Senate Bill No. 1233

Introduced by Senator Wyland

February 20, 2014

An act to amend Section 368 of the Penal Code, relating to crimes.

LEGISLATIVE COUNSEL’S DIGEST

SB 1233, as introduced, Wyland. Theft: elder and dependent adults.

Existing law makes it a crime, punishable either as a misdemeanor or a felony, to violate any provision of law proscribing theft, embezzlement, forgery, fraud, or identity theft when the victim is an elder or dependent adult and the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding $950. If punished as a misdemeanor, existing law authorizes imprisonment or a fine not to exceed $2,500, or both the fine and imprisonment. If punished as a felony, existing law authorizes imprisonment or a fine not to exceed $10,000, or both the fine and imprisonment.

This bill would make the maximum amount of the fine for this crime $25,000, if punished as a misdemeanor, and $100,000, if punished as a felony.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 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)  begin delete Any end delete begin insert A end insert 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 begin delete any end delete begin insert an end insert elder or dependent
adult to suffer, or inflicts thereon unjustifiable physical pain or
mental suffering, or having the care or custody of begin delete any end delete begin insert an end insert 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 a county jail not exceeding one year, or by a
fine not to exceed six thousand dollars ($6,000), or by both that
fine and imprisonment, or by imprisonment in the state prison for
two, three, or four years.

(2) If begin insert , end insert in the commission of an offense described in paragraph
(1), the victim suffers great bodily injury, as defined in 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 begin insert , end insert 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)  begin delete Any end delete begin insert A end insert 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 begin delete any end delete begin insert an end insert 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
two thousand dollars ($2,000), or by imprisonment in a county jail
not to exceed one year, or by both that fine and imprisonment.

(d)  begin delete Any end delete begin insert A end insert person who is not a caretaker who violates any
provision of law proscribing theft, embezzlement, forgery, or fraud,
or who violates Section 530.5 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
as follows:

(1) By a fine not exceeding begin delete two thousand five hundred dollars
($2,500) end delete begin insert twenty-five thousand dollars ($25,000) end insert , or by
imprisonment in a county jail not exceeding one year, or by both
that fine and imprisonment, or by a fine not exceeding begin delete ten thousand
dollars ($10,000) end delete begin insert one hundred thousand dollars ($100,000) end insert , or by
imprisonment pursuant to subdivision (h) of Section 1170 for two,
three, or four years, 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 exceeding nine hundred fifty dollars
($950).

(2) 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 moneys, labor, goods,
services, or real or personal property taken or obtained is of a value
not exceeding nine hundred fifty dollars ($950).

(e)  begin delete Any end delete begin insert A end insert caretaker of an elder or a dependent adult who violates
any provision of law proscribing theft, embezzlement, forgery, or
fraud, or who violates Section 530.5 proscribing identity theft,
with respect to the property or personal identifying information of
that elder or dependent adult, is punishable as follows:

(1) By a fine not exceeding begin delete two thousand five hundred dollars
($2,500) end delete begin insert twenty-five thousand dollars ($25,000) end insert , or by
imprisonment in a county jail not exceeding one year, or by both
that fine and imprisonment, or by a fine not exceeding begin delete ten thousand
dollars ($10,000) end delete begin insert one hundred thousand dollars ($100,000) end insert , or by
imprisonment pursuant to subdivision (h) of Section 1170 for two,
three, or four years, 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 exceeding nine hundred fifty dollars
($950).

(2) 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 moneys, labor, goods,
services, or real or personal property taken or obtained is of a value
not exceeding nine hundred fifty dollars ($950).

(f)  begin delete Any end delete begin insert A end insert person who commits the false imprisonment of an
elder or a dependent adult by the use of violence, menace, fraud,
or deceit is punishable by imprisonment pursuant to subdivision
(h) of Section 1170 for two, three, or four years.

(g) As used in this section, “elder” means begin delete any end delete begin insert a end insert person who is
65 years of age or older.

(h) As used in this section, “dependent adult” means begin delete any end delete begin insert a end insert
person who is between begin delete the ages of end delete 18 and 64 begin insert years of age,
inclusive end insert , who has physical or mental limitations begin delete which end delete begin insert that end insert 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 begin delete any end delete
begin insert a end insert person between begin delete the ages of end delete 18 and 64 begin insert years of age, inclusive, end insert
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 begin delete any end delete begin insert a end insert 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 begin delete provision of end delete
law. However, a person shall not receive an additional term of
imprisonment under both paragraphs (2) and (3) of subdivision
(b) for begin delete any end delete begin insert a end insert 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 begin delete any end delete begin insert a end insert single offense.

(k) In any case in which a person is convicted of violating these
provisions, the court may require him or her to receive appropriate
counseling as a condition of probation. begin delete Any end delete begin insert A end insert defendant ordered
to be placed in a counseling program shall be responsible for
paying the expense of his or her participation in the counseling
program as determined by the court. The court shall take into
consideration the ability of the defendant to pay, and no defendant
shall be denied probation because of his or her inability to pay.