When you are working for a terrible boss, it can be tempting to get something back by taking something from the company without them knowing. For a restaurant server who gets their hours cut by a bad manager, taking a few extra dollars by not ringing up the order may seem like it's not hurting anyone. In some cases, a worker may even take company money or property because their employer is violating wage and hour laws.
However, the courts don't see it that way. Taking property from someone who has entrusted you with it is a type of theft, known as embezzlement. Embezzlement is a criminal offense in California, and depending on the value of money or property taken, it can be a felony.
Unfortunately, some innocent people are accused of embezzlement or the employer suspects the wrong person. A dishonest manager may even try to blame an employee for company theft to cover up their own criminal activity. It is important to talk to an experienced East Bay criminal defense attorney about legal defenses in your case. A strong embezzlement defense can help you avoid a conviction and keep your record clean.
What Is Embezzlement?
Under California Penal Code 503, “embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted.” How is this different from common theft? Embezzlement is different because the person has been placed in a position of trust with the money or property.
For example, if someone walks into a store and takes money from a register, that would be robbery or theft. If the cashier takes some money from the cash register and pockets it, that could be considered embezzlement.
Embezzlement is not just limited to taking money. Embezzlement could involve taking company property. For example, an employee at a video game store that steals a few games every month could be committing embezzlement. Even taking office supplies for personal use could be considered embezzlement.
Embezzlement is sometimes considered a “white collar crime.” A white collar crime is generally a nonviolent offense which is financially motivated. Other types of white collar crimes include insider trading, money laundering, and insurance fraud. High level embezzlement may involve an accountant or financial advisor misappropriating funds from their clients or employers, often using methods to cover up the theft.
Defending Against Embezzlement in California
When fighting embezzlement charges, your defense attorney may focus on the elements of the offense. In order to be found guilty, the prosecutor needs to show, beyond a reasonable doubt, that all elements of the offense are proven. That means that even if one element is not proven beyond a reasonable doubt, then the defendant should not be found guilty.
According to the Judicial Council of California, “proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not
eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.”
Elements of Embezzlement in California
According to the 2022 California Criminal Jury Instructions, to prove that the defendant is guilty of this embezzlement, the prosecutor must prove that
- An owner entrusted their property to the defendant;
- The owner did so because they trusted the defendant;
- The defendant fraudulently converted or used that property for their own benefit; AND
- When the defendant converted or used the property, they intended to deprive the owner of its use.
Fraudulently using the property means that someone took undue advantage of another person or caused a loss by breaching their trust or confidence.
“I Thought I Could Use the Company Property”
A good faith belief in acting with authorization to use the property is a defense. For example, an employee took home company property over the weekend and returned it in proper condition on the following Monday. If the employee wrongfully thought they were able to use company property on the weekends because another employee told them they could, that might be a defense to embezzlement charges.
“The Property Was Only Worth a Few Dollars”
For petty theft, the property taken can be of any value, no matter how slight. It doesn't matter if you take post-it notes from the business supplies closet or if you steal thousands of dollars through accounting fraud. Technically, they both could be considered embezzlement. However, the penalties for grand theft are much more severe than for petty theft. In California, theft of over $950 worth of property is grand theft.
The penalties for grand theft embezzlement include up to 3 years in prison. Even after the defendant gets out of prison, they may still have to be on parole for years. A convicted felon may also find it harder to get a job, get public housing, or get public benefits. Talk to your criminal defense attorney about getting charges reduced to a misdemeanor.
“I Was Going to Pay the Money Back”
Intent to restore the property to its owner is not a defense. Many cases of embezzlement start with the intent to take money for a short time and then pay it back. A worker may need money to pay for an emergency medical situation, to get a family member out of trouble, or to pay off gambling debts. However, the money may not get paid back and eventually the theft is discovered. It is not a defense to tell your company that you are going to pay back the money.
“I Was Only Using It for a Little While”
An intent to deprive the owner of property, even temporarily, is enough. Even if you borrowed company property for a couple of days, and returned it back in perfect condition, it could still be considered embezzlement if the defendant converted or used the property and intended to deprive the owner of its use, even temporarily.
If embezzlement involves a victim who is elderly or a dependent person, it is considered an aggravating circumstance and could result in enhanced penalties, including more jail time and higher fines.
Defenses to Embezzlement Charges
If you can show just one part of the elements of the offense is not satisfied, you should not be found guilty of the crime. For example, defenses to embezzlement could include showing:
- The defendant did not fraudulently use the property for their own benefits.
- The defendant didn't intend to deprive the owner of use.
- The defendant had a good faith belief to use the property.
If you are accused of embezzlement or if your company is investigating you for possible theft crimes, it is important to contact an attorney as soon as possible. Do not let someone else's company theft be blamed on you. Your supervisor, manager, or other employees may be trying to cover up their theft by placing the suspicion on you.
After a Criminal Fraud Arrest in East Bay California
Don't plead guilty to any criminal charges before you've had a chance to talk to an experienced attorney about your legal options. East Bay attorney Lynn Gorelick has more than 39 years of criminal defense experience and understands the consequences of felony theft crimes. Representing individuals in Oakland, Alameda County, and Contra Costa County, Lynn Gorelick is familiar with the local criminal defense laws, local officers, and the prosecutors involved. Contact East Bay criminal defense lawyer Lynn Gorelick today.