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BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator Bruce McPherson, Chair S
2003-2004 Regular Session B
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SB 1203 (Margett) 3
As Introduced February 10, 2004
Hearing date: April 20, 2004
Penal Code
JM:mc
PETTY THEFT WITH A PRIOR THEFT CONVICTION -
THEFT CRIMES AGAINST PERSON OF AT LEAST 65 YEARS OF AGE
HISTORY
Source: Author
Prior Legislation: AB 1131 (Jackson) - Ch. 543, Stats. 2003
Support: California District Attorneys Association; Attorney
General
Opposition:California Attorneys for Criminal Justice
KEY ISSUE
SHOULD A CONVICTION UNDER PENAL CODE SECTION 368, SUBDIVISIONS (d)
OR (e) - ANY FORM OF THEFT, EMBEZZLEMENT OR IDENTITY THEFT COMMITTED
AGAINST A PERSON OF AT LEAST 65 YEARS OF AGE - BE A QUALIFYING PRIOR
OR CURRENT CONVICTION FOR THE ALTERNATE FELONY-MISDEMEANOR OF PETTY
THEFT WITH A SPECIFIED PRIOR CONVICTION?
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PURPOSE
The purpose of this bill is to define a conviction under section
368, subdivisions (d) or (e) - any form of theft, embezzlement,
fraud or identity theft committed against an elder - as a
qualifying prior or current conviction for the alternate
felony/misdemeanor of petty theft with a prior theft conviction.
Existing law defines petty theft as the taking of property worth
$400 or less, with certain exceptions for agricultural products
and the like. (Pen. Code 484, 486, 487, 488, 490.5.)
Existing law provides that petty theft in which the value of
property taken was no more than $50 may be charged as a
misdemeanor or an infraction, if the defendant has no prior
theft convictions. The fine for such an infraction may not
exceed $250. (Pen. Code 490.1.)
Existing law provides that where a defendant commits a petty
theft, and has been previously convicted of petty theft, auto
theft (under Veh. Code 10851), burglary, carjacking, robbery,
or felony receiving stolen property, for which he or she served
any time in custody, the current petty theft is an alternate
felony-misdemeanor, punishable by up to 1 year in the county
jail and/or a fine of up to $1,000, or in the state prison for
16 months, 2 years or 3 years and a fine of up to $10,000.
(Pen. Code 666.)
Existing law provides in the Three Strikes law, that where a
defendant has two prior serious or violent felonies, he or she
shall receive a term of at least 25 years to life in the
sentence for the commission of any new felony, including petty
theft with a prior theft conviction. Where the defendant has a
single prior serious or violent felony, he or she shall receive
a doubled term in the sentence for the commission of any new
felony, including identity theft as a felony. (Pen. Code
667, subds. (b)-(i), and 1170.12.)
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Existing law provides that the fact the victim of a crime
involving theft, embezzlement or extortion was an elderly person
or dependent adult shall be considered by the court to be an
aggravating circumstance when imposing a felony sentence. (Pen.
Code 502.9, 515, 525.)
Existing law includes special penalties for crimes against
"elders and dependent adults," and defines an "elder" as person
who is at least 65 years of age. (Pen. Code 368.)
Existing law provides that any person who commits theft,
embezzlement, forgery, fraud or identity theft as to an elder of
dependent adult, where the value of the loss or property taken
exceeds $400, is guilty of an alternate felony-misdemeanor,
punishable by imprisonment in the county jail for up to one
year, a fine of up to $1,000, or both, or by imprisonment in
state prison for two, three or four years. Where the value of
the loss or property taken does not exceed $400, is guilty of a
misdemeanor, punishable by imprisonment in the county jail for
up to one year, a fine of up to $1,000, or both. (Pen. Code
368, subds. (d) and (e).)
Existing law provides that where the person committing a
financial crime against an elder person - as such crime is
defined in Penal Code section 368 - is not a caretaker, the
prosecution must prove that the defendant knew or should have
known that the victim was an elder. (Pen. Code 368, subd.
(d).)
Existing law provides that a person may be prosecuted under
Penal Code section 368 and any other provision of law. (Pen.
Code 368, subd. (j).)
This bill provides that the crimes defined in Penal Code section
368, subdivisions (d) and (e) - any form provision of theft,
embezzlement, fraud or identity theft committed against an elder
- shall be qualifying prior or current convictions for purposes
of the alternate felony-misdemeanor of petty theft with a prior
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theft conviction. As such, a person who committed a misdemeanor
form of theft against an elder person in the current case could
be charged with and convicted of a felony in the current case if
the defendant has been previously convicted of specified theft,
embezzlement or identity theft crimes, including numerous
misdemeanors.
COMMENTS
1. Need for This Bill
According to the author:
Currently Penal Code 666 provides for a punishment
where the person has a prior conviction for certain
offenses, such as petty or grand theft. When a person
is convicted of theft or embezzlement against an elder
or dependent adult, they have committed a petty theft
or grand theft. However, because the charge is not
called "petty theft" or "grand theft" it would be
arguable that the offense cannot be the basis for a
future charge under Penal Code 666. This bill would
remove the ambiguity and clearly state the
Legislature's intent to have these offenses included
within the scope of Penal Code 666.
2. History of Criminal Statutes Designed to Protect Elders and
Dependent Adults
During the early 1980's, new laws were enacted in California to
address the issue of abuse of the elderly and dependent adults.
One approach was to mandate that specified persons shall report
suspected abuse of any elder or dependent adult. (Welfare and
Institutions Code 1563.) Another approach was to enact a new
provision in the Penal Code to create specific crimes for abuse
of dependent adults (elders were added in subsequent
legislation). The statutory language concerning elder abuse
first added in 1983 was identical to the language previously in
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law pertaining to child abuse.
3. Changes to Section 368, Subdivisions (d) and (e), Made in AB
1131 (Jackson) of 2003, and Previous Provision for Recidivist
Penalties That Was Stripped From AB 1131
? AB 1131 (Jackson) Ch. 543, Stats. 2003, made the following
changes to Section 368, subdivisions (d) and (e):
Expanded the provisions in Penal Code section 368(d) and
(e), which were previously applicable to theft and
embezzlement, to also include forgery, fraud or identity
theft committed against an elder or dependent adult.
Added to the previous list of "money, labor, or real or
personal property," "goods" and "services," and added
"obtain" to the previous reference to "taken" all in
section 368(d) and (e).
? AB 1131 originally contained a recidivist penalty similar to
the one in this bill. The provision was eliminated before
enactment. The provision included the following:
Proposed a new alternate felony/misdemeanor penalty
applicable to every person who, having been convicted of
misdemeanor elder or dependent adult financial abuse under
Penal Code section 368 (d) or (e) and having served a term
of imprisonment therefor in any penal institution or having
been imprisoned therein as a condition of probation for
that offense, is subsequently convicted of financial elder
or dependent adult abuse under those same sections.
The proposed recidivist penalty would have imposed
imprisonment in a county jail for a period not exceeding
one year or in the state prison for 16 months, two or three
years.
The sponsor of AB 1131 described the recidivist crime
originally appearing in that bill, a significantly more
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limited recidivist provision than in this bill: "The
subsequent offense language applies only to current
financial offenses against elders and only allows
consideration of prior financial offenses against elders.
A prior offense under section 368, therefore, would not
support a felony conviction (for example under Penal Code
section 666) if the current offense is an ordinary petty
theft. Likewise, a current violation of section 368 could
not be increased to a felony by using a prior theft
violation that was not committed against an elder or
dependent adult."
The recidivist penalty in AB 1131 was amended to provide
for tracking of misdemeanor financial crimes against
elderly persons through a subdivision that would have
created a misdemeanor in section 368 for repeated
misdemeanor convictions under that section. That provision
was eliminated prior to enactment.
It should be noted that the recidivist penalty in AB
1131 would have been placed in Section 368 - the abuse of
the elderly statute. This bill expands the existing petty
theft with a prior law (Pen. Code 666) by adding
financial abuse of the elderly ( 368, subds. (d) and (e))
to section 666.
? As noted in this analysis, this bill allows a conviction under
Penal Code section 368, subdivisions (d) or (e) to constitute
a prior or current conviction under Penal Code section 666 -
commonly called "petty theft with a prior." This bill thus
has a substantially greater reach than the comparable
provision in 2003's AB 1131, which required that each prior
and current convictions to fall under section 368, and did not
allow a section 368 conviction to be combined with a general
form of theft, or burglary, etc.
4. Expansion of Penal Code Section 666 (Petty Theft With a Prior)
Under This Bill
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? SB 1203 Expands the Reach of the "Petty Theft with a Prior"
Two Ways:
Expands prior qualifying convictions: adds prior
conviction for embezzlement, forgery, fraud, identity theft
committed against an elderly person, or another form of
theft charged under section 368. Existing law includes
larceny, burglary, carjacking, robbery and felony receiving
stolen property as prior qualifying offenses.
Expands qualifying current convictions (from the current
law that only covers petty theft) to include embezzlement,
forgery, fraud, or identity theft committed against an
elderly person and charged under section 368 (although some
of these crimes may be felonies under current law).
? Comparison Chart
-----------------------------------------------------------------
|PC 368 (d) and (e) - Where |666 - Qualifying Prior Crimes - |
|value of loss/taking exceeds |Conviction of petty theft with |
|$400, the offense is a wobbler; |one of these priors is an |
|where value of loss/taking is |alternate felony-misdemeanor. |
|$400 or less, misdemeanor. | |
|--------------------------------+--------------------------------|
|Any law proscribing theft |Petty theft or grand theft |
|--------------------------------+--------------------------------|
|Embezzlement |Auto theft under Veh. Code |
| |10851 |
|--------------------------------+--------------------------------|
|Forgery |Burglary |
|--------------------------------+--------------------------------|
|Fraud |Carjacking |
|--------------------------------+--------------------------------|
|Identity theft |Robbery |
|--------------------------------+--------------------------------|
| |Felony receiving stolen |
| |property |
| | |
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-----------------------------------------------------------------
? Many Existing Prior Qualifying Crimes for Petty Theft With a
Prior Involve Force or Threat of Force; Financial Abuse of an
Elderly Person ( 368) Crimes do not. Policy Issues
As can be seen in the chart above, the current version of Penal
Code section 666 - petty theft with a prior theft conviction -
includes a number of eligible prior crimes that involve force or
entry into a structure - carjacking, robbery and burglary.
These crimes are generally considered serious crimes in fact and
as defined in law under Penal Code sections 667 and 1192.7 (with
the exception of commercial burglaries, which are not defined as
serious felonies). In contrast, financial abuse of an elderly
person - as defined in Penal Code section 368, does not include
crimes committed by force. Arguably, a person who has committed
crimes involving violence,
or the threat of violence, in the past, is more dangerous than a
person who has not used or threatened violence in his or her
prior crimes. Penal Code section 666 arguably address societal
concerns about persons who have committed prior crimes of
violence and who continue to commit theft crimes.
Prosecutors have argued in the past that Penal Code section 666
is seldom applied against a person who has committed only one or
two prior petty thefts. Prosecutors typically file charges
under section 666 against a person with prior serious
convictions, or a person with a long record of petty thefts.
Where a person has committed identity theft, forgery or any
theft crime involving more than $400, prosecutors can file
felony charges under existing law. Thus, felonies can be filed
in numerous cases involving financial abuse of an elderly
person. Where identity theft or forgery is involved, even a
very minor first offense can be charged as a felony. Under this
bill, where a person forged an elderly relative's signature, or
used an elderly relative's bank card for a small amount of
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money, and was convicted of a misdemeanor in either case, the
person could be convicted of a felony under section 666 for a
later shoplifting of a very small amount of goods. Similarly,
where a person was previously convicted of a minor theft in the
past and committed an offense under section 368 that would
otherwise be a misdemeanor (embezzlement of a small amount of
money), the crime could be charged as a felony. [Note: in
order for a crime to qualify as a prior conviction under section
666, the person convicted of the crime must have spent some time
in custody for the offense. It would appear that this
requirement is to exclude particularly minor thefts.]
5. Double Punishment Issues - Financial Abuse of an Elder and
Larceny, Embezzlement, etc.
By its very terms, a defendant convicted under Penal Code
section 368, subdivisions (d) or (e), of financial abuse of an
elder must have committed another crime such as larceny,
embezzlement, etc. The additional elements required under
section 368 are the fact that the victim is over the age of 65
and the defendant was either a caretaker of the victim -
subdivision (e), or that the defendant knew or should have known
that the victim was an elder. Under Penal Code section 654,
where a defendant's single act or indivisible transaction
violates more than one criminal provision, the defendant can
only be punished under one provision - the provision imposing
the greatest punishment. The penalty imposed appear to depend
on the value of the property taken or obtained, as section 368
allows felony penalties with a prison triad of 2, 3, or 4 years,
where the amount in issue exceeds $400. Forgery and identity
theft are wobblers, with prison triads of 16 months, 2 years or
3 years. Thus, where forgery or identity theft against an
elderly person involved more than $400, Penal Code section 368
provides for the greatest penalty. Where the forgery or
identity theft did not exceed $400, sections 473 (forgery) and
530 (identity theft) provide the greatest penalty.
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However, the factor in aggravation that applies to a conviction
for larceny or embezzlement from an elder (Pen. Code 502.9)
would not appear to apply if the defendant is convicted under
section 368. That is true because a fact that is an element of
a crime - the age of the defendant under section 368 - cannot be
considered a factor in aggravation.
Prosecutors in prior hearings concerning financial abuse of an
elderly person have informed the Committee that much of the
value of a conviction under section 368 is the ability to track
defendants who prey on the elderly, not necessarily the
availability of a greater penalty under section 368.
Committee staff has not found any published opinions discussing
this issue. However, it would appear that a defendant convicted
of financial abuse of an elder under section 368 and convicted
of theft, identity theft, etc., could only receive a single
punishment if both convictions were arose from the same act or
indivisible transaction.
6. Petty Theft With a Prior - Development of the Crime
The California Supreme Court has succinctly described the
development of the crime of petty theft with a prior theft
conviction in People v. Bouzas (1991) 53 Cal.3d 467, 470-471:
Section 666, enacted in 1872 as part of the original
Penal Code, in its present form [1991] states: "Every
person who, having been convicted of petit theft,
grand theft, auto theft under Section 10851 of the
Vehicle Code, burglary, robbery or a felony violation
of Section 496 and having served a term therefor in
any penal institution or having been imprisoned
therein as a condition of probation for that offense,
is subsequently convicted of petit theft, then the
person convicted of that subsequent offense is
punishable by imprisonment in the county jail not
exceeding one year, or in the state prison."
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Until 1976, Section 666 addressed only misdemeanor
theft-related prior convictions resulting in
incarceration. It made a current conviction for "any
crime" punishable as either a misdemeanor or a felony,
if the defendant had been earlier convicted of and
served [incarceration] time for petty larceny or petty
theft. In that year, however, the Legislature rewrote
section 666 and merged it with former Section 667.
Former Section 667 was also originally enacted in
1872, and before its merger with Section 666 made a
current conviction for "petty theft" punishable as
either a misdemeanor or a felony, if the defendant had
been earlier convicted and served time for "any
felony."
7. Expansion of Three Strikes Law
Under the Three Strikes law, a defendant can receive a life
sentence, with a minimum term of 25 years, where he or she is
convicted of any felony after having been previously convicted
of at least two statutorily defined serious or violent felonies.
Where the defendant has a single prior qualifying conviction
and is convicted of any felony in the current case, the
defendant's sentence is doubled. There is no limit on the
remoteness in time of prior convictions subjecting the defendant
to a strike sentence. Because the Three Strikes law applies
where a defendant with "serious" or "violent" prior convictions
is convicted in the current case of any felony, it has been the
policy of the majority of the members of this Committee to not
approve new felonies for non-violent conduct.
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By expanding the alternate felony-misdemeanor of petty theft
with a prior theft (Pen. Code 666), this bill expands the
reach of the Three Strikes law. The eligibility of a person
convicted of petty theft with a prior for a life or doubled
sentence under Three Strikes is arguably the most controversial
provision or effect of that law. A person convicted of petty
theft with prior theft crimes, and who has prior serious felony
convictions (that can be qualifying crimes under section 666,
such as burglary) is subject to a life sentence. However, a
person with a long history of violence (rape, murder, mayhem)
who is convicted of petty theft can only receive a maximum
sentence of six months for petty theft.
8. Andrade and Brown Decisions: U.S. Supreme Court Has Ruled
(5-4) That a 3-Strikes Life Term for Petty Theft With a Prior
Does Not Constitute Cruel and Unusual Punishment
The United States 9th Circuit Court of Appeal ruled that
application of the Three Strikes law to convictions for petty
theft with a prior violated the constitutional ban on cruel and
unusual punishment. The United States Supreme Court, in a 5-4
decision, reversed the 9th Circuit on this issue. The court
held: "The gross disproportionality principle<1> reserves a
constitutional violation for only the extraordinary case. In
applying this principle for 2254(d)(1) purposes, it was not an
unreasonable application of our clearly established law for the
California Court of Appeal to affirm Andrade's sentence of two
consecutive terms of 25 years to life in prison." (Lockyer v.
Andrade (2003) 538 U.S. 63, 77.)
9. Stanford Law and Policy Review Article Describing
Prevalence of Petty Thefts as the Bases for Three Strikes
Sentences in San Diego County From July-December 1996
The Stanford Law and Policy Review published an article
describing a study of charging practices of the San Diego County
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<1> This principle concerns whether or not the punishment
imposed on a defendant is grossly disproportionate to the
gravity of his or her crimes.
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District Attorney in Three Strikes cases between July and
December 1996. The article noted the following in regard to the
prevalence of petty theft and second-degree burglaries charged
under the Three Strikes law:
Burglaries (both commercial and residential) were the
most frequently committed crime by Third Strike
offenders. However, half of the commercial burglaries
were actually petty theft cases involving merchandise
under $400 taken from stores. When these "technical"
commercial burglaries are combined with petty theft
convictions, petty theft becomes the single most
prevalent conviction of those in the study. Of the 148
convictions that resulted from the 185 cases, one out
of four is for petty theft. Possession of a
controlled substance ranks second as the next most
frequent conviction in the study. In sum, over
three-quarters of those convicted under the Three
Strikes law in the San Diego study were convicted of
property, drug, and other non-violent offenses. These
statistics are consistent with continuing reports that
the majority of those subjected to the Three Strikes
law have been sentenced for non-violent offenses and
contradict proponent's claims that Three Strikes would
target violent offenders such as rapists, murderers,
and child molesters. (Justice by Geography, Samara
Marion, 11 Stan. L. & Policy Rev. 29, italics added.)
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