Whitmer

Concurring. — 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. 741.) While this formulation of the aggregation rule for thefts differs somewhat from that in People v. Bailey (1961) 55 Cal.2d 514 [ 11 Cal.Rptr. 543 , 360 P.2d 39 ], 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. (Cone. opn. of Liu, J., post, at p. 747.)

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…

Defendant Jeffrey Allen Whitmer, the manager of a motorcycle dealership, arranged for the fraudulent sales of vehicles to fictitious buyers. A *735 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 [ 11 Cal.Rptr. 543 , 360 P.2d 39 ] (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…

Concurring. — In People v. Bailey (1961) 55 Cal.2d 514 [ 11 Cal.Rptr. 543 , 360 P.2d 39 ] (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 constmction of the Bailey rule, defendant committed 20 thefts, not one, on these facts. I agree and therefore *744 join the court’s opinion. But the court merely assumes, without deciding, that the Bailey rule applies here. (Maj. opn., ante, at p. 740.) 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. 740.) In declining to answer this question, the court leaves unresolved the “recurring issue” of…

Dissenting.-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 Cal.2d 514 [ 11 Cal.Rptr. 543 , 360 P.2d 39 ] (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. 742, 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…

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…