There are different types of criminal offenses in California. Each of them has a specific range of possible penalties. If you are convicted of any of these offenses, the judge will determine your sentence within the stipulated range.
Sometimes, the judge may increase your sentence beyond the stipulated range. This is what is commonly referred to as ‘sentencing enhancements.’
You will most likely receive a sentencing enhancement if you or another person possessed or used a firearm to commit a criminal offense. As a result, you will serve a lengthier imprisonment period.
If you have been charged with a criminal offense, do not risk your future by representing yourself. Even if you believe you’ve built a robust defense strategy, you never know how the prosecutor will convince the judge to impose a sentencing enhancement. If this happens, you may face the risk of spending a major part of your life in prison.
We at the Los Angeles Criminal Lawyer have extensive experience helping defendants facing criminal charges have their cases dismissed or reduced. No matter the magnitude of your charges or the number of aggravating factors present in your case, we can help you win.
We’ve helped numerous defendants in Los Angeles facing gun sentencing enhancements win their cases. We can help you too. Contact us today for a free consultation.
What is Firearms Sentencing Enhancements?
Simply put, a firearm sentencing enhancement is an additional imprisonment term – which the judge will impose if you have been convicted of a criminal offense, and the prosecution has sufficient evidence to show that you or another person possessed or used a firearm to commit the offense. The judge will add this ‘additional term’ onto the state prison term you received for the underlying felony. In most cases, this additional term spans over a couple of years.
In California, some offenses are categorized as misdemeanors, while others are categorized as felonies. Firearms sentencing enhancements only apply to felonies. This implies that you will not receive a firearm sentencing enhancement if you have been convicted of a misdemeanor.
How California Gun Sentencing Enhancements Work
In California, most firearms sentencing enhancements are only applicable to offenses involving the personal use or possession of a gun. The length of the additional imprisonment term depends on:
- The type of gun involved
- Whether you personally used the firearm
- Your criminal history
- The underlying criminal offense
Remember, you must be convicted of a felony to receive a sentencing enhancement. There are two ways you can be convicted of a felony: admitting to the charges or being found guilty.
Typically, you will receive more additional prison time if there is evidence to show that you personally used or possessed the firearm. However, most California gun enhancements do not require that you personally used or possessed the firearm. As long as you were actively involved in the offense's commission or in helping someone else commit the offense, you will receive the gun enhancement.
You will also receive a sentencing enhancement even if you were just armed with a firearm while committing the felony. The prosecutor does not need to prove that the firearm was used to commit the felony.
If the underlying felony is a serious sex offense or a serious drug offense, the judge will impose a lengthier additional prison term. The judge will also increase the sentencing enhancement if the underlying felony is a violent offense, such as murder, kidnapping, or rape.
What if more than one Enhancement Applies?
In most cases, you will be charged with just one felony involving the use or possession of a firearm. If you are convicted of it, you will receive a lengthier sentence due to the sentencing enhancement.
However, the California Department of Prosecution can charge an individual with two or more felonies that involve the use or possession of a firearm. This means that if this individual is convicted of at least two of these offenses, more than one enhancement will apply. In such a situation, the judge will impose an enhancement that carries the longest imprisonment term.
What if the Firearm was Unloaded or Inoperable?
You will still receive a sentencing enhancement even if the gun was inoperable or unloaded. The prosecutor does not need to prove that the firearm was in a good working condition. As long as the prosecutor shows that the weapon involved was a firearm, the judge will impose a sentencing enhancement.
Will you lose your Gun Rights?
You will automatically lose your right to own or possess a firearm if you are convicted of the underlying felony, and the judge imposes a sentencing enhancement. Once you are convicted, the government will declare your firearm a nuisance. Then, it will take it away from you.
Note that the government will impose on you a lifetime ban. This means that you wouldn’t be able to restore your legal right to own or possess a firearm.
What are the Sentencing Ranges for California Gun Enhancements?
There are three specific prison terms for firearms sentencing enhancements: ‘high,’ ‘middle,’ or ‘low.’ The judge will use one of them when sentencing you.
Typically, the choice between ‘high,’ ‘middle,’ or ‘low’ depends on the judge’s discretion. However, certain gun enhancements explicitly state that the judge should impose a ‘middle’ sentence unless there is the presence of mitigating or aggravating factors.
Aggravating factors make the offense appear worse or more serious. If there are aggravating factors in your case, the judge will impose a ‘high’ sentencing enhancement.
On the other hand, mitigating factors make the offense appear less serious or excusable. The presence of mitigating factors will make the judge impose a ‘low’ sentencing enhancement.
Factors in mitigation or aggravation relate to either the defendant or the crime. Some examples of factors that relate to the crime include:
- Whether the crime was vicious or cruel
- How the crime was planned and conducted
- The sophisticated nature of the crime
Some examples of factors that relate to the defendant include:
- Whether he/she was a passive or active participant
- Whether he/she has a criminal history
- How he/she behaved during the criminal investigation and trial process
Types of Gun Sentencing Enhancements
California’s firearms sentencing enhancements are listed in the Penal Code. They include:
- PC 12022 – Being armed with a gun while committing a felony
- PC 12022.2 – Possessing ammunition designed to penetrate armor or metal
- PC 12202.3 – Possessing or using a firearm to commit a sex offense
- PC 12022.4 – Furnishing or attempting to furnish someone else with a gun, which will help him/her to commit a felony
- PC 12022.5 – Personally using a firearm to commit a felony
- PC 12022.53 – Personally using a firearm to commit a serious felony
Here is a comprehensive discussion of each of them:
1. PC 12022 – Being Armed with a Gun while Committing a Felony
The judge will impose this sentencing enhancement if you were armed with a gun or used a gun during the commission or attempted commission of a felony. Note that this sentencing enhancement does not apply to firearms only. The judge will also impose this enhancement if you used any other dangerous or deadly weapon while committing or attempting to commit a felony.
If you are subjected to PC 12022, you will face the imprisonment term for the underlying felony, together with an additional prison term for the enhancement, as set out below:
- Carjacking or attempted carjacking as the underlying felony - If the underlying felony is carjacking or attempted carjacking, the judge will impose an additional state prison term of one, two, or three years.
- Type of weapon involved – If the firearm you were armed with were a .50 BMG rifle, an assault weapon, or a machine gun, you would face an additional three-year prison term.
- Drug offenses – If you were armed with a gun or used it to commit a drug offense under HS 11351 and HS 11352, the judge will impose a sentencing enhancement of three, four, or five years. If you didn’t personally carry the gun – but you knew someone else had carried it, you will face an enhancement of two or three years.
If none of the above-listed conditions apply to your case, then the judge will impose a basic sentencing enhancement of one year.
2. PC 12022.2 – Possessing Ammunition Designed to Penetrate Armor or Metal
PC 12022.2 creates an enhancement for any person who commits a felony while possessing ammunition designed to penetrate armor or metal or while wearing a body vest. Here, the term ‘body vest’ refers to a bullet-resistant material, which provides trauma and ballistic protection for the wearer.
The judge will impose a sentencing enhancement of three, four, or ten years if you possess armor or metal piercing ammunition during the commission of a felony. You would receive a sentencing enhancement of one, two, or five years if you wore a body vest while committing or attempting to commit a felony.
3. PC 12202.3 – Possessing or Using a Firearm to Commit a Sex Offense
According to PC 12202.3, you will receive a sentencing enhancement if you possess or use a firearm to commit a felony sex offense. Some examples of felony sex offenses in California include:
- PC 243.4 – Sexual battery
- PC 261 – Rape
- PC 286 – Forcible sodomy
- PC 288 – Lewd acts with a child
- PC 289 – Acts of penetration with a foreign object
Note that the prosecutor does not need to prove you completed the sexual act. You will receive a sentencing enhancement provided that the prosecutor shows you maintained control over the victim.
Also, it isn’t a requirement for the prosecution to prove that the victim saw the firearm. The judge will impose an enhancement as long as there is evidence to show you possessed a gun during the offense's commission.
You will receive a sentencing enhancement of one, two, or five years if you were simply armed with the firearm, but you did not use it. On the other hand, the judge will lengthen your sentence with three, four, or ten years if you used it.
4. PC 12022.4 – Furnishing or Attempting to Furnish Someone Else with a Gun
PC 12022.4 states that it is unlawful to furnish or attempt to furnish someone else with a firearm, which will be used to commit a felony. The prosecutor does not need to prove you were present when the felony was committed for the judge to impose this enhancement.
The judge will impose this enhancement as long as there is evidence to show that you gave another person a firearm before the felony was committed. This enhancement has an additional imprisonment term of one, two, or three years.
5. PC 12022.5 – Personally Using a Firearm to Commit a Felony
PC 12022.5 states that you will receive a sentencing enhancement if you personally used a firearm during the commission or attempted commission of a felony. To receive this sentencing enhancement, the prosecutor must show that:
- You displayed the firearm in a threatening manner
- You fired the gun, or you used it to hit the victim
For instance, if you used the firearm to hit the victim while assaulting him/her, you will receive this sentencing enhancement, in addition to the penalties for assault. PC 12022.5 imposes an additional imprisonment term of three, four, or ten years. However, if the firearm involved was a machine gun or an assault weapon, the judge will increase this enhancement to five, six, or ten years.
6. PC 12022.53 – Personally Using a Firearm to Commit a Serious Felony
This enhancement is commonly referred to as ‘10-20-LIFE,' or ‘use a gun, and you’re done’ rule. It is quite similar to PC 12022.5, except that it only applies to serious felonies.
In California, serious felonies are listed under the Penal Code, sections 1192.7(c) - 1192.8(a). Some examples of serious felonies include:
- First-degree burglary
- Drive-by shooting
According to PC 12022.53, the judge will impose the following additional state prison terms:
- Ten years if you used the firearm
- 20 years if you fired a gun
- 25 years to life if you killed or seriously injured someone else with a firearm
Remember, you will face these enhancements, in addition to the state prison term imposed for the underlying offense.
Legal Defenses to Firearms Sentencing Enhancements
There are several legal defenses to firearms sentencing enhancements. The three most common ones include:
1. You did not commit the Underlying Felony
To receive a sentencing enhancement, you must first be convicted of the underlying felony. One of the best ways to fight an enhancement is to fight the underlying felony charges. If the jury finds you innocent, you will not face any penalty, including the sentencing enhancement.
Depending on the type of criminal charge, there are several legal defenses you can use. Get in touch with an experienced criminal defense attorney to know the best defense strategies for your situation.
2. You did not Use or Possess the Firearm
In California criminal cases, the burden of proof is on the prosecution, and the standard of proof is beyond a reasonable doubt. To receive a sentencing enhancement, the prosecutor must prove beyond a reasonable doubt that you used or possessed the firearm during the commission or attempted commission of a felony. In most cases, prosecutors do not have sufficient evidence to show you used or possessed the firearm.
Note that this defense will not apply to PC 12022.4. Under PC 12022.4, you will receive a sentencing enhancement as long as the prosecutor shows you gave another person a firearm for use during the commission of a felony.
3. Police Misconduct
Police misconduct is one of the most common defenses to firearms sentencing enhancements. There are certain rules that the California Law Enforcement Department should follow during criminal investigations.
In California, illegally acquired evidence is inadmissible. Therefore, if the police do not observe the stipulated rules during a criminal investigation, the judge will strike out all the evidence they acquired. As a result, the prosecutor will be left with insufficient evidence, and he/she will drop your charges.
Some examples of police misconduct include:
- A police officer plants a concealed gun inside your car
- A cop gives false facts in the police report
- A police officer conducts an illegal search
- A law enforcement officer forces you to confess that you committed the felony
SB 620 – New Law Permitting Judicial Discretion not to Impose a Gun Sentencing Enhancement
Starting from Ist January 2018, California judges have the discretion not to impose a gun sentencing enhancement. This change is brought about by California Senate Bill 620, which was passed in 2017.
According to this law, the judge will consider the primary factor when deciding whether or not to impose a sentencing enhancement is ‘the interests of justice.’ Up to now, it isn’t clear which criteria the judge will utilize to determine ‘the interests of justice.’
Find a Los Angeles Criminal Defense Attorney Near Me
Get in touch with us if you are facing a firearm sentencing enhancement. We will help you fight the enhancement. Call us at 310-502-1314 to get professional legal advice.