1806. Theft by Embezzlement
The defendant is charged [in Count ______] with [grand/petty] theft by embezzlement.
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 (converted/used) that property for (his/her) own benefit;
4. When the defendant converted the property, (he/she) intended (to deprive the owner of it permanently/ [or] to remove it from the owner's [or owner's agent's] possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property).
[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.]
The court has a sua sponte duty to give an instruction defining the elements of the crime.
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.
Elements. Pen. Code, §§ 484, 503-515; People v. Wooten (1996) 44 Cal.App.4th 1834, 1845 [52 Cal.Rptr.2d 765].
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.
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.)
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].)
(New January 2006)