The word Crime of California embezzlement can conjure up all kinds of images for many people. For a lot of us, when we hear embezzlement, we often think of someone like Augusto Pinochet (the former authoritarian dictator of Chile) or Bernie Madoff (the disgraced former investment adviser). In other words, embezzlement makes us think of an individual entrusted with large sums of money and trust who then absconds with the funds for their own personal gain. While this is certainly a type of crime of California embezzlement, it does not represent the full reality of the crime of California embezzlement.
California Embezzlement is a type of theft, which, at its core, is the unlawful taking of someone else’s property. To elaborate on this further, let us look at the specific penal code attached to the crime of California embezzlement.
Penal Code § 503 defines crime of California embezzlement as:
“the fraudulent appropriation of property by a person to whom it has been entrusted [sic].”
This penal code was enacted in 1872, as is indicated by its antiquated language and spelling. As the penal code does not provide much in the way of explaining or elaborating on this crime of California embezzlement, it is a good idea to look at the California Criminal Jury Instructions to see just what elements of the crime of California embezzlement are necessary to be present in order to be convicted of embezzlement.
Looking to the California Criminal Jury Instructions for guidance, there are four basic elements of California embezzlement that must be met in order for a court to find an individual guilty of such a charge.
The first element that must be proven by the prosecution is that some sort of owner (or an agent acting on behalf of the owner) entrusted their property to the accused individual. The second element that must be proven is that the owner (or owner’s agent) entrusted said property to the individual because they trusted the individual. As can be seen by the repetition in these first two elements, trust is a key component of the crime of embezzlement in California. An individual can only rightly be convicted of this crime of California embezzlement if they betrayed some trust that was put in them by the original owner of the property. Trust can be established in a number of different ways, but often arises in employer/employee relationships, fiduciary relationships, or relationships established over some sort of bailment. The fiduciary relationship would be one involving an officer of a corporation (like as company’s Chief Financial Officer, for example) or a corporation’s board member entrusted with overseeing some property of value. As for what is meant by “bailment”, these are scenarios involving the temporary delivery of some sort of good for a particular purpose without transferring ownership. An example of such a scenario would be entrusting your car to a valet or parking attendant (such as in the memorable scene in Ferris Bueller’s Day Off where the parking attendant’s take Cameron’s dad’s car for as joy ride). In this situation, a bailment is created, and also a relationship of trust.
The third element that must be established is that the accused individual fraudulently converted or used in some way said property for their own benefit. To define some of the terms used here for a fuller understanding of the crime of California embezzlement, let us first turn to the word fraudulently. As defined in the Jury Instructions, an individual can be said to be acting fraudulently when said individual “…takes undue advantage of another person or causes a loss to that person by breaching a duty, trust or confidence.” Looking to the rest of the language of the third element, a key component is that the property must have been used to benefit the individual who fraudulently took possession of it. In other words, to be guilty of the crime of California embezzlement, the accused individual must have benefited personally in some way from the possessing of the property. Simply causing a loss to the original owner without a personal benefit does not satisfy this element.
The fourth and final element that must be demonstrated by the prosecution is that when the individual converted or used the ill-gotten property, they had the full intention of depriving the owner of its use. This element, as seen in the majority of crimes, goes to the idea of mental state. The requisite mens rea in Latin is crucial in proving intention or the knowledge of the wrongdoing. Without the requisite intention, an individual cannot be said to be guilty of embezzlement in California.
As a type of theft, the crime of California embezzlement is what is known as a wobbler offense in California, meaning that it can be prosecuted as either a felony or a misdemeanor depending on the specifics. Some factors that go into considering whether to prosecute a crime of California embezzlement as a felony or a misdemeanor are the specific fact pattern and circumstances of the case and the individual’s previous criminal history.
Also, since California embezzlement is a type of theft, the same basic ground rules apply to California embezzlement as to theft generally. This means that it can be categorized as either grand theft or petty theft. The delineation here depends on the dollar value of the property in question. Anything over $950 is considered grand theft in California, while anything at or under this amount is considered petty theft. Prior to Proposition 47’s passage in 2014, any theft of a firearm or vehicle was considered grand theft. However, in this post-Prop 47 world, the dollar amount rules the day in all scenarios. Regardless of the property, if it is under $950 dollars, it is considered petty theft, and if it is over it is grand theft.
As for the penalties involved in grand theft and petty theft, this is dependent on whether or not it is treated as a felony or a misdemeanor.
For a misdemeanor grand theft California embezzlement charge, an individual will face:
If the grand theft embezzlement is considered a felony, then this penalty is:
The potential penalties do not stop there, however. There are additional sentences that can be tacked on for embezzlements of large amounts:
As for any embezzlement that is considered petty theft, or not rising to a value of $950 or more, the penalties faced are less severe. Petty theft is always considered a misdemeanor in California and carries with it:
In addition to these penalties, other factors can be taken into account by the judge when sentencing an individual accused of embezzlement. According to California Penal Code § 515, “Upon conviction of a felony violation under this chapter, the fact that the victim was an elder or dependent person, as defined in Section 288 , shall be considered a circumstance in aggravation when imposing a term under subdivision (b) of Section 1170.” This “circumstance in aggravation” means that the judge can issue a harsher sentence if the victim of the embezzlement was a protected class of person, such as an elderly or mentally or physically dependent person.
Given the added depravity of such a crime of California embezzlement, the judge can use their discretion to issue a stiffer penalty. Similarly, mitigating factors can also be considered by the judge when looking at sentencing. As noted in California Penal Code § 515, “Whenever, prior to an information laid before a magistrate, or an indictment found by a grand jury, charging the commission of embezzlement, the person accused voluntarily and actually restores or tenders restoration of the property alleged to have been embezzled, or any part thereof, such fact is not a ground of defense, but it authorizes the court to mitigate punishment, in its discretion.” Essentially what this is saying is that if an individual, after embezzling property, has a change of heart and decides to return the property to the rightful owner, then this will be looked favorably upon by the courts. However, this is only the case if the return was done before the individual was charged. Once charges are brought, no mitigation through return will be factored in. (Sorry fans of Better Call Saul).
The major defenses available to a charge of embezzlement involve attacking the elements laid out above. However, there is an additional defense offered in California Penal Code §511, which states, in part, “Upon any indictment for embezzlement, it is a sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred in good faith, even though such claim is untenable.” What this means is that if the property was taken out in the open, in good faith that it belonged to the individual doing the taking, even if they are mistaken, this is a full defense to the charge of embezzlement and the requisite elements of the crime of California embezzlement. This lack of concealment and honest belief offers a full defense to the crime of embezzlement. A caveat to this though is given in the second sentence of California Penal Code §511, which says, “But this provision does not excuse the unlawful retention of the property of another to offset or pay demands held against him.” So, if the property was taken without any concealment, but, it was done so for purposes of collecting on a debt owed by the owner, then this is not a defense.
The second major defense to a charge of embezzlement focuses on the element of intent. As noted above, mens rea is critically important to the establishment of many crimes, including the crime of California embezzlement. If the accused individual lacked the necessary intent to deprive the owner of their property, then this is an effective defense to the accusations. Because embezzlement is often a “white collar” crime of California embezzlement, and often involves passive, paper heavy methods of acquiring the property, the unraveling of the true intention of the act can be quite convoluted and therefore, difficult to prove. If doubt can be cast on the accused individual’s motives and intentions through financial paperwork, then the individual will be acquitted.
However, even though a lack of intent is an effective defense, and proving intent is hard to do, defending against an accusation of intent can also be a difficult process that most likely necessitates the services of a skilled criminal defense attorney.
If you or a loved one is being charged with PC 503 Embezzlement, we invite you to contact us immediately for a free case review. Schedule an appointment to meet with us in person, or feel free to submit an evaluation online and we will get in contact with you ASAP. We can provide a free consultation in our office located in Century City, or by phone. Our experienced and assiduous Criminal Defense Attorneys will be sure to fight until the end to reduce or drop your charges completely.
Call LAW MART for a FREE Case Review: 310-894-6440
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