Full opinion text
Opinion CHIN, J. Defendant Jeffrey Allen Whitmer, 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 [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 this mie 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 mie 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 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 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 pp. 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 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 [105 P.2d 969] (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.)” 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 [261 P. 303] (Robe) and People v. Ashley (1954) 42 Cal.2d 246 [267 P.2d 271] (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. (Robe, 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 [333 P.2d 777] [defendant properly convicted of two counts of grand theft after obtaining two 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 [130 P.2d 495] [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 [79 P.2d 732] [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, Robe, 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 [123 Cal.Rptr.3d 760].) 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 [234 Cal.Rptr. 442] (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 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 People v. Brooks (1985) 166 Cal.App.3d 24 [210 Cal.Rptr. 90] [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 [182 Cal.Rptr. 576] [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 [153 Cal.Rptr. 160] [reversing three of four counts of grand theft of animal carcasses]; People v. Richardson (1978) 83 Cal.App.3d 853 [148 Cal.Rptr. 120] [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 [145 Cal.Rptr. 313] [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. 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. 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 [23 Cal.Rptr.2d 144, 858 P.2d 611].) 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 [142 Cal.Rptr.3d 546, 278 P.3d 809].) 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 [111 Cal.Rptr.2d 114, 29 P.3d 197].) “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 (1993) 5 Cal.4th 59, 75 [19 Cal.Rptr.2d 233, 851 P.2d 27].) 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 [130 Cal.Rptr.3d 290].) 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 [96 Cal.Rptr.2d 451, 999 P.2d 675]; see 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. 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. 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. Cantil-Sakauye, C. J., Baxter, J., Werdegar, J., Corrigan, J., and Liu, J., concurred.
WERDEGAR, J., 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 that previously articulated by the appellate courts, due process precludes application of the new standard to this defendant. (Maj. opn., ante, at p. 742.) 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.” (Cone. opn. of Liu, J., post, at p. 744.)
LIU, J., 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 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 “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 [57 L.Ed.2d 43, 98 S.Ct. 2170] [“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 [211 Cal.Rptr. 742, 696 P.2d 134], superseded by statute on other grounds as stated in People v. Arndt (1999) 76 Cal.App.4th 387, 393-394 [90 Cal.Rptr.2d 415]; see, e.g., In re Carleisha P. (2006) 144 Cal.App.4th 912, 919 [50 Cal.Rptr.3d 777]; People v. Washington (1996) 50 Cal.App.4th 568, 576-577 [57 Cal.Rptr.2d 774].) 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 [328 P.2d 976] [“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 [53 Cal.Rptr.2d 789, 917 P.2d 628] [“ ‘the power to define crimes and fix penalties is vested exclusively in the legislative branch’ ”]; People v. Harrison (1989) 48 Cal.3d 321, 332 [256 Cal.Rptr. 401, 768 P.2d 1078] [the “court is not to sit as a ‘super-legislature’ altering criminal definitions”]; In re Lynch (1972) 8 Cal.3d 410, 414 [105 Cal.Rptr. 217, 503 P.2d 921].) 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 §§ 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. 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 [123 Cal.Rptr.3d 760] [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 [88 Cal.Rptr.3d 789] [collecting cases]; People v. Kronemyer (1987) 189 Cal.App.3d 314, 363 [234 Cal.Rptr. 442] [“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 [210 Cal.Rptr. 90] [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 [182 Cal.Rptr. 576] [citing Bailey for “the well-established rule that in a series of takings from the same individual, 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 [148 Cal.Rptr. 120] [“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 [94 Cal.Rptr. 364] [“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 serial takings in question would each constitute a petty theft or a grand theft 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 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. 740-741.) 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 [142 Cal.Rptr.3d 546, 278 P.3d 809] [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 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., post, at p. 766.) 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. 741) — 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. 750-755.) 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 p. 741), are properly understood to mean similarity in how 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. 741.) 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. 740), 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. 740), 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., post, at pp. 753-755.) In this area, as in others, proper application of the law has much more to do with practical judgment than pure logic or metaphysics.
RUSHING, J., Dissenting.-I am unable to concur in either the reasoning of the majority opinion or in its result. 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 unspecified body of case 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 act. I find entirely inadequate the majority’s critique of such a rule, i.e., that it allows a “ ‘ “felony discount” ’ ” to its beneficiaries. (Maj. opn., ante, at p. 740.) 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 [7 Cal.Rptr.3d 483].) 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, italics omitted); 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, italics omitted); and a “[t]ime-[b]ased [a]pproach,” which defines an offense chronologically (id. at p. 728, italics omitted). The Legislature has explicitly adopted a time-based unit of prosecution to define grand theft in a few specific circumstances. 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 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.” (Wilkojf v. Superior Court (1985) 38 Cal.3d 345, 349 [211 Cal.Rptr. 742, 696 P.2d 134]; see, e.g., In re Carleisha P. (2006) 144 Cal.App.4th 912, 919 [50 Cal.Rptr.3d 777]; People v. Washington (1996) 50 Cal.App.4th 568, 576-577 [57 Cal.Rptr.2d 774].) 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 [334 P.2d 938]; Dawson v. Superior Court (1956) 138 Cal.App.2d 685, 686 et seq. [292 P.2d 574]; People v. Lima (1954) 127 Cal.App.2d 29, 34 [273 P.2d 268].) The second was “larceny and embezzlement cases” following “[t]he 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 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 [32 P.2d 593]; People v. Howes (1950) 99 Cal.App.2d 808, 818-821 [222 P.2d 969]; People v. Yachimowicz (1943) 57 Cal.App.2d 375, 381 [134 P.2d 271]; People v. Dillon (1934) 1 Cal.App.2d 224, 228-229 [36 P.2d 416]; People v. Bratton (1932) 125 Cal.App. 337, 342-344 [14 P.2d 125]; People v. Sing (1919) 42 Cal.App. 385, 395-396 [183 P. 865]; People v. Ashley (1954) 42 Cal.2d 246, 279, fn. 3 [267 P.2d 271] (cone. & dis. opn. of Schauer, J.).) The Bailey court then cited People v. Stanford (1940) 16 Cal.2d 247, 250-251 [105 P.2d 969], 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. 520.) In the first, People v. Scott (1952) 112 Cal.App.2d 350, 351 [246 P.2d 122], 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 [110 P.2d 492], 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 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 [99 P.2d 551], 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 Rabe 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 [333 P.2d 777]; People v. Caldwell (1942) 55 Cal.App.2d 238, 250-251 [130 P.2d 495]; People v. Ellison (1938) 26 Cal.App.2d 496, 498 [79 P.2d 732].) 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, “[I]t 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.) 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) 286 N.Y. 137, 143 [36 N.E.2d 84, 86] [“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. 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 to a waiting van. 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 [60 Cal.Rptr.2d 552].) 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. (Ibid.) The court then cited the 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 [234 Cal.Rptr. 442] (Kronemyer), where an attorney committed various defalcations against a client falling into “illness and mental deterioration.” (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 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 $l,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 cat