Penal Code Sections 368(d) and (e) (PC 368(d)-(e).) state that anyone who steals, embezzles, defrauds or forges documents pertaining to an elderly or dependent adult, or who commits an act of identity theft against that person, who knows or reasonably should know that person is elderly or dependent, is guilty of a crime. You risk jail or prison time and hefty fines if you are convicted of a violation of PC 368(d)-(e).
However, our attorneys at Wallin & Klarich want you to understand that the prosecution must prove every element of a crime in order to convict you. In the following case, the defendant had his conviction for violating PC 368(d) reversed because he was able to demonstrate on appeal that the element of intent was not firmly established during his trial.
People v. Neasham, A134873 (Cal. Ct. App. 2013)
The Defendant in this case is a licensed insurance agent. Glenn Andrew Neasham was convicted by a jury for committing theft from an elder and dependent adult by selling her an annuity policy which the prosecutor argued “was an unsuitable product for her age.”
While it was questionable as to whether the elderly woman in this case understood what she was buying, there was no evidence that the defendant took her money for his own personal use or to benefit anyone other than the woman herself. Additionally, there was no evidence that the defendant made any false statements or committed fraud in connection with the sale.
The Element of Intent was Not Proven
Moreover, the jury was not properly instructed on the need to establish the element of intent in order to convict the defendant. Therefore, the Court reversed his conviction.
The Court reasoned: “The omission of an essential element of an offense from the court’s instructions is an error of constitutional significance since the defendant is entitled to a jury’s finding that all elements have been proved beyond a reasonable doubt…. Moreover, had the jury been properly instructed, the outcome likely would have been different. The jury apparently was convinced that, at her age, it was not in [the victim’s] best interest to purchase an annuity that limited her access to more than 10 percent of the principal for five years. But there is no reason to believe that defendant did not in good faith believe otherwise and had no intention of depriving [the victim] of anything, much less of a portion of the major value of her funds.”
What is the Sentencing and Punishment for Violating PC 368(d)-(e)?
Penal Code Sections 368(d)-(e), defrauding an elderly or dependent adult, are “wobbler” offenses in California – meaning these crimes can be charged as either misdemeanors or felony offenses depending on the amount of money or property taken, stolen, embezzled, or otherwise fraudulently obtained. These crimes apply to either non-caretakers or caretakers of the elderly or dependent adult.
What is the Punishment if I am Convicted for Defrauding an Elderly Person? (PC 368(d)-(e))
If the threshold amount of money, goods, labor, services or real or personal property in question exceeds $950 and you are convicted of a misdemeanor violation of PC 368(d)(1) or (e)(1), you face up to one year in jail, a fine of up to $2500, or both. If you are convicted of a felony violation of these crimes, you can be sentenced to serve up to four years in prison, a maximum fine of $10,000, or by both fine and imprisonment. $950 or less in value is charged as a misdemeanor, carrying up to one year in jail, a fine of not more than $1,000, or both (PC 368(d)(2) or (e)(2).)
If you are sentenced to probation, the court can order that you participate in counseling as a condition of your probation (PC 368(k).)
Contact a Skilled Elderly Fraud Attorney at Wallin & Klarich
If you or someone you know has been accused of defrauding an elderly or dependent adult, you need to contact our attorneys at Wallin & Klarich today. Hiring an experienced fraud crimes defense attorney from Wallin & Klarich could mean the difference between your conviction and your acquittal at trial.
With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, our attorneys at Wallin & Klarich have over 30 years of experience defending our clients charged with committing fraud. If every element of a crime cannot be proven beyond reasonable doubt, you cannot be convicted. We will employ every strategy available to help you win your case.
Call us today at (888) 280-6839 for a free telephone consultation. We will get through this together.