Under California rules, there are different types of crimes against property, in which includes the conduct of taking and appropriating someone’s property with fraudulent intent. The crimes codified in California are petty and grand theft, embezzlement, burglary, shoplifting, robbery and receiving stolen property, these are called theft in California. All these crimes required the defendant to act with intent to commit the crime and the similarity of this crimes is the misappropriation element of someone’s property without authorization.
However, the crime of embezzlement is slide different than the others theft. Usually, for someone to be convicted of embezzlement, in the moment that the defendant had intention to take the property permanently from the owner, the defendant had to have lawful possession of the property. Therefore, in the moment that someone committed the crime, she/he must have possession of the property of another. In other words, to constitute this crime, the owner of the property had to leave the personal property with the defendant and after have possession of the property, the defendant takes and carries the property away with intention to permanently deprive the property from the owner.
Example: Anne is a director of a huge corporation and she has the access to all of the corporations buildings. One day she decided to bring home the small fridge that she had in her office. In this scenario, Anne could be convicted of embezzlement, since she had possession of the property and carried the fridge home.
Example 1: Peter and Chris used to work together at the same company. Peter always admired Chris’s watch. In the end of the year, the company organized an event for the employees. During the event, Chris wanted to play football with his peers, he left his watch with Peter and asked him to take care of it. However, since Peter loved Chris’s watch, he decided to take and carry the watch home.
In this case, Peter could be convicted of embezzlement in California.
Unlike the others types of theft, in which acquires intention of the defendant to permanently deprive the owner of possession of the property, intent to deprive the owner of possession temporarily is sufficient to constitute the crime of embezzlement.
For instance, if you take money from your employer's safe boxe, hoping that a coworker would be held responsible for the money disappearance, you could be liable for embezzlement, even though you did not have an intention to take the money away with you. The conduct of using the money for other purposes than that for which it was entrusted the employee, it could lead someone of a conviction. Furthermore, Courts have decided that the actually restore the property does not constitute defense, even if you have intention to restore the money back, you could be liable of this crime anyway, since the conduct that constitute this crime is taking and carrying a property that you had possess.
In California, the uses of entrusted property in way that could interferes with owner’s enjoyment or use of property, could be an embezzlement crime. For instance, a car salesman that drove the buyer’s trade in the company vehicle to different places over several days to buy drugs with cash portion of down payment was convicted of embezzlement. However, there is a difference between a mere violation of a trust and the fraudulent appropriation which will constitute embezzlement in California.
Legal Definition of California Embezzlement
In the California Penal Code, embezzlement is any fraudulent appropriation of property by a person to whom it has been intrusted.
In order for someone being convicted of embezzlement, under California Penal Code § 503 , the prosecution must prove the following requirements in court:
- The defendant acted with fraudulent intent.
- Conversion property of another.
- By one in lawful possession/ trust relationship.
1 People v. Casas (2010) 184 C.A.4th 1242, 1247, 109 C.R.3d 811
For a better understanding, it will be explained all the requirements for this type of charge.
Wrongfully or fraudulent conduct
Fraudulent intent is an essential element for this crime. A person acts with fraudulent intent when he or she takes undue advantage of another person or causes injury to another by breaching a duty, trust or confidence. It is important to explain that it is fraudulent conduct just if someone breaches the trust of the employer, even if you did not benefit from the conduct, you still could be guilty of embezzlement. Furthermore, the intention to defraud does not need to be permanently, for instance, an employee who deprives his employer of property, even temporarily, and uses it for a purpose outside the scope of the trust, even though temporarily, it is going to be criminally liable. 2
The prosecution needs to show and prove the intention of committing the crime. The defendant has the right to testify directly to his innocent intent. However, there are some circumstances that could inferred and show the defendant's intent, for instance the defendant appropriated money paid for corporate stock to personal use.
Example: Art was sitting for the bar exam, however, he did not realize that he was not suppose to bring his phone into the exam, since he did not have an option, he gave his phone for one of the proctors. After the exam, the proctor left the exam location with Art’s phone and did not give it back.
Conversion property of another
2 People v. McClain (1956) 140 Cal.App.2d 899, 900, 295 P.2d
3 See People v. Fewkes (1931) 214 C. 142, 148, 4 P.2d 538
Another element that prosecution must prove to the jury, is whether there was a conversion of the property. Conversion is the most important element that need to be satisfied in order for someone be charged of embezzlement. In other words, conversion is the taking and carrying away of a property of another, it is an exertion of unauthorized control over of the property. And the defendant must have taken and carried away a property. Property could be any type of valuable tangible object of another person, as telephone, wallet, car, corporate funds, money or stocks.
By one in lawful possession / trust relationship
Finally, the prosecution must show that the property that was taken was with the defendant's possession prior to the crime. The relationship of trust and confidence is brutal and important to constitute the crime of embezzlement. The trust relationship extends to fiduciaries duty, as agents and corporate and public officers. Usually the relationship is in between the employer and employee, the bailee and bailor ( the valet and the mechanic with temporary possession of an automobile), or between a trustor and trustee, a person that have the right to manage the company's property and money.
Example: Steven is an officer manager for a company, he is in charge of making all the payment of the company. One day, Steven needed money to pay his monthly mortgage and he tooked 3 thousand dollars in cash from the company's bank account to use for his own benefit.
In this case, Steven could be convicted of embezzlement.
In California, the offense of embezzlement can be punishable with grand theft or petty theft, the penalty is going to variate depending on the value of the property that was taken by the defendant. Therefore, the defendant could face a grand or petty theft punishment.
The offense of grand theft can be charged as either misdemeanor or a felony, that is called wobbler in California, the prosecution has an option to charge the defendant with both crimes for the same conduct, depending of the facts and the circumstances of the case. Misdemeanor in California is punishable by imprisonment in a county jail for not more than 1 year or by imprisonment.
However, if someone was charged with a felony, the penalties could be aggravated. Thus, a felony is punishable by imprisonment in county jail not from sixteen (16) months to three (3) years, or felony probation with up to one year of county jail time.
On the other hand, when the property taken is valued less than nine hundred fifty dollars ($950) the punishment could consist in a misdemeanor probation, or an imprisonment in a county jail up to six (6) months, or a fine up to one thousand dollars ($1,000), or both imprisonment and fine.
An embezzlement as mentioned already could be a wobbler in California, if a person is convicted with this type of crime, the crime is going to be on the person's criminal records. If you are looking for a job and the employer does a criminal background check and there a felony or misdemeanor register, it is likely that the employer won't hire someone with a misdemeanor background. If you have been charged with assault on public official, you should promptly look for a Lawyer. San Diego Criminal Attorney has a great deal of success defending our clients and we can help you build legal defenses that it could be use to contest these types of charges. If you would like more information, please contact our successful staff to help you with your legal problems.
To contest the charges, San Diego Criminal Attorney would be able to use the following legal defenses, if that is the scenario:
- You did not have possession of the property prior of the conversion.
- The property belonged to you.
- There was no fraudulent or wrongfully intention.
- The owner of the property consent you to take it
- You were wrongfully accused.