California Elder Financial Abuse

In People v.Schoenbachler (2012) 203 Cal.App.4th 1382 [138 Cal.Rptr.3d 314], the court found the felony financial abuse of an elder by embezzling funds from an annuity had a separate intent and objective from a grand theft involving the sale of jewelry and separate convictions were supported. The Bailey doctrine (People v.Bailey (1961) 55 Cal.2d 514) prevents a defendant from being convicted of more than one theft when the takings were from a single victim with one intention. Darren Chaker notes the court did not compel limiting the conviction to a single count in this case.

Defendant was given fiduciary control of her grandmother's finances. When the grandmother returned from a two-month stay at a treatment facility, she found that defendant had sold her jewelry and furniture worth $200,000 to $250,000 without any authorization. Defendant later placed her grandmother in a filthy, mice-ridden home with residents suffering Alzheimer's disease. She told her grandmother that the only way to finance different housing would be for her to authorize the liquidation of an annuity. However, the funds from the annuity were spent for other purposes without the grandmother's authorization. The separate convictions were sustained.

© 2011 Darren Chaker. All Rights Reserved.

PC1118.1 Motion by Darren Chaker

In California, a motion to dismiss should under Penal Code section 1118.1, a defense motion for acquittal must be granted if the prosecution has failed to present a prima facie case during its case-in-chief. DarrenChaker finds in this case the Appellant was charged with and convicted of three counts of Penal Code section 422 and three counts of section 136.1, subd. (b) (dissuading a witness), for the benefit of a criminal street gang (Pen. Code, sec. 186.22, subds. (b)(1), (b) (4)), and sentenced to life terms. At trial, a police officer testified that he interviewed the victim on March 3, and that she was very upset. During the interview, the victim received a telephone call which the officer heard over a speaker phone. The caller, subsequently identified as appellant, told her nothing would happen to her if she dropped charges against his "homie."

The victim failed to appear for trial during the prosecution's case-in-chief. Upon completion of the defense case, appellant made a motion for acquittal of four of the six counts, which the court denied. The prosecution was subsequently able to locate the victim and she testified during rebuttal, providing the necessary evidence for conviction as to the four counts. The appellate court reversed as to the four counts because at the time of defendant's motion for acquittal there was insufficient evidence before the jury to support the convictions. The court also ruled that section 136.1, subd. (b) applies to more than pre-arrest efforts to dissuade a witness, and includes action to prevent a victim from causing a complaint or information to be prosecuted.

© 2011 Darren Chaker. All Rights Reserved.