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People v. Maikhio

January 5, 2010

THE PEOPLE, PLAINTIFF AND APPELLANT,
v.
BOUHN MAIKHIO, DEFENDANT AND RESPONDENT.



APPEAL from an order of the Superior Court of San Diego County, David B. Oberholtzer, Judge. Affirmed. (Super. Ct. Appellate No. CA211304), (Super. Ct. No. M031897).

The opinion of the court was delivered by: McDONALD, J.

CERTIFIED FOR PUBLICATION

On transfer to this court from the Appellate Division of the San Diego County Superior Court, the People of the State of California appeal an order of the trial court granting defendant Bounh Maikhio's Penal Code section 1538.5 motion to suppress evidence in its case against him for two misdemeanor fishing offenses. On appeal, the People contend the trial court erred by granting the motion to suppress because: (1) Fish and Game Code*fn1 sections 1006 and 2012 authorized the State of California Department of Fish and Game (DFG) warden to stop Maikhio's vehicle to conduct an inspection and that stop was reasonable under the Fourth Amendment to the United States Constitution even if he had no reasonable suspicion Maikhio was involved in criminal activity; and, alternatively, (2) the warden had reasonable suspicion under the Fourth Amendment that Maikhio was involved in criminal activity and therefore could lawfully stop Maikhio's vehicle. We conclude the DFG warden did not have either the statutory or constitutional authority to stop Maikhio's vehicle in the circumstances of this case.

FACTUAL AND PROCEDURAL BACKGROUND

At about 11:10 p.m. on August 19, 2007, DFG warden Erik Fleet issued a citation to Maikhio for possession of a California spiny lobster during closed season in violation of California Code of Regulations, title 14, section 29.90, subdivision (a), and for failure to exhibit his catch on demand in violation of section 2012. After the People filed a misdemeanor complaint (Case No. M031897) against Maikhio, he was arraigned and pleaded not guilty. Maikhio subsequently moved to suppress evidence pursuant to Penal Code section 1538.5.

On December 14, the trial court heard Maikhio's motion to suppress, together with motions to suppress made by two other defendants in similar cases.*fn2 At the hearing, Fleet testified that at about 11:00 p.m. on August 19, 2007, he was on duty and observed activities on the Ocean Beach pier by using a spotting telescope mounted on his truck, which was parked on Narragansett Street. Fleet saw Maikhio fishing on the pier, using a method called hand-lining. Maikhio was accompanied by a woman and an infant. Fleet saw Maikhio catch something and place it in a black bag next to him. Fleet could not see what Maikhio had caught and placed in the bag. Fleet watched as Maikhio and the other two persons left the pier, entered the parking lot, and drove away from the parking lot in Maikhio's vehicle. Fleet then stopped Maikhio's vehicle because he "wanted to make sure... that he [Maikhio] was in compliance with the California fishing laws and regulations." Fleet testified that he did "[n]ot necessarily" suspect at the time of the stop that Maikhio had broken the law.

After stopping Maikhio's vehicle, Fleet, who was in uniform, approached Maikhio and introduced himself as a DFG warden. Fleet asked Maikhio if he had any fish or lobsters in his vehicle. Maikhio answered, "no." Fleet then searched the vehicle pursuant to section 1006 and found the black bag in the rear passenger area under the woman's feet. He looked inside the bag and found a California spiny lobster. Fleet placed Maikhio in handcuffs for his (Fleet's) safety, sat Maikhio on the curb, and continued his search of the vehicle (which revealed nothing more). Maikhio eventually admitted the lobster was his.

Fleet issued a citation to Maikhio for possessing a lobster during closed season (Cal. Code Regs., tit. 14, § 29.90, subd. (a)) and for failing to exhibit his catch on demand (§ 2012). Fleet testified that, pursuant to his training as a DFG warden, he waited to stop Maikhio's vehicle until after Maikhio left the pier and parking lot so that Fleet would not "blow [his] cover" at the pier and therefore could continue to effectively "work" the pier and catch other possible law violators that night. On direct examination by the prosecutor, Fleet described the method of "hand-line" fishing:

"They were fishing on the pier in a method we call hand lining, which is commonly used to catch lobsters. It's an illegal method of catching lobsters, but it's very productive and it's basically a person holds a fishing line in their hand, either the fishing line goes back to their fishing rod and reel or they hold it in their hand and they jerk the fishing line which generally has a treble hook on the bottom of it with the weight on it and squid is usually used for bait. And it gives them a better feel of the bottom because a lobster doesn't strike the bait, it will actually climb onto the bait and they lift the line up when they feel weight on it, they jerk it which causes the hook to penetrate the lobster and they bring it up. It's very common and that's what drew my attention to [Maikhio]."

However, on cross-examination, Fleet admitted that hand-lining can also be used for regular fishing. Following arguments of counsel, the trial court granted Maikhio's motion to suppress evidence.

On appeal, the Appellate Division of the San Diego County Superior Court initially reversed the trial court's order granting Maikhio's motion to suppress and, after a rehearing, again reversed trial court's order. The appellate division concluded Fleet lawfully stopped Maikhio under sections 1006 and 2012 to conduct a compliance inspection. In addition, it concluded Fleet had reasonable suspicion to believe Maikhio was in possession of an illegally caught lobster, based on his observation of Maikhio using the hand-lining method to catch something, because that method of fishing is commonly used to catch lobsters.

Maikhio filed an application for certification for transfer of the case to this court pursuant to California Rules of Court, rule 8.1005. On May 5, 2009, the appellate division issued an order granting Maikhio's application for certification for transfer, stating "[t]ransfer is necessary to settle the following important question of law: Whether Fish and Game Code sections 1006 and 2012 authorize vehicle stops without reasonable suspicion of criminal conduct."

On May 20, 2009, we issued an order transferring the case to this court for hearing and decision. We requested briefing by the parties on the following issues: "(1) whether Fish and Game Code sections 1006 and 2012 authorize vehicle stops without reasonable suspicion of criminal conduct; and (2) whether the warden in this case had reasonable suspicion to believe Maikhio was engaged in illegal lobster fishing." The parties have submitted, and we have considered, briefs on those issues.

DISCUSSION

I. Vehicle Stops Pursuant to Sections 1006 and 2012 Without Reasonable Suspicion of Criminal Activity

The People contend Fleet lawfully stopped Maikhio's vehicle pursuant to sections 1006 and 2012 without reasonable suspicion that he committed any crime. They argue Fleet's authority to stop Maikhio's vehicle must be implied as necessary to carry out express powers granted to the DFG by sections 1006 and 2012, and the stop was reasonable under the Fourth Amendment. The parties do not cite, and we are unaware of, any case addressing this question, which we believe is one of first impression.

A.

In interpreting a statute, we first examine the actual language of the statute and give the statute's words their ordinary, everyday meaning unless the statute gives them a special meaning. (Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1238- 1239.) If the meaning of a statute's language is certain and unambiguous, then its language controls. (Id. at p. 1239.) However, if the meaning of a statute's words is not clear, we review the statute's legislative history. (Ibid.) In the event a statute's language and legislative history do not reveal a clear meaning, we then apply reason, practicality, and common sense to its language to, if possible, interpret the statute's words to make them workable and reasonable. (Id. at pp. 1239-1240.) Finally, "[i]f a statute is susceptible of two constructions, one of which will render it constitutional and the other unconstitutional in whole or in part, or raise serious and doubtful constitutional questions, the court will adopt the construction which, without doing violence to the reasonable meaning of the language used, will render it valid in its entirety, or free from doubt as to its constitutionality, even ...


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