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Name: People v. Vidana
Case #: G050399
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 01/26/2015
Subsequent History: Review granted 4/1/2015: S224546

Defendant cannot be convicted of both larceny and embezzlement based on the same act because they are not separate offenses; they are two ways of committing theft. Vidana worked as a credit agent for a concrete company and, as part of her duties, would accept cash payments from customers. While Vidana was on leave, it was discovered that over $58,000 in cash payments were missing from accounts that Vidana was responsible for monitoring. A jury found her guilty of grand theft by larceny (Pen. Code, § 487, subd. (a)) and grand theft by embezzlement (Pen. Code, § 503). She appealed, arguing that she could not be convicted of both offenses. Held: Grand theft by larceny conviction struck. In 1927, the Legislature amended Penal Code section 484, subdivision (a), to consolidate the offenses of larceny, false pretenses, and embezzlement into a single crime called “theft.” (See People v. Williams (2013) 57 Cal.4th 776, 785-786 [discussing the historical development of theft crimes in California].) The Legislature also enacted section 490a in 1927 to further clarify the consolidation by stating that the words “larceny,” “embezzlement,” and “stealing” used in other statutes or laws should be “read and interpreted as if the word ‘theft’ were substituted therefor.” In this case, the Court of Appeal concluded that a plain reading of the statutes compels the conclusion that larceny and embezzlement are not separate offenses, but two different ways of committing the same offense: theft. Section 490a “literally excis[ed] the words ‘larceny’ and ’embezzlement’ from the legislative dictionary” and the “legislative amendments plainly eliminated the distinctions between the various theft offenses.” The fact that the different theories of theft entail different elements is not controlling. The court disagreed with People v. Nazary (2010) 191 Cal.App.4th 727.