California Criminal Jury Instructions (CALCRIM) (2017)

1806. Theft by Embezzlement

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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).
A person acts fraudulently when he or she takes undue advantage of
another person or causes a loss to that person by breaching a duty,
trust or confidence.
[A good faith belief in acting with authorization to use the property is a
defense.]
[In deciding whether the defendant believed that (he/she) had a right to
the property and whether (he/she) held that belief in good faith,
consider all the facts known to (him/her) at the time (he/she) obtained
the property, along with all the other evidence in the case. The
defendant may hold a belief in good faith even if the belief is mistaken
or unreasonable. But if the defendant was aware of facts that made that
belief completely unreasonable, you may conclude that the belief was
not held in good faith.]
[An intent to deprive the owner of property, even temporarily, is
enough.]
[Intent to restore the property to its owner is not a defense.]
[An agent is someone to whom the owner has given complete or partial
authority and control over the owner’s property.]
[For petty theft, the property taken can be of any value, no matter how
slight.]
New January 2006; Revised June 2007, April 2008, October 2010, April 2011
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BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If the evidence supports it, the court has a sua sponte duty to instruct that a good
faith belief in acting with authorization to use the property is a defense. People v.
Stewart (1976) 16 Cal.3d 133, 140 [127 Cal.Rptr. 117, 544 P.2d 1317].
Intent to return the property at the time of the taking is not a defense to
embezzlement under Pen. Code, § 512 unless the property was returned before the
person was charged. People v. Sisuphan (2010) 181 Cal.App.4th 800, 812 [104
Cal.Rptr.3d 654].
Related Instructions
If the defendant is charged with grand theft, give CALCRIM No. 1801 Theft:
Degrees. If the defendant is charged with petty theft, no other instruction is
required, and the jury should receive a petty theft verdict form.
If the defendant is charged with petty theft with a prior conviction, give CALCRIM
No. 1850, Petty Theft With Prior Conviction.
AUTHORITY
• Elements. Pen. Code, §§ 484, 503–515; In re Basinger (1988) 45 Cal.3d 1348,
1362–1363 [249 Cal.Rptr. 110, 756 P.2d 833]; People v. Wooten (1996) 44
Cal.App.4th 1834, 1845 [52 Cal. Rptr.2d 765]; People v. Kronemyer (1987) 189
Cal.App.3d 314, 361 [234 Cal.Rptr. 442].
• Fraud Defined. People v. Talbot (1934) 220 Cal. 3, 15 [28 P.2d 1057]; People
v. Stein (1979) 94 Cal.App.3d 235, 241 [156 Cal.Rptr. 299].
• Intent to Temporarily Deprive Owner of Property Sufficient. People v. Casas
(2010) 184 Cal.App.4th 1242, 1246–1247 [109 Cal.Rptr.3d 811]
[acknowledging general rule for larceny requires intent to permanently deprive
owner of property, citing People v. Davis (1998) 19 Cal.4th 301, 305 [79
Cal.Rptr.2d 295, 965 P.2d 1165]].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against
Property, § 26.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143,
Crimes Against Property, § 143.01 (Matthew Bender).
LESSER INCLUDED OFFENSES
• Petty Theft. Pen. Code, § 486.
Attempted Theft. Pen. Code, §§ 664, 484.
THEFT AND EXTORTION CALCRIM No. 1806
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RELATED ISSUES
Alter Ego Defense
A partner can be guilty of embezzling from his own partnership. “[T]hough [the
Penal Code] requir[es] that the property be ‘of another’ for larceny, [it] does not
require that the property be ‘of another’ for embezzlement . . . . It is both illogical
and unreasonable to hold that a partner cannot steal from his partners merely
because he has an undivided interest in the partnership property. Fundamentally,
stealing that portion of the partners’ shares which does not belong to the thief is no
different from stealing the property of any other person.” (People v. Sobiek (1973)
30 Cal.App.3d 458, 464, 468 [106 Cal.Rptr. 519]; see Pen. Code, § 484.)
Fiduciary Relationships
Courts have held that creditor/debtor and employer/employee relationships are not
presumed to be fiduciary relationships in the absence of other evidence of trust or
confidence. (People v. Wooten (1996) 44 Cal.App.4th 1834, 1846 [52 Cal.Rptr.2d
765] [creditor/debtor]; People v. Threestar (1985) 167 Cal.App.3d 747, 759 [213
Cal.Rptr. 510] [employer/employee].)
CALCRIM No. 1806 THEFT AND EXTORTION
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