AB 728: Health care coverage: prescription drugs: Duchenne muscular dystrophy.
- Session Year: 2017-2018
- House: Assembly
- Latest Version Date: 2017-04-19
Existing law, the Knox-Keene Health Care Service Plan Act of 1975 (Knox-Keene Act), provides for the licensure and regulation of health care service plans by the Department of Managed Health Care, and makes a willful violation of the act a crime. Existing law provides for the regulation of health insurers by the Department of Insurance. Existing law imposes various requirements and restrictions on health care service plan contracts issued by health care service plans and health insurance policies issued by health insurers, including those that cover prescription drug benefits, as specified.
This bill would prohibit a health care service plan contract or a health insurance policy that covers prescription drug benefits from denying or otherwise limiting coverage of a genetically targeted drug for the treatment of Duchenne muscular dystrophy under specified circumstances. Because a willful violation of that provision by a health care service plan would impose a crime under the Knox-Keene Act, the bill would create a state-mandated local program.
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.
Existing law permits a defendant to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty if he or she has fulfilled the conditions of probation for the entire period of probation, has been discharged prior to the termination of the period of probation, has been convicted of a misdemeanor and not granted probation and has fully complied with and performed the sentence of the court, or has been sentenced to a county jail for a felony, or if a court, in its discretion and the interests of justice, determines that a defendant should be granted this or other specified relief. In either case, existing law releases the defendant from all penalties and disabilities resulting from the offense of which he or she has been convicted. Existing law makes this relief unavailable if the defendant has committed any one of specified offenses, including certain sexual offenses committed against minors.This bill would expand the list of offenses that make a defendant ineligible for that relief to include elder abuse, as specified.Existing law permits a defendant to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty if he or she has fulfilled the conditions of probation for the entire period of probation, has been discharged prior to the termination of the period of probation, has been convicted of a misdemeanor and not granted probation and has fully complied with and performed the sentence of the court, or has been sentenced to a county jail for a felony, or if a court, in its discretion and the interests of justice, determines that a defendant should be granted this or other specified relief. In either case, existing law releases the defendant from all penalties and disabilities resulting from the offense of which he or she has been convicted. Existing law makes this relief unavailable if the defendant has committed any one of specified offenses, including certain sexual offenses committed against minors.
This bill would expand the list of offenses that make a defendant ineligible for that relief to include elder abuse, as specified.
Existing law permits a defendant to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty if he or she has fulfilled the conditions of probation for the entire period of probation, has been discharged prior to the termination of the period of probation, has been convicted of a misdemeanor and not granted probation and has fully complied with and performed the sentence of the court, or has been sentenced to a county jail for a felony, or if a court, in its discretion and the interests of justice, determines that a defendant should be granted this or other specified relief. In either case, existing law releases the defendant from all penalties and disabilities resulting from the offense of which he or she has been convicted. Existing law makes this relief unavailable if the defendant has committed any one of specified offenses, including certain sexual offenses committed against minors.
This bill would expand the list of offenses that make a defendant ineligible for that relief to include elder abuse, as specified.
(a)A health care service plan contract that is issued, amended, or renewed on or after January 1, 2018, that covers prescription drug benefits shall not deny or otherwise limit coverage of a genetically targeted drug for the treatment of Duchenne muscular dystrophy based on a characterization of that drug as not medically necessary, or as unproven, experimental, or investigational in nature, if both of the following are met:
(1)The drug has been approved by the FDA for the prescribed use, including pursuant to the accelerated approval provisions of Section 506(c) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.).
(2)The drug has been ordered or prescribed, and therefore determined to be medically necessary, by a licensed physician who has evaluated the patient and either possesses expertise in the disorder or has consulted with an expert, identified by the prescribing physician, in the disorder who has determined the drug to be medically necessary for the patient.
(b)The department shall monitor compliance with this section, including through audit.
(c)For purposes of this section, genetically targeted drug means a drug for which the approved use may result in the modulation, including suppression, up-regulation, or activation, of the function of a gene or its associated gene product and incorporates or utilizes nonreplicating nucleic acid or analagous compounds to treat one or more patient subgroups, including subgroups of patients with different mutations of a gene.
(d)This section does not apply to a health care service plan contract that is issued, amended, or renewed for purposes of health care services or coverage provided under the Medi-Cal program (Chapter 7 (commencing with Section 14000) of Part 3 of Division 9 of the Welfare and Institutions Code).
SEC. 2.Section 10123.190 is added to the Insurance Code, to read:10123.190.(a)A health insurance policy that is issued, amended, or renewed on or after January 1, 2018, that covers prescription drug benefits shall not deny or otherwise limit coverage of a genetically targeted drug for the treatment of Duchenne muscular dystrophy based on a characterization of that drug as not medically necessary, or as unproven, experimental, or investigational in nature, if both of the following are met:
(1)The drug has been approved by the FDA for the prescribed use, including pursuant to the accelerated approval provisions of Section 506(c) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.).
(2)The drug has been ordered or prescribed, and therefore determined to be medically necessary, by a licensed physician who has evaluated the patient and either possesses expertise in the disorder or has consulted with an expert, identified by the prescribing physician, in the disorder who has determined the drug to be medically necessary for the patient.
(b)The department shall monitor compliance with this section, including through audit.
(c)For purposes of this section, genetically targeted drug means a drug for which the approved use may result in the modulation, including suppression, up-regulation, or activation, of the function of a gene or its associated gene product and incorporates or utilizes nonreplicating nucleic acid or analagous compounds to treat one or more patient subgroups, including subgroups of patients with different mutations of a gene.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB 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 XIIIB of the California Constitution.
SECTION 1.Section 1203.4 of the Penal Code is amended to read:1203.4.(a)(1)If a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or if a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense. If the defendant has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty. In either case, the court shall thereupon dismiss the accusations or information against the defendant and, except as otherwise provided in this section, he or she is released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code. The probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon. The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing. However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.(2)Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.(3)Dismissal of an accusation or information underlying a conviction pursuant to this section does not permit a person prohibited from holding public office as a result of that conviction to hold public office.(4)This subdivision shall apply to all applications for relief under this section which are filed on or after November 23, 1970.(b)Subdivision (a) of this section does not apply to any misdemeanor that is within the provisions of Section 42002.1 of the Vehicle Code, to any violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, subdivision (j) of Section 289, Section 311.1, 311.2, 311.3, or 311.11, subdivision (e) of Section 368, or any violation of Section 368 by a defendant who was employed as a professional caretaker for the victim, or any felony conviction pursuant to subdivision (d) of Section 261.5, or to any infraction.(c)(1)Except as provided in paragraph (2), subdivision (a) does not apply to a person who receives a notice to appear or is otherwise charged with a violation of an offense described in subdivisions (a) to (e), inclusive, of Section 12810 of the Vehicle Code.(2)If a defendant who was convicted of a violation listed in paragraph (1) petitions the court, the court in its discretion and in the interests of justice, may order the relief provided pursuant to subdivision (a) to that defendant.(d)A person who petitions for a change of plea or setting aside of a verdict under this section may be required to reimburse the court for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the court not to exceed one hundred fifty dollars ($150), and to reimburse the county for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the county board of supervisors not to exceed one hundred fifty dollars ($150), and to reimburse any city for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the city council not to exceed one hundred fifty dollars ($150). Ability to make this reimbursement shall be determined by the court using the standards set forth in paragraph (2) of subdivision (g) of Section 987.8 and shall not be a prerequisite to a persons eligibility under this section. The court may order reimbursement in any case in which the petitioner appears to have the ability to pay, without undue hardship, all or any portion of the costs for services established pursuant to this subdivision.(e)(1)Relief shall not be granted under this section unless the prosecuting attorney has been given 15 days notice of the petition for relief. The probation officer shall notify the prosecuting attorney when a petition is filed, pursuant to this section.(2)It shall be presumed that the prosecuting attorney has received notice if proof of service is filed with the court.(f)If, after receiving notice pursuant to subdivision (e), the prosecuting attorney fails to appear and object to a petition for dismissal, the prosecuting attorney may not move to set aside or otherwise appeal the grant of that petition.(g)Notwithstanding the above provisions or any other provision of law, the Governor shall have the right to pardon a person convicted of a violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section 289, if there are extraordinary circumstances.(a)(1)If a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or if a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense. If the defendant has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty. In either case, the court shall thereupon dismiss the accusations or information against the defendant and, except as otherwise provided in this section, he or she is released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code. The probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon. The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing. However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.
(2)Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.
(3)Dismissal of an accusation or information underlying a conviction pursuant to this section does not permit a person prohibited from holding public office as a result of that conviction to hold public office.
(4)This subdivision shall apply to all applications for relief under this section which are filed on or after November 23, 1970.
(b)Subdivision (a) of this section does not apply to any misdemeanor that is within the provisions of Section 42002.1 of the Vehicle Code, to any violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, subdivision (j) of Section 289, Section 311.1, 311.2, 311.3, 311.11, or 368, or 311.11, subdivision (e) of Section 368, or any violation of Section 368 by a defendant who was employed as a professional caretaker for the victim, or any felony conviction pursuant to subdivision (d) of Section 261.5, or to any infraction.
(c)(1)Except as provided in paragraph (2), subdivision (a) does not apply to a person who receives a notice to appear or is otherwise charged with a violation of an offense described in subdivisions (a) to (e), inclusive, of Section 12810 of the Vehicle Code.
(2)If a defendant who was convicted of a violation listed in paragraph (1) petitions the court, the court in its discretion and in the interests of justice, may order the relief provided pursuant to subdivision (a) to that defendant.
(d)A person who petitions for a change of plea or setting aside of a verdict under this section may be required to reimburse the court for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the court not to exceed one hundred fifty dollars ($150), and to reimburse the county for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the county board of supervisors not to exceed one hundred fifty dollars ($150), and to reimburse any city for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the city council not to exceed one hundred fifty dollars ($150). Ability to make this reimbursement shall be determined by the court using the standards set forth in paragraph (2) of subdivision (g) of Section 987.8 and shall not be a prerequisite to a persons eligibility under this section. The court may order reimbursement in any case in which the petitioner appears to have the ability to pay, without undue hardship, all or any portion of the costs for services established pursuant to this subdivision.
(e)(1)Relief shall not be granted under this section unless the prosecuting attorney has been given 15 days notice of the petition for relief. The probation officer shall notify the prosecuting attorney when a petition is filed, pursuant to this section.
(2)It shall be presumed that the prosecuting attorney has received notice if proof of service is filed with the court.
(f)If, after receiving notice pursuant to subdivision (e), the prosecuting attorney fails to appear and object to a petition for dismissal, the prosecuting attorney may not move to set aside or otherwise appeal the grant of that petition.
(g)Notwithstanding the above provisions or any other provision of law, the Governor shall have the right to pardon a person convicted of a violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section 289, if there are extraordinary circumstances.
(a)(1)In any case in which If a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which if a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she guilty if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense. If the defendant has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in guilty. In either case, the court shall thereupon dismiss the accusations or information against the defendant and and, except as noted below, otherwise provided in this section, he or she shall thereafter be is released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code. The probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon. The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing. However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.
(2)Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.
(3)Dismissal of an accusation or information underlying a conviction pursuant to this section does not permit a person prohibited from holding public office as a result of that conviction to hold public office.
(4)This subdivision shall apply to all applications for relief under this section which are filed on or after November 23, 1970.
(b)Subdivision (a) of this section does not apply to any misdemeanor that is within the provisions of Section 42002.1 of the Vehicle Code, to any violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, subdivision (j) of Section 289, Section 311.1, 311.2, 311.3, or 311.11, 311.11, or 368, or any felony conviction pursuant to subdivision (d) of Section 261.5, or to any infraction.
(c)(1)Except as provided in paragraph (2), subdivision (a) does not apply to a person who receives a notice to appear or is otherwise charged with a violation of an offense described in subdivisions (a) to (e), inclusive, of Section 12810 of the Vehicle Code.
(2)If a defendant who was convicted of a violation listed in paragraph (1) petitions the court, the court in its discretion and in the interests of justice, may order the relief provided pursuant to subdivision (a) to that defendant.
(d)A person who petitions for a change of plea or setting aside of a verdict under this section may be required to reimburse the court for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the court not to exceed one hundred fifty dollars ($150), and to reimburse the county for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the county board of supervisors not to exceed one hundred fifty dollars ($150), and to reimburse any city for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the city council not to exceed one hundred fifty dollars ($150). Ability to make this reimbursement shall be determined by the court using the standards set forth in paragraph (2) of subdivision (g) of Section 987.8 and shall not be a prerequisite to a persons eligibility under this section. The court may order reimbursement in any case in which the petitioner appears to have the ability to pay, without undue hardship, all or any portion of the costs for services established pursuant to this subdivision.
(e)(1)Relief shall not be granted under this section unless the prosecuting attorney has been given 15 days notice of the petition for relief. The probation officer shall notify the prosecuting attorney when a petition is filed, pursuant to this section.
(2)It shall be presumed that the prosecuting attorney has received notice if proof of service is filed with the court.
(f)If, after receiving notice pursuant to subdivision (e), the prosecuting attorney fails to appear and object to a petition for dismissal, the prosecuting attorney may not move to set aside or otherwise appeal the grant of that petition.
(g)Notwithstanding the above provisions or any other provision of law, the Governor shall have the right to pardon a person convicted of a violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section 289, if there are extraordinary circumstances.
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Date
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Status
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| Feb 1, 2018 | From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. |
| Jan 31, 2018 | Died pursuant to Art. IV, Sec. 10(c) of the Constitution. |
| Apr 24, 2017 | From committee: Be re-referred to Com. on HEALTH. Re-referred. (Ayes 11. Noes 0.) (April 24). Re-referred to Com. on HEALTH. |
| Apr 20, 2017 | Re-referred to Com. on RLS. pursuant to Assembly Rule 96. |
| Apr 19, 2017 | From committee chair, with author's amendments: Amend, and re-refer to Com. on PUB. S. Read second time and amended. |
| Apr 4, 2017 | In committee: Set, second hearing. Hearing canceled at the request of author. |
| Mar 28, 2017 | Re-referred to Com. on PUB. S. |
| Mar 27, 2017 | From committee chair, with author's amendments: Amend, and re-refer to Com. on PUB. S. Read second time and amended. |
| Mar 21, 2017 | In committee: Set, first hearing. Hearing canceled at the request of author. |
| Mar 2, 2017 | Referred to Com. on PUB. S. |
| Feb 16, 2017 | From printer. May be heard in committee March 18. |
| Feb 15, 2017 | Read first time. To print. |
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Date
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Description
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Location
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Votes
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| Apr 24, 2017 | Be re-referred to the Committee on [Health] | Assembly Standing Committee on Rules |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
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Organization
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Position
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Date
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| American Civil Liberties Union | ** Against | Apr 3, 2017 |
| California Association of Health Services at Home | ** Support | Apr 3, 2017 |
| California Attorneys For Criminal Justice | ** Against | Apr 3, 2017 |
| California Public Defenders Association | ** Against | Apr 3, 2017 |
| Courage Campaign | ** Against | Apr 3, 2017 |
| Crime Victims United | ** Support | Apr 3, 2017 |
| Root and Rebound | ** Against | Apr 3, 2017 |
| San Diego County District Attorney | ** Support | Apr 3, 2017 |
Date of Hearing:
Counsel: Cheryl Anderson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
ABPCA Bill Id:AB 728
Author:(Waldron) – As Amended Ver:March 27, 2017
SUMMARY:
Expands the list of offenses that make a defendant ineligible for expungement relief (dismissal of the conviction and underlying charge), following successful completion of probation or in the interests of justice, to include elder and dependent adult abuse, as specified. Specifically, this bill:
- Includes any caretaker of an elder or dependent adult who violates any provision of law prescribing theft, embezzlement, forgery, or fraud, or a violation of identity theft, with respect to the property or personal identifying information of an elder or dependent adult, and who knows or reasonably should know that the victim is an elder or a dependent adult; or,
- Includes other conviction for elder or dependent adult abuse, as specified in statute, where the defendant was employed as a professional caretaker for the victim.
EXISTING LAW:
- Defines probation as the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer. (Pen. Code § 1203.)
- Declares that probation is an essential element in the administration of criminal justice. The safety of the public, the nature of the offense, the interests of justice, including punishment, reintegration of the offender into the community, the loss to the victim and the needs of the defendant shall be the primary considerations in the granting of probation. The safety of the public is the most important consideration among these. (Pen. Code § 1202.7.)
- Provides that in any case where the defendant has fulfilled the conditions of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the prescribed relief, and where the defendant is not serving a sentence on probation or charged with any offense, the court shall set aside the verdict or permit withdrawal of a guilty plea. The court shall then dismiss the accusation against the defendant, and, except as noted, the defendant shall be released from all penalties and disabilities. (Pen. Code § 1203.4, subd. (a).)
- Prohibits the dismissal of the conviction and underlying charges for persons convicted of specified sex offenses involving minors, certain other sex offenses, a few traffic offenses, and infractions. (Pen. Code, § 1203.4, subd. (b).)
- States that dismissal of an accusation or information under this provision does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent him or her from being convicted of the offense of being an ex-felon in possession of a firearm. (Pen. Code § 1203.4, subd. (a).)
- States that an order of dismissal does not relieve a person of the obligation to disclose the conviction in response to any questions contained in any application for public office, or for licensure for any state or local agency. (Pen. Code § 1203.4, subd. (a).)
- Provides that in any other subsequent prosecution of the defendant, the dismissed prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted, or the accusation or information not dismissed. (Pen. Code § 1203.4, subd. (a).)
- Provides that notwithstanding these provisions or any other provision of law, the Governor shall have the right to pardon a person convicted of a violation of specified sex offenses, if there are extraordinary circumstances. (Pen. Code, § 1203.4, subd. (g).)
- Declares that crimes against elders and dependent adults deserve 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. (Pen. Code, § 368, subd. (a).)
- Makes it a crime for a person who knows, or should have known, that another person is an elder or dependent adult to inflict unjustifiable physical pain or mental suffering, or willfully cause or permit that person to suffer, or to steal (including identity theft) or embezzle from that person, or to falsely imprison such a person by the use of violence, menace, fraud or deceit. (Pen. Code, § 368, subds. (b)-(d) & (f).)
- Makes it a crime for any caretaker of an elder or dependent adult to steal (including identity theft) or embezzle from that person. (Pen. Code, § 368, subd. (e).)
- Defines “elder” as any person who is 65 years of age or older. (Pen. Code, § 368, subd. (g).)
- Defines “dependent adult” as 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 disabilities have been diminished because of age,” or “any person between the ages of 18 and 64 who is admitted as an inpatient to a 24-hour health facility.” (Pen. Code, § 368, subd. (h).)
- Defines “caretaker” as 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. (Pen. Code, § 368, subd. (i).)
FISCAL EFFECT:
Unknown
COMMENTS:
- Author’s Statement: According to the author, ”San Diego County alone handles approximately 9,000 cases of elder, dependent adult and developmentally disabled abuse each year. Current law permits defendants convicted of this abuse to have their crimes expunged from their record. AB 728 will amend California code by adding convictions of elder and dependent adult abuse to the list of crimes that are ineligible for dismissal, thereby protecting a defenseless population from suffering further abuse by those hired to care for them.”
- Dismissal of a Conviction Pursuant to Penal Code Section 1203.4: Probation is a grant of leniency for a convicted defendant who has shown amenability to rehabilitation. The conditions of probation should promote rehabilitation, protect the public and the victim and ensure that justice is done. (People v. Fritchey (1992) 2 Cal.App.4th 829, 835; Brown v. Superior Court (2002) 101 Cal.App.4th 313, 319.)
Penal Code Section 1203.4 provides that a defendant who successfully completes probation is entitled to relief from specified penalties and disabilities attendant to the conviction if he or she has fully complied with the terms of probation. A court also has discretion to grant this relief, in the interests of justice, in other probation cases. “A grant of relief under section 1203.4 is intended to reward an individual who successfully completes probation by mitigating some of the consequences of his conviction and, with a few exceptions, to restore him to his former status in society to the extent the Legislature has power to do so.” (People v. Field (1995) 31 Cal.App.4th 1778, 1786-1787; citations omitted.)
When relief is granted under Penal Code section 1203.4, the conviction is set aside and the charging document is dismissed. However, this neither erases nor seals the record of conviction. Despite the dismissal order, the conviction record remains a public document. (People v. Field, supra, 31 Cal.App.4th at p. 1787.)
A conviction dismissed pursuant to Penal Code section 1203.4 must be disclosed in an application for public office, or for licensure by any state or local agency. Relief under Penal Code section 1203.4 also does not prevent state licensing agencies from using the conviction in licensing decisions. (See e.g., Bus. & Prof. Code, §§ 475, 480, 490; Ed. Code, § 44009; People v. Vasquez (2001) 25 Cal.4th 1225, 1230.) On the other hand, except as specified, employers cannot consider a conviction dismissed under Penal Code section 1203.4 in hiring decisions. (Lab. Code, § 432.7.)
Under current law, the prohibition to relief is directed mainly at sex offenses against children and certain other sex offenses, along with a few traffic offenses and infractions. SB 20 (Waldron), Chapter 143, Statutes of 2013, expanded the prohibition on relief to include specified pornography or obscenity offenses.
This bill seeks to further expand the prohibition to include persons convicted of offenses against an elder or dependent adult while acting as a caretaker. In large part, the bill applies only to a person employed as a professional caretaker. However, the theft-related provisions apply broadly to any caretaker. (Pen. Code, § 368, subd. (e).)
Argument in Support: According to the San Diego County District Attorney, “Evidence shows that it is common practice for some unscrupulous caretakers to move from victim to victim. Those who abuse this elderly population are predatory criminals. Unfortunately, current law allows these defendants, convicted of elder and dependent adult abuse, to have their crimes expunged from their criminal record thus providing them continued access to new victims. Assembly Bill 728 will amend California code and close the loophole by adding convictions of elder and dependent adult abuse to the list of crimes that are ineligible for expungement dismissal.
“Prospective employers are barred from using a past conviction against the defendant in hiring decisions if the criminal record has been expunged. Caring for the elderly and dependent adults is a special field and it involves spending intimate time with these individuals. If a caretaker abuses their patient/client and is convicted they should not be allowed to go right back out and do it again.”
- Argument in Opposition: According to the American Civil Liberties Union of California, “The stigma of a criminal conviction severely interferes with people’s ability to find employment.[] California’s expungement process can lower this barrier for people who have successfully completed all the terms of probation – including paying fines and restitution, completing counseling programs and community service, and not committing any new crimes. Once a conviction is expunged, employers cannot consider the conviction in hiring decisions under most circumstances.[] However, the conviction remains on all government records and must be disclosed for all professional licenses, government jobs, and paid and unpaid work with sensitive populations – including the elderly.
“Expungements are critical for ameliorating the detrimental employment consequences of a conviction. They are available only to those who have been held accountable, taken responsibility for their actions, and successfully exited the criminal justice system. There is no public safety rationale for removing this important relief for people with a past conviction for elder abuse, as is proposed by AB 728. Further, because employers of elder caregivers already have access to applicants’ expunged convictions,[] this bill would have no impact on a person with a prior conviction of elder abuse being hired as an elder caretaker. However, it would hinder their efforts to find any other form of employment.
“The benefits of record expungement extend beyond the individual whose record is expunged. A recent study found significant societal benefits of record expungement, including increased income, increased GDP, increased tax revenues, a reduction in government assistance, a reduction in recidivism, and an increase in additional societal benefits, such as access to housing.[]
“AB 728 will prevent people who have demonstrated their commitment to successful reentry from having a meaningful second chance.”
- Related Legislation:
- AB 502, (Waldron), would create the Victim Compensation Pilot Program for victims of financial elder abuse in San Diego County. AB 502 passed in the Assembly Committee on Public Safety, was re-referred to the Assembly Committee on Aging and Long-Term Care.
- AB 575 (Jones-Sawyer) would make substance abuse disorder counselors mandated reporters of elder and dependent adult abuse. AB 575 was referred to the Assembly Committees on Health and Judiciary.
- AB 611 (Dababneh), would authorize a mandated reporter of suspected financial elder abuse to not honor a power of attorney, as specified. AB 611 was referred to Assembly Committees on Aging and Long-Term Care and Judiciary
- AB 1115 (Jones-Sawyer) would allow defendants sentenced to prison for a felony that, if committed after enactment of Criminal Justice Realignment legislation in 2011, would have been eligible for county-jail sentencing to obtain an expungement. AB 1115 is pending hearing in this Committee today.
- AB 502, (Waldron), would create the Victim Compensation Pilot Program for victims of financial elder abuse in San Diego County. AB 502 passed in the Assembly Committee on Public Safety, was re-referred to the Assembly Committee on Aging and Long-Term Care.
- Prior Legislation:
- AB 20 (Waldron), Chapter 143, Statutes of 2013, excluded specified offenses relating to obscene matter involving minors from the provisions allowing relief from all penalties and disabilities resulting from an offense for which the person was convicted, where specified criteria are met.
- AB 1585 (Alejo), Chapter 708, Statutes of 2014, allows a court to set aside the conviction and dismiss the accusation where a person who has been convicted of solicitation or prostitution has completed a term of probation, and he or she can establish by clear and convincing evidence that the conviction was the result of his or her status as a victim of human trafficking.
- AB 651 (Bradford), Chapter 787, Statutes of 2013, allows a court to set aside the conviction and dismiss the accusation against a defendant sentenced to county jail pursuant to realignment provisions, if specified conditions are satisfied.
- AB 1384 (Bradford), Chapter 284, Statutes of 2011, allows a court to set aside the conviction and dismiss the accusation against a defendant who has been convicted of an infraction or misdemeanor but not granted probation, if specified conditions are satisfied.
- AB 20 (Waldron), Chapter 143, Statutes of 2013, excluded specified offenses relating to obscene matter involving minors from the provisions allowing relief from all penalties and disabilities resulting from an offense for which the person was convicted, where specified criteria are met.
REGISTERED SUPPORT / OPPOSITION:
Support
California Association of Health Services at Home
Crime Victims United
San Diego County District Attorney
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Courage Campaign
Root and Rebound
Analysis Prepared by:
Cheryl Anderson / PUB. S. /
Bill Author
Bill Co-Author(s):