Grand theft by larceny (Pen. Code, § 484, subd. (a)) and embezzlement (Pen. Code, § 503) are different statements of the same offense. In her job as a credit agent for Robertson’s Ready Mix, Vidana ensured invoices were paid. However, she underreported a large number of invoices and took the money. A jury convicted her of both larceny and embezzlement based on this conduct. The Court of Appeal struck the larceny conviction, finding Vidana could not be convicted of both larceny and embezzlement based on the same course of conduct because they are different ways of committing the single offense of theft (disagreeing with the contrary holding in People v. Nazary (2010) 191 Cal.App.4th 727). The prosecution’s petition for review was granted. Held: Affirmed. Larceny occurs when a person takes possession of property owned or possessed by another, by means of trespass, with the intent to steal the property, and carries it away (Pen. Code, § 484, subd. (a)). Embezzlement is the fraudulent appropriation of property by a person to whom it was entrusted (Pen. Code, § 503). The two offenses have different elements and neither is a lesser included offense of the other. After examining the legislative history of these offenses, the current statutory scheme, and Penal Code section 490a (which provides that whenever any law or statute refers to larceny, embezzlement, or stealing, it shall be interpreted as if the word “theft” were substituted therefore), the court concluded that “larceny” and “embezzlement” are simply different statements of the same offense. However, the court disagreed with the Court of Appeal’s conclusion that section 490a literally excised the words larceny and embezzlement from the legislative dictionary. The court also disapproved Nazary to the extent it is inconsistent with the opinion in this case.
Under Penal Code section 954, a defendant may be charged with both larceny and embezzlement based on the same act or course of conduct, but may not be convicted of both offenses. Section 954 sets forth three categories of charges that can be joined together in one action: “different offenses connected together in their commission,” “different statements of the same offense,” and “different offenses of the same class of crimes.” 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.” This interpretation is consistent with the “judicially created exception to the general rule permitting multiple convictions [that] prohibits multiple convictions based on necessarily included offenses.” Because the Attorney General did not raise the issue, the court did not consider whether the proper remedy was to (1) strike the larceny conviction or the embezzlement conviction or (2) consolidate the two convictions.
The full opinion is on the court’s website here: http://www.courts.ca.gov/opinions/documents/S224546.PDF
