Filed 8/21/13




                                CERTIFIED FOR PUBLICATION
                            SUPERIOR COURT OF CALIFORNIA

                                COUNTY OF SAN FRANCISCO

                                    APPELLATE DIVISION


THE PEOPLE OF THE STATE OF                        ) Appellate No. APP-12-007357
CALIFORNIA,                                       )
                                                  ) Court No. 11031999
        Plaintiff/Respondent,                     )
                                                  ) FINAL JUDGMENT ON APPEAL
        vs.                                       )
                                                  )
TIM LEE ESTES,                                    )
                                                  )
        Defendant/Appellant.                      )
                                                  )


        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.

                                        INTRODUCTION

        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


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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.

                                   FACTUAL BACKGROUND

       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




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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.1 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



1
  Fish and Game Code § 8278 reads in its entirety: “(a) Except as otherwise provided, no Dungeness crab less than
six and one-quarter (6 ¼) inches in breadth, and no female Dungeness crab, may be taken, possessed, bought, or
sold, except that not more than 1 percent in number of any load or lot of Dungeness crabs may be less than six and
one-quarter (6 ¼) inches in breadth but not less than five and three-quarters (5 ¾) inches in breadth.
(b) Dungeness crab shall be measured by the shortest distance through the body from edge of shell to edge of shell
directly from front of points (lateral spines).”


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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 20, 2012, the trial judge sentenced Estes to a suspended sentence of three years

unsupervised probation, a fine in the amount of $1,000, plus the mandatory fines, fees and

penalties, and also forfeiture of $47,000.2

                                                  DISCUSSION

         A.       Strict Liability

         The language of Fish and Game Code § 8278 does not indicate what culpable mental

state the statute requires. However, as the California Supreme Court in People v. King, supra, 38

Cal.4th at 623, noted the fact that no mental state is specifically mentioned does not mean that

the legislature did not intend to require one. Citing In re Jorge M. (2000) 23 Cal.4th 866, 872,

the court notes that “[a]s a general rule, no crime is committed unless there is a union of act and


2
 Estes’ profit for the trip was approximately $48,000; thus, the $47,000 forfeiture effectively took Estes’ entire
profit.


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either wrongful intent or criminal negligence.” (King (2007) 38 Cal.4th at 623.)

Notwithstanding this general rule, certain crimes, which are purely regulatory in nature, do not

require any proof of criminal intent for a violation. (Id.) Rather, one may be strictly liable upon

the mere proof that a violation occurred and the person was the one responsible for the violation.

Such crimes are denominated “public welfare offenses” in that they are purely regulatory in

nature and seek to protect the health and safety of the public. (Id.) In the words of the California

Supreme Court,


        [Public welfare] offenses usually involve light penalties and no moral obloquy or damage
        to reputation. Although criminal sanctions are relied upon, the primary purpose of the
        statutes is regulation rather than punishment or correction. The offenses are not crimes in
        the orthodox sense, and wrongful intent is not required in the interest of enforcement.

(Id., citing People v. Coria (1999) 21 Cal.4th 868, 877.)


        Public welfare offenses have been roughly classified to include violations of general

police regulations, passed for the safety, health or well-being of the community. (1 Witkin,

CALIFORNIA CRIMINAL LAW 4th (2012) Elements, § 18, p. 287, citing Morissette v. United States

(1952) 342 U.S. 246.) The penalties imposed for violations of the offense are an indication of

legislative intent: if the penalties prescribed are light, misdemeanor penalties, strict liability is

more likely. (People v. Casey (1995) 41 Cal.App.4th Supp. 1, 6-7.)


        Based on these considerations, the trial court properly determined that § 8278 constitutes

a public welfare offense and that strict liability applies. First, the purpose of the statute appears

to be primarily regulatory. As the People point out, the Legislature included statements in

support of this finding in the statutory scheme:




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       The Legislature finds and declares that the Dungeness crab fishery is important to the
       state because it provides a valuable food product, employment for those persons engaged
       in the fishery, and economic benefits to the coastal communities of the state

(Fish & G. Code § 8280(a); see also In re Makings (1926) 78 Cal.App. 58, 61 [interpreting in

dicta an earlier version of § 8278 as follows: “The statute expressly prohibits certain acts and by

implication grants…limited rights to take certain crabs in certain waters. Theretofore the

ownership was in the people of the state”].) This express intent behind the statutory scheme

related to the Dungeness fishery indicates that the scheme is designed to regulate and protect the

fishery and its economic benefits to the state, rather than to punish violators. Though, as Estes

claims, the statute does not concern issues endangering public safety, the breadth of the case law

defining public welfare offenses indicates that public welfare offenses are not so limited in

definition.

       In addition, as a regulatory crime, there appears to be little risk to Estes’ reputation from

his conviction. There is no evidence in the record that his fishing business has been unduly

prejudiced since his conviction, nor is there indication that he has incurred other “reputational”

penalties, such as losing his fishing license or being unable to sell his subsequent catch.

       The statutory penalty for violating § 8278 also weighs in favor of applying strict liability.

A violation is punishable as a misdemeanor, subject to a maximum fine of $1,000 and a

maximum jail term of six months. (Fish & G. Code §§ 12000 and 12002.)

       Finally, another factor also weighs in favor of applying strict liability to Estes’ offense.

In considering the issue, the California Supreme Court has assessed the difficulty prosecutors

would have in proving a mental state for the crime—“The greater the difficulty, the more likely

it is that the legislature intended to relieve the prosecution of that burden so that the law could be

effectively enforced.” (In re Jorge M. (2000) 23 Cal.4th 866, 873, citing 1 LaFave & Scott,

SUBSTANTIVE CRIMINAL LAW (1986) § 3.8(a), pp. 342-344.) Here, the People persuasively argue


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that it would be exceedingly difficult for the prosecution to prove that a defendant accused of

violating § 8278 had the requisite mens rea. In situations like the Dungeness fishery, we agree

with the People that “there would be little or no incentive for the crews to exercise any diligence

in sorting through their catch” were a culpable mental state required. Instead, fishing crews

would have an incentive toward ignorance: crew members would be wise not to measure the

crabs at all and a shrewd captain would never leave his or her wheelhouse to ensure that crabs

were not undersized. Indeed, it is the crew members, including captains like Estes, who are in

the best position to ascertain the true facts prior to inspection, for they have the only access to

their catch prior to docking. As described in Jorge M., these two factors favor lightening the

burden on the prosecution and assigning fault to Estes for not knowing of his violation. Strict

liability is the only means by which the intent of this law can be effectively implemented.


       The trial court did not err in determining § 8278(a) to be a strict liability statute.


       B.      Excessive Forfeiture

       While we hold that the trial court correctly applied strict liability to Estes’ offense, we

find incongruous with strict liability the court’s sentencing order requiring Estes to forfeit

$47,000 in proceeds from his legal Dungeness catch.

       The question of whether a fine is constitutionally excessive is subject to de novo review,

whereby the reviewing court must compare the amount of the forfeiture to the gravity of the

defendant's offense. (U.S. v. Bajakajian (1998) 524 U.S. 321, 336-37.) The Eighth Amendment

of the U.S. Constitution and Art. I, § 17 of the California Constitution both prohibit imposition of

“excessive fines.” (3 Witkin, CALIFORNIA CRIMINAL LAW 4th (2012) Punishment, § 193, p.

326.) Forfeitures (payments in kind) are “fines” if they constitute punishment for an offense,

even if they serve some other remedial purpose. (Bajakajian (1998) 524 U.S. at 328.)


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       A forfeiture constitutes an unconstitutional fine in violation of the Eighth Amendment if

the amount of the forfeiture is grossly disproportionate to the gravity of the defendant’s offense.

(Bajakajian (1998) 524 U.S. at 336-7.) In determining whether or not a forfeiture is grossly

disproportionate, the court may look to four factors: (1) the nature and extent of the crime, (2)

whether the violation was related to other illegal activities, (3) the other penalties that may be

imposed for the violation, and (4) the extent of the harm caused. (Id. at 337-340.)

       In the case before this Court, it is clear that the trial court had statutory authority to order

the forfeiture as part of the punishment. (Fish and G. Code §§ 12159 and 12160.) The

mandatory language of the statutes is such that the legislative intent is unambiguous that the

forfeiture constitutes punishment to violators. Although the statutory scheme has a remedial

component (the proceeds from the forfeiture are deposited with, and presumably benefit, the Fish

and Game Preservation Fund), the forfeiture is clearly punishment under both the federal and

California constitutions.

       We consider the facts of this case in light of the four factors enunciated in Bajakajian.

The violation involved a single catch with short crabs constituting 2.2% of the total catch. This

is only 1.2% above the amount of short crabs permitted by law. Estes was engaged in a legal

activity with a valid commercial fishing license. The evidence is that Estes has owned his own

boat for twenty-one years and that he takes care to avoid having short crabs in his catch: he

instructs his crew on the law, provides them with gauges to measure the crab, has them sign a

contract making the crew member liable for taking in short crabs, and periodically checks with

the crew for compliance consistent with safe piloting of the boat. The particular harm caused in

this case was minimal: the short crabs were returned to the waters. Further, a legal basis and

justification for finding the violation of Fish and Game Code § 8278(a) to be a strict liability




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offense, obviating the prosecution to prove mens rea, is that the penalty for violation is minimal.

(In re Jorge M. (2000) 23 Cal.4th at 872-3.) The forfeiture of $47,000 constituting nearly two-

thirds of the value of the entire load of crab is inconsistent with the legal justification for the

elimination of wrongful intent as an element of the crime.

        We, therefore, conclude that in this case, as in Bajakajian, there is a disproportionate

difference between the amount of the forfeiture and the maximum fine: while Estes was subject

to a maximum fine of only $1,000, the court’s order required him to forfeit an amount forty-

seven times that.


        In ordering the forfeiture, the trial court noted, among other factors, that Estes had

expressed no remorse for his unlawful conduct. The court explained, “then I thought about, well,

if there were remorse expressed in this case or full acceptance of responsibility, maybe I would

[require forfeiture of a lesser amount].” Where no proof of a culpable mental state is required,

however, evidence of neither remorse nor contrition nor any other mental state is appropriate in

imposing punishment.


        We recognize that there is no precise formula for setting the amount of the forfeiture.

The amount is one of proportion. Upon remand the trial court should be guided by the four

Bajakajian factors as explained hereinabove, and the trial court is directed to modify the amount

of the forfeiture accordingly.




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                                        CONCLUSION

       For the foregoing reasons, we affirm Estes’ conviction, but remand the matter to the

lower court for resentencing consistent with this opinion.


       IT IS SO ORDERED.


                                         Charlene Padovani Kiesselbach, Acting Presiding Judge


We Concur:


Bruce E. Chan, Associate Judge

Anne-Christine Massullo, Associate Judge




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Trial Judge: Honorable Andrew Y.S. Cheng

Counsel on Appeal:

E. Michael Linscheid, Esq., for Appellant.

George Gascón, District Attorney, and Lisa M. Culbertson, Assistant District Attorney, for
Respondent.


.




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