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Man faces prison and fines for attack on seabird colony

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DENNIS ODA / MARCH 16

Christian Gutierrez was charged after an attack on a Laysan albatross colony that killed 15 birds and destroyed nests and eggs. Gutierrez discusses some matters with his attorney, Myles Breiner, in Circuit Court.

At the wind-swept western tip of Oahu, Laysan albatross nest and raise their young in a colony whose remote location offers some protection to the migratory seabirds with a 6-foot wingspan.

On the night of Dec. 27, 2015, a group of teenagers went on a rampage in the natural area reserve, beating the docile birds with a bat, hacking off their feet and stomping their nests and eggs. They also stole bird monitoring cameras, solar panels and a sound system.

Just one of the defendants, Christian Gutierrez, who was 18 at the time, is taking the rap publicly for his role. Two others were juveniles whose cases went to Family Court, where proceedings are confidential.

On Thursday the 2015 Punahou School graduate could face up to a year in prison and $2,000 in fines at his sentencing before Circuit Judge Jeannette Castagnetti on reduced charges in a deal to cooperate with the prosecutor. His attorney, Myles Breiner, has asked the court to defer the no-contest plea to give his client a chance to avoid conviction.

Gutierrez pleaded no contest to one count each of second-degree cruelty to animals and third-degree theft, both misdemeanors; fourth-­degree criminal property damage, a petty misdemeanor; and two counts of prohibited activities with wildlife and in a natural reserve.

He originally had been charged with felony theft and 15 counts of animal cruelty.

The New York University student was home for winter break when he and friends from Punahou went camping near the reserve. They brought along a machete, an air rifle and a bat, according to the prosecutor.

Breiner insists that his client was “a follower” and shouldn’t be held responsible for the group’s actions.

“He admitted participating but he didn’t organize it, he didn’t orchestrate it, he didn’t bring the machete,” Breiner told the Honolulu Star-Advertiser. “There was one kid in particular who brought all the equipment and drove the vehicle and was responsible for initiating the attack on the birds.”

The attorney argued in a sentencing memorandum filed Monday that Gutierrez should get a deferral because of his youth, lack of criminal record and a psychologist’s assessment that he has “zero” likelihood of re-offending. He called incarceration “an extreme option” for a first-time offender pleading to misdemeanors who proactively sought mental health treatment.

“He feels terrible at what he did,” Breiner said in the interview. “He loves animals, and the fact that he had a hand in the destruction of the habitat deeply troubles him. He is in counseling.”

The prosecutor, however, sees “no mitigating factors” and is seeking the maximum penalty.

“The events which took place in the late evening/early morning hours in late December 2015 reflect a savagery and lack of conscience on the part of the perpetrators that cannot be excused by their age, upbringing or peer pressure,” Deputy Prosecutor Janice Futa wrote in the state’s sentencing memo.

“Defendant was the oldest of the three perpetrators,” she wrote. “By all reports he had a supportive and caring family. He graduated from one of the best high schools in the state. At the time he committed these crimes, he was attending a top-rated college in New York City. This is not the background of a naive follower but rather of an intelligent, self-aware person with initiative.”

An aspiring filmmaker, Gutierrez has won awards for his work, including a national Scholastic Art Award for photography in 2013 and a local award for a two-minute horror film trailer he made at age 15.

Punahou School works to instill environmental awareness in its students, and cooperated in the investigation. Eighth-graders go on field trips to Kaena Point to learn about conservation work there, said Lindsay Young, executive director of Pacific Rim Conservation, the nonprofit that conducts research at the colony.

“Kaena Point has been designated as one of the most special and sacred places in the state,” Young said. “This is the only place that the public can go to see these birds up close in their natural habitat.”

The reserve is home to more than 300 Laysan albatross, about half of them actively breeding in any given year. Females lay just one egg a year and trade off with their partners to sit on it and protect it.

Laysan albatross are not an endangered species, but are protected by the federal Migratory Bird Treaty Act and state law. A 6-foot-high fence at the reserve is designed to protect the birds from predators, including dogs, cats, mongooses and rats.

The impact of the human rampage in the preserve will be felt for years, Young said. At least 15 adult albatross were killed, 17 nests destroyed and 11 eggs crushed, and six other eggs died when they lost their parent, according to the Department of Land and Natural Resources.

“The albatross don’t begin breeding until they’re 8 years old, so it’s going to take that long to get them back, regardless of how many were lost,” Young said.

Marjorie Ziegler, executive director of the Conservation Council for Hawaii, sees the high-profile case as a test of the Environmental Court, launched in 2015 to handle civil and criminal cases affecting the environment.

“It was a heinous crime; it was just horrible,” Ziegler said. “It was premeditated and very deliberate. If we don’t do something on this one, when are we going to send a message to the public that this is not acceptable?”

She added, “Everybody’s watching. I hope the judge gives him the maximum.”

But Breiner said Gutierrez has already paid a steep price.

“Mr. Gutierrez has accepted full responsibility, expressed sincere remorse for his conduct and received (the) majority of the public’s backlash for his participation in the offense,” the attorney wrote in his memo.

“Mr. Gutierrez’s name and picture will forever be associated with this crime,” he added. “He is accountable for his conduct; however, sentencing Mr. Gutierrez based on the aggregate conduct displayed by the group of individuals as a whole is offensive to any notion of justice and equal treatment under the law.”

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