Filed 8/18/26 P. v. Hernandez CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D085762
Plaintiff and Respondent,
v. (Super. Ct. No. SCD304565)
ANDRES HERNANDEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Evan P. Kirvin, Judge. Reversed and remanded with directions.
Aude Ruffing, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General,
A. Natasha Cortina and Jon S. Tangonan, Deputy Attorneys General, for
Plaintiff and Respondent.
Andres Hernandez appeals from a judgment granting formal probation
after a jury convicted him of grand theft of personal property (Pen. Code,1
§ 487, subd. (a)) and embezzlement by a clerk (§ 508) for stealing money from
his employer. He contends that his conviction on one of the two counts must
be vacated under section 954 because they constitute different statements of
the same offense. The Attorney General concedes this issue and we accept
the concession. We therefore reverse the judgment and remand the matter to
the trial court with instructions to reinstate the conviction on one of the two
counts to be selected by the People, then resentence Hernandez on only a
single count of conviction. Because we are reversing the judgment and
remanding for resentencing, we do not decide Hernandez’s challenges to the
conditions of probation imposed at the original sentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Hernandez worked as a clerk at a 7-Eleven owned by A.B. His duties
included handling customer transactions and using the cash register and
payment systems.
A.B. occasionally allows employees to receive their pay in advance.
Such advances require A.B.’s permission. Employees are never authorized
to pay themselves wages or load store funds onto their own payment cards
without A.B.’s approval.
On June 30, 2024, Hernandez loaded approximately $3,426 in store
funds onto his own prepaid credit cards in six separate transactions during
his shift. His conduct was captured on store surveillance footage. Hernandez
did not call or otherwise contact A.B. to request authorization before taking
these funds. Another employee was present in the store during portions of
1 All further undesignated statutory references are to the Penal Code.
2
the incident and similarly did not authorize Hernandez’s actions. A.B.
discovered the loss after reviewing store records and surveillance footage.
When A.B. contacted Hernandez, he asserted he was owed unpaid wages and
overtime.
Hernandez testified he believed he was owed wages for unpaid hours
and overtime and claimed that prior payroll discrepancies justified his
actions. He admitted he did not receive permission to take store funds on
June 30, 2024.
A jury convicted Hernandez of both grand theft of personal property
(§ 487, subd. (a)) and embezzlement by a clerk (§ 508). At sentencing, the
trial court suspended imposition of sentence and granted Hernandez formal
probation, imposing various probation conditions.
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DISCUSSION
I
Hernandez first contends that he was improperly convicted of two theft
offenses (grand theft and embezzlement by a clerk) in violation of section 954
because they were different statements of the same offense.2 The Attorney
General concedes the issue under the holding of People v. Vidana (2016) 1
Cal.5th 632 (Vidana). In Vidana, our Supreme Court held that convictions
for both grand theft by larceny (§ 484, subd. (a)) and embezzlement (§ 503)
based on the same course of conduct could not stand under section 954. (Id.
at pp. 635, 649–651.) The court ruled that “section 954 does not authorize
convictions for different statements of the same offense.” (Id. at p. 651.) The
Attorney General here concedes that “the convictions in this case are
effectively identical to the convictions at issue in Vidana.” We agree and
accept the concession.
With respect to the appropriate remedy, Hernandez argues that we
should “remand the matter for further proceedings so the trial court can
decide the best disposition regarding the two convictions.” The Attorney
General contends that the matter “should be remanded to the trial court to
vacate one of appellant’s theft convictions pursuant to section 954.”
2 Section 954 states in relevant part: “An accusatory pleading may
charge two or more different offenses connected together in their commission,
or different statements of the same offense or two or more different offenses
of the same class of crimes or offenses, under separate counts, and if two or
more accusatory pleadings are filed in such cases in the same court, the court
may order them to be consolidated. The prosecution is not required to elect
between the different offenses or counts set forth in the accusatory pleading,
but the defendant may be convicted of any number of the offenses
charged . . . .”
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In Vidana, our Supreme Court affirmed the Court of Appeal’s judgment
striking the larceny conviction but explained in a footnote that the Attorney
General had not challenged that remedy, and further stated, “we express no
opinion on whether striking the larceny conviction or the embezzlement
conviction or consolidating the two convictions is the proper remedy.”
(Vidana, supra, 1 Cal.5th at p. 651, fn. 18.) In a later case, after holding that
a defendant could not be convicted of two assault crimes under section 954,
the Supreme Court remanded the matter for further proceedings again
without deciding which of these remedies was appropriate. (People v. Aguayo
(2022) 13 Cal.5th 974, 996 (Aguayo).) In doing so, the court cited the Vidana
footnote as well as People v. Craig (1941) 17 Cal.2d 453, in which the court
modified a judgment to consolidate two rape convictions under section 954.
(Aguayo, at p. 996.)
Following Vidana, appellate courts have employed different approaches
for remedying a section 954 violation. (See, e.g., People v. Shiga (2019) 34
Cal.App.5th 466, 481, 483–484 (Shiga) [reversing two duplicative arson
convictions and remanding for resentencing with instructions to trial court to
reinstate the conviction on the one selected by the People]; People v. Coyle
(2009) 178 Cal.App.4th 209, 217–218, 219 [consolidating three duplicative
special circumstance murder counts into single count, reversing and vacating
the other two murder convictions, and affirming the judgment as modified].)
Under the circumstances of this case, and without any argument that
the convictions should be consolidated, we deem it appropriate to follow the
Shiga approach. We will therefore reverse the judgment and remand the
matter to the trial court with instructions to reinstate the conviction on one
of the two counts to be selected by the People, then resentence Hernandez
on only a single count of conviction. (See Shiga, supra, 34 Cal.App.5th at
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pp. 481, 483–484.) At the resentencing, any fees imposed by the court must
also reflect the appropriate amounts for only a single count of conviction.
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II
Hernandez next argues that the trial court erred by imposing probation
conditions 7(a)–(d) relating to treatment, therapy, and counseling. Because
we are reversing the judgment and remanding for a new sentencing hearing
on only a single count of conviction, we need not decide the validity of the
original probation conditions. We elect not to address these issues for the
trial court’s guidance on remand because Hernandez did not object to them at
the original sentencing hearing. As a result, he forfeited any reasonableness
challenge to the probation conditions under People v. Lent (1975) 15 Cal.3d
481 and any constitutional challenge that would require us to consider the
sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875, 889–890; People v.
Welch (1993) 5 Cal.4th 228, 234–237.) If the court chooses to impose these
same probation conditions again on remand, Hernandez is free to assert any
objections he may have.
DISPOSITION
The judgment is reversed and remanded with directions to: (1) allow
the People to elect which of the two convictions to have reinstated;
(2) reinstate the conviction on the count selected by the People; and
(3) conduct a new sentencing hearing on the remaining single count of
conviction.
BUCHANAN, J.
WE CONCUR:
MCCONNELL, P. J.
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O’ROURKE, J.
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