use of violence, menace, fraud, or deceit is
punishable by imprisonment in the state prison for two, three, or
four years.
(j) As used in this section, "neglect" means that a caretaker of
an elder or a dependent adult either acted, or failed to act, in a
manner which constitutes a reckless, gross, or culpable departure
from an ordinary standard of care.
(k) As used in subdivisions (d) and (e), "willfully" when applied
to the intent with which an act is done or omitted, implies simply a
purpose or willingness to commit the act, or failure to act, in a
manner which constitutes a reckless, gross, or culpable departure
from an ordinary standard of care. It does not require any specific
intent to violate any law or to injure another or to acquire any
advantage.
(l) As used in this section, "elder" means any person who is 65
years of age or older.
(m) As used in this section, "dependent adult" means 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, but not
limited to, persons who have physical or developmental disabilities
or whose physical or mental abilities have diminished because of age.
"Dependent adult" includes any person between the ages of 18 and 64
who is admitted as an inpatient to a 24-hour health facility, as
defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety
Code.
(n) As used in this section, "caretaker" means 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.
(o) Nothing in this section shall preclude prosecution under both
this section and Section 187 or 12022.7 or any other provision of
law. However, a person shall not receive an additional term of
imprisonment under both paragraphs (2) and (3) of subdivision (b) for
any single offense, nor shall a person receive an additional term of
imprisonment under both Section 12022.7 and paragraph (2) or (3) of
subdivision (b) for any single offense.
SEC. 3. The heading of Part 7 (commencing with Section 250) of
Division 2 of the Probate Code is amended to read:
PART 7. EFFECT OF HOMICIDE OR ABUSE OF AN ELDER OR DEPENDENT
ADULT
SEC. 4. Section 259 is added to the Probate Code, to read:
259. (a) Any person shall be deemed to have predeceased a
decedent to the extent provided in subdivision (c) where all of the
following apply:
(1) It has been proven by clear and convincing evidence that the
person is liable for physical abuse, neglect, or fiduciary abuse of
the decedent, who was an elder or dependent adult.
(2) The person is found to have acted in bad faith.
(3) The person has been found to have been reckless, oppressive,
fraudulent, or malicious in the commission of any of these acts upon
the decedent.
(4) The decedent, at the time those acts occurred and thereafter
until the time of his or her death, has been found to have been
substantially unable to manage his or her financial resources or to
resist fraud or undue influence.
(b) Any person shall be deemed to have predeceased a decedent to
the extent provided in subdivision (c) if that person has been
convicted of a violation of Section 236 of the Penal Code or any
offense described in Section 368 of the Penal Code.
(c) Any person found liable under subdivision (a) or convicted
under subdivision (b) shall not (1) receive any property, damages, or
costs that are awarded to the decedent's estate in an action
described in subdivision (a) or (b), whether that person's
entitlement is under a will, a trust, or the laws of intestacy; or
(2) serve as a fiduciary as defined in Section 39, if the instrument
nominating or appointing that person was executed during the period
when the decedent was substantially unable to manage his or her
financial resources or resist fraud or undue influence. This section
shall not apply to a decedent who, at any time following the act or
acts described in paragraph (1) of subdivision (a), or the act or
acts described in subdivision (b), was substantially able to manage
his or her financial resources and to resist fraud or undue influence
within the meaning of subdivision (b) of Section 1801 of the Probate
Code and subdivision (b) of Section 39 of the Civil Code.
(d) For purposes of this section, the following definitions shall
apply:
(1) Physical abuse as defined in Section 15610.63 of the Welfare
and Institutions Code.
(2) Neglect as defined in Section 15610.57 of the Welfare and
Institutions Code.
(3) False imprisonment as defined in Section 368 of the Penal
Code.
(4) Fiduciary abuse as defined in Section 15610.30 of the Welfare
and Institutions Code.
(e) Nothing in this section shall be construed to prohibit the
severance and transfer of an action or proceeding to a separate civil
action pursuant to Section 801.
SEC. 5. Section 2583 of the Probate Code is amended to read:
2583. In determining whether to authorize or require a proposed
action under this article, the court shall take into consideration
all the relevant circumstances, which may include, but are not
limited to, the following:
(a) Whether the conservatee has legal capacity for the proposed
transaction and, if not, the probability of the conservatee's
recovery of legal capacity.
(b) The past donative declarations, practices, and conduct of the
conservatee.
(c) The traits of the conservatee.
(d) The relationship and intimacy of the prospective donees with
the conservatee, their standards of living, and the extent to which
they would be natural objects of the conservatee's bounty by any
objective test based on such relationship, intimacy, and standards of
living.
(e) The wishes of the conservatee.
(f) Any known estate plan of the conservatee (including, but not
limited to, the conservatee's will, any trust of which the
conservatee is the settlor or beneficiary, any power of appointment
created by or exercisable by the conservatee, and any contract,
transfer, or joint ownership arrangement with provisions for payment
or transfer of benefits or interests at the conservatee's death to
another or others which the conservatee may have originated).
(g) The manner in which the estate would devolve upon the
conservatee's death, giving consideration to the age and the mental
and physical condition of the conservatee, the prospective devisees
or heirs of the conservatee, and the prospective donees.
(h) The value, liquidity, and productiveness of the estate.
(i) The minimization of current or prospective income, estate,
inheritance, or other taxes or expenses of administration.
(j) Changes of tax laws and other laws which would likely have
motivated the conservatee to alter the conservatee's estate plan.
(k) The likelihood from all the circumstances that the conservatee
as a reasonably prudent person would take the proposed action if the
conservatee had the capacity to do so.
(l) Whether any beneficiary is a person described in paragraph (1)
of subdivision (b) of Section 21350.
(m) Whether a beneficiary has committed physical abuse, neglect,
false imprisonment, or fiduciary abuse against the conservatee after
the conservatee was substantially unable to manage his or her
financial resources, or resist fraud or undue influence, and the
conservatee's disability persisted throughout the time of the hearing
on the proposed substituted judgment.
SEC. 6. (a) Section 2.1 of this bill incorporates amendments to
Section 368 of the Penal Code proposed by this bill, SB 2168 and AB
880. It shall only become operative if (1) all three bills are
enacted and become effective on or before January 1, 1999, (2) each
bill amends Section 368 of the Penal Code, and (3) AB 1955 is not
enacted or as enacted does not amend that section, and (4) this bill
is enacted after SB 2168 and AB 880, in which case Section 368 and of
the Penal Code, as amended by SB 2168 shall remain operative only
until the operative date of this bill, at which time Section 2.1 of
this bill shall become operative, and Sections 2 and 2.2 of this bill
shall not become operative.
(b) Section 2.2 of this bill incorporates amendments to Section
368 of the Penal Code proposed by this bill, SB 2168, AB 880, and AB
1955. It shall only become operative if (1) all four bills are
enacted and become effective on or before January 1, 1999, (2) all
four bills amend Section 368 of the Penal Code, (3) this bill is
enacted after all three of the other bills, in which case Section 368
of the Penal Code, as amended by SB 2168 shall remain operative only
until the operative date of this bill, at which time Section 2.2 of
this bill shall become operative, and Sections 2 and 2.1 of this bill
shall not become operative.
SEC. 7. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.