3 Essential Elements For “Embezzlement” Convictions

Embezzlement under Penal Code 503 pc is the unlawful and fraudulent appropriation of money or property that belonged to another person and for which you were entrusted to keep or maintain¹.

Below we explain the three (3) essential elements prosecutors need to convict on this charge and how it may be defended.

Embezzlement Under Penal Code 503

The three (3) essential elements prosecutors need to prove for a conviction under penal code 503 pc contains the following elements:

1. Money or property was entrusted to you by the property’s owner who trusted you to keep or maintain it but,
2. Which you fraudulently transferred to yourself for your own benefit, and
3. With the intent to deprive the owner of its use or benefit²

The Element of Trust

People entrust property to others all the time. Corporate executives, bookkeepers, cashiers, company directors, and officers are entrusted to oversee property or funds.

In fact, anytime a person is given funds to deposit or to use in a certain way, a trust relationship is formed³.

The Element of Fraud

The prosecution needs to prove that you used the money or property in a fraudulent way so as to benefit yourself and cause the owner damages or loss.

A loss is considered any breach of the trust accorded you or by your taking advantage of the property owner. You take advantage by using the property for your own benefit and depriving the owner.

The Element of Intent to Deprive the Owner of its Use

This element involves intent, usually the essential element in most criminal offenses.

Your intent to deprive the owner of the property or its use is exhibited when you use the property either to benefit or enrich yourself, such as by depositing entrusted funds into your own account, or when you deprive the owner of its use, even for a short time and regardless if you did so to personally benefit yourself⁴.

Sentencing And Penalties For Embezzlement (PC 503)

Embezzlement is a crime of theft.

In California, you are charged with either grand theft or petty theft under PC 487 depending on the value of the property and its type in some cases⁵.

Grand theft applies to property valued at over $950, though it is a wobbler so that either misdemeanor or felony charges may apply depending on your criminal history and the facts and circumstances of your individual case.

For property valued at $950 or less, you face petty theft charges, which is a misdemeanor.

What if There are Multiple Situations of Embezzlement?

If you stole multiple items of property or embezzled money multiple times within a 12-month period with each time amounting to less than $950 but which amount is more than $950 if added together, then you face grand theft either as a felony or as a misdemeanor.

Penalties for Misdemeanor Grand Theft Embezzlement:

• Summary probation
• Or up to one year in county jail and/or
• Up to $1000 as fine

Grand theft embezzlement is the theft of funds or property in excess of $950.

However, it is not a wobbler if the property embezzled was either a firearm or an automobile, which are charged solely as felonies.

Penalties for Felony Grand Theft Embezzlement:

• Formal probation
• 16 months, 2 or 3 years in county jail
• And/or a fine up to $10,000

This sentence also applies to grand theft felony of a firearm except that your time served is in state prison instead of county jail.

Penalty For Misdemeanor Petty Theft Embezzlement:

• Informal or summary probation
• County jail up to 6 months
• And/or a fine of no more than $1,000

Penalty Enhancements

The code section provides for a sentence enhancement if you embezzle particularly large amounts of money or property with a high value⁶.

The sentence enhancement is for additional incarceration time that is served consecutively and not concurrently.

They provide as follows:

• One year for property valued at $65,000 or more
• Two years for property valued at $200,000 or more
• Three years for property valued at $1,300,000
• Four years for property valued at $3,200,000

You also face an enhanced sentence if the victim was a senior citizen or someone with a physical disability or cognitive impairment that limits their daily living activities.

In such cases, you can be charged with an additional count of elder abuse or, if the victim was an otherwise dependent person, face the high end of your sentence.

A mitigating factor is if you voluntarily returned the property or funds before it was discovered but were charged nonetheless.

You are guilty of embezzlement for misappropriating funds entrusted to you for even a short time provided it was for your benefit and you caused a loss to your employer or person who entrusted you.

Defenses To Embezzlement

Any criminal offense has defenses, many of which concern forcing the prosecution to prove each element of the offense.

For embezzlement under penal code 503 pc, you have a number of available defenses:

You Had a Good Faith Belief to Entitlement

If you had a reasonable, though erroneous, belief that the property was yours, then you might be exonerated⁷.. You do have to demonstrate:

• You did not use surreptitious means to take the funds but did so openly or publicly
• You did not take the property because of a debt owed to you by the property owner⁸.

You Lacked Criminal Intent

One of the required elements for a conviction under California penal code 503 is the intent to deprive the owner of his or ger property or its use even if it was temporarily⁹.

You Are Falsely Accused

It is not uncommon for business partners or family members to accuse each other of embezzlement of property that you both might have an interest in or the right to possess.

If funds are mismanaged, you might find yourself wrongfully accused but your attorney may be able to demonstrate that you merely used poor judgement.

Related Offenses

Burglary – penal code 459 

If someone illegally entered the premises of another persons office or home where they gathered personal information for the purposes of  embezzleing funds then they could be charged with penal code 459 pc – California’s burglary law.

Check Fraud – PC 476

You commit check fraud under penal code 476 pc by altering the amount, forging someone else’s name on it or making a phony check. In this context, you could generate a check by signing the payor’s name, putting any amount you want on it that will come from the bank account of the person who entrusted you, and naming yourself as payee.

Real Estate Fraud

Making up a false deed or forging the real property owner’s name on a deed and delivering it to you so you can immediately sell the property or use it as collateral for a loan is grand theft as well as possible embezzlement if the deed was entrusted to you.

Expungement For Penal Code 25850

Under PC 1203.4, most misdemeanor and many felony convictions may be expunged.

Expungement is a process wherein your record of conviction is hidden or erased from the databases of companies that perform criminal background checks for the general public.

Your record and court files are still kept, however, on FBI and other law enforcement databases and may be used to:

• Enhance your sentence if you commit another felony
• Be considered if you apply for public employment, licensing, the military, for public licensing, or for a law enforcement position

The main qualifying condition for an expungement is that you not have served any time in state prison. If you did, you will have to seek other post-conviction relief.

Felony grand theft embezzlement is always a felony if a firearm or automobile was the subject of the theft. A conviction carries state prison time so if you were incarcerated, you would not be eligible for an expungement but for other post-conviction relief.

However, if you are convicted of felony under PC 503 as a wobbler, you can petition the court to reduce it to a misdemeanor before having it expunged under PC 17(b)(3).

A misdemeanor conviction does not take away any of your civil rights but employers, landlords and some schools may still consider it an embezzlement conviction adversely when deciding whether to hire or promote you, offer you a place in a college or university or whether to grant you a residential lease.

If you did not spend any time in state prison under a conviction for PC 503, you may petition the court for expungement provided you meet the following criteria:

• You completed all terms and conditions of your probation
• You have no criminal charges pending
• You have not committed any other felony offenses

If the court grants you the expungement, it will have the following effect:

• You may state under oath in any court proceeding or on any legal document that you have never been convicted of a felony—unless you are facing a subsequent felony offense or applying for public employment and other specific matters
• You can state on an employment and rental application that you have no felony or misdemeanor convictions
• But you do have to disclose a conviction if running for public office or applying for a license to work with the State Lottery Commission
• You can apply to the military or for a law enforcement position but you will have to disclose the conviction though it is not a disqualifying factor unless the conviction was for a felony offense
• It may have a positive effect on your immigration status if you are not a US citizen and are seeking permanent residency.
• You can apply for a state license such as for real estate or contractor’s license

You can apply for expungement the day after your probation ends. In cases where no probation was imposed, you must wait one year from the date of your conviction before applying.

Immigration Consequences

If you are not a US citizen, an embezzlement conviction may have immigration consequences and affect your ability to apply for and obtain naturalization.

Embezzlement is a crime of moral turpitude and may expose you to deportation under the following circumstances:

1. You are convicted of a crime of moral turpitude, of which a sentence of at least one year may be imposed, within 5 years of your lawful admission to the US
2. Or, you are convicted of two crimes of moral turpitude that did not arise out of a single transaction, incident or criminal scheme

Also, conviction of felony grand theft embezzlement is considered an aggravated felony. A single conviction will likely expose you to deportation.

1. CalCrim 1806; People v. Wooten (1996) 44 Cal. App. 4^th 1834, 1845 [↩]
2. Penal Code 503 PC – (Definition of embezzlement) – Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted. [↩]
3. CACI 1908-“Whether reliance is justified is a question of fact for the determination of the trial court; the issue is whether the person who claims reliance was justified in believing the representation in the light of his own knowledge and experience.” Blankenheim v. E.F. Hutton, Co., Inc. (1990) 217 Cal. App. 3d 1463, 1474 [↩]
4. CalCrim 1800; People v. Avery (2002) 27 Cal.App. 4^th 115,123 [↩]
5. Theft by larceny; CalCrim 1800; People v. Williams (1946) 73 Cal.App.2d 154, 157 [↩]
6. Penal Code 186.11; CalCrim 3221; Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [↩]
7.  People v. Hagen (1998) 19 Cal. 4^th 652, 660 [↩]
8. Penal Code 511 PC (Defenses to embezzlement charges) – Upon any indictment for embezzlement, it is a sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred in good faith, even though such claim is untenable.  But this provision does not excuse the unlawful retention of the property of another to offset or pay demands held against him. [↩]
9. Judicial Council of California Criminal Jury Instructions [CALCRIM 1806 – Theft by Embezzlement] (Pen. Code, §§ 484, 503) (“The defendant is charged [in Count] with [grand/petty] theft by embezzlement [in violation of Penal Code section 503]. To prove that the defendant is guilty of this crime, the People must prove that: 1 An owner [or the owner’s agent] entrusted (his/her) property to the defendant; 2 The owner [or owner’s agent] did so because (he/she) trusted the defendant; 3 The defendant fraudulently (converted/used) that property for (his/her) own benefit; AND 4 When the defendant (converted/used) the property, (he/she) intended to deprive the owner of (it/its use).” [↩]