Tabb

A jury convicted Edward Nathaniel Tabb, Sr., of grand theft of personal property worth over $400 (Pen. Code, § 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…