According to California Penal Code 12022, when someone uses a firearm in the commission of a criminal offense, they will be charged with both the underlying offense and receive sentence enhancements for employing the firearm. Legislators enacted the statute after concluding that criminal offenses committed with firearms are more serious and should result in great bodily harm.
We, at the Riverside Criminal Defense Attorney Law Firm, are aware that the state of California has some of the most stringent firearms restrictions in the country. As a result, we are ready to assist you in establishing strong legal defenses to prevent the consequences that come with a firearms sentencing enhancement. This way, you can do the time for the offense you committed without having to go through an extra and subsequent sentence for using a firearm during the commissioning of the offense.
The Legal Definition Of Firearms Sentence Enhancement
As per California firearm statutes, if an offender had a firearm on their person during the commissioning of a felony offense, a court of law could enhance or convict them to more time behind bars. In these cases, the additional term the court imposes is combined with the underpinning felony sentence.
Sentencing enhancements for crimes perpetrated when you or an accomplice possessed a firearm are specified under Penal Code 12021.55 as well as 12022.55.
If you are charged under any one of these Criminal Code Sections, you will face additional and subsequent state imprisonment in addition to the term you are currently serving for the main felony you perpetrated. However, the prosecution team must present compelling evidence that warrants firearm sentencing enhancement before the sentence modifications could be imposed.
When faced with charges that demand firearm sentencing enhancement, your case can go one of three ways. One, you have the legal right to accept the firearm sentencing enhancement charges. Secondly, you could accept a plea bargain or go to trial.
You could also be found criminally culpable after your trial in which a jury or judge resolves your issue. If you choose a trial, the prosecution will have to show all of the components or features of the sentencing enhancement. Each one of these components must be demonstrated beyond a shadow of a doubt.
The prosecution could prosecute you under Penal Code 12022 if they can show that you, the defendant, perpetrated or tried to perpetrate a crime when one of the players in the act was armed.
It's important to note that before the claims are presented before the court of law, your criminal defense lawyer, as well as the prosecution, need to consider if or not certain aspects of the matter can be resolved in court.
In some situations, your attorney's negotiating talents can result in the charges being dropped altogether. However, this is not a common occurrence. This is why we strongly advise you to get the services of a lawyer who will aggressively defend your rights. To assist you in making informed choices as well as to assist us in contesting the allegations, we have outlined how firearm sentencing enhancements work below.
Facts of the Case
The type of sentencing enhancement you receive for the use of a firearm during the execution of a criminal offense is determined by the facts of the matter. In California, most firearm sentencing enhancements do not need the accused to have physically owned or utilized a weapon while committing an offense. This implies that if an accomplice carried a firearm or any other dangerous weapon to the scene of the crime, you risk facing additional prison time.
Any individual who is physically or intentionally implicated in the execution of the primary criminal offense, or who helps or facilitates the commission of a felony, is referred to as a principal. A principal or any other person implicated in the commission of a crime is also susceptible to sentencing enhancements, except if the law specifically states differently,
In some cases, nonetheless, sentencing enhancement also necessitates that either you or your accomplice uses a firearm. Using the firearm does not necessarily insinuate shooting, although using the firearm to shoot at someone does qualify the offender to receive the firearms sentence enhancement.
Making use of a gun can also refer to flashing or wielding a weapon in a threatening manner, or assaulting someone with it. It could also indicate holding or possessing the gun on your person just in case the circumstances at hand require you to make use of it.
Remember that keeping a firearm ready to use does not suggest that it needs to be harnessed. It also doesn't need to be in your immediate vicinity. It's enough to have the firearm near the crime scene or even in an adjacent room to demonstrate to the court that you had it set to be used. The court is usually more concerned with if or not the firearm was present at the scene of the crime.
You may face a sentence enhancement based on the severity of the underlying criminal offense. The following are examples of criminal acts that could lead to enhancements:
- Extremely violent offenses
- Maor drug crimes
- Sexual offenses with a high level of violence
Charged With Multiple Sentencing Enhancements
In some cases, depending on the nature of the crime, you could be subject to multiple sentence enhancements. The court won't apply all of the modifications if that's your case. Rather, they will impose the sentencing enhancement that could result in a longer-term for you.
This could be both good and bad news. It is good news as only a single enhancement could be used, and it's bad news if the court chooses the longest one. When the court chooses to penalize you for previous violations, they can add multiple enhancements to your sentence, potentially including a gang enhancement.
The Scope of the Imprisonment Term
Courts now have a broader leeway in determining the extent of sentence enhancements that could be applied after a charge for a firearm offense. They focus on three forms of strict incarceration: low, moderate, and high. Nevertheless, several statutes limit a judge's ability to add or impose a moderate prison sentence. If there are aggravating factors, such as violence, judges can impose the maximum sentence.
However, if your defense counsel can persuade the court that there are extenuating aspects in your particular circumstance, they can simply impose a shorter prison term or even the minimum sentencing enhancement.
Your lawyer could claim that you had not been in the proper frame of mind when you committed the basic criminal act, or that you had been subjected to trauma that drove you to perpetrate the crime. If such extenuating factors exist in your particular instance, your defense counsel could be able to convince the court to dismiss the firearm sentencing enhancement counts entirely.
The following are exacerbating and mitigating elements related to the act, however, this list is by no means complete:
- If the act was particularly heinous or violent
- If you had been the principal
- The intricacy and preparation to commit the offense
The following are examples of exacerbating and mitigating factors involving the defendant, however, this list is by no means complete:
- If you've ever been convicted of a crime before
- If you do have a history of violence
- If or not you voluntarily admitted to the illegal acts during your interrogation or court proceedings for the incident
Sections Of Penal Code 12022 Used To Modify Sentencing And Penalties
Many variables can raise the likelihood of receiving a prison or jail sentencing enhancement. The factors, nonetheless, vary depending on the law you are charged with breaking.
Possessing a Firearm During the Commissioning of a Felony (Penal Code 12022)
If you perpetrated a felony when in possession of a firearm or while using a dangerous weapon, Penal Code 12022 could apply to you. If you are convicted of this offense, your sentencing for the underlying offense will be added by another sentence.
Remember that firearms are not considered deadly or dangerous weapons under this provision, and possession of a firearm is penalized under Penal Code 12022 since it centers on firearms.
A conviction under PC 12022 typically carries a sentence of twelve months in prison. If you are convicted of attempted carjacking or carjacking, you'll be sentenced to a maximum of 36 months in state prison, which will be served consecutively. If you had a lethal firearm, such as a machine gun, then you will face an additional 36 months of imprisonment.
Penal Code 12022 firearm sentencing enhancements are also applicable to certain drug crimes. Selling or distributing drugs, as well as possession of drugs with intent to sell, are all examples of these drug offenses.
If you are convicted of certain drug offenses under Penal Code 12022, you could face an additional thirty-six, forty-eight, or sixty months in state prison. If you have not been in actual possession of a firearm during the commission of the criminal act but had information that one of the perpetrators or an accomplice was, you'll be sentenced to an additional twelve, twenty-four, or thirty-six months behind bars.
Penal Code 12022.2 — Possessing Bullets with the Capacity to Pierce or Penetrate Through Metallic Objects
If the aforementioned components are involved in your matter, you will be likely to face a sentencing enhancement under Penal Code 12022.2:
- If you perpetrate a criminal act while carrying a firearm and ammunition with the ability to penetrate metal
- If you were wearing bullet-proof clothing when committing a violent crime
The court could find you culpable of firearm sentencing enhancement if the prosecution proves these two factors.
You will risk an additional prison sentence in addition to the base felony charge when you are sentenced. The court could sentence you up to thirty-six, forty-eight, or one hundred and twenty months imprisonment if the bullets discovered on your person can predominantly pierce through metal. The term will be imposed on top of and after the sentencing for the actual felony charge.
It's important to note that the standard penalty under this Penal Code provision, without exacerbating and mitigating elements, is 48 months. Otherwise, the duration of the punishment imposed is at the court's discretion.
The prosecution team will submit proof at the hearing arguing that the court should give a harsher sentence. Your lawyer from the Riverside Criminal Defense Attorney Law Firm, on the other hand, will be ready to present proof that the sentencing should be reduced or the allegations should be dismissed.
If you were wearing a body vest during the execution or attempt to perpetrate a violent offense, you might be sentenced to an additional 12, 24, or 64 years imprisonment.
Unless there are extenuating or exacerbating considerations in the matter, the court can also impose the extra preset sentencing of 24 months. Your criminal defense attorney as well as the prosecution will have the opportunity to submit their extenuating and perpetuating factors, accordingly, before the court makes a decision.
During the sentencing, the court or judge should explain why a certain sentence enhancement was chosen.
Penal Code 12022.3 — Using a Firearm When Perpetrating a Sexual Offense
Offenders who have or use a firearm while perpetrating a sex crime violate Penal Code 12022.3. This statute applies to a variety of sex crimes, including but not limited to:
- Rape as per Penal Code 261
- Penal Code 286 forced sodomy
- Penal Code 288 lewd conduct with a child
It's important to keep in mind that the aforementioned sex offenses continue to apply even after you're done with the sexual act. It continues notwithstanding the assaulter's ongoing control over the victim.
This implies you could face a longer prison sentence even if you only used or showed the gun to the purported sex crime victim after the act was completed.
The judges will issue a further and subsequent sentencing for the underlying sex offense if you are convicted under Penal Code 12022.3. If you had a firearm when the sex crime occurred, you might face an additional twelve, twenty-four, or sixty months in state prison. If you used a firearm while executing a sex offense, you might face a sentence of 36 to 120 months in prison.
Penal Code 12022.4 — Providing or Attempting to Give a Gun To Someone Else Who is Engaged In Criminal Activity
Penal Code 12022.4 makes it illegal to supply or attempt to give a firearm to another person to commit a felony.
Please remember that this provision differs from other firearms sentencing enhancement provisions because it contains a broad meaning of "while perpetrating or trying to perpetrate a felony crime." You could be held accountable under this provision even if you were not present when the offense was done. If you handed the firearm to the offender before committing or attempting to commit a criminal act, the court will hold you responsible.
If you provide or attempt to provide a firearm to another person regularly, you will face an additional sentence. You could be sentenced to an additional 12, 24, or 36 months imprisonment under this law.
24 months is the standard or additional medium-term sentencing. However, depending on the extenuating and aggravating factors in the case, the prison sentence could be increased or decreased.
Using a Firearm when Perpetrating a Felony Under Penal Code 12022.5
You shall be held accountable under Penal Code 12022.5 when you use a firearm while executing or trying to perpetrate a felony crime. In this context, personally utilizing a firearm signifies:
- Displaying a handgun in a violent or intimidating manner on purpose
- Shooting a gun with intent
- Hitting somebody with a firearm on purpose
It's worth emphasizing, however, that this law does not extend to crimes involving the direct employment of a firearm as one of the main parts. If the provision was to apply, this would result in double liability or double sentencing enhancements and is an infringement of your constitutionally protected rights. Additionally, whether or not a firearm is used in the conduct of a criminal, Penal Code 12022.5 will extend, and you'll be held accountable under this statute.
Take, for example, a felony offense such as murder. It could be carried out with a gun, other armaments, or without any weapons at all. As a result, you can be charged with murder as well as the employment of a firearm in the commission of the crime.
Penal Code 12022.5 will extend to all criminal crimes that don't require the use of a firearm. The following are two crimes that do not necessitate the use of a firearm:
- A murder committed during a drive-by shooting according to Penal Code 187
- Assault carried out using a firearm
Although they seem to include the use of a firearm, they do not. The rationale for this is that it is illegal to encourage, aid, or abet the execution of a crime. As a result, even if you did not employ a firearm, you could face harsher punishment.
You risk facing thirty-six, forty-eight, or one hundred and twenty months in state prison if you are sentenced under this provision, in addition to the underlying felony conviction. If the weapon was an assault rifle or maybe a machine gun, you'll be sentenced to sixty, seventy-two, or one hundred and twenty months in state prison, respectively.
Penal Code 12022.53 — Use of a Weapon During the Commission of a Serious Felony
For personally using a gun in the commission of a major criminal, Penal Code 12022.53 calls for extra and subsequent sentences. The following are examples of severe crimes under this legislation:
If the prosecution can show that you utilized a firearm to execute any one of the offenses listed above, you'll be sentenced to an additional 120 months imprisonment. If you discharged a bullet during the incident, you could be sentenced to a further year's imprisonment. When somebody is seriously hurt or murdered while executing a criminal, the judge will add 25 years to a life sentence to the underlying felony charge.
Possible Legal Defenses For Firearms Sentence Enhancements
When you consider the foregoing penalties in light of the laws, you'll see that firearms sentence enhancement has serious ramifications. Fortunately, you can fight these allegations with the help of an expert criminal defense lawyer. To review your case, contact the Riverside Criminal Defense Attorney Law Firm. We'll come up with several legal arguments that will suit your situation. These are among the defenses:
You Never Committed The Underlying Felony Offense
A skilled criminal defense lawyer will start by disputing the underlying charges. If you're not convicted of the base felony crime, sentencing enhancement shouldn't be applied to the case.
You Did Not Use the Firearm Yourself
Under certain sentencing enhancements, you can not get convicted if you did not use the firearm yourself. This would include Penal Code 12022.5 and Penal Code 12022.53. When the prosecution cannot prove that you were the one who fired the firearm, you're presumed to be innocent.
Law Enforcement Misconduct
The court could dismiss the charges if the authorities engaged in any kind of malpractice during the apprehension or interrogation for the underlying offense. There'll be no sentencing enhancement if there are no base charges or convictions. The following are some examples of police misconduct acts:
- A police officer places a concealed weapon inside your car or on your body
- Law enforcement officers lied in their reports
- False testimony concerning the details of a case
Your attorney can potentially claim that the proof used to prosecute you for the baseline offense was obtained illegally.
Find a Criminal Defense Attorney Near Me
Firearm enhancement laws are complicated, and they can lead to lengthy jail or prison terms. Fortunately, many legal defenses can be utilized to fight the charges. If you've been charged with firearm enhancement offenses, you'll need a dedicated and experienced lawyer to defend you. To schedule a meeting, call 951-946-6366 and speak with one of our representatives at the Riverside Criminal Defense Attorney Law Firm.