Apart from containing statutes defining what constitutes and does not constitute an offense, the California Penal Code also contains numerous statutes that provide judges and prosecutors with ways to enhance punishments for given criminal activity. These statutes are known as "sentence enhancements." An example of these laws is the firearm sentencing enhancement law.

Firearm sentencing enhancement laws provide an increased sentence for criminal activity involving firearms. They can usually add several years to the underlying sentence of an offense, making a person serve a longer prison term. You want to seek expert legal counsel to avoid a sentencing enhancement or even a conviction for the underlying offense.

At California Criminal Lawyer Group, we have successfully defended clients facing criminal charges and sentencing enhancements for firearms-related crimes and can do the same for you. One of our strategies to fight sentencing enhancements is to ensure our client is not found guilty of the underlying offense in the first place. If you have been charged with a crime involving firearms in Santa Ana, do not hesitate to call us for a consultation and to learn more about how we can help.

An Overview of Firearm Sentencing Enhancements

Under California firearm laws, a felony sentence can be increased if the defendant or their accomplice used or possessed a gun while committing the violation. In cases like this, the prison term for the felony in question can be significantly lengthened, and the fines can be heftier.

Note that sentence increments for personally using or possessing a gun apply only to felony firearm offenses. They impose more time in jail or prison, and this time is served additionally and consecutively to the consequences of the underlying violation.

The prosecution must usually prosecute sentence enhancements. And to be subject to the enhanced punishment, you must plead guilty to the charge against you, or the court judge must find you guilty of every element.

The specific enhancement applying to your case is based on the specific facts of your crime, including the following:

The Underlying Offense

Your gun sentencing punishment will be enhanced some more if the underlying violation is a violent crime, a serious sex crime, or a serious drug violation. Violent crimes include more than two dozen violations, such as murder, kidnapping, and rape.

Whether You Utilized the Firearm or Simply Had It In Your Possession

Some sentencing increments necessitate that you use a firearm. In this case, using a gun is not only about firing the weapon. It also entails displaying the firearm threateningly or striking another party with a weapon.

Other sentence increments are imposed if you were only armed with ammunition or a gun. A person is considered armed if they consciously carry a firearm or ammunition or have it ready for use. "Ready for use" does not imply the firearm is loaded and can shoot at any time. It also does not mean that the gun is immediately accessible. It merely means the ammunition or firearm is placed at the crime scene.

Whether or Not You Yourself Used the Firearm

Most gun enhancements do not necessitate that you personally use or have a gun. Unless a law dictates otherwise, any principal offender can be subject to an increased sentence.

Sentencing enhancements resulting from the use or possession of a gun at the time of committing a felony offense include the following:

  1. Penal Code Sec. 12022.55, Discharging a Gun From a Vehicle During the Perpetration of a Felonious Act

PC 12022.55 provides a sentencing enhancement where all of this is true:

  • You discharged a firearm from a car,
  • During the perpetration or attempted execution of a felonious act,
  • You intended for your shooting to severely injure or kill someone outside of the vehicle, and
  • You did severely injure or kill someone else outside of the car.

  1. Penal Code Sec. 12022.53, Personally Using a Gun When Committing a Serious Felony

Penal Code 12022.53 is popularly known as the state's 10-20-life "use a gun and you are done" law. It provides a sentence increment for personally using a gun when committing a serious felony. Serious felonies include, without limitation, murder, mayhem, kidnapping, rape, and robbery.

  1. Penal Code Sec. 12022.5 PC, Personally Using a Firearm, Assault Weapon, Machine Gun, or 0.50 BMG Rifle When Committing a Felony Violation

You would face a sentencing enhancement under 12022.5 PC if you yourself used a gun while committing or trying to commit a felony. Using a gun personally means intentionally displaying it menacingly, firing it, or hitting someone else with it.

12022.5 PC does not apply to felonies that necessarily require using a firearm as a fact of the offense. However, it applies to felony violations that could be perpetrated without or with a firearm. For example, murder can be executed with a gun, with other weapons, or without any weapon. Therefore, you may face punishment for killing somebody and using a gun while committing the crime.

12022.5 PC applies to any felony that does not necessarily require using a gun. However, to avoid doubt, the law lists two offenses in this category: assault using a gun and murder if perpetrated during a drive-by shooting.

While it may seem that assault using a firearm and a drive-by shooting necessarily require using a firearm, they do not. Per the state's aiding and abetting statutes, sometimes known as accomplice liability, a person can be criminally liable for a felony offense even if they only facilitate, aid, or encourage its commission. Thus, you may be convicted of killing by drive-by shooting or assault using a gun without personally using a gun.

Consequently, the prison term for the perpetration of these crimes does not automatically include penalties for personal gun use. Therefore, if you yourself used a gun during an assault with a gun or murder during a drive-by shooting, your prison term could still be increased under 12022.5 PC.

  1. Penal Code Sec. 12022.4, Furnishing or Trying to Furnish Someone Else with a Gun to Aid Them at the Time of Committing a Felony Offense

Penal Code Section 12022.4 criminalizes the furnishing or attempted furnishing of a gun to another for them to use while committing a felony. Per this law, "while committing or trying to execute a felony violation" has a broader definition than other gun enhancement laws. Here, you need not be present while the violation is perpetrated. If you furnish someone with a firearm before they commit a felony, the enhancement applies, provided that giving out the weapon is part of one continuous transaction.

  1. Penal Code Sec. 12202.3, Possession or Use of a Gun During the Perpetration of Particular Sex Crimes

PC 12202.3 penalizes using or having a gun during the perpetration of given sex offenses. Examples of these violations include, without limitation, rape, lewd acts with a minor, and forcible sodomy. You need not complete the sex act specified under 12202.3 PC to face sentencing enhancement. It counts as an offense, provided you maintain control over the victim.

Therefore, you would be guilty of sentencing enhancement even if you did not show your firearm to your supposed victim until after you completed the sexual act.

  1. Penal Code Sec. 12022.2, Possession of Ammunition Meant to Penetrate Armor or Metal

PC 12022.2 provides a sentence increment for anybody who:

  • Perpetrates a felony offense while armed with a gun and in immediate possession of ammunition meant mainly to penetrate armor or metal, or
  • Puts on a body vest during the perpetration of a violent felony.

A body vest is any bullet-proof material designed to provide trauma and ballistic shielding for the individual wearing it.

  1. Penal Code Sec. 12022, Having a Gun During the Perpetration of a Felonious Act

Penal Code Section 12022 will apply to your case if, when committing the felony offense, you had a gun or used a deadly or dangerous weapon. Under this law, a "deadly or dangerous weapon" is a weapon other than a firearm. Therefore, as 12022 PC pertains to guns, only gun possession is penalized. The enhancement for using a gun while committing a felonious act is described under a different law.

Note that as of January 1, 2018, the law gives judges the power to dismiss firearm enhancements under PC 12022.53, 12022.5, and 122022 in situations where it would serve the interest of justice. This change resulted after the passing of SB 620 in 2017, and it applies to all sentences and resentencing handed down starting in 2018.

Unloaded or Inoperable Firearm

Whether a firearm is operable or not is immaterial for most firearm laws' purposes, including firearm sentencing enhancements. Therefore, you may be subject to an increased sentence for using or having a gun, even if that gun is not functional. What matters is whether or not the firearm is designed for shooting and has a realistic appearance of shooting ability. Similarly, prosecuting attorneys can accuse you of a gun sentencing increment even if your firearm is not loaded.

Legal Defenses to Firearm Sentencing Enhancements

Luckily, there are several legal defenses a skilled lawyer can present for you. Based on the specific enhancement, valid defense strategies can include, without limitation:

Illegal Search and Seizure

The Fourth Amendment to the United States Constitution forbids unreasonable searches and seizures. A law enforcement officer may not search your person, property, or vehicle unless they have:

  • Obtained a legitimate search warrant mentioning the specific property to be searched and the items being sought.
  • Probable cause prompting the search. “Probable cause” is a reason to believe you are involved in criminal conduct or pose a threat to the police officer's safety.
  • Your voluntary permission to search

If the officer did not meet the above requirements, their search would have violated your constitutional rights. And if the officer's search is unlawful and they discover a gun as evidence, the evidence is not admissible in court.

Police Misconduct

If you were subjected to police misconduct during your case, the judge or D.A. might dismiss your underlying offense. You will not face a sentencing enhancement if your underlying charges are dropped. Examples of scenarios considered police misconduct include, without limitation:

  • An officer plants a weapon in your vehicle or on you.
  • A police officer lies in their report, or
  • A law enforcement officer gives false testimony regarding the facts making up your case.

You Did Not Personally Use a Firearm While Committing the Crime

Particular sentence enhancements do not apply unless the defendant personally used a gun. The most common of these enhancements are:

  • 12022.53 PC, personally utilizing a gun while committing a serious felony.
  • 12022.5 PC, personally using a gun, assault weapon, or machine gun while committing a felony offense.

The judge cannot order a sentencing increment against you if the prosecution cannot demonstrate that you personally used the firearm.

You Did Not Commit the Underlying Felony

Recall that you will only be subject to a firearm sentencing increment if the judge finds you criminally liable for the underlying felonious act. Therefore, one way to avoid sentencing enhancement is to prove that you did not commit the underlying felony.

Based on the underlying felony facts, various legal defenses can apply when trying to prove you did not commit the crime. If the judge rules that you are innocent of the felony charges against you, they will also rule you innocent under the firearm sentencing enhancement statutes.

Sentence Ranges for Gun Enhancements

Most gun sentence enhancements allow judges to sentence defendants to high, middle, or low prison terms. However, some sentencing increments dictate that the presiding judge must order the middle prison term unless aggravating or mitigating circumstances are present in the criminal case.

Aggravating factors are facts that permit a court judge to order a longer prison term. Conversely, mitigating circumstances justify the judge's imposing a more lenient sentence. Sometimes, mitigating factors warrant the judge striking the sentence enhancement entirely.

Mitigating or aggravating factors usually relate to the accused or the offense. Crime-related factors include, without limitation:

  • Whether you passively or actively participated in committing the crime
  • Whether the offense was cruel
  • The sophistication or planning of the violation

Defendant-related factors include, without limitation:

  • Whether you have a past criminal history
  • Whether you freely acknowledged committing the crime at the early stages of criminal prosecution
  • Whether you have a record of violent behavior

Consequences for Gun Sentencing Enhancements

Every enhancement will subject you to particular years of incarceration. The enhanced sentence is served additionally and consecutively to the sentence you face for your underlying crime. The additional period imposed ranges from 12 months to life imprisonment, based on the following:

  • Your criminal record
  • The underlying felonious act
  • Whether you utilized the firearm or merely had it with you,
  • Whether you or someone else involved in the felony used the firearm
  • The kind of weapon or gun involved

Consequences Under PC 12022

If you face a 12022 PC gun sentencing increment, you will be subject to the prison term for your underlying felony violation and an additional, consecutive prison term as follows:

  • Certain felony drug crimes carry a sentence enhancement, per 12022 PC. These violations include, without limitation, drug possession to sell and the selling or transporting of drugs. If you personally had a gun while committing one of these drug violations, you will be subject to an additional, consecutive five, four, or three years. Lastly, you will face an additional and consecutive three, two, or a year in prison if you were not personally armed with a gun but knew that your accomplice had one. The sentence is served additionally and consecutively to the underlying offense.
  • If the gun with which you were armed were a 0.50 BMG rifle, machine gun, or assault weapon, you would receive an additional, consecutive prison term of three years.
  • You will face 36, 24, or 12 months of prison time if your underlying offense is carjacking or attempted carjacking, served additionally and consecutively to the sentence of the underlying carjacking violation.
  • If none of the above circumstances apply to your case, you will be subject to an additional, consecutive sentence of 12 months for being armed with a gun while committing a felony.

Penalties Under 2022.2 PC

You would be subject to an additional, consecutive prison term of ten, four, or three if you had armor- or metal-penetrating ammunition when you committed the underlying felony offense. If there are no aggravating or mitigating factors in your case, the presiding judge must impose a four-year prison term. Otherwise, they will use their discretion to decide what sentence to order against you. The judge has to provide reasons for their choice of sentence on the record during sentencing.

If you had a body vest on while committing a violent crime, you would face an additional and consecutive five, two, or one year in prison. The judge must impose a two-year sentence increment, except if there are mitigating or aggravating factors. Also, the judge must provide reasons for their choice of enhancement on the record during the sentencing.

Penalties for Penal Code Section 12202.3 Violation

If you were only armed with a firearm when committing a sex offense, you would face a sentence enhancement of five, two, or one year. And if you used the firearm, you would face ten, four, or three years in prison. This sentence enhancement is served additionally and consecutively to the prison term of your underlying sex crime.

Penalties Under Penal Code Section 12022.4

The penalty under PC 12022.4 enhancement law is an additional, consecutive three, two, or one year in prison. The judge must impose the middle prison sentence (two years), except if they find mitigating or aggravating circumstances in your case. They must provide reasons for their sentence choice on the record during sentencing.

Penalties Under 112022.5 PC

Under 12022.5, you will be subject to ten, four, or three years in prison, served additionally and consecutively to the sentence you will face for your underlying violation. But if you used a machine gun or assault weapon, the enhancement would be increased to ten, six, or five years.

Consequences Under PC 12022.53

PC 12022.53 adds to the sentence of the underlying felony the longest prison term as follows:

  • Ten years of incarceration if you used a firearm
  • Twenty years if you fired a gun
  • Twenty-five years to life in incarceration if you murdered or inflicted a severe injury on someone else using a firearm during your offense

The enhancement is served additionally and consecutively to the prison term of your underlying offense.

Consequences Under Penal Code Section 12022.55

If the prosecution proves all the elements under PC 12022.53, the judge can order an additional prison term of ten, six, or five years. The additional sentence runs consecutively (instead of concurrently) with the prison term for the underlying felonious activity.

Where Multiple Enhancements Apply

Regardless of the crime, the jusge can only penalize you under a single gun sentencing increment law. If multiple enhancements apply, the judge will impose the one carrying the longest possible prison term.

For example, Andy is found guilty of rape at gunpoint. Per 12022.3 PC, he faces a sentence increment of five, two, or one year in prison for using a gun to perpetrate a serious sexual violation. However, if Andy's firearm were loaded with armor-piercing ammunition, 12022.2 PC would also apply. And because it dictates a term of ten, four, or three years, it is the law the court will refer to when enhancing Andy's prison term for their rape crime.

Despite the above-mentioned, gun sentencing increments may apply for every felony count where a gun is used or carried. Thus, if multiple felony counts are charged, you may face several sentencing increments, whether or not they arise from the same activity. Therefore, if, for example, there are numerous counts due to the presence of multiple victims, you may face numerous punishments.

Find Expert Legal Counsel Near Me

If you have been arrested for or charged with a firearm-related offense in Santa Ana, we at California Criminal Lawyer Group can help. We aggressively defend clients facing firearm and weapon charges, ensuring they do not unnecessarily receive sentence enhancements that could substantially increase their prison terms. To schedule a cost-free consultation for a case evaluation, call us today at 714-844-4151.