In California, felony use of a firearm is a grave offense carrying harsh penalties. You will not be charged separately, but you will be charged with years of additional prison time under what is called a firearm sentencing enhancement. These enhancements depend on the use of the firearm and whether the firearm was present, discharged, or resulted in injury.
Under sections 12022.5 and 12022.53 of the California Penal Code, enhancements have severe mandatory minimums, with the infamous 10-20-life provision. However, with the passing of SB 620 in 2018, judges can now strike enhancements in some instances, which may have a drastic impact on your sentence.
If you are facing gun-related charges that might result in firearm sentencing enhancements, get in touch with us at CCLG: Los Angeles Criminal Attorney for a case review and legal counsel.
What Firearm Sentencing Enhancements Mean Under California Law
A sentencing enhancement in California is not a criminal charge in itself; it is merely extra time in prison added to a sentence when some aggravating circumstances are involved. That enhancement can be used to significantly raise the penalties when a firearm is used in the commission of a felony.
The law identifies three levels of involvement in firearms:
- Being armed—The possession of a firearm at the time of your crime commission.
- Personal use of a firearm—This involves actions such as aiming, brandishing menacingly, striking a person with the weapon, or discharging it. The use must be in the commission of a felony.
- Discharging a firearm—It refers to shooting the gun, with or without injuring someone.
When a firearm is discharged and results in serious bodily injury or death, the most serious penalties are imposed under California’s harsh 10-20-year-to-life law under Penal Code 12022.53. This statute carries 10 years for the use of a firearm, 20 years for firing it, and 25 years to life when one is seriously injured or killed.
The typical firearm enhancements are PC 12022, 12022.5, and 12022.53, each with a significant prison time.
Key Factors That Influence Firearm Enhancement Charges
In the case of firearm sentencing enhancements in California, the specifics of the involvement of the weapon may spell the difference between a few years and life imprisonment. There are some critical determinants in the enhancement’s applicability and severity. The circumstances include:
Used Firearm Personally
In case you use a firearm in the process of committing a felony, the law is strict. Use does not mean pulling the trigger, pointing the gun, or shooting it; even pistol-whipping a victim can result in a sentencing enhancement. Amazingly, the firearm might still be considered as used under California law, even when it is unloaded or not working.
Had a Weapon, Didn’t Use It
Even carrying a weapon during a felony, even when the gun remains holstered or concealed, may result in an additional prison sentence under Penal Code 12022. Although this enhancement is less severe than those involving use or discharge, it still increases your time in jail.
The Underlying Felony
Firearm enhancements are limited to felonies and not misdemeanors. Other crimes, such as robbery, carjacking, rape, attempted murder, and kidnapping, are likely to cause the most severe enhancements, particularly when the crime involves violence or injury.
California’s Firearm Enhancement Statutes
The firearm sentencing enhancements in California are codified in various important statutes, each prescribing different penalties depending on the use of the firearm, the kind of ammunition used, the weapon used, and the type of underlying felony. The following summarizes the most frequently imposed enhancements and their implications for your case.
Penal Code 12022, Armed with a Firearm During a Felony
This enhancement does not require you to shoot or even draw the weapon. When you commit a felony and you are armed with a firearm, the law will increase your sentence by one year, even though you did not use the gun.
Severe enhancements are used in particular situations, including:
- Carjacking or attempted carjacking, adding 3 years
- Having an assault weapon or machine gun adds 5 years
- Drug trafficking crimes, for example, HS 11351 or HS 11352. These result in a 3-5 year enhancement when armed at the time of the crime
Penal Code 12022.2, Possessing Armor-Piercing Ammunition or a Body Vest
When you are wearing a bulletproof vest or carrying armor-piercing ammunition during a felony:
- You get 3, 4, or 10 years of using armor-penetrating rounds
- You are subject to 1, 2, or 5 years for wearing body armor when committing a violent felony
This enhancement focuses on crimes that pose high risks to community safety and the police.
Penal Code 12022.3, Firearms During Sex Crimes
Introducing a firearm in the commission of sex offenses such as rape, sodomy, or sexual penetration may lead to 3, 4, or 10 years. The law does not specify that the weapon must be fired; therefore, being present or used as a threat is sufficient.
Penal Code 12022.4, Furnishing a Firearm to Another
In case you give a firearm to another person to commit a felony, and you are aware that the person is going to commit a felony, you may be charged with an extra 1, 2, or 3 years, although you are not directly involved. This enhancement is aimed at accomplices and suppliers of coordinated crimes.
Penal Code 12022.5, Personal Use of Firearm During Felony Commission
The use of any firearm, not only assault weapons, in the course of a felony can lead to 3, 4, or 10 years added to your sentence. This involves aiming the weapon, shooting it, or threatening a victim with the weapon.
- It applies to machine guns, assault weapons, and other weapons
- The Senate Bill 620 enhancement is discretionary, which implies that the judge can strike it in some cases
- In case it is imposed, it should be served after the base term
Penal Code 12022.53, The 10-20-Life Rule
This enhancement is in 19 serious and violent felonies, such as murder, robbery, kidnapping, and rape:
- 10 years for firearm use
- 20 years for discharging it
- 25 years to life when a person is seriously injured or killed
Sentencing Scenarios in Multiple Enhancements
If you are charged with more than one firearm enhancement in California on one offense, the court can only impose the longest one. If you are charged with more than one firearm enhancement in California on a single offense, the court is generally allowed to impose only the longest.
Under Penal Code 1170.1(g), judges cannot add several firearm enhancements to the same criminal offense. While the prosecution may allege multiple enhancements, the court must impose the most severe enhancement found true for that offense.
This rule helps to avoid overpunishment for one act. For example, when you committed a robbery using a firearm (Penal Code 12022.53) and were wearing body armor (Penal Code 12022.2), only the enhancement with the most significant term would be used.
With that said, however, firearm enhancements may still run concurrently with other sentencing enhancements, such as gang enhancements, prior strike offenses, or findings of significant bodily injury. The result? A significantly escalated prison term that is consecutive unless otherwise directed.
Special Rules and Exceptions
Firearms That Are Inoperable or Unloaded
You may think that a firearm that is not loaded or that is broken cannot cause serious injury, but it is not the case. In California, the firearm does not have to be loaded or even functional to cause an enhancement. Just showing the weapon, pistol-whipping, or threatening with it is considered to be a use under such laws as Penal Code 12022.5 and 12022.53. The legislation concerns the perceived danger and the possibility of harm rather than the weapon’s functionality.
Multiple Enhancements and Double Jeopardy
The California Penal Code, particularly Penal Code 1170.1, prohibits stacking firearm enhancements on the same act. If there are several enhancements, the court should only impose the longest. This avoids the possibility of being punished twice for the same behavior. Prosecutors usually file several enhancements to reserve options, although minor ones may be dropped during sentencing.
Loss of Weapon as a Nuisance
If you are arrested with your weapon, you will never have it back. The weapon is often forfeited as a public nuisance under Penal Code 12028 and destroyed, particularly when the weapon is also related to a felony or an enhancement charge. These forfeitures are governed by Penal Code 18010 et seq. and 33800 et seq., and the weapon is typically destroyed.
How Sentencing Enhancements Are Calculated
Multiple Enhancements in One Case
When you are accused of a felony with a weapon, the prosecutors can pile on several enhancements based on the same or similar conduct. For example, you may encounter one enhancement in having an armed person and another in personally firing a weapon.
Penal Code 1170.1 limits the court to using only one firearm enhancement per offense. Instead, the judge should apply the heaviest available enhancement and reject the others. This approach gives the prosecution leverage but does not violate the sentencing limits.
Ranges of Sentencing and Stacking
Enhancements to firearms can add years to your sentence in prison, particularly in the 10-20-life statute (Penal Code 12022.53). These enhancements are not discretionary and are consecutive unless the judge uses her discretion to strike the enhancements under SB 620. This implies that the extra time does not accumulate with your underlying sentence; it is superimposed on it. In serious felonies, enhancements may tack on 10, 20, or even 25 years to life, depending upon whether you used, discharged, or seriously injured someone with the weapon.
The Effect of SB 620 on Sentencing Enhancements (Effective Jan 1, 2018)
Before 2018, judges were given few options as far as sentencing enhancements under California Penal Code 12022.53 went—you used a weapon in a felony; the additional time was automatic. Senate Bill 620 (SB 620) altered that. This law allows judges to dismiss or strike firearm enhancements during sentencing or a resentencing hearing, effective January 1, 2018. It is a significant change in California’s tough-on-crime policy regarding weapon-related felonies.
When Can Enhancements Be Dismissed?
Under SB 620, courts can now strike firearm enhancements in the interest of justice. This implies that the judge does not have to give harsh penalties if the situation does not warrant them. The law applies during the first sentencing and resentencing, giving the defendants a second chance at a fair outcome. Judges can consider several factors, such as:
- The age at which you committed the crime
- Your participation in the crime, for example, as a minor participant
- The extent of damage done
- Your criminal record
- Proof of rehabilitation or good behavior since the crime
This new discretion provides defense counsel with potent resources to promote shorter sentences, even years after a conviction.
Legal Defenses to Firearm Enhancement
Your attorney can use several legal defenses to challenge the enhancement or the underlying charge.
You Did Not Commit the Substantive Felony
The firearm enhancements only apply if you are found guilty of a qualifying felony. When your underlying felony is dismissed or acquitted, the enhancement fails as a matter of course. That is, no felony, no enhancement.
You Were Not The One Who Used Or Fired The Weapon
To charge you with the enhancement under Penal Code 12022.5 or Penal Code 12022.53, the prosecution has to show that you used, discharged, or caused great bodily injury using a firearm. Your enhancement will not apply if another person operated the weapon or you were present.
The Weapon Was Found During an Illegal Search
The Fourth Amendment prevents illegal searches and seizures. In case police search you, your car, or your house without a warrant or probable cause, your lawyer can request to suppress the weapon as evidence. The enhancement collapses without the gun.
Police or Prosecutorial Misconduct
In case officers used force to obtain a confession, planted evidence, or infringed on your rights during the interrogation or arrest, your defense can claim the exclusion of the enhancement or dismiss the case altogether. Police misconduct may be lethal to the prosecution.
Defense of Self or Third Party
You may be exempted from firearm enhancements provided you have discharged a firearm legally in self-defense or the defense of another person. Penal Code 12022.53 is specific because it does not apply enhancements in cases where the shooting was justified. This is a strong defense against assault or attempted murder when your safety is threatened.
Implications of Firearm Enhancements
It is not only about spending more time in prison, but a firearm enhancement in California can change your whole future.
One enhancement can increase your sentence by 10, 20, or even 25 years based on whether you only used, discharged, or seriously hurt someone with a weapon in the process of committing the crime. These additions are piled on top of the underlying felony, and the penalty is much more serious.
You will also not be eligible for probation in most enhancement cases. No second chance on alternative sentencing, just a hard time.
There are also collateral effects of firearm enhancements that go beyond prison. This could put your immigration status in danger, particularly when you are not a citizen of the U.S. A conviction may also lead to disciplinary measures on professional licenses, including healthcare and security work. And when you come up to be considered for parole, enhancements can work against you by making you look like a bigger danger to the community.
Finally, the weapon itself—if recovered—may be subject to asset forfeiture and destroyed as evidence of criminal use.
An Example of Sentencing Avoided or Reduced
In Riverside County, one client was initially charged with a strike offense, Penal Code 261 rape, which has a potential firearm enhancement, Penal Code 12022.53. The stakes were as high as they could get, with decades of prison time at stake.
By negotiating and preparing to go to trial, the defense counsel was able to get the charges dropped to Penal Code 245 (assault with force likely to cause significant bodily injury). The firearm enhancement was dismissed, and the court eventually gave probation, and he was never sent to state prison.
This case shows how an expert defense attorney is essential in firearm enhancement cases. Being a good representative is more than legal knowledge; it entails:
- Competent plea bargaining, for example, negotiating away enhancements in exchange for a plea
- Early SB 620 motions to strike enhancements
- Forceful constitutional challenges to the validity of the prosecution’s evidence
The correct approach to the law can be the difference between probation and a 25-to-life sentence.
Case Law Highlights
The California courts have influenced the interpretation and application of firearm enhancements. The following are some of the major rulings that determine the boundaries of prosecution and the rights of the accused.
People v. Monjaras (2008)
The court held that a gun enhancement may be affirmed even when the gun is not found, as long as there is circumstantial evidence to support the use of the weapon. As an example, a testimony of a victim about a gun and threats or demands may suffice.
People v. Pearson (2019)
This case explained that Senate Bill 620 is retroactive. Even in cases where the conviction occurred before the law’s enactment, courts can consider striking firearm enhancements during resentencing. It is an essential precedent of post-conviction relief.
People v. Hunter (2023)
In this case, the court clarified how the enhancements should be justified by the record and their implication on the length of sentencing and parole eligibility. Proportionality in sentencing was also mentioned in the case.
Frequently Asked Questions (FAQs)
How Do Firearm Enhancements Affect Plea Bargains in California?
Firearm enhancements can provide prosecutors with a great advantage. You might receive an additional 10, 20, or 25 years on top of your felony. Consequently, prosecutors may be willing to give you a plea bargain that dismisses the enhancement, provided you plead to a more serious underlying offense. This strategy pressures you to plead guilty to save the extra time. An experienced lawyer can counter, negotiate a better deal, or make pretrial motions to undermine the DA.
What Must the Prosecutor Prove to Add a Firearm Enhancement?
A firearm enhancement does not occur automatically. The prosecution has to demonstrate beyond a reasonable doubt that you used, fired, or injured someone with a weapon in the commission of the crime. This is addressed in the jury trial by a separate finding. Your defense attorney can ask the judge to bifurcate the case, a legal tactic that would have the jury hear the enhancement evidence only after they had first decided guilt on the underlying charge. This prevents inciting the jury and assists you in getting a fair trial.
What is the Impact of Firearm Enhancements on Prison Time?
When a firearm enhancement is added, you usually lose access to early release credits. In the majority of violent felonies involving the use of a firearm, you will serve at least 85 percent of your sentence. Some enhancements deny you the chance of acquiring milestones or work credits. A 10-year enhancement can translate to 8.5 to 10 years in prison and no less. You should always ask your attorney how your enhancements modify your sentence, not necessarily what is on paper.
Can a Firearm Enhancement Trigger the Three Strikes Law in California?
Yes. If you have prior strike convictions and your underlying felony is a strike offense, a firearm enhancement can increase your base sentence by twice. As an example, a 10-year firearm enhancement on a second strike can lead to a 20-year minimum sentence. You might get 25-to-life on a third strike. Firearm enhancements do not simply add time; they trigger California’s most severe sentencing provisions. Your lawyer should consider your current charges and your criminal record.
Find a Gun Offense Attorney Near Me
In California, sentencing enhancements on firearms can significantly add to your sentence even when no bullets were discharged. One enhancement can add 10, 20, or even 25 years to your sentence, so it is vital to be quick and clever.
Fortunately, Senate Bill 620 allows the judges to strike the firearm enhancements in the interest of justice. However, this relief is not automatic. You require an experienced defense attorney who can use SB 620, contest enhancement charges, and bargain with prosecutors.
Charged with a felony with a firearm? Do not endanger your future. One good legal approach can be the difference between probation and several decades in prison. At the CCLG: Los Angeles Criminal Attorney, we can discuss your case and offer legal counsel. Contact us at 323-922-3418 and receive professional legal assistance.
