1

Filed 8/18/16

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S224546

v. )

) Ct.App. 4/3 G050399

JUANITA VIDANA, )

) Riverside County

Defendant and Appellant. ) Super. Ct. No. RIF1105527

____________________________________)

Here we consider whether a defendant may be convicted of both grand theft 

by larceny and embezzlement based on the same course of conduct. (Pen. Code,1

§§ 484, subd. (a), 487, subd. (a), 503.) We conclude a defendant cannot be 

convicted of both crimes, and therefore affirm the Court of Appeal‘s judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND2

Defendant Juanita Vidana worked as a credit agent for Robertson‘s Ready 

Mix (Robertson‘s). Defendant was assigned particular customers, and her duties 

included ensuring invoices were paid. 

When a customer came to Robertson‘s and paid an invoice with cash, the 

assigned credit agent would write a receipt for the customer. The credit agent 

would then write the customer number and amount of cash on an envelope, put the 

 

1 All further undesignated statutory references are to this code.

2 There was no petition for rehearing in the Court of Appeal, so we rely on 

that court‘s statement of the facts. (See Cal. Rules of Court, rule 8.500(c)(2).)
2

cash in the envelope, and take the cash to another Robertson‘s employee who 

would count the cash and verify that the amount written on the envelope was 

accurate. Between June 2010 to May 2011, defendant underreported $58,273.02 

in cash payments from 12 different customers. At trial, defendant testified and 

denied taking any money. 

The court instructed the jury on grand theft by larceny (§ 484, subd. (a) 

(section 484(a))3 and grand theft by embezzlement (§ 503).

4 It also instructed the 

 

3 The court instructed the jury: ―The defendant is charged in Count 2 with 

grand theft by larceny in violation of Penal Code section 484. [¶] To prove that 

the defendant is guilty of this crime, the People must prove that: [¶] 1. The 

defendant took possession of property owned by someone else; [¶] 2. The 

defendant took the property without the owner‘s or owner‘s agent‘s consent; [¶] 

3. When the defendant took the property she intended to deprive the owner of it 

permanently; [¶] AND [¶] 4. The defendant moved the property, even a small 

distance, and kept it for any period of time, however brief. [¶] An agent is 

someone to whom the owner has given complete or partial authority and control 

over the owner‘s property.‖ 

4 The court instructed the jury: ―The defendant is charged in Count 1 with 

grand theft by embezzlement in violation of Penal Code section 503. [¶] To prove 

that the defendant is guilty of this crime, the People must prove that: [¶] 1. An 

owner or the owner‘s agent entrusted its property to the defendant; [¶] 2. The 

owner or owner‘s agent did so because she trusted the defendant; [¶] 3. The 

defendant fraudulently converted that property for her own benefit; [¶] AND [¶] 

4. When the defendant converted the property, she intended to deprive the owner 

of its use. [¶] A person acts fraudulently when he or she takes undue advantage of 

another person or causes a loss to that person by breaching a duty, trust or 

confidence. [¶] An intent to deprive the owner of property, even temporarily, is 

enough. [¶] An agent is someone to whom the owner has given complete or 

partial authority and control over the owner‘s property.‖ 

The court also instructed the jury: ―If you conclude that the defendant 

committed a theft and/or an embezzlement, you must decide whether the crime 

was grand theft. [¶] The defendant committed grand theft if she stole, or 

embezzled property worth more than $950.‖ 
3

jury: ―Each of the counts charged in this case is a separate crime. You must 

consider each count separately and return a separate verdict for each one.‖ The 

jury convicted defendant of both larceny and embezzlement. The trial court 

suspended imposition of sentence and granted defendant three years of formal 

probation. She was ordered to serve 240 days in jail, the first 30 days

consecutively, and the remainder to be served on weekends. Defendant was 

ordered to pay $58,273.02 in victim restitution, and certain fines and fees. 

The Court of Appeal held defendant could not be convicted of both larceny 

and embezzlement for the same course of conduct because they are not different 

offenses, but rather two ways of committing the single offense of theft, and struck 

defendant‘s larceny conviction. In so doing, it expressly disagreed with People v. 

Nazary (2010) 191 Cal.App.4th 727, 739-742 (Nazary), which held that a 

defendant could properly be convicted of both larceny and embezzlement by an 

employee. We granted the People‘s petition for review to consider whether 

larceny and embezzlement are ―different offenses‖ within the meaning of 

section 954, and if not, whether section 954 permits multiple convictions for 

―different statements of the same offense.‖ 

II. DISCUSSION

A. Background

1. When multiple convictions are authorized 

Section 954 provides as relevant here: ―An accusatory pleading may 

charge two or more different offenses connected together in their commission, or 

different statements of the same offense or two or more different offenses of the 

same class of crimes or offenses, under separate counts . . . . The prosecution is 

not required to elect between the different offenses or counts set forth in the 

accusatory pleading, but the defendant may be convicted of any number of the 
4

offenses charged . . . .‖5 Under section 954, as we have interpreted it, ―a 

defendant properly may be convicted of two offenses if neither offense is 

necessarily included in the other, even though under section 654 he or she could 

not be punished for more than one offense arising from the single act or indivisible 

course of conduct.‖ (People v. Ortega (1998) 19 Cal.4th 686, 693 (Ortega); see 

People v. Gonzalez (2014) 60 Cal.4th 533, 537 (Gonzalez) [―We have repeatedly 

held that the same act can support multiple charges and multiple convictions‖]; 

People v. Pearson (1986) 42 Cal.3d 351, 354-355 (Pearson) [a defendant can be 

convicted of both sodomy with a child under 14 and lewd conduct for the same act 

because ―the offense of lewd conduct is not a lesser included offense of statutory 

sodomy‖].) 

As can be seen, and as defendant concedes, even if larceny and 

embezzlement are merely two ways to commit the single crime of theft, a 

defendant may be charged with ―different statements of the same offense.‖ 

(§ 954.) Defendant asserts, however, that although the prosecutor could properly

charge her with two counts of theft under separate theories of larceny and 

 

5 Section 954 provides in full: ―An accusatory pleading may charge two or 

more different offenses connected together in their commission, or different 

statements of the same offense or two or more different offenses of the same class 

of crimes or offenses, under separate counts, and if two or more accusatory 

pleadings are filed in such cases in the same court, the court may order them to be 

consolidated. The prosecution is not required to elect between the different 

offenses or counts set forth in the accusatory pleading, but the defendant may be 

convicted of any number of the offenses charged, and each offense of which the 

defendant is convicted must be stated in the verdict or the finding of the court; 

provided, that the court in which a case is triable, in the interests of justice and for 

good cause shown, may in its discretion order that the different offenses or counts 

set forth in the accusatory pleading be tried separately or divided into two or more 

groups and each of said groups tried separately. An acquittal of one or more 

counts shall not be deemed an acquittal of any other count.‖
5

embezzlement, she could only be convicted of one theft offense. That is because, 

she argues, the ―offenses of larceny, embezzlement, and theft by false pretenses 

were consolidated into the single offense of theft in 1927‖ by amendments to 

sections 484 and 952 and the enactment of section 490a, and section 954 does not 

permit multiple convictions for ―different statements of the same offense.‖ 

The determination of whether larceny under section 484(a) and 

embezzlement under section 503 are ―different offenses or merely describe 

different ways of committing the same offense properly turns on the Legislature‘s 

intent,‖ and ―if the Legislature meant to define only one offense, we may not turn 

it into two.‖ (Gonzalez, supra, 60 Cal.4th at p. 537.) ―We are required to 

harmonize the various parts of a statutory enactment by considering [them] in the 

context of the statutory framework as a whole. (Palos Verdes Faculty Assn. v. 

Palos Verdes Peninsula Unified School Dist. (1978) 21 Cal.3d 650, 659.)

Ordinarily, the words of the statute provide the most reliable indication of 

legislative intent. (Pacific Gas & Electric Co. v. County of Stanislaus (1997) 16 

Cal.4th 1143, 1152.) However, a statute‘s literal terms will not be given effect if 

to do so would yield an unreasonable or mischievous result.‖ (B.H. v. County of 

San Bernardino (2015) 62 Cal.4th 168, 189.) If ―  ̳the statutory language is 

susceptible of more than one reasonable construction, we can look to legislative 

history in aid of ascertaining legislative intent.‘ ‖ (Gonzalez, supra, 60 Cal.4th at 

pp. 537-538.) 

Recently in Gonzalez, supra, 60 Cal.4th 533, we considered ―whether a 

defendant may, consistently with Penal Code section 954, be convicted of both 

oral copulation of an unconscious person (§ 288a, subd. (f)) and oral copulation of 

an intoxicated person (id., subd. (i)) based on the same act.‖ (Id. at p. 535, 

fn. omitted.) We first observed that ―[t]hese offenses differ in their necessary 

elements — an act of oral copulation may be committed with a person who is 
6

unconscious but not intoxicated, and also with a person who is intoxicated but not 

unconscious — and neither offense is included within the other.‖ (Id. at p. 539.) 

We also considered the text and structure of section 288a, observing: 

―Subdivision (a) of section 288a defines what conduct constitutes the act of oral 

copulation. Thereafter, subdivisions (b) through (k) define various ways the act 

may be criminal. Each subdivision sets forth all the elements of a crime, and each 

prescribes a specific punishment.‖ (Gonzalez, at p. 539.) Not all of these 

punishments were the same, although the punishments for violation of 

subdivisions (f) and (i) — the subdivisions at issue in Gonzalez — were the same. 

(Id. at pp. 538-539.) ―That each subdivision of section 288a was drafted to be 

self-contained supports the view that each describes an independent offense, and 

therefore section 954 is no impediment to a defendant‘s conviction under more 

than one such subdivision for a single act.‖ (Id. at p. 539.) We concluded ―the 

two statutory subdivisions at issue here describe different offenses, and defendant 

may properly be convicted of, although not punished for, both.‖ (Id. at p. 535; see 

People v. Reed (2006) 38 Cal.4th 1224, 1230 (Reed) [upholding under § 954 

convictions for ―possessing a firearm by a felon, carrying a concealed firearm, and 

carrying a loaded firearm in a public place‖].) 

In Nazary, supra, 191 Cal.App.4th at pages 741-742, the Court of Appeal 

held that a defendant employee could properly be convicted of both grand theft by 

an employee (larceny) and embezzlement by an employee. (§§ 487, subd. (b)(3), 

508.) It rejected the argument that ―embezzlement is no longer an independent 

crime‖ because it has been ―combined into the single statutory definition of theft 

under section 484.‖ (Nazary, at pp. 739-740.) The court noted that ―the elements 

of embezzlement and grand theft by an employee, and the distinction between 

them, continue to exist.‖ (Id. at p. 741.) ―Because the jury had to find different 

intents and elements supported by the evidence for each offense, and . . . the 
7

distinctions between the theft offenses in section 484 were not affected by the 

consolidation of those offenses generally [citation], we conclude [the defendant]

was properly convicted for both offenses.‖ (Id. at p. 742.) 

2. Larceny and embezzlement

Larceny ―is committed by every person who (1) takes possession (2) of 

personal property (3) owned or possessed by another, (4) by means of trespass and 

(5) with intent to steal the property, and (6) carries the property away.‖ (People v. 

Davis (1998) 19 Cal.4th 301, 305 (Davis).) ―Embezzlement is the fraudulent 

appropriation of property by a person to whom it has been intrusted.‖ (§ 503; 

People v. De Coursey (1882) 61 Cal. 134, 135.) 

We have previously recounted the history of larceny and embezzlement in 

People v. Williams (2013) 57 Cal.4th 776 (Williams): ―In 1757, the British 

Parliament enacted a statute prohibiting theft by false pretenses. [Citation.] Fortytwo years later, it enacted a statute prohibiting embezzlement. [Citation.] Each 

was considered a statutory offense separate and distinct from the common law 

crime of larceny. [Citation.] Unlike larceny, the newly enacted offense of theft by 

false pretenses involved acquiring title over the property, not just possession. 

[Citation.] Unlike larceny, the newly enacted offense of embezzlement involved 

an initial, lawful possession of the victim‘s property, followed by its 

misappropriation. [Citation.] [¶] Britain‘s 18th century division of theft into the 

three separate crimes of larceny, false pretenses, and embezzlement made its way 

into the early criminal laws of the American states. That import ha[d] been widely 

criticized in this nation‘s legal community because of the seemingly arbitrary 

distinctions between the three offenses and the burden these distinctions . . . posed 

for prosecutors. [Citations.] [¶] For instance, it was difficult at times to 

determine whether a defendant had acquired title to the property, or merely 
8

possession, a distinction separating theft by false pretenses from larceny by trick. 

[Citations.] It was similarly difficult at times to determine whether a defendant, 

clearly guilty of some theft offense, had committed embezzlement or larceny . . . .

[¶] In the early 20th century, many state legislatures, recognizing the burdens 

imposed on prosecutors by the separation of the three crimes of larceny, false 

pretenses, and embezzlement, consolidated those offenses into a single crime, 

usually called  ̳theft.‘ ‖ (Id. at pp. 784-785, fn. omitted.) 

California reduced its problems with pleading and proving larceny, 

embezzlement, and false pretenses in 1915 when it amended section 954 to 

provide, as it does today, that a prosecutor may ―charge two or more different 

offenses connected together in their commission,‖ and need not ―elect between the 

different offenses or counts,‖ but ―the defendant may be convicted of any number 

of the offenses charged.‖ (§ 954, as amended by Stats. 1915, ch. 452, § 1, p. 744.) 

Before this amendment, section 954 had provided that a defendant could ―be 

convicted of but one of the offenses charged.‖ (§ 954, as amended by Stats. 1905, 

ch. 574, § 1, p. 772.) Thus, under section 954 as amended in 1915, the prosecutor

no longer had to choose whether a defendant had committed larceny, 

embezzlement, or false pretenses, but could allow the jury to decide what the 

evidence demonstrated, and an appellate court to determine if the verdict was 

supported by substantial evidence. In this way larceny, embezzlement, and false 

pretenses were no different from any other offenses with similar elements.

3. 1927 legislation

In 1927, the California Legislature passed numerous and lengthy bills 

updating the criminal justice system, including amendments to sections 484, 487, 

and 952, and the enactment of section 490a. (Stats. 1927, ch. 612, § 1, p. 1043; 

Stats. 1927, ch. 619, §§ 1, 4, 7, pp. 1046-1047.) As enacted in 1872, section 484
9

provided: ―Larceny is the felonious stealing, taking, carrying, leading, or driving 

away the personal property of another.‖6 In 1927, the section was amended to 

provide as relevant here: ―Every person who shall feloniously steal, take, carry, 

lead, or drive away the personal property of another, or who shall fraudulently 

appropriate property which has been entrusted to him, or who shall knowingly and 

designedly, by any false or fraudulent representation or pretense, defraud any 

other person of money, labor, or real or personal property, . . . is guilty of theft.‖ 

(Stats. 1927, ch. 619, § 1, p. 1046). This portion of section 484 has remained 

substantively unchanged.7 

The legislative history to the amendment to section 484 states that the 

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.‖ (Com., Rep. (Jan. 13, 

 

6 The Penal Code enacted in 1872 was ―not published as part of the Statutes 

of 1871-1872,‖ and was not given a chapter number. (Kleps, The Revision and 

Codification of Cal. Statutes 1849-1953 (1954) 42 Cal. L.Rev. 766, 775.)

7 Section 484(a) currently provides in relevant part: ―Every person who shall 

feloniously steal, take, carry, lead, or drive away the personal property of another, 

or who shall fraudulently appropriate property which has been entrusted to him or 

her, or who shall knowingly and designedly, by any false or fraudulent 

representation or pretense, defraud any other person of money, labor or real or 

personal property, or who causes or procures others to report falsely of his or her 

wealth or mercantile character and by thus imposing upon any person, obtains 

credit and thereby fraudulently gets or obtains possession of money, or property or 

obtains the labor or service of another, is guilty of theft.‖
10

1927) submitted to Sen. (Jan. 17, 1927) and pub. 1 Sen. J. (47th Sess. 1927) 152, 

156, reprinted 5 Appen. to Sen. & Assem. JJ. (47th Sess. 1927) at p. 11.) 

Before 1927, section 487 had provided as relevant here: ―Grand larceny is 

larceny committed in either of the following cases: [¶] 1. When the property taken 

is of a value exceeding two hundred dollars.‖ (Stats. 1923, ch. 129, § 1, p. 271.) 

In 1927, this section was amended to provide as relevant here: ―Grand theft is 

theft committed in either of the following cases: [¶] 1. When the property taken is 

of a value exceeding two hundred dollars.‖ (Stats. 1927, ch. 619, § 4, p. 1047.) 

Section 490a, as enacted in 1927 and never amended, provides: ―Wherever 

any law or statute of this state refers to or mentions larceny, embezzlement, or 

stealing, said law or statute shall hereafter be read and interpreted as if the word 

 ̳theft‘ were substituted therefor.‖ The legislative history for section 490a states: 

―It is recommended that this new section be added, providing that wherever any 

law or statute of this State mentions larceny, embezzlement, or stealing, it shall 

hereafter be read and interpreted as if theft were the crime referred to, thus 

obviating the necessity of amending several sections which relate to the crimes 

now sought to be consolidated into the new crime of theft.‖ (Com., Rep., supra, 

pub. in 1 Sen. J. (47th Sess. 1927) at p. 156, reprinted 5 Appen. to Sen. & Assem. 

JJ. (47th Sess. 1927) at pp. 11-12.) 

Also in 1927, section 952 was amended to provide as relevant here: ―In 

charging theft it shall be sufficient to allege that the defendant unlawfully took the 

property of another.‖8 (Stats. 1927, ch. 612, § 1, p. 1043.) The current language 

 

8 As enacted in 1872, section 952 provided that an indictment ―must be direct 

and certain, as it regards: [¶] 1. The party charged; [¶] 2. The offense charged; [¶] 

3. The particular circumstances of the offense charged, when they are necessary to 

constitute a complete offense.‖ (1872 Pen. Code, § 952.)
11

is similar, but now refers to ―the labor or property of another.‖ (§ 952, as 

amended by Stats. 1929, ch. 159, § 1, p. 303.)

4. Judicial interpretation of the 1927 legislation

Our cases interpreting section 490a and the 1927 amendment to section 484 

have repeatedly held that the legislation simplified the procedure of charging 

larceny, embezzlement, and false pretense, but did not change their elements. 

Thus, two years after the 1927 legislation, this court stated that the ―amendment to 

section 484, in connection with other cognate legislation . . . is designed not only 

to simplify procedure but also to relieve the courts from difficult questions arising 

from the contention that the evidence shows the commission of some other of

these crimes than the one alleged in the indictment or information, a contention 

upon which defendants may escape just conviction solely because of the border 

line distinction existing between these various crimes.‖ (People v. Myers (1929) 

206 Cal. 480, 484 (Myers).) We observed that section 484 as amended 

―merely . . . amalgamate[s] the crimes of larceny, embezzlement, false pretenses 

and kindred offenses under the cognomen of theft. No elements of the former 

crimes have been changed by addition or subtraction.‖ (Myers, at p. 483; accord, 

Williams, supra, 57 Cal.4th at p. 789 [―the 1927 legislation enacting section 490a 

and the theft consolidation statute [citations] left unchanged the elements of 

theft‖]; id. at pp. 786-787 [the reference in the definition of robbery to a ―felonious 

taking of personal property‖ refers only to larceny, not false pretenses, so that 

robbery is not committed by the crime of false pretenses and the subsequent use of 

force or fear]; Davis, supra, 19 Cal.4th at p. 304 [the 1927 legislation consolidated 

the ―formerly distinct offenses of larceny, embezzlement, and obtaining property 

by false pretenses‖ into the ―single crime of  ̳theft,‘ ‖ but did not abolish their 

substantive distinctions].) 
12

Two years after Myers, we explained: ―It is not necessary that the 

information state the kind of grand theft with which the defendant is charged . . . . 

[¶] Under the new procedure, it is obviously unnecessary and improper to compel 

the district attorney in advance of the proof, to elect upon what theory the 

prosecution is to proceed, whether larceny, false pretense, trick and device, 

embezzlement, etc. These distinctions in the charge and proof . . . . were 

eliminated, not only for the purpose of simplifying procedure, but also to relieve 

the courts of the necessity of drawing fine distinctions as to whether the particular 

crime charged had been proved, and the prosecution of charging in advance, at its 

peril, an offense which the evidence, because of such fine distinctions, might show 

not to exist although the guilt of the defendant be manifest.‖ (People v. Fewkes

(1931) 214 Cal. 142, 149; People v. Jones (1950) 36 Cal.2d 373, 376-377 [section 

484 includes the crimes of larceny, embezzlement, false pretenses, and ―kindred 

offenses . . . under the designation of theft‖].)

We later explained: ―The purpose of the consolidation was to remove the 

technicalities that existed in the pleading and proof of these crimes at common 

law. . . . The elements of the several types of theft included within section 484 

have not been changed, however, and a judgment of conviction of theft, based on a 

general verdict of guilty, can be sustained only if the evidence discloses the 

elements of one of the consolidated offenses.‖ (People v. Ashley (1954) 42 Cal.2d 

246, 258.) Although Ashley also contained broad language that ―[j]uries need no 

longer be concerned with the technical differences between the several types of 

theft, and can return a general verdict of guilty if they find that an  ̳unlawful 

taking‘ has been proved,‖ in Ashley, the trial court instructed the jury on both 

larceny and false pretenses, and told the jury it must be unanimous on ―the type of 

theft, if any, that was committed‖ by the defendant. (Id. at pp. 257-258.) 
13

We have also held that a jury need not unanimously decide what form of 

theft a defendant committed. In People v. Nor Woods (1951) 37 Cal.2d 584, 585

(Nor Woods), the defendant appealed his grand theft conviction. In an opinion by 

Justice Traynor, this court rejected his challenge that the information was 

defective for not identifying the kind of grand theft with which he was charged, 

concluding it was ―not necessary for the information to allege the particular type 

of theft involved, such as false pretenses, embezzlement, or larceny by trick and 

device.‖ (Id. at p. 586.) We further held ―there was no error in failing to instruct 

the jury that they must agree upon the method by which the theft was committed.‖ 

(Ibid.) We reasoned, ―defendant could be found guilty of theft by one means or 

another, and since by the verdict the jury determined that he did fraudulently 

appropriate the property, it is immaterial whether or not they agreed as to the 

technical pigeonhole into which the theft fell.‖ (Ibid.)9

Thus, CALCRIM No. 1861 provides in relevant part: ―Each theory of theft 

has different requirements, and I have instructed you on (both/all). [¶] You may 

not find the defendant guilty of theft unless all of you agree that the People have

proved that the defendant committed theft under at least one theory. But all of you 

 

9 Some Courts of Appeal have extended Nor Wood and appeared to hold that 

a theft conviction may be upheld under any theory of theft even if the trial court 

did not instruct the jury on that theory of theft. (E.g., People v. Fenderson (2010) 

188 Cal.App.4th 625, 635-637 [concluding there was substantial evidence of 

larceny but also upholding conviction on theory of embezzlement when the trial 

court did not instruct the jury on embezzlement]; People v. North (1982) 

131 Cal.App.3d 112, 117-118 [over defendant‘s objection the jury was instructed 

on larceny although false pretenses was ―a more accurate description of the crime 

committed‖; judgment must be affirmed if there is sufficient evidence under any 

theory of theft].) This court has never so held. We need not address this issue 

here because the jury in this case was instructed on the elements of both larceny 

and embezzlement. 
14

do not have to agree on the same theory.‖ Here, as noted above, the jury was not 

instructed in the language of CALCRIM No. 1861, but rather the court instructed 

the jury: ―Each of the counts charged in this case is a separate crime. You must 

consider each count separately and return a separate verdict for each one.‖ 

This court has similarly held it is not necessary that the jury unanimously 

agree whether a defendant premeditated a murder or committed the murder while 

engaged in a felony. (See, e.g., People v. Johnson (2015) 61 Cal.4th 734, 775 [the

―trial court was not required to instruct the jury to agree unanimously whether 

defendant had committed a premeditated murder or a first degree felony murder‖]; 

People v. Sattiewhite (2014) 59 Cal.4th 446, 479 [―Premeditated murder and 

felony murder are not distinct crimes; rather, they are alternative theories of 

liability, and jurors need not unanimously agree on a particular theory of liability 

in order to reach a unanimous verdict‖]; People v. Chavez (1951) 37 Cal.2d 656, 

670-672; see Schad v. Arizona (1991) 501 U.S. 624, 627, 630, 640-645 (plur. opn.

of Souter, J.) [instructions that do not require jury to unanimously agree whether 

murder was premeditated or felony murder to find defendant guilty of first degree 

murder do not violate due process].) 

5. Modern statutory scheme

a. Placement of the larceny and embezzlement statutes

In providing that ―[e]very person who shall . . . fraudulently appropriate 

property which has been entrusted to him, or who shall knowingly and designedly, 

by any false or fraudulent representation or pretense, defraud any other person of 

money, labor, or real or personal property, . . . is guilty of theft‖ (Stats. 1927, ch. 

619, § 1, p. 1046), the 1927 amendment to section 484 did not repeal or crossreference then existing embezzlement and false pretenses statutes. These 

embezzlement and false pretenses statutory schemes continue to be in effect today. 
15

Thus, section 484, the provision that sets forth the elements of larceny and 

at least partial definitions of embezzlement and false pretenses, and section 490a,

are located in title 13 (of Crimes Against Property), chapter 5 of the Penal Code, 

which is entitled Larceny. Sections 489, 490, and 490.2 generally prescribe the 

punishment for grand and petty theft.10 

Chapter 6 of title 13 is entitled ―Embezzlement,‖ and since 1872, 

section 503 in this chapter has defined embezzlement as ―the fraudulent 

appropriation of property by a person to whom it has been intrusted.‖ As can be 

seen, this is similar to the language ―or who shall fraudulently appropriate 

property which has been entrusted to him or her‖ in section 484(a). Chapter 6, 

however, contains further descriptions of, defenses to, and punishment for 

embezzlement not contained in section 484(a). Since before 1927, chapter 6 has 

stated that unlike larceny, which requires a taking (Williams, supra, 57 Cal.4th at 

p. 788), ―[a] distinct act of taking is not necessary to constitute embezzlement‖ 

(§ 509). It has also provided a defense ―that the property was appropriated openly 

and avowedly, and under a claim of title preferred in good faith, even though such 

claim is untenable‖ (§ 511), and declared it is not a ―ground of defense or 

mitigation of punishment‖ if ―the accused intended to restore the property 

embezzled,‖ but it ―has not been restored before an information has been laid 

before a magistrate, or an indictment found by a grand jury‖ (§ 512). This chapter,

before 1927 and continuing today, also describes the crime of embezzlement when 

committed by public and private officers, deputies, and other persons (§ 504), a 

carrier or person transporting property for hire (§ 505), persons controlling or 

 

10 Section 484c, enacted in 1965, provides: ―Any person who submits a false 

voucher to obtain construction loan funds and does not use the funds for the 

purpose for which the claim was submitted is guilty of embezzlement.‖ 
16

entrusted with the property of another (§ 506), collectors of debts (§ 506a), a 

bailee, tenant, lodger, or attorney-in-fact (§ 507), or a clerk, agent or servant 

(§ 508).11 Section 514 describes the punishment for embezzlement.

12 As relevant 

here, section 514 provides, ―Every person guilty of embezzlement is punishable in 

the manner prescribed for theft of property of the value or kind embezzled.‖13 

b. Statutes using the terms “larceny” or “theft” and 

“embezzlement”

The Legislature continues to use the terms ―larceny‖ and ―embezzlement,‖ 

and to enact statutes using both terms, or both ―theft‖ and ―embezzlement.‖ For 

example, section 501, which was enacted in 1989, provides for when there is a 

―trial for larceny or embezzlement of money, bank notes, certificates of stock, or 

 

11 Section 424, enacted in 1872, and located in title 12, addresses 

embezzlement by public officers and other persons ―charged with the receipt, 

safekeeping, transfer, or disbursement of public moneys.‖ (See generally, People 

v. Hubbard (2016) 63 Cal.4th 378.) 

12 As enacted in 1872, this portion of section 514 provided: ―Every person 

guilty of embezzlement is punishable in the manner prescribed for feloniously 

stealing property of the value of that embezzled . . . .‖ In 1959, section 514 was 

amended to substitute the present language of ―theft of property of the value or 

kind embezzled‖ for ―feloniously stealing property of the value of that 

embezzled.‖ (Stats. 1959, ch. 581, § 1, p. 2541.) Section 514 currently provides

in full: ―Every person guilty of embezzlement is punishable in the manner 

prescribed for theft of property of the value or kind embezzled; and where the 

property embezzled is an evidence of debt or right of action, the sum due upon it 

or secured to be paid by it must be taken as its value; if the embezzlement or 

defalcation is of the public funds of the United States, or of this state, or of any 

county or municipality within this state, the offense is a felony, and is punishable 

by imprisonment in the state prison; and the person so convicted is ineligible 

thereafter to any office of honor, trust, or profit in this state.‖ 

13 Chapter 8 of title 13 is entitled False Personation and Cheats, and includes 

section 532, which defines false pretenses. Section 532, subdivision (b) (formerly 

section 1110), includes a corroboration requirement for false pretenses that is not 

found in section 484(a). 
17

valuable securities . . .‖ (Italics added.) Section 186.2, enacted in 1993 and last 

amended in 2015, provides separate definitions for ―[e]mbezzlement‖ and for 

―[g]rand theft‖ (id., subd. (a)(5) & (16)), and provides that ―[o]rganized crime‖ 

includes ―crime that . . . through planning and coordination of individual efforts, 

seeks to conduct the illegal activities of . . . embezzlement . . . [and] grand theft‖ 

(id., subd. (d)). (Italics added.)14 

 

14 (See, e.g., § 27, subd. (a)(2) [making ―liable to punishment under the laws 

of this state‖ ―[a]ll who commit any offense without this state which, if committed 

within this state, would be larceny . . . or embezzlement under the laws of this 

state, and bring the property stolen or embezzled, or any part of it, or are found 

with it, or any part of it, within this state‖ (italics added)]; § 368, subd. (d) 

[punishment for ―[a]ny person who is not a caretaker who violates any provision 

of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 

530.5 proscribing identity theft, with respect to the property or personal 

identifying information of an elder or a dependent adult‖ (italics added)]; § 1411, 

subd. (a) [―This notice shall be given upon the conviction of a person for an 

offense involving the theft, embezzlement, or possession of the property,‖ and 

providing for when ―the property stolen or embezzled is not claimed by the owner 

before the expiration of three months after the giving of this notice‖ (italics 

added)]; Bus. & Prof. Code, § 19914, subd. (a)(4) [work permit may be revoked if 

holder ―[c]ommitted, attempted, or conspired to commit, any embezzlement or 

larceny against a gambling licensee or upon the premises of a gambling 

establishment‖ (italics added)]; Fin. Code, § 6200 [requirement for certain 

directors, officers, and employees to execute bonds ―as an indemnity for any loss 

the association may sustain of money or other property by or through any fraud, 

dishonesty, forgery or alteration, larceny, theft, embezzlement, . . . or any other 

dishonest or criminal act or omission by the director, officer, or employee‖ (italics 

added)]; Gov. Code, § 11007.5 [conditionally authorizing ―[a]ny state agency‖ to 

―secure insurance protecting the state against loss by burglary, robbery, theft, or 

embezzlement of funds or securities belonging to the state which are in the 

possession or control of the agency‖ (italics added)]; Veh. Code, § 4605 [―no fees 

or penalties imposed under this code . . . shall accrue due to operation of a vehicle 

in conjunction with the theft or embezzlement of the vehicle if the owner or legal 

owner submits a certificate in writing setting forth the circumstances of the theft or 

embezzlement and certifies that the theft or embezzlement of the vehicle has been 

reported pursuant to the provisions of this code‖ (italics added)]; Veh. Code, 

(footnote continued on next page)
18

c. Application of section 490a

As noted above, section 490a, as enacted in 1927 and never amended, 

provides: ―Wherever any law or statute of this state refers to or mentions larceny, 

embezzlement, or stealing, said law or statute shall hereafter be read and 

interpreted as if the word  ̳theft‘ were substituted therefor.‖ The legislative history 

for section 490a, as noted above, states: ―It is recommended that this new section 

be added, providing that wherever any law or statute of this State mentions 

larceny, embezzlement, or stealing, it shall hereafter be read and interpreted as if 

theft were the crime referred to, thus obviating the necessity of amending several 

sections which relate to the crimes now sought to be consolidated into the new 

crime of theft.‖ (Com., Rep., supra, pub. in 1 Sen. J. (47th Sess. 1927) at p. 156,

reprinted 5 Appen. to Sen. & Assem. JJ. (47th Sess. 1927) at pp. 11-12.) 

The Court of Appeal in this case read section 490a as ―literally excising the 

words  ̳larceny‘ and  ̳embezzlement‘ from the legislative dictionary.‖ That, of 

course, is not the case as can be seen by the numerous statutory provisions 

delineated above using the terms larceny and embezzlement.

Moreover, literal application of section 490a would render many statutes 

nonsensical. Although this court long ago said that ―the essence of section 490a is 

simply to effect a change in nomenclature without disturbing the substance of any 

law‖ (Myers, supra, 206 Cal. at p. 485; accord, Williams, supra, 57 Cal.4th at 

p. 789), it does not appear we have ever applied section 490a to effect a change in 

 

(footnote continued from previous page)

§ 38125 [―theft or embezzlement of an off-highway motor vehicle‖ (italics 

added)].) 
19

nomenclature or to change the language of any statute.15 Thus, Vehicle Code 

section 10502, subdivision (a) provides in part, ―The owner or legal owner of a 

vehicle registered under this code which has been stolen or embezzled may notify 

the Department of the California Highway Patrol of the theft or embezzlement, but 

in the event of an embezzlement . . . may make the report only after having 

procured the issuance of a warrant for the arrest of the person charged with the

embezzlement.‖ Under a literal reading of section 490a, this law would instead

provide: The owner or legal owner of a vehicle registered under this code which 

has been stolen or stolen may notify the Department of the California Highway 

Patrol of the theft or theft, but in the event of a theft . . . may make the report only 

after having procured the issuance of a warrant for the arrest of the person charged 

with the theft. Nonetheless, although section 490a should not be read literally, this 

circumstance does not reduce its import in signaling the Legislature‘s intent with 

regard to the concomitant 1927 amendment to section 484. 

B. Are larceny and embezzlement different offenses? 

1. Larceny and embezzlement are different statements of the same 

offense

We now consider whether larceny under section 484(a) and embezzlement 

under section 503 are different offenses, or different statements of the same 

 

15 We did observe in People v. Tufunga (1999) 21 Cal.4th 935, 952, 

footnote 4, that section 511, which had been described as providing a claim of title

defense to embezzlement, may have been expanded by the enactment of section 

490a to ―all theft-related offenses.‖ But we did not decide the point, which was 

unnecessary to our holding that in 1872 the robbery statute codified the common 

law recognition of a claim of right defense to robbery. (Tufunga, at pp. 946-947, 

950.) Indeed, in Williams, supra, 57 Cal.4th at page 789, we rejected the dissent‘s 

assertion that section 490a — which makes no reference to robbery — had 

changed the elements of robbery, and we noted section 490a had left ―intact the 

elements of theft, to which it explicitly refers.‖ (Italics omitted.)
20

offense of theft. We conclude they are different statements of the same offense, 

and that a defendant may not be convicted of both based on the same course of 

conduct.

16 

Larceny and embezzlement have different elements and neither is a lesser 

included offense of the other. These circumstances, however, do not definitively 

resolve whether larceny and embezzlement are a single offense. As noted above, 

we have long held that premeditated murder and felony murder — although 

requiring different elements — are not distinct crimes but simply alternative 

means of committing the single offense of murder. 

Although embezzlement is proscribed in a self-contained statute in a 

chapter of the Penal Code that is separate from that addressing larceny, 

embezzlement is also proscribed by section 484(a). To the extent that 

section 484(a) does not include all of the elements of and defenses to 

embezzlement, and the statute is thereby ambiguous, our conclusion is further 

supported by the legislative history of the 1927 amendment to section 484, which, 

as noted above, states that the 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.‖ (Com., Rep., supra, pub. in 1 Sen. J. (47th Sess. 1927) at p. 156, 

reprinted 5 Appen. to Sen. & Assem. JJ. (47th Sess. 1927) at p. 11.) 

 

16 We disapprove People v. Nazary, supra, 191 Cal.App.4th 727, to the extent 

it is inconsistent with this opinion. 
21

Indeed, the Legislature has expressly stated that ―[w]herever any law or 

statute of this state refers to or mentions larceny, embezzlement, or stealing, said 

law or statute shall hereafter be read and interpreted as if the word  ̳theft‘ were 

substituted therefor.‖ (§ 490a.) Although the terms of section 490a are awkward 

in their literal application, the obvious intent of this statute — enacted at the same 

time section 484 was amended to include embezzlement — was to create a single 

crime of theft. In deciding whether larceny and embezzlement are different 

offenses, our focus is on the Legislature‘s intent. ―[I]f the Legislature meant to 

define only one offense‖ in amending section 484 in 1927, ―we may not turn it 

into two.‖ (Gonzalez, supra, 60 Cal.4th at p. 537.) 

Larceny under section 484(a) and embezzlement under section 503 also 

generally have the same punishment. (See §§ 489, 490, 490.1, 490.2, 514 [―Every 

person guilty of embezzlement is punishable in the manner prescribed for theft of 

property of the value or kind embezzled,‖ except for embezzlement of public 

funds]17.) 

Nor does the Legislature‘s continued use of the terms ―larceny‖ (or ―theft‖) 

and ―embezzlement‖ in various statutes transform larceny and embezzlement into 

different offenses. Rather, these terms are simply different ways of describing the 

behavior proscribed by those statutes. 

For these reasons we conclude larceny under section 484(a) and 

embezzlement under section 503 are different statements of the same offense. 

Thus, a trial court properly instructs a jury on the elements of larceny and 

 

17 Moreover, ―embezzlement of public money‖ has no statute of limitations. 

(§ 799.) Here, we do not address the embezzlement of public funds, and need not 

decide if a defendant could be convicted of both that crime and larceny given these 

differences. (See also § 506b.) 
22

embezzlement if both instructions are supported by substantial evidence. As we 

have long recognized, a trial court also properly instructs a jury that it need not 

unanimously agree on whether a defendant committed larceny or embezzlement. 

(Nor Woods, supra, 37 Cal.2d at p. 586.) For clarity on appeal, parties may 

request a jury make special findings on whether it unanimously found a defendant 

committed either larceny or embezzlement. (See Schad v. Arizona, supra, 

501 U.S. at p. 645 [―separate verdict forms are useful in cases submitted to a jury 

on alternative theories of premeditated and felony murder‖].) 

2. Does section 954 permit multiple convictions for different 

statements of the same offense?

Having concluded that larceny and embezzlement are different statements 

of the same offense, we now consider whether section 954 permits multiple 

convictions in that circumstance. We left this question open in Gonzalez, supra, 

60 Cal.4th at page 540. Defendant contends that section 954 only permits the 

charging of, but not the conviction for, ―different statements of the same offense.‖ 

We agree. 

As noted above, section 954 provides as relevant here: ―An accusatory 

pleading may charge two or more different offenses connected together in their 

commission, or different statements of the same offense or two or more different 

offenses of the same class of crimes or offenses, under separate counts . . . . The 

prosecution is not required to elect between the different offenses or counts set 

forth in the accusatory pleading, but the defendant may be convicted of any 

number of the offenses charged, and each offense of which the defendant is 

convicted must be stated in the verdict or the finding of the court . . . .‖ (Italics 

added.) 

Section 954 defines three categories of charges that can be joined in one

action: ―different offenses connected together in their commission,‖ ―different
23

statements of the same offense,‖ and ―different offenses of the same class of

crimes or offenses.‖ (Italics added.) In the next sentence, however, section 954 

sets forth the charges of which the defendant may be convicted, providing, ―The 

prosecution is not required to elect between the different offenses or counts set 

forth in the accusatory pleading, but the defendant may be convicted of any 

number of the offenses charged . . . .‖ The language ―offenses charged‖ is 

reasonably read to refer back to the use of the word ―offenses‖ in the phrases

―different offenses connected together in their commission‖ and ―different 

offenses of the same class of crimes or offenses.‖ It is not reasonably read as 

referring back to the word ―offense‖ in the singular as in the phrase ―different 

statements of the same offense.‖ 

As defendant notes, ―It is significant that section 954 uses the term 

 ̳different offenses‘ in conjunction with only two of the three categories of charges 

that may be properly joined in a proceeding –  ̳different offenses connected 

together in their commission,‘ and „different offenses of the same class of crimes 

or offenses, under separate counts.‘ The remaining category of charges —

„different statements of the same offense‘ — differs from the other two categories 

as it concerns an alternative means of pleading the same offense rather than a 

different one. And most importantly, this category is not referenced in the 

language that addresses the charges of which a defendant may be convicted. The 

most reasonable construction of the language in section 954 is that 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.‖ (See People v. Coyle (2009) 

178 Cal.App.4th 209, 211, 217-218 [defendant improperly convicted of three 

counts of murder for killing one person].)
24

Our conclusion is consistent with the ―judicially created exception to the 

general rule permitting multiple conviction [that]  ̳prohibits multiple convictions 

based on necessarily included offenses.‘ ‖ (Reed, supra, 38 Cal.4th at p. 1227.) 

As defendant asserts, ―[i]t logically follows that if a defendant cannot be convicted 

of a greater and a lesser included offense based on the same act or course of 

conduct, dual convictions for the same offense based on alternate legal theories 

would necessarily be prohibited.‖ 

The Attorney General asserts that this court held in Ortega, supra, 

19 Cal.4th 696, and Pearson, supra, 42 Cal.3d 351, that multiple convictions for 

different statements of the same offense are authorized by section 954. These 

cases addressed the issue whether certain crimes were necessarily included within 

other crimes, and did not address the issue of whether convictions for different 

statements of the same offense are authorized by section 954. (Ortega, at pp. 693-

694; Pearson, at pp. 354-355.) To the extent language in Pearson can be read to 

suggest that section 954 authorizes multiple convictions for statements of the same 

offense, we now expressly reject any such suggestion. (Pearson, at p. 354.)

We therefore conclude section 954 does not authorize multiple convictions 

for different statements of the same offense. 
25

DISPOSITION

The judgment of the Court of Appeal is affirmed.18 

CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

WERDEGAR, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

 

18 The Attorney General does not challenge the striking of defendant‘s larceny 

conviction by the Court of Appeal, and we express no opinion on whether striking 

the larceny conviction or the embezzlement conviction or consolidating the two 

convictions is the proper remedy.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Vidana

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 233 Cal.App.4th 666

Rehearing Granted

__________________________________________________________________________________

Opinion No. S224546

Date Filed: August 18, 2016

__________________________________________________________________________________

Court: Superior

County: Riverside

Judge: Edward D. Webster*

__________________________________________________________________________________

Counsel:

Valerie G. Wass, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys

General, Steven T. Oetting and Linda Gándara, Deputy State Solicitor Generals, Julie L. Garland, Assistant 

Attorney General, Eric A. Swenson and Michael Pulos, Deputy Attorneys General, for Plaintiff and 

Respondent.

*Retired judge of the Riverside Superior Court, assigned by the Chief Justice pursuant to article VI, section 

6 of the California Constitution.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Valerie G. Wass

556 S. Fair Oaks Avenue, Suite 9

Pasadena, CA 91105

(626) 797-1099

Michael Pulos

Deputy Attorney General

600 West Broadway, Suite 1800

San Diego, CA 92101

(619) 645-3034