In People v. Fenderson (2010) 188 Cal.App.4th 625, the defendant was convicted of larceny for taking money belonging to the estate of a decedent for whom the defendant had been the caretaker. (Id. at p. 628.) The defendant argued the evidence showed, at most, embezzlement, but that the jury was only instructed on larceny. (Id. at pp. 635-637.) Although the court affirmed the larceny conviction, it held, in the alternative, that the conviction could also be sustained under a theory of embezzlement, even though the jury was never instructed on embezzlement. (Id. at p. 637.) The court noted a conflict in the appellate courts regarding whether a theft conviction may be upheld on a theory not presented to the jury. (Id. at pp. 640-641.) Nonetheless, the court held it was appropriate because, as it viewed the two, theft by larceny was an " 'increased ... evidentiary burden' " (id. at p. 641) over embezzlement, and since the People proved larceny, it would make little sense to require a jury to pass on embezzlement. The court also reasoned that " 'it would obviously be very hard to explain why a theft conviction should be reversed on the grounds that the evidence showed the defendant was indeed guilty of theft, but would have been guilty of a differently denominated type of theft under a common law system which has been repealed by statute.' " (Id. at pp. 641-642.)