ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 1123

Author:(Chang) – As Amended Ver:July 27, 2020

SUMMARY: Clarifies the definition of elder and dependent adult abuse and requires law enforcement agencies to update their policy manuals with the new definition. Specifically, this bill:

Clarifies, in the context of elder and dependent adult abuse, definitions of the terms “abandonment,” “abduction,” “financial abuse,” “goods and services necessary to avoid physical harm or mental suffering,” “isolation,” “mental suffering,” “neglect,” and “physical abuse” by cross-referencing the Welfare and Institutions Code.
Requires every local law enforcement agency, when the agency next undertakes the policy revision process, to revise or include in the portion of its policy manual relating to elder and dependent adult abuse, if that policy manual exists, the updated, cross-referenced definition of elder and dependent adult abuse.

EXISTING LAW:

Makes it an alternate felony/misdemeanor (“wobbler”) for a person, entrusted with the care of custody of any elder or dependent adult, to willfully cause the elder to be injured or permit them to be placed in a situation endangering their health. (Pen. Code, § 368, subd. (b)(1).)
Defines the following terms:
1. “Elder” is any person who is 65 years of age or older. (Pen. Code, § 368, subd. (g).)
2. “Dependent adult” to mean 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” also includes 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).)
3. “Elder and Dependent Adult abuse” is physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering; or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. (Pen. Code, § 368.5, subd (c)(1)(D).)
4. “Abandonment” is the desertion or willful forsaking of an elder or a dependent adult by anyone having care or custody of that person under circumstances in which a reasonable person would continue to provide care and custody. (Welf. and Inst. Code, § 15610.05.)
5. “Abduction” is the means the removal from this state and the restraint from returning to this state, or the restraint from returning to this state, of any elder or dependent adult who does not have the capacity to consent to the removal from this state and the restraint from returning to this state, or the restraint from returning to this state, as well as the removal from this state or the restraint from returning to this state, of any conservatee without the consent of the conservator or the court. (Welf. and Inst. Code, § 15610.06.)
6. “Financial abuse” of an elder or dependent adult occurs when a person or entity does any of the following:
  1. Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both;
  2. Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both; or
  3. Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as specified. (Welf. and Inst. Code, § 15610.30.)
7. “Goods and services necessary to avoid physical harm or mental suffering” include, but are not limited to, all of the following:
  1. The provision of medical care for physical and mental health needs.
  2. Assistance in personal hygiene.
  3. Adequate clothing.
  4. Adequately heated and ventilated shelter.
  5. Protection from health and safety hazards.
  6. Protection from malnutrition, under those circumstances where the results include, but are not limited to, malnutrition and deprivation of necessities or physical punishment.
  7. Transportation and assistance necessary to secure any of the needs set forth above. (Welf. and Inst. Code, § 15610.35.)
8. “Isolation” means any of the following:
  1. Acts intentionally committed for the purpose of preventing, and that do serve to prevent, an elder or dependent adult from receiving his or her mail or telephone calls.
  2. Telling a caller or prospective visitor that an elder or dependent adult is not present, or does not wish to talk with the caller, or does not wish to meet with the visitor where the statement is false, is contrary to the express wishes of the elder or the dependent adult, whether he or she is competent or not, and is made for the purpose of preventing the elder or dependent adult from having contact with family, friends, or concerned persons.
  3. False imprisonment, as defined in Section 236 of the Penal Code.
  4. Physical restraint of an elder or dependent adult, for the purpose of preventing the elder or dependent adult from meeting with visitors. (Welf. and Inst. Code, § 15610.43.)
9. “Mental suffering” means fear, agitation, confusion, severe depression, or other forms of serious emotional distress that is brought about by forms of intimidating behavior, threats, harassment, or by deceptive acts performed or false or misleading statements made with malicious intent to agitate, confuse, frighten, or cause severe depression or serious emotional distress of the elder or dependent adult. (Welf. and Inst. Code, § 15610.53.)
10. “Neglect” means either of the following:
  1. The negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.
  2. The negligent failure of an elder or dependent adult to exercise that degree of self care that a reasonable person in a like position would exercise. (Welf. and Inst. Code, § 15610.57, subd. (a).)
11. “Neglect” includes, but is not limited to, all of the following:
  1. Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter.
  2. Failure to provide medical care for physical and mental health needs. No person shall be deemed neglected or abused for the sole reason that he or she voluntarily relies on treatment by spiritual means through prayer alone in lieu of medical treatment.
  3. Failure to protect from health and safety hazards.
  4. Failure to prevent malnutrition or dehydration.
  5. Failure of an elder or dependent adult to satisfy the needs specified above, inclusive, for himself or herself as a result of poor cognitive functioning, mental limitation, substance abuse, or chronic poor health. (Welf. and Inst. Code, § 15610.57, subd. (b).)
Authorizes local and state law enforcement agencies with jurisdiction to investigate elder and dependent adult abuse and all other crimes against elder victims and victims with disabilities. (Pen. Code, § 368.5 (a).)
Grants adult protective services agencies and local long-term care ombudsman programs also have jurisdiction within their statutory authority to investigate elder and dependent adult abuse and criminal neglect, and may assist local law enforcement agencies in criminal investigations at the law enforcement agencies’ request, if consistent with federal law; however, law enforcement agencies retain exclusive responsibility for criminal investigations, notwithstanding any law to the contrary. (Pen. Code, § 368.5 (b).)
Requires every local law enforcement agency shall, when the agency next undertakes the policy revision process, revise or include in the portion of its policy manual relating to elder and dependent adult abuse, if that policy manual exists, with information pertaining to the offense and investigation of elder and dependent adult abuse. (Pen. Code, § 368.5 subd. (c).)

FISCAL EFFECT: Unknown.

COMMENTS:

Author's Statement: According to the author, “Seniors and dependent adults are more vulnerable and more susceptible to physical, emotional, and financial abuse than other populations. According to a study by the National Adult Protective Services Association, one in nine senior or dependent adults have experienced abuse, neglect, or exploitation over the past year.

“California is bracing for a silver tsunami as its population is aging. Estimates project that by 2030, the 21% of the population will be over the age of 65 and 10% of the population will be over the age of 75. With a growing aging population, protection from abuse, neglect, isolation, and other crimes against the elderly should be a priority for our state.

“Abuse against elderly or dependent adults can have long lasting effects. Research has shown that forms of physical and mental abuse (which can include social isolation) can lead to an array of physical and mental conditions including heart disease, high blood pressure, weakened immune system, depression, anxiety, and cognitive decline.

“Currently, California Penal Code 368.5 lacks definitions of physical, mental, and emotional abuse. By aligning the definitions of abuse found in the Welfare and Institutions Code, the legal protections that are afforded the elderly or dependent adult populations will be clear.

By amending Penal Code 368.5 to align the definitions of elder and dependent adult abuse with those found in the Welfare and Institutions Code, law enforcement agencies will have accurate and unambiguous terms to use in the course of reporting or investigating claims of abuse.”

Consistency of “Elder and Dependent Adult Abuse” Definition: Consistency in the application of the law is a desirable quality. It promotes fairness and equitable treatment. Currently, elder and dependent adult abuse is defined in Penal Code section 368.5 as “physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment resulting in physical harm, pain or mental suffering; or the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” Each of those terms has a specific definition in the Welfare and Institutions Code, but the penal code does not cross-reference those definitions. By adding cross references to the Welfare and Institutions Code, this bill seeks to promote uniform application of the law.
Argument in Support: According to the San Diego District Attorney’s Office: “This bill would amend PC 368.5 to define the term ‘elder and dependent adult abuse’ to align with the definition currently found in the Welfare and Institutions Code (WIC). This definition will be included in the policy manuals and handbooks of all law enforcement agencies.

“SB 1123 will encourage consistent enforcement of elder and dependent adult abuse laws throughout California by requiring local law enforcement agencies to employ best practices in their approach to these cases. Requiring these agencies to revise or include in their policy manuals specified information regarding elder and dependent adult abuse will be an effective step in protecting our elderly.

“In 2017, our office began a formal planning process to coordinate San Diego’s regional response to elder abuse. Due to the rise of elder abuse prosecutions, as well as the impending explosion of the elder population, our office brought together countywide stakeholders in November 2017 for a first-ever ‘think-tank’ of experts, including professionals from all disciplines that serve as touchpoints for elder and dependent adults. Those experts identified gaps and needs in our community and set goals for the future outlined in our San Diego County Elder and Dependent Adult Abuse Elder Abuse Blueprint.

“SB 1123 will help our response team by creating a clear and standard definition of elder and adult abuse. By amending Penal Code 368.5 to align the definitions of elder and dependent adult abuse with those found in the WIC, law enforcement agencies will have accurate and consistent terms to use in the course of reporting or investigating claims of elder abuse.”

Prior Legislation:
1. SB 1191 (Hueso) Chapter 513, Statutes of 2018, required local law enforcement to revise their training policies in regards to the crimes of elder and dependent adult abuse.
2. AB 2623 (Pan), Chaptered 823, Statutes of 2014, expanded the elder and dependent adult abuse training curriculum requirements mandatory for specified peace officers and required the Commission on Peace Officer Standards and Training (POST) to consult with local protective services offices and the Office of the State Long-Term Care Ombudsman when creating new or updated training materials.
3. SB 338 (Morrell), of the 2015-2016 Legislative Session, would have created an alternate felony-misdemeanor offense for causing substantial mental suffering in an elder or dependent adult. SB 338 died in the Senate Public Safety Committee.
4. AB 441 (Wilk), of the 2015-2016 Legislative Session, would have created a sentencing enhancement of two additional years of imprisonment for any person convicted of identity theft if the victim was 65 years of age or older at the time of the offense. AB 441 failed passage in the Assembly Public Safety Committee.
5. SB 110 (Liu), Chapter 617, Statutes of 2010, authorized every local law enforcement agency that participates in the Peace Officer Standards and Training (POST) program to provide training to its peace officers using a telecourse related to crime victims with disabilities each time that telecourse is update.
6. AB 1819 (Shelley), Chapter 559, Statutes of 2000, required peace officer elder abuse training to include the subjects of physical and psychological abuse of elders and dependent adults.

REGISTERED SUPPORT / OPPOSITION:

Support

Alameda County District Attorney's Office
California Commission on Aging
California District Attorneys Association
Coalition for Elder & Disability Rights (CEDAR)
Ethics Media
Rights Rally
Riverside Sheriffs' Association
San Diego County District Attorney's Office
State Council on Developmental Disabilities
The Arc and United Cerebral Palsy California Collaboration

Opposition

None

Analysis Prepared by: Matthew Fleming / PUB. S. / (916) 319-3744

SB 1123: Elder and dependent adult abuse.

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