Theft by Embezzlement

The criminal offense of “embezzlement” is defined in California law as the “fraudulent appropriation of property by a person to whom it has been entrusted.” Many of these cases involve an employee taking money from an employer. It can also involve one partner in a company taking property illegally from another partner.

Other theories of theft can include:

If multiple theories of theft have been presented at trial, the jury does not need to agree on which form of theft was committed. All the jury must agree on is that an unlawful taking of property occurred. See People v. Counts, 31 Cal.App.4th 785, 792–793 (1995).

Embezzlement was historically prosecuted under a separate statute, Section 503, although now it is included within the general theft statute. Embezzlement can include misappropriation by public officers and defalcation of public funds. Where the embezzlement involves government funds, the punishment is harsher (otherwise, the punishment is the same as theft, according to § 514).

Section 503 predates the 1927 amendments to consolidate theft offenses under one umbrella called theft. Therefore, under the current statutory scheme, embezzlement is merely one way of committing the single offense of theft.

Attorney for Theft by Embezzlement in San Francisco, CA

If you were arrested for any type of theft, larceny, embezzlement or extortion in San Francisco or the surrounding areas, then contact an experienced criminal defense attorney at Ticket Crushers. We are experienced in representing clients charged with theft by embezzlement under Penal Code §§ 503 or 484, and the related offense of petty theft under Penal Code § 486, or attempted theft under Penal Code §§ 664 or 484.

If you are under suspicion for embezzlement, then contact an experienced theft attorney in San Francisco, CA, at Ticket Crushers by calling 1 (866) 842-5384 today.

Statutory History of Theft Offenses in California

The statutory history of theft crimes in California demonstrates that the different theft offenses have been merged into a single offense. The historical underpinnings of the various types of theft crimes, including embezzlement, were described in People v. Williams, 57 Cal.4th 776 (2013), as follows:

“Britain’s 18th-century division of theft into the three separate crimes of larceny, false pretenses, and embezzlement made its way into the early criminal laws of the American states. That import has been widely criticized in this nation’s legal community because of the seemingly arbitrary distinctions between the three offenses and the burden these distinctions have posed for prosecutors. …

“For instance, it was difficult at times to determine whether a defendant had acquired title to the property or merely possession, a distinction separating theft by false pretenses from larceny by trick. … It was similarly difficult at times to determine whether a defendant, clearly guilty of some theft offense, had committed embezzlement or larceny. …

“In the early 20th century, many state legislatures, recognizing the burdens imposed on prosecutors by the separation of the three crimes of larceny, false pretenses, and embezzlement, consolidated those offenses into a single crime, usually called ‘theft.’ … The California Legislature did so in 1927, by statutory amendment. …

“In a 1954 decision, this court explained: ‘The purpose of the consolidation was to remove the technicalities that existed in the pleading and proof of these crimes at common law. Indictments and information charging the crime of ‘theft’ can now simply allege an ‘unlawful taking.’ … Juries need no longer be concerned with the technical differences between the several types of theft, and can return a general verdict of guilty if they find that an ‘unlawful taking’ has been proved.”

(See Williams, supra, 57 Cal.4th at pp. 785-786.)

Section 484, Subdivision (a) of the California Penal Code currently states: “Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another [i.e., larceny], or who shall fraudulently appropriate property which has been entrusted to him or her [i.e., embezzlement], or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property [i.e. false pretenses], is guilty of theft.”

In order to make it even more clear that all theft crimes were brought together under one umbrella of theft, the California Legislature enacted § 490(a) in 1927. Section 490(a) provides, “Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word ‘theft’ were substituted therefor [sic].”

“When the formerly distinct offenses of larceny, embezzlement, and obtaining property by false pretenses were consolidated in 1927 into the single crime of ‘theft ’ defined by … Section 484, most of the procedural distinctions between those offenses were abolished. But their substantive distinctions were not: ‘The elements of the several types of theft included within Section 484 have not been changed, however, and a judgment of conviction of theft, based on a general verdict of guilty, can be sustained only if the evidence discloses the elements of one of the consolidated offenses.’ ” (People v. Davis (1998) 19 Cal.4th 301, 304–305 (1998)).

Section 484 defines “tak[ing] away the personal property of another” (i.e., larceny) and “fraudulently appropriat[ing] property which has been entrusted” (i.e., embezzlement) as “theft.” Section 490(a) eliminates any remaining uncertainty by literally excising the words “larceny” and “embezzlement” from the legislative dictionary:

“Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word ‘theft’ were substituted therefor [sic].” (Ibid.) Taken at face value, these legislative amendments plainly eliminated the distinctions between the various theft offenses. This interpretation is not only the plain reading but is consistent with the contemporaneous criticisms of the concept of having three separate offenses, all of which seek to punish unlawful takings of money or personal property. (See Williams, 57 Cal.4th at pp. 784–785).

Elements of Embezzlement in California

Under Penal Code §503, the crime of theft by embezzlement required proof beyond all reasonable doubt of the following elements:

  • An owner entrusted his or her property to the defendant
  • The owner did so because he or she trusted the defendant
  • The defendant fraudulently either converted or used that property for his or her own benefit, and
  • When the defendant converted or used the property, he or she intended to deprive the owner of its use

The jury instructions for Theft by Embezzlement under Penal Code §§ 484 and 503 can be found in Judicial Council of California Criminal Jury Instruction 1806.

Defenses to Embezzlement in California

The most common defense in an embezzlement case is that the person who is accused of embezzlement or theft had a good faith belief that he or she was acting with authorization to use the property. The intent to return the property at the time of the taking is not necessarily a defense to embezzlement under Penal Code § 512 unless the property was returned before the person was charged.

Under the alter ego defense to embezzlement, a partner can be guilty of embezzling from his own partnership. Although the law generally requires that the property be “of another” for larceny, it does not require that the property be “of another” for embezzlement.

Therefore, a partner can be charged with embezzlement for stealing from his partners even though he has an undivided interest in the partnership property. The courts have reasoned that stealing some portion of the partners’ shares which does not belong to the thief is no different from stealing the property of any other person.

Under California law, a person acts fraudulently when he or she takes undue advantage of another person or causes a loss to that person by breaching a duty, trust or confidence. An intent to deprive the owner of property, even temporarily, is enough. The fact that the defendant ultimately had the intent to restore the property to its owner is not necessarily a defense.

It is a defense to theft by embezzlement, however, if the defendant has a good faith belief that he or she is acting with authorization to use the property.

The standard jury instructions for this charge provide that in deciding whether the defendant believed that he or she had a right to the property and whether he or she held that belief in good faith, the court will consider all the facts known to the defendant at the time he or she obtained the property, along with all the other evidence in the case.

The defendant may hold a belief in good faith even if the belief is mistaken or unreasonable. But if the defendant was aware of facts that made that belief completely unreasonable, the court may decide that the belief was not held in good faith.

Additional Resources

California Penal Code Section 503 — Embezzlement — Visit the website for the California Legislature to find the statutory language included in Penal Code Section 503-515 for embezzlement. Find the penalties for embezzlement, which are the same as for theft of property of the kind and value embezzled. Learn more about circumstances of aggravation when imposing punishment for a conviction for a felony violation under this chapter when the victim was an elder or dependent person.

Finding an Attorney in San Francisco for Embezzlement

If you were charged with embezzlement under California’s Penal Code Section 503, then contact an experienced criminal defense attorney at Ticket Crushers. We represent clients on a wide range of grand theft and larceny charges including embezzlement. We also represent public officers charged with misappropriation or defalcation of public funds.

Call Ticket Crushers today at 1 (866) 842-5384 to discuss the facts of your case.