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Practicality and principle clashed last week in Sonoma County Superior Court, and practicality appeared the winner in a case involving one of the largest abalone poaching operations in state history. Superior Court Judge Raymond Giordano and defense attorney Geoffrey Dunham arrived at a deal sparing the operation's mastermind, Van Howard Johnson, state prison time. While the deal is likely to save money for Sonoma County, it left many dissatisfied.
According to Konstantine Karpov, Fish & Game resource manger for the northern and central California coast, as much as 13% of a year's legal take for the Sonoma coast may have been removed by the poaching operation. Poachers used scuba gear supplied by Johnson, a fish buyer from San Diego, as well as scanners, to avoid detection by Fish & Game wardens. Scuba gear allows divers to take abalone in deeper waters. It is illegal to use when diving for abalone.
Refuges, said Karpov, are essential to preserving abalone resources in the northern California waters, and by using scuba gear those refuges are violated.
The refuges, built up over many years, appear to be responsible for replacement of the resource, said Karpov. Comparing the situation to banking, he said what legal divers harvest is the "interest," but when divers go into the refuges they are taking from the principal. "They are impacting the deep water stock," he said, calling it a "shame."
"When you break this thing," said Karpov, "it isn't going to fix itself."
With the resource intact, he said it is possible to harvest 2 or more million abalone per year on a sustainable basis.
Geoffrey Dunham, the attorney for Johnson, said violation of refuges were never discussed when he struck a deal with Giordana. But he said the judge used "common sense" in the plea bargaining.
The prosecutor in the case had asked for state prison time for Johnson. "But if you do that," argued Dunham, "in a year he's done, and the chance of recovering anything is essentially lost." Two years of prison time was what the prosecution was asking, but according to Dunham, Johnson would probably have served one year only. Johnson has no previous criminal record.
Giordano refused to comment on the case, but Dunham said the reason for the favorable ruling for his client was this: The case involved 9 defendants with court-appointed lawyers, and it appeared that it would be a 2-month trial. "Figure the cost on that," said Dunham, "and you might very well reach $150,000 out of the county pot."
If all were convicted and all went to prison, he said, then there were would be no recovery and a big bill to the county.
The alternative in the case of Johnson was this, he said: "If my client winds up with a year in the county (jail), he does essentially the same time he'd have done otherwise, but he's also in a situation where he's going to be called upon to pay a whopping amount of restitution through the abalone fund."
Dunham said he considered $12,000 a whopping fine. For some that does not seem large considering the amount of money that was made in the poaching operation. The amount has been quoted as high as $2.4 million but is probably lower--in the hundreds of thousands of dollars--according to Dave Bezzone, the Fish & Game warden who is credited with uncovering the operation.
Dunham did not name a figure but called the $2.4 million amount "fantastic."
He agreed the case was one of the worst in recent times, but said he did not feel it should be turned into an example. "The judge has to start weighing: 'Am I gonna set a more serious example--am I somehow going to keep other people from this activity--by seeing that the guy gets 18 months instead of 12 months?'" The answer to that is no, according to Dunham. "It's just not cost-effective," he said.
The maximum sentence for poaching is 3 years in state prison. The way for the public to stop abalone poaching, he said, is for state law to set higher penalties for the offense.
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