As the Director of Finance at Toyota of Marin (the dealership), [Appellant Lou Surivan] Sisuphan managed the fi nancing contracts for vehicle sales and worked with lenders to obtain payment for these transactions. * * * Sisuphan complained repeatedly to management about the performance and attitude of one of the fi nance managers, Ian McClelland (McClelland). * * *

General manager Michael Christian (Christian) opted not to terminate McClelland “because he brought a lot of money into the dealership.”

On July 3, 2007, McClelland accepted a large payment from customer Jill Peacock for the vehicle she purchased. Peacock gave him

\($22\),600 in cash and two checks totaling \($7\),275.51. McClelland prepared a receipt, placed the cash, both checks, and a copy of the receipt in a large manila envelope, and took the envelope to the company safe in Sisuphan’s offi ce.

McClelland placed the envelope into the hopper at the top of the safe and turned the handle to rotate the hopper and drop its contents down into the safe. The envelope, which was stuffed with a large amount of cash, did not drop all the way down into the safe and became lodged, with a portion “sticking out.” McClelland could not retrieve the envelope or push it completely into the safe, so he decided to cut it and transfer the contents to two envelopes. He

* * * asked Sisuphan to keep an eye on the envelope while he went to the showroom. While McClelland was gone, Sisuphan “wiggled” the envelope free, extracted it from the safe, and kept it. When McClelland returned, Sisuphan told him “Hey, no problem, [the envelope] dropped into the safe.”

Dealership bookkeepers regularly collected payments from the safe and cross-checked these against carbon copies of the receipts in the receipt book. On the morning of July 5, 2007, one of the bookkeepers discovered in this manner that the payment for the Peacock purchase was missing. She placed a post-it note for Sisuphan on the corresponding page of the receipt book, inquiring, “Where’s money?”

She also notifi ed the controller, the general sales manager, and Christian that a payment was missing. When she asked Sisuphan about the missing payment, “he said they were looking into it.”

* * * Christian followed up with the customer, made a police report, and fi led a claim with the dealership’s insurer. He called all the managers together and told them he would not bring criminal charges if the money was returned within twenty-four hours.

On the evening of July 18, 2007, * * * Sisuphan [went] to Christian’s offi ce and admitted that he had taken the money. He claimed he had no intention of stealing it and had taken it to get McClelland fi red. He said he had not returned the money during the twenty-fourhour amnesty period because he did not believe Christian’s assurance that no punitive action would be taken.

The next day, Christian terminated Sisuphan’s employment. He prepared a separation report with a narrative that set out the events relating to the missing money and included a summary of Sisuphan’s confession. Sisuphan reviewed and signed the report without making any changes and repaid the entire sum of cash he had taken. * * *

However, “the checks were lost

[and] not returned.” The customer stopped payment on both checks and reissued them.

A week later, the district attorney fi led a criminal complaint against Sisuphan, asserting a felony offense of embezzlement by an employee of property valued in excess of \($400\)

* * * . The matter proceeded to a jury trial on April 15, 2008, and the jury returned a guilty verdict. In June 2008, the trial court sentenced Sisuphan to 120 days in custody and three years probation. Sisuphan fi led a timely notice of appeal from the judgment of conviction.

* * * *

The trial court excluded evidence that Sisuphan returned the money to the dealership, concluding it was not relevant, because return of the property is not a defense to embezzlement.

Sisuphan contends that evidence of repayment was relevant to show he lacked fraudulent intent at the time he took the money and asserts, for this reason, that the trial court’s ruling violated his Fifth Amendment right to present a defense and “all pertinent evidence of signifi cant value to that defense.”

[Emphasis added.]

Fraudulent intent is an essential element of embezzlement. Although restoration of the property is not a defense, evidence of repayment may be relevant to the extent it shows that a defendant’s intent at the time of the taking was not fraudulent. Such evidence is admissible “only when [a]

defendant shows a relevant and probative

[tending to prove] link in his subsequent actions from which it might be inferred his original intent was innocent.” The question before us, therefore, is whether evidence that Sisuphan returned the money reasonably tends to prove he lacked the requisite intent at the time of the taking. [Emphasis added.]

Section 508 [of the California Penal Code], which sets out the offense of which Sisuphan was convicted, provides: “Every clerk, agent, or servant of any person who fraudulently appropriates to his own use, or secretes with a fraudulent intent to appropriate to his own use, any property of another which has come into his control or care by virtue of his employment * * * is guilty of embezzlement.” Sisuphan denies he ever intended “to use the [money] to fi nancially better himself, even temporarily” and contends the evidence he sought to introduce showed “he returned the

[money] without having appropriated it to his own use in any way.”

He argues that this evidence negates fraudulent intent because it supports his claim that he took the money to get McClelland fi red and acted “to help his company by drawing attention to the inadequacy and incompetency of an employee.” We reject these contentions.

In determining whether Sisuphan’s intent was fraudulent at the time of the taking, the issue is not whether he intended to spend the money, but whether he intended to use it for a purpose other than that for which the dealership entrusted it to him. The offense of embezzlement contemplates a principal’s entrustment of property to an agent for certain purposes and the agent’s breach of that trust by acting outside his authority in his use of the property. * * *

Sisuphan’s undisputed purpose—to get McClelland fi red—was beyond the scope of his responsibility and therefore outside the trust afforded him by the dealership. Accordingly, even if the proffered [submitted]

evidence shows he took the money for this purpose, it does not tend to prove he lacked fraudulent intent, and the trial court properly excluded this evidence. [Emphasis added.]

* * * *

The judgment is affi rmed.

Questions:-

1. Given that Sisuphan returned the cash, was it fair of the dealership’s general manager to terminate Sisuphan’s employment? Why or why not?

2. Why was Sisuphan convicted of embezzlement instead of larceny? What is the difference between these two crimes?