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Name: People v. Tabb
Case #: D051402
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 01/30/2009

An employee who stole from an employer could not be convicted of both grand theft and grand theft from an employer. Tabb was convicted of grand theft of property over $400 (count 1), grand theft by an employee (count 2), and petty theft with a prior (count 3). He admitted four prior prison terms, and was sentenced to a six-year state prison term consisting of a two-year midterm on count 1 plus four consecutive one-year terms for the priors. A concurrent term was imposed for count three, and the term for count 2 was stayed under section 654. On appeal, he contended that his count 1 conviction had to be reversed as a lesser included offense to count 2. In supplemental briefing, he also argued that all of the theft counts involved the same offense, and that his conviction on counts 1 and 2 were the same theft charged under different theories, improperly aggregating petty thefts into grand theft. The appellate court rejected the lesser included offense argument. Grand theft by an employee is not a separate offense, but a species of grand theft. Having chosen to pursue a theory that Tabb’s petty thefts from his employer could be aggregated to convict him of felony grand theft of property worth more than $400, the prosecution was entitled to obtain only one theft conviction. Therefore, count 2 was reversed. Further, count 3 had to be reversed because it was improper to aggregate some of the petty thefts, but not all of them. There was no evidence that would permit a reasonable jury to conclude Tabb had a separate and distinct plan on one date than on the other dates.