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WHAT IS EMBEZZLEMENT?

The California Penal Code breaks crimes into two types: crimes against the person, and crimes against property. Crimes against property encompass the taking of another’s property, and appropriating it, with fraudulent intent. In California, crimes against property include: petty theft, grand theft, burglary, shoplifting, robbery, receiving stolen goods, and embezzlement. The common theme of all crimes against property is the requirement that the Defendant appropriate the property of someone else without their authorization to do so. California Penal Code §503 sets forth the crime of embezzlement.

Embezzlement, as set forth by §503 has a unique twist, it is different from the other property crimes in California. For a conviction of embezzlement to stand, the Prosecution must prove beyond a reasonable doubt, that the moment the Defendant developed the intent to permanently deprive the rightful owner of their property; the Defendant had lawful possession of the property note that the other crimes against property require the Defendant to not have had lawful ownership over the property. Indeed, a common defense to those crimes is that the property actually belonged to the defendant, or the defendant mistakenly believed the property belonged to them. To put it plainly, the crime of embezzlement is an acknowledgement that a crime can still be committed by someone who is authorized by law to possess the property of another.

EXAMPLE:

Thomas works in a fancy law office where each attorney is provided their own personal coffee machine, the machine is owned by the firm itself. Thomas, realizing that nobody else in the office drinks coffee, decided to take the coffee machine home with him for personal use. Nobody gave him permission to do this. Thomas could be charged with embezzlement for taking the coffee machine home with him.
EXAMPLE:

Tom and Brandon used to be colleagues at a major brokerage firm in San Diego. Brandon was always envious of Tom’s watch selection, one watch in particular. Every year, the brokerage firm Tom and Brandon worked at, would hold a team-building getaway. At the getaway, the employees of the company participated in a number of activities, designed to build team unity. One of these activities was capture the flag. Brandon had recently sprained his ankle, and was unable to participate. Tom however, was known far and wide as the best capture the flag guy in the state of California; he wasn’t about to allow anybody to question that. Not wanting to damage his watch, he was the very best for a reason after all, Tom asked Brandon to hold his watch. Brandon seeing his golden opportunity, put the watch in his pocket, sent a letter of resignation to his boss through his phone, and went home with his prize. Brandon could be , and convicted of embezzlement in California.

Embezzlement is different from other types of theft because the moment an intent to permanently deprive the rightful owner of the property is manifested, no matter how brief, the crime of embezzlement is complete (it will be hard to prove, which makes it susceptible to attack from defense attorneys). This is because the property is in your possession lawfully at all times; it becomes unlawful possession the moment intent to permanently deprive is manifested; completing the crime.

If an employee takes money from a register, and buys a new watch, hoping his co-worker on shift with him will be blamed for the disappearance, the employee could still be guilty of embezzlement. This is so, even though you did not intend for the money to never be returned (you intended your co-worker get caught, and be forced to put the proper amount of money back). The act of using money for purposes other than the purpose for which it was entrusted to you for (giving customers change in this case), could lead to a conviction for embezzlement. Courts have held unequivocally that even if the property is completely restored, even if you intend to replace the property later, you are still guilty of this crime. This is because you took and carried away property that you had lawful possession of at the time you did the act.

California law goes further, holding that to uses property that you have been entrusted with in a manner that interferes with the rightful owner’s use and enjoyment of that property could constitute embezzlement. For example a used car sales man might drive the cars on the lot to purchase drugs, and take road trips. This could constitute embezzlement. It should be noted that there is a distinction between a violation of trust, and fraudulent appropriation. The latter of which, constitutes embezzlement.

WHAT IS THE LEGAL DEFINITION OF “EMBEZZLEMENT” IN CALIFORNIA?

California Penal Code §503 defines embezzlement as any fraudulent appropriation of property by a person to whom it has been entrusted.
To be convicted of embezzlement in California, the Prosecution must prove three elements beyond a reasonable doubt:
In order for someone being convicted of embezzlement, under California Penal Code § 503, the prosecution must prove the following requirements in court:

  • You acted with fraudulent intent,
  • When you caused another person’s property to be subject to a conversion; and
  • When you caused the conversion to occur, you were in lawful possession of that property.

Since the Prosecution must prove each element beyond a reasonable doubt, it is important to understand what each element really means. The attorneys at Orange County Criminal Attorney have many years of experience defending clients in all manners of criminal charges, including embezzlement. With their extensive knowledge of the law, our OCCA attorneys are capable of finding the weak points in the Prosecution’s case and attacking that weak point; ultimately forcing the Prosecution to meet their burden of proof. If the Prosecution fails to meet their burden of proof, you should not be convicted of embezzlement. A detail analysis of the elements of embezzlement follows below.

WHAT IS WRONGFUL, OR FRAUDULENT, CONDUCT?

The first element the Prosecution must prove beyond a reasonable doubt is that the Defendant acted with fraudulent intent when they acted. Fraudulent intent occurs when an individual takes advantage of another person, or causes injury to another person, by breaching a duty of trust or confidence. It is necessary to clarify that fraudulent conduct has occurred simply by breaching the trust of the person who gave you possession of the item; it is not necessary that you personally gained any benefit from your conduct. Further, the intent to defraud, or permanently deprive, does not need to last forever, it simply needs to manifest while you are in lawful possession of property, which was entrusted to you by another if you use the property outside the scope of what you were entrusted with it for in the first place.
The Prosecutor must prove that you intended to commit the crime. This can be accomplished through a number of mechanisms; the Defendant’s testimony, a witness’ testimony, the conduct of the Defendant prior to the act, or even the Defendant’s conduct after the act.

WHAT DOE CONVERSION OF ANOTHER PERSON’S PROPERTY MEAN?

The next element the Prosecution must prove beyond a reasonable doubt is that you caused the property to be subject to conversion. Conversion is the taking and carrying away the property of another. In other words, it is the exertion of control over specific property, which you are not authorized to exert control over. Property is any tangible object, belonging to a person.

WHAT DOES IT MEAN TO BE IN A LAWFUL, OR TRUST, RELATIONSHIP?

The last element the Prosecution must prove beyond a reasonable doubt is that the property that was subject to conversion was in the Defendant’s possession prior to the commission of the crime. The relationship between the Defendant and the victim must have been one of trust and confidence; if this fact I not present, you cannot be convicted of embezzlement. A trust relationship extends to fiduciary duty, agents of the Defendant, and corporate / public officers. Typically this relationship is found in an employee/employer setting, but there are other relationships that will satisfy this prong. Examples of other relationships sufficient to satisfy this element are that of bailor/bailee (a valet who is entrusted to park your car, a mechanic who is entrusted to possess your car while he fixes it). Another example is between a trustee/ and trustor (a property management company entrusted to possess your property for the purpose of maintaining it and collecting money from tenants).

WHAT ARE THE PENALTIES IF I AM CONVICTED OF EMBEZZLEMENT?

The punishment for embezzlement will vary based on the value of the item embezzled. If the value of the property subject to embezzlement was over $950, that will be paired with a grand theft charge. If the value of the property subject to embezzlement was less than $950, it will be paired with a charge of petty larceny. The distinction will dictate the punishment.
As mentioned above, depending on the value of the property that was embezzled, the Prosecution has the option of charging you with both embezzlement and grand/petty theft. This can be the difference between a felony charge and a misdemeanor charge.

If you are charged with a misdemeanor, you may face up to one (1) year of incarceration. If however, you are charged with a felony, your penalties become more severe. If convicted of a felony you will face incarceration ranging from sixteen (16) months to three (3) years.

If the value of the property you were convicted of embezzling is less than $950, your punishment could include up to six (6) months of incarceration, a fine of up to one thousand ($1,000), or a combination.

WHAT ARE THE LEGAL DEFENSE MY OCCA ATTORNEY CAN MAKE IF I AM CHARGED WITH EMBEZZLEMENT?

The crime of embezzlement is known as a “wobbler offense” in California. This means that depending on the facts of your case, the Prosecution can choose to charge you with either a misdemeanor or a felony. Regardless of the form of the charge, a conviction will go on your criminal background. Employer’s today usually check the background off all individuals who they are considering hiring. A misdemeanor will look bad on your record, and a felony will look even worse. This is magnified by the fact that the embezzlement crime involves a breach of trust or confidence; precisely what you would have if you worked for them. This may essentially destroy your job prospects going forward. If you are charged with embezzlement, contact an attorney at Orange County Criminal Attorney immediately. The sooner one of our skilled attorneys begins working on your case; the better the outcome can be for you. Our attorneys will fight for a lesser charge, lesser punishment, or dismissal off the case altogether. There are a number of defenses an OCCA attorney can advocate on your behalf. These defenses include: The conversion occurred prior to you having possession off the property.

  • The property actually belonged to you.
  • You did not have the requisite intent; neither fraudulent, nor wrongful
  • The owner gave you permission to use the property in the manner you used it.
  • You were wrongfully accused.

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