Skip to content
Name: People v. Whitmer
Case #: S208843
Court: CA Supreme Court
District CalSup
Opinion Date: 07/24/2014
Summary

A defendant may be convicted of multiple counts of grand theft based on separate and distinct acts of theft, even if committed pursuant to a single overarching scheme. Appellant was convicted of 20 counts of grand theft based on his involvement in the fraudulent sale of motorcycles and dirt bikes at a dealership. Each count of grand theft was based on a separate and distinct act, but all the sales were part of single scheme. The Court of Appeal affirmed the convictions. The California Supreme Court granted review to resolve a conflict in the Courts of Appeal over the interpretation of People v. Bailey (1961) 55 Cal.2d 514, which some courts had interpreted as permitting only one conviction of grand theft in circumstances such as appellant’s case. Held: The Court of Appeal correctly interpreted Bailey, but the judgment was reversed. In People v. Bailey, the Supreme Court stated that “a defendant may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan.” Based on the facts of Bailey and cases cited in the opinion that were not overruled, the court concluded that Bailey does not prohibit a defendant from being convicted of multiple counts of grand theft based on separate and distinct acts of theft, even if committed pursuant to a single overarching scheme. Here, appellant’s case is factually distinguishable from Bailey, as appellant committed a series of separate and distinct, although similar, fraudulent acts and each act was accompanied by a new and separate intent to commit that fraud. Although Court of Appeal decisions have relied on Bailey to hold that there can be only one grand theft in this situation, the court disapproved this interpretation.

This rule cannot constitutionally be applied to appellant. The court agreed with appellant’s contention that the rule adopted by the court could not be applied to him. “Courts violate constitutional due process guarantees [citations] when they impose unexpected criminal penalties by construing existing laws in a manner that the accused could not have foreseen at the time of the alleged criminal conduct.” (People v. Blakeley (2000) 23 Cal.4th 82, 91.) While Bailey does not prevent applying the court’s interpretation to appellant, a long, uninterrupted series of Court of Appeal cases have consistently held that multiple acts of grand theft pursuant to a single scheme cannot support more than one count of grand theft. Under these circumstances, the court’s holding is an unforeseeable judicial enlargement of criminal liability for multiple grand thefts and it may not be applied to appellant. Appellant could not be convicted of more than one count of grand theft.