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                                           NOT TO BE PUBLISHED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
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              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.




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       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




1      Further undesignated section references are to the Penal Code.
2      Both parties and the trial court refer to the state agency as “California Department
of Fish and Game” (italics added); however, recent legislation changed the name of the
agency to California Department of Fish and Wildlife, effective January 1, 2013.
(Assem. Bill No. 2402 (2011-2012 Reg. Sess.) § 1.)

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ATV and two pigs shot from defendant’s truck. After the hunt, wardens identified
defendant as the passenger in the truck.
       On May 23, 2013, the Colusa County District Attorney’s Office charged defendant
with conspiracy to unlawfully take and sell wild game, possession of a firearm and
ammunition by a felon, and possession of marijuana for sale. The information alleged
that defendant served a prior prison term and had been released on bond during the
course of the alleged offenses. Prior to trial, the prosecution struck three overt acts from
the information and dismissed the marijuana charge. Defendant admitted the prior prison
term enhancement and that he was out on bond at the time of the commission of the
alleged offenses.
       A jury returned guilty verdicts for conspiracy to unlawfully take and sell wild
game, possession of a firearm by a felon, and possession of ammunition by a felon. The
trial court sentenced defendant to consecutive state prison terms for conspiracy to
unlawfully take and sell wild game and possession of a firearm by a felon because “the
crimes were independent in their objective and motive.” The court sentenced defendant
to an aggregate prison term of seven years and four months.
                                       DISCUSSION
       On appeal, defendant contends his sentence of consecutive state prison terms for
conspiracy and possession of a firearm by a felon was an error because his possession of
a firearm was incidental in “objective and motive” to the conspiracy to unlawfully take
and sell wild game. We agree that defendant’s sentence for possession of a firearm by a
felon must be stayed pursuant to section 654.
       Section 654, subdivision (a) provides in relevant part as follows: “[a]n act or
omission that is punishable in different ways by different provisions of law shall be
punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
provision.” (People v. Atencio (2012) 208 Cal.App.4th 1239, 1243.) At its simplest,

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section 654 precludes multiple punishment for a single act or for a course of conduct
comprising indivisible acts. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
       We review the trial court’s findings in the light most favorable to the respondent
and presume the existence of every fact the trial court could reasonably deduce from the
evidence. (People v. Jones, supra, 103 Cal.App.4th at p. 1143.) Whether section 654
applies to the facts in a given case is one of fact for the trial court to decide, and such
findings will be upheld on appeal if there is any substantial evidence to support them.
(People v. Atencio, supra, 208 Cal.App.4th at p. 1242.)
       Whether a course of criminal conduct is divisible depends on the intent and
objective of the actor. (People v. Jones, supra, 103 Cal.App.4th at p. 1143; Neal v. State
of California (1960) 55 Cal.2d 11, 19.) Whether unlawful possession of a firearm by a
felon constitutes a divisible transaction from the offense in which he employs the weapon
depends on the facts and evidence of each individual case. (People v. Jones, supra, 103
Cal.App.4th at p. 1143.) In Jones, the trial court imposed sentences on both counts of
shooting at an inhabited dwelling and possessing a firearm as a felon. (Id. at p. 1142.)
The appellate court affirmed, reasoning that because Jones arrived at his girlfriend’s
house with the firearm, it was reasonable to infer that the possession was “a separate and
antecedent offense, carried out with an independent, distinct intent from the primary
crime.” (Id. at pp. 1141, 1142.)
       The People contend that defendant’s possession of a firearm “both before and after
he was actively involved in the illegal hunting of game” supports affirming his unstayed
sentence for possession of a firearm by a felon. We reject this contention for two
reasons: first, defendant was sentenced for conspiracy to engage in repeated acts of
unlawfully taking and selling wild game -- not a discrete act of unlawful hunting; and
second, there is no evidence defendant possessed a firearm outside the conspiracy.
       The People contend that defendant’s possession of the firearm when he entered his
truck before and after he actively hunted on October 20, 2012, shows two separate

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offenses analogous to Jones’s possession of a firearm before shooting at his girlfriend’s
house. (See People v. Jones, supra, 103 Cal.App.4th at pp. 1141-1143.) This analogy to
Jones fails because here defendant’s offense other than possession of the firearm was
participating in a conspiracy to engage in repeated acts of unlawfully taking and selling
game over a period of months, while Jones was sentenced for an offense that consisted of
a single discrete act. Whether defendant’s possession of the firearm before and after
actively hunting is a divisible act from a single discrete act of unlawful hunting is not
before us.
       The People contend that defendant’s possession of a firearm was a separate
offense from the conspiracy to unlawfully take and sell wild game because defendant
necessarily possessed the firearm before and after unlawful hunting. The People define
the scope of the conspiracy too narrowly.
       “[T]he elements of a conspiracy are: 1) an agreement to commit a crime, and
2) an overt act done by a member of the conspiracy in furtherance of the agreement.”
(People v. Brown (1991) 226 Cal.App.3d 1361, 1367.) A conspiracy does not require
that the object of conspiracy be carried out or completed. (People v. Manson (1976) 61
Cal.App.3d 102, 156.) The overt act requirement serves to prove the existence of the
agreement. (People v. Brown, supra, 226 Cal.App.3d at p. 1368.) A defendant cannot be
convicted unless at least one overt act is alleged and proved by the prosecution. (Id. at
p. 1367.)
       The evidence shows defendant possessed a firearm only “by virtue of the joint
operation, the conspiracy, to effect the hunt,” as defendant stated in his opening brief.
The jury found defendant conspired to unlawfully take and sell wild game from on or
between May 15, 2012, and through October 27, 2012. The evidence shows defendant
illegally hunted a full bull elk in September 2012 with a shotgun then illegally hunted
wild pigs and deer on two occasions in October 2012. Defendant’s possession of a



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firearm while he looked for and shot wild pigs with coconspirators indicates these were
discrete acts of illegal hunting during an overall agreement of many months.
      The People confuse these discrete acts of illegal hunting with the conspiracy, that
is, the agreement to unlawfully take and sell wild game. No evidence in the record
suggests defendant possessed a firearm outside the conspiracy to unlawfully take and sell
wild game. Specifically, the long gun defendant possessed on October 20, 2012, was
seized from another coconspirator’s residence. Because defendant’s possession of the
long gun was only in conjunction with the primary offense of conspiracy to unlawfully
take and sell wild game, separate punishment for the illegal possession of the firearm was
improper. (See People v. Jones, supra, 103 Cal.App.4th at p. 1144.)
                                     DISPOSITION
      Defendant’s sentence is modified to stay the term of imprisonment on his
conviction of possession of a firearm by a felon. As modified, the judgment is affirmed.
The trial court is directed to prepare an amended abstract of judgment and to forward the
amended abstract to the Department of Corrections and Rehabilitation.



                                                      ROBIE                 , J.



We concur:



      NICHOLSON            , Acting P. J.



      DUARTE               , J.




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