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Name: People v. Duarte
Case #: G041195
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 11/16/2010
Subsequent History: rev. granted 2/23/11 (S189174)

Where the underlying felony is used to satisfy the felonious conduct element of a street terrorism charge, Penal Code section 654 bars separate punishment. Appellant was convicted of discharging a firearm with gross negligence (Pen. Code, sec. 246.3, subd. (a)); being a felon in possession of a firearm (sec. 12021, subd. (a)(1)); and street terrorism (sec. 186.22, subd. (a)). Gang enhancements, and a prior “strike” conviction were also found true. The court sentenced him to 4 years for discharging a firearm; a 5-year term for the gang enhancement; 16 months for street terrorism; and 4 years for the firearm possession by a felon. According to the evidence presented at trial, appellant drove up to a park, got out of a car, and fired three shots while yelling “South Side,” or “South Side Huntington Beach.” The appellate court held the 16-month term imposed for the street terrorism offense should have been stayed under Penal Code section 654. The purpose of section 654 is to prevent multiple punishments for a single act. Here, the jury relied on the underlying firearm offense to establish the requisite felonious conduct on the street terrorism charge. The court reasoned that in accord with the plain language and intent of section 654, where the underlying felony is used to satisfy the felonious-conduct element of the street terrorism charge, section 654 bars separate punishment. (Compare with People v. Herrera (1999) 70 Cal.App.4th 1456.)