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Judge Jonathan Lehan sentenced Rye Davis Gilley, 31, to 12 months probation, a $1,315 fine and a prohibition from fishing during his probation term on Monday.
Mendocino County District Attorney Meredith Lintott office's reported that on June 4 a six-man, six-woman jury convicted Gilley of failing to reattach an undersize abalone.
Gilley, a Lake County who works as a millwright in Redwood Valley,
Warden Patrick Freeling testified that at around 7 a.m. May 23, 2009, he was patrolling for abalone violators in the cove adjacent to Greenwood Beach in Elk.
Freeling, who was wearing camouflage, hid in a bush on the bluff and made observations through his binoculars. He first observed Mr. Gilley, 100 yards away, return to the surface holding up two legal-size abalone, according to testimony in the case.
Gilley is then alleged to have emerged holding what the warden determined was an undersize abalone – or one that is less than 7 inches in diameter. Freeling testified that Gilley placed the abalone on top of his dive tube for four minutes. After drifting 30 to 40 feet, he then “palmed” the abalone into the water. Four seconds later he dove into the water, where he stayed for seven seconds.
The abalone regulations require that an undersize abalone be reattached “immediately” to the “same surface” of the rock from which it was detached, Lintott's office reported. Based on his training and experience, the warden believed that it would have been impossible for Gilley to comply with that regulation, so he issued Gilley a citation.
Gilley testified he did not know the abalone was undersize until he measured it upon emerging from the water, and that he then waited to catch his breath before diving down to reattach it. He denied palming it or dropping it into the water.
He claimed in court that he properly reattached the abalone during his dive, which took 10 seconds, by attaching it to the same surface of the same ledge as the one from which he took it.
Prosecutor Tim Stoen argued that Gilley broke the law in two respects – he did not return it “immediately” in light of his good physical condition, and that returning it to the same ledge, given his drifting 30 to 40 feet, did not constitute the same surface of the rock from which it was detached.
Stoen argued that even though the case involved only a single undersize abalone, it was a serious one, for failure to enforce this regulation would be one more “nail in the coffin” of the Mendocino Coast's abalone population.
Defense attorney Mark Kalina argued it was reasonable for Gilley to take four minutes to catch his breath before diving to reattach the abalone, given the extremely rough ocean conditions, including 4 to 6 foot swells. He argued that the continuous ledge constituted, as a matter of reasonable interpretation of the regulations, taking into account ocean conditions, the same “rock” from which the abalone had been detached.
The jury deliberated one hour and 15 minutes before retuning its verdict of guilty.
Judge Lehan gave Gilley the same sentence he would have received if he had pleaded guilty or no contest.
Stoen also prosecuted a case in which an abalone poacher was sentenced late last month to three years in state prison, a lifetime prohibition from fishing and a $20,000 fine.
Judge Richard Henderson meted out that sentenced to Randy L. Appleyard, 26, of Waterford, who pleaded guilty to felony conspiracy to take abalone for commercial purposes, Lintott's office reported.
Appleyard's convicted co-conspirators in the case were Christopher Michael Kern, 27, of Orangevale, and Philip Michael Horch, 27, of Fair Oaks.
Kern previously pleaded guilty to felony conspiracy and was sentenced to three years supervised probation, 270 days county jail, a $20,000 fine and a lifetime fishing prohibition, while Horch – who acted only as a lookout – also previously had offered a plea and received the same sentence as Kern, but with a county jail term of 180 days.
On Aug. 11, 2009, Fish and Game warden Don Powers was on uniform patrol on the north side of Jughandle State Park when, from a hidden position, he observed the three men walking down a trail to the ocean, with Horch behaving as if he were a lookout. Powers contacted Fish and Game Lieutenant Dennis McKiver and Warden Erick Bloom, who also took observation positions.
Between them, the three wardens observed Appleyard and Kern make three trips up from the ocean, the first time carrying dive gear and the second and third times carrying heavy sacks. Each time they deposited the items behind a large bush.
The wardens later apprehended Horch, who had left the area to get his vehicle in order to pick up Appleyard and Kern with the abalone. The wardens then discovered, behind the bush, four blue mesh bags containing a total of 45 abalone, they testified.
Stoen, who charged the case, noted that Appleyard had in 2007 been convicted of an identical felony conspiracy charge, and was on probation for it, which carries with it a term requiring a year in county jail.
Following his sentencing, Appleyard – who was defended by attorney Bert Schlosser – was immediately remanded to the California Department of Corrections to begin his prison term, Lintott's office reported.
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