Embezzlement

Embezzlement is a much more complicated issue than many people realize. It isn't just a high figure white collar crime. People can be charged with embezzlement over smaller amounts of property, or money. Under California law Penal Code 503 , embezzlement is defined as the ‘fraudulent appropriation of property by a person to whom it has been entrusted.' This definition means that the prosecutor needs to prove several facts in order for the defendant to be found guilty.

  1. The prosecutor must prove that there was a relationship of trust between the owner and the defendant.

This could mean that the defendant is the owner's employee. It could also mean that the defendant is the owner's bailee, which is someone who is given temporary possession of the property. It could mean that the defendant is a board member, a trustee, or a principal of a company, which would give them the right to manage the finances and property belonging to the company.

  1. The prosecutor must prove that the property was fraudulently taken for the defendant's benefit. This means that the defendant has caused the owner loss of the property, taken advantage, and broken the owner's trust.
  1. The prosecutor must prove that the defendant intended to deprive the owner of use of the property. This could be intent to permanently deprive the owners, or even temporarily deprive the owners of the use of the property.

Grand Theft Embezzlement

If the money or property has a value of more than $950, then it is classified as Grand Theft Embezzlement. If the property is an auto vehicle, then the charge is a form of Grand Theft Auto. If the property is a firearm, then the charge is Grand Theft Firearm. If the embezzled money, or property, has a smaller value, but adds up to more than $950 in a 12 month period, then the charge is still Grand Theft Embezzlement.

In most cases, Grand Theft Embezzlement is known as a wobbler. It could be charged as a felony or as a misdemeanor, but this depends on the criminal history of the defendant, and the circumstances However, if the charge involves a firearm, then it will be a felony.

Misdemeanor Grand Theft Embezzlement can be punished by misdemeanor probation, and/or up to a year in county jail, and/or up to a $1000 fine.

Felony Grand Theft Embezzlement can be punished by felony probation, and/or up to a $10,000 fine, and/or a sentence of 16 months,  two, or three years confinement.

If the property or money was of particularly high value, then the defendant may have additional charges and punishment.

If the property is worth more than $65,000 one year can be added to the sentence.

If the property is worth more than $200,000, two years can be added to the sentence.

If the property is worth more than $1,300,000, three years can be added to the sentence.

If the property is worth more than $3,200,000, four years can be added to the sentence.

Petty Theft Embezzlement

If the money or property has a value of less than $950, then it is classed as Petty Theft Embezzlement, which is a misdemeanor. It is punishable by misdemeanor probation, and/or six months in county jail, and/or a fine of up to $1,000.

Aggravating Factors

If the owner of the property was an elderly, or otherwise vulnerable person, then this is considered to be an aggravating factor. The Judge may increase the sentence in these cases, and there could be additional charges for aggravating factors, such as elder abuse.

If the defendant is on trial for two or more felony charges of fraud, or embezzlement, and the value of all the offenses combined is more than $100,000, then a White Collar Crime Enhancement could be added. This enhancement can add a jail sentence of up to five years. This is in addition to the other penalties directly from the charges.

Mitigating Factors

The Judge will take any mitigating factors into account. This includes the voluntary return of the property.

Defense

For someone charged with embezzlement in California, the first step must be to contact a highly experienced criminal defense attorney.The attorney will be able to  assert the best defense for that particular case..

There are several possible defenses:

The defendant believed in good faith that they had the right to the property. This is only applicable if the property was not taken in secret, and if the property wasn't taken in lieu of payment. If the owner owed the defendant a debt, and the defendant took the property as a payment, then this can still potentially be classed as embezzlement.

There was no criminal intent. The prosecutor has to prove that the defendant intended to deprive the owner of the use of the property. This can be very difficult to prove, depending on the circumstances of the case.

The accusations were false. False accusations of embezzlement are relatively common. This is because there is usually some sort of relationship between the victim and the defendant. When the relationship sours, it's possible that the victim could falsely accuse the defendant as revenge. A criminal defense attorney will be able to gather the facts of the case, and present evidence in this case to prove falsification.

The defendant has a claim of authority. If the defendant can show that they took the property under a power of attorney, or other arrangement, then they may have legally had the authority to do so.

The owner did not demand return of the property. While the owner doesn't have to ask for the property to be returned, it can prove criminal intent if the defendant refuses to do so. If the owner has ever asked for the property to be returned, then the defendant can present a non-criminal reason why they took the property.

Other Charges

There are other charges that are often filed alongside embezzlement charges, such as:

Fraud

Some types of fraud are charged as embezzlement, but others are charged under other laws, such as insurance fraud, check fraud, or mail fraud. In some cases, fraud charges and embezzlement charges can be filed at the same time.

Forgery

The forgery law, Penal Code 470, means that it is illegal to alter, create or use a written document to commit fraud. It is a wobbler, and can be treated as a misdemeanor or a felony, depending on the circumstances of the case. Forgery charges can be filed with embezzlement charges. Sentences for misdemeanor forgery include up to a year in jail, while sentences for felony forgery include up to three years in jail.

Burglary

The defendant can also be charged with burglary, depending on the circumstances. Penal Code 459 states that it is against the law to enter any structure with the intent to commit a crime. If the structure is uninhabited, then the charge is a wobbler. Although, if the structure is inhabited, then it is charged as a felony.

Misappropriation of Public Funds

If the embezzlement charge involves public money, then the charges can be filed under Penal Code 424. This means that someone who had control over government funds used the funds without the proper authority to do so. This charge also applies when someone alters, or deletes financial records relating to government funds, or when someone creates false records involving government funds. The prosecutor must prove that the defendant knew the actions were illegal, or was criminally negligent in finding out if the actions were legal. Misappropriation of public funds is a felony, and can carry a state prison sentence of up to four years. This charge does not apply if the amounts are minimal or incidental.

What To Do If You Are Accused Of Embezzlement

If you have been accused of embezzlement or any related charges, you need to contact an experienced criminal defense lawyer as soon as possible. Your lawyer will be able to put forward the best defense based on the individual circumstances of your case. You may also be able to have your charges dismissed or reduced if you can make restitution as quickly as possible.  Better yet, if no charges have yet been filed, the attorney can sometimes avoid any criminal charges completely.

The Law Office

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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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