What is embezzlement and how is it different from a theft charge? Put in very simple terms, embezzlement is basically stealing from your employer. The distinction between embezzlement and theft is the term “entrusting”. It is the way in which the theft was committed. The Penal Code defines embezzlement as the unlawful taking of something from another that has been entrusted to you.
As an example, you work for a company in which part of your responsibility is to take in payments, make bank deposits and generally keep track of money coming in and going out. When your employer hired you they did so with the trust and understanding that you would perform these duties responsibly and truthfully. Because your employer trusted you, you were given access to the bank account, check books, and may even be authorized to sign on the account or issue checks. This is “entrusting” you to do the right thing. They obviously would not have hired you if they felt otherwise.
Penal Code 484 is defined as: “Every person who shall fraudulently appropriate property that has been entrusted to him/her is guilty of theft”. Because of the position of trust, it is considered more serious than a theft. The consequences if convicted will depend upon specific facts surrounding the theft. The value of the theft will determine whether the case is filed as a felony or a misdemeanor. This is called a “wobbler” and when deciding how the case will be filed, the district attorney will take into consideration the value, the circumstances of the theft and your criminal history, if any. If the way in which the theft occurred was highly sophisticated, showing lots of planning and deceit, the district attorney will be more likely to file the case as a felony. However, if you hire an attorney prior to the case being filed, during the district attorney’s review stage, your attorney may be able to convince the district attorney to file the case as a misdemeanor if it looks like they may be on the fence about it. A good defense attorney will present you in the most positive light as possible, giving the district attorney details about you and your life that may result in a misdemeanor filing rather than a felony. This is why early intervention is so crucial in these types of cases.
In order for the prosecution to be successful in proving their case, they must prove that you had a relationship of trust with your employer and that you were “entrusted” with certain property in the course of your employment. They must also prove that it was your intention to deprive your employer of certain property by taking it and using it for your own benefit. So a good defense may be that you were actually entitled to the property or that you really believed that you were. If that were the case, then there would be no criminal intent. Also, there is also the chance that you are innocent and that there is some sort of mistake or misunderstanding. So, regardless of how guilty you may look, hiring a good criminal defense attorney to go through all of the evidence, and with your help, looking for inconsistencies or mistakes, could mean the difference between some sort of guilty plea and a dismissal of the case.