APPEAL from a judgment of the Superior Court of San Diego County, Larrie R. Brainard, Judge. Affirmed in part and reversed in part. (Super. Ct. No. SCD205726).
The opinion of the court was delivered by: O'rourke, J.
CERTIFIED FOR PUBLICATION
A jury convicted Edward Tabb of grand theft of personal property worth over $400 (Pen. Code,*fn1 § 487, subd. (a); count 1), grand theft by an employee (§ 487, subd. (b)(3); count 2) and petty theft with a prior (§§ 484, 666; count 3). Tabb later admitted allegations that he had four prior prison term convictions (§§ 667.5, subd. (b), 668). The trial court sentenced Tabb to a six-year state prison term consisting of a two-year midterm on count 1 plus four consecutive one-year terms for the four prison priors. It imposed a concurrent two-year term for count 3, stayed a two-year term for count 2 under section 654, and ordered victim restitution in the amount of $39,688 (§ 1202.4, subd. (f)).
On appeal, Tabb contends (1) his conviction for grand theft in count 1 must be reversed as a lesser included offense of grand theft by an employee in count 2; (2) there is insufficient evidence to establish certain elements of theft for all of the counts; and (3) there is insufficient evidence to support the restitution award. In supplemental briefing, Tabb contends that at most he should have been convicted of a single count of grand theft because counts 1 and 2 involved the same crime charged under different theories, and the petty theft of count 3 is a lesser included offense of both counts 1 and 2. We agree that on this record, the count 3 petty theft conviction must be reversed. We also agree that because grand theft by an employee is merely a species of grand theft, and the evidence does not permit an inference that Tabb's thefts from his employer were committed pursuant to separate and distinct intents or schemes, Tabb may be convicted of only one count of grand theft. Accordingly, we shall reverse Tabb's convictions on counts 2 and 3, and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Between November 13, 2006, and March 31, 2007, Tabb brought materials to sell to A to Z Auto Dismantling (A to Z), a recycling company. Jack Bollina, a manager at A to Z, would take the materials in; identify, separate and weigh them; write Tabb a ticket; and send him to the office to get paid. Tabb would arrive on his bicycle with a yellow backpack and a satchel. At the time, Tabb told Bollina that he worked at NASSCO, a local ship manufacturing company. In fact, starting in mid-January 2007, Tabb worked for BAE Systems (BAE) as a runner or helper for the pipe fitters. In the beginning, Tabb brought aluminum cans and bottles to A to Z. Starting on about January 24, 2007, and on a daily basis, Tabb started bringing in materials that could not be purchased on the commercial market: brass, cupronickel,*fn2 and occasionally copper. The materials appeared to be used or new parts from ships. When Bollina asked Tabb where he was getting the materials, Tabb said they were throw-away parts that his boss permitted him to take. Becoming suspicious about the fact Tabb's recycling went from $10 to about $100 in materials each day, Bollina began taking pictures of the parts Tabb brought in and reporting the materials to his boss. He took a total of four pictures.
A to Z's office manager, Sue Wilson, kept a log of all the items Tabb brought in. She calculated that A to Z paid Tabb approximately $31,098.68 for the materials he brought to them. At some point, she attempted to contact a NASSCO representative, who eventually contacted BAE's security manager, Ed Lasater, who met with Wilson and reviewed the photographs and inventory. Lasater showed the A to Z pictures to the pipe fitter superintendent, who identified them as items that would be in BAE's pipe shop.
When Tabb later returned to A to Z with a dozen brass fittings, Sue Wilson took photographs and called Lasater, who set up a search of Tabb's backpack. On April 4, 2007, Lasater conducted a search of Tabb's backpack and found eight or nine brass couplings and copper wire in his possession, which Tabb's supervisor determined belonged to the electrical department and was not trash or scrap material. Tabb's supervisor never gave Tabb permission to take any of the items to A to Z; they were expensive flanges or pieces used for ship repair work, not scrap metal. Tabb did not perform pipe fitting at BAE, and he was never given permission by his supervisor to leave the facility with those items or other items such as copper nickel flanges, brass and butterfly valves, and other fittings. There would be no job related reason for Tabb to have such items in his possession and there was no policy to permit employees to take those kinds of items off the premises for recycling.
A police officer called to investigate Tabb's actions viewed a videotape of Tabb at A to Z bringing in brass pipe fittings and placing them on the scale. That video, as well as the photographs taken at A to Z, were also reviewed by Lasater and the superintendent of the pipe shop. BAE's director of material management, Patrick Frei, reviewed A to Z's invoice relating to Mr. Tabb's recycling activities and estimated BAE's loss in materials to be $39,688.
Tabb testified in his defense. He admitted taking bottles and cans to A to Z for recycling but denied taking any of the items depicted in the A to Z photographs from BAE. He claimed that the copper wire found on April 4, 2007, was his own wire.
The People charged Tabb in count 1 with grand theft of personal property, alleging that "[o]n or about and between" January 16, 2007, (when Tabb began working for BAE) and April 4, 2007, Tabb unlawfully took money and personal property of BAE of a value in excess of $400. They charged him in count 2 with grand theft by an employee, alleging that on or about and between January 16, 2007, and April 4, 2007, he took personal property from his employer of a value of $400 or more in a 12 consecutive month period. Tabb was charged in count 3 with petty theft with a prior on allegations that on April 4, 2007, he stole the property of another and had previously been convicted of specified crimes. The jury convicted Tabb on all counts.
I. Grand Theft by an Employee is Not a Separate Offense, But A Species of Grand Theft
Tabb contends his count 1 conviction for grand theft must be reversed as a lesser included offense*fn3 to the count 2 offense of grand theft by an employee. In supplemental briefing, Tabb argues that all of the theft counts involve the same crime and that as a result his conviction for grand theft (count 1) and his conviction for grand theft by an employee (count 2) are the same theft charged under different theories, improperly aggregating petty thefts into a grand theft. He relies primarily on People v. Bailey (1961) 55 Cal.2d 514 (Bailey) and People v. Packard (1982) 131 Cal.App.3d 622 (Packard). The People respond that under the only relevant test -- the statutory elements test -- grand theft is not a lesser included offense of grand theft by an employee because one ...