Filed 7/24/14




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S208843
           v.                        )
                                     )                      Ct.App. 2/4 B231038
JEFFREY ALLEN WHITMER,               )
                                     )                     Los Angeles County
           Defendant and Appellant.  )                   Super. Ct. No. GA079423
____________________________________)


        Defendant, the manager of a motorcycle dealership, arranged for the
fraudulent sales of vehicles to fictitious buyers. A jury convicted him of 20 counts
of grand theft for 20 separate fraudulent sales. We must decide whether defendant
was properly convicted of a separate theft for each vehicle fraudulently sold, or
whether he could be convicted of only one count of grand theft because all of the
sales were part of a single scheme. Resolution of the issue requires us to revisit
language in People v. Bailey (1961) 55 Cal.2d 514 (Bailey) that some Courts of
Appeal have interpreted as permitting only one conviction of grand theft in
circumstances like this.
        We conclude that past appellate courts have interpreted Bailey more
broadly than is warranted. We agree with the Court of Appeal in this case that 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. We disapprove of Court of Appeal decisions that are inconsistent with
this conclusion.
       However, we also conclude we cannot constitutionally apply this rule to
defendant. Under the law that has existed for decades, defendant could only have
been convicted of a single count of grand theft. We cannot apply the new rule
retroactively to him. Accordingly, and for this reason only, we reverse the
judgment of the Court of Appeal, which had affirmed the judgment of conviction
for the 20 counts of grand theft.
                      I. FACTS AND PROCEDURAL HISTORY
       The Court of Appeal opinion, authored by Justice Manella, summarized the
relevant facts: ―The prosecution submitted evidence that [defendant], while acting
as manager for a motorcycle dealership, arranged for the fraudulent sale of 20
motorcycles, motorized dirt bikes, all-terrain vehicles (ATVs), and similar
recreational vehicles. In collaboration with Mordichi Mor, [defendant] arranged
fraudulent sales to fictitious buyers, using falsified financing agreements and
credit purchases, resulting in monetary losses to the dealership.‖ The Court of
Appeal explained that each transaction resulting in a conviction ―involved a
different vehicle. The 20 transactions occurred on 13 different dates. With the
exception of two dates, whenever more than one transaction occurred on a single
date, the transactions involved distinct fictitious buyers. On the two dates a
fictitious buyer purportedly bought more than one vehicle, the transactions
involved separate paperwork and documentation.‖ The value of the stolen
vehicles ranged from $9,100 to over $20,000 per vehicle, resulting in a total loss
to the dealership of over $250,000.
       As relevant here, a jury convicted defendant of 20 counts of grand theft,
one count for each of the vehicles fraudulently sold. (Pen. Code, § 487.) It also
found true an enhancement allegation that defendant took, damaged, or destroyed

                                          2
property valued at more than $200,000. (Pen. Code, former § 12022.6, subd.
(a)(2).) The court sentenced defendant to prison for a total of 12 years.
       Defendant appealed, arguing, among other contentions, that he could be
convicted of one count of grand theft only. After analyzing our opinion in Bailey,
supra, 55 Cal.2d 514, and reviewing the cases Bailey cited and later cases
interpreting Bailey, the Court of Appeal concluded that defendant was properly
convicted of one count of grand theft for each vehicle stolen. Recognizing that
―other appellate courts have adopted a contrary interpretation of Bailey,‖ it
―urge[d]‖ this court ―to revisit Bailey, as the guidance it offers regarding the
aggregation of grand thefts is difficult to discern.‖
       We granted defendant‘s petition for review and later limited review to the
question of whether he was properly convicted of multiple counts of grand theft.
                                   II. DISCUSSION
       The evidence shows that each count of grand theft was based on a separate
and distinct act. Each transaction resulting in a stolen vehicle, even those
transactions occurring on the same date, involved separate paperwork and
documentation. We must decide whether defendant was properly convicted of one
count of grand theft for each vehicle he stole, as the Court of Appeal found, or
whether, as he argues, he can only be convicted of one count of grand theft.
Central to this question is the proper interpretation of our opinion in Bailey, supra,
55 Cal.2d 514.
       In Bailey, the defendant fraudulently told a welfare office that a man she
had been living with had left her home. Later, and due to this misrepresentation,
she received a series of welfare payments that she was not entitled to receive. She
was convicted of one count of grand theft based on her receiving this series of
welfare payments. (Bailey, supra, 55 Cal.2d at pp. 515-516.) Each payment,
individually, would have constituted petty theft, but the payments totaled more

                                           3
than $200, which at the time constituted grand theft. (Id. at p. 518 & fn. 3.) This
court had to decide whether the defendant ―was guilty of grand theft or of a series
of petty thefts since it appears that she obtained a number of payments, each less
than $200 but aggregating more than that sum.‖ (Id. at p. 518.) The trial court
had ―instructed the jury that if several acts of taking are done pursuant to an initial
design to obtain from the owner property having a value exceeding $200, and if
the value of the property so taken does exceed $200, there is one crime of grand
theft, but that if there is no such initial design, the taking of any property having a
value not exceeding $200 is petty theft.‖ (Ibid.)
       We found the defendant was properly convicted of grand theft. ―Several
recent cases involving theft by false pretenses have held that where as part of a
single plan a defendant makes false representations and receives various sums
from the victim the receipts may be cumulated to constitute but one offense of
grand theft. [Citations.] The test applied in these cases in determining if there
were separate offenses or one offense is whether the evidence discloses one
general intent or separate and distinct intents. The same rule has been followed in
larceny and embezzlement cases, and it has been held that where a number of
takings, each less than $200 but aggregating more than that sum, are all motivated
by one intention, one general impulse, and one plan, the offense is grand theft.
[Citations.]‖ (Bailey, supra, 55 Cal.2d at p. 518-519.)
       Particularly relevant to the issue presented here, the Bailey court added the
following: ―Whether a series of wrongful acts constitutes a single offense or
multiple offenses depends upon the facts of each case, and 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.
[Citation.] In the following cases it was held that each receipt of property

                                           4
obtained by false pretenses constituted a separate offense for which the defendant
could be separately charged and convicted. [Citations.] Although none of these
decisions discussed the rule set forth above, it does not appear that the convictions
would have been affirmed had the evidence established that there was only one
intention, one general impulse, and one plan.‖ (Bailey, supra, 55 Cal.2d at p. 519,
italics added.)
       Citing the language italicized in the previous paragraph from Bailey, supra,
55 Cal.2d at page 519, defendant argues there can only be one grand theft if
multiple acts of grand theft are pursuant to a single intention, a single impulse, and
a single plan. He further argues the thefts of this case come within this rule. As
we explain below, the argument finds support in later Court of Appeal opinions.
       Cases the Bailey court cited, but did not overrule, including cases from this
court, support finding multiple counts of grand theft in this case. The Court of
Appeal reviewed those cases, beginning with People v. Stanford (1940) 16 Cal.2d
247 (Stanford). In Stanford, the Court of Appeal explained, ―a lawyer entrusted
with control of an elderly woman‘s property obtained her permission to use her
funds to buy property for her. (Id. at pp. 248-249.) He took title to the property in
his own name and made three payments of the entrusted funds for its purchase,
each of which exceeded the threshold amount constituting grand theft. (Id. at pp.
248-250.) Following his conviction of three counts of grand theft, the Stanford
court affirmed, stating: ‗There is no merit in appellant‘s contention that the entire
transaction could not constitute more than one offense, and that the conviction of
three separate offenses was error. . . . In the present case the evidence showed that
the thefts referred to in the first three counts of the indictment were separate and
distinct transactions, which occurred on different dates, and involved the taking of
different sums of money. Such separate transactions constituted separate offenses.
[Citations.]‘ (Id. at pp. 250-251.)‖

                                          5
          The Court of Appeal also reviewed other cases that Bailey cited: ―Among
the cited cases are two Supreme Court decisions, People v. Rabe (1927) 202 Cal.
409 (Rabe) and People v. Ashley (1954) 42 Cal.2d 246 (Ashley). In Rabe, the
defendant fraudulently obtained money and property by falsely representing that
he intended to use the funds and property to establish a corporation. (Rabe, supra,
202 Cal. at p. 417.) From one individual he secured investments on three separate
dates: a payment for $1,250, a payment for $4,000, and a contribution of real
property worth $11,000. (Ibid.) Following his conviction of three counts of grand
theft based on these acts, the Supreme Court rejected his contention that he had
committed only a single offense, reasoning that ‗[i]n each count of the indictment
the property . . . was obtained at a different time and was different in character and
value . . . .‘ (Id. at p. 413.) In addition, the court stated that when a defendant
obtains property through false representations to the victim, the defendant may be
separately punished for obtaining additional property from the victim, even though
the initial misrepresentations ‗were still operating upon the mind‘ of the victim.
(Ibid.)
          ―In Ashley, the manager of a corporation obtained funds from two
individuals by falsely representing that the funds would be used for one of the
corporation‘s business projects. (Ashley, supra, 42 Cal.2d at pp. 252-257.)
Because the manager received two payments from each individual, each of which
exceeded the threshold amount for grand theft, he was charged with four counts of
grand theft. (Ibid.) Before the Supreme Court, he contended that he could be
convicted on only one count of grand theft with respect to each victim. (Id. at p.
273.) Relying on Rabe, the court rejected this argument. (Ibid.)
          ―In the remaining cases cited in Bailey, appellate courts reached similar
conclusions on similar facts. (People v. Barber (1959) 166 Cal.App.2d 735, 736-
738 [defendant properly convicted of two counts of grand theft after obtaining two

                                            6
payments exceeding minimum necessary for grand theft from single victim who
intended to invest in defendant‘s bogus mining company]; People v. Caldwell
(1942) 55 Cal.App.2d 238, 242-243, 252 [defendant who falsely represented he
was providing insurance to victim properly convicted of five counts of grand theft
based on five separate premium payments, each exceeding minimum necessary for
grand theft]; People v. Ellison (1938) 26 Cal.App.2d 496, 497-499 [defendants
properly convicted of three counts of grand theft for receiving three separate
payments from creditor, each exceeding minimum necessary for grand theft, based
on presentation of falsified contracts to creditor indicating that defendants were
selling goods to others].‖
       Noting that the Bailey court did not overrule any of these cases, the Court
of Appeal concluded that ―Stanford, Rabe, and Ashley embody the reasonable
view that a defendant who repeatedly takes property exceeding the requisite
amount for grand theft from a victim through separate transactions [citation] —
but pursuant to a single scheme or overarching misrepresentation — commits
more crimes than a defendant who takes such property only once. Indeed, a
contrary view would give a ‗felony discount‘ to the thief who perfects a scheme to
commit multiple acts of grand theft.‖
       Several Court of Appeal decisions have interpreted Bailey, supra, 55 Cal.2d
514, differently. (See generally People v. Jaska (2011) 194 Cal.App.4th 971, 980-
985.) As the Court of Appeal explained, ―some courts have held that Bailey bars
multiple convictions for grand theft when the individual thefts arise from a
recognizable plan or scheme, even though each theft is separate and distinct, and
involves property or money exceeding the amount needed for grand theft. The
principal case is People v. Kronemyer (1987) 189 Cal.App.3d 314, 324-325
(Kronemyer), which involved a lawyer who acted as the conservator of an elderly
man. After the lawyer decided to loot the man‘s estate, he took all the funds in

                                          7
four bank accounts, each of which contained more than $8,000. (Id. at pp. 327-
328.) Following the lawyer‘s conviction of four counts of grand theft based on
these transactions, the appellate court reversed three of the four convictions,
reasoning that ‗[t]he fact these physically separated funds required four
transactions does not avoid the single-plan single-offense rule discussed in
[Bailey].‘ (Id. at p. 364.)‖ (See also People v. Brooks (1985) 166 Cal.App.3d 24
[reversing 12 of 13 counts of grand theft and one count of petty theft arising from
the defendant‘s theft of auction proceeds]; People v. Packard (1982) 131
Cal.App.3d 622 [reversing two of three grand theft convictions based on the
submission of a series of false invoices]; People v. Gardner (1979) 90 Cal.App.3d
42 [reversing three of four counts of grand theft of animal carcasses]; People v.
Richardson (1978) 83 Cal.App.3d 853 [reversing three of four counts of attempted
grand theft based on attempting to obtain payments on four fraudulent warrants];
People v. Sullivan (1978) 80 Cal.App.3d 16 [reversing eight of nine related counts
of grand theft based on receipt of a series of cashier‘s checks pursuant to a single
fraudulent scheme].)
       The Court of Appeal declined to follow these cases, finding them contrary
to People v. Ashley, supra, 42 Cal.2d 246, Stanford, supra, 16 Cal.2d 247, and
People v. Rabe, supra, 202 Cal. 409.
       We thus have cases distinguished but not overruled in Bailey, supra, 55
Cal.2d 514, that support multiple convictions of grand theft in this case, post-
Bailey Court of Appeal cases relying on Bailey that would prohibit such multiple
convictions, and Bailey itself. We must decide what the proper rule should be.
We need not decide whether the Bailey rule regarding a series of petty thefts
applies similarly to a series of grand thefts. As Bailey‘s discussion of earlier cases
upholding multiple convictions of grand theft implies, Bailey is factually
distinguishable. The Bailey rule must be interpreted in light of its facts.

                                          8
       In Bailey, the defendant committed a single misrepresentation and then
received a series of welfare payments due to that misrepresentation. Other than
omitting to correct the misrepresentation and accepting the payments, the
defendant committed no separate and distinct fraudulent acts. As the Bailey court
explained, the trial court had instructed the jury it could aggregate into a single
count of grand theft a series of petty thefts done pursuant to an ―initial design‖ to
obtain property exceeding the threshold amount that makes the crime grand theft.
(Bailey, supra, 55 Cal.2d at p. 518.) The evidence supported a jury finding that
the defendant did have an initial design to keep receiving the welfare payments
until they exceeded that threshold amount. Accordingly, the court concluded that
defendant had not committed ―separate and distinct‖ offenses. (Id. at p. 519.) But
in this case, and, generally, in the earlier cases the Bailey court distinguished, the
defendant committed separate and distinct fraudulent acts.
       This makes all the difference. When the Bailey court said that the earlier
cases upholding multiple convictions of grand theft would not have done so ―had
the evidence established that there was only one intention, one general impulse,
and one plan‖ (Bailey, supra, 55 Cal.2d at p. 519), it must have had this distinction
in mind. Bailey concerned a single fraudulent act followed by a series of
payments. The cases Bailey distinguished generally involved separate and
distinct, although often similar, fraudulent acts. Accordingly, those cases involved
―separate and distinct‖ (ibid.) offenses warranting separate grand theft convictions.
This case is not similar to Bailey but rather to the cases it distinguished.
Defendant committed a series of separate and distinct, although similar, fraudulent
acts in preparing separate paperwork and documentation for each fraudulent
transaction. Each fraudulent act was accompanied by a new and separate intent to
commit that fraud.



                                           9
       As the Court of Appeal put it, a serial thief should not receive a ―felony
discount‖ if the thefts are separate and distinct even if they are similar.
Accordingly, we conclude that 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. Without deciding whether any particular post-
Bailey Court of Appeal opinion was incorrect under its facts, we disapprove of any
interpretation of Bailey that is inconsistent with this conclusion.
       Defendant argues that principles of stare decisis prevent us from overruling
Bailey. (See generally People v. Latimer (1993) 5 Cal.4th 1203, 1212-1216.) But
we are merely interpreting Bailey, not overruling it. To be sure, we are
disapproving some post-Bailey Court of Appeal decisions. But those cases
misinterpreted Bailey and overlooked the fact that it cited and distinguished, but
did not overrule, earlier cases, including some from this court, that support finding
multiple grand thefts in cases like this. We are merely reaffirming those earlier
cases. Under the circumstances, considerations of stare decisis ―do not weigh as
heavily‖ as in some cases. (People v. Correa (2012) 54 Cal.4th 331, 344.)
       Defendant also argues that legislative inaction shows the Legislature
supports the prevailing interpretation of Bailey. It is true that the Legislature has
not addressed this precise point. It has not overruled Bailey‘s holding permitting
the accumulation of a series of petty thefts into one grand theft, or the appellate
courts‘ broad interpretation of Bailey. In some circumstances, legislative inaction
might indicate legislative approval of a judicial decision. (See People v. Williams
(2001) 26 Cal.4th 779, 789-790.) ―However, legislative inaction alone does not
necessarily imply legislative approval. ‗The Legislature‘s failure to act may
indicate many things other than approval of a judicial construction of a statute: the
sheer pressure of other and more important business, political considerations, or a
tendency to trust to the courts to correct their own errors . . . .‘ ‖ (People v. King

                                          10
(1993) 5 Cal.4th 59, 75.) We see nothing in the legislative inaction that prevents
this court from interpreting Bailey for the first time and reaching a conclusion
consistent with the cases that Bailey discussed and distinguished.
       Moreover, our conclusion is fully consistent with actions the Legislature
has taken. Penal Code section 12022.6, subdivision (a), imposes sentence
enhancements when the defendant ―takes, damages, or destroys any property in
the commission or attempted commission of a felony‖ if the loss exceeds specified
amounts. Subdivision (b) of that section permits the aggregation of losses from
multiple charges if they ―arise from a common scheme or plan.‖ (Pen. Code,
§ 12022.6, subd. (b).) The Legislature added the ―common scheme or plan‖
language in 1992. (See People v. Green (2011) 197 Cal.App.4th 1485, 1493.)
This language indicates the Legislature intended, or at least was aware, that
multiple convictions can arise from multiple acts even if part of a common scheme
or plan.
       Defendant also contends we cannot constitutionally apply the rule we adopt
to him. Here we agree. ―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; see also
People v. Correa, supra, 54 Cal.4th at pp. 344-345.) The Attorney General argues
that Bailey does not prevent applying our interpretation to defendant. We agree.
The problem, however, is not Bailey but the long, uninterrupted series of Court of
Appeal cases, beginning with People v. Sullivan, supra, 80 Cal.App.3d 16,
decided in 1978, and including People v. Kronemyer, supra, 189 Cal.App.3d 314,
decided in 1987, that have consistently held that multiple acts of grand theft
pursuant to a single scheme cannot support more than one count of grand theft.



                                         11
       In People v. Blakeley, supra, 23 Cal.4th at pages 91-92, we held that an
unintentional killing in unreasonable self-defense is voluntary manslaughter.
However, because three Court of Appeal decisions had concluded, without
contradiction, that such a killing was involuntary manslaughter, we did not apply
the new rule retroactively to the defendant. Under the circumstances, our decision
was ―an unforeseeable judicial enlargement of the crime of voluntary
manslaughter, and thus may not be applied retroactively to defendant.‖ (Id. at p.
92.) We reach a similar conclusion here. We do not suggest that any time we
resolve a conflict between Court of Appeal decisions in favor of the rule less
favorable to the defendant, we may not apply that resolution to that defendant.
But given the numerous, and uncontradicted, Court of Appeal decisions over a
long period of time that reached a conclusion contrary to ours, we believe today‘s
holding is also an unforeseeable judicial enlargement of criminal liability for
multiple grand thefts. Accordingly, that holding may not be applied to defendant.
       In finding the enhancement allegation true that defendant took property
valued at more than $200,000, the jury necessarily found that the grand thefts
arose ―from a common scheme or plan.‖ (Pen. Code, § 12022.6, subd. (b).) The
law as it had existed for decades before defendant committed his crimes permitted
conviction of only one count of grand theft under those circumstances. Because
defendant is entitled to the benefit of that law, he cannot be convicted of more than
one count of grand theft. For this reason, we reverse the Court of Appeal‘s
judgment, which had affirmed the grand theft convictions.




                                         12
                                 III. CONCLUSION
       We reverse the judgment of the Court of Appeal and remand the matter to
that court for further proceedings consistent with this opinion.

                                                         CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
BAXTER, J.
WERDEGAR, J.
CORRIGAN, J.
LIU, J.




                                         13
                CONCURRING OPINION BY WERDEGAR, J.



       I agree with the majority that ―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.‖ (Maj. opn., ante, at p. 10.)
While this formulation of the aggregation rule for thefts differs somewhat from
that in People v. Bailey (1961) 55 Cal.2d 514, it provides guidance that is
relatively clear and is likely to accord with the defendant‘s culpability in most
cases. Moreover, as Justice Liu observes in his concurring opinion, although a
defendant may be convicted only of either the aggregated offense or one or more
of the individual thefts, because the connections among the takings or the lack
thereof may not be evident at the time of charging a prosecutor may charge the
defendant both with one count of a larger, aggregated theft, and several counts of
smaller, individuals thefts. (Conc. opn. of Liu, J., post, at p. 7.)
       Although by the majority‘s stated standard defendant was permissibly
convicted of multiple grand thefts, I also agree with the majority that because of
the divergence between our statement of the rule and that previously articulated by
the appellate courts, due process precludes application of the new standard to this
defendant. (Maj. opn., ante, at pp. 11–12.)
       Finally, I agree with Justice Liu‘s concurrence that logically the same
aggregation rule must apply to grand thefts as to petty thefts. ―Because the same
definition of theft applies to grand thefts and petty thefts, the question whether a
series of related takings constitutes one or several thefts within the meaning of
[Penal Code] section 484 is necessarily common to both grand thefts and petty
thefts.‖ (Conc. opn. of Liu, J., post, at p. 2.)


                                                   WERDEGAR, J.




                                            2
                      CONCURRING OPINION BY LIU, J.



       In People v. Bailey (1961) 55 Cal.2d 514 (Bailey), we held that when a
defendant unlawfully takes property from the same victim on multiple different
occasions, the defendant has committed only one theft if the various takings were
committed pursuant to ―one intention, one general impulse, and one plan.‖ (Id. at
p. 519.) The court today holds that under a proper construction of the Bailey rule,
defendant committed 20 thefts, not one, on these facts. I agree and therefore join
the court‘s opinion. But the court merely assumes, without deciding, that the
Bailey rule applies here. (Maj. opn., ante, at p. 8.) I write separately to explain
that the Bailey rule necessarily applies in this case because Bailey defined what
constitutes a single theft within the meaning of Penal Code section 484. That
holding applies to all categories of theft.
       The central question addressed by the parties in this case was ―whether the
Bailey rule regarding a series of petty thefts applies similarly to a series of grand
thefts.‖ (Maj. opn., ante, at p. 8.) In declining to answer this question, the court
leaves unresolved the ―recurring issue‖ of ―whether successive acts of theft
constitute separate crimes or a single crime.‖ (2 Witkin & Epstein, Cal. Criminal
Law (4th ed. 2012) Crimes Against Property, § 12, p. 34.) The proper unit of
prosecution is a question of legislative intent that arises when interpreting any
criminal statute. (See Sanabria v. United States (1978) 437 U.S. 54, 70 [―Whether
a particular course of conduct involves one or more distinct ‗offenses‘ under the
statute depends on . . . congressional choice.‖ ]; see generally Note, Counting
Offenses (2009) 58 Duke L.J. 709.) Answering a unit of prosecution question
requires courts to determine when ―the actus reus prohibited by the statute — the
gravamen of the offense — has been committed more than once.‖ (Wilkoff v.
Superior Court (1985) 38 Cal.3d 345, 349, superseded by statute on other grounds
as stated in People v. Arndt (1999) 76 Cal.App.4th 387, 393–394; see, e.g., In re
Carleisha P. (2006) 144 Cal.App.4th 912, 919; People v. Washington (1996) 50
Cal.App.4th 568, 576–577.)
       Bailey necessarily answered the unit of prosecution question for all thefts,
not just petty thefts. The crime of ―theft‖ is defined by Penal Code section 484.
In turn, a grand theft is defined to include any ―theft‖ in which property of a
certain value has been taken. (Pen. Code, § 487, subd. (a); all undesignated
statutory references are to the Penal Code.) All thefts that are not grand thefts are
petty thefts. (§§ 486, 488.) Because the same definition of theft applies to grand
thefts and petty thefts, the question whether a series of related takings constitutes
one or several thefts within the meaning of section 484 is necessarily common to
both grand thefts and petty thefts. (See Gomez v. Superior Court (1958) 50 Cal.2d
640, 645 [―The distinctions between grand and petty theft according to the Penal
Code are in the type of article stolen, whether the article was taken from the
person of another and in the value thereof. (Pen. Code, §§ 484, 487, 487a, 488.)
The elements of the crime remain the same with the exceptions noted.‖].)
       We have authority to interpret what constitutes one discrete theft within the
meaning of section 484, as well as what the enumerated bases for grand theft in
section 487 mean. But we have no authority to invent new types of grand theft
beyond those authorized by the Legislature. (See People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 516 [― ‗the power to define crimes and fix
penalties is vested exclusively in the legislative branch‘ ‖]; People v. Harrison

                                          2
(1989) 48 Cal.3d 321, 332 [the ―court is not to sit as a ‗super-legislature‘ altering
criminal definitions‖]; In re Lynch (1972) 8 Cal.3d 410, 414.) It would have been
surprising for Bailey to have invented a new, nonstatutory category of grand theft
out of multiple petty thefts because one of the enumerated types of grand theft at
the time pertained to multiple acts of petty theft by an employee against his or her
employer over a 12-month period. (§ 487, subd. (b)(3).) When the Legislature
wants to allow aggregation of separate petty thefts into a single grand theft, it
knows how to say so. (See also §§ 484g, 484h [allowing aggregation of all thefts
in a six-month period involving the use of the same forged or stolen credit card].)
Our decision in Bailey must be understood as having announced a general rule for
determining what conduct, as a definitional matter, constitutes a single theft — not
a special equitable rule, unmoored from the statutory definition of theft, that
permits multiple small takings, but only small takings, to be aggregated into a
single larger theft.
       The welfare payments the defendant in Bailey received were small enough
that, taken alone, each payment would have constituted a petty theft. But Bailey
said the question presented was ―whether [the defendant] was guilty of grand theft
or of a series of petty thefts . . . .‖ (Bailey, supra, 55 Cal.2d at p. 518, italics
added; see id. at p. 519 [―The test applied in [three Court of Appeal] cases in
determining if there were separate offenses or one offense is whether the evidence
discloses one general intent or separate and distinct intents.‖ (italics added)].) The
repeated use of the disjunctive term ―or‖ shows that Bailey was answering a unit
of prosecution question, i.e., whether the acts in question constituted one offense
or several offenses. Bailey was not crafting a novel rule that allows a defendant to
be found guilty of a single grand theft in circumstances where the defendant could
also be found guilty of multiple petty thefts.



                                            3
       This explains why Bailey said the rule it announced also applies to the
determination of when multiple large takings constitute one grand theft as opposed
to several smaller grand thefts: ―[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.‖ (Bailey, supra, 55 Cal.2d at
p. 519.) The fact that Bailey was defining what constitutes a single theft, whether
petty or grand, explains why the court felt it was necessary to address when
multiple large takings constitute only one grand theft. Bailey was not considering
two separate questions — i.e., (1) ―When do several small takings constitute a
single grand theft?‖ and (2) ―When do several large takings constitute only one
larger grand theft?‖ Instead, it was answering both questions simultaneously
because those two questions are actually the same question: ―When does a series
of multiple related takings constitute only one theft?‖
       Over the five decades since Bailey was decided, the Courts of Appeal have
consistently understood that Bailey was answering this definitional unit of
prosecution question. (See People v. Jaska (2011) 194 Cal.App.4th 971, 980
[Bailey ―considered ‗whether [the defendant] was guilty of grand theft or of a
series of petty thefts‘ ‖ (italics added)]; People v. Tabb (2009) 170 Cal.App.4th
1142, 1148–1149 [collecting cases]; People v. Kronemyer (1987) 189 Cal.App.3d
314, 363 [―A single criminal plan completed by a series of transactions over a
period of time, each requiring the execution of separate documents to complete,
constitutes but one crime.‖ (italics added)]; People v. Brooks (1985) 166
Cal.App.3d 24, 30 [explaining that Bailey answered the ―especially thorny‖
problem ―of whether successive acts constitute separate crimes or a single crime‖
(italics added)]; People v. Packard (1982) 131 Cal.App.3d 622, 626 [citing Bailey
for ―the well-established rule that in a series of takings from the same individual,

                                          4
there is a single theft if the takings are pursuant to one continuing impulse, intent,
plan or scheme, but multiple counts if each taking is the result of a separate
independent impulse or intent‖]; People v. Richardson (1978) 83 Cal.App.3d 853,
866 [―The test applied in theft prosecutions in determining if there are separate
offenses or one offense is whether the evidence discloses one general intent or
distinct and separate intents.‖]; People v. Neder (1971) 16 Cal.App.3d 846, 852
[―In cases involving theft (by larceny, false pretenses, or embezzlement), where
several takings are motivated by ‗one intention, one general impulse and one
plan,‘ the entire transaction is held to be a single crime.‖].)
       The Attorney General argues that Bailey‘s discussion of when multiple
large takings constitute a single grand theft was dictum. She urges us to hold that
multiple large takings constitute one grand theft if and only if they occur as part of
a single transaction. By contrast, she says, multiple small takings may be treated
as a single grand theft so long as each taking shares a common scheme or modus
operandi. When asked at oral argument whether there could be any analytical
justification for this uneven result, the Attorney General said, ―I think there are
policy reasons that it is justifiable. I don‘t know that analytically it is justifiable.‖
But we are not free to invent new crimes, including new categories of grand theft,
merely because there may be good policy reasons for us to do so. The Attorney
General‘s policy argument is properly addressed to the Legislature. The Bailey
rule necessarily applies with equal force regardless of whether the series of takings
in question would each constitute petty thefts or grand thefts if considered in
isolation.
       Further, the Attorney General contends, as did the Court of Appeal below,
that permitting multiple large takings to be treated as a single grand theft in some
circumstances will give thieves an incentive to commit more thefts because they
will face no additional criminal liability for additional takings. Today‘s opinion

                                            5
clarifies that no such ―felony discount‖ is available when a defendant takes
―separate and distinct‖ actions that result in obtaining property from the same
victim on ―separate and distinct‖ occasions even if the defendant utilizes a similar
or identical modus operandi. (Maj. opn., ante, at pp. 9–10.) But to the extent the
Bailey rule provides any ―discount‖ to defendants who take property pursuant to
―one intention, one general impulse, and one plan‖ (Bailey, supra, 55 Cal.2d at
p. 519), it is up to the Legislature to determine whether the rule should be
otherwise.
       As noted, the Legislature has responded to precisely such concerns in the
limited contexts of credit card theft (§§ 484g, 484h) and theft by employees
against their employers (§ 487, subd. (b)(3)). (Cf. People v. Correa (2012) 54
Cal.4th 331, 345–346 [documenting the Legislature‘s decision to override the
Court of Appeal‘s unit of prosecution analysis with respect to former § 12020,
which prohibits possession of sawed-off shotguns].) At the same time, there are
reasons why the Legislature might hesitate to treat every taking as a separate theft.
For example, reasonable minds can differ as to whether a defendant who accepts
12 fraudulently obtained payments of $1,000 per month during a single year from
the same victim is 12 times more blameworthy than a defendant who successfully
plots for an entire year to steal $25,000 from the same victim. Moreover, the
Legislature has already provided a mechanism for imposing additional punishment
where a series of related takings, each of which is large enough to qualify as grand
theft, results in aggregate losses exceeding specified amounts. (§ 12022.6, subds.
(a), (b).) We have no authority to supplement the statutory scheme with our own
policy judgments as to the relative blameworthiness of various theft acts.
       Applying the Bailey rule evenhandedly to petty thefts and grand thefts will
not unduly limit a prosecutor‘s charging discretion. If a defendant has engaged in
multiple related takings, a prosecutor is not prohibited from charging the

                                          6
defendant both with one count of a larger (aggregated) theft and with several
counts of smaller (individual) thefts. A prosecutor may charge a defendant under
both theories, since it may not be evident at the time of charging whether the
takings were ―committed pursuant to one intention, one general impulse, and one
plan.‖ (Bailey, supra, 55 Cal.2d at p. 519; see ibid. [―Whether a series of
wrongful acts constitutes a single offense or multiple offenses depends upon the
facts of each case . . . .‖].) But the jury may only convict the defendant of either
the aggregated theft or one or more separate thefts, depending on whether the
takings were committed pursuant to the same intention, general impulse, and plan.
If they were, then only a conviction on the aggregated offense is appropriate; if
not, then no conviction on the aggregated offense is appropriate. The application
of this rule does not and cannot turn on whether each taking, if considered in
isolation, was a petty theft or a grand theft.
       I conclude with a brief comment on the concerns raised by our dissenting
colleague. Justice Rushing agrees with Justice Werdegar and me that ―there can
be no justification for varying the unit of prosecution in theft cases according to
the value of the property taken.‖ (Dis. opn., ante, at p. 24.) But his broader
concern is that our holding today — ―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‖ (maj. opn., ante, at p. 10) —
largely displaces Bailey‘s rule of aggregation for multiple takings ―committed
pursuant to one intention, one general impulse, and one plan‖ (Bailey, supra, 55
Cal.2d at p. 519). (Dis. opn., post, at pp. 3–10.)
       Although this concern is prompted by a quite thoughtful review of the case
law, it reads too much into what today‘s opinion actually says. The terms ―single
overarching scheme‖ and ―common scheme or plan,‖ as used in today‘s opinion
(maj. opn., ante, at pp. 10, 11), are properly understood to mean similarity in how

                                           7
a series of takings was performed, i.e., a modus operandi. Indeed, that is the basis
for our conclusion that defendant committed 20 thefts, not one, on the facts here:
Defendant stole 20 different vehicles from his employer on 13 different days,
repeatedly using one of two fraudulent methods to execute the fake sales. We are
careful to disapprove post-Bailey Court of Appeal decisions only to the extent they
construed Bailey to find one theft ―in cases like this.‖ (Maj. opn., ante, at p. 10.)
Today‘s opinion clarifies that a common scheme or modus operandi is different
from a single impulse. In other words, separate and distinct takings do not fall
under Bailey‘s aggregation rule simply because, as here, they were all done the
same way. But neither does the mere fact that multiple takings are separate and
distinct entail a finding of multiple thefts in every case. If the takings were
committed pursuant to a single intention, impulse, and plan, then under Bailey
they amount to only one theft.
       Of course, each case will continue to depend on its facts. Just as Bailey
itself must ―be interpreted in light of its facts‖ (maj. opn., ante, at p. 8), the same
goes for our decision today. But apart from the need to treat petty thefts and grand
thefts equally under Bailey, today‘s decision does not portend the arbitrariness that
Justice Rushing fears. Notably, although our opinion characterizes the facts of
Bailey as involving ―a single fraudulent act followed by a series of payments‖
(maj. opn., ante, at p. 9), Bailey is just as easily characterized as involving
multiple acts (each receipt of a welfare payment counts as one) pursuant to a
single impulse or ―initial design‖ (Bailey, supra, 55 Cal.2d at p. 518). Applying
the relevant concepts — what is an ―act,‖ what is an ―impulse‖ — will be
straightforward in some cases and more challenging in others. But our decision
does not require or encourage courts to start counting the number of tools in a
stolen tool set, the number of trousers in a stolen wardrobe, or the number of arm
movements in stealing several wristwatches from a carton. (Dis. opn., ante, at

                                            8
pp. 7–10.) In this area, as in others, proper application of the law has much more
to do with practical judgment than pure logic or metaphysics.


                                                LIU, J.




                                         9
                      DISSENTING OPINION BY RUSHING, J.



       I am unable to concur in either the reasoning of the majority opinion or in its
result.1 At its core is the proposition that cases interpreting People v. Bailey (1961) 55
Ca1.2d 514 (Bailey) have mistakenly understood that case to require the aggregation of
multiple thefts into a single charge whenever the thefts arise from a ― ‗common scheme
or plan.‘ ‖ (Maj. opn., ante, at p. 12, quoting jury finding under Pen. Code, former
§ 12022.6, subd. (b) (section 12022.6(b)).) Because the jury here found such a ―common
scheme or plan‖ in a different context, the majority reasons, existing law compels
reversal of 19 out of defendant‘s 20 grand theft convictions. Henceforth, however, some
other rule or rules will govern such questions.
       In fact, however, no court before today has so much as hinted that the rule of
Bailey is coextensive with the concept of a ―common scheme or plan.‖ This court itself
has authoritatively construed that phrase to have a meaning not only distinct from, but
incompatible with, its application in the present context. Yet based on its novel equation
of these two distinct concepts, the majority declares that some unspecified body of case



       1 I am also unable to fully concur in Justice Liu‘s separate opinion. Where our
views diverge is in our interpretation of the majority opinion in other respects. His
reading enables him to concur in the result; mine does not. This divergence may be a
harbinger of the confusion I fear today‘s decision will wreak in the lower courts.
law must be disapproved, and suggests that a competing body of case law predating
Bailey must be re-enlivened instead.
       I find this approach to the problem both analytically unsound and pragmatically
unwise. It seems destined to sow greater uncertainty than ever among those tasked with
applying the law of theft. By authoritatively declaring that existing law requires
aggregation of felonies whenever they are part of a ―common scheme or plan,‖ the
majority has invited defendants in cases not yet final to challenge multiple-count
convictions that would otherwise be considered entirely sound. With respect to future
cases, the majority has cast not only the meaning but even the continued existence of the
Bailey rule in doubt. In its place the majority raises up a body of authority that was
limited to insignificance by Bailey—and rightly so, because it stood for a rule that is
simplistic in concept, arbitrary in result, and in some respects simply unworkable. Lower
courts will now undoubtedly rediscover these vices, but will have to cope with them as
best they can, unaided by anything resembling a clear and predictable rule. Further,
because the majority implies that different rules may govern the treatment of multiple
takings depending on the value of property taken, the lower courts will be forced to guess
not only at whether such a distinction exists, but at what rules apply if it does.
       I would instead reaffirm and clarify the rule of Bailey. Properly understood, it
furnishes no basis for reversal of the judgment before us. However it does serve a
number of salutary functions beyond the one the majority seems to think worth
preserving, i.e., to aggregate a number of smaller takings into a grand theft charge. It can
also obviate certain analytical problems in defining the actus reus in theft offenses, as
well as difficulties of proof that can arise under a rule rigidly declaring each taking a
distinct offense. Most fundamentally, however, as applied to numerous larger takings,
the Bailey rule can avoid dramatic differences in result arising from the fortuity that a
criminal impulse is executed through numerous subsidiary takings rather than a single

                                              2
act. I find entirely inadequate the majority‘s critique of such a rule, i.e., that it allows a
―felony discount‖ to its beneficiaries. Finally, I cannot accept the suggestion that the
aggregation of offenses, though eliminated or sharply curtailed with respect to multiple
large takings, may be preserved in cases where it operates to elevate a number of petty
thefts into a grand theft. Like Justice Liu, I find such a double standard wholly
unjustifiable, as well as invasive of the Legislature‘s exclusive power to define criminal
offenses.
I. Bailey’s Impulse Rule
       The question before us is one of the ―unit of prosecution,‖ i.e., ―what constitutes a
single instance of [the] crime.‖ (People v. Wolfe (2003) 114 Cal.App.4th 177, 186.)
Subject to the paramount power of the Legislature to define criminal conduct, courts have
recognized three conceptual approaches to such problems: an ―[a]ct-[b]ased [a]pproach,‖
which focuses on each physical act in violation of the governing statute (Note, Counting
Offenses (2009) 58 Duke L.J. 709, 722); a ―[c]riminal [i]mpulse-[b]ased [a]pproach,‖
under which a series of acts may be viewed as a single offense if they occur pursuant to a
single originating impulse (id. at p. 717); and a ―[t]ime-[b]ased [a]pproach,‖ which
defines an offense chronologically (id. at p. 728).
       The Legislature has explicitly adopted a time-based unit of prosecution to define
grand theft in a few specific circumstances.2 In all other cases the determination of the
unit of prosecution in theft offenses has been left to case law. Although no court has yet
expressed the point this way, I read the cases to mean that as a general rule, each act in

       2  Thus an employee commits grand theft by stealing from an employer ―money,
labor, or real or personal property . . . aggregate[ing] nine hundred fifty dollars ($950) or
more in any 12 consecutive month period.‖ (Pen. Code, § 487, subd. (b)(3).) It is also
grand theft to use a forged or stolen credit card to obtain things with a value exceeding
$950 ―in any consecutive six-month period.‖ (Pen. Code, § 484g.) A similar rule applies
to the submission of fraudulent credit card charges by a retailer. (Pen. Code, § 484h.)


                                               3
violation of the theft statutes—i.e., each misappropriative act—will support a separate
charge and a separate conviction. The threshold question is whether ―the actus reus
prohibited by the statute—the gravamen of the offense—has been committed more than
once.‖ (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349; see, e.g., In re Carleisha P.
(2006) 144 Cal.App.4th 912, 919; People v. Washington (1996) 50 Cal.App.4th 568, 576-
577.) If it has, the question becomes whether these otherwise severable acts fall within
some exception requiring their treatment as a single offense.
       In Bailey, Chief Justice Phil Gibson, joined by Justice Roger Traynor and the other
members of the court, clearly recognized such an exception by adopting an impulse-
based unit of prosecution rule. The defendant there was convicted of grand theft by false
pretenses based on a series of welfare payments she secured by misrepresenting the status
of a cohabitant. Each payment was below the $200 threshold then delineating grand
theft. The trial court instructed the jury that if the takings were ―done pursuant to an
initial design to obtain from the owner property having a value exceeding $200,‖ there
was ―one crime of grand theft,‖ but that without such an ―initial design,‖ she had
committed petty theft. (Bailey, supra, 55 Cal.2d at p. 518.) The court held this
instruction proper and affirmed the defendant‘s conviction for grand theft.
       In doing so the court cited three bodies of case law with approval. The first was
cases involving ―theft by false pretenses,‖ which it described as holding ―that where as
part of a single plan a defendant makes false representations and receives various sums
from the victim the receipts may be cumulated to constitute but one offense of grand
theft.‖ (Bailey, supra, 55 Cal.2d at p. 518, citing People v. Robertson (1959) 167
Cal.App.2d 571, 576-577; Dawson v. Superior Court (1956) 138 Cal.App.2d 685, 686 et
seq.; People v. Lima (1954) 127 Cal.App.2d 29, 34.) The second was ―larceny and
embezzlement cases‖ following ―the same rule‖ and holding ―that where a number of
takings, each less than $200 but aggregating more than that sum, are all motivated by one

                                              4
intention, one general impulse, and one plan, the offense is grand theft.‖ (Bailey, supra,
at p. 519, citing People v. Fleming (1934) 220 Cal. 601, 610-611; People v. Howes
(1950) 99 Cal.App.2d 808, 818-821; People v. Yachimowicz (1943) 57 Cal.App.2d 375,
381; People v. Dillon (1934) 1 Cal.App.2d 224, 228-229; People v. Bratton (1932) 125
Cal.App. 337, 342-344; People v. Sing (1919) 42 Cal.App. 385, 395-396; People v.
Ashley (1954) 42 Cal.2d 246, 279, fn. 3 (conc. & dis. opn. of Schauer, J.).) The Bailey
court then cited People v. Stanford (1940) 16 Cal.2d 247, 250-251, for the proposition
that ―[w]hether a series of wrongful acts constitutes a single offense or multiple offenses
depends upon the facts of each case, and 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.‖ (Bailey, supra, at p. 519.)
       The Bailey court expressly disapproved three cases ―insofar as they are
inconsistent with the views expressed herein.‖ (Bailey, supra, 55 Cal.2d at p. 519.) In
the first, People v. Scott (1952) 112 Cal.App.2d 350, 351, the defendant challenged his
conviction on multiple counts of grand theft on the ground that the trial court had erred in
refusing to instruct the jury ―that if several acts of taking were done pursuant to one
design, the same constitutes one offense only.‖ (Footnote omitted.) The Court of Appeal
dismissed the contention with the terse observation that it ―[wa]s not the law.‖ (Id. at
p. 351, fn. 4.) By disapproving the case, the Bailey court clearly conveyed that the
rejected instruction was, in fact, the law. In the second disapproved case, People v. Serna
(1941) 43 Cal.App.2d 106, 107-109, the court acknowledged the existence of a single-
impulse rule but held that the defendant‘s receipt of relief payments under false pretenses
was a series of petty thefts, rather than a single grand theft, because he was required to
warrant his continuing eligibility for benefits in endorsing each payment. In rejecting
that holding, the Bailey court implicitly conveyed that an impulse rule can operate to

                                              5
unify multiple misrepresentations as well as multiple receipts of property flowing from a
single original misrepresentation. The third disapproved case, People v. Miles (1940) 37
Cal.App.2d 373, 378-379, had likewise suggested that payments received under later
additional misrepresentations would necessarily constitute separate offenses.
       The most subtle passage in Bailey is undoubtedly its treatment of a body of cases
to which I will sometimes refer as the Rabe3 cases. According to the court, these cases
―held that each receipt of property obtained by false pretenses constituted a separate
offense for which the defendant could be separately charged and convicted.‖ (Bailey,
supra, 55 Cal.2d at p. 519, citing People v. Ashley, supra, 42 Cal.2d at p. 273; People v.
Rabe, supra, 202 Cal. at pp. 413-414; People v. Barber (1959) 166 Cal.App.2d 735, 741-
742; People v. Caldwell (1942) 55 Cal.App.2d 238, 250-251; People v. Ellison (1938) 26
Cal.App.2d 496, 498.) Chief Justice Gibson noted that ―none of these decisions‖ had
―discussed the rule‖ previously described, under which multiple takings pursuant to a
single intention, impulse, or plan constituted a single offense. (Bailey, supra, at p. 519.)
He then observed, ―[It] does not appear that the convictions [in those cases] would have
been affirmed had the evidence established that there was only one intention, one general
impulse, and one plan.‖ (Ibid.) As I read this sentence, it means that (1) those cases
either overlooked or ignored the single-impulse rule; and (2) they are either in harmony
with it by virtue of undisclosed facts, or they are wrong. The leading treatise on
California law describes Bailey as classifying one of these cases—and by logical
extension all of them—as ―involving no general intent or overall plan,‖ which I take to
mean that they stand only for the unremarkable proposition that in the absence of a single
unifying impulse, each taking will support a separate charge and conviction. (2 Witkin &
Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Property, § 13, p. 36.)

       3   People v. Rabe (1927) 202 Cal. 409.


                                              6
       It is thus apparent that Bailey contemplated a single neutral rule requiring the
aggregation of theft offenses—regardless of the value of the property taken—when they
charge a series of takings all arising from a single criminal impulse or intention. In doing
so it ratified a principle that had been part of California law since at least 1919 (see
People v. Sing, supra, 42 Cal.App. 385, 395-396) and that reflects the great weight of
authority elsewhere (see Annot., Series of Takings Over a Period of Time as Involving
Single or Separate Larcenies (1973) 53 A.L.R.3d 398; People v. Cox (1941) 36 N.E.2d
84, 86 [286 N.Y. 137, 143] [―The same rule applies in England . . . .‖].).
       Cases following Bailey have applied this rule in three distinct situations. The first
is where the defendant forms an initial intention to steal a defined body of property, and
then carries out this intention through multiple acts. This situation arises most obviously
where an original larcenous intention is effectuated through a series of asportations.4 A
hypothetical example would be a defendant who forms an intention to steal a tool set
from a garage, and who executes this intention by making repeated trips from the garage




       4  Simple larceny is the physical taking of the victim‘s property. (Pen. Code,
§ 484, subd. (a) [―Every person who shall feloniously steal, take, carry, lead, or drive
away the personal property of another . . . is guilty of theft.‖].) The actus reus is said to
have ― ‗two aspects: (1) achieving possession of the property, known as ―caption,‖ and
(2) carrying the property away, or ―asportation.‖ ‘ ‖ (People v. Williams (2013) 57
Cal.4th 776, 794, quoting People v. Gomez (2008) 43 Cal.4th 249, 254-255.) Critically,
― ‗the slightest movement may constitute asportation . . . .‘ ‖ (Id. at p. 255.) And
―[w]hile there must be such a carrying away . . . as to supersede the possession of the
owner, such an interference with the owner‘s possession need be only for an appreciable
interval of time, be it ever so short.‖ (People v. Dukes (1936) 16 Cal.App.2d 105, 108.)
Thus a shoplifter‘s mere placing of a coat into a paper bag has been held to satisfy the
asportation requirement (People v. Tijerina (1969) 1 Cal.3d 41, 47), as has a would-be
thief‘s removing a purse from a car, though he dropped it to the ground immediately
thereafter (People v. Quiel (1945) 68 Cal.App.2d 674, 679).


                                              7
to a waiting van. 5 Each such trip could qualify technically as a separate larceny (see
fn. 4), but they are unified into a single theft by the original impulse to steal the entire set.
One court has usefully described such situations as involving ―a single offense committed
incrementally.‖ (In re David D. (1997) 52 Cal.App.4th 304, 310.) A real-life example is
provided by People v. Dillon, supra, 1 Cal.App.2d 224, where the defendant stole 100
dozen work shirts, 3,000 yards of fabric, and 30 dozen trousers from his employer. On
appeal from his conviction on three charges of grand theft, he contended that the
evidence failed to support a finding that any one lot of merchandise (i.e., shirts, fabric, or
trousers) was taken at one time, and thus could not justify combining each lot under a
single count, so as to establish the requisite value for grand theft. The court first
concluded that the evidence indeed supported such a finding. (Id. at p. 229.) It then
seemed to describe the offense, dubiously, as akin to embezzlement, so that it was only
complete upon the ―wrongful disposal‖ of the property.6 (Ibid.) The court then cited the

       5 A Texas court gave the example of driving a wagon to a field and carrying a pile
of cotton to it one basketful at a time. (Cody v. State (Tex. Crim. App. 1892) 31
Tex.Crim. 183, 184 [20 S.W. 398], cited in Annot., Series of Takings, supra, 53
A.L.R.3d at p. 405.)
       6  The court‘s reluctance to rely exclusively on the single-impulse rule may reflect
an awareness of the Rabe cases with their strict act-based approach. Nonetheless the
other rationales offered by the court seem manifestly unsound. The crime was larceny,
and a misappropriative act was certainly completed each time the defendant removed an
item of property from his employer‘s premises, if not before. Even if the property had
been entrusted to him so as to support an embezzlement theory, he converted each item to
his own use, and thus committed the offense, as soon as he exercised dominion over it for
his own purposes—again, presumably, by removing it from the store. In the absence of
evidence concerning the timing of these removals, and the quantity of merchandise
involved in each, there would indeed be a failure of proof as to the value of each taking—
unless they were aggregated under the single-impulse rule.

      At the same time, in finding the defendant guilty of three thefts—one for each
lot—the trial court had necessarily found that the defendant formed a distinct intention to
                                                                     (footnote continued on next page)
                                               8
single-impulse rule in support of the judgment: ―When appellant once formed the
felonious intent to take from the warehouse a certain quantity of merchandise in his
custody and deliver the same to [the buyer], and then executed that intent by delivery
thereof, all the elements necessary to constitute the offense of theft were united, and but
one offense is committed, though there may have been several deliveries, for in such case
there occurs the union or joint operation of act and intent prescribed by law. [Citation.]
A transaction comprising successive acts of taking, set in motion under a single felonious
impulse and operated upon by a single unintermittent force, constitutes a continuous act
and must be treated as one larceny. [Citation.]‖ (Ibid., italics added.)
        Another illustration is provided by People v. Kronemyer (1987) 189 Cal.App.3d
314 (Kronemyer), where an attorney committed various defalcations against a client
falling into ―illness and mental deterioration.‖ 7 (Kronemyer, supra, at p. 363.) As
relevant here, the case held that the emptying of several savings accounts within a four-
day span constituted a single offense because the defendant ―intended to steal all these


(footnote continued from previous page)
steal each lot; otherwise the facts would only have sustained one conviction for all three
lots. The case thus illustrates the distinction between the impulse rule, correctly applied,
and the overbroad rule the majority attributes to current case law.
        7The majority designates Kronemyer as the ―principal case‖ following Bailey.
(Maj. opn., ante, at p. 7.) I cannot vouch for the accuracy of this characterization, but the
case certainly stands out for its ability to touch a judicial nerve, involving as it does
grievous breaches of the highest professional duties of fidelity, loyalty, and integrity. But
as the court there observed, the Legislature, whose exclusive responsibility it is to fix
punishments for crimes, has already provided sentence enhancements for thefts involving
exceptionally high-value property. (Kronemyer, supra, 189 Cal.App.3d at p. 364; see
Pen. Code, §§ 12022.6, 186.11.) If it wishes to create additional enhancements based
upon particularly egregious violations of fiduciary or professional duties, it can certainly
do so. Abhorrence of one defendant‘s conduct is no basis to retreat from a rule that has
been part of our law for 95 years.


                                              9
accounts at or before [the time] he first came into possession of the powers of attorney
which allowed him to close them.‖ (Ibid.) That conclusion was all but compelled by the
prosecutor‘s insistence that the accounts had all been emptied pursuant to a
―preconceived plan‖ to ― ‗loot‘ ‖ the estate. (Ibid.) Thus the court reversed, on the basis
of the single-impulse rule, three of the four counts arising from theft of the savings
accounts.
       In fact patterns of this kind, treating multiple acts as a single continuing offense is
partly justified by considerations of culpability, partly by an aversion to arbitrary or
fortuitous differences in result, partly by administrative concerns, and partly by
considerations of analytical necessity. The first two considerations are embodied in the
concept that where a defendant sets out to steal specific property, the resort to multiple
physical acts to achieve that preconceived end is a mere happenstance; to predicate
multiple charges on it may smack of arbitrariness. Thus if Larcenous Larry snatches a
carton containing two dozen $1,000-dollar wristwatches from a loading dock, he has
clearly committed only one felony, because there has been only one caption and
asportation. Yet under a strict acts-based approach, his offense would be transmuted into
24 felonies if the carton‘s integrity were so impaired that he could not use it as a
container but had to stuff each watch into a sack before vacating the area. His intent in
both cases would be exactly the same. The result would be exactly the same. The only
difference is that the second situation would require more arm movements. Yet by my
calculations, treating each act as a separate grand theft would increase the maximum
punishment from three years to 15 years four months. (See Pen. Code, §§ 489, subd. (c),
1170, subd. (h)(1), 1170.1, subd. (a).) A properly formulated and administered impulse
rule helps to avoid such arbitrary discrepancies.
       The second category of cases in which Bailey‘s single-impulse rule has been
applied involves the defendant‘s fraudulently securing a continuous stream of income

                                              10
from the victim, in the form of regular periodic payments. 8 This indeed was the situation
in Bailey itself, where the defendant secured welfare payments by misrepresenting the
status of a cohabitant. Application of the single-impulse rule may be explained by
analogizing the stream of payments to the specific property targeted in the situations
described above. 9
       Two decisions suggest a third distinct application of the single-impulse rule:
where multiple takings all arise from a sense of grievance or hostility towards the victim.
(See People v. Howes, supra, 99 Cal.App.2d at p. 820 [employee‘s continuous stealing of
tires from employer was properly charged as single count of theft where ―the entire

       8  Where the defendant has only issued a single misrepresentation, a finding of
multiple thefts might seem to run afoul of the rule that ―a charge of multiple counts of
violating a statute is appropriate only where the actus reus prohibited by the statute—the
gravamen of the offense—has been committed more than once.‖ (Wilkoff v. Superior
Court, supra, 38 Cal.3d at p. 349.) The actus reus of theft by false pretenses is the
making of a false representation, on the basis of which the victim then voluntarily
transfers property to the defendant. (See People v. Williams, supra, 57 Cal.4th at p. 787,
quoting People v. Wooten (1996) 44 Cal.App.4th 1834, 1842 [elements of theft by false
pretenses are that ― ‗(1) the defendant made a false pretense or representation to the
owner of property; (2) with the intent to defraud the owner of that property; and (3) the
owner transferred the property to the defendant in reliance on the representation‘ ‖].)
Numerous cases have held, however, that each transfer may support a separate
conviction, at least in the absence of a unifying impulse or intent. They apparently
analogize the defendant‘s receipt of the victim‘s property to the physical taking involved
in larceny. The analogy seems unsound. (Williams, supra, at p. 787 [theft by false
pretenses cannot be predicate offense for robbery because, ―unlike larceny,‖ it ―has no
requirement of asportation‖].) However that question exceeds the scope of the issues
presented on this appeal.
       9  Such thefts may also be compared to theft from a physical stream, as where the
defendant steals water, electricity, or a similar commodity by unlawfully tapping a pipe
or line. (See, e.g., Reynolds v. State (1960) 101 Ga.App. 715 [115 S.E.2d 214, 217]
[setting aside all but one conviction for stealing water by bypassing meter; ―The great
weight of authority in other jurisdictions is that a continuing larceny of material moving
through pipes, such as water or gas, constitutes one continuing offense.‖].)


                                            11
plan . . . was in furtherance of his design to secure personal and monetary satisfaction for
his treatment at the hands of his employers‖]; People v. Yachimowicz, supra, 57
Cal.App.2d at p. 381 [stealing of guns, though not shown to have occurred on single
occasion, was properly charged as one offense; ―the entire plan of stealing resorted to by
appellant was in furtherance of his design to secure personal and monetary satisfaction
for his treatment at the hands of his employers‖].) The rationale appears to be that the
defendant‘s ulterior injurious or retributive motive constitutes a common impulse linking
the takings into a single offense. While the soundness of this rationale is open to
debate—and nothing in the facts before us supports its application here—it does point to
a narrow and easily administered rule for which a basis appears in precedent.
II. Single-Impulse Rule vs. Common Scheme or Plan
       A.     Distinction Between Concepts
       In concluding that 19 of defendant‘s 20 theft convictions must be set aside, the
majority appears to reason as follows: (1) Under the prevailing interpretation of Bailey,
multiple takings will sustain only one theft conviction if they all ―arose ‗from a common
scheme or plan‘ ‖; (2) the jury found that defendant‘s takings all ―arose ‗from a common
scheme or plan‘ ‖; (3) therefore, defendant committed only one theft under current law.
(Maj. opn., ante, at pp. 11-12.) This conclusion provides much if not all of the
momentum for the majority‘s oblique erosion of Bailey and the 95 years of precedent it
represents. But the syllogism above is fatally defective. Its major premise, equating
Bailey‘s single-impulse rule with a ―common scheme or plan‖—which the jury found
here pursuant to an instruction under section 12022.6(b)—is not only unsupported by
authority, but irreconcilable with the clear meaning and effect of the two rules.
       The central predicate for Bailey‘s impulse rule—repeated three times on one
page—is the existence of ―one intention, one general impulse, and one plan.‖ (Bailey,
supra, 55 Cal.2d at p. 519; italics added.) The core conception is that multiple acts may

                                             12
constitute a single offense when they are all the products of the same distinct criminal
impulse on the part of the defendant. The resulting takings are thus properly viewed as ―a
single offense committed incrementally‖ (In re David D., supra, 52 Cal.App.4th at
p. 310) or ― ‗a large total taking accomplished by smaller takings.‘ ‖ (People v. Mitchell
(2008) 164 Cal.App.4th 442, 457, quoting People v. Neder (1971) 16 Cal.App.3d 846,
853.)
        This concept is not congruent with the requirement of a ―common scheme or plan‖
under section 12022.6(b).10 That statute authorizes enhanced punishment for crimes in
which the defendant takes, damages, or destroys property with value over specified
thresholds. (Pen. Code, § 12022.6, subd. (a).) As pertinent here, it states that if the
defendant is accused of ―multiple charges‖ involving such harm to property, the
applicable enhancement ―may be imposed if the aggregate losses to the victims from all
felonies exceed the amounts specified in this section and arise from a common scheme or
plan.‖ (§ 12022.6(b), italics added.)
        Before delving into the meaning or function of this phrase, it must be observed
that under the majority‘s reading of currently prevailing case law, the subdivision just
quoted has never been properly applied to theft charges. According to the majority,
existing law prohibits multiple charges arising from a common scheme or plan; hence
any and all criminal acts so arising would have to be combined into a single charge, and


        10 At least one state allows prosecutions on a theory of ―theft by common
scheme.‖ (State v. Milhoan (1986) 224 Mont. 505, 510 [730 P.2d 1170, 1173].) The
theory, however, is expressly authorized by statute. (Mont. Rev. Code Ann., § 45-6-
301(9).) The statutory definition of ―[c]ommon scheme‖ includes both the concept of ―a
purpose to accomplish a single criminal objective‖ and that of ―a common purpose or
plan that results in the repeated commission of the same offense or that affects the same
person or the same persons or the property of the same person or persons.‖ (Id., § 45-2-
101(8).)


                                             13
there could never be an occasion to resort to section 12022.6(b), which applies only to
multiple charges. The value for purposes of the enhancement would always be limited to
the property taken in the one theft properly charged. If such a case were erroneously pled
and sustained as multiple counts—as occurred here, according to the majority—all but
one of the counts would presumably be vulnerable to dismissal or reversal on appeal—as
the majority directs here. Presumably this means that the property affected by the
dismissed counts could no longer be included in calculating the enhancement. In any
event, under the majority‘s construction of existing law, section 12022.6(b) would never
come into play.11
       In fact, however, the ―common scheme or plan‖ rubric in section 12022.6(b) has
nothing to do with the aggregation of distinct acts into a single charge; indeed, it is
inherently incompatible with such aggregation. The former iteration of section 12022.6
was originally adopted in 1976. (Stats.1976, ch. 1139, § 305.5, p. 5162.) In People v.
Bowman (1989) 210 Cal.App.3d 443, 447, the court concluded that the statute, as then
framed, did not permit the aggregation of multiple offenses, however closely related, for
purposes of determining whether the monetary thresholds for the enhancement had been
met. The court urged the Legislature to address the matter (ibid.), and the Legislature did
so, amending section 2022.6 in 1990 to provide that where ―multiple charges of taking,
damage, or destruction‖ were brought, ―the additional terms provided in this section may
be imposed if the aggregate losses to the victims from all felonies exceed the amounts


       11The majority acknowledges that the inclusion of the ―common scheme or plan‖
language in section 12022.6 reflects a legislative intention, or ―at least‖ awareness, that
―multiple convictions can arise from multiple acts even if part of a common scheme or
plan.‖ (Maj. opn., ante, at p. 11.) That legislators would have such an understanding is
hardly surprising. Before today there was no reason to suppose that multiple theft
convictions could be precluded by the mere presence of a ―common scheme or plan.‖


                                              14
specified in this section.‖ (Stats. 1990, ch. 1571, § 1, p. 7493.) In 1992 the statute was
again amended to limit such aggregation to cases where the multiple offenses all ―arise
from a common scheme or plan.‖ (Stats. 1992, ch. 104, § 1, p. 342.)
       When the Legislature added this language to section 12022.6(b), the phrase
―common scheme or plan‖ had long been used to define an exception to the rule
prohibiting evidence of uncharged misconduct to prove conduct on a particular occasion.
(See 1 Witkin, Cal. Evidence (5th ed. 2012) Circumstantial Evidence, §§ 94-97, pp. 486-
495.) In that context, ―[t]he notion of ‗common plan‘ refers to a methodology or peculiar
behavior pattern.‖ (Id., § 94, at p. 487, italics added.) The concept is quite distinct from
Bailey‘s single original criminal impulse. The touchstone of the ―common scheme or
plan‖ exception is similarity between acts; but such similarity is neither necessary nor
sufficient to establish the applicability of Bailey. Instead Bailey‘s impulse rule depends
on the presence of a single criminal impulse—a condition that is neither necessary nor
sufficient to establish the presence of a ―common scheme or plan.‖
       The distinction between the two concepts was highlighted by then-Justice George
in People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt), which is the leading modern case on
the scope of the ―common scheme or plan‖ exception. Ewoldt was a prosecution for lewd
acts on a child, in which this court held that the victim‘s sister had properly been allowed
to testify that the defendant committed similar acts upon her. The court alluded
repeatedly to the distinction between offenses committed in accordance with a common
scheme or plan on the one hand, and a single continuous offense on the other. It
criticized People v. Tassell (1984) 36 Cal.3d 77, as resting on ―the erroneous premise‖
that the common scheme or plan exception only applies where the charged and uncharged
acts ―are part of a single, continuing conception or plot.‖ (Ewoldt, supra, at p. 399.) The
same vice appeared in People v. Ogunmola (1985) 39 Cal.3d 120 (Ogunmola), which
found error in the admission of testimony by two patients that the defendant gynecologist

                                             15
had raped them in the same distinctive manner as he was accused of raping the victims in
the charged offenses. Of that decision Justice George wrote, ―It is difficult to imagine a
stronger example of separate crimes, committed pursuant to a common design or
plan . . . . The marked similarity between the uncharged criminal acts and the charged
offenses constituted strong circumstantial evidence that the defendant had developed a
plan to engage in sexual intercourse with his patients without their consent and in the
unusual manner described.‖ (Ewoldt, supra, at p. 400, italics added.)
       Declaring that both Tassell and Ogunmola occupied an ―anomalous position in
more than 50 years of California case law,‖ the court overruled them ―to the extent they
hold that evidence of a defendant‘s uncharged similar misconduct is admissible to
establish a common design or plan only where the charged and uncharged acts are part of
a single, continuing conception or plot.‖ (Ewoldt, supra, 7 Cal.4th at p. 401, italics
added, fn. omitted; see id. at p. 387 [describing cases as ―disapprove[d]‖].) At the same
time, the court described approvingly a case holding that ―evidence establishing that the
defendant committed a similar but unconnected offense‖ was admissible. (Id. at p. 400,
discussing People v. Ruiz (1988) 44 Cal.3d 589, italics added.) The correct rule, the court
emphasized, rested not on any unifying intention or continuous plot, but on similarities
between charged and uncharged acts: ―[E]vidence of a defendant‘s uncharged
misconduct is relevant where the uncharged misconduct and the charged offense are
sufficiently similar to support the inference that they are manifestations of a common
design or plan.‖ (Id. at pp. 401-402.)
       The ―common scheme or plan‖ exception thus contemplates a recurring criminal
pattern, such as a repeated strategy or modus operandi, by which the defendant
perpetrates multiple distinct crimes. An impulse rule, in contrast, contemplates
something more nearly resembling the ―single, continuing conception or plot‖ from
which this court took such pains in Ewoldt to distinguish the ―common scheme or plan‖

                                             16
descriptor. (Ewoldt, supra, at pp. 396, 400, 401.) Under an impulse rule, the jury must
be persuaded that all of the charged takings were conceived at the same time, and thus
represented merely the prolonged execution of a single original intention. It follows that
the majority‘s equation of the two concepts is fundamentally unsound.
       B.     Absence of Supporting Precedent
       The majority makes no attempt to demonstrate that Bailey‘s impulse rule is in fact
conceptually coextensive with the ―common scheme or plan‖ rubric of section 12022.6.
Instead it suggests that case law interpreting Bailey has so clearly equated (or conflated)
the two concepts that defendant ― ‗could not have foreseen‘ ‖ his exposure to multiple
theft convictions ― ‗at the time of the alleged criminal conduct.‘ ‖ (Maj. opn., ante, at
p. 11, quoting People v. Blakeley (2000) 23 Cal.4th 82, 91.) This assertion cannot
survive scrutiny.
       No case applying an impulse rule, before or after Bailey, has so much as suggested
that multiple thefts must be collapsed into a single charge merely because they reflect a
―common scheme or plan.‖ The majority alludes to a ―long, uninterrupted series of Court
of Appeal cases . . . that have consistently held that multiple acts of grand theft pursuant
to a single scheme cannot support more than one count of grand theft.‖ (Maj. opn., ante,
at p. 11, italics added.) In doing so, the majority explicitly conflates ―single scheme‖
with ―common scheme.‖ Properly understood, the former refers to a solitary criminal
intention, while the latter refers to a methodology or other outward characteristics shared
by multiple separate offenses.
       The majority identifies two decisions as exemplifying the line of cases said to
warrant a belief by defendant that he could only be convicted of one theft. (Maj. opn.,
ante, at p. 11.) In People v. Sullivan (1978) 80 Cal.App.3d 16 (Sullivan), the question
was whether the trial court erred by refusing a requested instruction that a ― ‗[s]eries of
wrongful acts may constitute a single offense‘ ‖ when they are ― ‗committed pursuant to

                                             17
one general intent or impulse and one plan.‘ ‖ (Id. at p. 19.) As in Bailey itself, neither
the word ―common‖ nor the word ―scheme‖ is anywhere to be found. The defendants in
Sullivan had prevailed upon their landlords to let them appropriate a $14,000 payment the
latter had received from the sale of a house. The prosecutor predicated separate counts
on several subsidiary transfers and payments by which the funds were appropriated.
These facts would support an instruction under any interpretation of Bailey, and the trial
court had clearly erred by refusing to give one. At the same time, it is doubtful that the
facts showed a ―common scheme or plan,‖ as that phrase has been understood. The
defendants apparently took the victims‘ funds in several different forms, including cash,
direct deposits, and cashier‘s checks negotiated at various times. (See Sullivan, supra, at
p. 18.) Nothing in the court‘s account suggests a recurring plan or strategy; instead it
shows a single preconceived plot to appropriate the targeted funds. Thus nothing in the
opinion would justify a belief by someone in defendant‘s position that separate,
repetitive, opportunistic takings would not sustain multiple convictions.
       The second case the majority cites in support of such a belief is Kronemyer, supra,
189 Cal.App.3d 314. As previously noted, that case is relevant here with respect to the
court‘s holding that the defendant attorney‘s theft of funds from four savings accounts in
four days could not sustain four separate counts. The court held that, on the record before
it, this conduct constituted a single offense. It apparently did not view the question as
one for the jury, as it ordinarily would be, because the prosecutor‘s ―theory of the case at
trial‖ had been that the defendant ―formed his intent to steal the assets of [his client‘s]
estate‖ before the client fell ill, and that ―the plan included unlawfully taking all the
savings accounts assets.‖ (Id. at p. 364.) This argument brought the case squarely within
the ―single plan-single offense rule‖ laid down in Bailey and elsewhere. (Kronemyer, at
p. 364.) This conclusion was not altered by ―[t]he fact these physically separated funds
required four transactions.‖ (Ibid.) Nothing in the case suggests that the mere repetitive

                                              18
use of a mode of operation, or any other similarity, would have required aggregation;
indeed, while the court set aside multiple embezzlement counts for instructional error, it
never suggested that those counts—similar as the underlying conduct might be—came
within the rule of Bailey. (See id. at pp. 355-362.)
       In sum, no precedent sustains the majority‘s equation of Bailey‘s impulse rule with
section 12022.6(b)‘s ―common plan or scheme.‖
III. Application Here
       The jury was certainly justified in concluding that defendant‘s repetitive use of
fictitious purchase transactions constituted a ―common scheme or plan‖ warranting the
aggregation of his offenses for purposes of a high-value sentence enhancement under
section 12022.6(b). But nothing before this court compels the conclusion that
defendant‘s 20 thefts from his employer constituted a single impulse under Bailey or
cases following it. We are directed to no evidence of a single originating impulse or
intention, or ulterior motive, or of the targeting of any particular body of property, by
defendant. Rather his conduct can readily be seen as a series of opportunistic thefts
employing a modus operandi to which he repeatedly resorted simply because it worked.
Such cases do not qualify, and never have qualified, for prosecution as a single offense
under the single-impulse rule. Again, the essential idea behind that rule is that one who
decides to steal particular property should not be subject to multiple prosecutions—and
should not be able to avoid prosecution based on the full value of the property—merely
because multiple acts are required to carry out the intended crime. A defendant who
simply engages in a series of similar thefts—a ―serial thief,‖ as the majority puts it—
stands in a quite different position. (Maj. opn., ante, at p. 10.) Such a thief‘s conduct is
not defined by any limitation of time, or of identity or quantity of property to be stolen.
The thief simply finds himself in a situation presenting a recurring opportunity to
unlawfully acquire property from the victim—an opportunity which the thief exploits as

                                             19
often as he is able and inclined to do so. The fact that such takings may follow a
characteristic pattern—a ―common scheme or plan‖—has never been a reason to treat
them as something other than multiple, separate thefts.
       This view finds ample support in cases applying Bailey. In People v. Mitchell,
supra, 164 Cal.App.4th 442, the defendant committed a large number of crimes against
the dependent adult for whom she was a caretaker. One of the claims on appeal was that
she could not be convicted of two violations of unlawful use of personal identifying
information (Pen. Code, § 530.5, subd. (a)) based upon her use of the victim‘s driver‘s
license to make purchases at two different stores. The court rejected this contention: ―In
deciding whether a defendant commits a series of thefts pursuant to a single intent or
plan, we do not use a single, broad objective of stealing property. A defendant who steals
from multiple victims over a lengthy crime spree may have a single objective of
obtaining as much money or property as possible. However, he has still committed
multiple offenses.‖ (Mitchell, supra, at p. 456.) I agree, and I do not believe this
principle is limited to cases involving multiple victims, but extends to cases where the
defendant commits a series of separately intended thefts against the same victim.
       Other cases have also implicitly rejected the sweeping rule attributed by the
majority to current case law. (Maj. opn., ante, at p. 11.) In People v. Jaska (201) 194
Cal.App.4th 971 (Jaska), the defendant contended that Bailey required the court to set
aside four of her five convictions of grand theft by embezzlement. The counts were
predicated on five thematically grouped clusters of misappropriations from the employer-
victim. 12 The defendant argued that all of her conduct should have been aggregated into


       12  As in many of these cases, neither party‘s interests were precisely aligned with
a fastidious application of Bailey‘s impulse rule. The evidence showed a very large
number of misappropriations exceeding the grand theft threshold. (Jaska, supra, 194
Cal.App.4th at pp. 976-979.) Their aggregation into five thematically oriented counts
                                                                  (footnote continued on next page)
                                             20
a single charge. After reviewing Bailey and other cases in some depth, the court adopted
a factor-based analysis hinging application of Bailey on some combination of (1) a ―plot
or scheme‖ (id. at p. 984); (2) ―a defined sum of money or particular items of property‖
(ibid.); (3) commission within a ―short timespan‖ (id. at p. 985, citing People v. Gardner
(1979) 90 Cal.App.3d 42, 48); (4) commission in the same or ―similar location,‖ (Jaska,
at p. 985, citing In re Arthur V. (2008)166 Cal.App.4th 61, 69); and (5) ―perhaps most
significantly, whether the defendant employed a single method to commit the thefts‖
(Jaska, at p. 985, citing People v. Packard (1981) 131 Cal.App.3d 622, 625). While I
question this approach in some respects, I wholeheartedly agree with the court‘s
conclusion that there was no basis to conclude that the defendant there had ―acted
pursuant to a plan or scheme to steal a defined set of BTP‘s assets,‖ or had otherwise
brought her conduct within the rule of Bailey. (Jaska, supra, at p. 985.) ―Rather, the
evidence suggest[ed] that [she had] stole[n] various sums of money in an opportunistic
manner, essentially whenever the need and/or occasion arose.‖ (Ibid.)
        The only substantial distinction between Jaska and the present case is defendant‘s
use here of a distinctive modus operandi to perpetrate his serial thefts—a factor which the
court found missing in Jaska, and which I think it emphasized excessively. The repeated
use of a distinctive modus operandi may well support an inference that a series of takings
arose from a single originating impulse, but it can hardly compel such an inference.
Indeed I doubt that, as an abstract matter, it is the ―most significant[]‖ factor, as
suggested in Jaska, supra, 194 Cal.App.4th at page 985. A defendant who hits upon a



(footnote continued from previous page)
was probably a matter of prosecutorial convenience or necessity. The defendant lacked
any incentive to challenge those aggregations, since the alternative might have been
dozens of grand theft charges based upon separate transactions.


                                              21
novel way to steal merchandise from a jewelry store may well resort to that method
repeatedly; neither logic nor policy—nor anything in Bailey or cases applying it—makes
it any more appropriate to aggregate such takings than it would be if the same defendant
repeatedly stole from the same store using a variety of methods. In contrast, a defendant
who decides to steal the Encyclopedia Brittanica from a library comes within the rule of
Bailey even if it takes 20 trips—and 20 different methods—to collect the entire set. Such
a defendant differs critically from one who simply steals a book, or a necklace,
―whenever the need and/or occasion [arises].‖ (Jaska, supra, at p. 985.) The latter
cannot legitimately invoke the rule of Bailey, even if each theft is accomplished by
exactly the same means.
       In sum, without the crucial element of a unifying impulse or intent, a series of
opportunistic takings cannot be viewed as a single crime, however similar they may be.
The record does not compel a conclusion that defendant‘s conduct was anything other
than such a series of opportunistic thefts. He gave the jury no particular reason to find
that he acted pursuant to a single impulse. There was no testimony that he set out to steal
20 motorcycles, or motorcycles of a specified value, or for a specified time. All that
appears of relevance to this issue is that he submitted 20 false invoices, for 20 different
vehicles, in 20 distinct transactions, on 20 separate occasions. It is true that on some
occasions, multiple transactions took place on the same day. Close proximity in time will
certainly add weight to an inference that multiple takings arose from a single impulse.
Indeed a jury would be competent to find that all 20 takings here were so joined. The
point here is that nothing in this record compels a conclusion that they were so joined as
a matter of law.
       As the court declared in Jaska, supra, 194 Cal.App.4th at page 984, ―The Bailey
doctrine applies as a matter of law only in the absence of any evidence from which the
jury could have reasonably inferred that the defendant acted pursuant to more than one

                                             22
intention, one general impulse, or one plan.‖ Defendant has made no attempt to show
that the evidence was insufficient in this regard. His entire argument rests on the premise
that the jury‘s finding of a ―common scheme or plan‖ precluded multiple convictions.
Since that premise finds no support in existing law, reversal is unwarranted.
IV. “Felony Discount”
       The majority criticizes the impulse rule and, on that basis, may be understood to
repudiate that rule in the case of multiple takings each of which involves property of
sufficient value to sustain a conviction for grand theft.13 The criticism is that, when such
takings are aggregated under the Bailey rule, the defendant receives a ― ‗ ―felony
discount.‖ ‘ ‖ (Maj. opn., ante, at pp. 7, 10, quoting Court of Appeal.) So far as I can

       13  Justice Liu and I appear to read the majority opinion differently in this regard.
In what appears to be the crucial passage concerning the fate of Bailey, the majority
opinion states, ―We thus have cases distinguished but not overruled in Bailey, supra, 55
Cal.2d 514, that support multiple convictions of grand theft in this case, post-Bailey
Court of Appeal cases relying on Bailey that would prohibit such multiple convictions,
and Bailey itself. We must decide what the proper rule should be. We need not decide
whether the Bailey rule regarding a series of petty thefts applies similarly to a series of
grand thefts. As Bailey‘s discussion of earlier cases upholding multiple convictions of
grand theft implies, Bailey is factually distinguishable. The Bailey rule must be
interpreted in light of its facts.‖ (Maj. opn., ante, at p. 8.) Justice Liu is apparently
referring to this passage when he writes that the majority ―merely assumes, without
deciding, that the Bailey rule applies here.‖ (Conc. opn., ante, at p. 1.) In my view,
however, the passage invites the interpretation that Bailey has ceased to have any effect,
except as it may continue to permit the aggregation of larcenous acts that would
otherwise constitute petty theft—a distinction I join Justice Liu in finding insupportable.
(See pt. V, post.) As previously noted, that Justice Liu and I do not extract the same
meaning from this seemingly pivotal passage testifies to the doubt and confusion the
opinion is destined to sow in the lower courts. In this it ironically mimics Bailey itself,
which in my view expressed in a comparably oblique manner the intention to abrogate
the very cases the majority now seems to resuscitate. Had the court then foreseen this
resurrection, I suspect it would have taken greater pains to drive a stake through the heart
of those cases. Instead it left them free to rise again to haunt the lower courts, as has now
apparently occurred.


                                             23
determine, this is a mere catchphrase, devoid of substantive content. If it contains any
neutral meaning, it is simply that treating a course of conduct as a single crime exposes
the defendant to a lower maximum punishment than could be imposed if the same
conduct were treated as many crimes. This is akin to pointing out that ―one is fewer than
many,‖ which I believe goes without saying.14 To present such an empty truism as a
ground for setting aside or eroding 95 years of precedent strikes me as unlikely to
advance the rational evolution of the law.
       The ―felony discount‖ criticism seizes upon one aspect of a defendant‘s
culpability—the number of appropriative acts committed—and declares it sufficient to
justify overturning solidly established precedent. It is of course true in the abstract
that, all other things being equal, one who engages in wrongful conduct on multiple
occasions, or for a longer time, is more blameworthy, and thus may deserve greater
punishment, than one who engages in similar conduct only once or briefly. But all other
things are never equal, and the number of wrongful acts is only one of many variables
that must go into the determination of a just punishment. The analytical shortcomings of
the majority‘s suppositions may be exposed simply by comparing a case where a
defendant fraudulently collects 12 monthly benefit payments of $951 a month to one
where, after long and deliberate insinuation into an elderly victim‘s good graces, the
defendant absconds with her $250,000 life savings. Under the majority‘s reasoning we
must avoid allowing a ―felony discount‖ by permitting the first defendant to be charged
with 12 felonies—carrying a maximum sentence, by my calculations, of some 10 years
and four months. (See Pen. Code, §§ 489, subd. (c), 1170, subd. (h)(1), 1170.1, subd.
(a).) But the defendant in the second case is subject to a sentence of only five years,

       14Even among lawyers. (See generally Milot, Illuminating Innumeracy (2013)
63 Case West. Res. L.Rev. 769.)


                                             24
including a two-year enhancement based upon the size of the taking. (Pen. Code, §§ 489,
subd. (c), 1170, subd. (h)(1), 12022.6, subd. (a)(2).) Has he then received a volume
discount?
       Only the most myopic moral calculus can declare it categorically more
blameworthy to inflict a dozen pinpricks than a single knife wound.
V. Large vs. Small Takings
       Finally I agree with Justice Liu that in the absence of legislative authorization,
there can be no justification for varying the unit of prosecution in theft cases according to
the value of the property taken. The majority appears to reserve the possibility that while
a strictly acts-based approach will henceforth apply to takings large enough to support
multiple grand theft charges, a Bailey-like rule may continue to operate to combine
multiple takings that would constitute petty thefts if not aggregated into a single grand
theft charge.15 This is an insupportable qualification whose mischief, I fear, will
promptly be felt in the lower courts.
       The unit of prosecution for a given offense is part of the definition of the offense.
(See In re Carleisha P., supra, 144 Cal.App.4th 912, 919-923.)16 That definition

       15   Justice Chin writes: ―We need not decide whether the Bailey rule regarding a
series of petty thefts applies similarly to a series of grand thefts.‖ (Maj. opn., ante, at
p. 8.) ―As the Court of Appeal put it, a serial thief should not receive a ‗felony discount‘
if the thefts are separate and distinct even if they are similar. Accordingly, we conclude
that 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.‖
(Id. at p. 10, italics added.)
       16  Although I have found no California decision acknowledging this point in these
exact terms, it has certainly been recognized in many other states, whose courts declare
the legislative definition of a crime to be the guiding star in ascertaining its unit of
prosecution. (See, e.g., People v. Herron (Colo. Ct. App. 2010) 251 P.3d 1190, 1193
[―proper inquiry‖ is whether legislature‘s ―definition of the crime charged encompasses a
continuous course of conduct‖]; State v. Velez (Iowa 2013) 829 N.W.2d 572, 579 [―key
                                                                  (footnote continued on next page)
                                             25
necessarily includes, or must be construed to include, criteria for determining when a
course of criminal conduct is divisible into multiple offenses, and when it will support
only a single charge. (In re Carleisha P., supra, 144 Cal.App.4th at pp. 919-923.) As
this court has repeatedly said, the power to define crimes and prescribe punishments for
them is vested exclusively in the Legislature. (People v. Farley (2009) 46 Cal.4th 1053,
1119 [― ‗ ― ‗the power to define crimes and fix penalties is vested exclusively in the
legislative branch‘ ‖ ‘ ‖]; accord, People v. Chun (2009) 45 Cal.4th 1172, 1183; Keeler v.
Superior Court (1970) 2 Cal.3d 619, 631; In re Brown (1973) 9 Cal.3d 612, 624 [―In
California all crimes are statutory and there are no common law crimes. Only the
Legislature and not the courts may make conduct criminal.‖]; see Pen. Code, §§ 6 [―No
act or omission . . . is criminal or punishable, except as prescribed or authorized by this
Code . . . .‖], 15 [―A crime . . . is an act committed or omitted in violation of a law
forbidding or commanding it, and to which is annexed . . . [one] of the following
punishments . . . .‖].)




(footnote continued from previous page)
question‖ in determining whether defendant properly convicted of two offenses ―is
legislative intent‖]; State v. Haymond (Kan.Ct.App. 2011) 263 P.3d 222 [‗t]he unit of
prosecution test is a test of statutory interpretation‖] [nonpub. opn.]; Moore v. State (Md.
Ct. Spec. App. 2011) 198 Md.App. 655, 680 [18 A.3d 981, 995] [―The key to the
determination of the unit of prosecution is legislative intent.‖]; State v. Olsson (N.M. Ct.
App. 2007) 143 N.M. 351, 354-356 [176 P.3d 340, 343-345].)
        Federal jurisprudence is to the same effect: ―Determining a statute‘s unit of
prosecution requires ascertaining Congress‘s intent, which in turn requires statutory
construction. Such an inquiry is specific to each statute and to the facts of the case. . . .
If the intended unit of prosecution is still unclear after applying these various canons of
construction, then courts generally apply the rule of lenity to resolve the ambiguity in
favor of the defendant.‖ (Comment, How Many Is “Any”?: Interpreting § 2252a’s Unit
of Prosecution for Child Pornography Possession (2013) 62 Amer.U. L.Rev. 1675, 1693;
fns. omitted.)


                                              26
       For the most part the Penal Code defines theft without regard to whether a
particular taking involves property of sufficient value to sustain a grand theft charge.
―The distinctions between grand and petty theft according to the Penal Code are in the
type of article stolen, whether the article was taken from the person of another and in the
value thereof. Pen.Code, §§ 484, 487, 487a, 488. The elements of the crime remain the
same with the exceptions noted.‖ (Gomez v. Superior (1958) 50 Cal.2d 640, 645, italics
added; see People v. Cuellar (2008) 165 Cal.App.4th 833, 837 [―petty theft is merely
theft that does not qualify as grand theft‖].)
       As previously noted, the California Legislature has in a few narrowly defined
situations provided special time-based unit of prosecution rules allowing the aggregation
of what would otherwise constitute a series of petty thefts into one grand theft. (See
fn. 2, ante.) But these exceptions to the generally uniform definition of theft merely
illustrate the Legislature‘s ability to adopt special unit of prosecution rules for particular
situations when it perceives a need to do so. Here the majority seems to be reserving the
possibility of exercising this quintessentially legislative power by adopting distinctions
between the definition of petty theft and grand theft which have no basis in statute. There
can be no justification for a judicial definition of theft, or any other crime, that varies the
defining characteristics of the crime from case to case.
       Further, I am troubled by the nature of the disparate treatment apparently
contemplated. The majority‘s criticism of an impulse rule in the context of larger takings
rests explicitly on the perception that combining such takings in a single charge may
expose the defendant to a lesser punishment than he or she deserves; hence the repeated
allusion to a ― ‗ ―felony discount.‖ ‘ ‖ (Maj. opn., ante, at pp. 7, 10.) The reservation of
a different rule for smaller takings apparently rests on the supposition that treating them
consistently with the foregoing, by requiring their prosecution as multiple petty thefts
rather than a single aggregated grand theft, would expose defendants in that situation to a

                                                 27
lesser punishment than they deserve. In both cases, then, the majority seems to posit a
unit of prosecution so formulated as to expose the defendant to the most onerous
punishment.
       However, once the unit of prosecution is understood to be defined by statute—
subject only to judicial interpretation—the construction to be adopted, in the absence of
legislative guidance, must be the one favoring the defendant. This follows from the rule
of lenity, which applies as much to unit of prosecution issues as to any other issue of the
meaning of a penal statute. (See In re Carleisha P., supra, 144 Cal.App.4th at p. 923
[where the ―proper unit of prosecution‖ under governing statute was ―ambiguous,‖ court
applied rule of lenity to conclude that possession of three types of ammunition
constituted only one offense].)17 This approach ― ‗ ―protects the individual against

       17  Cases in many other jurisdictions have held the rule of lenity applicable to unit
of prosecution issues. (See Bell v. United States (1955) 349 U.S. 81, 83 [―When
Congress leaves to the Judiciary the task of imputing to Congress an undeclared will
[with respect to the unit of prosecution], the ambiguity should be resolved in favor of
lenity.‖]; U.S. v. Emly (8th Cir. 2014) 747 F.3d 974, 977; U.S. v. Lagrone (5th Cir. 2014)
743 F.3d 122, 126; U.S. v. Shrader (4th Cir. 2012) 675 F.3d 300, 313; U.S. v. Diaz (3d
Cir. 2010) 592 F.3d 467, 474; U.S. v. Finley (2d Cir. 2001) 245 F.3d 199, 207; U.S. v.
Verrecchia (1st Cir. 1999) 196 F.3d 294, 297; U.S. v. Wilson (D.C. Cir. 1998) 160 F.3d
732, 749; U.S. v. Keen (9th Cir. 1996) 104 F.3d 1111, 1119; U.S. v. Song (7th Cir. 1991)
934 F.2d 105, 108; U.S. v. Mastrangelo (11th Cir. 1984) 733 F.2d 793, 801; U.S. v.
Valentine (10th Cir. 1983) 706 F.2d 282, 293;U.S. v. Rosenbarger (6th Cir. 1976) 536
F.2d 715, 721; Townsend v. State (Ala. Crim. App. 2001) 823 So.2d 717, 723; People v.
Lowe (Colo. 1983) 660 P.2d 1261, 1269, overruled on other grounds in Callis v. People
(Colo. 1984) 692 P.2d 1045, 1050, fn. 7; State v. Rawls (1985) 198 Conn. 111, 122 [502
A.2d 374, 379]; Neal v. State (Fla. App. 2013) 109 So.3d 1245, 1250; State v. Auwae
(App. 1998) 89 Hawai‘i 59, 70 [968 P.2d 1070, 1081], overruled on other grounds in
State v. Jenkins (2000) 93 Hawai‘i 87 [997 P.2d 13], and cited with approval in State v.
Shimabukuro (2002) 100 Hawai‘i 324, 327 [60 P.3d 274, 277]; People v. Manning (1978)
71 Ill.2d 132, 137 [374 N.E.2d 200, 202]; State v. Muhlenbruch (Iowa 2007) 728 N.W.2d
212, 216; State v. King (2013) 297 Kan. 955, 971 [305 P.3d 641, 654]; Miles v. State
(1998) 349 Md. 215, 227-228 [707 A.2d 841, 847]; Commonwealth v. Rabb (2000) 431
Mass. 123, 128 [725 N.E.2d 1036, 1041]; People v. Haggart (1985) 142 Mich.App. 330,
                                                                  (footnote continued on next page)
                                             28
arbitrary discretion by officials and judges and guards against judicial usurpation of the
legislative function which would result from enforcement of penalties when the
legislative branch did not clearly prescribe them.‖ ‘ ‖ (In re Carleisha P., supra, 144
Cal.App.4th at p. 923, quoting People v. Robles (2000) 23 Cal.4th 1106, 1115.)
        This court is no stranger to the rule of lenity. (See People v. Arias (2008) 45
Cal.4th 169, 177 (maj. opn. of Chin, J.) [―If a statute defining a crime or punishment is
susceptible of two reasonable interpretations, we ordinarily adopt the interpretation that is
more favorable to the defendant.‖]; Smith v. Superior Court (2006) 39 Cal.4th 77, 92
(Baxter, J., expressing the unanimous view of the court ) [―The rule of strict construction of
penal statutes ‗has generally been applied in this state to criminal statutes, rather than
statutes which prescribe only civil monetary penalties.‘ ‖ (quoting People ex rel. Lungren
v. Superior Court (1996) 14 Cal.4th 294, 312)]; People v. Canty (2004) 32 Cal.4th 1266,
1277 (George, C.J., expressing the unanimous view of the court ) [―under the traditional ‗rule
of lenity,‘ language in a penal statute that truly is susceptible of more than one reasonable
construction in meaning or application ordinarily is construed in the manner that is more


(footnote continued from previous page)
348 [370 N.W.2d 345, 354]; State v. Liberty (Mo. 2012) 370 S.W.3d 537, 553; State v.
Jennings (2007) 155 N.H. 768, 777 [929 A.2d 982, 990]; State v. Tillem (N.J. Super. Ct.
App. Div. 1974) 127 N.J.Super. 421, 429 [317 A.2d 738, 743]; State v. Olsson (N.M.
2014) 324 P.3d 1230, 1239; State v. Wiggins (N.C. App. 2011) 210 N.C.App. 128, 133
[707 S.E.2d 664, 669], [― ‗[t]he rule of lenity ‗forbids a court to interpret a statute so as to
increase the penalty that it places on an individual when the Legislature has not clearly
stated such an intention.‘ ‖]; State v. Watkins (Tenn. 2012) 362 S.W.3d 530, 543 [―any
ambiguity in defining the unit of conduct for prosecution is resolved against the
conclusion that the legislature intended to authorize multiple units of prosecution‖]; Acey
v. Commonwealth (1999) 29 Va.App. 240, 250-251 [511 S.E.2d 429, 433-434]; State v.
Sutherby (2009) 165 Wash.2d 870, 878-879 [204 P.3d 916, 920]; State v. Goins (2013)
231 W.Va. 617, 623 [748 S.E.2d 813, 819]; Amrein v. State (Wyo. 1992) 836 P.2d 862,
865.)


                                              29
favorable to the defendant‖]; People v. Smith (2004) 32 Cal.4th 792, 798 (Kennard, J.,
expressing the unanimous view of the court ); People v. Avery (2002) 27 Cal.4th 49, 58

(Chin, J., expressing the unanimous view of the court ) [―true ambiguities are resolved in a
defendant‘s favor‖]; People v. Garcia (1999) 21 Cal.4th 1, 10 (maj. opn. of Werdegar,
J.); People v. Franklin (1999) 20 Cal.4th 249, 253 (maj. opn. of Chin, J.) [registration
statute ―must be construed as favorably to the defendant as its language and the
circumstances of its application reasonably may permit‖]; see People v. Kroncke (1999)
70 Cal.App.4th 1535, 1558 (conc. & dis. opn. of Corrigan, P.J.) [―If the language is
ambiguous, standard rules of construction require that a statute imposing penal
consequences be narrowly construed.‖].)
       Admittedly, this court has recently inclined toward a relatively narrow view of the
rule of lenity, sometimes declaring that it applies only where ― ‗ ―the court can do no
more than guess what the legislative body intended,‖ ‘ ‖ and where ― ‗ ―an egregious
ambiguity and uncertainty‖ ‘ ‖ appears. (People v. Canty, supra, 32 Cal.4th at p. 1277.)
But it is difficult to picture a situation where legislative intent is harder to discern than in
the determination of units of prosecution in cases of multiple misappropriative acts
effecting a single original intent to steal. The situation seems precisely the one described
by the United States Supreme Court in Bell v. United States, supra, 349 U.S. at p. 83:
The Legislature has left ―to the Judiciary the task of imputing to [it] an undeclared will.‖
That being so, one would expect the rule of lenity to come into full play. Instead the
majority turns the rule upside down by insisting that doubts as to the unit of prosecution
will be resolved against the defendant in the case of larger takings, while leaving open the
possibility that they may also be resolved against the defendant in the case of smaller
takings.
       In my view the difficulties presented by these cases are not an occasion to
introduce radical new methods for resolving vexing issues of law but quite the reverse.

                                               30
They demand a resort to neutral principles, consulting the statutory language in the first
instance and resolving ambiguities in a manner consistent with relevant interpretive
principles as well as the court‘s duty to formulate a rational, coherent, and administrable
system of rules. I recognize that a number of other courts, including the Court of Appeal
here, seem to assume an analytical distinction between large takings and small ones, but I
wholeheartedly agree with the contrary view implicitly taken in Bailey, supra, 55 Cal. 2d
at pages 518-519, but expressed there with a regrettable lack of forthrightness: that in the
absence of a legislative directive to the contrary, any rule unifying multiple takings into a
single theft must necessarily operate independently of the size of the takings, and must be
applied neutrally, regardless of which party benefits in a particular case or class of cases.
Conclusion
       I would hold that the rule of Bailey is fundamentally sound and should continue to
govern units of prosecution in theft in this state. I would clarify, however, that it does not
apply to a series of opportunistic takings joined only by a common modus operandi.
Because I do not believe existing law warranted a conclusion to the contrary, and because
the record does not establish that defendant is entitled to the protection of the rule as a
matter of law, I would affirm the judgment.




                                              RUSHING, J. *




  *  Administrative Presiding Justice of the Court of Appeal, Sixth Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.


                                              31
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Whitmer
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 213 Cal.App.4th 122
Rehearing Granted

__________________________________________________________________________________

Opinion No. S208843
Date Filed: July 24, 2014
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Candace J. Beason

__________________________________________________________________________________

Counsel:

Eric R. Larson, under appointment by the Supreme Court, and Jolene Larimore, under appointment by the Court of
Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Victoria B. Wilson, Michael C. Keller and Noah P. Hill, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Eric R. Larson
330 J Street, #609
San Diego, CA 92101
(619) 238-5575

Noah P. Hill
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-8884




                                                    2
