Filed Under:Your Practice, Regulatory

California AG asks for review of Neasham reversal

The California Attorney General office has requested the state’s Supreme Court review the Appellate Court’s decision overturning the conviction of Glenn Neasham on theft from an elder. The petition was filed earlier this month.

In October, the Court of Appeal of the State of California, First Appellate District, Division Three, reversed the verdict handed down in October 2011 in Lake County, Calif. The controversial case revolved around Neasham’s sale of an annuity to then 83-year-old Fran Schuber, who was later found to be suffering from dementia. Neasham has maintained that at the time of the sale, Schuber exhibited no signs of cognitive impairment.

In that brief, jurists wrote that “although there was conflicting evidence as to the elder’s ability to understand the nature of the transaction, there was no evidence that defendant [Neasham] appropriated the elder’s funds to his own use or to the benefit of anyone other than the elder herself, nor was there evidence that the defendant made any misrepresentations or used any artifice in connection with the sale.”

Further, the court ruled that the instructions given to the jury were incorrect in that the panel was told it had only to find “the purchase of the annuity deprived the elder of a major portion of the value or enjoyment of her property, eliminating the necessity of proving that defendant had any such intention.”

In the petition, Deputy Attorney General Hanna Chung asks that the Supreme Court review two points central to the Appellate Court decision to reverse the conviction: what constitutes a “taking” of property and the instructions given to the jury.

On the first point, the AG petition argues that taking someone’s property and then giving them equal value for that property in no way implies it was not an act of theft. “Under the Court of Appeal’s broad holding a person is insulated from theft or theft-based charges (e.g., burglary or robbery) as long as the person gave (or left) property of equivalent value. That decision significantly deviates from California’s law against theft,” wrote Chung.

In regards to instructions given to the jury, the deputy AG pointed to the statement in which jurors were told: “When the defendant took the property he intended to deprive the owner of it permanently or removed it from the owner’s possession for so extended a period of time that the owner would be deprived of a major portion of its value or enjoyment of the property.”

The petition states that the word “removed” should have read “to remove.”

The Appellate Court ruled that 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.”

The AG petition, in essence, argues that the omission was not of that magnitude. The appeal ruling “leaves no place for an assessment of whether the instructions as a whole elsewhere supply what was omitted at that point,” wrote Chung.

Joseph Axelrad, attorney for Neasham, declined to comment on the latest action in the case.

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