Monterey County Super. Ct. Nos. 17AP000004, MS34l769A Trial
Judges: Honorable Carrie McIntyre Panetta Honorable Pamela L.
Butler Honorable Andrew G. Liu Honorable Venessa W.Vallarta
Counsel for Plaintiff and Respondent: THE PEOPLE Xavier
Becerra Attorney General Jeffrey M. Laurence Senior Assistant
Attorney General Donna M. Provenzano Supervising Deputy
Attorney General David H. Rose Deputy Attorney General
Counsel for Defendant and Appellant: GERARD ROBERT WETLE E.
Michael Linscheid J. David Nick Law Offices of J. David Nick
ELIA,
J.
A jury
convicted defendant Gerard Robert Wetle of 28 misdemeanor
violations of the Fish and Game Code based on the placement
of commercial crab traps in protected sanctuary waters.
Defendant's commercial fishing license number was
attached to the illegally placed crab traps, which the
prosecutor argued was sufficient to convict him of the strict
liability offenses. Defendant presented evidence that he was
out of the country at the time the traps were placed by a
lessee and argued that he therefore was not liable for their
illegal placement. We conclude that the trial court committed
prejudicial instructional error requiring reversal of
defendant's convictions. The People shall have the option
to retry defendant, as we reject his sufficiency of the
evidence claim.
I.
Background
A. Factual Summary
Commercial
crab traps are metal and weigh about 75 pounds each. Each
crab trap is required to have a destruction device so that
crabs and other trapped wildlife animals can escape if the
trap is lost at sea or abandoned. The destruction device is
simply a piece of treated cotton twine holding the trap's
lid shut. Over time, the twine breaks down in the water; when
the twine breaks, the lid of the trap opens and the crabs can
escape. Fishermen generally place a bait jar inside each trap
to attract crabs. The bait jar is not permitted to be
attached to the lid because if it is, it will prevent the
destruction device from working properly. Each crab trap sits
on the bottom of the ocean and is attached to a buoy that
floats on top of the water so that fishermen can locate and
retrieve the trap. The buoy is required to be marked with a
commercial fishing license number, known as an “L
number.”
Joseph
Ames, a lieutenant with the California Department of Fish and
Wildlife, testified that he and his crew, including Justin
Cisneros, were patrolling Monterey Bay on April 2, 2016.
While on patrol, they saw crab trap buoys in the Soquel
Canyon State Marine Conservation Area, where crab trapping is
prohibited. They pulled 29 crab traps out of the water, each
of which was attached to a buoy bearing defendant's L
number. Ames testified that the L number on a crab trap buoy
signifies the fisherman who is operating and responsible for
the trap. Also attached to each crab trap pulled by
Ames's crew was a buoy tag bearing the Dungeness crab
permit number belonging jointly to defendant's father and
defendant's wife. That Dungeness crab permit number is
associated with a specific fishing vessel-the Pacific
Spirit-which, like the permit, is owned by defendant's
father and defendant's wife. Twenty-five of the pulled
traps were located in the marine conservation area. In three
of the pulled traps, the bait jar was placed in a manner that
prevented the destruction device from operating. The crew
released 214 crabs from the traps.
The
crew put a compliance check card-a business card with a note
to call the Fish and Game warden-in the bar jar of one of the
traps and returned it to the water. Guy Bond called in
response to that card.
Bond is
a commercial fisherman and the skipper of the Pacific Spirit,
the fishing vessel owned by defendant's father and
defendant's wife. Defendant's father testified that
defendant loaned the crab traps to him. Bond and defendant
testified that Bond leased the crab traps from defendant.
Bond
testified that he was operating the Pacific Spirit between
April 1 and 3, 2016 and that he was the one who inadvertently
placed the traps in the marine conservation area. Defendant
was not on the boat at the time. Bond said defendant's L
number was on the crab trap buoys when he received the traps
from defendant and Bond simply left those buoys in place
while he was operating the gear. Bond was not aware of any
requirement that his L number be on the buoys. At trial, Bond
conceded that he had lied and said he was not operating the
vessel during the relevant time period when he called in
response to the compliance check card. Bond testified that he
had lied to protect his commercial fishing license. Bond
admitted to having previously been convicted of three
felonies and five misdemeanors.
Nicholas
Erardi, a fisherman who had worked for defendant for five
years, testified that he and defendant were in Mexico from
early February 2016 until early April 2016 working on
defendant's new fishing boat. They returned to Monterey
in that vessel on April 17, 2016. He recalled the date
because “It was a big deal. It's a new boat.”
Defendant
likewise testified that he was in Mexico with Erardi working
on his new boat between February and early April 2016. He was
not crab fishing in Monterey Bay at that time. Defendant
testified that he received a call from Cisneros about the
illegally placed crab traps in early April while he was on
his new boat. Defendant described Bond as “part of the
family because he runs my father's boat.” And
defendant said that when he and Bond are on the water in
separate boats they work together and communicate about where
the fish are located.
B.
Procedural History
The
Monterey County District Attorney charged defendant with 25
counts of violating California Code of Regulations, title 14,
section 632, subdivision (a)(1)(C), (section 632) and three
counts of violating California Code of Regulations, title 14,
section 180.2, (section 180.2) all ...