[256
Cal.Rptr.3d 649] Monterey County Superior Court, Honorable
Carrie McIntyre Panetta, Honorable Pamela L. Butler,
Honorable Andrew G. Liu, Honorable Venessa W. Vallarta,
Judges (Monterey County Super. Ct. Nos. 17AP000004,
MS34l 769A)
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[Copyrighted Material Omitted]
Page 377
COUNSEL
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, San Francisco, J. David Nick, Law Offices of J.
David Nick, Palm Springs.
OPINION
ELIA,
J.
Page 378
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.
Page 379
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."
[256
Cal.Rptr.3d 650] 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
Page 380
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 [256 Cal.Rptr.3d 651]California Code of
Regulations, title 14, section 180.2, (section 180.2) all ...