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FAQs: California Embezzlement Questions and Answers
Why would you need an embezzlement attorney?
The charge of embezzlement is prosecuted in the San Jose area when employees are accused of taking property, money or other resources from a place of employment or while they are in a special position of trust.
How does the law define embezzlement in San Jose, San Mateo and the Bay Area?
California Penal Code Section 503 defines embezzlement as “the fraudulent appropriation of property by a person to whom it has been entrusted.”
What are some examples of cases that a San Jose embezzlement attorney handles?
You may be surprised to learn that in San Jose, embezzlement can be charged in relatively minor cases. The attorneys at the Law Office of James Dunn have defended embezzlement cases for situations as small as an employee raiding an employer’s office supply cabinet for personal use. Silicon Valley employers have been known to accuse employees of taking reams of paper, copier ink, and money. There are also cases we’ve handled where people in charge of making checks for vendors are depositing checks made out to “Cash” into their own account. Other times, employees with access to company credit cards may use them for their own expenses.
Those who treat such improper payments as a loan and return funds before discovery of the crime may find the court allows some leniency however the act is still illegal. Retail store managers have several varieties of charging back or using gift cards to create personal value. People who leave the office with a box of unknown items, even items meant for the garbage or indefinite storage should beware. All of these may be charged as embezzlement.
I am being accused of embezzlement but I also have a grand theft charge. Why? How do I know if my embezzlement charge will be a misdemeanor or a felony charge?
Sometimes an additional charge of theft is added to an embezzlement case. If San Jose and under California law, when the embezzlement value accused involves less than $950, the embezzlement may be charged as a misdemeanor and the additional charge would be petty theft or shoplifting. If the amount is $950 or more, then the case is charged as a felony.
Nothing has been charged yet, but I have a bad feeling my boss is going to call me or the police. Do I contact an embezzlement attorney now now?
In embezzlement cases more than most, the defendant distinctly senses the employer, the victim or the police might get involved before they do. Often it starts with a text message from work politely pointing out a discrepancy or asking for receipts from certain items charged on a company card. Often a manager will call and ask the accused to come to a meeting to discuss in person. At times, this request will be made in person and the meeting with a manager turns out to be a discussion with corporate or with the company attorney.
There are times that a person whose title is not obvious is in the meeting. This could be someone specifically used or hired to question and record evidence of the theft or embezzlement.
You may be faced with the choice of saying something or losing your job. Most attorneys would advise not discussing anything relating to a criminal accusation. You have a right not to talk to anyone about a criminal accusation and it is far better not to talk than to dig yourself in a deeper hole involving perceived lies and deceit.. There are several reasons for this and not talking is your right, however you may still be put on leave or fired if there is a suspicion of embezzlement. It is naïve to think that an employer who suspects deceit or embezzlement will not call the police and you should regard all promises not to call the police with a “grain of salt.” You should contact a lawyer and discuss your case rather than talk further. However, another option is to listen to what is being said, and to tell them you will get back to them with answers once you talk to a lawyer.
If the police come to my door, what should I do?
The next scenario is that after a discussion or non-discussion with the employer, the police might call you or come to your door. It is very important that you discuss this scenario with an attorney before speaking to the authorities. Telling the police not to come in without a warrant is your right. Telling police that you are not going to make a statement is your right. If this case scenario applies to you, you should talk to an embezzlement attorney as soon as possible.
I have a warrant or a notice to appear in court. What should I do?
Certainly if you are arrested or have a notice to appear or warrant come in the mail, you should discuss this with an attorney. Please know that you are not required to talk to anyone. It is always better to say nothing. Please call our firm if there is anything we can help you discuss.
Can I go to jail if convicted of embezzlement?
In larger embezzlement cases, there is often jail time in cases negotiated but smaller ones, especially where this is a first offense and you are violating probation, there may be only a fine and restitution.
Is restitution an option in embezzlement cases?
If it seems that you are guilty, an important factor is your ability to make the victim whole and this results in your ability to pay restitution. If your lawyer is working early enough, sometimes it might make sense to pay the victim back before they go to the police or if this is an obvious embezzlement case then even after. Your ability to pay the money back is important in many embezzlement cases. If you are absolutely innocent, a good attorney can often sort out the confusion before the employer goes to the police.
The FAQs here are for discussion purposes only and do not apply to any particular case. You must analyze your particular case in order to have the correct outcome. Do not regard these FAQs as specific legal advice. Other laws than those mentioned apply. Our firm has attorney available to talk day or night and our service can help you talk or leave a message with the right person.
What if I return the amount taken? Can that help get embezzlement charges dropped?
PC 512 of the California Penal code states, “The fact that the accused intended to restore the property embezzled, is no ground of defense or mitigation of punishment, if it has not been restored before an information has been laid before a magistrate, or an indictment found by a grand jury, charging the commission of the offense.” However, PC 513 says, “ Whenever, prior to an information laid before a magistrate, or an indictment found by a grand jury, charging the commission of embezzlement, the person accused voluntarily and actually restores or tenders restoration of the property alleged to have been embezzled, or any part thereof, such fact is not a ground of defense, but it authorizes the court to mitigate punishment, in its discretion.”
You should discuss this option with your lawyer. The option of paying amounts for money or goods allegedly taken can potentially mitigate your embezzlement case and The Law Office of James Dunn has successfully used this strategy to benefit its clients.
My friend blamed me for missing items loaned to me and police charged me with embezzlement. What is PC 504a?
For common embezzlement for employees and agents, 504a PC states,
Every person who shall fraudulently remove, conceal or dispose of any goods … leased or let to him [in writing], or any personal property or effects of another in his possession … and any person in possession of such goods, chattels, or effects knowing them to be subject to such lease or contract of purchase who shall so remove, conceal or dispose of the same with intent to injure or defraud the lessor or owner thereof, is guilty of embezzlement.
I bought a car and sold it before paying off the loan. Why is this considered embezzlement?
Section 504b may govern where a debtor in a security agreement sells the property but does not forward the proceeds from the sale.
“…and where the debtor, having sold the property covered by the security agreement and having received the proceeds of the sale, willfully and wrongfully, and with the intent to defraud, fails to pay to the secured party the amounts due under the security agreement, or the proceeds of the sale, whichever is the lesser amount, and appropriates the money to his or her own use, the debtor shall be guilty of embezzlement and shall be punishable as provided in Section 514.”
My employer or former employer has discovered a discrepancy and is blaming me or asking me questions. Is this considered to be embezzlement?
If we skip to section 508 we can see many employment embezzlement matters would be filed under this section.
“Every clerk, agent, or servant of any person who fraudulently appropriates to his own use, or secretes with a fraudulent intent to appropriate to his own use, any property of another which has come into his control or care by virtue of his employment as such clerk, agent, or servant, is guilty of embezzlement.”
I was a courier driver and some packages were missing during the holiday rush. If I am convicted, is this considered embezzlement?
Section 505 of the California Penal Code addresses the embezzlement by carriers such as drivers.
“Every carrier or other person having under his control personal property for the purpose of transportation for hire, who fraudulently appropriates it to any use or purpose inconsistent with the safe keeping of such property and its transportation according to his trust, is guilty of embezzlement, whether he has broken the package in which such property is contained, or has otherwise separated the items thereof, or not.”
One does not need to be employed for there to be embezzlement. The trusted party simply needs to misappropriate something under their control. Section 506 addresses those with control or who are entrusted and fail to meet their duty to preserve by willfully, fraudulently misappropriates that which is in their control.
I was in charge of my mother’s estate after her death and some items went missing or I sold property and pocketed the proceeds. My brothers and sisters are blaming me. Why is this embezzlement? “Every trustee, banker, merchant, broker, attorney, agent, assignee in trust, executor, administrator, or collector, or person otherwise entrusted with or having in his control property for the use of any other person, who fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, and any contractor who appropriates money paid to him for any use or purpose, other than for that which he received it, is guilty of embezzlement, and the payment of laborers and materialmen for work performed or material furnished in the performance of any contract is hereby declared to be the use and purpose to which the contract price of such contract, or any part thereof, received by the contractor shall be applied.”
I work as a collection agency and some of the funds were added to my personal account. Is this embezzlement?
Section 506a of the California Penal Code addresses embezzlement by collectors who criminally mishandle and misappropriate or comingle funds collected.
“ Any person who, acting as collector, or acting in any capacity in or about a business conducted for the collection of accounts or debts owing by another person, and who violates Section 506 of the Penal Code, shall be deemed to be an agent or person as defined in Section 506, and subject for a violation of Section 506, to be prosecuted, tried, and punished in accordance therewith and with law; and “collector” means every such person who collects, or who has in his or her possession or under his or her control property or money for the use of any other person, whether in his or her own name and mixed with his or her own property or money, or otherwise, or whether he or she has any interest, direct or indirect, in or to such property or money, or any portion thereof, and who fraudulently appropriates to his or her own use, or the use of any person other than the true owner, or person entitled thereto, or secretes that property or money, or any portion thereof, or interest therein not his or her own, with a fraudulent intent to appropriate it to any use or purpose not in the due and lawful execution of his or her trust.”
I ran a real estate investment club and some of the money invested ended up missing or in my personal account. Is this considered to be embezzlement?
506b addresses real estate contract embezzlement. This can be used in one-off occurrences or real estate syndication schemes.
“Any person who violates Section 2985.3 or 2985.4 of the Civil Code, relating to real property sales contracts, is guilty of a public offense punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in a the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both that fine and imprisonment.”
I lived in my friend’s house while he was out of the country and sold certain property rights to a third party without his consent. Is this considered embezzlement?
There are infrequent cases when people who stay somewhere try to convert rights as if they owned the land, or people otherwise with a power of attorney take advantage of their special power. Section 507 addresses someone who converts the leasehold they are in into an improper sale to convert for their own use.
“Every person intrusted with any property as bailee, tenant, or lodger, or with any power of attorney for the sale or transfer thereof, who fraudulently converts the same or the proceeds thereof to his own use, or secretes it or them with a fraudulent intent to convert to his own use, is guilty of embezzlement.”
Can embezzlement be associated with a crime of fraud or “abuse” against the elderly?
There are special enhancements and rules about committing crimes against our elders, such as people we care for and those who we try to induce to part with their material possessions and money. Have your attorney look at PC 515 which addresses how one can face aggravated embezzlement where a felony violation is paired with an elderly victim.