BILL NUMBER: AB 1293AMENDED BILL TEXT AMENDED IN ASSEMBLY MAY 11, 2011 INTRODUCED BY Assembly Member Blumenfield FEBRUARY 18, 2011 An act to amend Section 15656 of, and to add Sections 15656.1, 15656.2, 15656.3, and 15656.4 to, the Welfare and Institutions Code, relating to elder abuse. LEGISLATIVE COUNSEL'S DIGEST AB 1293, as amended, Blumenfield. Elder abuse: theft or embezzlement: forfeiture. Existing law provides criminal penalties for any caretaker of an elder or a dependent adult who steals or embezzles the property of the elder or dependent adult. This bill would authorize the prosecuting agency, as defined, in conjunction with a criminal proceeding alleging theft or embezzlement of property worth $100,000 or more, to file a petition of forfeiture, as prescribed, with the superior court of the county in which the defendant has been charged with the underlying criminal offense, and alleging that the defendant has acquired the property or proceeds through theft or embezzlement of an elder or dependent adult's property.This bill would also authorize, upon conviction, the prosecuting agency to request restitution in the form of reimbursement for reasonable trial costs. The court, in ordering payment of restitution, would be required to take into account the defendant's ability to pay after the defendant has forfeited the property or proceeds acquired through theft or embezzlement of an elder or dependent adult's property.Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 15656 of the Welfare and Institutions Code is amended to read: 15656. (a) 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 unjustifiable physical pain or mental suffering upon him or her, 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 such that his or her person or health is endangered, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison for two, three, or four years. (b) 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 unjustifiable physical pain or mental suffering on him or her, 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 such that his or her person or health may be endangered, is guilty of a misdemeanor. (c) (1) Any caretaker of an elder or a dependent adult who violates any provision of law prescribing theft or embezzlement, with respect to the property of that elder or dependent adult, is punishable as follows: (A) By imprisonment in the county jail not exceeding one year, or in the state prison for two, three, or four years when the money, labor, or real or personal property taken is of a value exceeding nine hundred fifty dollars ($950). (B) By a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding one year, or by both that imprisonment and fine, when the money, labor, or real or personal property taken is of a value not exceeding nine hundred fifty dollars ($950). (2) The prosecuting agency may, in conjunction with a criminal proceeding alleging theft or embezzlement of assets worth one hundred thousand dollars ($100,000) or more, file a petition of forfeiture with the superior court of the county in which the defendant has been charged with the underlying criminal offense, alleging that the defendant has acquired the property or proceeds through theft or embezzlement of an elder or dependent adult's property and seeking to have the property or proceeds returned to the victim.(3) Upon conviction, the prosecuting agency may request restitution in the form of reimbursement for reasonable trial costs. The court, in ordering payment of restitution, shall take into account the defendant's ability to pay after the defendant has forfeited the property or proceeds pursuant to paragraph (2) and Sections 15656.1 to 15656.4, inclusive.(d) 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. (e) As used in this article "prosecuting agency" means the Attorney General or the district attorney of any county. (f) Conduct covered in subdivision (b) of Section 15610.57 shall not be subject to this section. SEC. 2. Section 15656.1 is added to the Welfare and Institutions Code, to read: 15656.1. (a) The prosecuting agency, in filing a petition of forfeiture pursuant to paragraph (2) of subdivision (c) of Section 15656, shall make service of process of a notice regarding that petition upon every individual who may have a property interest in the alleged proceeds, which notice shall state that any interested party may file a verified claim with the superior court stating the amount of their claimed interest and an affirmation or denial of the prosecuting agency's allegation. If the notices cannot be given by registered mail or personal delivery, the notices shall be published for at least three successive weeks in a newspaper of general circulation in the county where the property is located. If the property alleged to be subject to forfeiture is real property, the prosecuting agency shall, at the time of filing the petition of forfeiture, record a lis pendens in each county in which the real property is situated which specifically identifies the real property alleged to be subject to forfeiture. The judgment of forfeiture shall not affect the interest in real property of any third party which was acquired prior to the recording of the lis pendens. (b) All notices shall set forth the time within which a claim of interest in the property seized is required to be filed pursuant to Section 15656.2. SEC. 3. Section 15656.2 is added to the Welfare and Institutions Code, to read: 15656.2. (a) Any person claiming an interest in the property or proceeds, at issue in the forfeiture petition, may, at any time within 30 days from the date of the first publication of the notice of seizure, or within 30 days after receipt of actual notice, file with the superior court of the county in which the action is pending a verified claim stating his or her interest in the property or proceeds. A verified copy of the claim shall be given by the claimant to the Attorney General or district attorney, as appropriate. (b) The defendant may admit or deny that the property is subject to forfeiture pursuant to the provisions of this article. If the defendant fails to admit or deny or to file a claim of interest in the property or proceeds, the court shall enter a response of denial on behalf of the defendant. (c) (1) The forfeiture proceeding shall be set for hearing in the superior court in which the underlying criminal offense will be tried. (2) If the defendant is found guilty of the underlying offense, the issue of forfeiture shall be promptly tried, either before the same jury or before a new jury in the discretion of the court, unless waived by the consent of all parties. (d) At the forfeiture hearing, the prosecuting agency shall have the burden of establishing beyond a reasonable doubt that the property alleged in the petition was acquired by the defendant through theft or embezzlement from an elder or dependent adult. SEC. 4. Section 15656.3 is added to the Welfare and Institutions Code, to read: 15656.3. (a) Concurrent with, or subsequent to, the filing of the forfeiture petition, the prosecuting agency may move the superior court for the following pendente lite orders to preserve the status quo of the property alleged in the petition of forfeiture: (1) An injunction to restrain all interested parties and enjoin them from transferring, encumbering, hypothecating, or otherwise disposing of that property. (2) Appointment of a receiver to take possession of, care for, manage, and operate the assets and properties so that such property may be maintained and preserved. (b) No preliminary injunction may be granted or receiver appointed without notice to the interested parties and a hearing to determine that an order is necessary to preserve the property, pending the outcome of the criminal proceedings, and that there is probable cause to believe that the property alleged in the forfeiture proceedings are proceeds or property interests forfeitable under subdivision (c) of Section 15656. However, a temporary restraining order may issue pending that hearing pursuant to the provisions of Section 527 of the Code of Civil Procedure. (c) Notwithstanding any other provision of law, the court in granting these motions may order a surety bond or undertaking to preserve the property interests of the interested parties. (d) The court shall, in making its orders, seek to protect the interests of those who may be involved in the same enterprise as the defendant, but who were not involved in the commission of the theft or embezzlement. SEC. 5. Section 15656.4 is added to the Welfare and Institutions Code, to read: 15656.4. (a) If a trier of fact at the forfeiture hearing finds that the alleged property or proceeds is forfeitable pursuant to subdivision (c) of Section 15656 and subdivision (d) of Section 15656.2, the court shall declare that property or proceeds forfeited and order the property or proceeds be returned to the elder or dependent adult from whom it was stolen or embezzled. (b) A bona fide or innocent purchasers of the stolen or embezzled property of the elder or dependent adult shall be ordered by the court to return the property or proceeds to the elder or dependent adult, and that bona fide or innocent purchaser shall have the right to bring an action against the defendent to recover his or her interest in the property or proceeds.