When you commit a crime, whether alone or in the company of others, a conviction could result in severe penalties. If you or your accomplices had or used a gun while committing a crime in Los Angeles, you could receive additional prison time besides the standard sentence. Note that the extra jail time is severe and could alter your life.
If faced with criminal charges and a possible sentence enhancement due to firearm use, you can fight these allegations and receive favorable sentencing. With an experienced attorney, you can develop robust defense strategies to challenge the charges. We at The LA Criminal Defense Law Firm understand the complicated California justice system. We could help you with your case or have the charges reduced.
How Sentence Enhancement for Firearm Use Works in California
As earlier stated, the use of a firearm can affect the sentence you would typically receive if you didn’t use a gun for the same crime. Before enhancing a penalty, the court considers various facts surrounding the crime.
Circumstances of Your Crime
If you commit a felony offense using a firearm, odds are the court could enhance your sentence. According to California law, the judge has the jurisdiction to enhance your firearm sentence by adding extra years to your standard prison time. For the judge to increase your penalties, the prosecutor must prove beyond a reasonable doubt that you used a firearm during your felony crime commission. The judge decides the sentencing enhancement you receive depending on a case by case basis. Circumstances that affect firearm sentencing enhancements include:
Whether You Directly Used the Firearm
Per California law, you don't have to use a gun for the court to enhance your firearm sentencing. Unless the specific law states otherwise, the judge could enhance your sentence if you were a principal during a felony crime commission. California law defines a principal in a crime as a person who:
- Is actively or directly involved in the committing of the offense
- Assists and protects the commission of a crime.
Whether the Weapon Was Used or You Were Just Armed
Some sentence enhancements require the principal or accomplice to have used the gun during the crime commission. Using a gun is not only taking a shot but also includes:
- Showing off the gun menacingly
- Hitting another person using the weapon
Some enhancements also apply when you simply had a gun or ammunition. The law considers you to have been armed when:
- You knowingly carried a firearm or ammunition
- The weapon was readily available for your use
It is essential to know that having a weapon available for your use doesn’t require the firearm to be loaded and set for shooting. It also doesn’t mean that it is immediately accessible. According to the law, the gun or ammunition only need to be available at the crime scene.
The Underlying Offense
The enhancement of your sentence also depends on the felony you committed. Your punishment would get enhanced if you had a firearm when committing any of the following offenses:
- A serious drug crime
- A serious sex crime
- A violent crime
When the law talks about violent crimes or offenses, it includes more than two dozens particular violent crimes, including rape, kidnapping, and murder.
Where Multiple Enhancements are Applicable
The court could add several sentencing enhancements because of various circumstances surrounding your case. If this happens, you will get subjected to the harshest possible increment. The subsequent enhancement could be longer than the previous one.
Firearm Enhancement Sentence Ranges
As earlier discussed, the court orders different sentence enhancements because of different convictions. In California, sentence enhancements can be low, middle, or high, depending on your crime. The judge has the discretion to decide the enhancement level based on the offense, its circumstances, and the evidence available.
The judge is required to issue the middle-level sentence unless aggravating or mitigating circumstances exist. When aggravating circumstances are involved during the commission of the offense, the judge can issue an extended sentence. On the other hand, if mitigating factors are present, a presentation of these facts allows a judge to issue a lesser sentence. Sometimes, mitigating factors can result in the judge striking out your sentence enhancement. Mitigating or aggravating factors are related to the defendant or the crime committed.
Some factors that may relate to the offense include:
The cruelty or viciousness of the crime,
Whether you actively or passively participated in the crime
How the crime was planned, and it’s level of sophistication.
Some elements relating to you as a defendant include:
Your criminal record,
If you have been accused of violent behavior before
If you voluntarily admit to wrongdoing earlier during the criminal proceedings.
Various Firearm Sentence Enhancements in California
As earlier discussed, you receive particular sentence enhancements depending on multiple factors. The court uses these factors as guides to determine suitable sentence enhancement. Different types of Californian gun sentence enhancements include:
California Penal Code 12022 – Having a Gun During a Crime
Firearm sentencing enhancement is applicable if while committing the offense:
You had a firearm
You used the dangerous weapon.
California PC 12022 refers to deadly or dangerous weapons to other weapons besides firearms. However, PC 12022, punishes the possession of the gun and not its use. The use of the gun is punished under a different statute.
When faced with criminal charges where PC 12022 sentence enhancement is applicable, the penalties you face include:
The standard penalties for your crime upon conviction
A further and consecutive jail time, as discussed below
Standard sentence enhancement – If the conditions discussed in the sections below are not present, your sentence enhancement will be lower. The judge could increase your prison sentencing by one year if you had a gun during the felony commission. You serve both sentences at a go.
Attempting to Carjack at or carjacking – California PC 215 details the crime of carjacking. You receive a sentence enhancement and the PC 215 penalties if you tried to carjack or carjacked and had a firearm. Typically, the additional sentence is served alongside the standard punishment. If you’re guilty, the judge can sentence you to an extra one, two, or three years imprisonment.
Having an assault weapon while committing a crime – You could use different firearms when committing a crime. If the weapon you had was a machine gun, a .50 BMG rifle, or an assault weapon, you get sentenced to an additional three years state incarceration. You serve the sentencing for the crime and that of sentence enhancement for having an assault weapon in the event of crime consecutively.
Getting Charged with a drug offense – California drug laws impose severe punishments for drug offenses to deter the vice. Some drug offenses result in increased penalties, as found under PC 12022. Some of the violations among others include:
HS Code 11351 – The statute prohibiting possession of drugs to sell or for commercial purposes
HS Code 11352 – The law against transportation or sale of drugs
If you have a gun while carrying out any of these drug crimes, the judge could impose extra jail time of three, four, or five years. If convicted, you serve both penalties for drug and gun possession at a go.
If you did not use the weapon directly, but your accomplice did, you receive an enhanced penalty but a shorter prison term. You are likely to be sentenced to an additional one, two, or three years.
California Penal Code 12022.2 – Having a Firearm that Penetrates Armor or Metal
You are subject to sentencing enhancement if you commit a criminal offense while possessing a gun. Possessing particular types of weapons during crime commission results in different sentence enhancements from what you could receive when possessing standard firearms. According to this statute, you receive a sentence enhancement if:
You have a gun while committing a crime and the ammunition is designed to penetrate armor or metal
You committed the violent offense wearing a protective body vest
A body vest refers to a special attire made of bulletproof material to offer trauma and ballistic protection.
California Penal Code 12022.2 Penalties
The penalty enhancements for offenses under this statute depend on the particular crime and the circumstances surrounding it. If you had armor or metal penetrating ammunition during your crime commission, the sentence enhancement you could receive is three, four, or ten years. You serve the primary punishment and the enhanced one consecutively.
If there were no mitigating or aggravating factors during the crime, the mandatory sentence enhancement is four years. However, if any of the elements are present, the judge can decide on a suitable penalty. The law also requires the judge to write why they impose the specific enhancement. Wearing a protective vest as you commit or attempt to commit a crime earns you an enhanced sentence of one, two, or five years.
The mandatory sentence enhancement for wearing a body vest is two years. However, the presence of mitigating or aggravating factors can change the sentence. Similarly, the judge must give reasons in writing why they imposed the specific enhancement sentence.
California PC 12202.3 - Using or Having a Firearm When Committing Specific Sex Offenses
According to this statute, your sentence is enhanced if you are charged with using a firearm to commit specific sexual crimes. Some of these offenses include:
PC 261 – This is the law that criminalizes rape
PC 286 – This law prohibits forced sodomy
PC 288 – The law that prevents a person from committing lascivious deeds with a minor
Note that violating PC 12022.3 does not end after the sexual act. If you hold your victim hostage, the crime continues. You could receive a sentence enhancement even if you never showed your victim the gun during the act but showed them after completing it.
Penalties for Using a Gun During a Sex Crime
If you have a gun while committing a sexual offense, the court could impose a firearm sentencing enhancement. You serve sentencing for the sex crime and enhancement for possessing a firearm consecutively. The penalties include:
Sentence enhancement of one, two, or five years if you have a gun during the sex crime commission
Sentence enhancement of three, four, or ten years if you use a gun during the sex crime commission
California PC 12022.4 – Providing or Trying to Provide Another Individual With a Gun While Committing a Crime
According to this statute, it is a crime to provide or attempt to offer another person a gun to commit a felony. Further, you don’t have to be present at the crime scene to get convicted. For instance, if you are a licensed gun holder and give your gun to your friend knowing he or she will use it in committing a felony, you will get convicted.
Penalties Under PC 12022.4
Apart from the penalties you receive for the underlying crime, you will receive a sentence increment if you used a gun. The enhancement could be one, two, or three years. A mandatory penalty of two years is imposed unless aggravating or mitigating factors are presented during the hearing. Additionally, the judge is required to indicate why they enhanced your sentencing.
California PC 12022.5 – Direct Use of a Machine Gun or Assault Weapon to Commit a Crime
This enhancement applies if you directly or personally use an assault weapon while committing or trying to commit a crime. According to the law, you are said to have personally used the gun when you:
Menacingly display your weapon during the crime
Fired or shot the firearm or
Struck a person using the gun
Note that you cannot get charged with violating PC 12022.5 if you didn't have a gun when committing a crime. However, if you commit a crime without a weapon, you would only be charged with the underlying crime.
For instance, you could murder someone else with or without a weapon. If convicted, you will receive penalties for the murder offense and using a firearm while committing the crime.
This statute applies to all offenses that do not necessarily need one to have a firearm to commit them. For instance, there are two crimes described under California law that do not require a gun to commit. These include:
PC 245(a)(1) - the crime of assault with or without a weapon
PC 187 - murder when a drive-by shooting occurs.
Both these crimes seem to require the firearm for their commission, but they don’t. According to the law on aiding and abetting or accomplice liability, you may not have committed the offense directly but are guilty if you:
Encouraged, helped or assisted someone else to commit crime
Enabled or facilitated the attack to happen
This means you can get charged and convicted of using a firearm to assault or murder even if you are not the one who committed it. However, when getting sentenced, the penalty will not include your personal use of the weapon to commit it. If you use the gun to directly murder in any of these ways or assault a person, you receive an enhanced sentence according to PC 12022.5.
Penalties for PC 12022.5 Violations
When found guilty of violating this statute, your sentence enhancement will include an extra 3 or 4 or 10 years of state imprisonment. This sentence is also served consecutively to the other penalties for the first crime. If you used a machine gun or an assault weapon for the offense, the sentencing increases to five, six, or ten years.
California PC 12022.53 – When You Use a Firearm to Commit a Substantial Felony
PC 12022.53 is commonly known as the “10-20-life ‘use a gun, and you are done’” law. This statute allows the enhancement when you use a firearm to commit a serious crime. Some of the crimes indicated under this statute include:
Murder according to PC 187
Causing mayhem according to PC 203
Kidnapping according to PC 207
Rape as found under PC 261
Robbery under PC 211
Enhanced Penalties for Violating PC 12022.53
If convicted of a felony where you used a firearm to commit the offense, you receive the longest sentence enhancements according to the law. The enhanced sentences include:
Additional ten years of state imprisonment if you used a gun,
An increase of twenty years if you fired your weapon or
Twenty-five years if you used a gun and killed or seriously injured another with the weapon.
The increment to your sentence means it is an addition to the penalties you receive for the primary offense you committed.
Sentence Enhancement for Having an Unloaded or inoperable Gun
When you commit a crime using an unloaded or inoperable gun, you will still be convicted. According to the gun laws in California, you will qualify for sentence enhancement as well. As long as the weapon is made to shoot or reasonably appears capable of shooting, your sentence is enhanced.
Legal Defenses for Firearm Sentence Enhancements
When faced with criminal charges that will enhance your sentence, with your criminal attorney’s help, you can fight against the increase. Your attorney’s defense strategies will depend on the type of crime and the circumstances of the offense. Some of the defense strategies are:
You Are Not the Perpetrator of the Underlying Offense
To successfully fight against sentence enhancement, you begin by challenging the underlying or the main crime you got charged with committing. If the court does not find you guilty of the offense, you cannot be convicted or receive sentence enhancement.
You Never Personally Used the Gun to Commit the Offense
Some sentence enhancements are not applicable when you never used the weapon directly to commit the underlying crime. Some of these offenses include:
PC 12022.5, the law describing the personal use of a machine gun or assault weapon to commit a crime
PC 12022.53, the law, detailing the personal use of a firearm to commit a serious offense
The prosecutor must prove that you used the firearm to commit the offenses above to enhance your sentence. For instance, you and your accomplice rob a convenience store with a gun. Your partner holds the gun against the cashier as you pick the cash. The cashier calls the police, and you are both apprehended. Later but a weapon with both your prints is discovered near the crime scene. However, the cashier is unable to identify which one of you held the gun while the other picked the cash.
In such a case, you and your accomplice may be found guilty of robbery, but the prosecutor to get sentence enhancement on either of you must prove who held the gun.
Your lawyer can show that misconduct by the police occurred during your arrest. If this argument is convincing, the underlying crime is dismissed, and as a result, the sentence enhancement as well.
An Illegal Search was Carried Out
If searched illegally and a firearm seized, the law prohibits illegal searches. Your lawyer can show that the police had no right to search your car or premises and lacked a search warrant. For evidence collected from you or your property to be used in court, you must have allowed for the search, or a search warrant must have been provided. When this evidence is not usable in court, you will be highly unlikely to get convicted of the underlying offense or sentence enhancement.
Find a Criminal Attorney Near Me
Convictions of felony crimes attract severe penalties. If accused of committing an offense using a firearm, the penalties are even more severe. Fighting against a conviction of the underlying crime and the subsequent sentence enhancement is critical to your freedom. An experienced attorney from The LA Criminal Defense Law Firm could assist you in fighting the allegations against you and getting a favorable outcome. Contact us at 310-935-1675, and we will passionately defend you.