Legal Question in Criminal Law in California

Re: Is this legal?

It sounds as though you have stolen $9,000 from your former employer. You want to know what can happen to you, and how you can best protect yourself.

1. First, you can be prosecuted criminally. Only the District Attorney can do this to you. Before you can be prosecuted, three things have to happen: (a) the company has to file a complaint with the police department, (b) the police have to present the case to the DA, and (c) the DA has to decide to file the case. The DA has the power to file or not to file. You want to help him decide against filing. There are a couple of things you can do to help him decide. First, you can admit the theft and give the money back. Once he knows you have done this, the DA will realize that it would be difficult for him to get a jury angry at you. Second, if you have no criminal record, the DA would be less likely to file because he realizes he would probably be pressured by the judge to let you plead guilty to a misdemeanor. Third, there doesn't sem to be anything about your case to make it interesting to a DA. Embezzlement is not a "hot button" issue like domestic violence or drug dealing. Since the DA has total discretion whether to file the case, it seems likely that they will choose to use their limited resources on other cases that have more potential to make them look good.

2. Your ex-employer cannot promise not to turn you in, or THEY will be committing a crime. If you know about a crime and you don't report it, that is not illegal. However, if you know about a crime and you make a deal with the perpetrator not to report it, that IS illegal. It could even be considered blackmail (extortion) if they used the threat of reporting you to get you to pay the money back.

3. If you do get prosecuted, and you have already paid the money back, you will probably be offered an opportunity to plead guilty and receive a suspended sentence, or even probation. Even if you were not offered such a deal, if you plead guilty at an early stage, most judges would not send you to prison on a first offense, nor would they make you pay a large fine.

4. Your ex-employer can sue you in civil court, but all they can get is a money judgment. And if you have already paid the money back, they wouldn't get enough in a civil suit to justify the expense of hiring an attorney to do it.

The bottom line: the best thing to do is pay it all back as soon as possible. This won't totally protect you, but it will most likely make everybody feel less like going after you. You might be able to negotiate a deal where they give you a civil release (a promise not to sue you in civil court) in return for giving the money back, but I wouldn't recommend trying this. It's not worth the risk that you may make someone angry and end up going to jail and having a criminal record.