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People v. Duarte, G041195

Sentencing challenge for firearm and street terrorism convictions

People v. Duarte, G041195, concerned a challenge to the trial court's imposition of a sentence of 15-years imprisonment, in a prosecution of defendant for discharging a firearm with gross negligence, being a felon in possession of a firearm, and other related crimes.  The court affirmed the sentence with modification in concluding that the trial court should have stayed sentencing on the street terrorism count as section 654 bars punishment for the firearm offense and a separate punishment for the street terrorism substantive offense for the same conduct.

As the court wrote: "The trial court instructed the jury felonious conduct meant committing or attempting to commit either the crime of discharging a firearnm with gross negligenceis (count 1) or possession of a firearm by a felon (count 2).  Accordingly, the jury necessarily relied on one of the underlying firearm offenses to establish the requisite felonious conduct on the street terrorism charge.  In this circumstance, where the underlying felony is used to satisfy the felonious conduct element of a street terrorism charge, section 654 bars separate punishment."

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