SERIES 1800 THEFT AND EXTORTION
F 1806 Theft By Embezzlement (PC 484, PC 503–515)
TABLE OF CONTENTS
F 1806.1 Titles And Identification Of Parties
F 1806.1 Inst 1 Theft By Embezzlement—Title
F 1806.1 Inst 2 Identification Of Prosecution And Defendant
F 1806.2 Theft By Embezzlement—Tailoring To Facts: Persons, Places, Things And Theories
F 1806.2 Inst 1 When Agent At Issue: Tailor To Facts
F 1806.2 Inst 2 Tailoring To Facts: Specify Owner And Property
F 1806.3 Theft By Embezzlement—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 1806.4 Theft By Embezzlement—Burden Of Proof Issues
F 1806.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1806.5 Theft By Embezzlement—Elements And Definitions
F 1806.5 Inst 1 Embezzlement: “Relation Of Trust And Confidence” Defined (PC 503)
F 1806.6 Theft By Embezzlement—Defense Theories
F 1806.6 Inst 1 (a-c) Embezzlement: Restoration Of The Funds As Defense Theory (PC 512)
F 1806.7 Theft By Embezzlement—Preliminary Fact Issues [Reserved]
F 1806.8 Theft By Embezzlement—Unanimity/Duplicity/Multiplicity [Reserved]
F 1806.9 Theft By Embezzlement—Lesser Offense Issues [Reserved]
F 1806 Notes
F 1806 Note 1 Theft By Embezzlement—CALCRIM Cross-References And Research Notes
F 1806 Note 2 Embezzlement: Claim Of Right As Defense
Return to Series 1800 Table of Contents.
F 1806.1 Titles And Identification Of Parties
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1806.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 1806.2Theft By Embezzlement—Tailoring To Facts: Persons, Places, Things And Theories
F 1806.2 Inst 1 When Agent At Issue: Tailor To Facts
*Replace CC 1806 as follows:
1. _______________ <name of agent> entrusted (his/her) property to the defendant;
2. _______________ <name of owner> gave _______________ <name of agent> complete or partial authority and control over the owner’s property;
3. _______________ <name of agent> did so because (he/she) trusted the defendant;
4. The defendant (converted/used) that property for (his/her)own benefit;
AND
5. When the defendant [converted] [used] 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).
Points and Authorities
See FORECITE F 400.2 Inst 1.
F 1806.2 Inst 2 Tailoring To Facts: Specify Owner And Property
*Modify CC 1806 as follows [added language is underlined; deleted language is stricken]:
[Change “An owner” or “the owner” to “_______________ <name of owner>“]
[Change “property” to _______________ <specification or description of property>“]
Points and Authorities
See FORECITE F 400.2 Inst 1.
F 1806.3 Theft By Embezzlement—Language That Is Argumentative, Confusing, Etc.[Reserved]
F 1806.4 Theft By Embezzlement—Burden Of Proof Issues
F 1806.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1806.5 Theft By Embezzlement—Elements And Definitions
F 1806.5 Inst 1 Embezzlement: “Relation Of Trust And Confidence” Defined (PC 503)
*Add to CC 1806:
“Trust” as used 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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Requirement Of Fiduciary Relationship—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 (1985) 167 CA3d 747, 758.) CALCRIM 1806 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 CALCRIM 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 (1992) 8 CA4th 475, 489-90.)
People v. Wooten (1996) 44 CA4th 1834, 1845-46, 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.
WARNING! Federal constitutional claims may be lost without proper federalization—To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
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 (1984) 155 CA3d 1103, 1142-43.) Because CJ 14.07 does not convey this rule, it should be appropriately modified when the evidence raises such an issue.
CALJIC NOTE: See FORECITE F 14.07a.
F 1806.6 Theft By Embezzlement—Defense Theories
F 1806.6 Inst 1 (a-c) Embezzlement: Restoration Of The Funds As Defense Theory (PC 512)
*Add to CC 1806:
Alternative a:
The defendant contends that the taking was not unlawful because (he/she) restored the funds. The prosecution has the burden of disproving this contention by proving at least one of the following beyond a reasonable doubt:
1. The defendant did not intend to restore the property at the time it was taken;
OR
2. The defendant did not fully restore the property before criminal charges were filed.
Unless the prosecution has proven at least one of the above allegations beyond a reasonable doubt you must find the defendant not guilty.
Alternative b [CC 3400 adaption]:
The prosecution must prove that the defendant took the funds unlawfully. The defendant contends (he/she) did not take the funds unlawfully because (he/she) restored the funds; however, the defendant does not need to prove this contention. The prosecution must prove that the defendant did not intend to restore the funds at the time they were taken or that the defendant did not fully restore the funds before criminal charges were filed. If you have a reasonable doubt about whether the prosecution has met the burden or disproving the defendant’s restoration contention, you must find (him/her) not guilty.
Alternative c:
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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Defense Theory Instruction—See FORECITE F 315.1.2 Inst 2.
Restoration Of Funds As Defense Theory Which Negates Criminal Intent—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 (1934) 220 C 3, 16.)
Such a defense negates an essential element of the offense: to permanently deprive the owner of the property. (See e.g., People v. Wooten (1996) 44 CA4th 1834, 1848-49 [claim of right].) Thus, the prosecution has the burden of disproving the intent to restore defense beyond a reasonable doubt. (See FORECITE F 315.1.2 Inst 2.)
WARNING! Federal constitutional claims may be lost without proper federalization—To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES
See also People v. Shaw DEPUBLISHED (1992) 10 CA4th 969 [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 (1902) 135 C 306, 307-08.
CALJIC NOTE: See FORECITE F 14.07b.
F 1806.7 Theft By Embezzlement—Preliminary Fact Issues [Reserved]
F 1806.8 Theft By Embezzlement—Unanimity/Duplicity/Multiplicity [Reserved]
F 1806.9 Theft By Embezzlement—Lesser Offense Issues [Reserved]
F 1806 NOTES
F 1806 Note 1 Theft By Embezzlement—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
See FORECITE F 1800 Notes
CALCRIM 1800 [Theft by Larceny]
CALCRIM 1801 [Theft: Degrees
CALCRIM 1802 [Theft: As Part of Overall Plan]
CALCRIM 1803 [Theft: By Employee or Agent]
CALCRIM 1804 [Theft by False Pretense]
CALCRIM 1805 Theft by Trick]
CALCRIM 1807 [Theft From Elder or Dependent Adult]
Research Notes:
See CLARAWEB Forum, Theft And Extortion—Series 1800.
F 1806 Note 2 Embezzlement: Claim Of Right As Defense
PC 511 creates a defense to the crime of embezzlement (PC 503) where “the property was appropriated openly and avowedly, and under a claim of title preferred in good faith, even though such claim is untenable.” In effect, the claim of right defense provides that, if a defendant takes property in the good faith belief that it belongs to him/her, the defendant lacks the intent necessary to commit embezzlement. (See People v. Wooten (1996) 44 CA4th 1834, 1848-49); however, if the defendant attempts to conceal the taking, either when it occurs or after it is discovered, the defense is unavailable. (People v. Stewart (1976) 16 C3d 133, 141.) The defense also does not apply where, “although defendant may have ‘believed’ he acted lawfully, he was aware of contrary facts which rendered such a belief wholly unreasonable, and hence in bad faith.” (People v. Stewart, 16 C3d at 140; see also, FORECITE F 4.001a, F 4.001b and F 14.00 n4, regarding claim of right in robbery and theft cases.)
PC 511 does not permit a claim of right defense to an embezzlement charge for “self help.” Hence, an employee may not use the defense where funds have been embezzled to satisfy an alleged debt owed by the employer. (See People v. Farsight (1998) 64 CA4th 1402; see also People v. Creath (1995) 31 CA4th 312, 318-19.) Similarly, a partner may not take partnership funds as an offset for a debt owed by the partnership to the partner. (People v. Farsight, 64 CA4th at 1407.)
CALJIC NOTE: See FORECITE F 14.07 n1/4.026a.
