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Name: People v. Neasham
Case #: A134873
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 10/08/2013

The evidence was insufficient to prove insurance agent committed theft by larceny where he accepted payment from an elderly woman for an annuity policy that was then issued in her name. Defendant, a licensed insurance agent, sold a 10-year annuity policy to an 83-year-old woman who, according to some witnesses, exhibited signs of dementia. A jury convicted him of elder theft (Pen. Code, § 368, subd. (d)) under a theft by larceny theory. The appellate court reversed. Even assuming the elder was incapable of giving informed consent to the purchase of the annuity, defendant’s acceptance of money for the policy was not trespassory. He transmitted the elder’s check, which was not payable to him, to the insurance company which issued the annuity in the elder’s name; he did not convert the funds to his own use. The fact that transferring funds from a certificate of deposit to the annuity may not have been in the elder’s best interest did not make it a trespassory taking. The annuity was approved by the California Department of Insurance for sale to persons of the elder’s age and treating the sale as a trespassory taking would convert otherwise lawful activity into a crime. Further, the jury was misinstructed regarding the intent required for theft by larceny (CALCRIM No. 1800). As altered, the instruction allowed the jury to convict if it found the defendant intended to deprive the owner of the property permanently or removed (rather than intended to remove) it from the owner’s possession for so extended a period of time that she would be deprived of a major portion of the enjoyment or value of the property. The elimination of the intent requirement in the instruction was prejudicial error under the Chapman standard.