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Name: In re Edward G.
Case #: F044894
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 12/07/2004
Summary

The appellant minor was convicted in count 1 of discharging a firearm from a vehicle at a person outside the vehicle (Pen. Code, sec. 12034) and in count 2 with assault with a firearm (Pen. Code, sec. 245, subd. (a)(2).) On appeal, he contended that the true finding on count 2 had to be reversed because assault with a firearm is a lesser necessarily included offense of discharging a firearm from a vehicle at a person outside the vehicle. The appellate court agreed and reversed. Further, the true finding on count 2 could not be upheld on the grounds that even though it is a lesser-included offense, it was supported by facts independent of those supporting count 1. The juvenile court implicitly found that the two counts were based on one act when it stayed the sentence on count 2 pursuant to section 654.