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Name: People v. Fenderson
Case #: A123984
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 09/17/2010

Under the California theft statute (Pen. Code, § 484), a conviction is affirmed if there is sufficient evidence to support a conviction under any theory of theft, and juries can return a general verdict of guilty if they find that an unlawful taking has been proved even if they are not instructed on the relevant theory of theft. Appellant was a caretaker for an elderly client who gave appellant power of attorney over her bank accounts so appellant could take care of business when the client was unable to do so. Following the client’s death, appellant, although not having been willed any property, emptied the client’s account and used the funds to buy a house, as well as for other personal reasons. Appellant was charged with and convicted at jury trial of theft by larceny. On appeal, she contended that there was insufficient evidence to convict her of theft by larceny. At most, she stated that she had embezzled the funds. The jury had been instructed only on theft by larceny. The appellate court disagreed with appellant, finding that even if the conduct was theft by embezzlement and the jury was not instructed on the relevant theft theory, sufficient evidence supported both theft by larceny and theft by embezzlement. By virtue of Penal Code section 484 holding that there is one consolidated crime of theft, the common law distinctions between the theories of theft no longer exist, and the jury may convict under the relevant theory, if there is proof of an unlawful taking. (People v. Counts (1995) 31 Cal.App.4th 785.) (Compare People v. Beaver (2010) 186 Cal.App.4th 107, where the instructions read to the jury did not include all the elements necessary for a charge of theft by false pretenses. In that instance, the Third District found that even if there was sufficient evidence in the record to support such a charge, the failure to instruct on those elements violated defendant’s constitutional rights to have the charges decided by a jury and reversed the conviction for grand theft.)