BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
1
8
SB 18 (Oropeza)
As Amended April 13, 2009
Hearing date: April 28, 2009
Penal Code
MK:mc
ELDER OR DEPENDENT ADULT ABUSE
HISTORY
Source: Author
Prior Legislation: AB 1424 (Davis) - Ch. 152, Stats. 2008
SB 1018 (Simitian) - Ch.140, Stats. 2005
AB 484 (Benoit) - 2005, held Assembly
Appropriations
AB 916 (Canciamilla) - 2005, held Senate
Appropriations
AB 2611 (Simitian) - Ch. 886, Stats. 2004
AB 2474 (Wolk) - 2004, not heard in the Senate
Judiciary Committee
AB 1131 (Jackson) - Ch. 543, Stats. 2003
AB 255 (Zettel) - Ch. 54, Stats. 2002
AB 2140 (Simitian) - Ch. 369, Stats. 2002
AB 2735 (Chan) - Ch. 552, Stats. 2002
AB 109 (Alquist) - 2001, held Senate Appropriations
AB 559 (Nakano) - Ch. 214, Stats. 2000
AB 2253 (Jackson) - 2000, died Assembly Inactive
File
SB 2199 (Lockyer) - Ch. 946, Stats. 1998
AB 880 (Hertzberg) - Ch. 934, Stats. 1998
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AB 3988 (Papan) - Ch. 769, Stats. 1986
SB 248 (Carpenter) - Ch. 968, Stats.
1983
Support: Peace Officers Research Association of California
(PORAC); California State Sheriffs' Association
Opposition:None known
KEY ISSUES
SHOULD THE FINE FOR CRIMINAL NEGLIGENCE INVOLVING THE "ABUSE" OF
ELDERS OR DEPENDENT ADULTS BE INCREASED, AS FOLLOWS:
INCREASE THE MISDEMEANOR FINE FOR VIOLATIONS IN CIRCUMSTANCES OR
CONDITIONS LIKELY TO PRODUCE GREAT BODILY HARM OR DEATH FROM UP TO
$6,000 TO UP TO $10,000?
INCREASE THE MISDEMEANOR PENALTY FOR VIOLATIONS IN CIRCUMSTANCES
OR CONDITIONS NOT LIKELY TO PRODUCE GREAT BODILY HARM OR DEATH BY
INCREASING THE FINE FOR A REPEAT OFFENSE FROM NOT TO EXCEED $2,000
TO NOT TO EXCEED $5,000?
PURPOSE
The purpose of this bill is to increase the fines for specified
crimes against elder or dependent adults.
Existing law provides that any person who knows or reasonably
should know that a person is an elder or dependant adult and
who, under circumstances or conditions likely to produce great
bodily harm or death, willfully causes or permits any elder or
dependent adult and who, under circumstances or conditions
likely to produce great bodily harm or death, willfully causes
or permits any elder or dependant adult to suffer, or inflicts
thereon unjustifiable physical pain or mental suffering, or
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having the care or custody of any elder or dependant adult,
willfully causes or permits the person or health of the elder or
dependant 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 a wobbler
punishable by imprisonment in the county jail not exceeding one
year or by a fine of up to $6,000 ($22,800 with penalty
assessments), or both the fine and imprisonment, or by
imprisonment in the state prison for two, three or four years.
Additional enhancements apply if the person actually suffers
great bodily injury. (Penal Code 368 (b).)
This bill increases the fine for wobbler penalty of elder abuse
under Penal Code Section 368 (b) to $10,000 ($38,000 with
penalty assessments).
Existing law provides that any person who knows or reasonably
should know that a person is an elder or dependant adult and
who, under circumstances or conditions other than those likely
to produce great bodily harm or death, willfully causes or
permits any elder or dependant adult to suffer, or inflicts
thereon unjustifiable physical pain or mental suffering, or
having the care or custody of any elder or dependant adult,
willfully causes or permits the person or health of the elder or
dependant adult to be injured, or willfully causes or permits
the elder or dependant adult to be placed in a situation in
which his or her person or health may be endangered, is guilty
of a misdemeanor punishable by up to 6 months in jail and a fine
up to $1,000 ($3,800 with penalty assessments). A second or
subsequent violation of this subdivision is punishable by a fine
not to exceed $2,000, or by imprisonment in a county jail not to
exceed one year, or by both that fine and imprisonment. (Penal
Code 368 (c).)
This bill increases the fine for a second and subsequent
violation of Penal Code Section 368(c) to a fine not to exceed
$5,000 and/or up to one year in county jail.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
----------------------
<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
---------------------------
<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
Anecdotal evidence as well as hard numbers from various
law enforcement agencies make it clear that elder abuse
is still very much a hidden, pervasive, and deadly
crime. It is vital that enforcement efforts are ramped
up, penalties are increased, and attention is brought to
what is, even today, a widespread crime with little
public attention paid to it.
No one can tell for sure just how many of our elderly
are being abused, but several research institutes have
issued reports stating that nationally there could be up
to 5 million cases a year, with 84 percent going
unreported.
In California alone, California Adult Protective
Services (APS), back in 2000, estimated a monthly
average of 872 confirmed elder abuse cases (see New
Directions for Elder and Dependant Adult Abuse and Adult
Protective Services in California: A Six Month Review,
4, available at
http://www.dss.cahwnet.gov/research/res/pdf/APSPub.pdf
(Last visited Oct. 29, 2002).
This is an ongoing problem in California. In 1998, a
General Accounting Office (GAO) Report noted that there
were "significant care problems" in nearly one-third of
all California nursing homes, and the California
Department of Social Services and the GAO estimated that
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"225,000 incidents of adult abuse occur annually in the
state, but only 44,000 or less than one-fifth are
reported." (See Elder and Dependant Adult Abuse:
Analysis of SB 2199 Before the Sen. Rules Comm., 1997-98
Sess., available at
http://infor.sen.ca.gov/pub/97-98/bill/sen/sb_2151-2200/s
b_2199cfa_19980830_142652_sem_floor.html(Aug . 28, 1998).
There is no comprehensive federal elder abuse law, and
into this void, the states must step.
The Washington Post, in an article dated January 8, 2008,
(http:www.washingtonpost.com/wp-
dyn/content/article/2008/01/25/AR2008012502774_pf.html),
state that, "All other factors being equal, victims of
even relative minor mistreatment are three times more
likely to die prematurely than those who are not
victimized ?the public has not yet embraced elder abuse as
a public policy issue."
Abuse is pervasive. It takes place in both
institutional and home-based care settings, with the
vast majority (70-90 percent) of abusers being a
relative.
The flood of baby boomers headed to retirement homes
across the nation is going to exacerbate this problem
unless strong measures are taken now. By 2020,
California will have over 9 million aged residents.
Many caretakers and senior organizations feel the
existing penalties, even with criminal penalty
enhancements, are simply not strong enough to serve as a
deterrent.
Therefore, SB 18 would enhance penalties against
abusers, and at the same time bring more public
attention desperately needed to this ever-increasing
population with its attendant, ever-increasing abuse.
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2. Partial History of Criminal Statutes Designed to Protect
Elders and Dependent Adults
During the early 1980s, 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 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) so that crimes against
elder and dependent adults could be tracked and repeat violators
identified clearly. 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 (holvey)
The criminal penalties in section 368 (b) and (c) are for acts
of "criminal negligence" that do not require proof of intent to
harm or 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 the statute 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
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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.
[*194] 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.
Because the evidence in this case does not indicate that
the defendant had the kind of "special relationship"
with the individuals alleged to have directly abused the
elder victim that would give rise to a duty on her part
to control their conduct, she was improperly charged
with a violation of section 368(a). People v. Heitzman
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.
Penal Code Section 368 has been amended twelve times since it
was first enacted in 1983 including increasing the fine for
criminal negligence with the likelihood that it may cause great
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bodily injury or death to $6,000 in 2000 (AB 559 (Nakano)
Chapter 214).
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3. Increased Fine for Criminal Negligence Involving Abuse of
Elders or Dependent Adults
a. Situation likely to cause great bodily injury.
This bill increases the fine for criminal negligence
involving the abuse of an elder or dependant adult where the
elder or dependant adult is put in a situation likely to
produce great bodily injury or death from up to $6,000 to up
to $10,000 for the misdemeanor.
As noted above, the $6,000 fine was put into this section in
2000. At that time, the penalty assessments added on to
fines was 170% so the fine at the time would have actually
been $16,200 at the time the fine was increased. Since the
2002-2003 Budget year, the penalty assessments have increased
to approximately 280%, so currently the fine is actually
$22,800, or $6,600 more than it was in 2000.<3> If the
maximum $10,000 fine in this bill were to be imposed the
actual amount a person would be subject to pay would be
$38,000. A person who commits this offense may also be
subject to 2, 3 or 4 years in prison or more if the victim
actually suffers bodily injury so it is likely the
misdemeanor and the fine would be imposed in less severe
cases.
SHOULD THE FINE FOR CRIMINAL NEGLIGENCE INVOLVING THE ABUSE
OF AN ELDER OR DEPENDENT ADULT BE INCREASED FROM $6,000 TO
$10,000?
IF A POTENTIAL FELONY IS NOT A DETERRENT IN THESE CASES,
WOULD AN INCREASED FINE BE A DETERRENT WHEN THE CURRENT FINE
A PERSON MAY BE ORDERED TO PAY IS $22,800?
b. Situation not likely to cause great bodily injury.
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<3> See Penal Code 1464; Penal Code 1465.7; Penal Code
1465.8; Government Code 70372; Government Code 7600.5;
Government Code 76000 et seq; Government Code 76104.6.
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A person who commits a second or subsequent violation of
criminal negligence against an elder or dependent adult in a
situation not likely to cause great bodily injury is subject
to a misdemeanor including a fine not to exceed $2,000
($7,600 with penalty assessments). This bill increases the
fine for a repeat criminal negligence against an elder or
dependant adult, not likely to cause great bodily injury to
$5,000 ($19,000).
SHOULD THE FINE FOR A REPEAT OFFENSE OF CRIMINAL NEGLIGENCE
INVOLVING THE ABUSE OF AN ELDER OR DEPENDENT ADULT BE
INCREASED FROM $2,000 TO $5,000?
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