P. v. Medeiros

Filed 8/1/07 P. v. Medeiros CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Thomas Patrick Medeiros appeals from a judgment of conviction entered after the trial court found him guilty of two felony counts of discharging a pollutant into a publicly owned treatment works (counts 1 and 2 Wat. Code, 13387, subds. (a)(4), (a)(5)), one count of misdemeanor unlawful discharge of commercial quantities of materials into a public sewer (count 4 Pen. Code, 374.2, subd. (a)), and one count of misdemeanor water pollution (count 5 Fish & G. Code, 5650, subd. (a)(6)).[1] The trial court reduced the two felony counts to misdemeanors, suspended imposition of sentence, and placed defendant on probation for three years. We conclude that there was insufficient evidence to support his convictions, and we therefore reverse the judgment.

I. Statement of Facts

A. Prosecution Case

The Palo Alto Hills Golf and Country Club (Club), which has a restaurant, is located on the top of a hill on Alexis Drive. Alexis Drive becomes Page Mill Road at the bottom of the hill. Page Mill Road is level and runs perpendicular to Matadero Creek.

The Club contracted with A-1 Septic Tank Services, Inc. (A-1), a waste hauling business, to clean out its grease interceptor, hydrojet the lines to and from the grease interceptor, and haul away the grease for disposal. The work was to be performed on December 3, 2001. The grease interceptor, which had a 3,000-gallon capacity, was installed on June 4, 1998. Between the time of its installation and December 3, 2001, no one had cleaned the grease interceptor.

A grease interceptor is a device that removes grease from wastewater before it enters the sewer system. It is a multi-chambered underground vault with manholes that allow inspection of its contents. The first chamber is the grease chamber where the grease is separated through gravity from wastewater. Grease floats to the top of the water in the chamber, while sludge sinks to the bottom. The partially clarified wastewater is then directed through a standpipe to the second chamber. After additional clarification in the second chamber, the wastewater is directed to an access port called a cleanout on the lateral pipeline. After any remaining obstructions are removed in the cleanout, the wastewater flows into the sewer lines. The 450-foot lateral pipeline from the Clubs grease interceptor meets the main sewer line at manhole No. 101-2-2. The grease that remains in the grease interceptor is a pollutant that must then be vacuumed out and transported to a wastewater treatment plant for disposal.

A-1 has five 3,000-gallon-capacity pump trucks. These trucks have a pump that can either suck in or blow out waste material from their tanks. Only one of these functions can operate at a given time. A-1 also has a van with a 400-gallon water tank. This water tank has a hydrojetter hose, which is used to clean underground pipe lines.

Defendant, Mark Hetrick, Jr., and Richard Murillo were A-1 employees. Sometime after 9:00 a.m. on December 3, 2001, defendant, Hetrick, and Murillo arrived at the Club to clean the grease interceptor. Murillo was driving the pump truck, while defendant and Hetrick were in the van.

As the pump truck driver, Murillos duties included operating the pump truck and vacuuming out the grease interceptor. When the grease has formed a solid mass, as in the present case, it cannot be vacuumed into the truck. In that situation, the driver breaks up the grease with a pole and adds water until the grease can be vacuumed. The process of vacuuming the grease into the tank of the pump truck turns the grease into slurry with the consistency of cake or cookie batter.

Defendant was the jetter. The jetter operates the hydrojetter hose, which is a high pressure hose that is used to clean the underground pipe lines. The hydrojetter hose is attached to the water tank in the van. According to Adrian Salinas, a former A-1 employee, both the driver and the jetter are in charge. While the driver is responsible for cleaning out the tank of the grease interceptor, the jetter is responsible for determining whether the driver needs assistance. Thus, the jetter sometimes assists the driver when he breaks up the contents of the grease interceptor. However, the jetter does not operate the pump truck, vacuum up the contents of the grease interceptor, or take control of the waste removed from the grease interceptor.

Hetrick was the jetters helper. He entered the underground grease interceptor, and cleaned it and the adjoining pipes. While the jetters helper was breaking the grease off the walls of the grease interceptor with a shovel and vacuum hose, the driver was in control of the trucks vacuum shut off, and the jetter monitored the jetters helper. Once the jetters helper completed his work, the jetter would use the hydrojetter to clean out the grease interceptor lines.

After the job was finished, the driver usually took the grease to the A-1 yard in Hayward. The driver, or occasionally the jetter, would also fill out a logbook at the A-1 office and list the amount of gallons retrieved and the disposal site for the waste. It would take about four hours to clean a 3,000-gallon grease interceptor that had not been properly maintained. It would take about 15 minutes to empty a pump truck that held 3,000 gallons of grease.

At about 11:30 a.m. on December 3, 2001, Jackey Wilson, an employee of the Waste Water Department for the City of Palo Alto (City), and his partner Eric Talley were dispatched to the intersection of Alexis Drive and Page Mill Road. Upon arrival, they saw grease coming out of manhole No. 101-2-2 and flowing into Matadero Creek. The grease was the consistency of cake batter and looked like it had been recently pumped. Wilson also saw that two manhole covers, weighing between 75 and 100 pounds each, were ajar. Wilson attempted to break the blockage of grease by using a hydrojet to shoot water up the sewage line. However, the amount of grease eventually clogged the line again.

While Wilson and Talley were working on the sewer lines, more manhole covers began popping up and grease flowed out of the manholes. One of the manhole covers caused a flat tire on a van. A bicyclist lost control of his bicycle when he rode over the grease. Talley then began directing traffic, while Wilson tried to clear the blockage. A couple of hours after they had arrived, Wilson saw the A-1 pump truck, which was following the A-1 van, coming down Alexis Drive from the direction of the Club. According to Wilson, the pump truck was not fully loaded because it neither swayed nor braked in the manner of a fully loaded truck when it came to a stop. Though the vehicle was traveling fast and in high gear, it stopped almost on a dime at the bottom of the hill. Wilsons opinion was based on his experience as a pump truck driver for 15 years.

Wilson also spoke with the driver of the A-1 van. Defendant told Wilson that he and the other two A-1 employees had cleaned out the grease interceptor at the Club. He denied that they had pumped anything into the sewer. Defendant never suggested that Wilson should check the tank in the pump truck for grease.

According to Wilson, the A-1 pump truck had inlet and outlet nozzles to suck the grease in and dispense it out. It was not the type of truck that required elevation to discharge waste. If the bed of the A-1 truck had been lifted to discharge waste at the cleanout, there would have been stuff all over the place and it would have blocked the hose. However, no grease had been spilled around the grease interceptor at the Club. In Wilsons opinion, the A-1 truck could have been emptied by attaching a hose to the cleanout and using a reverse vacuum mechanism to force the grease into the cleanout.

Michael Haynes, Wilsons supervisor, also responded to the scene. While he was en route, he received a description of the A-1 pump truck. Haynes then saw the A-1 truck at an intersection. In Hayness opinion, the truck was not fully loaded, because it stopped at the stop sign without swaying or rocking.

When Haynes arrived at the scene, he saw two manhole covers ajar and grease flowing from them. Haynes was unable to replace the manhole covers due to the force of the flow of grease. The manholes continued to overflow for about an hour after he arrived. Haynes, who had 12 years of experience with grease overflows, estimated that he saw approximately 2,000 gallons of wastewater, of which 25 percent was grease. This estimate did not include grease that had already spilled on the side of the road, into the creek, and down the rest of the sewer. The grease was consistent with the texture of grease that had been pumped.

Salinas testified that the A-1 logbook entry for the Club job on December 3, 2001, did not state either the amount of grease pumped into the truck or the disposal site. Instead, it stated: See jetters. This meant that the jetters called the secretary and told them they had a problem and couldnt do the job, so they needed a second opinion. However, even when a problem arose, the information regarding the amount of waste materials and its disposal site was entered into the logbook.

Javad Gahaffari, the manager of the Citys Environmental Control Program, conducted two dye tests to determine the amount of time it took for water to travel in the sewer line from the Club to manhole No. 101-2-2. It took 10 to 15 minutes for the dye to reach the manhole.

Bradley Eggleston, who is an associate engineer for the Citys Water Pollution Control Plant, arrived at the scene at about noon and saw the grease spill. It looked like sand or construction material, but it smelled like grease and was slippery. Eggleston went to the Club and checked the grease interceptor. It was empty except for about 100 gallons of water in the grease or inlet side. There was no grease in the line coming from the Clubs restaurant. However, there was grease in the cleanout pipe that flowed from the Clubs grease interceptor into the downstream pipe. Eggleston later compared the manholes above and below the Club. He determined that the spill had originated at the Club, because there was no grease in the uphill lines from the Club while there was grease in the lower lines.

Eggleston contacted defendant and Hetrick on December 6, 2001. They told Eggleston that they and Murillo were present when the Clubs grease interceptor was pumped on December 3, 2001. They stated that they arrived at 9:00 or 9:30 a.m. and left at about 1:30 p.m. They brought a pump truck and a van with a hydrojet trailer to the site. The pump truck could hold up to 3,300 gallons, and the hydrojet trailer had a 400‑gallon water tank. When they arrived at the Club, both sides of the grease interceptor were very full of grease. They hydrojetted the inlet and outlet pipes of the grease interceptor, pumped out all the grease, and washed the inside of the grease interceptor. They claimed that no grease had entered the sewer line, and that they loaded all of the grease into the pump truck and took it back to the A-1 yard in Hayward. According to defendant and Hetrick, the pump truck was full of grease when they left the Club.

Jack Dickinson was employed by the City of San Jose Environmental Services Department as an environment and compliance inspector. He testified as an expert in wastewater management in general, restaurant grease waste in general, grease as a pollutant, the operation and cleaning of grease interceptors, the properties of older and recently pumped sewer grease, the illegal disposal of sewer grease waster from grease interceptors, and factors that can contribute to that grease overflow. Dickinson visited the site of the spill, examined the Clubs grease interceptor and sewer lines, and reviewed photographs, video tapes, sewer maps, and the grand jury transcripts,. In Dickinsons opinion, the overflow in the present case was the result of the intentional pumping of the contents of the pump truck into the cleanout. According to Dickinson, the sewer system was operating in an equilibrium; it was not overflowing. The system is designed to handle the wastewater it was receiving, and then with the advent of this large . . . slug load of grease coming through the pipeline. It overwhelmed the capacity of the system, and coming down the line it gathered energy, much like a ball rolling down a hill. And that energy had to be displaced somewhere when it hit the flat part of the slope, which is where the overflow occurred. In reaching this opinion, Dickinson assumed that at least 2,000 gallons of grease was released into the sewer system. If the amount of grease released was 400 gallons, he would have concluded that the spill could have been accidental. Other factors also affected his opinion. The sewer lines had been maintained on a regular basis. The grease at issue appeared to have been recently pumped grease, because it was finer material than grease broken up by manual mixing. Dickinson also noted that grease that was pumped by means of reverse suction from a pump truck traveled more quickly through the sewer pipe than grease that was flowing as a result of gravity.

B. Defense Case

John Robert Hospitalier, a lead equipment operator for the Citys Public Works Department, testified that he was at the scene of the incident on December 3, 2001. He saw the bicyclist off to the side of the road and the driver of a van checking his vehicle. He also saw a large amount of material resembling wet burned popcorn. The pea-sized clumps were brownish. Though he had previously seen grease, he did not think this substance was grease, because it was very puffed up in consistency and really fluffy. According to Hospitalier, the material initially had a lot more liquid, and changed consistency as it sat on the street.

Murillo testified that he was the A-1 pump truck driver on December 3, 2001. He, Hetrick, and defendant arrived at the Club after 9:00 a.m. He mixed the grease in the interceptor to create a slurry, while defendant and Hetrick went to fill the jetter tank with water. That was the only time that defendant left the area of the interceptor until the job was completed. Murillo was the only person who operated the controls on the truck and sucked up the grease with the hose. He never used the reverse vacuum control on the truck. If any one of them had placed the hose from the pump truck into the cleanout, all three of them would have been aware of it.

After the grease was removed from the interceptor and placed in the pump truck, Murillo drove the truck down the hill. When defendant and Hetrick, who were in the van, stopped at the bottom of the hill to talk to a city worker, Murillo stopped his truck. At that time, the truck was full. No one asked to inspect his truck or its gauge while he was stopped.

Murillo drove the pump truck to the A-1 yard. A-1 had a holding tank that is capable of holding 10,000 gallons of grease. On December 7, 2001, Murillo drove a truck with 5,000 gallons of grease to the Altamont landfill.

Murillo acknowledged that he had pleaded no contest to two felony counts related to the incident. However, he asserted that nothing had happened on December 3, 2001, that would have justified those pleas.

Hetrick testified that he was assigned to the job at the Club on December 3, 2001. When Hetrick arrived with defendant and Murillo, he looked into the grease interceptor. The grease was so thick that if a gallon of milk had been dropped on the surface, it would have remained on top of the surface. Hetrick never saw defendant either handling the hose of the pump truck or operating its controls. While Hetrick was inside the grease interceptor, defendant was observing him from the manhole. He never saw anything other than the jetter hose placed inside of the cleanout. According to Hetrick, it would have taken between 45 minutes and an hour to discharge the grease from the pump truck. After the job was completed, he and defendant left in the van. When Wilson stopped them, he asked if there was any grease in the truck. Hetrick told him yes and offered to let him look in the truck. Wilson then asked for a business card, which defendant gave to him. Hetrick also pleaded no contest to two felony counts related to the December 3, 2001, incident.

Defendant testified on his own behalf. He testified that was employed as a jetter for A-1. He, Murillo, and Hetrick arrived at the Club at about 9:00 a.m. Defendant never operated the controls or the hoses on the pump truck. After inspecting the grease interceptor and the cleanout, Murillo used a bar to mix the grease with water. Defendant assisted him by regulating the water from the jetter tank. Murillo then began alternately pumping and mixing the grease. At about 10:00 a.m., Hetrick entered the interceptor to scrape the walls with a shovel while defendant monitored him. After Hetrick was finished, defendant jetted the inlet and outlet lines, and cleaned out the sample box. While they were working, the three men were within sight or earshot of each other. Defendant saw nothing to indicate that anyone had discharged grease from the interceptor at or near the Club.

Lloyd Bracewell, a civil engineer with a Ph.D. in sanitary engineering, testified as an expert witness in these areas: in sanitary engineering; in wastewater management and treatment; in sewer systems design, maintenance and operation; in fluid dynamics and hydraulics; in the properties of grease, sludge, domestic and commercial waste streams, vacuum trucks, and spills. Bracewell testified that pumping grease into a pump truck will not break down the grease into smaller pieces. However, the grease will break down due to the churning action of the tank when the truck is being driven on the road. When an interceptor has not been cleaned in a long time, the grease is like pancake batter at the bottom of the interceptor and there is a hard crust on the surface.

Bracewell examined the grease interceptor at the Club and the A-1 pump truck, and reviewed photographs, grand jury transcripts, an analysis of a sample taken from one of the manholes, and Dickinsons trial testimony. According to Bracewell, the tank could not have been drained by gravity alone due to the three-foot rise from the pavement to the cleanout. Bracewell also noted that if one of the employees had used the reverse vacuum method to pump the interceptor grease out of the trucks tank, the maximum velocity would by one-half foot per second, which was low. He disputed Dickensons theory that the overflow was caused by a slug load of grease that gathered energy as it moved down the hill, asserting that it was not even remotely supported by science. He pointed out that a solid does not behave in the same manner as a liquid, and Dickensons theory did not address the issue of friction.

In Bracewells opinion, the overflow incident in the present case occurred after water was added to the grease and sludge in the interceptor at the Club and the mixture escaped through the outlet pipe. This material continued to escape in this manner until the interceptor was pumped below the outlet pipe. Bracewell also believed that there was a substantial portion of wastewater from the normal flow on this sewer line. Bracewell calculated that the normal flow of wastewater was 3,400 gallons per hour on Page Mill Road and 1,270 gallons per hour on Alexis Drive. Based on the location of the blockage, the diameter of the pipes, the size of the manholes, and the movement of the manhole covers on the day of the incident, Bracewell estimated that 2,400 gallons of waste would be required to fill the system to the point of overflow. Thus, he reasoned that normal wastewater flow and three to seven hundred gallons of grease and sludge could have caused the overflow in this case.

In April 2004, Bracewell inspected the sewer lines downstream from manhole No. 101-2-2, and observed numerous roots. Roots can cause sewer line backups. According to Bracewell, the roots that he observed were inconsistent with lines that had been cleaned three months earlier.

The parties stipulated that the fat content of the material in the overflow incident was 17.31 percent. In Bracewells opinion, this indicated that the material was mostly sludge, and not grease.

C. Prosecutions Rebuttal

Talley, Wilsons assistant, testified that he touched the material in the spill incident and concluded that it was grease. The first manhole that he examined had 100 to 150 gallons of grease waste pooled off the edge of the pavement and some of it spilled into the creek. It was flowing at the rate of eight to ten gallons a minute. The second manhole had about 50 to 75 gallons of grease waste flowing from it. When the van came down the hill, Talley heard Wilson speaking with the driver. The driver told Wilson that they had been working on the grease trap at the Club, but that nothing had gone wrong.

Talley also testified that he had cleaned most of the lines from the Club to Alexis Drive two weeks before the spill, because roots had caused a blockage. Some portions of the lines between the Club and the spill site had been cleaned a few months prior to the spill.

Wilson testified that the driver never asked Wilson if he wanted the van to wait for the police. He also testified that the lines on Page Mill Road and Alexis Drive were cleaned every three months.

Eggleston testified that he timed how long it took pump truck drivers to discharge 3,000 gallons of grease from their trucks. Based on these three cases, he found that it would take less than 10 minutes.

II. Discussion

Defendant contends that there was insufficient evidence under Penal Code section 1118[2] and the due process clauses of the federal and state Constitutions (U.S. Const., 14th Amend.; Cal. Const., art. I, 15) to support his convictions on all four counts under an aiding and abetting theory.

In assessing the sufficiency of the evidence to support the convictions under the federal and state Constitutions, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v.Johnson (1980) 26 Cal.3d 557, 578.) This same standard applies to the trial court when a criminal defendant moves for dismissal under Penal Code section 1118. (People v.Mendoza (2000) 24 Cal.4th 130, 138.) An appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Reilly (1970) 3 Cal.3d 421, 425.) A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence. [Citations.] (People v. Morris (1988) 46 Cal.3d 1, 21, overruled on other points in In re Sassounian (1995) 9 Cal.4th 535, 543-545, fns. 5, 6.) We conduct an independent review of the trial courts ruling under Penal Code section 1118 that there was sufficient evidence to support a conviction. (People v. Cole (2004) 33 Cal.4th 1158, 1213.) We also conduct an independent review of whether there was sufficient evidence under the federal and state Constitutions. (Ibid.)

Here the prosecution was required to prove that defendant discharged a pollutant into a publicly owned treatment works (Wat. Code, 13378, subds. (a)(4), (a)(5)),[3] unlawfully discharged commercial quantities of materials into a public sewer (Pen. Code, 374.2, subd. (a)),[4] and water pollution (Fish & G. Code, 5650, subd. (a)(6)).[5] The prosecution proceeded on the theory that defendant was guilty on all counts as an aider and abettor to the offenses.

In order to impose criminal liability under an aider and abettor theory, the prosecution must prove: (a) the direct perpetrators actus reusa crime committed by the direct perpetrator, (b) the aider and abettors mens reaknowledge of the direct perpetrators unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettors actus reusconduct by the aider and abettor that in fact assists the achievement of the crime. [Citation.] (People v. Perez (2005) 35 Cal.4th 1219, 1225.) Thus, a criminal defendant is guilty as an aider and abettor when he or she act[s] with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of the offense. [Citations.] (People v. Beeman (1984) 35 Cal.3d 547, 560.) Mere presence at the scene of a crime which does not itself assist its commission or mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting. [Citation.] (In re Michael T. (1978) 84 Cal.App.3d 907, 911.)

Here, the prosecution proved that Murillo was the direct perpetrator of the charged offenses. There was substantial evidence that he intentionally placed the hose from the pump truck into the cleanout, and then discharged hundreds of gallons of grease into the sewer lines. This pollutant eventually flowed into Matadero Creek. There was also substantial evidence that defendant, as a member of the three-man A-1 team, would have known if Murillo placed a hose into the cleanout. At issue, however, is whether defendant acted with knowledge of Murillos criminal purpose and with the intent of encouraging or facilitating commission of the charged offenses.

The People first assert that defendants intent was established by the evidence that one of the A-1 team would have had to deliberately place the hose into the cleanout line in order to discharge the grease into the sewers, and then the hose would have had to be deliberately feathered to prevent clogging as the grease passed out of the truck, through the hose, and into the City sewer. However, there was no evidence that defendant was the individual who performed this act. Instead, the record establishes that Murillo was the only individual who operated the hose of the pump truck. While the prosecution proved that Murillo committed a deliberate act, this evidence did not prove that defendant intended to assist, encourage or facilitate the act of discharging the grease.

The People next focus on defendants consciousness of guilt as evidence of his intent to commit the charged offenses. They argue that [a]s the lead man on the team that day, i.e., as the jetter, it was appellants duty to fill in the A-1 logs that day, and yet he merely wrote see jetter without noting any disposal site in the log, which deviated from the required procedure.

We first note that defendant was not the lead man on the team. According to Salinas, both the driver and the jetter are in charge. He explained that the driver was responsible for cleaning out the grease interceptor, while the jetter was responsible for determining whether the driver needed assistance. Thus, the jetter would sometimes assist the driver when he broke up the contents of the grease interceptor. However, the jetter did not operate the pump truck, vacuum up the contents of the grease interceptor, or take control of the waste removed from the grease interceptor. There was also no evidence that a driver would require the assistance of either the jetter or the jetters helper in placing the hose in the cleanout. Moreover, even assuming that defendant assisted Murillo when he broke up the contents of the grease interceptor in the present case, defendants conduct would have occurred prior to Murillos act of discharging the grease into the cleanout. Since there was no evidence that defendant helped break up the contents of the grease interceptor with the intent to assist Murillo when he later discharged the grease from the pump truck into the cleanout, such conduct, even if it occurred, was insufficient to prove defendant committed the charged offenses under an aiding and abetting theory.

We next consider whether the logbook entry establishes that defendant assisted, facilitated, or encouraged the commission of the crimes. The record establishes that it was the drivers responsibility to fill out the logbook, but that the jetter would also do so on occasion. The entry in the present case stated, see jetters, which meant that the jetters called the secretary and told them they had a problem and couldnt do the job, so they needed a second opinion. However, there was no evidence as to the significance of the entry in this case. In any event, here the A-1 team had cleaned the grease interceptor, so they were able to do the job. The problem occurred when the contents of the pump truck were intentionally released into the sewer system. Thus, assuming that defendant, rather than Hetrick, called the A-1 secretary, there was no indication in the record when or why he made that call. Based on the logbook entry, one could only speculate as to defendants role in any problem that occurred on the job. Moreover, assuming that defendant called the secretary, the trier of fact could have reasonably inferred only that defendant knew the crimes had been committed. However, evidence of defendants knowledge or his failure to prevent Murillos acts did not prove that he acted with the intent to assist the commission of the crimes. (In re Michael, supra, 84 Cal.App.3d at p. 911.)

The People next refer to defendant as the driver of the empty pump truck, and argue that [a]t a minimum, he aided and abetted the illegal discharge by driving away from the scene and by lying to City employees about the contents of the A-1 truck. First, Murillo was driving the pump truck, while defendant and Hetrick were in the jetter van. Second, defendants acts of driving the van and lying to City employees occurred after the crimes were committed. Thus, these acts are insufficient to prove that defendants intent to encourage or facilitate the actions of the perpetrator [was] formed prior to or during commission of [the] offense. (People v. Montoya (1994) 7 Cal.4th 1027, 1039.) Defendants acts may have established that defendant was an accessory after the fact, that is, one, who after a felony has been committed, aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony . . . . (Ibid.) However, an accessory after the fact cannot be convicted as a principal. (Ibid.)

Relying on and People v.Williams (1960) 179 Cal.App.2d 487 (Williams) and People v. Gonzalez (2004) 116 Cal.App.4th 1405 (Gonzalez), the People next claim that defendants role as a driver established that he was an aider and abettor as to all four counts. There is no merit to this claim.

In Williams, the defendant drove his companion to a market, and when his companion returned with money, the defendant knew that he had committed a robbery. (People v. Williams, supra, 179 Cal.App.2d at pp. 488-489.) The defendant then drove his companion away from the scene. (Id. at p. 489.) A robbery is not completed until the robber has successfully carried away the stolen property to a place of temporary safety. (People v. Montoya, supra, 7 Cal.4th at p. 1041.) Thus, the defendant in Williams was guilty as an aider an abettor to the robbery, because he assisted his companion during the commission of the robbery. Here the charged offenses were completed when the pollutant was placed into the sewer system.

In Gonzalez, the defendant was convicted of several offenses, including conspiracy to transport heroin, cocaine, and methamphetamine for sale. (People v. Gonzalez, supra, 116 Cal.App.4th at p. 1408.) Police officers found large quantities of heroin and methamphetamine, drug paraphernalia, and documents relating to a Ford Thunderbird in the defendants apartment. (Id. at pp. 1408-1409.) While they were conducting their search, an individual, who had a significant amount of heroin on his person, arrived at the apartment. This individuals vehicle contained a large quantity of cocaine. (Id. at p. 1409.) After the police learned that a Thunderbird had left the defendants apartment prior to their search, they stopped the occupants of the Thunderbird. One of the men had the defendants business card, and had made several calls on his cell phone to the defendant on the previous two days. The defendant had also been seen driving the Thunderbird several months earlier. A search of the Thunderbird revealed money and drugs that were hidden in various compartments. (Id. at p. 1411.) On appeal, the defendant challenged, among other things, the sufficiency of the evidence to support his conviction for possession of a false compartment with the intent to conceal a controlled substance. (Id. at p. 1412.) The reviewing court held that the evidence supported the inference that the defendant and his coconspirators were using the hidden compartments in the Thunderbird to conceal controlled substances. (Id. at p. 1416.) In contrast to Gonzalez, here there was no evidence that defendant was involved in the illegal acts of the perpetrator.

In the present case, defendant was part of a three-person team that cleaned the grease interceptor at the Club. However, there was no evidence that defendant performed any act either before or during the commission of the charged offenses with the knowledge that Murillo intended to illegally discharge the grease from the pump truck into the sewer system. There was also no evidence that defendant performed these acts with the intent to encourage, facilitate or assist Murillo in the commission of the offenses. Accordingly, there was insufficient evidence to support defendants convictions under an aiding and abetting theory. Thus, the judgment is reversed on all four counts.

III. Disposition

The judgment is reversed.

_______________________________

Mihara, J.

I CONCUR:

_______________________________

McAdams, J.

BAMATTRE-MANOUKIAN, J., dissenting.

Defendant Thomas Patrick Medeiros was convicted after a court trial of two felony counts of discharging a pollutant into publicly owned treatment works (Water Code, 13387, subds. (a)(4) & (a)(5)), one misdemeanor count of unlawfully discharging commercial quantities of materials into a public sewer (Pen. Code, 374.2, subd. (a)),[6] and one misdemeanor count of water pollution (Fish & Game Code, 5650, subd. (a)(6)). On appeal, defendant contends that: (1) the misdemeanor convictions must be reversed because they are barred by the statute of limitations; (2) the court improperly denied his motion for acquittal pursuant to section 1118, and there is insufficient evidence to support the convictions; and (3) the court improperly excluded relevant defense evidence. The majority agrees with defendants contention that the evidence is insufficient to support the convictions and, therefore, does not discuss defendants other contentions. I respectfully disagree with the majority, and conclude that the trial court properly denied defendants motion for acquittal and that the evidence is sufficient to support the convictions.

Under section 1118, the court may enter a judgment of acquittal at the close of the prosecutions case if, upon weighing the evidence then before it, the court finds the defendant not guilty. ( 1118; People v. Valerio (1970) 13 Cal.App.3d 912, 920.) The test to be applied by the trial court is the same as that applied by an appellate court in reviewing a convictionwhether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged. [Citations.] In short, the trial court must determine whether the prosecution has established a prima facie case. (People v. Ainsworth (1988) 45 Cal.3d 984, 1022; People v. Mincey (1992) 2 Cal.4th 408, 432, fn. 2 (Mincey).)

In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.] (Mincey, supra, 2 Cal.4th at p. 432.)

The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.] [Citation.] (Ibid.)

A defendant may be found guilty of aiding and abetting a criminal offense when he or she acts with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. (People v. Beeman (1984) 35 Cal.3d 547, 560.) Knowledge that a crime might be committed by another person, and evidence of conduct subsequent to the commission of a crime implicating the defendant as an accessory, is not sufficient to support a finding of aiding and abetting. (People v. Horton (1995) 11 Cal.4th 1068, 1115-1116.) The [trier of fact] must find the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense . . . . [Citations.] Once the necessary mental state is established, the aider and abettor is guilty not only of the intended, or target offense, but also of any other crime the direct perpetrator actually commits that is a natural and probable consequence of the target offense. [Citation.] (People v. Mendoza (1998) 18 Cal.4th 1114, 1123; see also, People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117.)

Whether defendant aided and abetted the crime is a question of fact, and on appeal conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment. (People v. Mitchell (1986) 183 Cal.App.3d 325, 329.) A finding of aiding and abetting will not be set aside unless the record clearly demonstrates there is insufficient substantial evidence to support it on any hypothesis. (People v. Moore (1953) 120 Cal.App.2d 303, 306; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.)

The following evidence was presented during the prosecutions case-in-chief.

The Palo Alto Hills Golf and Country Club (the Club) is located on the top of a hill on Alexis Drive. Alexis Drive ends at Page Mill Road at the bottom of the hill. Page Mill Road is level. The grease interceptor (GI) at the Club was never cleaned between its installation sometime before November 1999 and December 3, 2001. A-1 Septic Tank Service, Inc. (A-1) was hired to clean the Clubs GI on December 3, 2001.

A GI is a pretreatment device that separates oil and grease from waste water. Water passes from the Clubs kitchen into the first chamber of the GI, the grease side, where oil and grease rise to the top and heavier grease settles on the bottom. The clarified water flows into the second chamber, the water side, where oil and grease again settle out. The remaining water and solids flow out into the cleanout. The cleanout removes obstructions before the water proceeds to the Alexis Drive sewer line for proper disposal. The sewer line from Alexis Drive meets the sewer line at Page Mill Road at manhole No. 101-2-2. GIs are cleaned by pumping out the settled grease and solids into a pump truck, and then disposing of the grease in the truck at an authorized disposal site.

A-1 has five 3,000-gallon-capacity pump trucks. The trucks have a motor that can either pump in or discharge grease through a hose. The pump truck operator is assisted by two jetters. One jetter operates the hydrojetter, which is carried on a trailer pulled by a van, and monitors the work of the second jetter. The hydrojetter is used to break up and mix solid grease with water so that it can more easily be pumped into the pump truck. The second jetter enters the GI, breaks up the grease, and manipulates the hoses from the pump truck and the hydrojetter. After the second jetter finishes inside the GI, the first jetter cleans the lines running into and out of the GI. The entire job could take about four hours. The pumped grease is usually taken back to the A-1 yard for later disposal. It takes about 15 minutes to discharge grease out of the pump truck. The pump driver or jetter records in the office log the amount of grease pumped and its disposal site.

Defendant, Mark Hetrick, Jr., and Richard Murillo were the A-1 employees who went to the Club on December 3, 2001. Murillo operated the pump truck, and defendant and Hetrick were the jetters. Defendant operated the hydrojetter, and Hetrick went inside the GI.

Around 11:30 a.m. on December 3, 2001, City of Palo Alto employees Jackey Wilson and Eric Talley saw grease coming out of manhole No. 101-2-2 and flowing into Matadero Creek. The grease looked like it had been recently pumped. Additional manhole covers near manhole No. 101-2-2 began popping up and grease flowed out of those manholes as well. One of the popped manhole covers caused a flat tire on an AT&T van, and a bicyclist lost control of his bicycle when he rode over the grease. After a while, the A-1 pump truck followed by the A-1 van came down Alexis Drive from the direction of the Club. The pump truck had inlet and outlet nozzles to suck the grease in and dispense it out. Based on his experience as a pump truck driver for 15 years, Wilson thought that the pump truck was not fully loaded.

Defendant, the van driver, told Wilson that he and the other two A-1 employees had cleaned out the GI at the Club, but defendant denied that they discharged the grease into the sewer. Defendant gave Wilson his business card. In Wilsons opinion, the A-1 truck could have been emptied by attaching a hose to the cleanout and using a reverse vacuum mechanism to force the grease into the cleanout.

While en route to the scene, Michael Haynes, Wilsons supervisor, saw the A-1 pump truck stop at a stop sign. It was Hayness opinion that the truck was not fully loaded. In addition, it was Hayness opinion that the grease flowing from the manholes was consistent with the texture of grease that had been pumped.

Bradley Eggleston, an associate engineer at the City of Palo Alto Water Pollution Control Plant, learned about an overflow of the sewer lines near the intersection of Alexis Drive and Page Mill Road around noon on December 3, 2001. When he arrived at the scene he saw several manholes with their covers off, and grease and sewage that had overflowed onto the road and into Matadero Creek. After learning from Wilson about his conversation with defendant, Eggleston went to the Clubs GI. He saw grease in the dirt in the area, and in the road. The GI itself was empty except for about 100 gallons of water in the grease side. There was no grease in the inlet pipe, but there was some grease in the pipe leading away from the cleanout. There was also grease in the pipe where the Clubs sewer line meets the Alexis Drive sewer line, but no grease in the Alexis Drive sewer line uphill from that point.

Adrian Salinas, a former A-1 employee, testified that the A-1 log entry for the Club job on December 3, 2001, did not state either the amount of grease pumped into the truck or the disposal site of the grease pumped. Instead, it stated: See jetters, which means that the jetters called the secretary and told them that they had a problem. However, even when a problem arose, the information regarding the amount of grease and its disposal site was entered into the log.

The prosecutions expert, Jack Dickinson, testified that, in his opinion, the overflow in the present case was the result of the intentional pumping of the contents of the pump truck into the cleanout. The grease at issue appeared to have been recently pumped. In addition, grease that was pumped by means of reverse suction from a pump truck would travel more quickly through the sewer pipe than grease that was flowing as a result of gravity.

Having carefully reviewed this evidence, I conclude that the trial court properly denied defendants motion for judgment of acquittal at the close of the prosecutions case. The evidence presented by the prosecution was sufficient to establish a prima facie case against defendant. (Mincey, supra, 2 Cal.4th at pp. 432, 435.) I also conclude that the entire record supports the trial courts determination that defendant was guilty of the charged offenses.

The defense presented the following evidence. Murillo testified that, at the Club on December 3, 2001, he pumped up the grease into the pump truck. Murillo later fed Hetrick the hose from the pump truck while defendant fed Hetrick the hose from the jetter. Defendant stood next to Murillo while they did their respective jobs. Defendant jetted both the inlet line and the cleanout. If someone had taken the hose from the pump truck and put it in the cleanout, all three of them would have been aware of it. Murillo drove the pump truck back to the A-1 yard and deposited the grease into the holding tank there. He removed the contents of the holding tank and dumped it at the Altamont landfill on December 7, 2001. See jetters in the office log means that the jetters would have the information about what job was done. He admitted that he pleaded no contest to two felonies and two misdemeanors as a result of the incident.

Hetrick testified that, while he was inside the GI, Murillo operated the vacuum hose and defendant watched Hetrick to make sure everything was going smoothly. When Hetrick needed the jetter hose, defendant would feed it to him. When Hetrick was done on the water side of the GI, defendant jetted the outlet line by putting the jetter hose through the cleanout. Hetrick did not see defendant do anything that would cause the grease to be released from the pump truck. Hetrick does not know why the information about the job was not entered into the office log. Hetrick admitted pleading no contest to two felonies and two misdemeanors as a result of the incident.

Defendant testified that Murillo pumped up enough grease to allow Hetrick to go inside the GI. Hetrick then went inside the GI and used a shovel, the water hose, and the pump hose to clean it. Defendant watched the jetter tank and Hetrick. After Hetrick got out of the GI, defendant jetted the inlet line while Murillo put the pump hose at the bottom of the GI. Defendant repeated the process on the outlet line. Whether the pump truck is pumping or discharging, it sounds the same. The entire time that the three of them were at the Club, they were within sight and earshot of each other. Defendant drove the van with the empty hydrojetter tank back to the yard. He does not write in the office log. See jetter in the log simply means that the office personnel knew that he wrote up the invoice for the job.

Lloyd Bracewell testified as an expert that, in his opinion, the grease in the GI was solid and could not be sucked up until it was mixed with water. The grease overflowed from the GI into the outlet pipe while the grease was being mixed with water to make it pumpable. Thus, some grease and sludge flowed out of the outlet pipe even though it was also sucked up into the pump truck. Because of a blockage caused by the numerous roots that Bracewell saw in the sewer lines in April 2004, a 300-to-500-gallon release of a grease-sludge mixture on top of the domestic waste stream coming down Page Mill Road and Alexis Drive could have caused the overflow at the No. 101-2-2 manhole on December 3, 2001.

In rebuttal, Talley testified that he cleaned substantial parts of the sewer line coming down Alexis Drive two weeks before the December 3, 2001 incident. He did so because roots had caused a blockage in the line. The entire section of sewer lines on Page Mill Road were cleaned a few months before the incident.

In reporting its decision, the trial court stated that it had reviewed the evidence and over 1200 pages of transcripts, and had heard arguments from the parties. The court found that there were two aspects of the case, the scientific aspect and the collective memory aspect. The court found that the City of Palo Alto employees testified credibly as to the look and size of the spill; as to their discussion with defendant, the driver of the A-1 van; and as to how the pump truck acted, whether or not it was full, when it came down the hill. The court also found that defendants testimony regarding his discussion with the city employees was not credible. It stated that, when the Court did the weighing, the Court concluded that the alleged statements made by the defendant or by others did not occur. The court further found that the experts testimony was consistent as to how the grease in the GI would have to be broken up in order to be able to be removed from the GI. The court concluded that, because of the large amount of grease in the spill and the lack of a reasonable explanation that would support a finding of negligence, the dumping of the grease was intentional, not negligent. Therefore, the court found defendant guilty on all four counts.

As the majority acknowledges, there was substantial evidence that Murillo intentionally placed the hose from the pump truck into the GI and discharged hundreds of gallons of grease into the sewer lines, which eventually flowed into Matadero Creek, and there was substantial evidence that defendant would have known if Murillo had done this. I believe that there is also substantial evidence that defendant aided and abetted Murillo and Hetricks criminal conduct with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. (People v. Beeman, supra, 35 Cal.3d at p. 560.)

Defendants job as a jetter was to assist Murillo. Murillos pump hose was inside the GI while defendant was working on the cleanout and defendant assisted Murillo. Defendant was within sight and earshot of Murillo at all times, the pump sounds the same whether it is pumping or discharging, and Murillo and Hetrick pleaded no contest to two felonies and two misdemeanors as a result of the incident. Neither Murillo nor defendant recorded the amount of grease that was pumped or its disposal site as expected, but one of them called in with a problem even though defendant told Wilson that nothing went wrong. Wilson, a City of Palo Alto employee who had been a pump truck driver for 15 years, also testified that the pump truck did not appear to be fully loaded when it came down the hill. The court found Wilson to be a credible witness regarding his discussion with defendant and found defendant to be not credible regarding that discussion. A reasonable inference from all the evidence is that, as the trial court found, defendant aided and abetted Murillo in the actions that resulted in Murillos convictions and that defendants actions after the fact showed his consciousness of guilt.

Accordingly, after considering the evidence in the light most favorable to the judgment, and presuming the existence of every fact the trial court could reasonably deduce from the evidence in support of the judgment (Mincey, supra, 2 Cal.4th at p. 432), I conclude that the record supports defendants convictions. (People v. Mitchell, supra, 183 Cal.App.3d at p. 329.)

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BAMATTRE-MANOUKIAN, ACTING P.J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

[1] Count 3 did not involve defendant.

[2] Penal Code section 1118 states: In a case tried by the court without a jury, a jury having been waived, the court on motion of the defendant or on its own motion shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading after the evidence of the prosecution has been closed if the court, upon weighing the evidence then before it, finds the defendant not guilty of such offense or offenses. If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right.

[3] Former Water Code section 13387, subdivision (a) provides in relevant part: Any person who intentionally or negligently does any of the following is subject to criminal penalties . . . :  [] . . . (4) Violates any requirement of Section . . . 307 . . . of the Federal Water Pollution Control Act, as amended. [] (5) Introduces into a sewer system or into a publicly owned treatment works any pollutant or hazardous substances which the person knew or reasonably should have known could cause personal injury or property damage.

[4] Penal Code section 374.2, subdivision (a) states: It is unlawful for any person to maliciously discharge, dump, release, place, drop, pour, otherwise deposit, or to maliciously cause to be discharged, dumped, released, placed, dropped, poured, or otherwise deposited, any substance capable of causing substantial damage or harm to the operation of a public sewer sanitary facility, or to deposit in commercial quantities any other substance, into a manhole, cleanout, or sanitary sewer facility, not intended for use as a point of deposit for sewage, which is connected to a public sanitary sewer system, without possessing a written authorization therefor granted by the public entity which is charged with the administration of the use of the affected public sanitary sewer system or the affected portion of the public sanitary sewer system. [] As used in this section maliciously, means an intent to do a wrongful act.

[5] Fish & Game Code section 5650, subdivision (a)(6) states: Except as provided in subdivision (b), it is unlawful to deposit in, permit to pass into, or place where it can pass into the waters of this state any of the following: [] Any substance or material deleterious to fish, plant life, mammals, or bird life.

[6] Further statutory references are to the Penal Code unless otherwise specified.