Amended in Senate April 21, 2014

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 amended, Wyland. Theft: elder and dependent adults.

Existing law makes it a crime, punishable either as a misdemeanor or a felony, begin insert for a caretaker of an elder or dependent adult, or for a person who is not a caretaker who knows or reasonably should know that the victim is an elder or dependent adult, end insert to violate any provision of law proscribing theft, embezzlement, forgery, fraud, or identity theft when begin delete the victim is an elder or dependent adult and end delete 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 begin delete $100,000, end delete begin insert $2 end insert begin insert 50,000, end insert 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) A 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 an elder or dependent adult to suffer, or inflicts
thereon unjustifiable physical pain or mental suffering, or having
the care or custody of an 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, 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, 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) A 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 an 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) A 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 twenty-five thousand dollars
($25,000), 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 one hundred thousand dollars ($100,000), end delete begin insert two hundred
fifty thousand dollars ($250,000), 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) A 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 twenty-five thousand dollars
($25,000), 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 one hundred thousand dollars ($100,000), end delete begin insert two hundred
fifty thousand dollars ($250,000), 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) A 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 a person who is 65
years of age or older.

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