Filed 5/27/22 P. v. Mendoza 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

A jury found defendant Jose Luis Mendoza guilty on five counts arising from the improper handling of materials containing asbestos and one count of contracting without a license, all misdemeanors. The trial court suspended imposition of sentence and granted a two-year conditional sentence with various terms including 180 days in county jail.

Mendoza contends the evidence was insufficient to support convictions on two counts: failing to thoroughly inspect for regulated asbestos-containing materials, and failure to have a competent person present during the disturbance of the materials.

For the reasons below, we conclude sufficient evidence supported the convictions. We will affirm the judgment.

1. Factual and Procedural Background

1. Procedural Background

The prosecution charged Mendoza with 10 counts: count 1—contracting without a license (Bus. & Prof. Code, § 7028); count 2—advertising for construction work without being properly licensed (Bus. & Prof. Code, § 7027.1); count 3—disposal of hazardous waste without a permit (Health & Saf. Code, § 25189.5, subd. (b)); count 4—transportation of hazardous waste to a facility which does not have a permit (Health & Saf. Code, § 25189.5, subd. (c)); count 5—treating hazardous waste at a facility which does not have a permit (Health & Saf. Code, § 25189.5, subd. (d)); count 6—failing to thoroughly inspect for regulated asbestos-containing material prior to construction (40 C.F.R. § 61.145(a); Health & Saf. Code, § 42400; Rule 424 of the Monterey Air Board Resources District Regulation IV, part 3); count 7—failing to provide written notification prior to disturbing regulated asbestos-containing material prior to construction (40 C.F.R. § 61.145(b)(3)(I); Health & Saf. Code, § 42400; Rule 424 of the Monterey Air Board Resources District Regulation IV, part 3); count 8—failing to have a competent person present during the disturbance of regulated asbestos-containing material (40 C.F.R. § 61.145(c)(8); Health & Saf. Code, § 42400; Rule 424 of the Monterey Air Board Resources District Regulation IV, part 3.1, page 3); count 9—failing to maintain regulated asbestos-containing material adequately wet during removal (40 C.F.R. § 61.145(c)(6)(I); Health & Saf. Code, § 42400; Rule 424 of the Monterey Air Board Resources District Regulation IV, part 3); and count 10—failing to properly seal regulated asbestos-containing material in leak tight containers prior to transportation for waste disposal (40 C.F.R. § 61.145(c)(1)(iii); Health & Saf. Code, § 42400; Rule 424 of the Monterey Air Board Resources District Regulation IV, part 3).

A jury trial was held in January 2020. The jury found Mendoza guilty on count 1 (contracting without a license); count 6 (failing to thoroughly inspect for regulated asbestos-containing material); count 7 (failing to provide written notification prior to disturbing regulated asbestos-containing material); count 8 (failing to have a competent person present); count 9 (failing to maintain regulated asbestos-containing material adequately wet); and count 10 (failing to properly seal regulated asbestos-containing material). The jury found Mendoza not guilty on count 2 and could not reach a verdict on the remaining counts. The trial court declared a mistrial on counts 3, 4, and 5, and granted the prosecution’s motion to dismiss those counts.

The trial court suspended imposition of sentence and granted a two-year conditional sentence with various terms including 180 days in county jail. The court stated it would suspend 60 days of county jail time if Mendoza provided proof of application for a contractor’s license.

2. Facts of the Offenses

A condominium owner hired Mendoza to remodel a condominium unit, including the removal of a “popcorn ceiling” that contained asbestos. About a month into the job, employees of the condominium association stopped the work due to the presence of asbestos, and the association began abatement. An investigator from the Monterey Bay Unified Air Pollution Control District later confirmed the presence of asbestos in the condominium. The investigator contacted Mendoza, questioned him, and concluded he had not followed multiple regulations governing asbestos handling.

Kishan Vujjeni, the owner of the condominium unit, rented it out and used it for personal vacations and weekends. The unit was one of 309 units in a complex of nine buildings. In 2014, he considered remodeling the unit and someone recommended Mendoza. Vujjeni had been informed by the condominium association that the popcorn ceiling in the unit contained asbestos and could not be disturbed by anyone other than a licensed contractor. Vujjeni testified that he told Mendoza the popcorn ceiling needed to be removed as part of the job, but Vujjeni was not sure if he used the word “asbestos” with Mendoza. Vujjeni testified that he told Mendoza, “So there’s a popcorn ceiling and it needs to be handled properly.” Mendoza said he would subcontract with an environmental company to do the ceiling work and he gave Vujjeni an estimate of $1,800.

In February 2017, Vujjeni entered a contract with Mendoza to do the remodeling job for $30,000. The contract included removal of the popcorn ceiling, but it did not specifically mention asbestos. Vujjeni did not manage the job. He gave Mendoza “100 percent” of the responsibility for the job and did not tell when him when to come or go. Vujjeni did not tell Mendoza how to remove, dispose of, transport, or inspect the popcorn ceiling.

In mid-March 2017, the condominium association e-mailed Vujjeni to inform him the job had to be stopped because removal of the popcorn ceiling without the proper procedures was prohibited. The association hired a testing company who found evidence of asbestos, and Vujjeni hired Coastwide Environmental to handle the abatement. Vujjeni tried to contact Mendoza, but Mendoza did not return his phone calls and only responded to some texts. Mendoza never completed the remodeling; Vujjeni had to hire another party to complete it.

Sean Tillema was the owner of the testing company that found evidence of asbestos during the remodeling. He testified for the prosecution as an expert in asbestos and asbestos removal. In March 2017, the condominium association contacted him, told him someone had disturbed some materials in one of the units, and asked him to perform testing on the materials. When Tillema entered the unit, it appeared to be an incomplete remodeling job. He saw that the popcorn ceiling had been scraped off and a new material was being applied. There were clumps of popcorn ceiling material on the floor. It did not appear the unit had been cleaned or abated. Tillema did not believe a professional abatement company had performed the work, and it had not been performed in compliance with the regulatory requirements. Regulations required advanced notification to be submitted 10 days before the start of work, and no such notice had been submitted. Tillema was unaware of any surveys of the unit conducted prior to his involvement.

Mike Sheehan, a retired program coordinator from the Monterey Bay Unified Air Pollution Control District, testified for the prosecution as an expert in asbestos enforcement. He also participated in the investigation of the unit. He testified that the regulations required written notification to the Monterey Bay Air Resources District 10 days before the start of work involving asbestos removal, but no notification had been provided for this job. In April 2017, the condominium association contacted Sheehan and he inspected the unit, but Coastwide Environmental had already done the abatement. The popcorn ceiling was gone but Sheehan found some debris inside the baseboard heaters which later tested positive for asbestos.

Sheehan contacted Mendoza, who admitted he had removed the popcorn ceiling with a scraper tool. Mendoza stated he put plastic on the floor, scraped the ceiling material down onto the plastic, rolled it up into a ball, and took it to the local transfer station. Sheehan testified that this process was inadequate to contain the asbestos, and that it should have been placed in sealed containers, transported by persons certified to handle hazardous waste, and taken to a landfill certified to dispose of it.

When Sheehan asked Mendoza whether he was concerned about asbestos, Mendoza said he had no concerns about it and “indicated his contempt for the asbestos regulations.” Mendoza said he had removed asbestos many times and that the regulations were “nonsense” and “just a joke.” Mendoza said he took the popcorn ceiling materials from the unit to a waste facility in Watsonville along with other waste from the job. Sheehan testified that this facility did not accept asbestos waste. Mendoza admitted to Sheehan that he did not tell the facility he was dropping off asbestos waste and Mendoza claimed that you can take anything to a landfill because “they’re all stupid and they never look at it.” Mendoza appeared “very contemptuous about it.”

2. Discussion

1. Sufficiency of the Evidence

Defendant contends the evidence was insufficient to support convictions on count 6 (failing to thoroughly inspect for regulated asbestos-containing material prior to construction) and count 8 (failing to have a competent person present during the disturbance of regulated asbestos-containing material).[1] The Attorney General contends substantial evidence supported convictions on these counts.

1. Legal Principles

“To assess the evidence’s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt.” (People v. Zamudio (2008) 43 Cal.4th 327, 357, citing People v. Maury (2003) 30 Cal.4th 342, 403.) The record must disclose substantial evidence to support the verdict such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Ibid.) The substantial evidence must be reasonable, credible, and of solid value. (Ibid.) We review the evidence “in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.” (Ibid.) “A reversal for insufficient evidence ‘is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support’ the jury’s verdict.” (Ibid.) The standard is the same under both the California Constitution and the federal Constitution. (People v. Jimenez (2019) 35 Cal.App.5th 373, 392.)

Subdivision (a) of section 61.145[2] requires that an “owner or operator of a demolition or renovation activity . . . prior to the commencement of the demolition or renovation, thoroughly inspect the affected facility or part of the facility where the demolition or renovation operation will occur for the presence of asbestos.” (40 C.F.R. § 61.145, subd. (a).) “The term ‘owner or operator’ is defined under the asbestos regulations as ‘any person who owns, leases, operates, controls, or supervises the facility being demolished or renovated or any person who owns, leases, operates, controls or supervises the demolition or renovation operation, or both.’ [Citation.]” (United States v. Dipentino (9th Cir. 2001) 242 F.3d 1090, 1096.) “[T]he question is whether the person ‘ha[d] significant or substantial or real control and supervision over [the] project.’ ” [Citation.]” (Ibid.)

Subdivision (c)(8) of section 61.145 provides in part that no asbestos “shall be stripped, removed, or otherwise handled or disturbed at a facility regulated by this section unless at least one on-site representative, such as a foreman or management-level person or other authorized representative, trained in the provisions of this regulation and the means of complying with them, is present.” (40 C.F.R. § 61.145, subd. (c)(8).) The subdivision sets forth detailed qualifications and training requirements for the designated representative, including the authority to take prompt corrective measures.

“Issues of statutory interpretation are questions of law subject to de novo review.” (People v. Reynoza (2022) 75 Cal.App.5th 181, 186.)

2. Sufficient Evidence Supported the Conviction on Count 6 (Failure to Thoroughly Inspect)

Mendoza does not dispute he was an “owner or operator of a demolition or renovation activity” under the regulations. Rather, he contends that because the regulation applies to “the owner or operator,” the regulation could have been satisfied if someone else conducted the inspection—e.g., Vujjeni, the owner of the unit, or some independent third party. He argues that the charge in count 6 required the prosecution to prove that none of the other responsible parties conducted the required inspection, and he argues there was evidence someone else conducted it. We are not persuaded.

Subdivision (a) of section 61.145 of the Code of Federal Regulations is phrased in the imperative: “To determine which requirements of paragraphs (a), (b), and (c) of this section apply to the owner or operator of a demolition or renovation activity and prior to the commencement of the demolition or renovation, thoroughly inspect the affected facility . . .” (40 C.F.R. § 61.145, subd. (a).) The language of subdivision (a) does not expressly state to whom this command is directed, but the subdivision specifies that “[t]he requirements of paragraphs (b) and (c) of this section apply to each owner or operator of a demolition or renovation activity, including the removal of [regulated asbestos-containing materials] . . .” (40 C.F.R. § 61.145, subd. (a), italics added.) Subdivisions (b) and (c) then set forth specific notification requirements and procedures for asbestos control. The most natural reading of the imperative language in subdivision (a) is that the duty to thoroughly inspect therefore applies “to each owner or operator of a demolition or renovation activity,” since those are the only parties identified as having duties anywhere else in the section. Consistent with this interpretation of the regulation, federal law makes it a criminal offense for an owner or operator of a renovation operation to fail to thoroughly inspect the facility where the renovation will occur. (United States v. Farley (M.D. Fla., Nov. 10, 2015, No. 8:15-CR-133-T-26MAP) [2015 WL 6956557], citing Fried v. Sungard Recovery Services, Inc. (E.D. Pa. 1996) 925 F.Supp. 364, 372.) We will construe the language of this section consistently with the construction adopted in federal courts. Because Mendoza was the operator of a renovation operation, he was required to thoroughly inspect the premises prior to starting the work.

As to Mendoza’s claim that the prosecution was required to show that none of the other parties performed a thorough inspection, Mendoza cites no legal authority for this position. He instead cites Sheehan’s testimony at trial. Sheehan is not a source of legal authority for the purposes of this appeal. In any event, Sheehan did not state that the prosecution was required to prove that none of the other parties performed the required inspection. When defense counsel asked Sheehan whether the property owner would be liable if the owner failed to disclose the presence of asbestos to a person hired to do renovations, Sheehan answered, “Well, the rule is that you must thoroughly inspect for asbestos prior to conducting work. That can be done by a contractor or it can be done by an agent of the owner. [¶] But if the owner doesn’t test it, the contractor doesn’t test it, an independent third party scientist who doesn’t care if it’s asbestos or not to find out that’s who has to test it. [Sic.] [¶] But that should be done. And it’s part of every contractor’s license is knowing that you need to test for asbestos prior to conducting work.” (Italics added.) Sheehan’s testimony thereby confirmed that a contractor has a duty to perform the inspection.

Consistent with the case law cited above, the trial court instructed the jury that the prosecution had to prove “the defendant failed to thoroughly instruct the renovation site for regulated asbestos-containing materials.”[3] Nothing in the instructions told the jury the prosecution was required to prove that no other party conducted the inspection, and no legal authority would have supported such an instruction.

Mendoza argues in the alternative that the evidence shows he did inspect the unit for asbestos or knew someone else had inspected it because he knew asbestos was present. He points to the fact that he had previously obtained an estimate from another company to do the abatement, and his statements to Sheehan showed he knew asbestos was present. This does not show that Mendoza “thoroughly inspected” the unit for asbestos as required by the statute. He had been told the unit contained a popcorn ceiling and he may have known asbestos was present, but that does not show he actually inspected the unit. Based on the evidence as a whole, including Mendoza’s statements showing contempt for the regulations, and the fact that he ignored virtually all other requirements of those regulations, a reasonable juror could infer beyond a reasonable doubt that Mendoza failed to perform a thorough inspection as well. Nor was there any evidence that any agent or employee performed it on Mendoza’s behalf. As to Mendoza’s admissions to Sheehan, they were made after the job had already been abated, but section 61.145 requires the operator to perform the inspection prior to the commencement of the work.

For the reasons above, we conclude this claim is without merit.

3. Sufficient Evidence Supported the Conviction on Count 8 (Failure to Have a Competent Person Present)

Count 8 charged Mendoza with failure to have a competent person present during the disturbance of the asbestos under subdivision (c)(8) of section 61.145. Mendoza contends the evidence is insufficient to prove he failed to have such a person present. He points out that no witnesses testified to being at the unit when he performed the work, and therefore there was no evidence of who was or was not present. But a reasonable jury could infer that if a competent person had been present, the person would have taken “prompt corrective measures” as authorized. The fact that no such measures were taken until the condominium association discovered the job implies that Mendoza had no such person present. Mendoza described to Sheehan how he scraped off the ceiling himself and disposed of it at a local landfill, but Mendoza made no mention of any other persons involved. And based on the evidence as a whole, including Mendoza’s expressed contempt for the regulations, and the fact that he ignored other regulations, a reasonable jury could infer beyond a reasonable doubt that Mendoza also failed to have a competent person present.

For the reasons above, we conclude this claim is without merit.

3. Disposition

The judgment is affirmed.

_______________________________

Greenwood, P. J.

WE CONCUR:

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Grover, J.

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Lie, J.

People v. Mendoza

No. H047961

[1] For brevity, we will refer to regulated asbestos-containing material as “asbestos”. Mendoza does not dispute that the materials at issue in counts 6 and 8 constituted “regulated asbestos-containing material” as defined in the applicable statutes.

[2] “Section 61.145” as used throughout this opinion refers to section 61.145 of Title 40 of the Code of Federal Regulations.

[3] Mendoza did not challenge the validity of this instruction below and he does not challenge it on appeal.