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Stop Dangerous Caregivers From Hiding Prior Criminal Abuse

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Why am starting this petition? I'm a California mother whose non-verbal adult child with autism was abused by a dangerous and deceptive nurse. This man now has his criminal record hidden from background checks.  (I'll tell you how that's possible as you read further...)

This nurse was caught on our home video surveillance repeatedly jamming his thumb into my son's eyes--a crime so sickening and bizarre-- it shocks the senses. He was also caught bending my son's arm over the bed board, shoving my son on the bed, yanking my son by the hair and slamming him to floor. My autistic son, who has the mind of a 3 year old, could not fight back.

As a mother, the images of my vulnerable autistic son being abused by this sadistic caregiver haunts me, but it's also made me determined to do everything in my power to ensure legislative changes are made to better protect vulnerable people like my son. 

A jury convicted this sadistic nurse of 3 felonies under California Penal Code 368. Once off probation this nightmare of a man asked to have his criminal record "expunged" or "sealed." One would think this impossible, given the crime, right? Wrong. Not in California. 

Because of a little known law in California, this convicted felon was granted his request to hide his abusive criminal record from employers, and now, he can go work as a regular caregiver. If you watch video I've provided, you can hear the District Attorney plead to the Judge that this abusive man can now go work as a caregiver. 

That means, as per his expunged criminal record, he doesn't have to tell an employer he was convicted of abusing a vulnerable adult. Or that he lost his nursing license. Or that he was previously convicted of animal abuse.

HE WAS ABLE TO DO THIS AS PER California Penal Code 1203.4, which is the little known law that allows criminals to get their criminal records expunged. There are some crimes that can't be expunged. INCREDIBLY, the California criminal code California Penal Code 368, the one for abusing elderly and disabled people, is NOT listed on the list of crimes that can't be expunged. 

Yes, incredibly, punching, kicking, eye poking and otherwise beating up on elderly and adults with special needs under California Penal Code 368 wasn't considered to be among the list of crimes serious enough that can't be "expunged" under Ca Penal Code 1203.4. 

Unfortunately, whatever hopes the authors of Ca Penal Code 1203.4 had, they failed to address the potential consequences of allowing convicted criminals who abuse our most vulnerable citizens, to hide their past crimes. 

This is a dangerous oversight, especially given the massive population of vulnerable adults in California, needing and receiving care and services. As such, thousands of defenseless disabled adults and elderly people remain at risk from dangerous caregivers slipping back into our system, after they get their criminal records of abusing vulnerable adults, expunged. 

A justice system that allows caregivers convicted of abusing disabled persons to hide their criminal past, is an exigent, imminent and chronic threat to public safety.

People that physically harm vulnerable adults are dangerous people. People that prey on 80 year old women or 22 year olds with the mentality of a 2 year old, are predators. Always looking for another opportunity. To hide. To fly under the radar. And we're giving it to them, right here in California. An open door to go abuse defenseless people again and again. 

This type of criminal abuse should never be hidden from employers doing background checks, so that employers can weed out dangerous caregivers who apply to work with children, disabled and elderly. 

According to an April 21, 2011 report prepared for the California Senate Office of Oversight and Outcome, "A significant number of caregivers who get in trouble have prior criminal records...In more than a quarter of the cases found, criminal caregivers had committed earlier crimes, underscoring the value of background checks...In 13 of 17 cases in which the offender had a prior record, the old crimes mirrored the new charges...these caregivers had been caught victimizing the vulnerable, and went on to do it again." 

Failure to include Ca Penal Code 368 among crimes serious enough to be ineligible for expungement under Ca Penal Code 1203.4, directly conflicts with California Welfare and Institutions Code, 4502, which states persons with developmental disabilities shall have a right "to be free from harm, including unnecessary physical restraint, or isolation, excessive medication, abuse, or neglect". 

Failing to include Ca Penal Code 368 among crimes ineligible to be "expunged" under Ca Penal Code 1203.4, also defeats the purpose of AB 1612 and SB 856, which were passed to prevent people who were convicted under Ca Penal Code 368, from working as IHSS workers in California.

Because CA Penal Code 368 isn't listed as a crime that can't be expunged, California's In Home Support Service program (IHSS) can't protect the public from criminals convicted under PC 368, if they have their records "expunged."  

See what IHSS says, "..you MAY be eligible to be enrolled as an IHSS provider if one of the following conditions apply/occur...You have obtained a certificate of rehabilitation or your conviction has been expunged from your record pursuant to PC Section 1203.4."

This is BAD news for California's IHSS system, serving disabled and elderly clients. A major liability. 

How can California "protect" vulnerable adults from harm, if we don't include convictions under Ca Penal Code 368 among LISTED crimes that CAN'T be "expunged" under CA Penal Code 1203.4?  

How can California allow abusive caregivers to work in a state funded social service program serving disabled and elderly? It's simply illogical and dangerous. 

Imagine you need an in-home support respite care worker for your non-verbal teen or adult child with severe autism. Or disabled relative. And that person sent is a person who previously sucker punched, kicked and broke the ribs of an elderly person. But had their record sealed, so nobody knew. 

Imagine you seek a private caregiver for your elderly mother. And, thanks to an "expunged" record of felony abuse, the caregiver doesn't have to tell you they were previously convicted of felony assault (broke her nose) on an 18 year girl with severe autism and the mentality of a 2 year old. 

Imagine a residential group home for autistic adults, licensed by CA Department of Social Services, hires a new caregiver who was convicted of felony neglect 10 years ago, after she left an 82 year old man in the bathtub overnight, because she fell asleep after she got drunk on her shift. But she had her record expunged, so nobody knows she's high risk. 

Dangerous caregivers who get criminal records expunged should be of interest to key California stakeholders involved in providing services to the elderly and disabled. The massive system serving seniors and adults with special needs is a massive, loosely monitored arena. Perfect place for predators who target elderly and special needs adults to hide and cause more harm. 

Key California stakeholders are vulnerable to lawsuits and negative publicity resulting from felons who get felony abuse of elderly and disabled "expunged" and slip back into California's massive system serving disabled. More importantly, is the HEALTH and SAFETY RISK to vulnerable adults. Under Ca. Law, a vulnerable adult includes autistic adults who can't speak. Adults with Down Syndrome. Adults with Cerebral Palsy. Adults in HOSPICE CARE. Elderly with Alzheimer's. Adults with Intellectual Disabilities. Adults who suffered strokes or paralysis and can't talk. Adults who are medically fragile and can't fight back. These adults (18 and up) are the MOST VULNERABLE adults among us.

We have a DUTY, as a society, to amend California Penal Code 1203.4, to prevent people who were convicted of abusing our most vulnerable adults to hide their criminal record. How can California prevent people who have been convicted of abusing elderly and disabled, charged under CA. Penal Code 368, from having their past history of abused expunged? 

California Lawmakers must ADD felony convictions under California Penal Code 368 to the list of crimes that are INELIGIBLE to be expunged under CA. Penal Code 1203.4

The need to amend CA. Penal Code 1203.4, is an urgent matter of public safety. Please see: https://www.trustworthycare.com/home-care-in-san-diego-county-more-california-background-check-issues/

Most crimes against people with disabilities go UNREPORTED. Victims with disabilities frequently rely on others to identify and report suspected abuse or neglect. Incidents of abuse and neglect are often handled as EMPLOYMENT MATTERS rather than CRIMES and not referred to law enforcement. PRO-ACTIVE law enforcement is best done when laws protect public from people who have already been convicted of felony abuse from re-entering the workforce and HIDING their criminal abusive past.

Not currently happening in California! California law allows people who have committed violent acts against elderly and disabled to get their records "expunged" (sealed) and go right back and apply for more caregiver jobs to work with the same population they were convicted of abusing. 

 In summary,

CA. Penal Code 368 needs to be ADDED to list of crimes ineligible for expungement under Ca. Penal Code 1203.4.

 CA PENAL CODE 368: Crimes Against Elders, Dependent Adults, and Persons with Disabilities [368 - 368.5]


(a) The Legislature finds and declares that crimes against elders and dependent adults are deserving of 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.

 

(NOTICE it says special protection, not UNLIKE the special protections provided for minor children. Child abuse is a crime of moral turpitude (People vs Brooks, 1992). Thus, abuse of an adult who has the same protections as a minor, is also a crime of moral turpitude. Criminals don't have the right to hide crimes of moral turpitude. These crimes scream antisocial behavior that harm others. The government's interest in protecting our most vulnerable citizens outweighs an individuals civil liberty to erase their criminal past.

Statistics show these criminals who abuse elderly and disabled, go on to abuse again, if given another chance. In short, their idea of a second chance is to get a second opportunity to go work with vulnerable people again.)

(b) (1) 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 thereon UNJUSTIFIABLE physical pain or mental suffering, 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 in which his or her person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years.

Does this sound like the type of criminal act that should be eligible to be expunged? A person who willfully inflicts pain and suffering onto a defenseless person? No. No. No. 

 People convicted of felony charges of abusing elderly and people with disabilities should be required to divulge this felony charge to prospective employers to prevent them from working with vulnerable, defenseless people again.

Civil rights include ensuring people's physical safety and protection from harm, especially when they can't fight back. By allowing criminals to hide their felony convictions of abusing elderly and disabled, we leave our elderly and disabled citizens in California in a pasture as open prey for abusers.

By signing this petition, you are speaking up for those who can't speak for themselves. Protecting the most vulnerable among us. 

 

 

Please sign and share the petition. 

Thank you!

 

 

 

 



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