PEOPLE v. KRANTZ

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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Brian Jonathan KRANTZ, Defendant and Appellant.

No. B117543.

Decided: September 14, 1998

Jolene Larimore, Carpinteria, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Pamela C. Hamanaka, Supervising Deputy Attorney General, Wendy Chase Arenson, Deputy Attorney General, for Plaintiff and Respondent.

Brian Jonathan Krantz appeals his convictions following a jury trial for injury or destruction of an archeological object (count 1-Pen.Code, § 622 1/2), taking a migratory nongame bird (count 3-Fish & G.Code, § 3513), and obtaining or possessing Native American remains from a grave (count 4-Pub. Resources Code, § 5097.99, subd. (b)).  The jury acquitted appellant of guiding without a license (counts 2 & 6-Fish & G.Code, § 2536), and taking a migratory nongame bird (count 5-Fish & G.Code, § 3513).   He was granted three years probation.

Appellant contends:  he was denied his due process right to have the jury consider the defense of entrapment, the trial court failed to adequately respond to the jury's requests for information, the trial court abused its discretion by denying his motion for new trial, and there is insufficient evidence supporting his count 1 conviction.   We affirm the judgment.

FACTS

At the time of his offenses, appellant was employed as a guide on Santa Cruz Island by Island Adventures, a hunting and camping operation owned by Jaret Owens.   Appellant lived on the island.   He met hunters from the mainland and took their belongings to a campsite located at Smuggler's Ranch.   He cooked meals for the hunters.   He brought the animals the hunters shot back to the campsite, where he butchered the carcasses and prepared them for shipment to the mainland.   Island Adventures paid for appellant's room and board, in addition to $200 for each guide trip he conducted.   He also depended on tips from hunters.

Santa Cruz Island (the island) is one of five channel islands encompassing a national park.   Chumash Native Americans populated the island for 5,000 years.   They left the island about 200 years ago.   The name “Chumash” means makers of shell-bead money.   The Chumash created beads out of shells which they used as money, ornamentation, and sacred objects.

There are a number of visible Chumash village sites on the island.   The graves of the Chumash are usually grouped together in areas outside of, but adjacent to, the village sites.   Visitors to the Channel Islands are provided literature instructing them that all historical features of the Channel Islands are protected, and warning them not to disturb or remove archeological resources.

Besides graves, Chumash artifacts can be found within layers of dirt or sediment called “midden.”   Midden contains the physical remains of the living activities of individuals who resided at a particular location.   Native American midden can be thousands of years old and normally includes pieces of animal bone, shellfish, remains of homes, fire pits, and various artifacts.   Midden is readily recognizable in archeological excavations because of the changes in the dirt due to the presence of the organic material.

Generally, the archeological record of the Channel Islands is in excellent condition, and the layers of midden are intact.   On the island, midden is very noticeable due to its thick concentration of shells and dark-colored soil.

During the relevant incidents herein, the National Park Service owned 75 percent of the island and was a tenant-in-common with Francis Gherini.   Island Adventures conducted its business on Gherini's land pursuant to a lease.   Gherini distributed a portion of the money he earned under the lease to the park service.

Appellant was told by Owens and the federal ranger on the island, Ronald Massengill, not to disturb midden sites and not to dig up human remains.   Appellant was notified that, if he found archeological material, he was to leave it in place and notify the park service.

On March 6, 1995, appellant told ranger Massengill that hunters had found a human skull, and he was worried they would be accused of disturbing a Native American gravesite.   Massengill told appellant he had done the right thing.   Massengill found the skull as appellant directed;  it was located 25 yards away from Midden Site 137, the place where appellant later committed two of his offenses.   Appellant suspected the skull was planted by the National Park Service as part of a sting operation.

In 1994 or 1995, word spread that artifacts were disappearing off the island and that an international market existed for the objects.   Paul Starbard, also a guide for Island Adventures, told the chief ranger of the Channel Islands National Park, Jack Fitzgerald, that Owens had instructed him in 1986 or 1987 that high-paying customers or “high rollers” could collect Native American artifacts as part of their trips to the island.   Based on this information and other incidents regarding archeological resources, Fitzgerald decided that an undercover investigation was required.

Todd Swain and Jeff Sullivan, criminal investigators with the National Park Service, posed as wealthy excursionists seeking a hunting trip from Island Adventures.   Their job was to investigate the possible theft and trafficking of Native American artifacts and human remains from the island.   Swain and Sullivan were instructed to avoid the possibility of entrapment.   They were simply to collect and document evidence for the park service.   Appellant himself was not under investigation.

The investigators made their first excursion to the island with Island Adventures in August 1995.   Nothing of significance occurred during that trip.

Swain and Sullivan again were assigned to conduct an undercover visit to the island in September 1996.   The information at the time indicated that Owens was still involved in illegal activity relating to the taking or destruction of archeological resources.   Again, the investigators were cautioned not to entrap anyone, but to merely observe as alleged wealthy hunters.   Appellant was their guide, as on their earlier trip.

Count 1

One evening, appellant took the investigators on a walk to scout for sheep.   At one point, he showed the men a large boulder with holes in it and explained that the Native Americans had used it for grinding plant matter.   As they walked further, appellant pointed to Midden Site 137 and described the area as an archeological site.   When the men approached a bank at the site, appellant pulled off several tennis-ball-sized clods of soil from the bank.   He broke the pieces apart and explained that the shell material and dark-colored soil were midden.   He then tossed the pieces onto the ground.   Appellant told the investigators that he had found shell beads and arrowheads at that location in the past.   Earlier in the trip, Swain had asked appellant about the history of the shell beads he had noticed at Smuggler's Ranch.   Appellant had replied that “it was a federal offense to collect those, but f_ it.”

The evidence at the trial revealed that taking any portion of midden out of its stratigraphic context may forever ruin the ability of archeologists to reconstruct the way of life of the people who inhabited the area.   Midden Site 137 was part of a Chumash village which was one of the longest in existence.   The site provided a whole history of the village and was an important piece of information on Chumash history.   Breaking off a piece of midden from Site 137 large enough to hold in one's hand could destroy the potential of the site for archeological purposes.   Even a handful of midden can contain valuable evidence not contained within the rest of the archeological site.

Count 3

On another day, after the investigators killed a sheep, they commented on the number of ravens which had gathered on the animal's remains.   Appellant told them they could shoot at the ravens.   He himself shot at the ravens with his rifle.   He said he hated ravens and liked to shoot at them.   The incident was tape-recorded, and the tape was played for the jury.   On another occasion, appellant twice fired his rifle down a canyon at a flock of ravens and commented that he had killed one.   Sullivan photographed appellant as he was shooting.

The evidence at the trial revealed that ravens are commonly found on the island and are protected by law.   The appearance of ravens on the island is extremely rare.   Appellant and Massengill had several conversations about raven behavior.   Appellant told Massengill about his dislike of ravens.   Massengill told him that ravens were protected by law.

Count 4

Further facts show that appellant took the investigators to an area he described as containing human bones or a grave.   This was again in the area of Midden Site 137.   Appellant had offered to show the men human remains on four separate prior occasions.   He led the men to a rock, tilted the rock forward, and pulled out several bones, including a portion of a jaw bone, an arm bone, and part of a skull.   He handed the remains to the investigators.

Appellant dug into the ground and removed more human fragments, including some teeth.   He offered the remains to the investigators as souvenirs.   Swain took some teeth.   Appellant placed the rest of the uncovered bones into the hole he had dug, put rocks and dirt in front of the hole, jumped up and down on the spot, and scattered brush over the area.

This incident also was tape-recorded, and the tape was played for the jury.   Appellant stated on the tape that the bones he showed the investigators were human and that the teeth were “typical Indian teeth.”   He further stated that he thought the whole body was there, and that some day when the ranger was gone he was going to come back and bring a trowel.   He said the area could be a burial ground and there could be “body after body.”   He told the investigators not to tell Owens about the incident, stating that Owens would “s_ [in] his pants if he knew.”   Appellant also said he was “probably f_ up Cro-Magnon Man or something like that.”

The evidence at the trial revealed that experts for the prosecution visited the site where appellant had picked up the bones.   The experts observed that the site had been disturbed, but not by an archeologist.   Part of the soil was loose, muddy and broken into little chunks, and there were a large number of insects.

It was not unusual for Chumash burial grounds to be in a low-lying area near a water course.   Bodies were not buried deeply into the ground because the Chumash did not have metal tools.   The location from which appellant dug up the remains for the investigators was unquestionably a Chumash burial site.   The large number of bones found in that location, including the arm bones and the mandible, were located where one would expect to find Chumash remains in a place of primary interment.   The human teeth appellant gave to Swain showed exposure down to the dentin, the layer underneath the tooth enamel.   The Chumash living on the Channel Islands ate roots, fibers, shellfish and other abrasive material which ground down their teeth.

Prosecution experts removed three pieces of jaw, an arm bone, and part of a skull from the spot dug up by appellant.   The surrounding soil in which the bones were situated was very hard and compacted, which also indicated the site was a grave.   Radiocarbon testing of the bones determined they were approximately 1,800 years old.   The three pieces of jaw were pieced together with the jaw fragment appellant had dug up for the investigators, and were found to comprise a complete lower jaw of one individual.

The experts also determined that the remains located at the site were not left in that location through erosion or other natural forces.   That the pieces of jaw and the teeth were found together was consistent with the bones arriving there through burial and not water erosion.   With water erosion, different parts of the skeleton would be distributed over a long distance due to the differing weights and densities of the various bone fragments.   Furthermore, bones transported by water become rounded and retain alterations along their edges, features which the bones at the site did not exhibit.   In addition, there was no secondary soil present with the bones, which would have been washed down along with the bones in the event of water erosion.

Defense

The sole defense theory presented at the trial was that appellant did not believe when he committed the crimes that he was violating any law.

Midden Site 137 was located on Gherini's land.   He used the land as an operational ranch, primarily for sheep and cattle grazing.   Gherini did not protect the site, and his animals were not prevented from grazing there.   Agricultural machinery also was used near Midden Site 137.   There also was oil exploration at the Gherini ranch in the past, and oil companies used bulldozers and earth grading equipment, at times turning up human remains.   Vehicle traffic also turned up Native American artifacts.   There were frequent storms on the eastern end of the island where Midden Site 137 was located, and the creek bed near the site flooded when it rained.

Appellant testified that Swain told him he was decorating his house with Native American artifacts.   Swain implied he would pay appellant for artifacts.   However, appellant did not think the investigators had a great deal of money.   But, since they were friends of Owens and appeared to be very interested in artifacts, appellant took them to Midden Site 137.   The bank where he took out some soil had shifted often in the past because of erosion, and the entire area flooded every year.   Appellant removed only a cupful of dirt from which small shell pieces crumbled off.   He did not know the area was designated by a midden site number.

Once during the trip, when appellant was taking the investigators to scout for sheep, Swain found a Native American donut stone on the trail.   Appellant was surprised;  the stone was an exceptionally beautiful one, and he had just walked over the same place and had not seen it.   Appellant testified that Swain asked him over and over if he could have it, but appellant told him no.   Appellant testified he later put the stone back near the place where Swain had picked it up.

Because of the investigators' interest in artifacts, appellant also took them to the place where he had earlier found some bones.   Appellant believed the bones were from a pig, and did not believe the area was an undisturbed Native American burial site.   He told the investigators the remains were human only to impress them and give them a good time, as Owens would have done.   Swain asked appellant if he could take one of the bones.   Appellant told him removing things from the island was illegal.   He believed Swain, nonetheless, took a piece of jaw with teeth in it.

Appellant testified he shot at ravens once in a while because they attacked baby lambs and pigs.   He did not kill any ravens while he was with the investigators.   He may have been aiming at a wounded sheep when he was photographed by Sullivan.

Consistent with appellant's testimony, defense counsel theorized during his closing argument that the prosecution had not proved appellant had violated the law.   Counsel belittled the “Mickey Mouse” charges against appellant.   He characterized count 1 as a ridiculous charge, commenting, “Picking up a handful of dirt is destruction of an archeological site?   Give me a break.”   Counsel condemned the amount of time spent by the prosecution on count 3, remarking, “I mean, for crying out loud, we need the U.S. government to prosecute people for shooting at ravens?”

Defense counsel focused his arguments on count 4. He stated the prosecution had not established that the bones appellant found were from a gravesite, or even that the bones were Native American.   Counsel further argued that appellant had not taken any remains himself, and that “[i]t's not against the law to show somebody Native American remains or even to touch them or pick them up.”

DISCUSSION

Entrapment

Appellant first contends the trial court prejudicially denied defense counsel's request for jury instructions on the defense of entrapment.

 In a criminal case, a trial court has the duty to instruct the jury on the general principles of law relevant to the issues raised by the evidence.  (People v. Estrada (1995) 11 Cal.4th 568, 574, 46 Cal.Rptr.2d 586, 904 P.2d 1197.)   The trial court is under no duty to give a requested instruction when there is no substantial evidence to support it.   (People v. Hendricks (1988) 44 Cal.3d 635, 643, 244 Cal.Rptr. 181, 749 P.2d 836.)   This rule applies to defense theories.   Although defendant has the right to an instruction that pinpoints the theory of his defense, the trial court is not required to instruct on a defense unless (1) defendant appears to rely on such defense, or (2) there is substantial evidence supportive of such defense which is not inconsistent with defendant's theory.  (People v. Mincey (1992) 2 Cal.4th 408, 437, 6 Cal.Rptr.2d 822, 827 P.2d 388;  People v. Sedeno (1974) 10 Cal.3d 703, 716, 112 Cal.Rptr. 1, 518 P.2d 913.)

Here, appellant did not rely on the defense of entrapment, nor did defense counsel specifically argue such theory before the jury.   Hence, the issues are whether there is substantial evidence supportive of an entrapment theory, and whether such a theory is consistent with appellant's offered defense.   (People v. Sedeno, supra, 10 Cal.3d at p. 716, 112 Cal.Rptr. 1, 518 P.2d 913.)

 The proper test for entrapment in California is whether the conduct of the law enforcement official was likely to induce a normally law-abiding person to commit the offense.  (People v. Barraza (1979) 23 Cal.3d 675, 689-690, 153 Cal.Rptr. 459, 591 P.2d 947.)   It is presumed that such a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully.   Official conduct that does no more than offer that opportunity-for example, a decoy program-is permissible.   Overbearing conduct, such as badgering, cajoling, or other affirmative acts likely to induce a normally law-abiding person to commit the crime, is not permissible.  (Id., at p. 690, 153 Cal.Rptr. 459, 591 P.2d 947.)

 The sole evidence of entrapment in the instant record is appellant's testimony that the investigators put him under constant pressure to violate the law, by continually expressing their interest in viewing and possessing Native American artifacts;  and that they represented to him they were high-rolling friends of Owens, which took advantage of appellant's natural desire as Owens' employee to please them.

 An entrapment defense is not inconsistent with appellant's theory offered at the trial that he did not believe he was doing anything illegal.   It would not have subverted his defense theory to also argue that the law enforcement conduct directed at him constituted entrapment.  (People v. Barraza, supra, 23 Cal.3d at pp. 690-691, 153 Cal.Rptr. 459, 591 P.2d 947.)   A defendant need not admit his guilt in order to raise the issue of entrapment.  (Id., at p. 691, 153 Cal.Rptr. 459, 591 P.2d 947.)

Nevertheless, did appellant's testimony constitute substantial evidence of an entrapment theory?   No.

 “Substantial evidence,” in the context of determining whether certain evidence warranted a requested instruction, is defined as evidence which was sufficient to deserve consideration by the jury, that is, evidence from which a reasonable jury could have concluded that the particular facts underlying the instruction did exist.  (People v. Lemus (1988) 203 Cal.App.3d 470, 477, 249 Cal.Rptr. 897.)   Defendant's testimony alone may constitute substantial evidence to warrant a requested instruction.  (Ibid.;  People v. Sullivan (1989) 215 Cal.App.3d 1446, 1450, 264 Cal.Rptr. 284.)

Here, the jury could not have concluded from appellant's testimony that facts existed which permitted it to reasonably conclude he was entrapped.   His testimony did no more than point out that a decoy program was utilized (the investigators were presented as Owens' friends), and that the decoy program provided him with the mere opportunity to commit crime (the investigators continually expressed their interest in viewing and possessing Native American artifacts).   Appellant did not corroborate his opinion of the investigators' conduct with any affirmative acts committed by them, from which the jury could have concluded that they acted impermissibly.

The only evidence in the record hinting at any affirmative conduct by law enforcement officials is the skull and the donut stone episodes.   These episodes do not reasonably tend to establish entrapment.   Appellant implied on the witness stand that the skull and the stone were “planted” to ensnare him.   However, the skull incident occurred prior to the instant investigation and is therefore irrelevant.   As appellant's testimony reveals, he did not pick up the donut stone, and he refused to let Swain take it off the island.   This leads to the reasonable inference that appellant had the ability to say no to the investigators' alleged requests for artifacts.   In addition, no criminal charges against appellant resulted from the stone incident.

In view of the insufficient evidence supporting an entrapment theory, the trial court properly refused to instruct the jury on an entrapment defense.   We further hold the trial court did not err by instructing the jury, in response to their request during deliberations for the “[d]efinition of entrapment and its relevance to the case,” that “[t]he legal defense of entrapment is not involved in this case.   It should not be considered by you in your deliberations.”   Nor did the trial court err by denying appellant's new trial motion on the ground he was denied a fair trial by the court's refusal to instruct on entrapment.

Jury's Additional Request

 Appellant next contends the trial court erred in answering the jury's second request for information during deliberations for a “further definition of the word [']obtain['].”  The judge responded:  “The word ‘obtain’ is a commonly used word in the [E]nglish language.   It has no special meaning in the instructions which have been given to you.”

The jury was instructed:  “Defendant is accused in Count 4 of having violated section 5097.99 [subdivision (b) ] of the Public Resources Code, a felony.  [¶] Every person who knowingly or willfully obtains or possesses Native American human remains which are taken from a Native American grave after January 1, 1988 is guilty of a felony.  [¶] In order to prove this crime, each of the following elements must be proved:  [¶] 1. A person knowingly or willfully obtained or possessed Native American human remains;  [¶] 2. The remains were taken from a Native American grave after January 1, 1988.[¶]  A ‘grave’ is an excavation in the earth for use as a place of burial or a place of interment.  [¶] ‘Native American’ includes all Indians of the western hemisphere.”

Appellant argues the word “obtain” in the instruction is ambiguous, and therefore confused the jurors.   He also claims that, if he merely handled the remains without the intent to possess them, he is not criminally liable.   Not so.

 Appellant did not request the instruction to be amplified or clarified by including a definition of the word “obtain.”   A trial court is not required sua sponte to give an instruction defining a particular word or phrase used in a statute, if the word or phrase is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law.  (People v. Estrada, supra, 11 Cal.4th at p. 574, 46 Cal.Rptr.2d 586, 904 P.2d 1197.)

We agree with the trial court that the word “obtain” has no peculiar legal meaning.   It therefore required no sua sponte definition by the trial court.

Nor, under the instruction, did appellant need to possess the remains in order to have violated the statute.   As stated in the instruction, the statute uses the disjunctive word “or.”   Hence, appellant could be guilty either by obtaining or possessing the Chumash remains.

The jurors were provided with a legal definition of the term “possession” (CALJIC No. 1.24 (6th ed.1996 bound vol.)), and thus were given a legal definition with which to compare with the non-legal, disjunctive word “obtain.”   The dictionary defines “obtain” as to get, acquire, procure, attain or reach, or to take hold of.  (Webster's College Dict. (1992) p. 935.)

The evidence reveals that appellant dug up, acquired, took out, and got hold of human remains.   With or without his intention to possess the remains, his conduct was violative of the statute as defined by the instruction.

Substantial Evidence

 Appellant finally contends there is insufficient evidence to support his count 1 conviction, injury or destruction of an archeological object.   (Pen.Code, § 622 1/2.)   He claims it cannot be determined from the record that the dirt he picked up was a piece of midden.   He states Midden Site 137 had the appearance of a natural gully or creek bed, through which rains would flow and material from the banks would be washed out to sea.   He points out that the site also was subject to human and animal movements from ranching, and was not roped off or protected as an archeological site.

Appellant further argues that criminal sanctions should not be imposed for his “de minimis” conduct.

Penal Code section 622 1/2 provides that “[e]very person, not the owner thereof, who wilfully injures, disfigures, defaces, or destroys any object or thing of archeological or historical interest or value, whether situated on private lands or within any public park or place, is guilty of a misdemeanor.”

Here, appellant merely presents evidence which might be reconciled with a contrary finding.   It is the jury, not the appellate court, which must be convinced of defendant's guilt beyond a reasonable doubt.  (People v. Stanley (1995) 10 Cal.4th 764, 792-793, 42 Cal.Rptr.2d 543, 897 P.2d 481.)   There is substantial, indeed overwhelming, evidence in the record that appellant violated the statute.  (Id., at p. 792, 42 Cal.Rptr.2d 543, 897 P.2d 481.)

Appellant was not an inexperienced guide.   He lived on the island and was familiar with its history and its terrain.   He knew what midden looked like, and he knew the whereabouts of Midden Site 137 and its archeological significance.   He bragged to the investigators about his knowledge of Chumash artifacts, and even admitted he previously had taken artifacts from the site.   He voluntarily and willfully took a piece of midden from the ground, containing shells and dark-colored soil typical of Chumash midden, to show the investigators.   He indicated his disrespect for the law protecting the artifacts.

Whether his conduct was worthy of criminal sanctions or not is a matter which has already been decided by the Legislature.

The judgment is affirmed.

STEVEN J. STONE, Presiding Justice.

GILBERT and COFFEE, JJ., concur.

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