People v. Carrion CA3

Filed 12/16/14 P. v. Carrion CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Colusa) ----

THE PEOPLE, C074682

Plaintiff and Respondent, (Super. Ct. No. CR549281)

v.

BRYAN DOUGLAS CARRION,

Defendant and Appellant.

A jury found defendant Bryan Douglas Carrion guilty of conspiracy to unlawfully take and sell wild game and possession of a firearm and ammunition by a felon. Defendant admitted a prior prison term enhancement and that he was out on bond at the time of the commission of the alleged offenses. The court sentenced defendant to an aggregate prison term of seven years and four months.

1

On appeal, defendant contends his sentence for possession of a firearm by a felon must be stayed pursuant to Penal Code1 section 654 because his possession of a firearm was incidental in “objective and motive” to the conspiracy to unlawfully take and sell wild game. We agree. Accordingly, we modify defendant’s sentence and affirm the judgment as modified. FACTUAL AND PROCEDURAL BACKGROUND In 2012 California Department of Fish and Wildlife2 (Fish and Wildlife) investigated defendant and three other men for unlawful hunting. In September 2012, defendant and a coconspirator brought a full bull elk to Carroll Ehrke for processing at his facility. Defendant told Ehrke that he had shot the elk. On October 20, 2012, Fish and Wildlife wardens observed coconspirator Jason Martinez driving with defendant riding in the passenger seat. When defendant exited the truck, he carried a long gun over his right shoulder then mounted an ATV with his coconspirator to hunt wild pigs. Using aerial surveillance, the wardens observed defendant fire the long gun. Throughout the night, defendant and his coconspirator shot three pigs, taking two and leaving one behind. At one point the men took a break and the long gun was placed on the ATV. The wardens observed one man pick up the long gun and hand it to the other man before they both got back on the ATV. Wardens later seized the long gun from another coconspirator’s residence. On October 25, 2012, wardens tracked defendant and a group of men by aerial surveillance and by ground unit. Warden Chris Stoots observed one pig shot from an