In California, it is crucial to understand that there are several special regulations and laws. These laws and regulations are to maintain public order and sanity. It's vital to adhere to them to avoid running afoul of the law. While it may not be easy to study every law, it is crucial to understand the processes involved in their application.
When it comes to firearms, there are specific elements of sentencing that you must fully grasp. If you break the rules governing gun use and are convicted, you may receive "extra" sentencing. Putting in mind that the “extra” sentencing or firearms sentencing enhancement can be severe, you must find proper legal representation to avoid more stringent penalties.
If you face allegations for a gun offense, talk to a criminal defense attorney. The Los Angeles Criminal Defense Attorney could assist you in your case, before and during trial for firearms sentencing enhancements.
Understanding Firearms Sentencing Enhancement Statutes
In California, firearms sentencing enhancement laws are under sections 12022 to 12022.55 of the Penal Code. An in-depth look at the particular clauses is as follows:
- Section 12022 Penal Code- having a firearm while committing a crime.
- Section 12022.2 Penal Code- having ammunition meant to penetrate shielding or metal.
- Section 12202.3 Penal Code- Possession of a firearm while committing sex offenses as defined under the law.
- Section 12022.4 Penal Code- Providing or furnishing someone with a weapon or firearm intended for a felony crime commission.
- Section 12022.5 Penal Code- Using a gun to commit a felony offense
- Section 12022.53 Penal Code- Using a weapon or firearm to commit serious felony crimes
- Section 12022.55 Penal Code- Firing from a car while committing felony crimes.
Importantly, each of these sentencing enhancements carries specific penalties added to your sentences for the underlying crime. As earlier mentioned, the firearms sentencing enhancement might be severe and subject you to several years in jail or the California state prison. It will carry an additional time in jail that ranges from one year to life imprisonment. However, this is dependent on several factors, including:
- An underlying felony offense
- The type of weapon used in committing the crime
- If you used the weapon or your accomplice used it during the crime.
- If you had the firearm with you or you used it.
- Your past crime record
However, even with these seemingly dire consequences, your case can be argued using certain legal defenses that will lessen the sentencing. Therefore, you shouldn't despair if found in such sentencing, as a criminal defense attorney can professionally argue your case in court in your favor. To fully understand the particular elements that constitute sentencing enhancement, let us dive into how the sentencing works.
Circumstances for Firearms Sentencing Enhancements in California
To be charged and handed firearms sentencing enhancement, you must have committed a felony offense using a gun. These enhancements punish offenders with jail term as an additional penalty to the underlying felony crime committed. A prosecutor is mandated to charge you for the felony and the enhancement. If you plead guilty, admit the crime and charges leveled against you, or the prosecutor proves beyond a reasonable doubt that you are the offender, then you will receive sentencing.
Key circumstantial evidence that would see you sentenced include:
You Used the Firearm
It is not a requirement that you used the weapon to be charged and sentenced in California. As of Penal Code 12022 PC part (a)1, you will face prosecution if you are a "principal" in the commission of the crime. As a principal, you either actively and directly committed the offense or aided someone to commit the crime.
You Were Armed and Used the Firearm
In this respect, "use" does not limit the action of firing using the firearm. It includes the display of the weapon in a way considered threatening. It also implies that you struck one with the firearm and is summarily looked at from the perspective of the weapon's potential to discharge during the act. Therefore, you may receive sentencing enhancement if you use the gun within this understanding. There exists another perspective in the collective meaning of the term "armed."
Being armed in this respect means that you knowingly carried the gun, and it was available for your use. It is important to note that the weapon "being available for use" doesn't imply that it was in your immediate access or that it was loaded and would readily shoot. The understanding is that the weapon was at the crime scene.
Underlying Felony Offense
As a critical aspect, the jury might hand you harsher sentencing based on the gravity of the underlying felony offense. Severity increases if you are facing charges related to:
- Serious drugs offenses
- Serious sex offenses
- Violence offenses such as murder, rape, or kidnapping
If there is more than a single sentencing enhancement that should be applied in your case, the judge will consider the enhancement that carries the most extended term. You, therefore, will be subjected to the penalties of that particular sentencing. However, at times there are sentencing ranges that the law allows the court to impose in strict accordance with these provisions. A judge has the discretion to select a lower, medium, or higher term.
In other instances, the law is explicit that a judge must hand you sentencing enhancement based on the mid-sentence. The exception can only be in situations where circumstances point towards "mitigation" or "aggravation." In mitigation, factors must show that the judge should hand you a shorter or lower term, while in aggravation, the judge is obliged to pick on the higher sentencing. Sometimes in mitigation, the court may strike the enhancement in your favor.
In arriving at the sentencing, the court will consider factors such as if the crime is vicious or cruel, if you actively or passively took part in the act, or how sophisticated the crime was. These are factors that relate to the crime itself. On the other hand, factors about the offender include any previous criminal record, if you have a history of violence, and if you plead guilty at the initial stage, thus acknowledging your crimes.
Penalties for Firearms Sentencing Enhancement in California
As discussed earlier, sentencing enhancement penalties are dependent on individual statutes. Different statutes carry different sentencing enhancement penalties that range from a year to life in prison based on the above-discussed factors. Therefore, it is essential to look at specific sections of the Penal Code and its penalties.
12022 Penal Code- Having a Firearm While Committing a Crime
In this law, you will face sentencing if found armed with any weapon or used a deadly or dangerous weapon while committing a felony. A deadly and dangerous weapon is any weapon other than a firearm. With this understanding, this statute aims at punishing you for the possession of the said weapon. If found guilty, the use of that said weapon will earn you longer sentencing.
In arriving at the sentencing, the court will look at the sentence you have relating to the prevailing underlying felony offense and the additional term that forms the understanding of the firearm sentencing enhancement. It means if the prevailing underlying felony offense is attempted-carjacking or carjacking, you may face an additional one (1) or two (2) years in state prison or even three (3) years based on the circumstances of the crime. If armed with a dangerous weapon such as machine guns, .50 BMG rifle, or an assault weapon, you might receive up to three (3) years.
Suppose your violations were drug offenses, and you possessed a weapon during the crime commission. In that case, the additional enhancement will include three (3), four (4), or a maximum of five (5) years. If not with a gun but an accomplice, here referred to as a principal, was, and you knew it, you will receive a sentencing enhancement of up to one (1), two (2), or three (3) years.
12022.2 Penal Code- Possession of Ammunition Meant to Penetrate Shielding or Metal
Under this statute, sentencing enhancement applies for any person armed with ammunition meant to penetrate a shielding or metal while committing a felony, or the offender wore a body vest while committing the crime. A body vest is a bullet-resistant armament that would protect one from trauma or ballistic impact.
Besides, and as consecutive to the underlying felony crime committed, you will be handed three (3), four (4), or ten (10) years if you had shielding or metal piercing armor. If circumstances that constitute mitigation or aggravation are absent, then the judge will hand you a term of four years in prison. The judge will issue reasons for the choice of terms imposed.
If you had the body vest on while committing the felony, you would receive one (1), two (2), or up to five (5) years sentencing on top of the sentence for the underlying felony crime committed. Likewise, in the absence of circumstances that would build a case for mitigation or aggravation, the court will hand you a two-year term in California state jail. The court will give reasons as to the choice of the jail period given.
12202.3 Penal Code - Possession of a Firearm while Committing Sex Offenses
Some sex offenses will see you handed an additional term in prison if you committed them while carrying a firearm. Such include rape, under 261 PC, forcible sodomy, under 286 PC, or acts considered lewd with minors, under 288 PC. Even when you reveal the firearm after the sexual act, the law will still punish you.
Penalties for possession of the firearm while committing sexual offenses will see you handed one (1), two (2), or a five-year sentencing enhancement. In case you used the gun, you will receive three (3), four (4), or up to ten (10) years in state prison.
12022.4 Penal Code- Providing or Furnishing a Person with Firearms Intended for a Felony Commission
The statute prohibits you from attempting to furnish someone with a weapon aimed for use while committing a felony. Interestingly, the law provides that you stand to face the severe consequences of committing this crime, even when you weren't at the scene. In other words, if you furnish one with a weapon before the commission of the felony, you will still be punished even when you weren't at the scene.
You will receive an additional enhancement of one (1), two(2), or a three (3)-year term at the California state prison for this crime. If the court fails to find circumstances for aggravation or mitigation, you will receive a two-year jail period, which is the middle term as per the law. Reasons for handing you such sentencing will be put on record by the judge.
12022.5 PC- Personally Using a Firearm to Commit a Felony
Under this statute, you will receive sentencing enhancement if you personally used the firearm in committing a crime. By personally used, the law assumes that you menacingly brandished the gun, you shot or fired, or you used the weapon to hit someone. It is important to note that this law will not apply if the felony offenses you are charged under require that you used a firearm. It is as per the provisions of the “double jeopardy” provisions.
Under the double jeopardy or multiple enhancement, the court cannot impose numerous penalties for the same offense. It means that if the sentence handed for the underlying felony is in place, you may not face sentencing enhancement if the enhancement is poised to punish the same behavior. The court will look keenly at whether the firearm's possession is an element of the underlying felony offense. If that is the case, then the punishment of that offense will punish gun possession. Application of penal code 12022.5 would constitute double jeopardy.
However, sentencing enhancement under this statute will apply to felonies that you can commit with or without a weapon. For example, under Penal Code 187, murder can be executed by the offender with or without a gun. Thus you will be charged and sentenced for murder while receiving sentencing enhancement for committing murder using an arm.
As a punishment, the penalty for violating 12022.5 Penal Code will see you handed two (2), three (3), or up to ten (10) years in California state prison as an addition to the sentencing of the prevailing underlying felony crime. In a situation where the weapon in question was an assault weapon such as machine guns, you may face up to five (5), six (6), or ten (10) years behind bars.
12022.53 Penal Code- Personally Using a Firearm to Commit Serious Felonies
If you use a firearm to commit a serious felony, your sentencing enhancement will fall under this statute. Some of the severe felonies in this respect include murder (187 PC), mayhem (203 PC), kidnapping (207 PC), rape (261 PC), and robbery (211 PC).
Penalties under this statute are considered the longest and may extend up to:
- Ten (10) years imprisonment if you used a gun.
- Twenty (20) years if you fired the gun while committing the crime.
- Twenty-five (25) years to a maximum of life imprisonment if you seriously injured or killed someone.
The sentencing enhancement is beside the sentencing received for the commission of the underlying felonies. Additionally, stiffer penalties exist for anyone who discharges a firearm while in a car under 12022.55 PC. The provision for this statute is necessary to curb drive-by shootings that were becoming a menace in California. Essentially, the law prohibits and lays stricter penalties for anyone shooting from a firearm while driving in a car.
Significantly, you will still be punished by the court regardless of whether your firearm was operable or not. Further, the law will punish you even when you possess an unloaded weapon. The California law doesn't consider these two situations and the same principle applies to firearm enhancement sentencing. The court will only assess whether the firearm was designed for shooting or displays the capability to shoot in deciding the terms for sentencing. If the weapon had that capability yet it was unloaded, sentencing enhancement still applies.
Remember, if the government considers your weapon a nuisance after the conviction, you may end up losing your gun. However, there exist some possible legal defenses that your legal team can mount in your favor, as discussed below.
Possible Legal Defenses for Firearms Sentencing Enhancement in California
Several defense lines that your criminal defense team can employ in helping you fight off the charges leveled against you exist. Regardless of how severe and punitive firearms sentencing enhancement seem, a qualified and experienced attorney can argue that:
You aren't the Offender in the Underlying Felony
Using this argument, your attorney will rely on proving your innocence in the underlying felony charges. Without a conviction for the underlying felony charge, you cannot stand accused and sentenced for additional crimes that constitute an enhancement.
You didn't use the gun in the Commission of the Underlying Crime
For specific sentencing enhancement to be applied, the prosecution must prove that you used a weapon while committing the underlying offense. Such instances are as provided in Penal Code 12022.5 and Penal Code 12022.53. If the prosecutors cannot prove that you were in possession and used firearms in violating these laws, you cannot receive a sentencing enhancement.
The Law Enforcers Committed a Misconduct
Under gun offenses convictions, police misconduct is a serious oversight. If they commit such an offense, then the underlying felony charges will summarily be dismissed. Without the underlying conviction, you cannot face sentencing enhancement, as there will be no sentence that needs enhancement.
It was an Illegal Search
The US Constitution prohibits unnecessary and illegal searches and seizures under the Fourth Amendment. Under this provision, the police may not conduct and seize illegally from your estate any items without:
- Having probable cause for the search.
- Possessing a valid search warrant that is specific on what items the police can search and on what property.
- You voluntarily consent to the search.
If, in the process, they discover a gun on your property during the illegal search, the weapon can't be used as evidence in court by the prosecution. If the underlying crime was a robbery, you may be charged for the offense but cannot receive an enhancement of the robbery sentencing if the gun is absent in court as evidence. Therefore, even if they discover a weapon, your criminal defense attorney can argue that the search was illegal and the gun inadmissible in court.
Judges Discretion to Throw Out Firearms Enhancement Sentencing Charges
As a final point to note, new laws now exist that award judges the discretion to throw out firearms enhancement sentencing charges. On January 1, 2018, the law's application commenced and allowed judges to dismiss firearms sentencing enhancements under 12022 PC, 12022.5 PC, or under 12022.53 PC. The change is a result of the passing of the 2017 California Senate Bill 620. However, this applies to ongoing gun offenses cases and resentencing.
Presently, it is not clear the modalities that should be applied for the court to decide which cases can be dismissed, as the law is still relatively new. As such, discretion is being implemented on a case-by-case basis. Based on this, it would be essential to have an experienced and skilled attorney who would convince the court that the case should be dismissed.
Find a Criminal Defense Attorney Near Me
Firearms sentencing enhancements are severe, especially if you face a conviction for a felony gun offense. As discussed in this particular article, you could be sentenced up to life in prison if the prosecutor convinces the court to enhance your sentencing for the felony gun offense. Avoid the long-term consequences by hiring a criminal defense team that can expertly argue your case before a California court.
The Los Angeles Criminal Defense Attorney can help you fight the charges leveled against you and have your sentencing enhancement dropped. Contact us today at 310-564-2605 to speak to an attorney for legal guidance based on your case's circumstances.