Superior Court of California, Appellate Division, Francisco
Honorable Andrew Y.S. Cheng Judge, No. 11031999
E. Michael Linscheid, Esq., for Appellant.
George Gascón, District Attorney, and Lisa M. Culbertson, Assistant District Attorney, for Respondent.
FINAL JUDGMENT ON APPEAL
Charlene Padovani Kiesselbach, Acting Presiding Judge
This matter came on for hearing on May 10, 2013. After considering the evidence, arguments, and applicable law, on July 23, 2013 we issued a judgment affirming-in-part and reversing-in-part the trial court’s judgment. Pursuant to California Rule of Court 8.888, we then modified that judgment to add the below “Introduction” and “Factual Background” sections to the original text, in preparation for publication of this final judgment.
Tim Lee Estes appeals after having been found strictly liable on a charge of violating California Fish and Game Code § 8278(a) for the taking of undersized Dungeness crabs, and sentenced to a probationary term with fines, fees and penalties, and the forfeiture of $47, 000. On appeal, Estes asserts two bases of reversible error: 1) the trial court ruled and instructed the jury that a charge of violating § 8278(a) is a strict liability offense not requiring criminal intent or criminal negligence; and 2) the forfeiture in the amount of $47, 000 from the proceeds of his legal Dungeness crab catch constitutes an excessive fine in violation of the Eighth Amendment to the United States Constitution.
In this case of first impression as to the mental state required to prove a misdemeanor violation of § 8278(a), we hold that the trial court properly determined the taking of undersized Dungeness crabs in violation of this section to be a public welfare offense not requiring proof of a mens rea. However, we also hold that under the circumstances of this case, the $47, 000 forfeiture was excessive and disproportionate to the harm Estes caused in violation of the Eighth Amendment.
Estes is a commercial fisherman who has operated a commercial crab boat for twenty-one years. During the 2010-2011 Dungeness crab season Estes owned and operated the commercial fishing vessel, JesAn.
As captain, Estes navigates the vessel from the wheelhouse which is located one level up from the deck where the crab are measured on a sorting table by the crew. Although he has installed a camera to communicate with the crew, Estes is unable to personally observe the measurement of the crabs while directing the placement of the crab pots and navigating the vessel. Estes does instruct the crew on the proper measurement of crab and requires each crew member to sign a contract which contains a provision that the crew member is liable for all fines and penalties associated with the taking of undersized crab. The crew members are also provided with gauges to measure the crabs and an experienced crew member supervises the crew.
On the morning of November 23, 2010, Estes and his crew offloaded their crab harvest for the JesAn at Caito Fisheries on Pier 45 in the City and County of San Francisco. Wardens Bryan Patrick and William O’Brien of the California Department of Fish and Game arrived to inspect the JesAn and its crab harvest. Warden Patrick inspected the commercial fishing licenses issued to Estes and his crew, Estes’ Dungeness crab permit and the boat registration for the JesAn, all of which were found to be in order.
Meanwhile, O’Brien made a brief inspection of the crab catch and found some “short” crabs. Section 8278 prohibits the taking of any Dungeness crab less than six and one-quarter inches in breadth, except that no more than one percent of the load of Dungeness crabs may be less than six and one-quarter inches in breadth, but not less than five and three-quarters in breadth. Patrick joined O’Brien to look at the catch and the wardens found an uncommonly high percentage of illegal crabs. Based on these initial findings, Patrick and O’Brien determined that they would need to check the entire load and called in additional wardens to assist in measuring over 40, 000 pounds of crab. Estes was cooperative and assisted the wardens by providing them with the gauges to measure the crabs. Ultimately, the wardens determined that 991 pounds of the total load of 44, 943 pounds, or approximately 2.2 percent of the total load, was undersized. The undersized crabs were returned to the San Francisco Bay. Estes was cited for possession of a load containing more than one percent undersized Dungeness crab. The wardens sold the remaining 43, 952 pounds of legal crabs at market rate as required by Fish and Game Code § 12160. The net total of this sale, in the amount of $75, 962.24, was placed in the Fish and Game Preservation Fund.
In the trial that followed, the parties briefed the court and argued the mental intent required to show a misdemeanor violation of § 8278(a). Relying on the discussion and holding of the California Supreme Court in People v. King (2007) 38 Cal.4th 617, the trial court determined the statute to state a public welfare crime in that its purpose is to protect the health and safety of the public. As such the trial court found the statute to be primarily regulatory in nature, and not one for punishment or correction, and, therefore, strict liability is the appropriate standard. Accordingly, the trial court instructed the jury that the misdemeanor charge of violating Fish and Game Code § 8278(a) is a strict liability crime using CALCRIM instruction 254. On March 15, 2012, the jury returned a verdict of guilty for this charge. Thereafter, on April ...