People v. Cancino CA4/3

Filed 6/27/14 P. v. Cancino CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G048819

v. (Super. Ct. No. 11NF0610)

DAVID CANCINO, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Jonathan S. Fish, Judge. Affirmed as modified. Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent. * * *

A jury convicted defendant David Cancino of possession of a firearm by a prohibited person (Pen. Code, § 12021, subd. (a)(1); count 1)1 and possession of ammunition by a prohibited person (§ 12316, subd. (b)(1); count 2). The jury found true the allegations defendant committed both crimes for the benefit of a gang. (§ 186.22, subd. (b)(1).) The court found defendant had suffered a prior conviction of a serious felony and strike offense (§ 667, subds. (a)(1), (d), (e)(1)) for which defendant had served a prison term (§ 667.5, subd. (b)). The court sentenced defendant to a total term of 14 years in prison, comprised of six years on count 1, three years on the gang enhancement to count 1, and five years for the prison prior. The court imposed a concurrent term of six years on count 2. On appeal defendant contends the court (1) abused its discretion by admitting evidence of a statement made by a member of defendant’s gang, and (2) should have stayed execution of sentence on count 2. We agree that section 654 bars punishment on count 2, but we disagree with defendant’s evidentiary challenge. Accordingly, we impose a stay of sentence on count 2. As modified, we affirm the judgment.