What is a Firearm Sentencing Enhancement?

In some instances, a California criminal court can sentence you with additional jail or prison time if you, or one of your accomplices, possessed or used a gun when committing an offense.  This “extra” sentence will be added onto the baseline sentence you received for the underlying crime committed.  Keep in mind, that in most cases, the “extra” prison time can be very significant and serious. 

The provisions in the California law books allowing this “extra” prison time is codified in Penal Code Sections 12021.55-12022.55. These provisions only apply to cases where you are being charged with a felony.  In the legal world, they are referred to as “sentencing enhancements.”  The following are the sentencing enhancements for holding or using a gun while committing a felony offense:

  • Penal Code 12022.2 PC - having ammo meant to pierce metal or shielding
  • Penal Code 12202.3 PC - using or having a gun while committing a sex crime listed in the language of the law
  • Penal Code 12022.4 PC – providing or trying to provide another person with a gun to assist them while committing a felony crime
  • Penal Code 12022.5 PC - you use a gun while committing a felony crime.
  • Penal Code 12022.53 PC - you use a gun while committing a serious felony crime.
  • Penal Code 12022.55 PC – while in a car, you fire a gun while committing a felony crime.

A conviction under California Penal Code Sections 12021.55 - 12022.55 Using or Having a Gun While Committing a Felony Crime Sentencing Enhancement will add additional and consecutive state prison time on top of the sentence you already receive for the baseline offense crime.  Before this can happen, the prosecutor must formally charge you with the sentencing enhancement.  And even then, the sentencing enhancement charge must go through the normal criminal procedure process before it can be applied. 

There are three main ways you can be convicted of a sentencing enhancement.  First, you can formally admit to the sentencing enhancement charge.  Second, you can take a plea offer that includes the sentencing enhancement.  Of course, you have to agree to the plea offer or take your chances with a trial jury.  Third, you can be convicted at a hearing where the ultimate verdict of guilt or innocence is decided by a judge or jury.  In this case, the prosecutor needs to prove their case to the judge or jury.  They must prove all of the elements of the sentencing enhancement.  An element is simply a fact related to the sentencing enhancement.  Each element must be proven by the prosecutor up to a particular level of certainty.  In California criminal courts, each element must be proven up to the certainty level of “beyond a reasonable doubt.”  Remember, the requirement that prosecutor prove all of the elements only apply to a hearing where a judge or jury makes the decision about guilt or innocence.  Also, note, the prosecutor in a felony crime will usually be someone from your local county’s district attorney’s office.

Let’s look at the details of the California Penal Code Sections 12021.55 - 12022.55 Using or Having a Gun While Committing a Felony Crime sentencing enhancement more closely.  This is important because you should be educated on the charges you face.  This is because the central issues of your case will be derived from these nuances.  Your California Criminal Defense Attorney and the prosecutor will debate and argue over whether or not a particular issue can be won in court.  And based on these negotiations, a good or bad plea offer will result.  And in many cases, entire charges could be dropped.  We believe if you are educated on the nuances of the charges you face, the better decisions you make.  Besides, you being knowledgeable will help you help us fight for you before and during a trial.

Situation 1: You did not use or have a gun but someone you committed the baseline crime with did.

Gun sentencing enhancements generally do still apply even if you did not have or use a gun yourself.  Hence, if someone you committed a crime with used a gun, you could be subject to a gun-sentencing enhancement and therefore the extended prison time.  Unless a particular penal code says it does not apply, if a principal uses or has a gun while committing a crime that you are involved with, then the enhancement can apply to you.  A principal is a person who directly or actively commits an offense.  It could also be a person who assists the committing of the criminal conduct.

Situation 2: You actively used a gun in committing the crime.

Certain gun sentencing enhancements require that you, or a person you committed the crime with, actually use the gun.  Using a gun does not necessarily mean that you fired gun.  Although, firing a gun will certainly qualify you for most gun sentencing enhancements.  It could also mean that you brandished the gun in a threatening way.  Or it could mean you hit someone with the gun itself.  Some gun sentencing enhancements apply even if you did not use it, but if you were only holding a gun.  This may mean you were having it on your possession.  It could also mean you were just holding onto ammo.  It could also mean you had it around you just in case you wanted to use it.  Furthermore, the gun does not have to be filled with bullets to qualify you for a sentencing enhancement.  The gun doesn’t even have to be within your vicinity; it could be in the next room.  The focus in the courtroom will be whether or not the gun was present at the location where the committing of the crime took place.

Situation 3: Baseline Criminal Felony Crime

The gun-sentencing enhancement will be enhanced even further if the baseline crime is a significant drug crime, a serious sex crime, or a crime involving violence.  For example, your enhancement could be more forcefully applied if you were convicted of raping someone.

Situation 4: Multiple Enhancements Charged

It is possible that you could be charged with multiple enhancements to your baseline crime.  In this situation, the court will only apply the sentencing enhancement that increases your prison time the most amount of time.  This is good news in the sense that you won’t have your prison time extended more than one time under a gun enhancement.  But the bad news is that the longest enhancement will be applied.  Also, you could have multiple enhancements applied to one conviction if they punish other sorts of conduct.  For example, you have one conviction enhanced by a gun enhancement and a gang enhancement.

Situation 5: The range of extended prison time.

Once charged and convicted of a gun-sentencing enhancement, the judge will then be given discretion on how much extra prison time to give you.  In most situations, the judge has most of the discretion on such a decision.  They can add a low, medium, or high amount of prison time.  However, some laws indicate that the judge can only add the medium amount.  They cannot add the high amount unless certain factors, such as violence or considerable harm caused, can be shown.  And they cannot add the low amount unless your California Criminal Defense Attorney can persuade the court that there were mitigating factors.  These might include the mental health of the defendant or the fact that the victim was the subject of abuse, which caused them to commit a crime.  In fact, your California Criminal Defense attorney could get the court to drop the firearm enhancement entirely.

Factors that could increase the sentencing enhancement prison time include, but is not an exhaustive list, the following: how violent the offense was, how much harm was caused, whether you participated in the crime directly or on the sidelines, or how much premeditation went into committing the crime.  In addition, your past criminal history can affect the length of the enhancement.  This is particularly true if you have a record of violent crimes or criminal conduct.  Additionally, if you actively confessed early on in the criminal prosecution or investigation process, this could reduce the enhancement prison time. 

What is California Penal Code 12022 PC – Having a Gun While Committing a Felony Crime?

To be liable under this law, the following elements must be met:

  1. You committed a felony crime.
  2. While committing the felony crime, you had a gun OR you utilized a dangerous armament.

If convicted under California Penal Code 12022 PC – Having a Gun While Committing a Felony Crime, then your baseline sentence (for the baseline crime conviction) will be enhanced by extra punishments.  Typically, this will be one extra year in prison.  If the baseline conviction was for car-jacking or attempting to car-jack, then you could receive up to 3 extra years in prison.  If you used a more deadly firearm, such as a machine-gun, then you could get an extra 3 years in state prison.  If your baseline conviction was for a drug crime that involved selling or distributing drugs, then you could get up to an extra 5 years in state prison.  However, in this situation, you did not carry the gun yourself but someone you committed the crime with did, then you would only get up to an extra 3 years in state prison.

What is Penal Code 12022.2 PC Having Bullets Capable of Piercing Through Metal/Armor

You would be liable under this law if all of the following elements were met:

  1. You commit a felony crime while having a gun.
  2. In your vicinity, you have bullets that are capable of piercing through metal/armor OR you are wearing a bullet-proof vest.

If convicted under this law, you will receive extra prison time in addition to the time you received for the baseline felony conviction.  If you had bullets capable of piercing metal/armor, then you could get up to an extra 10 years in state prison time.  Note, that the default sentence will be 4 years.  The prosecutor will present evidence arguing that the time should go higher, but your California Criminal Defense Attorney can present evidence arguing that it should go lower or that the law simply does not apply.

If you used a bullet-proof vest during the felony crime, you could get up to an extra 5 years in state prison time.  The default extra sentence is 2 years, but like explained above, the prosecutor will try to get that time higher, while your California Criminal Defense Attorney will argue to reduce that time or that the law does not apply at all.

What is Penal Code 12202.3 PC Utilizing or Having a Gun While Committing a Sex Crime

Applicable crimes under this law include, but is by no means an exhaustive list, the following: rape, forced sodomy, and lewdly conduct with a minor.  The extra time added for having a gun could be anywhere between 1 to 5 years in state prison time.  For actually using the gun, the extra time is anywhere between 3 to 10 years.

What is Penal Code 12022.4 PC Providing or Try to Provide Someone Else a Gun While Committing a Felony.

Essentially, this law prohibits giving or try to give a gun to someone else so they can utilize it during a felony crime.  Hence, you are liable under this law even if you are not actually at the scene of the crime.  You could give the gun to the person well before the incident and still be liable under this law.

If convicted under this law, you could get up to 3 years in extra state prison time.  The default amount of time given is 2 years, but could go up or down depending on the arguments of the prosecutor and your California Criminal Defense Attorney.

What is Penal Code 12022.5 – You used a gun while committing a felony?

You are liable under this law if you, yourself, utilized a gun while committing or trying to commit a felony crime.  Utilizing a gun applies to displaying the gun in a threatening way, firing the gun, or even hitting someone else with it.  Note, however, this law does not apply to crimes that have as one of their elements the usage of a gun.  This would constitute a double jeopardy constitutional violation of your rights.  However, it does apply to crimes that could occur through the use of a gun or not.  In these cases, you could get the baseline sentence and the extra prison time.

If convicted under this law, you could get up to an extra 10 years in state prison time. 

If you used a gun while committing a “serious” felony, then Penal Code 12022.53 PC applies.  An example of a “serious” felony is robbery.  Talk to your California Criminal Defense Attorney to see if your crime applies under this sentencing enhancement law.  You could get up to 10 years in extra prison time for utilizing a gun, it could be up to 20 years for firing a gun, and up to 25 years for causing significant bodily harm on someone else with the gun.

Other Things to Consider About Gun Sentencing Enhancements

  1. A gun does not having to be functioning to be liable under gun sentencing enhancements. The important question will be whether or not the gun was meant to shoot bullets and whether or not it appears that it could do so.  Hence, you could be liable under these laws even if you have no bullets in the gun.

  2. The 5th Amendment prevents courts from applying multiple punishments for committing the same crime. Hence, if the baseline conviction and the sentencing enhancement punish the same conduct, then this would be constitutionally impermissible.  The legal tests to determine whether two charges punish the same conduct are quite complicated.  It is important to have a knowledgeable and diligent California Criminal Defense Attorney fighting for you to make sure you are not punished for two crimes.  Otherwise, you could suffer extra prison time you constitutionally shouldn’t have to suffer.

  3. You can only be given one enhancement for each crime committed. If you are convicted of a single crime, but you are convicted with multiple enhancements, the one with the highest prison sentence time would apply.  Note, however, that an enhancement could be applied to each crime you are convicted of.  Hence, if you have more than one felony conviction, you could receive multiple additions of extra prison time.

  4. Interactions with Other Types of Sentencing Enhancements. For a single conviction, you could get a gun enhancement in addition to another enhancement that punishes an entirely different set of conduct.  Talk to your California Criminal Defense Attorney to see how this rule applies in your case.  For example, a gang sentencing enhancement adds extra prison time if you committed a felony to help a gang.  Since this punishes different conduct than gun enhancements, you could have both applied to a single conviction.

What are the legal defenses to combat a gun sentencing enhancement?

The punishments for a sentencing enhancement can be quite severe.  Fortunately, there are many legal defenses available to combat such charges.  Talk to your Los Angeles Criminal Defense Attorney to see how legal defenses can work in your case, especially as part of a holistic legal strategy that takes advantage of all available procedural and substantive defenses.  Legal defenses include, but are not limited to, the following: You did not commit the baseline crime so the enhancement should not apply, You did not yourself utilize a gun (only applies to some enhancements), or law enforcement committed constitutional violations so the sentencing enhancements should be thrown out.

New Laws Give Judges The Power to Throw out Gun Enhancements.

A recent law gives courts the power to throw out certain gun enhancements entirely.  This applies to ongoing cases and to resentencing post-conviction cases.  Since this is a new law, the courts have not figured out how to determine whether or not a gun enhancement can be thrown out.  For now, judges will make this decision on a case-by-case basis.  Hence, it is important to have a skilled and zealous California Criminal Defense Attorney fighting for you who can convince a judge to throw out the gun enhancements that might apply in your case.

What to do if you are charged with a gun enhancement?

Gun enhancement laws can be quite complicated and can lead to serious and extra prison time, on top of the time you already face for a baseline conviction.  Fortunately, there are many legal defenses available to fight such charges.  In addition, new laws allow judges to throw out gun enhancements if it can be shown it is in the interests of justice to do so.

If faced with a gun enhancement, you will need a passionate and hardworking attorney who can help you fight both the enhancement and the underlying charges.  Feel free to talk to one of our experienced Criminal Defense Lawyers.  They will happily explain your options when it comes to defenses, evidence, and the potential punishments.

For a free consultation, feel free to call 424-333-0943.