BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair A
1999-2000 Regular Session B
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AB 559 (Nakano)
As Amended May 24, 1999
Hearing date: July 13, 1999
Penal Code
SH:jm
CRIMINALLY NEGLIGENT ELDER/DEPENDENT ADULT ABUSE -
INCREASED MISDEMEANOR PENALTIES
HISTORY
Source: San Diego City Attorney
Prior Legislation: SB 248 - Chapter 968, Statutes of 1983
Support: City of San Diego; Commission on Aging; California
State Sheriffs' Association; Doris Tate Crime
Victims Bureau; California Organization of Police
and Sheriffs; Association of Los Angeles Deputy
Sheriffs; California District Attorneys
Association; The George G. Glenner Alzheimer's
Family Centers, Inc.
Opposition:None known
Assembly Floor Vote: Ayes 79 - Noes 0
(NOTE: SEE COMMENT #1 FOR PREVIOUS COMMITTEE ACTION ON THIS
BILL.)
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KEY ISSUES
SHOULD THE PENALTIES FOR CRIMINAL NEGLIGENCE INVOLVING THE
"ABUSE" OF ELDERS OR DEPENDENT ADULTS BE INCREASED, AS
FOLLOWS:
(CONTINUED)
TO INCREASE THE MISDEMEANOR FINE FOR VIOLATIONS IN CIRCUMSTANCES OR
CONDITIONS LIKELY TO PRODUCE GREAT BODILY HARM OR DEATH FROM UP TO $1,000 TO
UP TO $6,000?
TO INCREASE THE MISDEMEANOR PENALTY FOR VIOLATIONS IN CIRCUMSTANCES OR
CONDITIONS NOT LIKELY TO PRODUCE GREAT BODILY HARM OR DEATH BY INCREASING
THE PUNISHMENT IN A COUNTY JAIL FROM UP TO SIX MONTHS TO UP TO ONE YEAR?
PURPOSE
The purpose of this bill is to increase the misdemeanor
penalties for criminal negligence involving the "abuse" of
elders or dependent adults, as specified.
Under existing law , it is a crime, generally punishable by
imprisonment in the county jail not exceeding one year, or
in the state prison for two, three, or four years, for 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 unjustifiable physical pain
or mental suffering;
or who, 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
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to be placed in a situation such that his or her person or
health is endangered. (Penal Code section 368(b)(1).)
Enhancements apply if death or great bodily injury occurs.
(Penal Code section 368(b)(2).)
Existing law makes it a misdemeanor - punishable by up to
six months in a county jail, a fine of up to $1,000, or
both - to do any of those acts to an elder or dependent
adult if the circumstances or conditions are not likely to
produce death . (Penal Code section 368(c).)
Existing law defines "elder" as any person sixty-five years
of age or older. "Dependent adult" means a person eighteen
to sixty-four years of age who has mental or physical
limitations which restrict the ability to carry out normal
activities or protect his or her rights and specifically
includes those persons admitted to Health and Safety Code
inpatient facilities, including hospitals, nursing homes,
and other twenty-four hour facilities. "Caretaker" means
any person who has the care, custody, control, or who
stands in a position of trust with an elder or dependent
adult. (Penal Code section 368(g)(h) and (i).)
Existing Welfare and Institutions Code section 15656 is
generally, but not exactly, the same as Penal Code section
368.
Existing law provides that upon a conviction for any crime
punishable by imprisonment in any jail or prison, in
relation to which no fine is herein prescribed, the court
may impose a fine on the offender not exceeding one
thousand dollars ($1,000) in cases of misdemeanors, or ten
thousand dollars ($10,000) in cases of felonies, in
addition to the imprisonment prescribed. (Penal Code
section 672.)
This bill does the following:
Increases the misdemeanor fine for violations of 368(b)
- circumstances or conditions likely to produce great
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bodily harm or death - from up to $1,000 to up to $6,000.
Increases the misdemeanor penalty for violations of
368(c) - circumstances or conditions not likely to
produce great bodily harm or death - by increasing the
punishment in a county jail from up to six months to up
to one year.
COMMENTS
1. Previous Committee Action on This Bill
This bill is before the Committee today for vote only after
reconsideration was granted on June 22, 1999, by a vote of
2-2. No amendments have been made to the bill since it
failed at that earlier hearing.
2. Need for This Bill
Background provided by the author includes the following:
As our senior population continues to grow and our
awareness of elder abuse increases, it is crucial that
we take all the steps necessary to protect this
segment of our population. Increasing the punishment
for elder abuse will protect victims of elder abuse in
many ways. First, if a perpetrator of elder abuse
receives one year in jail, that time period could be
used to make the victim safer. Secondly, increased
punishment increases the "hammer" which the
prosecution can use to ensure that the perpetrator
complies with the terms of probation. Increasing the
maximum sentence for elder abuse would also promote a
plea to that charge.
3. Increasing Misdemeanor Penalties
Misdemeanor jail time is a county responsibility. Many
county jails are overcrowded and some in California are
subject to court population caps. Whether or not the
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increased potential jail time and the increased fine
proposed in this bill will result in fewer abuse situations
is not easily provable. The basic misdemeanor penalty in
the Penal Code - see section 19 - is up to six months in a
county jail, a fine of up to $1,000, or both that fine and
imprisonment. If increasing penalties is an effective tool
to prevent and punish crime, then few six-month
misdemeanors may be expected to remain in the Penal Code.
4. History of Criminal Statutes Designed to Protect Elders
and Dependent Adults
During the early 1980's, new laws were enacted in
California to address the issue of abuse of the elderly and
dependent adults. One approach was to mandate that
specified persons shall report suspected abuse of any elder
or dependent adult. (Welfare and Institutions Code section
1563.)
Another approach was to enact a new provision in the Penal
Code to create specific crime for abuse of dependent adults
(elders were added in subsequent legislation). The
statutory language first added in 1983 was identical to the
language previously in law pertaining to child abuse.
One court noted that:
In fact, the Legislature enacted Section 368 to
alleviate problems of prosecutors who receive reports
of abuse or neglect and have difficulty finding a code
section under which they can prosecute. Medical
practitioners, who are often in charge of the care and
custody of a dependent adult, would seem to be one of
the prime target groups at which the statute is aimed.
(People v. Superior Court of Fresno County (1988) 205
Cal.App.3d 51)
The criminal penalties in section 368 - except for the theft
and embezzlement provisions - are for acts of "criminal
negligence" that do not require proof of intent to harm or
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specifically violate the law. As stated by one court (note
that section 368(a) referred to in this case is now section
368(b)(1)):
In this case, we must decide whether [Section 368] . .
. meets constitutional standards of certainty. As we
shall explain, we conclude initially that, on its
face, the broad statutory language at issue here fails
to provide fair notice to those who may be subjected
to criminal liability for "willfully . . .
permit[ting]" an elder or dependent adult to suffer
pain, and similarly fails to set forth a uniform
standard under which police and prosecutors can
consistently enforce the proscription against
"willfully . . . permit[ting]" such suffering.
Under these circumstances, section 368(a) would be
unconstitutionally vague
absent some judicial construction clarifying its
uncertainties.
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We conclude that the statute may properly be upheld by
interpreting its imposition of criminal liability upon
"[a]ny person who . . . permits . . . any elder or
dependent adult . . . to suffer . . . unjustifiable
pain or mental suffering" to apply only to a person
who, under existing tort principles, has a duty to
control the conduct of the individual who is directly
causing or inflicting abuse on the elder or dependent
adult. (People v. Heitzman, Cal. Supreme Crt., 1994, 9
Cal. 4th 189)
In People v. Hovey, (1988) 252 Cal. Rptr. 355, review
denied,
Although section 273a [child abuse] does not require a
specific intent, it does require proof of criminal
negligence. Criminal negligence "means that the
defendant's conduct must amount to a reckless, gross
or culpable departure from the ordinary standard of
due care; it must be such a departure from what would
be the conduct of an ordinarily prudent person under
the same circumstances as to be incompatible with a
proper regard for human life." (People v. Peabody
(1975) 46 Cal.App.3d 43, 48-49 [119 Cal.Rptr. 780])
The same proof is required for a conviction under
section 368.
5. Technical Conflict with SB 370
This bill and SB 370 (Solis), which is currently in the
Assembly Public Safety Committee, both propose amendments
to Penal Code section 368. At some point double-jointing
amendments to both bills should be added to avoid
conflict/chaptering problems.
SB 370 also proposes to delete the doppelganger provisions
of existing Welfare and Institutions Code section 15656.
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