People v. Wetle

• Decision Date: 13 December 2019
• Docket Number: H046762
• Citation: 256 Cal.Rptr.3d 646,43 Cal.App.5th 375
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gerard Robert WETLE, Defendant and Appellant.

43 Cal.App.5th 375

256 Cal.Rptr.3d 646

The PEOPLE, Plaintiff and Respondent,

v.Gerard Robert WETLE, Defendant and Appellant.

H046762

Court of Appeal, Sixth District, California.

Filed December 13, 2019

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.

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 of which are misdemeanors under Fish and Game Code (section 12000, subdivision (a) ).

A four-day jury trial took place in November 2016. The prosecutor argued in her closing argument that defendant was guilty because his L number was on the illegally placed crab traps. She argued that whether defendant had leased the traps to Bond was irrelevant, as was whether he was on the boat. Her theory was that "they're his. They're his responsibility." The jury found defendant guilty on all counts.

Defendant filed an unsuccessful motion for a new trial. Thereafter, on February 8, 2017, the court suspended imposition of sentence and placed defendant on probation for three years. The court ordered defendant to serve 40 days in county jail as a condition of his probation and ordered him to pay a fine of $4,100 in addition to other fines and fees.

Defendant timely appealed. In an opinion filed on February 15, 2019, the appellate division of the Monterey County Superior Court affirmed. Defendant filed a petition in this court requesting to have the case transferred here. This Court granted that petition to transfer on April 22, 2019.

II. DISCUSSION

The thrust of defendant's arguments on appeal is that the People failed to show, and the jury was permitted to convict without finding, that his conduct violated the law. The Attorney General contends that even if Bond, not defendant, placed the crab traps in the state marine conservation area (in some cases, without operable destruction devices), defendant can be held criminally liable for Bond's acts because the regulations at issue are strict liability offenses, defendant knew Bond was going to fish with the traps, and defendant stood to profit from Bond's use of the traps. In essence, the Attorney General argues for vicarious liability. But he articulates no legal basis for imposing vicarious liability on defendant.

We agree with defendant that his convictions cannot stand. As discussed below, the trial court failed to instruct the jury on all the elements of the offenses and that error was not harmless. Accordingly, we reverse. However, because we reject defendant's sufficiency-of-the-evidence argument, the People have the option to retry him.

A. Failure to Instruct on Elements of the Offenses

1. Legal Principles

" ‘All criminal defendants have the right to "a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." ’ [Citation.]" ( People v. Rivera (2019) 7 Cal.5th 306, 333, 247 Cal.Rptr.3d 363, 441 P.3d 359.) Accordingly, " ‘[t]he trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense[s].’ [Citation.]" ( Id. at p. 332, 247 Cal.Rptr.3d 363, 441 P.3d 359.) "Failure to do so is a ‘very serious constitutional error because it threatens the right to a jury trial that both the United States and California Constitutions guarantee. [Citations.]’ " ( Id. at pp. 332-333, 247 Cal.Rptr.3d 363, 441 P.3d 359.) Error in failing to instruct on all the elements of an offense "is reversible unless ‘it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error.’ [Citation.]" ( Id. at p. 333, 247 Cal.Rptr.3d 363, 441 P.3d 359.)

"We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. [Citation.] Review of the adequacy of instructions is based on whether the trial court ‘fully and fairly instructed on the applicable law.’ [Citation.] " ‘In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole ... [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.’ [Citation.]" [Citation.] ‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible [of] such interpretation.’ [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th...