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Name: People v. Sisuphan
Case #: A122351
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 01/29/2010

Penal Code section 512 does not provide a defense to embezzlement for those who return the property before charges are filed. Appellant, the supervising finance manager at a car dealership, was charged with embezzlement (Pen. Code, § 508) based on taking about $30K in cash and checks from the dealership’s safe. Before criminal charges were filed, appellant admitted to his employer that he took the money with the intent to return it, and that the reason he took it was because he was trying to get a problematic employee who he supervised fired, but who the general manager had previously refused to let go because he brought in lots of business. At trial, the court refused to give a proposed instruction to the jury advising that Penal Code section 512 establishes a “limited amnesty” defense to embezzlement for those who intend to return the property at the time of the taking and actually do so before criminal charges are filed. The appellate court reviewed the language of the statute, which says in part, “The fact that the accused intended to restore the property embezzled, is no ground of defense or mitigation of punishment, if it has not been restored before an information has been laid before a magistrate….” and found it does not create a defense to the crime. Due to the statute’s ambiguity, the court reviewed the legislative history. It found that the margin note to the original statute said, “intent to restore the property is no defense.” The court concluded the statute allows for mitigation at sentencing if the person does not intend to keep the property when it is taken and also returns the property before charges are filed. The cases relied on by appellant which suggest otherwise are either dicta or did not conduct a rigorous scrutiny of the Legislature’s intent.
The trial court did not violate appellant’s right to present a defense when it excluded evidence the money was repaid. The court disallowed evidence that appellant returned the money to the dealership, deeming it irrelevant in light of the fact that return of property is not a defense to the crime. Appellant argued it should have been admitted since it was relevant to show appellant’s intent at the time of the taking was not fraudulent. The court found no error. The statute prohibits appropriation of property by an agent “for his own use.” Thus, in determining fraudulent intent, the issue is not whether the agent intended to steal the money, but whether he intended to use it for a purpose other than that which the principal entrusted it to him. Appellant readily admitted his purpose was to get another employee fired, an act was outside the scope of trust of the dealership. So, the proffered evidence would not have disproved lack of fraudulent intent.