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SB-1108 Senior and disability victimization.(2019-2020)

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Date Published: 03/26/2020 09:00 PM
SB1108:v98#DOCUMENT

Amended  IN  Senate  March 26, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill
No. 1108


Introduced by Senator Hueso

February 19, 2020


An act to amend Section 368.6 of, and to add Sections 368.8, 368.61, 368.9, 368.10, and 13515.4 to, the Penal Code, relating to senior and disability victimization.


LEGISLATIVE COUNSEL'S DIGEST


SB 1108, as amended, Hueso. Senior and disability victimization.
(1) Existing law authorizes local law enforcement agencies to adopt a policy regarding senior and disability victimization, as defined. Existing law requires local law enforcement agencies that do adopt the policy to include in the policy specified provisions related to enforcement, training, and reporting.
This bill would require that all local law enforcement agencies adopt a policy regarding senior and disability victimization on or before January 1, 2022, and to make the policy and all future updates and amendments available to the Department of Justice and, upon request, to the California Commission on Aging and the state protection and advocacy agency upon request. agency. By expanding the duties of local law enforcement, this bill would impose a state-mandated local program.
This bill would require the relevant agencies in each county, as designated by the district attorney, to develop a plan for a cooperative, multidisciplinary approach to preventing and responding to senior and disability victimization, as specified. The bill would require the district attorney to submit progress reports on the creation of the plan to the California Commission on Aging and the Department of Justice and, upon request, to the state protection and advocacy agency and the California Commission on Aging on January 1 and July 1 of each year until the adoption of the plan and to submit the plan and any subsequent updates or amendments to those agencies. The bill would require law enforcement agencies and district attorneys to report specified information relating to senior and disability victimization and the adoption of the policies and plans to the Department of Justice and would require the department to submit an annual report to the Legislature analyzing that information. By expanding the duties of the district attorney and other local agencies, this bill would impose a state-mandated local program.
(2) Existing law requires the Commission on Peace Officer Standards and Training (POST) to develop and implement a course of instruction and training for specified peace officers on various topics relating to senior and disability victimization issues, including elder and dependent adult abuse and interaction with persons with mental disabilities or developmental disorders.
This bill, on or before July 1, 2022, and periodically thereafter, bill would require the commission, in consultation with subject matter experts, to review and, if necessary, update its training materials relating to senior and disability victimization. The bill would require the commission to review the training materials whenever the law is substantially amended.
(3) 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, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 368.6 of the Penal Code is amended to read:

368.6.
 (a) This section and Section 368.61 shall be known, and may be cited, as the Senior and Disability Justice Act.
(b) As used in this section and Section 368.8, the following definitions apply:
(1) “Agency protocol” means a procedure adopted by a local law enforcement agency consistent with the agency’s organizational structure, and stated in a policy adopted pursuant to this section, to effectively and accountably carry out a particular agency responsibility.
(2) “Caretaker” has the same meaning as in Section 368 and includes paid and unpaid caretakers.
(3) “Dependent adult” has the same meaning as in Section 368.
(4) “Dependent person” has the same meaning as in Section 288.
(5) “Disability” includes mental disability and physical disability, as defined in Sections 12926 and 12926.1 of the Government Code, regardless of whether those disabilities are temporary, permanent, congenital, or acquired by heredity, accident, injury, illness, or advanced age.
(6) “Domestic violence” has the same meaning as in Section 13700 and includes a violation of Section 273.5.
(7) “Elder” has the same meaning as in Section 368.
(8) “Elder and dependent adult abuse” means a violation of Section 368 and includes physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting 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.
(9) “Hate crime” has the same meaning as set forth in Sections 422.55 and 422.56.
(10) “Human trafficking” means a violation of Section 236.1.
(11) “Local law enforcement agency” means every municipal police department and county sheriffs’ department.
(12) “Mandated reporting requirements” means any of the following:
(A) The requirements of Article 2.5 (commencing with Section 11164) of Chapter 2 of Title 1 of Part 4.
(B) The requirements of Sections 15630 and 15630.1 and subdivision (d) of Section 15640 of the Welfare and Institutions Code concerning reporting of elder and dependent adult abuse.
(C) The prohibitions on inhibiting or impeding reporting pursuant to the requirements in subparagraph (A) or (B).
(13) “Senior and disability victimization” means any of the following:
(A) Elder and dependent adult abuse.
(B) Unlawful interference with a mandated report.
(C) Homicide of an elder, dependent adult, or other adult or child with a disability.
(D) Sex crimes against elders, dependent adults, or other adults and children with disabilities.
(E) Child abuse of children with disabilities.
(F) Violation of relevant protective orders.
(G) Hate crimes against persons with actual or perceived disabilities, including, but not limited to, disabilities caused by advanced age, or those associated with them.
(H) Domestic violence against elders, dependent adults, and adults and children with disabilities, including disabilities caused by advanced age.
(14) “Relevant protective order” means an order by a California or out-of-state court, including, but not limited to, a tribal, federal, United States territorial, or United States military court, protecting an elder, dependent adult, dependent person, or other adult or child with a disability.
(15) “Responsible agency” means a local, state, or federal agency with responsibilities concerning senior and disability victimization. This includes, but is not limited to, law enforcement agencies, adult protective services agencies, child protective services agencies, the Office of the State Long-Term Care Ombudsman and its designated local agencies, fire and emergency medical services, regional centers pursuant to the Lanterman Developmental Disabilities Services Act, elder and disability service agencies, sexual assault and domestic violence agencies, elder and dependent adult death review teams, local government human relations commissions, coroners, probate court investigators, public administrators, public guardians, public conservators, district attorney’s offices, city attorney’s offices or other prosecutors with jurisdiction, the Bureau of Medi-Cal Fraud and Elder Abuse, state licensing agencies, the United States Attorney’s offices, and the Federal Bureau of Investigation.
(16) “Sex crime” means (A) an offense requiring registration pursuant to the Sex Offender Registration Act or (B) a violation of Section 729 of the Business and Professions Code.
(17) “State protection and advocacy agency” means the agency designated pursuant to Division 4.7 (commencing with Section 4900) of the Welfare and Institutions Code.
(18) “Unlawful interference in a mandated report” includes, but is not limited to, inhibiting or impeding reporting in violation of the mandated reporting requirements or a violation of Section 136.1 that concerns the mandated reporting requirements.
(c) On or before January 1, 2022, each local law enforcement agency shall adopt a policy regarding senior and disability victimization, including, but not limited to, all of the following:
(1) Information on the wide prevalence of elder and dependent adult abuse, sexual assault, other sex crimes, hate crimes, domestic violence, human trafficking, and homicide against adults and children with disabilities, including disabilities caused by advanced age, and including those crimes often committed by caretakers.
(2) A statement of the agency’s commitment to providing equal protection and demonstrating respect for all persons, regardless of age or disabilities, and to conscientiously enforcing all criminal laws protecting elders, and adults and children with disabilities, regardless of whether these crimes also carry civil penalties.
(3) The definitions and elements of the offenses specified in paragraph (2) of subdivision (b) of Section 288 and in subdivisions (c) and (f) of Section 368, noting that they protect many persons with disabilities regardless of the fact that they live independently.
(4) (A) The fact that elder and dependent adult abuse, sex crimes, child abuse, domestic violence, and any other criminal act, when committed in whole or in part because of the victim’s actual or perceived disability, including disability caused by advanced age, is also a hate crime.
(B) In recognizing suspected disability-bias hate crimes, the policy shall instruct officers to consider whether there is any indication that the perpetrator committed the criminal act because of bias, including, but not limited to, the bias motivations described in subparagraphs (B) and (C) of paragraph (3) of subdivision (a) of Section 422.87.
(5) An agency protocol and schedule for training officers with both of the following:
(A) The training materials made available by the Commission on Peace Officer Standards and Training pursuant to Sections 13515, 13515.25, 13515.27, 13515.28, 13515.29, 13515.295, 13515.30, 13515.35, and 13519.2. In the case of the training materials identified in each of these sections, the agency protocol shall require the training for, at a minimum, the category of officers for whom that section states that the training is intended or required or, if the section does not state for whom the training material is required or intended, those officers identified pursuant to paragraph (16).
(B) The agency’s policy pursuant to this section.
(6) A requirement that when an officer intends to interview a victim or witness to an alleged crime and the victim or witness reports or demonstrates deafness or hearing loss, the officer first secure the services of an interpreter as defined in Section 754 of the Evidence Code. The agency shall have a protocol for securing the services of the interpreter to ensure accurate interpretation.
(7) An agency protocol for providing appropriate training concerning the agency’s policy to dispatchers, community services officers, front desk personnel, and other civilian personnel who interact with the public.
(8) (A) The fact that the agency requires officers to investigate every report of senior and disability victimization, and does not dismiss any reports as merely civil matters or for any other reason without an investigation.
(B) An appendix to the policy describing the requirements for these investigations, including, but not limited to, all of the following:
(i) An agency protocol or protocols for cooperating and collaborating whenever possible with the Bureau of Medi-Cal Fraud and Elder Abuse, other state law enforcement agencies with jurisdiction, adult and child protective services, local long-term care ombudsman programs, and, when appropriate, other responsible agencies.
(ii) Appropriate techniques for interviewing potential victims and witnesses with cognitive or communication disabilities, including, but not limited to, avoiding repeated interviews when possible.
(iii) The elements of the investigation, including, but not limited to, all of the following:
(I) Checking prior reports received by adult or child protective services agencies, local long-term care ombudsman programs, except as provided in Section 9725 of the Welfare and Institutions Code, and any other responsible agencies.
(II) Interviewing each alleged victim, each witness, and each suspect who is available.
(III) Viewing all body-worn camera videos and all other films.
(IV) Listening to all calls from mandated reports or other callers.
(V) Making reasonable efforts to determine whether a person committed unlawful interference in a mandated report.
(iv) An agency protocol for transmitting the crime report to the appropriate prosecution office if the law enforcement agency recommends prosecution.
(v) If the agency deems it appropriate, the Investigation Response section and Addendum B of the San Diego County Elder and Dependent Adult Abuse Blueprint or the Elder Abuse Guide for Law Enforcement of the National Center on Elder Abuse at the University of Southern California.
(9) (A) A statement that it is the agency’s policy to make arrests or to seek arrest warrants, in accordance with Section 836, and, in the case of domestic violence, as allowed by Section 13701. The policy shall also state the agency protocol for seeking those arrest warrants.
(B) The agency protocol for arrests for senior and disability victimization other than domestic violence, which shall include, but not be limited to, the following requirements:
(i) In the case of a senior and disability victimization committed in an officer’s presence, including, but not limited to, a violation of a relevant protective order, the officer shall make a warrantless arrest based on probable cause when necessary or advisable to protect the safety of the victim or others.
(ii) In the case of a felony not committed in an officer’s presence, the officer shall make a warrantless arrest based on probable cause when necessary or advisable to protect the safety of the victim or others.
(iii) In the case of a misdemeanor not committed in the officer’s presence, including, but not limited to, misdemeanor unlawful interference with a mandated report or a misdemeanor violation of a relevant protective order, or when necessary or advisable to protect the safety of the victim or others, the agency shall seek an arrest warrant based on probable cause.
(iv) The policy shall state the agency protocol for seeking arrest warrants based on probable cause for crimes for which no arrest has been made.
(10) The fact that senior and disability victimization crimes are also domestic violence subject to the mandatory arrest requirements of Section 836 if they meet the elements described in Section 273.5, including, but not limited to, a violation by a caretaker or other person who is or was a cohabitant of the victim, regardless of whether the cohabitant is or was a relative of, or in an intimate personal relationship with, the victim.
(11) (A) The fact that many victims of sexual assault and other sex crimes delay disclosing the crimes for reasons including, but not limited to, shame, embarrassment, self-doubt, fear of being disbelieved, and fear of retaliation by the perpetrator or others.
(B) An instruction pursuant to Sections 264.2 and 679.04 to notify potential victims of sex crimes that they have a right to have a support person of their choice present at all times.
(12) The agency’s cross-reporting requirements, including, but not limited to, those pursuant to Section 15640 of the Welfare and Institutions Code, and an agency protocol for carrying out these cross-reporting requirements.
(13) Mandated reporting requirements, including, but not limited to, officers’ mandated reporting responsibilities and an agency protocol for carrying out the officers’ mandated reporting responsibilities.
(14) The fact that victims and witnesses with disabilities, including cognitive and communication disabilities, can be highly credible witnesses when interviewed appropriately by trained officers or other trained persons.
(15) A procedure for first-responding officers to follow when interviewing persons with cognitive and communication disabilities until officers, or staff of other responsible agencies, with more advanced training, are available. The procedure shall include an instruction to avoid repeated interviews whenever possible.
(16) The unit or office, or multiple units or offices of the agency, or the title or titles of an officer or officers, tasked with the following responsibilities:
(A) Receiving advanced officer training on senior and disability victimization, available from the Commission on Peace Officer Standards and Training, the United States Department of Justice, the Disability and Abuse Project of the Spectrum Institute, or other sources.
(B) Acting as a liaison to other responsible agencies to increase cooperation and collaboration among them while retaining the law enforcement agency’s exclusive responsibility for criminal investigations.
(C) Reaching out to the senior and disability communities and to the public to encourage prevention and reporting of senior and disability victimization.
(17) An agency protocol for seeking emergency protective orders by phone from a court at any time of the day or night pursuant to subdivision (d) of Section 6250 of the Family Code, including the court system telephone number for an officer to call, and a requirement that an officer utilize the agency protocol whenever necessary or advisable to protect a victim’s safety.
(18) A requirement that all officers treat an unexplained or suspicious death of an elder, dependent adult, or other adult or child with a disability as a potential homicide until a complete investigation, including an autopsy, is completed, and not to assume that the death of an elder or person with a disability is natural simply because of the age or disability of the deceased.
(19) A requirement that, whenever an officer verifies that a relevant protective order has been issued, the officer shall make reasonable efforts to determine if the order prohibits the possession of firearms or requires the relinquishment of firearms, and if the order does so, a requirement that the officer shall make reasonable efforts to do each of the following:
(A) Inquire whether the restrained person possesses firearms. The officer may make this effort by asking the restrained person and the protected person.
(B) Query through the California Law Enforcement Telecommunications System to determine if firearms are registered to the restrained person.
(C) Receive or seize prohibited firearms located in plain view or pursuant to a consensual or other lawful search, in compliance with Division 4 (commencing with Section 18250) of Title 2 of Part 6.
(20) Civil remedies and resources available to victims, including, but not limited to, the program administered by the California Victim Compensation Board.
(21) Notwithstanding any other law, the complete contents of any model policy on senior and disability victimization that the Commission on Peace Officer Standards and Training develops based on this section, regardless of whether that model policy includes items in addition to those listed in this section.
(22) Use of the full term “elder and dependent adult abuse” in every reference to that crime, with no shorthand terms, including, but not limited to, “elder abuse” or “adult abuse.”
(23) A detailed checklist of first-responding officers’ responsibilities, including, but not limited to, all of the following:
(A) Taking responsibility for the safety and well-being of the potential victims and witnesses and treating all potential victims, witnesses, and suspects with dignity and respect.
(B) Complying with the provisions of the agency’s policy requirements for arrests and mandatory seeking of arrest warrants pursuant to paragraph (9) and the requirements for seeking emergency protective orders pursuant to paragraph (17).
(C) Following the policy’s guidelines for interviewing persons with cognitive or communication disabilities pursuant to paragraph (15).
(D) Recognizing that some elders and adults and children with cognitive or communication disabilities may have difficulty narrating events, appear to be poor historians, or lack short-term memory, which adds to their vulnerability and therefore requires officers to make special efforts to provide them with equal protection.
(E) Documenting the scene.
(F) Obtaining a signed medical release from potential victims.
(G) Interviewing caretakers separately, recognizing that, in some cases, the caretaker is the perpetrator.
(H) Recognizing that victim cooperation is sometimes unnecessary for prosecution, and that in some cases allowing victims the option of preventing prosecution creates an opportunity for the perpetrators to obstruct justice by pressuring or threatening the victims. Each dispatch call or case should be investigated on its own evidential merits.
(I) Taking other actions necessary to comply with the provisions of the law enforcement agency’s policy pursuant to this section.
(24) The relevant content of any memoranda of understanding or similar agreements or procedures for cooperating with other responsible agencies, consistent with Section 368.5.
(25) A statement of the agency chief executive’s responsibilities, including, but not limited to, all of the following:
(A) Taking leadership within the agency and in the community, including by speaking out publicly in major cases of senior and disability victimization, to assure the community of the agency’s support for the victims and their families and for others in the community who are terrorized and traumatized by the crimes, and to encourage victims and witnesses to the crimes or similar past or future crimes to report those crimes to help bring the perpetrators to justice and prevent further crimes.
(B) Carrying out specific responsibilities pursuant to this subdivision, including, but not limited to, developing and including agency protocols in this policy.
(C) Ensuring that all officers and staff carry out their responsibilities under the policy.
(26) An agency protocol for transmitting and periodically retransmitting the policy and any related orders to all officers, including a simple and immediate way for officers to access the policy in the field when needed.
(27) (A) A requirement that all officers be familiar with the policy and carry out the policy at all times except in the case of unusual compelling circumstances as determined by the agency’s chief executive or by another supervisory or command-level officer designated by the chief executive.
(B) A responsible officer who makes a determination allowing a deviation from the policy shall produce a report to the agency’s chief executive stating the unusual compelling circumstances. The policy shall include an agency protocol for providing copies of those reports to the alleged victims and reporting parties. The chief executive shall retain the report for a minimum of five years and shall make it available to the state protection and advocacy agency upon request.
(28) For each agency protocol, either a specific title-by-title list of officers’ responsibilities, or a specific office or unit in the law enforcement agency responsible for implementing the protocol.
(d) The agency shall provide the policy required by subdivision (c) and all future updates and amendments shall be made available to the Department of Justice and, upon request, to the California Commission on Aging and the state protection and advocacy agency upon request. agency.

SEC. 2.Section 368.8 is added to the Penal Code, to read:
368.8.

SEC. 2.

 Section 368.61 is added to the Penal Code, to read:

368.61.
 (a) The relevant agencies in each county, as designated by the district attorney, shall develop a plan for a cooperative, multidisciplinary approach to preventing and responding to senior and disability victimization.
(b) On or before April 1, 2021, each district attorney shall invite the following agencies and persons to an initial meeting to begin developing the plan:
(1) Local law enforcement agencies and emergency medical technician (EMT) or paramedic response agencies.
(2) The county adult and child protective services agencies, public guardians, public administrators, public conservators, and elder and dependent adult death review teams.
(3) Any local long-term care ombudsman program that serves any part of the county.
(4) A state veterans’ home, state hospital, developmental center, or similar state facility located in the county and the state law enforcement agencies with jurisdiction over those facilities.
(5) Any regional center that serves any part of the county.
(6) Any sexual assault, domestic violence, or human trafficking program that serves any part of the county.
(7) Any other responsible agency or person that the district attorney deems advisable to invite.
(c) In developing the plan required pursuant to subdivision (a), the agencies designated by the district attorney in subdivision (a) shall consider, but not be limited to, the content of the San Diego County Elder and Dependent Adult Abuse Blueprint and all appendices.
(d) The plan shall include the adoption by local law enforcement agencies of a senior and disability victimization policy, as required pursuant to Section 368.6.
(e) (1) The district attorney shall submit progress reports on the creation of the plan required by this section to the California Commission on Aging and the Department of Justice and, upon request, to the state protection and advocacy agency and the California Commission on Aging on January 1 and July 1 of each year until the adoption of the plan.
(2) The district attorney shall submit the plan and any subsequent updates or amendments to the California Commission on Aging and the Department of Justice. Justice and, upon request, to the state protection and advocacy agency and the California Commission on Aging.

SEC. 3.

 Section 368.9 is added to the Penal Code, to read:

368.9.
 (a) Law enforcement agencies and district attorneys shall report the following information to the Department of Justice, in a manner prescribed by the Attorney General:
(1) Statistics on senior and disability victimization, as defined in Section 368.6, including reports, arrests, and convictions. convictions, disposition of cases, and the demographics of victims by characteristics, including age, disability, race, and ethnicity.
(2) Information on compliance by local agencies with Sections 368.5, 368.6, 368.8, and 13515, and suggested modifications to those sections and other laws relevant to senior and disability victimization.
(b) (1) On or before July 1 of each year, the Department of Justice shall submit a report to the Legislature analyzing the information collected pursuant to subdivision (a).
(2) A report submitted pursuant to this subdivision shall be submitted in compliance with Section 9795 of the Government Code.

SEC. 4.

 Section 368.10 is added to the Penal Code, to read:

368.10.
 It is the intent of the Legislature that, if the Legislature in any future year concludes that budget constraints make it impossible to fund the provisions of this chapter in that year, that the Legislature amend this chapter to suspend some or all of its operations for no more than two years and not suspend part or all of its operations in the budget act without hearing by the relevant policy committees.

SEC. 4.SEC. 5.

 Section 13515.4 is added to the Penal Code, to read:

13515.4.
 On or before July 1, 2022, and periodically thereafter, the The commission, in consultation with subject matter experts, shall review and, if necessary, update its training materials relating to senior and disability victimization, as defined in Section 368.6, including, but not limited to the requirements of Sections 13515, 13515.25, 13515.27, 13515.28, 13515.29, 13515.295, 13515.30, 13515.35, and 13519.2 and the curriculum of law enforcement academies. The commission shall review the required training materials when any of these sections are substantially amended.

SEC. 5.SEC. 6.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.