Bill Text: CA SB352 | 2015-2016 | Regular Session | Chaptered
Bill Title: Elder abuse.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2015-09-08 - Chaptered by Secretary of State. Chapter 279, Statutes of 2015. [SB352 Detail]
Download: California-2015-SB352-Chaptered.html
BILL NUMBER: SB 352 CHAPTERED
BILL TEXT
CHAPTER 279
FILED WITH SECRETARY OF STATE SEPTEMBER 8, 2015
APPROVED BY GOVERNOR SEPTEMBER 8, 2015
PASSED THE SENATE AUGUST 20, 2015
PASSED THE ASSEMBLY JULY 16, 2015
AMENDED IN ASSEMBLY JUNE 17, 2015
INTRODUCED BY Senator Block
FEBRUARY 24, 2015
An act to amend Sections 166 and 368 of the Penal Code, relating
to elder abuse.
LEGISLATIVE COUNSEL'S DIGEST
SB 352, Block. Elder abuse.
Existing law makes it a crime for a person who knows or reasonably
should know that a person is an elder or dependent adult to
willfully cause or permit the person or health of the elder or
dependent adult to be injured, or willfully cause or permit the elder
or dependent adult to be placed in a situation in which his or her
person or health is endangered. Existing law specifies penalties for
a person who violates any provision of law proscribing theft,
embezzlement, forgery, fraud, or specified identity theft provisions
of law when the victim is an elder or dependent adult. Existing law
makes it a crime to falsely imprison an elder or dependent adult by
the use of violence, menace, fraud, or deceit.
This bill would require a sentencing court, upon a person's
conviction for violating these provisions, to consider issuing an
order restraining the defendant from any contact with the victim,
whether the defendant is sentenced to state prison or county jail, or
if imposition of sentence is suspended and the defendant is placed
on probation, which may be valid for up to 10 years, as determined by
the court. By expanding the scope of the crime of violating a
protective order, this bill would impose a state-mandated local
program.
This bill would also make a conforming change.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 166 of the Penal Code is amended to read:
166. (a) Except as provided in subdivisions (b), (c), and (d), a
person guilty of any of the following contempts of court is guilty of
a misdemeanor:
(1) Disorderly, contemptuous, or insolent behavior committed
during the sitting of a court of justice, in the immediate view and
presence of the court, and directly tending to interrupt its
proceedings or to impair the respect due to its authority.
(2) Behavior specified in paragraph (1) that is committed in the
presence of a referee, while actually engaged in a trial or hearing,
pursuant to the order of a court, or in the presence of any jury
while actually sitting for the trial of a cause, or upon an inquest
or other proceeding authorized by law.
(3) A breach of the peace, noise, or other disturbance directly
tending to interrupt the proceedings of the court.
(4) Willful disobedience of the terms as written of any process or
court order or out-of-state court order, lawfully issued by a court,
including orders pending trial.
(5) Resistance willfully offered by any person to the lawful order
or process of a court.
(6) The contumacious and unlawful refusal of a person to be sworn
as a witness or, when so sworn, the like refusal to answer a material
question.
(7) The publication of a false or grossly inaccurate report of the
proceedings of a court.
(8) Presenting to a court having power to pass sentence upon a
prisoner under conviction, or to a member of the court, an affidavit,
testimony, or representation of any kind, verbal or written, in
aggravation or mitigation of the punishment to be imposed upon the
prisoner, except as provided in this code.
(9) Willful disobedience of the terms of an injunction that
restrains the activities of a criminal street gang or any of its
members, lawfully issued by a court, including an order pending
trial.
(b) (1) A person who is guilty of contempt of court under
paragraph (4) of subdivision (a) by willfully contacting a victim by
telephone or mail, or directly, and who has been previously convicted
of a violation of Section 646.9 shall be punished by imprisonment in
a county jail for not more than one year, by a fine of five thousand
dollars ($5,000), or by both that fine and imprisonment.
(2) For the purposes of sentencing under this subdivision, each
contact shall constitute a separate violation of this subdivision.
(3) The present incarceration of a person who makes contact with a
victim in violation of paragraph (1) is not a defense to a violation
of this subdivision.
(c) (1) Notwithstanding paragraph (4) of subdivision (a), a
willful and knowing violation of a protective order or stay-away
court order described as follows shall constitute contempt of court,
a misdemeanor, punishable by imprisonment in a county jail for not
more than one year, by a fine of not more than one thousand dollars
($1,000), or by both that imprisonment and fine:
(A) An order issued pursuant to Section 136.2.
(B) An order issued pursuant to paragraph (2) of subdivision (a)
of Section 1203.097.
(C) An order issued after a conviction in a criminal proceeding
involving elder or dependent adult abuse, as defined in Section 368.
(D) An order issued pursuant to Section 1201.3.
(E) An order described in paragraph (3).
(2) If a violation of paragraph (1) results in a physical injury,
the person shall be imprisoned in a county jail for at least 48
hours, whether a fine or imprisonment is imposed, or the sentence is
suspended.
(3) Paragraphs (1) and (2) apply to the following court orders:
(A) An order issued pursuant to Section 6320 or 6389 of the Family
Code.
(B) An order excluding one party from the family dwelling or from
the dwelling of the other.
(C) An order enjoining a party from specified behavior that the
court determined was necessary to effectuate the orders described in
paragraph (1).
(4) A second or subsequent conviction for a violation of an order
described in paragraph (1) occurring within seven years of a prior
conviction for a violation of any of those orders and involving an
act of violence or "a credible threat" of violence, as provided in
subdivision (c) of Section 139, is punishable by imprisonment in a
county jail not to exceed one year, or in the state prison for 16
months or two or three years.
(5) The prosecuting agency of each county shall have the primary
responsibility for the enforcement of the orders described in
paragraph (1).
(d) (1) A person who owns, possesses, purchases, or receives a
firearm knowing he or she is prohibited from doing so by the
provisions of a protective order as defined in Section 136.2 of this
code, Section 6218 of the Family Code, or Section 527.6 or 527.8 of
the Code of Civil Procedure, shall be punished under Section 29825.
(2) A person subject to a protective order described in paragraph
(1) shall not be prosecuted under this section for owning,
possessing, purchasing, or receiving a firearm to the extent that
firearm is granted an exemption pursuant to subdivision (h) of
Section 6389 of the Family Code.
(e) (1) If probation is granted upon conviction of a violation of
subdivision (c), the court shall impose probation consistent with
Section 1203.097.
(2) If probation is granted upon conviction of a violation of
subdivision (c), the conditions of probation may include, in lieu of
a fine, one or both of the following requirements:
(A) That the defendant make payments to a battered women's
shelter, up to a maximum of one thousand dollars ($1,000).
(B) That the defendant provide restitution to reimburse the victim
for reasonable costs of counseling and other reasonable expenses
that the court finds are the direct result of the defendant's
offense.
(3) For an order to pay a fine, make payments to a battered women'
s shelter, or pay restitution as a condition of probation under this
subdivision or subdivision (c), the court shall make a determination
of the defendant's ability to pay. In no event shall an order to make
payments to a battered women's shelter be made if it would impair
the ability of the defendant to pay direct restitution to the victim
or court-ordered child support.
(4) If the injury to a married person is caused in whole, or in
part, by the criminal acts of his or her spouse in violation of
subdivision (c), the community property shall not be used to
discharge the liability of the offending spouse for restitution to
the injured spouse required by Section 1203.04, as operative on or
before August 2, 1995, or Section 1202.4, or to a shelter for costs
with regard to the injured spouse and dependents required by this
subdivision, until all separate property of the offending spouse is
exhausted.
(5) A person violating an order described in subdivision (c) may
be punished for any substantive offenses described under Section
136.1 or 646.9. A finding of contempt shall not be a bar to
prosecution for a violation of Section 136.1 or 646.9. However, a
person held in contempt for a violation of subdivision (c) shall be
entitled to credit for any punishment imposed as a result of that
violation against any sentence imposed upon conviction of an offense
described in Section 136.1 or 646.9. A conviction or acquittal for a
substantive offense under Section 136.1 or 646.9 shall be a bar to a
subsequent punishment for contempt arising out of the same act.
SEC. 2. 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) 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 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) 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 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) Any 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 two thousand five hundred dollars
($2,500), or by imprisonment in a county jail not exceeding one year,
or by both that fine and imprisonment, or by a fine not exceeding
ten thousand dollars ($10,000), 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) Any 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 two thousand five hundred dollars
($2,500), or by imprisonment in a county jail not exceeding one year,
or by both that fine and imprisonment, or by a fine not exceeding
ten thousand dollars ($10,000), 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) Any 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 any person who is 65
years of age or older.
(h) As used in this section, "dependent adult" means any person
who is between the ages of 18 and 64, who has physical or mental
limitations which 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 any person between the ages of 18 and 64
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 any 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 provision of
law. However, a person shall not receive an additional term of
imprisonment under both paragraphs (2) and (3) of subdivision (b) for
any 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 any 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. Any 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.
(l) Upon conviction for a violation of subdivision (b), (c), (d),
(e), or (f), the sentencing court shall also consider issuing an
order restraining the defendant from any contact with the victim,
which may be valid for up to 10 years, as determined by the court. It
is the intent of the Legislature that the length of any restraining
order be based upon the seriousness of the facts before the court,
the probability of future violations, and the safety of the victim
and his or her immediate family. This protective order may be issued
by the court whether the defendant is sentenced to state prison or
county jail, or if imposition of sentence is suspended and the
defendant is placed on probation.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
