Brady

We hold that the illegal taking and killing of abalone from coastal waters may not be punished as grand theft under Penal Code section 487, subdivision 1, although it is punishable under several provisions of the Fish and Game Code. We affirm the order setting aside count 2.

Defendants were observed by fish and game officers illegally taking 196 abalone from the coastal waters off the Mendocino Coast, an area where commercial fishing for abalone is prohibited. When confronted by the officers, defendants lied about their activities and insisted they caught and consumed only a single abalone, outside the prohibited zone. They refused to declare their catch when demanded by the officers. The illegal catch was discovered in a hidden compartment aboard the defendants’ boat, well concealed beneath the carpeted floor between the cabin and the fuel tank. Lieutenant Morse confiscated the shellfish and sold 175 of the illegal catch to a fish broker for $15 each, for a total of $2,625.

Defendants moved to set aside count 2, charging grand theft, on the ground that their activities did not constitute theft of personal property. In granting defendants’ Penal Code section 995 motion,…