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Name: People v. Nazary
Case #: D055646
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 12/13/2010

Grand theft by employee and embezzlement are separate crimes and neither is a lesser included crime of the other. Appellant, an on-site manager for an Atlantic Richfield gas station, was convicted of grand theft by employee and embezzlement. On appeal, he contended he could not be convicted of both because embezzlement is not an independent crime, having been consolidated under Penal Code section 484, along with grand theft by employee. Alternatively, he contended that the two convictions are improper since one crime is a lesser of the other. The court disagreed. The combination of several common-law crimes under the statutory umbrella of “theft” in section 484 did not eliminate the requirement that the different elements of the individual thefts be proved. Grand theft requires proof that defendant was an employee of the victim. Embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted. A conviction of embezzlement thus requires proof of conversion of trusted funds coupled with the intent to defraud; elements that are not the same as grand theft by employee. And, because the two crimes contain elements not contained in the other, neither is a lesser included crime of the other.
The recorded communications of a defendant may be admissible if the circumstances of the communication are such that the defendant could reasonably expect the communication would be recorded or overheard. During the course of the investigation of the crime, the owners of the gas station confronted appellant and accused him of theft of the proceeds from the sale of gasoline. When so confronted, he fled. The incident was recorded by cameras in the office ceiling and the recordings were introduced at trial. Penal Code section 632 provides that it is a crime to record communications of parties without their consent. Further, subdivision (d) of the statute prohibits admission of such recordings in judicial proceedings. However, where a defendant could not reasonably have expected that such communications would be confidential, the conversations are not confidential communications within the meaning of section 632, and can be admitted into evidence over an objection of confidentiality. Here, appellant was aware of the owners’ continuing interest in the security of the gas station property, leading to the installation of surveillance cameras. He knew he was under suspicion of theft and was aware that recording devices had been installed in the ceiling of the manager’s office where proceeds from gasoline sales were counted. Appellant had even attempted to plaster over the holes in the ceiling for the cameras when he learned of their existence. Under these circumstances, he could not reasonably expect his communications to be confidential, and there was no error in admitting the recordings.