Return to CALJIC Part 14-17 – Contents
F 14.07 n1 Embezzlement: Claim Of Right As Defense.
[See FORECITE F 4.026a.]
F 14.07a
Embezzlement: “Relation Of Trust And Confidence” Defined
(PC 503)
*Add to CJ 14.07:
A “relation of trust and confidence” as defined in this instruction requires a fiduciary relationship where a person places trust in the fidelity of another. Such a relationship is above and beyond that which exists between ordinary buyers and sellers of property or which exists in a standard debtor-creditor relationship.
Points and Authorities
The existence of a fiduciary relationship between victim and defendant is essential to the crime of embezzlement. (2 Witkin and Epstein, Cal. Crim. Law, (2d ed. 1988) § 590, p. 665.) Such a relationship exists when a person places trust in the fidelity of another. (People v. Threestar (85) 167 CA3d 747, 758 [213 CR 510].) CJ 14.07 fails to convey this requirement. In common parlance, the words “trust” and “confidence” refer to mental states which may well occur in people trading with one another at arms length. Hence, ordinary jurors would not necessarily understand the CJ language to refer only to trust and confidence in the loyalty of another person. They would instead understand them to include that “trust and confidence” which is essential to any ordinary business relationship. Accordingly, because this is a technical term, it should be defined for the jury. (See People v. Shoals (92) 8 CA4th 475, 489-90 [10 CR2d 296].)
People v. Wooten (96) 44 CA4th 1834, 1845-46, [52 CR2d 765], held that a standard debtor-creditor relationship between a real estate developer and its construction lender was not a fiduciary or “special” relationship for purposes of the general embezzlement instruction.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
When money or property is received under a contract of sale without restrictions as to its use, there can be no embezzlement because title passes to the recipient. (People v. Smith (84) 155 CA3d 1103, 1142-43 [203 CR 196].) Because CJ 14.07 does not convey this rule, it should be appropriately modified when the evidence raises such an issue.
[See Brief Bank # B-548 for additional briefing on this issue.]
F 14.07b
Embezzlement: Restoration Of The Funds as Defense
(PC 512)
*Add to CJ 14.07:
The taking is excusable and not unlawful when the defendant:
1. Intended to restore the property at the time it was taken; and
2. Fully restored the property before criminal charges were filed.
Points and Authorities
The plain language of PC 512 states that an intent to restore embezzled property “is no ground of defense” unless it is timely restored before the filing of charges. By framing PC 512 in the negative, but conditionally, the legislature evidently intended to establish that intent to restore, coupled with timely restoration, would constitute a defense to the charge. (People v. Talbot (34) 220 C 3, 16.)
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
NOTES
See also People v. Shaw DEPUBLISHED (92) 10 CA4th 969 [12 CR2d 665] [intent to repay money taken is no defense “in the face of the fact that the money was not replaced prior to” filing of the charges]; People v. McLean (02) 135 C 306, 307-08. [A copy of the McLean opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-152.]
