BILL ANALYSIS
SB 18
Page 1
Date of Hearing: June 16, 2009
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Juan Arambula, Chair
SB 18 (Oropreza) - As Amended: May 5, 2009
SUMMARY : Increases the maximum fines for specified elder abuse
offenses upon a second or subsequent conviction. Specifically,
this bill :
1)Increases the maximum fine for a person who, in a manner
likely to produce great bodily injury (GBI) or death,
willfully causes or permits any elder or dependent adult to
suffer, or inflicts unjustifiable physical pain or mental
suffering, 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, from $6,000 to $10,000 for a second or subsequent
conviction.
2)Increases the maximum fine for a person who willfully causes
or permits any elder or dependent adult to suffer, or inflicts
unjustifiable physical pain or mental suffering, 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, from $2,000
to $5,000 for a second or subsequent misdemeanor conviction.
EXISTING LAW :
1)States any person who knows, or reasonably should know, that a
person is an 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
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
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dependent adult to be placed in a situation in which his or
her person or health is endangered, is punishable by
imprisonment in a county jail not exceeding one year; by a
fine not to exceed $6,000; by both that fine and imprisonment;
or by imprisonment in the state prison for two, three, or four
years. [Penal Code Section 368(b)(1).]
2)Provides, if in the commission of an offense described in
existing law, the victim suffers GBI, 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.
c) If in the commission of an offense described, the
defendant proximately causes the death of the victim, the
defendant shall receive an additional term in the state
prison as follows: five years if the victim is under 70
years of age or seven years if the victim is 70 years of
age or older. [Penal Code Section 368(a)(1) to (3).]
3)States any person who knows, or reasonably should know, that a
person is an elder or dependent 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 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. A second or subsequent violation of this
subdivision is punishable by a fine not to exceed $2,000; by
imprisonment in a county jail not to exceed one year; or by
both that fine and imprisonment. [Penal Code Section 368(c).]
4)Provides that any person who is not a caretaker and who
violates any provision of law proscribing theft, embezzlement,
forgery, or fraud, or who violates existing law proscribing
identity theft, with respect to the property or personal
identifying information of an elder or a dependent adult, and
who knows, or reasonably should know, that the victim is an
elder or a dependent adult, is punishable by imprisonment in a
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county jail not exceeding one year or in the state prison for
two, three, or four years when the moneys, labor, goods,
services, or real or personal property taken or obtained is of
a value exceeding $400; and by a fine not exceeding $1,000; by
imprisonment in a county jail not exceeding one year; or by
both that fine and imprisonment when the moneys, labor, goods,
services, or real or personal property taken or obtained is of
a value not exceeding $400. [Penal Code Section 368(d).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Elder abuse is
pervasive. It takes place in both institutional and
home-based care settings, with the vast majority (70 to 90%)
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
nine 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."
2)Background : According to the background submitted by the
author, "[a]necdotal 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 five million
cases a year, with 84% going unreported.
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"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
Dependent 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 '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 Dependent
Adult Abuse: Senate Third Reading Analysis of SB 2199,
1997-98 Legislative Session, available at
http://info.sen.ca.gov/pub/97-98/bill/sen/sb_2151-2200/sb_2199_
cfa_19980830_142652_sen_floor.html (Aug. 28, 1998).]"
3)Elder Abuse : Existing law states "any person who knows or
reasonably should know a person is an elder or dependant adult
and creates circumstances in which the victim is likely to
suffer GBI or death, or otherwise causes a person
unjustifiable pain or suffering is guilty of a felony and may
be sentenced to a term of up to one year in the county jail or
a term of imprisonment of two, three or four years." [Penal
Code Section 368(b).] If, in the commission of that offense,
an elderly or dependent person suffers great bodily harm, as
specified, the defendant may be sentenced to an enhanced
sentence of three to five years depending on the age of the
victim. [Penal Code Section 368(b)(2)(A).] If the defendant
proximately causes the death of the victim, he or she may be
sentenced to an additional five to seven years depending on
the age of the victim. [Penal Code Section 368(b)(3)(A).] If
the actions of the defendant do not create circumstances
likely to cause great bodily harm
but willfully causes an elderly or dependent person to suffer
unjustifiable pain and suffering, he or she is guilty of a
misdemeanor punishable by up to six months in the county jail.
[Penal Code Section 368(c); see also Penal Code Section 19.]
If a defendant is not a caretaker of an elderly or disabled
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person but knows or reasonably should know the victim is an
elderly or dependent and who violates provisions of law
related to theft, fraud or embezzlement, he or she shall be
sentenced to a term of two, three or four years or up to one
year in the county jail if the value of the theft more than
$400. If the value of theft is $400 or less, he or she shall
be sentenced up to one year in the county jail [Penal Code
Section 368(d).]
This bill increases the fines on second or subsequent
violations of Penal Code Sections 368(b) and 368(c). The
current maximum fine for placing an elderly or dependent adult
into a harmful position in a manner likely to produce GBI or
death is $6,000 for a first or subsequent offense. This bill
increases that maximum fine to $10,000 for all second or
subsequent convictions. The current maximum fine for placing
an elderly or dependent adult into a harmful position in a
manner not likely to produce GBI or death is $2,000 for a
first or subsequent offense. This bill increases the maximum
fine to $5,000 for all second or subsequent convictions.
4)Great Bodily Injury : This bill increases the fines on two
separate subsections relating to abuse of an elderly or
dependent adult. The difference between these sections is
that the greater penalty is for abuse that could result in GBI
or death. Abuse of this level would result in a fine of up to
$10,000 for a second or subsequent offense.
California Penal Code Section 12022.7(f) defines "great bodily
injury" as a significant or substantial physical injury. The
question of whether a physical injury constitutes GBI is most
often a question of fact to be determined by a jury. If there
is sufficient evidence to sustain the jury's finding of GBI,
an appellate court is bound to accept it, even though the
circumstances might reasonably be reconciled with a contrary
finding. [People v. Salas (1978, Cal App 2nd Dist) 77 Cap App
3d 600.] However, some case law has further defined what
falls under the definition of "great bodily injury":
a) A jaw fracture is not merely a transitory bodily
distress, but a severe and protracted injury causing
significant pain and requiring considerable time to heal
and, as such, qualifies as a significant and substantial
physical injury sufficient to trigger enhanced sentencing
pursuant to Penal Code Section 12022.7. [People v. Johnson
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(1980, Cal App 1st) 104 Cal App 3d 598.]
b) However, a bone fracture does not qualify automatically
as GBI. Hence, in a prosecution for assault by means of
force likely to produce GBI with an allegation defendant
did inflict such injury, the trial court committed
reversible error by instructing the jury that a bone
fracture was a significant and substantial injury within
the meaning of Penal Code Section 12022.7. Although a
doctor had to set the victim's broken nose, no surgery was
involved, no life-threatening impairment of breathing
occurred, and there was no evidence of a curtailment of the
victim's daily activities. Thus, a reasonable jury might
have found the injury not a great one. [People v. Nava
(1989, Cal App 4th Dist) 207 Cal App 3d 1490.]
c) Evidence that the victim suffered multiple abrasions and
lacerations, that she had one long scratch diagonally
across her back and numerous bruises and small lacerations
on her neck, and that she had a serious swelling and
bruising of an eye and a markedly swollen left cheek was
sufficient to support the jury's finding that defendant
inflicted GBI upon the victim pursuant to Penal Code
Section 12022.7. [People v. Sanchez (1982, Cal App 5th
Dist) 131 Cal App 3d 718.]
5)Penalty Assessments : The Legislature has increasingly turned
to penalty assessments upon individuals convicted of criminal
offenses as a method of raising revenue for various projects.
Currently, the amount of assessments on criminal fines are
exponentially high.
For example, this bill increases fines for specified elderly and
dependent adult abuse cases. Penalty assessments must be
considered when deciding to increase fines. Assuming this
bill becomes law, the following penalty assessments would be
imposed pursuant to the Penal Code and the California
Government Code:
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$10,000 maximum fine for a subsequent conviction of Penal Code
Section 368(b)(1) :
Base Fine: $10,000
Penal Code 1464 Assessment: $10,000($10 for every
$10 in fines)
Penal Code 1465.7 Assessment: $ 2,000 (20%
surcharge)
Penal Code 1465.8 Assessment: $ 20($20
fee per fine)
Government Code 70372 Assessment: $ 5,000($5 for
every $10 in fines)
Government Code 70373 Assessment: $ 30($30
fee per each conviction)
Government Code 76000 Assessment: $ 7,000 ($7 for
every $10 in fines)
Government Code 7600.5 Assessment: $ 2,000 ($2
for every $10 in fines)
Government Code 76104.6 Assessment: $ 1,000($1 for
every $10 in fines)
Government Code 76104.7 Assessment: $ 1,000($1 for
every $10 in fines)
Total Fine with Assessments: $38,050
$5,000 maximum fine for a subsequent conviction of Penal Code
Section 368(c) :
Base Fine: $ 5,000
Penal Code 1464 Assessment: $ 5,000($10 for every
$10 in fines)
Penal Code 1465.7 Assessment: $ 1,000 (20%
surcharge)
Penal Code 1465.8 Assessment: $ 20($20
fee per fine)
Government Code 70372 Assessment: $ 2,500($5 for
every $10 in fines)
Government Code 70373 Assessment: $ 30($30
fee per each conviction)
Government Code 76000 Assessment: $ 3,500 ($7 for
every $10 in fines)
Government Code 7600.5 Assessment: $ 1,000 ($2
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for every $10 in fines)
Government Code 76104.6 Assessment: $ 500($1 for
every $10 in fines)
Government Code 76104.7 Assessment: $ 500($1 for
every $10 in fines)
Total Fine with Assessments: $19,050
6)Argument in Support : According to the Congress of California
Seniors (CCS) , "[o]n behalf of the CCS, I am writing you in
support of SB 18. CCS supports your efforts to increase fines
on those who abuse dependent adults and senior citizens.
"In 2000, California APS estimated the state averaged 827 elder
abuse cases a month. This is an ongoing problem in
California. In 1998, a GAO report noted that there were
'significant care problems' in nearly one-third of all
California nursing homes.
"The California Department of Social Services and the GAO
estimated that '225,000 incidents of adult abuse occur
annually in the state, but only 44,000, or less than
one-fifth, are reported.' The flood of baby boomers headed to
retirement homes across the nation is going to exacerbate this
problem. By 2020, California will have more than nine million
aged residents.
"Clearly swift and responsible action is necessary. SB 18
would increase fines from $6,000 to $10,000 for those people
placing an elder or dependent adult in situations where great
bodily harm or death is likely. Additionally, SB 18 would
increase the fines from $2,000 to $5,000 for people who place
an elder or dependent adult in situations other than those
likely to cause death or serious bodily injury."
7)Argument in Opposition : According to Taxpayers for Improving
Public Safety (TiPS) , "[t]his bill provides for increased
financial sanctions for the specified crime of elder abuse.
This legislation attempts to sidestep the limitation of
increased periods of incarceration established by ROCA in the
Senate Committee on Public safety by increasing the fines upon
conviction under the statute.
"This legislation, as with other Penal Code amendments,
increases sanctions without any empirical date to confirm that
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there will be concomitant reduction in the type of crime which
the statute seeks to prevent. Past Legislatures have provided
significant penal sanctions for abuse of seniors.
Notwithstanding those penal sanctions, abuse of senior
continues to increase. The only reasonable conclusion to
reach is that enhanced sanctions fail to reduce senior abuse.
"There is no justification for senior abuse. However, that is
not what is at issue here. This legislation demonstrates the
need for a sentencing commission to examine all penal
statutes, determine what works and what does not, and amend
all Penal statutes accordingly. Adoption of this legislation
exacerbates an already impossible situation without any date
to support the assertion that the type of crime will be
reduced."
8)Related Legislation: AB 768 (Torres) deletes the requirement
that a person either know or reasonably should know that the
victim of a crime defined as elder or dependent adult abuse
was an elder or dependent adult. AB 768 is being held on the
Assembly Appropriations Committee's Suspense File.
9)Prior Legislation :
a) AB 1424 (Davis), Statutes of 2008, Chapter 152, includes
the crime of elder and dependant adult abuse to provisions
of law punishing contempt of court for the willful and
knowing violation of protective or stay-away order, as
specified.
b) AB 1188 (Wolk), Statutes of 2005, Chapter 163, increases
the penalty from an infraction to a misdemeanor for a
supervisor or administrator to impede or inhibit a mandated
reporter from reporting an instance of known or reasonably
suspected child abuse.
c) AB 1256 (Bermudez), of the 2005-06 Legislative Session,
would have added specified elder abuse offenses to the list
of serious felony offenses subjecting those convicted of
these offenses to the Three Strikes Law. AB 1256 was never
heard in Assembly Public Safety in this form because AB
1256 was gutted and amended in the Senate. AB 1256 failed
passage in the Senate Public Safety Committee.
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REGISTERED SUPPORT / OPPOSITION :
Support
Alzheimer's Association
California District Attorneys Association
California State Sheriff's Association
Congress of California Seniors
Peace Officers Research Association of California
Professional Fiduciary Association of California
Opposition
Taxpayers for Improving Public Safety
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744