People v. Vidana

Filed 8/18/16

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S224546

v. )

) Ct.App. 4/3 G050399

JUANITA VIDANA, )

) Riverside County

Defendant and Appellant. ) Super. Ct. No. RIF1105527

____________________________________)

Here we consider whether a defendant may be convicted of both grand theft

by larceny and embezzlement based on the same course of conduct. (Pen. Code,1

§§ 484, subd. (a), 487, subd. (a), 503.) We conclude a defendant cannot be

convicted of both crimes, and therefore affirm the Court of Appeal‘s judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND2

Defendant Juanita Vidana worked as a credit agent for Robertson‘s Ready

Mix (Robertson‘s). Defendant was assigned particular customers, and her duties

included ensuring invoices were paid.

When a customer came to Robertson‘s and paid an invoice with cash, the

assigned credit agent would write a receipt for the customer. The credit agent

would then write the customer number and amount of cash on an envelope, put the

1 All further undesignated statutory references are to this code.

2 There was no petition for rehearing in the Court of Appeal, so we rely on

that court‘s statement of the facts. (See Cal. Rules of Court, rule 8.500(c)(2).)

1

cash in the envelope, and take the cash to another Robertson‘s employee who

would count the cash and verify that the amount written on the envelope was

accurate. Between June 2010 to May 2011, defendant underreported $58,273.02

in cash payments from 12 different customers. At trial, defendant testified and

denied taking any money.

The court instructed the jury on grand theft by larceny (§ 484, subd. (a)

(section 484(a))3 and grand theft by embezzlement (§ 503).4 It also instructed the

3 The court instructed the jury: ―The defendant is charged in Count 2 with

grand theft by larceny in violation of Penal Code section 484. [¶] To prove that

the defendant is guilty of this crime, the People must prove that: [¶] 1. The

defendant took possession of property owned by someone else; [¶] 2. The

defendant took the property without the owner‘s or owner‘s agent‘s consent; [¶]

3. When the defendant took the property she intended to deprive the owner of it

permanently; [¶] AND [¶] 4. The defendant moved the property, even a small

distance, and kept it for any period of time, however brief. [¶] An agent is

someone to whom the owner has given complete or partial authority and control

over the owner‘s property.‖

4 The court instructed the jury: ―The defendant is charged in Count 1 with

grand theft by embezzlement in violation of Penal Code section 503. [¶] To prove

that the defendant is guilty of this crime, the People must prove that: [¶] 1. An

owner or the owner‘s agent entrusted its property to the defendant; [¶] 2. The

owner or owner‘s agent did so because she trusted the defendant; [¶] 3. The

defendant fraudulently converted that property for her own benefit; [¶] AND [¶]

4. When the defendant converted the property, she intended to deprive the owner

of its use. [¶] A person acts fraudulently when he or she takes undue advantage of

another person or causes a loss to that person by breaching a duty, trust or

confidence. [¶] An intent to deprive the owner of property, even temporarily, is

enough. [¶] An agent is someone to whom the owner has given complete or

partial authority and control over the owner‘s property.‖

The court also instructed the jury: ―If you conclude that the defendant

committed a theft and/or an embezzlement, you must decide whether the crime

was grand theft. [¶] The defendant committed grand theft if she stole, or

embezzled property worth more than $950.‖

2

jury: ―Each of the counts charged in this case is a separate crime. You must

consider each count separately and return a separate verdict for each one.‖ The

jury convicted defendant of both larceny and embezzlement. The trial court

suspended imposition of sentence and granted defendant three years of formal

probation. She was ordered to serve 240 days in jail, the first 30 days

consecutively, and the remainder to be served on weekends. Defendant was

ordered to pay $58,273.02 in victim restitution, and certain fines and fees.

The Court of Appeal held defendant could not be convicted of both larceny

and embezzlement for the same course of conduct because they are not different

offenses, but rather two ways of committing the single offense of theft, and struck

defendant‘s larceny conviction. In so doing, it expressly disagreed with People v.

Nazary (2010) 191 Cal.App.4th 727, 739-742 (Nazary), which held that a

defendant could properly be convicted of both larceny and embezzlement by an

employee. We granted the People‘s petition for review to consider whether

larceny and embezzlement are ―different offenses‖ within the meaning of

section 954, and if not, whether section 954 permits multiple convictions for

―different statements of the same offense.‖

II. DISCUSSION

A. Background

1. When multiple convictions are authorized

Section 954 provides as relevant here: ―An accusatory pleading may

charge two or more different offenses connected together in their commission, or

different statements of the same offense or two or more different offenses of the

same class of crimes or offenses, under separate counts . . . . The prosecution is

not required to elect between the different offenses or counts set forth in the

accusatory pleading, but the defendant may be convicted of any number of the

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offenses charged . . . .‖5 Under section 954, as we have interpreted it, ―a

defendant properly may be convicted of two offenses if neither offense is

necessarily included in the other, even though under section 654 he or she could

not be punished for more than one offense arising from the single act or indivisible

course of conduct.‖ (People v. Ortega (1998) 19 Cal.4th 686, 693 (Ortega); see

People v. Gonzalez (2014) 60 Cal.4th 533, 537 (Gonzalez) [―We have repeatedly

held that the same act can support multiple charges and multiple convictions‖];

People v. Pearson (1986) 42 Cal.3d 351, 354-355 (Pearson) [a defendant can be

convicted of both sodomy with a child under 14 and lewd conduct for the same act

because ―the offense of lewd conduct is not a lesser included offense of statutory

sodomy‖].)

As can be seen, and as defendant concedes, even if larceny and

embezzlement are merely two ways to commit the single crime of theft, a

defendant may be charged with ―different statements of the same offense.‖

(§ 954.) Defendant asserts, however, that although the prosecutor could properly

charge her with two counts of theft under separate theories of larceny and

5 Section 954 provides in full: ―An accusatory pleading may charge two or

more different offenses connected together in their commission, or different

statements of the same offense or two or more different offenses of the same class

of crimes or offenses, under separate counts, and if two or more accusatory

pleadings are filed in such cases in the same court, the court may order them to be

consolidated. The prosecution is not required to elect between the different

offenses or counts set forth in the accusatory pleading, but the defendant may be

convicted of any number of the offenses charged, and each offense of which the

defendant is convicted must be stated in the verdict or the finding of the court;

provided, that the court in which a case is triable, in the interests of justice and for

good cause shown, may in its discretion order that the different offenses or counts

set forth in the accusatory pleading be tried separately or divided into two or more

groups and each of said groups tried separately. An acquittal of one or more

counts shall not be deemed an acquittal of any other count.‖

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embezzlement, she could only be convicted of one theft offense. That is because,

she argues, the ―offenses of larceny, embezzlement, and theft by false pretenses

were consolidated into the single offense of theft in 1927‖ by amendments to

sections 484 and 952 and the enactment of section 490a, and section 954 does not

permit multiple convictions for ―different statements of the same offense.‖

The determination of whether larceny under section 484(a) and

embezzlement under section 503 are ―different offenses or merely describe

different ways of committing the same offense properly turns on the Legislature‘s

intent,‖ and ―if the Legislature meant to define only one offense, we may not turn

it into two.‖ (Gonzalez, supra, 60 Cal.4th at p. 537.) ―We are required to

harmonize the various parts of a statutory enactment by considering [them] in the

context of the statutory framework as a whole. (Palos Verdes Faculty Assn. v.

Palos Verdes Peninsula Unified School Dist. (1978) 21 Cal.3d 650, 659.)

Ordinarily, the words of the statute provide the most reliable indication of

legislative intent. (Pacific Gas & Electric Co. v. County of Stanislaus (1997) 16

Cal.4th 1143, 1152.) However, a statute‘s literal terms will not be given effect if

to do so would yield an unreasonable or mischievous result.‖ (B.H. v. County of

San Bernardino (2015) 62 Cal.4th 168, 189.) If ― ‗the statutory language is

susceptible of more than one reasonable construction, we can look to legislative

history in aid of ascertaining legislative intent.‘ ‖ (Gonzalez, supra, 60 Cal.4th at

pp. 537-538.)

Recently in Gonzalez, supra, 60 Cal.4th 533, we considered ―whether a

defendant may, consistently with Penal Code section 954, be convicted of both

oral copulation of an unconscious person (§ 288a, subd. (f)) and oral copulation of

an intoxicated person (id., subd. (i)) based on the same act.‖ (Id. at p. 535,

fn. omitted.) We first observed that ―[t]hese offenses differ in their necessary

elements — an act of oral copulation may be committed with a person who is

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unconscious but not intoxicated, and also with a person who is intoxicated but not

unconscious — and neither offense is included within the other.‖ (Id. at p. 539.)

We also considered the text and structure of section 288a, observing:

―Subdivision (a) of section 288a defines what conduct constitutes the act of oral

copulation. Thereafter, subdivisions (b) through (k) define various ways the act

may be criminal. Each subdivision sets forth all the elements of a crime, and each

prescribes a specific punishment.‖ (Gonzalez, at p. 539.) Not all of these

punishments were the same, although the punishments for violation of

subdivisions (f) and (i) — the subdivisions at issue in Gonzalez — were the same.

(Id. at pp. 538-539.) ―That each subdivision of section 288a was drafted to be

self-contained supports the view that each describes an independent offense, and

therefore section 954 is no impediment to a defendant‘s conviction under more

than one such subdivision for a single act.‖ (Id. at p. 539.) We concluded ―the

two statutory subdivisions at issue here describe different offenses, and defendant

may properly be convicted of, although not punished for, both.‖ (Id. at p. 535; see

People v. Reed (2006) 38 Cal.4th 1224, 1230 (Reed) [upholding under § 954

convictions for ―possessing a firearm by a felon, carrying a concealed firearm, and

carrying a loaded firearm in a public place‖].)

In Nazary, supra, 191 Cal.App.4th at pages 741-742, the Court of Appeal

held that a defendant employee could properly be convicted of both grand theft by

an employee (larceny) and embezzlement by an employee. (§§ 487, subd. (b)(3),

508.) It rejected the argument that ―embezzlement is no longer an independent

crime‖ because it has been ―combined into the single statutory definition of theft

under section 484.‖ (Nazary, at pp. 739-740.) The court noted that ―the elements

of embezzlement and grand theft by an employee, and the distinction between

them, continue to exist.‖ (Id. at p. 741.) ―Because the jury had to find different

intents and elements supported by the evidence for each offense, and . . . the

6

distinctions between the theft offenses in section 484 were not affected by the

consolidation of those offenses generally [citation], we conclude [the defendant]

was properly convicted for both offenses.‖ (Id. at p. 742.)

2. Larceny and embezzlement

Larceny ―is committed by every person who (1) takes possession (2) of

personal property (3) owned or possessed by another, (4) by means of trespass and

(5) with intent to steal the property, and (6) carries the property away.‖ (People v.

Davis (1998) 19 Cal.4th 301, 305 (Davis).) ―Embezzlement is the fraudulent

appropriation of property by a person to whom it has been intrusted.‖ (§ 503;

People v. De Coursey (1882) 61 Cal. 134, 135.)

We have previously recounted the history of larceny and embezzlement in

People v. Williams (2013) 57 Cal.4th 776 (Williams): ―In 1757, the British

Parliament enacted a statute prohibiting theft by false pretenses. [Citation.] Forty-

two years later, it enacted a statute prohibiting embezzlement. [Citation.] Each

was considered a statutory offense separate and distinct from the common law

crime of larceny. [Citation.] Unlike larceny, the newly enacted offense of theft by

false pretenses involved acquiring title over the property, not just possession.

[Citation.] Unlike larceny, the newly enacted offense of embezzlement involved

an initial, lawful possession of the victim‘s property, followed by its

misappropriation. [Citation.] [¶] Britain‘s 18th century division of theft into the

three separate crimes of larceny, false pretenses, and embezzlement made its way

into the early criminal laws of the American states. That import ha[d] been widely

criticized in this nation‘s legal community because of the seemingly arbitrary

distinctions between the three offenses and the burden these distinctions . . . posed

for prosecutors. [Citations.] [¶] For instance, it was difficult at times to

determine whether a defendant had acquired title to the property, or merely

7

possession, a distinction separating theft by false pretenses from larceny by trick.

[Citations.] It was similarly difficult at times to determine whether a defendant,

clearly guilty of some theft offense, had committed embezzlement or larceny . . . .

[¶] In the early 20th century, many state legislatures, recognizing the burdens

imposed on prosecutors by the separation of the three crimes of larceny, false

pretenses, and embezzlement, consolidated those offenses into a single crime,

usually called ‗theft.‘ ‖ (Id. at pp. 784-785, fn. omitted.)

California reduced its problems with pleading and proving larceny,

embezzlement, and false pretenses in 1915 when it amended section 954 to

provide, as it does today, that a prosecutor may ―charge two or more different

offenses connected together in their commission,‖ and need not ―elect between the

different offenses or counts,‖ but ―the defendant may be convicted of any number

of the offenses charged.‖ (§ 954, as amended by Stats. 1915, ch. 452, § 1, p. 744.)

Before this amendment, section 954 had provided that a defendant could ―be

convicted of but one of the offenses charged.‖ (§ 954, as amended by Stats. 1905,

ch. 574, § 1, p. 772.) Thus, under section 954 as amended in 1915, the prosecutor

no longer had to choose whether a defendant had committed larceny,

embezzlement, or false pretenses, but could allow the jury to decide what the

evidence demonstrated, and an appellate court to determine if the verdict was

supported by substantial evidence. In this way larceny, embezzlement, and false

pretenses were no different from any other offenses with similar elements.

3. 1927 legislation

In 1927, the California Legislature passed numerous and lengthy bills

updating the criminal justice system, including amendments to sections 484, 487,

and 952, and the enactment of section 490a. (Stats. 1927, ch. 612, § 1, p. 1043;

Stats. 1927, ch. 619, §§ 1, 4, 7, pp. 1046-1047.) As enacted in 1872, section 484

8

provided: ―Larceny is the felonious stealing, taking, carrying, leading, or driving

away the personal property of another.‖6 In 1927, the section was amended to

provide as relevant here: ―Every person who shall feloniously steal, take, carry,

lead, or drive away the personal property of another, or who shall fraudulently

appropriate property which has been entrusted to him, or who shall knowingly and

designedly, by any false or fraudulent representation or pretense, defraud any

other person of money, labor, or real or personal property, . . . is guilty of theft.‖

(Stats. 1927, ch. 619, § 1, p. 1046). This portion of section 484 has remained

substantively unchanged.7

The legislative history to the amendment to section 484 states that the

amendment ―consolidates the present crimes known as larceny, embezzlement and

obtaining property under false pretenses, into one crime, designated as theft. The

basis of all of these crimes as at present known is the unlawful taking or

converting to one‘s own use of the property of another. The crimes are so similar

that as the law now stands it is difficult, frequently practically impossible, to tell

which crime has been committed in a particular transaction. By combining them

all as the crime of theft, this difficulty will be obviated.‖ (Com., Rep. (Jan. 13,

6 The Penal Code enacted in 1872 was ―not published as part of the Statutes

of 1871-1872,‖ and was not given a chapter number. (Kleps, The Revision and

Codification of Cal. Statutes 1849-1953 (1954) 42 Cal. L.Rev. 766, 775.)

7 Section 484(a) currently provides in relevant part: ―Every person who shall

feloniously steal, take, carry, lead, or drive away the personal property of another,

or who shall fraudulently appropriate property which has been entrusted to him or

her, or who shall knowingly and designedly, by any false or fraudulent

representation or pretense, defraud any other person of money, labor or real or

personal property, or who causes or procures others to report falsely of his or her

wealth or mercantile character and by thus imposing upon any person, obtains

credit and thereby fraudulently gets or obtains possession of money, or property or

obtains the labor or service of another, is guilty of theft.‖

9

1927) submitted to Sen. (Jan. 17, 1927) and pub. 1 Sen. J. (47th Sess. 1927) 152,

156, reprinted 5 Appen. to Sen. & Assem. JJ. (47th Sess. 1927) at p. 11.)

Before 1927, section 487 had provided as relevant here: ―Grand larceny is

larceny committed in either of the following cases: [¶] 1. When the property taken

is of a value exceeding two hundred dollars.‖ (Stats. 1923, ch. 129, § 1, p. 271.)

In 1927, this section was amended to provide as relevant here: ―Grand theft is

theft committed in either of the following cases: [¶] 1. When the property taken is

of a value exceeding two hundred dollars.‖ (Stats. 1927, ch. 619, § 4, p. 1047.)

Section 490a, as enacted in 1927 and never amended, provides: ―Wherever

any law or statute of this state refers to or mentions larceny, embezzlement, or

stealing, said law or statute shall hereafter be read and interpreted as if the word

‗theft‘ were substituted therefor.‖ The legislative history for section 490a states:

―It is recommended that this new section be added, providing that wherever any

law or statute of this State mentions larceny, embezzlement, or stealing, it shall

hereafter be read and interpreted as if theft were the crime referred to, thus

obviating the necessity of amending several sections which relate to the crimes

now sought to be consolidated into the new crime of theft.‖ (Com., Rep., supra,

pub. in 1 Sen. J. (47th Sess. 1927) at p. 156, reprinted 5 Appen. to Sen. & Assem.

JJ. (47th Sess. 1927) at pp. 11-12.)

Also in 1927, section 952 was amended to provide as relevant here: ―In

charging theft it shall be sufficient to allege that the defendant unlawfully took the

property of another.‖8 (Stats. 1927, ch. 612, § 1, p. 1043.) The current language

8 As enacted in 1872, section 952 provided that an indictment ―must be direct

and certain, as it regards: [¶] 1. The party charged; [¶] 2. The offense charged; [¶]

3. The particular circumstances of the offense charged, when they are necessary to

constitute a complete offense.‖ (1872 Pen. Code, § 952.)

10

is similar, but now refers to ―the labor or property of another.‖ (§ 952, as

amended by Stats. 1929, ch. 159, § 1, p. 303.)

4. Judicial interpretation of the 1927 legislation

Our cases interpreting section 490a and the 1927 amendment to section 484

have repeatedly held that the legislation simplified the procedure of charging

larceny, embezzlement, and false pretense, but did not change their elements.

Thus, two years after the 1927 legislation, this court stated that the ―amendment to

section 484, in connection with other cognate legislation . . . is designed not only

to simplify procedure but also to relieve the courts from difficult questions arising

from the contention that the evidence shows the commission of some other of

these crimes than the one alleged in the indictment or information, a contention

upon which defendants may escape just conviction solely because of the border

line distinction existing between these various crimes.‖ (People v. Myers (1929)

206 Cal. 480, 484 (Myers).) We observed that section 484 as amended

―merely . . . amalgamate[s] the crimes of larceny, embezzlement, false pretenses

and kindred offenses under the cognomen of theft. No elements of the former

crimes have been changed by addition or subtraction.‖ (Myers, at p. 483; accord,

Williams, supra, 57 Cal.4th at p. 789 [―the 1927 legislation enacting section 490a

and the theft consolidation statute [citations] left unchanged the elements of

theft‖]; id. at pp. 786-787 [the reference in the definition of robbery to a ―felonious

taking of personal property‖ refers only to larceny, not false pretenses, so that

robbery is not committed by the crime of false pretenses and the subsequent use of

force or fear]; Davis, supra, 19 Cal.4th at p. 304 [the 1927 legislation consolidated

the ―formerly distinct offenses of larceny, embezzlement, and obtaining property

by false pretenses‖ into the ―single crime of ‗theft,‘ ‖ but did not abolish their

substantive distinctions].)

11

Two years after Myers, we explained: ―It is not necessary that the

information state the kind of grand theft with which the defendant is charged . . . .

[¶] Under the new procedure, it is obviously unnecessary and improper to compel

the district attorney in advance of the proof, to elect upon what theory the

prosecution is to proceed, whether larceny, false pretense, trick and device,

embezzlement, etc. These distinctions in the charge and proof . . . . were

eliminated, not only for the purpose of simplifying procedure, but also to relieve

the courts of the necessity of drawing fine distinctions as to whether the particular

crime charged had been proved, and the prosecution of charging in advance, at its

peril, an offense which the evidence, because of such fine distinctions, might show

not to exist although the guilt of the defendant be manifest.‖ (People v. Fewkes

(1931) 214 Cal. 142, 149; People v. Jones (1950) 36 Cal.2d 373, 376-377 [section

484 includes the crimes of larceny, embezzlement, false pretenses, and ―kindred

offenses . . . under the designation of theft‖].)

We later explained: ―The purpose of the consolidation was to remove the

technicalities that existed in the pleading and proof of these crimes at common

law. . . . The elements of the several types of theft included within section 484

have not been changed, however, and a judgment of conviction of theft, based on a

general verdict of guilty, can be sustained only if the evidence discloses the

elements of one of the consolidated offenses.‖ (People v. Ashley (1954) 42 Cal.2d

246, 258.) Although Ashley also contained broad language that ―[j]uries need no

longer be concerned with the technical differences between the several types of

theft, and can return a general verdict of guilty if they find that an ‗unlawful

taking‘ has been proved,‖ in Ashley, the trial court instructed the jury on both

larceny and false pretenses, and told the jury it must be unanimous on ―the type of

theft, if any, that was committed‖ by the defendant. (Id. at pp. 257-258.)

12

We have also held that a jury need not unanimously decide what form of

theft a defendant committed. In People v. Nor Woods (1951) 37 Cal.2d 584, 585

(Nor Woods), the defendant appealed his grand theft conviction. In an opinion by

Justice Traynor, this court rejected his challenge that the information was

defective for not identifying the kind of grand theft with which he was charged,

concluding it was ―not necessary for the information to allege the particular type

of theft involved, such as false pretenses, embezzlement, or larceny by trick and

device.‖ (Id. at p. 586.) We further held ―there was no error in failing to instruct

the jury that they must agree upon the method by which the theft was committed.‖

(Ibid.) We reasoned, ―defendant could be found guilty of theft by one means or

another, and since by the verdict the jury determined that he did fraudulently

appropriate the property, it is immaterial whether or not they agreed as to the

technical pigeonhole into which the theft fell.‖ (Ibid.)9

Thus, CALCRIM No. 1861 provides in relevant part: ―Each theory of theft

has different requirements, and I have instructed you on (both/all). [¶] You may

not find the defendant guilty of theft unless all of you agree that the People have

proved that the defendant committed theft under at least one theory. But all of you

9 Some Courts of Appeal have extended Nor Wood and appeared to hold that

a theft conviction may be upheld under any theory of theft even if the trial court

did not instruct the jury on that theory of theft. (E.g., People v. Fenderson (2010)

188 Cal.App.4th 625, 635-637 [concluding there was substantial evidence of

larceny but also upholding conviction on theory of embezzlement when the trial

court did not instruct the jury on embezzlement]; People v. North (1982)

131 Cal.App.3d 112, 117-118 [over defendant‘s objection the jury was instructed

on larceny although false pretenses was ―a more accurate description of the crime

committed‖; judgment must be affirmed if there is sufficient evidence under any

theory of theft].) This court has never so held. We need not address this issue

here because the jury in this case was instructed on the elements of both larceny

and embezzlement.

13

do not have to agree on the same theory.‖ Here, as noted above, the jury was not

instructed in the language of CALCRIM No. 1861, but rather the court instructed

the jury: ―Each of the counts charged in this case is a separate crime. You must

consider each count separately and return a separate verdict for each one.‖

This court has similarly held it is not necessary that the jury unanimously

agree whether a defendant premeditated a murder or committed the murder while

engaged in a felony. (See, e.g., People v. Johnson (2015) 61 Cal.4th 734, 775 [the

―trial court was not required to instruct the jury to agree unanimously whether

defendant had committed a premeditated murder or a first degree felony murder‖];

People v. Sattiewhite (2014) 59 Cal.4th 446, 479 [―Premeditated murder and

felony murder are not distinct crimes; rather, they are alternative theories of

liability, and jurors need not unanimously agree on a particular theory of liability

in order to reach a unanimous verdict‖]; People v. Chavez (1951) 37 Cal.2d 656,

670-672; see Schad v. Arizona (1991) 501 U.S. 624, 627, 630, 640-645 (plur. opn.

of Souter, J.) [instructions that do not require jury to unanimously agree whether

murder was premeditated or felony murder to find defendant guilty of first degree

murder do not violate due process].)

5. Modern statutory scheme

a. Placement of the larceny and embezzlement statutes

In providing that ―[e]very person who shall . . . fraudulently appropriate

property which has been entrusted to him, or who shall knowingly and designedly,

by any false or fraudulent representation or pretense, defraud any other person of

money, labor, or real or personal property, . . . is guilty of theft‖ (Stats. 1927, ch.

619, § 1, p. 1046), the 1927 amendment to section 484 did not repeal or cross-

reference then existing embezzlement and false pretenses statutes. These

embezzlement and false pretenses statutory schemes continue to be in effect today.

14

Thus, section 484, the provision that sets forth the elements of larceny and

at least partial definitions of embezzlement and false pretenses, and section 490a,

are located in title 13 (of Crimes Against Property), chapter 5 of the Penal Code,

which is entitled Larceny. Sections 489, 490, and 490.2 generally prescribe the

punishment for grand and petty theft.10

Chapter 6 of title 13 is entitled ―Embezzlement,‖ and since 1872,

section 503 in this chapter has defined embezzlement as ―the fraudulent

appropriation of property by a person to whom it has been intrusted.‖ As can be

seen, this is similar to the language ―or who shall fraudulently appropriate

property which has been entrusted to him or her‖ in section 484(a). Chapter 6,

however, contains further descriptions of, defenses to, and punishment for

embezzlement not contained in section 484(a). Since before 1927, chapter 6 has

stated that unlike larceny, which requires a taking (Williams, supra, 57 Cal.4th at

p. 788), ―[a] distinct act of taking is not necessary to constitute embezzlement‖

(§ 509). It has also provided a defense ―that the property was appropriated openly

and avowedly, and under a claim of title preferred in good faith, even though such

claim is untenable‖ (§ 511), and declared it is not a ―ground of defense or

mitigation of punishment‖ if ―the accused intended to restore the property

embezzled,‖ but it ―has not been restored before an information has been laid

before a magistrate, or an indictment found by a grand jury‖ (§ 512). This chapter,

before 1927 and continuing today, also describes the crime of embezzlement when

committed by public and private officers, deputies, and other persons (§ 504), a

carrier or person transporting property for hire (§ 505), persons controlling or

10 Section 484c, enacted in 1965, provides: ―Any person who submits a false

voucher to obtain construction loan funds and does not use the funds for the

purpose for which the claim was submitted is guilty of embezzlement.‖

15

entrusted with the property of another (§ 506), collectors of debts (§ 506a), a

bailee, tenant, lodger, or attorney-in-fact (§ 507), or a clerk, agent or servant

(§ 508).11 Section 514 describes the punishment for embezzlement.12 As relevant

here, section 514 provides, ―Every person guilty of embezzlement is punishable in

the manner prescribed for theft of property of the value or kind embezzled.‖13

b. Statutes using the terms “larceny” or “theft” and

“embezzlement”

The Legislature continues to use the terms ―larceny‖ and ―embezzlement,‖

and to enact statutes using both terms, or both ―theft‖ and ―embezzlement.‖ For

example, section 501, which was enacted in 1989, provides for when there is a

―trial for larceny or embezzlement of money, bank notes, certificates of stock, or

11 Section 424, enacted in 1872, and located in title 12, addresses

embezzlement by public officers and other persons ―charged with the receipt,

safekeeping, transfer, or disbursement of public moneys.‖ (See generally, People

v. Hubbard (2016) 63 Cal.4th 378.)

12 As enacted in 1872, this portion of section 514 provided: ―Every person

guilty of embezzlement is punishable in the manner prescribed for feloniously

stealing property of the value of that embezzled . . . .‖ In 1959, section 514 was

amended to substitute the present language of ―theft of property of the value or

kind embezzled‖ for ―feloniously stealing property of the value of that

embezzled.‖ (Stats. 1959, ch. 581, § 1, p. 2541.) Section 514 currently provides

in full: ―Every person guilty of embezzlement is punishable in the manner

prescribed for theft of property of the value or kind embezzled; and where the

property embezzled is an evidence of debt or right of action, the sum due upon it

or secured to be paid by it must be taken as its value; if the embezzlement or

defalcation is of the public funds of the United States, or of this state, or of any

county or municipality within this state, the offense is a felony, and is punishable

by imprisonment in the state prison; and the person so convicted is ineligible

thereafter to any office of honor, trust, or profit in this state.‖

13 Chapter 8 of title 13 is entitled False Personation and Cheats, and includes

section 532, which defines false pretenses. Section 532, subdivision (b) (formerly

section 1110), includes a corroboration requirement for false pretenses that is not

found in section 484(a).

16

valuable securities . . .‖ (Italics added.) Section 186.2, enacted in 1993 and last

amended in 2015, provides separate definitions for ―[e]mbezzlement‖ and for

―[g]rand theft‖ (id., subd. (a)(5) & (16)), and provides that ―[o]rganized crime‖

includes ―crime that . . . through planning and coordination of individual efforts,

seeks to conduct the illegal activities of . . . embezzlement . . . [and] grand theft‖

(id., subd. (d)). (Italics added.)14

14 (See, e.g., § 27, subd. (a)(2) [making ―liable to punishment under the laws

of this state‖ ―[a]ll who commit any offense without this state which, if committed

within this state, would be larceny . . . or embezzlement under the laws of this

state, and bring the property stolen or embezzled, or any part of it, or are found

with it, or any part of it, within this state‖ (italics added)]; § 368, subd. (d)

[punishment for ―[a]ny person who is not a caretaker who violates any provision

of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section

530.5 proscribing identity theft, with respect to the property or personal

identifying information of an elder or a dependent adult‖ (italics added)]; § 1411,

subd. (a) [―This notice shall be given upon the conviction of a person for an

offense involving the theft, embezzlement, or possession of the property,‖ and

providing for when ―the property stolen or embezzled is not claimed by the owner

before the expiration of three months after the giving of this notice‖ (italics

added)]; Bus. & Prof. Code, § 19914, subd. (a)(4) [work permit may be revoked if

holder ―[c]ommitted, attempted, or conspired to commit, any embezzlement or

larceny against a gambling licensee or upon the premises of a gambling

establishment‖ (italics added)]; Fin. Code, § 6200 [requirement for certain

directors, officers, and employees to execute bonds ―as an indemnity for any loss

the association may sustain of money or other property by or through any fraud,

dishonesty, forgery or alteration, larceny, theft, embezzlement, . . . or any other

dishonest or criminal act or omission by the director, officer, or employee‖ (italics

added)]; Gov. Code, § 11007.5 [conditionally authorizing ―[a]ny state agency‖ to

―secure insurance protecting the state against loss by burglary, robbery, theft, or

embezzlement of funds or securities belonging to the state which are in the

possession or control of the agency‖ (italics added)]; Veh. Code, § 4605 [―no fees

or penalties imposed under this code . . . shall accrue due to operation of a vehicle

in conjunction with the theft or embezzlement of the vehicle if the owner or legal

owner submits a certificate in writing setting forth the circumstances of the theft or

embezzlement and certifies that the theft or embezzlement of the vehicle has been

reported pursuant to the provisions of this code‖ (italics added)]; Veh. Code,

(footnote continued on next page)

17

c. Application of section 490a

As noted above, section 490a, as enacted in 1927 and never amended,

provides: ―Wherever any law or statute of this state refers to or mentions larceny,

embezzlement, or stealing, said law or statute shall hereafter be read and

interpreted as if the word ‗theft‘ were substituted therefor.‖ The legislative history

for section 490a, as noted above, states: ―It is recommended that this new section

be added, providing that wherever any law or statute of this State mentions

larceny, embezzlement, or stealing, it shall hereafter be read and interpreted as if

theft were the crime referred to, thus obviating the necessity of amending several

sections which relate to the crimes now sought to be consolidated into the new

crime of theft.‖ (Com., Rep., supra, pub. in 1 Sen. J. (47th Sess. 1927) at p. 156,

reprinted 5 Appen. to Sen. & Assem. JJ. (47th Sess. 1927) at pp. 11-12.)

The Court of Appeal in this case read section 490a as ―literally excising the

words ‗larceny‘ and ‗embezzlement‘ from the legislative dictionary.‖ That, of

course, is not the case as can be seen by the numerous statutory provisions

delineated above using the terms larceny and embezzlement.

Moreover, literal application of section 490a would render many statutes

nonsensical. Although this court long ago said that ―the essence of section 490a is

simply to effect a change in nomenclature without disturbing the substance of any

law‖ (Myers, supra, 206 Cal. at p. 485; accord, Williams, supra, 57 Cal.4th at

p. 789), it does not appear we have ever applied section 490a to effect a change in

(footnote continued from previous page)

§ 38125 [―theft or embezzlement of an off-highway motor vehicle‖ (italics

added)].)

18

nomenclature or to change the language of any statute.15 Thus, Vehicle Code

section 10502, subdivision (a) provides in part, ―The owner or legal owner of a

vehicle registered under this code which has been stolen or embezzled may notify

the Department of the California Highway Patrol of the theft or embezzlement, but

in the event of an embezzlement . . . may make the report only after having

procured the issuance of a warrant for the arrest of the person charged with the

embezzlement.‖ Under a literal reading of section 490a, this law would instead

provide: The owner or legal owner of a vehicle registered under this code which

has been stolen or stolen may notify the Department of the California Highway

Patrol of the theft or theft, but in the event of a theft . . . may make the report only

after having procured the issuance of a warrant for the arrest of the person charged

with the theft. Nonetheless, although section 490a should not be read literally, this

circumstance does not reduce its import in signaling the Legislature‘s intent with

regard to the concomitant 1927 amendment to section 484.

B. Are larceny and embezzlement different offenses?

1. Larceny and embezzlement are different statements of the same

offense

We now consider whether larceny under section 484(a) and embezzlement

under section 503 are different offenses, or different statements of the same

15 We did observe in People v. Tufunga (1999) 21 Cal.4th 935, 952,

footnote 4, that section 511, which had been described as providing a claim of title

defense to embezzlement, may have been expanded by the enactment of section

490a to ―all theft-related offenses.‖ But we did not decide the point, which was

unnecessary to our holding that in 1872 the robbery statute codified the common

law recognition of a claim of right defense to robbery. (Tufunga, at pp. 946-947,

950.) Indeed, in Williams, supra, 57 Cal.4th at page 789, we rejected the dissent‘s

assertion that section 490a — which makes no reference to robbery — had

changed the elements of robbery, and we noted section 490a had left ―intact the

elements of theft, to which it explicitly refers.‖ (Italics omitted.)

19

offense of theft. We conclude they are different statements of the same offense,

and that a defendant may not be convicted of both based on the same course of

conduct.16

Larceny and embezzlement have different elements and neither is a lesser

included offense of the other. These circumstances, however, do not definitively

resolve whether larceny and embezzlement are a single offense. As noted above,

we have long held that premeditated murder and felony murder — although

requiring different elements — are not distinct crimes but simply alternative

means of committing the single offense of murder.

Although embezzlement is proscribed in a self-contained statute in a

chapter of the Penal Code that is separate from that addressing larceny,

embezzlement is also proscribed by section 484(a). To the extent that

section 484(a) does not include all of the elements of and defenses to

embezzlement, and the statute is thereby ambiguous, our conclusion is further

supported by the legislative history of the 1927 amendment to section 484, which,

as noted above, states that the amendment ―consolidates the present crimes known

as larceny, embezzlement and obtaining property under false pretenses, into one

crime, designated as theft. The basis of all of these crimes as at present known is

the unlawful taking or converting to one‘s own use of the property of another. The

crimes are so similar that as the law now stands it is difficult, frequently

practically impossible, to tell which crime has been committed in a particular

transaction. By combining them all as the crime of theft, this difficulty will be

obviated.‖ (Com., Rep., supra, pub. in 1 Sen. J. (47th Sess. 1927) at p. 156,

reprinted 5 Appen. to Sen. & Assem. JJ. (47th Sess. 1927) at p. 11.)

16 We disapprove People v. Nazary, supra, 191 Cal.App.4th 727, to the extent

it is inconsistent with this opinion.

20

Indeed, the Legislature has expressly stated that ―[w]herever any law or

statute of this state refers to or mentions larceny, embezzlement, or stealing, said

law or statute shall hereafter be read and interpreted as if the word ‗theft‘ were

substituted therefor.‖ (§ 490a.) Although the terms of section 490a are awkward

in their literal application, the obvious intent of this statute — enacted at the same

time section 484 was amended to include embezzlement — was to create a single

crime of theft. In deciding whether larceny and embezzlement are different

offenses, our focus is on the Legislature‘s intent. ―[I]f the Legislature meant to

define only one offense‖ in amending section 484 in 1927, ―we may not turn it

into two.‖ (Gonzalez, supra, 60 Cal.4th at p. 537.)

Larceny under section 484(a) and embezzlement under section 503 also

generally have the same punishment. (See §§ 489, 490, 490.1, 490.2, 514 [―Every

person guilty of embezzlement is punishable in the manner prescribed for theft of

property of the value or kind embezzled,‖ except for embezzlement of public

funds]17.)

Nor does the Legislature‘s continued use of the terms ―larceny‖ (or ―theft‖)

and ―embezzlement‖ in various statutes transform larceny and embezzlement into

different offenses. Rather, these terms are simply different ways of describing the

behavior proscribed by those statutes.

For these reasons we conclude larceny under section 484(a) and

embezzlement under section 503 are different statements of the same offense.

Thus, a trial court properly instructs a jury on the elements of larceny and

17 Moreover, ―embezzlement of public money‖ has no statute of limitations.

(§ 799.) Here, we do not address the embezzlement of public funds, and need not

decide if a defendant could be convicted of both that crime and larceny given these

differences. (See also § 506b.)

21

embezzlement if both instructions are supported by substantial evidence. As we

have long recognized, a trial court also properly instructs a jury that it need not

unanimously agree on whether a defendant committed larceny or embezzlement.

(Nor Woods, supra, 37 Cal.2d at p. 586.) For clarity on appeal, parties may

request a jury make special findings on whether it unanimously found a defendant

committed either larceny or embezzlement. (See Schad v. Arizona, supra,

501 U.S. at p. 645 [―separate verdict forms are useful in cases submitted to a jury

on alternative theories of premeditated and felony murder‖].)

2. Does section 954 permit multiple convictions for different

statements of the same offense?

Having concluded that larceny and embezzlement are different statements

of the same offense, we now consider whether section 954 permits multiple

convictions in that circumstance. We left this question open in Gonzalez, supra,

60 Cal.4th at page 540. Defendant contends that section 954 only permits the

charging of, but not the conviction for, ―different statements of the same offense.‖

We agree.

As noted above, section 954 provides as relevant here: ―An accusatory

pleading may charge two or more different offenses connected together in their

commission, or different statements of the same offense or two or more different

offenses of the same class of crimes or offenses, under separate counts . . . . The

prosecution is not required to elect between the different offenses or counts set

forth in the accusatory pleading, but the defendant may be convicted of any

number of the offenses charged, and each offense of which the defendant is

convicted must be stated in the verdict or the finding of the court . . . .‖ (Italics

added.)

Section 954 defines three categories of charges that can be joined in one

action: ―different offenses connected together in their commission,‖ ―different

22

statements of the same offense,‖ and ―different offenses of the same class of

crimes or offenses.‖ (Italics added.) In the next sentence, however, section 954

sets forth the charges of which the defendant may be convicted, providing, ―The

prosecution is not required to elect between the different offenses or counts set

forth in the accusatory pleading, but the defendant may be convicted of any

number of the offenses charged . . . .‖ The language ―offenses charged‖ is

reasonably read to refer back to the use of the word ―offenses‖ in the phrases

―different offenses connected together in their commission‖ and ―different

offenses of the same class of crimes or offenses.‖ It is not reasonably read as

referring back to the word ―offense‖ in the singular as in the phrase ―different

statements of the same offense.‖

As defendant notes, ―It is significant that section 954 uses the term

‗different offenses‘ in conjunction with only two of the three categories of charges

that may be properly joined in a proceeding – ‗different offenses connected

together in their commission,‘ and „different offenses of the same class of crimes

or offenses, under separate counts.‘ The remaining category of charges —

„different statements of the same offense‘ — differs from the other two categories

as it concerns an alternative means of pleading the same offense rather than a

different one. And most importantly, this category is not referenced in the

language that addresses the charges of which a defendant may be convicted. The

most reasonable construction of the language in section 954 is that the statute

authorizes multiple convictions for different or distinct offenses, but does not

permit multiple convictions for a different statement of the same offense when it is

based on the same act or course of conduct.‖ (See People v. Coyle (2009)

178 Cal.App.4th 209, 211, 217-218 [defendant improperly convicted of three

counts of murder for killing one person].)

23

Our conclusion is consistent with the ―judicially created exception to the

general rule permitting multiple conviction [that] ‗prohibits multiple convictions

based on necessarily included offenses.‘ ‖ (Reed, supra, 38 Cal.4th at p. 1227.)

As defendant asserts, ―[i]t logically follows that if a defendant cannot be convicted

of a greater and a lesser included offense based on the same act or course of

conduct, dual convictions for the same offense based on alternate legal theories

would necessarily be prohibited.‖

The Attorney General asserts that this court held in Ortega, supra,

19 Cal.4th 696, and Pearson, supra, 42 Cal.3d 351, that multiple convictions for

different statements of the same offense are authorized by section 954. These

cases addressed the issue whether certain crimes were necessarily included within

other crimes, and did not address the issue of whether convictions for different

statements of the same offense are authorized by section 954. (Ortega, at pp. 693-

694; Pearson, at pp. 354-355.) To the extent language in Pearson can be read to

suggest that section 954 authorizes multiple convictions for statements of the same

offense, we now expressly reject any such suggestion. (Pearson, at p. 354.)

We therefore conclude section 954 does not authorize multiple convictions

for different statements of the same offense.

24

DISPOSITION

The judgment of the Court of Appeal is affirmed.18

CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

WERDEGAR, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

18 The Attorney General does not challenge the striking of defendant‘s larceny

conviction by the Court of Appeal, and we express no opinion on whether striking

the larceny conviction or the embezzlement conviction or consolidating the two

convictions is the proper remedy.

25

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Vidana

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 233 Cal.App.4th 666

Rehearing Granted

__________________________________________________________________________________

Opinion No. S224546

Date Filed: August 18, 2016

__________________________________________________________________________________

Court: Superior

County: Riverside

Judge: Edward D. Webster*

__________________________________________________________________________________

Counsel:

Valerie G. Wass, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys

General, Steven T. Oetting and Linda Gándara, Deputy State Solicitor Generals, Julie L. Garland, Assistant

Attorney General, Eric A. Swenson and Michael Pulos, Deputy Attorneys General, for Plaintiff and

Respondent.

*Retired judge of the Riverside Superior Court, assigned by the Chief Justice pursuant to article VI, section

6 of the California Constitution.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Valerie G. Wass

556 S. Fair Oaks Avenue, Suite 9

Pasadena, CA 91105

(626) 797-1099

Michael Pulos

Deputy Attorney General

600 West Broadway, Suite 1800

San Diego, CA 92101

(619) 645-3034