gno.law

People v. Hernandez CA4/1

California Court of Appeal · D085762 · 2026-08-18 · Unpublished

Proceeding
appeal from a judgment
Trial court
Superior Court of San Diego County · No. SCD304565
Trial judge
Evan P. Kirvin
Outcome
reversed — Reversed and remanded with directions.
Area
criminal
Panel
Buchanan (author), Judith D. McConnell, O'Rourke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T03:16Z · confidence high

The trial court convicted the defendant of both grand theft and embezzlement by a clerk and granted formal probation. The Court of Appeal reversed the judgment, holding that the convictions violated Penal Code section 954 as different statements of the same offense, and remanded for the People to select one conviction for resentencing.

Ruling reviewedStandardThe courtThe model
Conviction on both grand theft (§ 487, subd. (a)) and embezzlement by a clerk (§ 508) for the same conduct.
“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.”
de novoerroragree with court
agree with court
Imposition of probation conditions 7(a)–(d) relating to treatment, therapy, and counseling.
“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.”
unclearnot reachedagree with court
agree with court

Authorities

  • relied: People v. Vidana (2016) 1 Cal.5th 632 — Convictions for grand theft by larceny and embezzlement based on the same course of conduct cannot stand under section 954.
  • relied: People v. Aguayo (2022) 13 Cal.5th 974 — The Supreme Court remanded for further proceedings without deciding the specific remedy for a section 954 violation, citing Vidana and Craig.
  • relied: People v. Craig (1941) 17 Cal.2d 453 — The court modified a judgment to consolidate two rape convictions under section 954.
  • relied: People v. Shiga (2019) 34 Cal.App.5th 466 — Appropriate remedy for duplicative convictions is reversing and remanding with instructions to reinstate the conviction on the count selected by the People.
  • relied: People v. Coyle (2009) 178 Cal.App.4th 209 — Alternative approach for remediating section 954 violations involves consolidating duplicative counts and affirming the judgment as modified.
  • relied: People v. Lent (1975) 15 Cal.3d 481 — Failure to object to probation conditions at sentencing forfeits the right to challenge their reasonableness on appeal.
  • relied: In re Sheena K. (2007) 40 Cal.4th 875 — Constitutional challenges to probation conditions require consideration of the sentencing record, which is forfeited if not raised below.
  • relied: People v. Welch (1993) 5 Cal.4th 228 — Constitutional challenges to probation conditions require consideration of the sentencing record.

The appellate opinion: sound — sound

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:17Z · confidence medium

After a jury convicted Andres Hernandez of both grand theft (Pen. Code § 487, subd. (a)) and embezzlement by a clerk (§ 508) for loading about $3,426 of his employer's funds onto his own prepaid cards, the trial court suspended imposition of sentence and granted formal probation with various conditions. The Court of Appeal accepted the Attorney General's concession that the dual convictions violate section 954 under People v. Vidana, reversed, and remanded with directions for the People to elect which conviction to reinstate and for resentencing on a single count, declining to reach the forfeited probation-condition challenges.

Ruling reviewedStandardThe courtThe model
Entry of judgment on both grand theft (§ 487, subd. (a)) and embezzlement by a clerk (§ 508) for the same course of conduct, in violation of section 954
“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.”
unclearerror (law misapplied)agree with court
Vidana squarely holds that larceny and embezzlement are different statements of the single offense of theft and that section 954 does not permit convictions on both for the same conduct; the facts here (one episode of taking employer funds charged as § 487 and § 508) fall directly within that holding. The court did not articulate a standard of review, but the issue is a pure question of law and the result follows from binding Supreme Court authority. As to remedy, Vidana and Aguayo expressly left open whether to strike one conviction or consolidate, so choosing the Shiga approach (People elects which conviction to reinstate, then resentencing) is within the range the Supreme Court has sanctioned and is consistent with how the Fourth District has handled the issue; neither party argued for consolidation.
Imposition of 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.”
unclearnot reachedagree with court
Because the whole judgment was reversed and a full resentencing ordered, the original probation conditions no longer exist, so declining to review them is proper. The court's forfeiture observation is consistent with Welch (reasonableness challenges under Lent must be raised at sentencing) and Sheena K. (only facial constitutional challenges presenting pure questions of law survive the failure to object); the court carefully limited forfeiture to constitutional challenges that would require review of the sentencing record, which tracks Sheena K. Hernandez retains the ability to object at resentencing, so no prejudice results.

Authorities

  • relied: People v. Vidana (2016) 1 Cal.5th 632 — Larceny and embezzlement are different statements of the same offense of theft, and section 954 does not authorize convictions for both based on the same course of conduct; the court expressed no opinion on whether striking one conviction or consolidating is the proper remedy.
  • relied: People v. Aguayo (2022) 13 Cal.5th 974 — Where a defendant is improperly convicted of two statements of the same offense under section 954, remand for further proceedings is appropriate, without the Supreme Court deciding which remedy (striking or consolidating) must be used.
  • relied: People v. Craig (1941) 17 Cal.2d 453 — A judgment may be modified to consolidate two convictions that are different statements of the same offense under section 954.
  • relied: People v. Shiga (2019) 34 Cal.App.5th 466 — For a section 954 violation, the appellate court may reverse the duplicative convictions and remand with instructions to reinstate the conviction selected by the People and resentence on that count.
  • relied: People v. Coyle (2009) 178 Cal.App.4th 209 — Duplicative counts charging the same offense may be consolidated into a single count, with the other convictions vacated and the judgment affirmed as modified.
  • relied: People v. Lent (1975) 15 Cal.3d 481 — Sets the test for the reasonableness of probation conditions (relationship to the crime, conduct not itself criminal, relationship to future criminality).
  • relied: In re Sheena K. (2007) 40 Cal.4th 875 — Failure to object at sentencing forfeits challenges to probation conditions except facial constitutional challenges presenting pure questions of law that do not require review of the sentencing record.
  • relied: People v. Welch (1993) 5 Cal.4th 228 — A defendant who does not object to probation conditions at sentencing forfeits a Lent reasonableness challenge on appeal.

The appellate opinion: sound — The opinion correctly applies Vidana to indistinguishable facts, accepts a well-founded concession, and selects a remedy that the Supreme Court in Vidana and Aguayo expressly left to the lower courts, explaining why it follows Shiga rather than Coyle. Its decision not to reach the probation conditions is justified both by the full resentencing and by a correct statement of the forfeiture rules in Welch and Sheena K., while preserving Hernandez's right to object on remand.

How this analysis was made · dispute it

Opinion

Filed 8/18/26 P. v. Hernandez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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.

3 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 . . . .”

4 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 5 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.

6 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.

7 O’ROURKE, J.

Cites, in this corpus