P v. Vidana (Cal SC) Embezzlement and Larceny are the Same Offense For Which Multiple Convictions are Prohibited

Ms. Vidana had a job which entailed collecting payments from her employer's customers and turning the money over to her supervisor.  Over a period of two years, Vidana collected over 58K from customers and, instead of turning it over to her supervisor, kept it.

For this, a jury convicted Vidana of two crimes, grand theft by larceny and grand theft by embezzlement.  Vidana appealed, asserting the two crimes of which she was convicted were the same crime, and therefore PC 954 prohibited her being convicted of multiple crimes.  An appeals panel agreed and reversed one of the convictions.  The State then successfully petitioned the California Supreme Court to review the appellate court's decision.

The California Supreme Court affirms.

The issue is two-fold.  First, are the larceny and embezzlement here the "same offense" as that term is used in PC 954?  Second, if they are the "same offense" does PC 954 allow multiple convictions?  The Court answers these questions, "yes" and "no", respectively.

The Court begins by providing the necessary historical context.  In the old days, the common law recognized different forms of theft as separate crimes, distinguished by esoteric differences that are still used today in the torture of first year law students.  Larceny by trespass, embezzlement, theft by false pretenses, and larceny by trick, were different offenses comprised of different sets of elements.  

Not only were the abstract distinctions between these crimes often difficult to understand, such difficulties were compounded by a restriction that the State was limited to charging one offense per commission.  This meant the accused, if charged with larceny-by-trick, could escape conviction for her misdeeds by successfully arguing she actually committed the crime of theft by false pretenses (or larceny by trespass or embezzlement).  

To remedy this, in 1905, the California legislature enacted language in PC 954 which lifted the limitation that the State could charge only one offense per commission and allowed the State to charge: [1] "different offenses connected together in their commission"; [2] "different statements of the same offense"; and, [3] "different offenses of the same class".  Section 954 also expressly allowed a defendant to be convicted of "any number of the offenses charges".  

Subsequent to this change in the rules for pleadings, the California legislature compressed the definitions of larceny by trespass, embezzlement, and false pretenses, into the definition of "theft", PC 484.  A look at the legislative history behind PC 484, leaves little doubt the legislature meant to combine then into a single offense.

 [T]he amendment ―consolidates the present crimes known as larceny, embezzlement and obtaining property under false pretenses, into one crime, designated as theft. The basis of all of these crimes as at present known is the unlawful taking or converting to one‘s own use of the property of another. The crimes are so similar that as the law now stands it is difficult, frequently practically impossible, to tell which crime has been committed in a particular transaction. By combining them all as the crime of theft, this difficulty will be obviated.

Thus Vidana's larceny and embezzlement counts were, in PC 954 parlance, "different statements of the same offense".  But this doesn't necessarily answer the question of whether multiple convictions are allowed.  Answering this question requires construing the phrase in 954 which allows convictions for "any number of the offenses charged".  The text practically answers itself.  The number of convictions allowed is limited by the number of different offenses charged.  If the number of offenses charged is one, the allowable number of convictions is one.  

For Vidana, the decision means she will now only have one felony conviction.

For the rest of us, this gives us some insight into how the California Supreme Court may decide P v. Gonzalez, the Proposition 47 case involving the issue of whether the intent to commit theft by false pretenses satisfies the shoplifting statute's (PC 459.5) element of an intent to commit larceny.