Theft Offenses: Larceny, Embezzlement and Theft by False Pretenses

San Francisco Embezzlement & Theft Defense Lawyer

LARCENY

Larceny, also commonly know as theft, embezzlement and false pretenses are often viewed as one unified offense because they all involve taking a victim's property in a criminal manner. Some state statutes consolidate these crimes into one theft offense. This is the case in California where Penal Code section 484 defines theft to include larceny, embezzlement and false pretenses. Under this approach the prosecution has to prove that the defendant has committed one of the crimes listed in the theft statute and anyone who does so is convicted of theft.

In criminal law, larceny, embezzlement and false pretenses can be prosecuted as either a misdemeanor or felony - depending on the value of the property. When the value of the property stolen is below $400, the theft is classified as a misdemeanor. When the value of the property exceeds $400, it can be classified as either a felony or a misdemeanor. A theft of property which has a value of more than $400 is commonly known as Grand Theft (Penal Code section 487). A theft of property which has a value under $400 is commonly known as Petty Theft (Penal Code section 484/Penal Code section 488).

Theft is the wrongful taking and carrying away of the personal property of another person with the intent to permanently deprive that person of their property. A person has possession of property when he has sufficient control over it to use it in a reasonably unrestricted manner. It is not necessary to remove the property any great distance. Someone who shoplifts and takes the stolen items only a small distance is still guilty of larceny.

Larceny (theft) is a specific intent crime. To be guilty of larceny, it is necessary to have the specific intent to permanently deprive the other person of their property. Depriving someone of their property permanently means depriving them of their property for the property's useful life. Taking someone's Sunday game baseball tickets is theft even if the tickets are returned on Monday as the tickets only have a useful life until the time of the game. Several states also have laws that make it a crime to temporarily take personal property. In California Penal Code section 499b and Vehicle Code section 10851 makes joyriding or the temporary taking of a vehicle a crime. Larceny can involve removing a shopping or laundry cart with a permanently affixed sign indicating that removal from the premises or parking area without permission is prohibited.

Traditionally, the common law definition of larceny was limited to tangible objects. The use of personal property like computer time was not considered property. But California and some other states have enacted laws that defines computer services as personal property. Larceny can also involve the theft of electricity, gas, water and power which are valuable articles of merchandise to be bought or sold. Someone who tampers with a meter and diverts electricity can be prosecuted for both larceny and theft of services. And, starting in 1982, stealing a dog or cat in California became larceny.

In the information age, trade secrets are also property and several states and the federal government have enacted laws making the theft of trade secrets a crime. This could intimidate employees from moving to another company in the same industry. When Jose Ignatiu Lopez left an executive position at GM to go to work at Volkswagen, he was accused of passing trade secrets to Volkswagen and criminal charges were filed. These charges were eventually dismissed when he paid a fine.

Claim of right defense
A person is not guilty of theft if he takes property belonging to another person if he believes that he has the right to possess that property. A landlord who impounds his tenant's property because he reasonably believes that rent has not been paid and the lease allows him to do so is not guilty of theft. A person can even use force to recover property if he has the right to possess that property.

Lost or misplaced property
Someone who finds lost or misplaced property and keeps that property may or may not be guilty of larceny. If the finder has a reasonably clue as to the ownership of the property, that is he or she knows to whom the property belongs or has reasonable grounds to believe the owner can be found, the owner retains constructive possession of his or her property. For example, someone who finds a diamond ring in a grocery store and holds on to it with the intent to find the owner is not guilty of theft. However, if that ring is taken with the intent to steal it that person is guilty of larceny. If there's no reasonable clue as to the ownership of the lost property, the finder can use the property as he sees fit. Someone who finds a dollar bill on the street with nobody else in sight would have no reasonable clue as to the ownership of the bill. Thus, picking up the bill and using it would not be theft.

Embezzlement
The crime of embezzlement is defined as the fraudulent appropriation of property of another by someone who has been entrusted with its possession. Unlike theft where the property is taken unlawfully, in embezzlement the property comes lawfully into the possession of the embezzler who then fraudulently or unlawfully appropriates it. The key aspect of embezzlement is the fiduciary relationship that exists between the embezzler and the victim of the embezzlement as embezzlement requires that the property be appropriated by a person who was entrusted with its possession. A senior executive who uses company funds to pay for his personal yacht is guilty of embezzlement even if he intended to return the funds or had the means to do so. To be found guilty of embezzlement, there must be proof that the defendant knew the property was not his or her own. The classic example of embezzlement occurs when an employee diverts or takes the proceeds from his employer. For instance, when a cashier steals money form the till of his employer, the employee has committed embezzlement.

False pretenses
False pretenses involves obtaining property through fraud and lies (see Penal Code section 484). In most jurisdictions, the crime involves a misrepresentation of a present or past material fact with the intent to defraud the victim and where the victim relies on the misrepresentation and transfers title to some property. For example, a former county official who promises to provide certain services for a client charged with drunk driving provided the client paid him $10,000 is guilty of false pretenses when he falsely pretended to be able to aid the client in avoiding prosecution and fines for driving drunk.

A statement of opinion generally does not involve false pretenses. But expert opinions can result in a conviction for false pretenses. For instance, when a stock broker misrepresents the value of certain assets to get a windfall in a stock transaction, he or she is guilty of false pretenses. The fact that has been misrepresented must be material (concerning a matter of relevance and importance), and the victim has to rely on the misrepresentation. The victim's reliance does not need to be reasonable but a jury can consider the absurdity of the misrepresentation in deciding whether the victim was deceived.

No intent to defraud
False pretenses requires proof that the defendant intended to use the falsehood to deprive the victim of their property. There is no intent to defraud if the defendant intends to return the property within a reasonable time period. False pretenses requires an affirmative act. Staying silent is not enough to support a conviction, unless there is a fiduciary relationship and an affirmative duty to disclose that information exists. A person is not guilty of false pretenses if he or she has a claim of right to the property.

False pretenses can also involve obtaining property by writing a bad check, though many states have adopted separate laws for this crime (California Penal Code section 476a). Most of these statutes require only knowledge of insufficient funds, though some require an actual intent to defraud. Parents who falsify their children's addresses to obtain access to better public schools have been prosecuted for the crime of false pretenses. False pretenses can also involve misrepresenting a material fact to obtain access to schooling. Yale University brought theft charges against a transfer student who fabricated his transcript and other supporting documents to gain admission to the university. The main difference between false pretenses and larceny is that a thief who secures title is guilty of false pretenses while someone who secures possession through fraud is guilty of larceny by trick. Someone who is allowed to take a car from a dealer's lot over the weekend and promises to return the car on Monday or pay the full price, then fails to return with the car is guilty of larceny by trick.

Contact Seth B. Chazin for vigorous criminal defense representation in Oakland, or anywhere in the San Francisco Bay area. Free initial consultation.

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Seth P. Chazin is a San Francisco Bay Area Criminal Defense Lawyer with over 25 years experience.

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