A sentence enhancement is necessary when you commit a felony using or in the possession of a firearm. When that occurs, the sentence you receive for the initial offense is longer, often significantly. When a judge enhances your punishment, you should serve the additional term in prison concurrently with the one you receive for the initial offense. For example, if you face charges for carjacking, using a weapon during the crime could result in an additional term of up to three years to the sentence you would typically receive.
However, judges consider several elements when calculating your sentence enhancement, including the kind of weapon used and your criminal record. If you face a firearm sentence enhancement, you should speak with an experienced criminal attorney. Our capable lawyers at Los Angeles Criminal Attorney can use their vast expertise in handling similar cases to aid you in your quest for a just resolution to your case.
Firearms Sentencing Enhancement Laws in California
In California, felonies are severely punished. If you are guilty of a felony, you will probably spend several years in prison. If you are fortunate enough to receive a probation sentence, you could have to complete some of your jail time before probation. In either case, a felony conviction has far-reaching effects. The situation worsens if you or your accomplice commits a felony using or in possession of a firearm. That necessitates an automatic sentence augmentation, which adds years to your original sentence.
However, California judges consider several elements when deciding the kind of sentence enhancement to give you after a conviction. These elements consist of the following:
Circumstances of Your Case
In California, not all felonies are equal. Criminals do not commit one felony offense in the same way. Because of this, courts must consider your crime's circumstances before passing judgment. The circumstances surrounding an offense's commission determine its seriousness.
For felony gun-related charges, a sentence enhancement for personally using a firearm in committing a felony is applicable. It details the additional jail or prison time you can receive for the primary offense, which you should serve concurrently with the sentence for the underlying crime.
The prosecution asks for enhanced sentences. But they must demonstrate each element of the underlying charge beyond a reasonable doubt for the court to declare you guilty. Additionally, the prosecution must show that you, your accomplice, or both used or had access to a gun during the crime. The specifics of your case will determine the enhancement you receive for your sentence.
For example, if you or your accomplice in a felony used a firearm to commit a crime. In California, most gun-related sentence enhancements do not necessitate that the offender uses or possesses a handgun. What counts is if the principal offender utilized or had access to a gun. In this context, a principal is a person who directly and actively commits a crime or facilitates its commission.
The underlying offense will also affect your sentence enhancement. Remember that the legislation enhancing sentences for crimes involving firearms only applies if you utilized or had a gun during the crime commission. However, it does not include all felonies as detailed under California law. If you commit any of the following felonies while using or in possession of a gun, you will probably face additional punishments to your existing sentence:
- Serious drug crimes
- Serious sex crimes
- Violent offenses
Violent crimes include specific violent offenses like rape, kidnapping, and murder.
Circumstances Requiring More Sentence Enhancements
In certain situations, you could receive more sentence enhancements for one underlying offense. In that situation, the judge will impose the penalty enhancement that carries the potential for the most extended prison term.
Sentencing Ranges That Apply to Firearm Enhancement Laws
Most firearms penalty enhancements call for judges to hand down one of the three predetermined prison terms to criminals. The judge can decide to impose a low, moderate, or high sentence enhancement in your case.
Unless in the presence of aggravating or mitigating factors, some enhancements will be precise in what the court must order. Judges can impose heavier sentences for aggravating factors and lower penalties for mitigating factors. Some mitigating circumstances support the judge's decision to reject the sentence augmentation altogether.
Mitigating and aggravating circumstances can be relevant to the defendant or the crime. Examples of elements that pertain to the crime include:
- What type of crime is it (if cruel or vicious)
- If you participated in the violation either deliberately or inadvertently
- Whether or not you intended to commit the crime
- Your actions' level of sophistication
Examples of circumstances that relate to you are:
- Your criminal record
- If you have a record of being violent
- If you voluntarily confessed to your wrongdoings as soon as you committed the crime
Firearms Penalty Enhancements Under California Laws
It is vital to remember that various offenses have distinct firearm sentencing enhancements. The many firearm sentencing modifications under California law are as follows:
PC 12022—Committing a Felony Using or While in Possession of a Gun
If you utilized a gun or dangerous weapon while committing a felony or had a gun with you at the time, your sentence is subject to enhancement. In this context, any other weapon outside a firearm is considered if it is deadly or hazardous.
You can receive a more extended term under this statute if you own a firearm or other lethal weapon. You would receive a sentence enhancement under a different law if you utilized the firearm or other deadly weapon.
If you face charges for a firearm enhancement under this legislation, you will probably receive the penalty for the initial felony and an additional jail term that you should serve concurrently. According to this regulation, an essential augmentation entails adding one year to your initial sentence.
However, in addition to the sentence you receive after a guilty verdict under California PC 215, you could also receive a sentence of one to three years of additional and consecutive prison time if you committed a carjacking or attempted one while carrying a gun.
If the gun you had were an assault rifle, a.50 BMG rifle, or a machine gun, you would receive additional three years to your prison sentence.
Additionally, under this law, certain drug offenses like HS 11351 (possession of narcotics for sale) and HS 11352 (transport for sale of drugs) attract enhanced penalties. You would spend an additional three to five years in prison if you committed these offenses while possessing a firearm. However, if you were aware that your accomplice was using a gun when committing these crimes, the court will increase your underlying sentence by one to three years. You should serve the additional sentence consecutively with the sentence for the initial crime.
California PC 12022.2
If you commit a violent crime while possessing a gun and ammunition capable of penetrating armor or metal, you could face a sentence enhancement under this provision. Additionally, according to the law, you must have worn a body vest when committing that crime. Body vests are protective clothing items against trauma and ballistic that can withstand bullets.
You will most likely receive additional three to ten years on top of your original sentence for having armor- or metal-piercing ammunition while committing a violent crime. Under this statute, you are only subject to four years' imprisonment if the judge does not identify any mitigating or aggravating factors in your case. But remember that judges have complete discretion when determining the most suitable punishments. The court will explain why you will serve the additional sentence during sentencing.
You would receive one to five extra years to your original sentence if you wore a body vest when committing a violent crime. If there are no mitigating or aggravating factors, the judge can extend your underlying sentence by one or two years. The court will explain why you received the additional sentence during your sentencing.
PC 12022.3—Using or Having a Gun When Committing Specific Sex Crimes
If you use or possess a gun while committing one of the crimes listed in this section, your underlying sentence is subject to enhancement. Forcible sodomy, rape, and indecent or lascivious conduct with a juvenile are some the offenses covered by this law. Remember that, per this penal code, the sexual act does not imply the end of the violation. As long as you continue to have power over your victim, it will continue. Therefore, even if the victim did not see the weapon until the deed was complete, you are still guilty under this enhancement.
You can receive the following punishment in addition to your original sentence if you had or used a gun while committing these sexual offenses:
- Two to five additional years for committing a sex offense while armed with a firearm
- Three to four years for utilizing a gun while committing a sex offense
PC 12022.4—Furnishing Another Person with a Gun To Commit a Felony
If you provide or attempt to provide someone else with a firearm to use in committing a felony, you can receive a penalty enhancement under this law. You could still be guilty even if you were not present during the crime commission. Before the crime, you could have sought or provided another individual with a gun. The fact that you intended for the person to use the weapon to commit a felony is what counts. Your participation must be related to the commission of the felony.
You could receive additional one to three years to serve concurrently with your original sentence as punishment for doing so. This statute mandates a middle-term penalty unless the judge finds mitigating or aggravating factors in your case. During your sentencing, the court will explain why they chose the particular punishment.
PC 12022.5—Using a Firearm, Assault Weapon or Machine Gun to Commit a Felony
If you directly use a firearm, assault weapon, or machine gun to commit or attempt a felony, you will be subject to a firearm sentence enhancement under this legislation. Using a firearm is defined as willfully firing a gun, making a scary gun display, or striking someone with a gun.
However, this statute does not cover crimes that include using a gun as a component of the offense. It covers crimes that are punishable even in the absence of a weapon. For example, someone can murder another with or without a gun. You can face charges for murder and using a firearm in committing the crime if you use a gun when committing murder.
Examples of felonies that could result in charges under this provision include drive-by shootings and assault with a deadly weapon.
If you use a firearm to commit a crime, you could receive three to ten additional years of prison time in addition to your current term. You can receive additional five to ten years in jail if you physically utilize a machine gun or an assault weapon.
PC 12022.53— Using a Firearm to Commit a Serious Felony
If you employed a firearm in committing a major crime, this statute's penalty enhancement law applies to you. The phrase "10-20-life” or “use a gun, and you are done" is another name for this law. It covers violent offenses like rape, murder, mayhem, kidnapping, and robbery.
You will be given the harshest sentence permissible under the circumstances. For illustration, you could receive the following:
- Additional ten years of prison time for carrying a weapon
- Twenty more years for using a weapon
- Twenty-five years to life in prison if you use a gun to gravely hurt or murder someone.
Remember that you will serve the years added to your sentence concurrently with the time you receive for the serious felony that led to them.
Cases Involving Unloaded or Inoperable Gun
You could contend at trial that the firearm you had when committing the felony was unloaded or inoperable. However, most of California's gun statutes, including those about a firearm sentence enhancement, do not regard that information. It means that even if your gun was not functional, you could still be guilty under the laws relating to firearm sentence enhancements. What counts is that the weapon you were holding was designed for shooting and appears capable of doing so.
The court can still find you guilty even if your pistol was unloaded.
Double Jeopardy or Multiple Enhancements
The Fifth Amendment of the U.S Constitution prohibits multiple penalties for one offense, naming it double jeopardy. It means that if you were already penalized for the same acts by the penalty for the underlying charge, the court will not impose a sentencing augmentation.
For example, under PC 12022.5, the court will consider whether having or using a gun is required to commit the primary offense. If so, your use or possession of the firearm will be punished following the penalty for the prior violation. If that is the case, having or using a gun while committing the crime will not result in additional punishments.
One Enhancement Per Crime
A defendant is only subject to one firearm enhancement sentence per offense. If more sentence enhancements are applicable, the court will choose the one that results in the longest possible sentence.
What You Can Do To Protect Yourself From Firearms Sentencing Enhancement
Sentencing enhancement laws lengthen the penalty you receive for an underlying offense. It impacts your social and professional lives, among other elements, since it results in you serving longer terms behind bars. For example, your extended incarceration significantly impacts your relationship with your family. After being away from home for a while, it will be challenging to integrate back into your family and community. It can be challenging for ex-offenders to find work after serving in prison.
It is advised to contest your charges and the enhancement for these and other reasons. With the aid of an accomplished criminal attorney, you can accomplish that. The court could drop the case altogether or reduce the punishment if your defense is effective. Fortunately, your defense team has several tactics to help them win your case. They consist of the following:
Fighting the Underlying Felony
Your defense team's first action should be contesting the underlying felony accusation. You will not receive a longer term for employing a gun if you are not guilty of a felony offense.
The particulars of your case will determine the tactics your defense team will employ to combat the actual charge. For example, if you face accusations for murder, your defense team could claim that you were the victim of a false accusation or that your acts were unintentional. The prosecutor must prove all components of the underlying offense beyond a reasonable doubt. Thus, the defense team must raise questions about the prosecutor’s case or make it difficult for them to do so. In that case, the judge will drop the initial charge. Without it, the laws regarding firearm sentence enhancements will not apply to you.
Someone Else Used the Gun
If a defendant directly uses a firearm in committing a felony, firearm sentence enhancement rules apply, making the sentence more severe. You could receive a lighter sentence or not be subject to firearm enhancement if someone else used a gun. Some sentencing enhancement laws do not matter if you did not personally use a weapon. PC 12022.3 and 12022.53 are two examples of those laws. You will not receive a sentence in addition to your original sentence if the prosecution cannot prove beyond a reasonable doubt that you used a gun to commit or attempt to commit a felony.
Your Arrest Was Illegal
The judge could throw out any evidence against you due to an illegal arrest. The prosecution will not have enough evidence to back up your accusations. If the police misbehaved when making the arrest, you could employ this defense tactic. For example, the police could have made an arrest without a warrant or could have failed to inform you of your Miranda rights following an arrest. If that is the case, the judge can drop the primary accusation, in which case you will not face prosecution under firearm sentence enhancements laws.
Police misconduct could also be relevant to a particular requirement for sentence augmentation. The judge will not raise your penalties in that situation. Thus, you will only have to serve the original offense's term.
Other police activities that can constitute misconduct include:
- A police officer lying in the police report.
- An officer planting a weapon on your person or in your vehicle.
- An officer providing misleading testimony about your case in court.
The Police Found the Firearm During an Illegal Search and Seizure
To search you or your property and make a seizure, the police require a search warrant. Without it, the judge could exclude any evidence gathered against you in court. To search your person, car, home, or any other property for a firearm, the police must first suspect you of employing a weapon when committing a crime. Then, they must have a search warrant. Only in cases when the police have a reasonable suspicion to search can the court sign a search warrant.
It would be unlawful for officers to have searched your property without a warrant or your permission. You will not face a sentence enhancement for using or having a firearm if there is no proof that you had or used one to commit a felony.
Find a Competent Criminal Attorney Near Me
Do you or someone you know in Los Angeles face a firearm sentence enhancement?
You could challenge specific firearm enhancement statutes by working with an accomplished criminal attorney. Your attorney can explain how specific sentence enhancement laws pertain to your case. We will investigate the specifics of your case at the Los Angeles Criminal Attorney and discuss your options. We identify areas of your case where we could fight for a good result. Our capable lawyers will accompany you on the arduous legal path while providing you with high-caliber counsel and assistance. Thanks to our knowledge and expertise, we could persuade the judge to drop your charges. To find out more about our services, contact us at 424-333-0943.