How Firearms Sentencing Enhancements Work
Even though residents of California are allowed to own and possess firearms, they must do so under strict gun laws. These laws guide us on how and when we must use, store and transport guns in our possession. California has some of the most stringent gun laws in the country. Most offenses committed using a gun are highly punishable felonies. Committing a felony offense using a dangerous weapon is a direct disregard for the health and safety of others. That will give you an even harsher penalty upon conviction and lead to an additional sentence through the firearms sentencing enhancement laws.
Sentence enhancement refers to additional penalties imposed by the judge due to the nature and severity of your offense. Gun offenses are severe and subject to sentence enhancement under specific conditions, including the circumstances of a crime.
The Circumstances of Your Offense
Judges consider the details of your case to decide whether to impose a sentence enhancement to the penalties you receive for the felony offense.
For instance, you will likely face sentence enhancement charges if you use a gun to commit a felony offense. In that case, you could receive a sentence for the felony offense and an additional sentence that you must serve consecutively with the previous sentence.
The prosecutor charges a defendant for sentence enhancement, which happens with a criminal offense. The court must find you guilty of the underlying crime, or you admit to your charges to receive an additional penalty under this law.
The length and nature of the additional sentence you will receive will depend on several factors, including:
If You Used the Firearm in Person
Most sentence enhancements in California do not require you to personally use or possess a firearm when you commit a felony. But, the court will consider whether the principal of the crime used or had a firearm at the time. A principal, in this case, refers to the person who actively and directly commits the offense, or abets or aids the execution of a crime. You are subject to sentence enhancement even though you did not directly use a firearm to commit the crime.
Whether You Used the Firearm
The court would like to know if you used a firearm to commit the felony or were only armed at the time of the offense. Sentence enhancements apply if you or the other principal of the crime used the firearm. Remember that using a gun does not necessarily mean firing the gun. It includes striking a person with a gun or displaying the gun menacingly.
Other enhancements require you to be armed with a gun or ammunition. A Defendant is armed if they knowingly have a firearm or ammunition in their person or the gun/ammunition is available and can be used if need be.
Having a gun available to you doesn’t mean that you have loaded it and are ready to fire. It doesn't mean that the firearm was within your immediate reach. It could be that the firearm was there at the crime scene.
The Nature of the Underlying Offense
Firearm sentencing enhancement applies to felonies committed using a gun. You are likely to receive an even harsher sentence enhancement if the underlying offense is a violent felony, a severe sex-related or drug-related felony.
California law lists many serious violent offenses, including murder, kidnapping, and rape. Those could lead to a longer additional prison time in addition to the underlying penalties if you or your accomplice used a gun to commit the offense.
When Multiple Sentencing Enhancements Apply
Sometimes a defendant could face multiple sentence enhancement for the same underlying felony. In that case, you can only serve the enhancement that provides a potentially longer prison time.
Most sentence enhancements in California require the court to convict you to any of three specified prison terms. The judge has complete discretion in the specific term he/she will give you, from low, middle, and high prison terms.
But, some enhancements specifically state the term you should be subjected to. In that case, the judge will abide by the guidelines provided, except in cases where there are aggravating or mitigating circumstances in your case.
Aggravating circumstances will include factors allowing the judge to give a more extended sentence than provided. Mitigating circumstances include elements that could justify the judge imposing a lenient sentence than provided or striking the sentence enhancement altogether.
Aggravating and mitigating circumstances apply to the offense or the offender. Factors that could relate to the offense include:
- The nature of the offense, whether vicious or cruel
- If you are a passive or active participant in the crime
- If the crime was seemingly sophisticated and whether it required extensive prior planning
Here are some of the factors that could relate to the offender:
- The defendant's criminal record— Whether it is a first offense or they have a criminal history
- Whether the defendant has a previous case(s) of violent behavior
- If the defendant voluntary admitted to wrongdoing at the beginning of the legal process
California Firearms Sentencing Enhancements
California law provides various firearms sentencing enhancements depending on the nature of the felony and other circumstances of the case. Let us look into each of them in greater detail:
California PC 12022
The sentence enhancement provided under this law applies to offenders that commit felonies while armed with a gun or another dangerous weapon. If found guilty of committing a felony and doing so while armed, you will face two consecutive sentences. The first sentence will be given for the original offense. Under this law, the basic sentence enhancement is an additional one year in prison/jail.
More severe penalties like carjacking, attempted carjacking, and drug-related felonies attract a longer additional sentence on top of the underlying offense. For instance, if you commit one of the severe felonies while armed with a weapon, you could receive up to five years of additional consecutive sentence upon conviction.
California PC 12022.2
Sentence enhancements under this statute apply to offenders that commit felonies using a gun while having ammunition or wearing body vests while committing violent felonies. A body vest is bullet-resistant clothing that protects its wearer against bullet injuries.
If you are guilty of committing a felony while having ammunition, you could receive a maximum additional consecutive prison sentence of ten years.
If you commit a violent felony using a gun while wearing a body vest, you will receive an additional prison sentence of five years on top of the penalties for the felony offense.
California PC 12202.3
The sentence enhancement under this law applies to defendants that commit certain sex-related felonies while armed with a gun. These offenses include rape, lewd or lascivious acts with minors, and forcible sodomy. The sex offense does not stop after completing the act, but the defendant remains in control of the victim for the period. Therefore, you will still be guilty even though you only show the weapon to the victim after completing the act.
You will receive an additional two to five-year sentence enhancement for being armed, or three(3), four(4), or ten(10) other years for using the firearm when committing a specified sex crime.
California PC 12022.4
This law provides sentence enhancements for defendants who furnish others with a gun when others are committing felony offenses. You will receive a sentence for the felony offense and an additional penalty for providing an accomplice with a gun to use in the felony. Remember that your presence during the execution of the felony is not necessary to be guilty under this statute.
If you gave another person a firearm beforehand, the enhancement would apply, provided your actions portray a continuous transaction.
You will likely receive an additional up to three years in prison under this statute. This statute provides that the defendant faces a conviction to a middle term, two years, except in mitigating or aggravating circumstances. The judge will make the final decision on the number of additional years you will receive.
California PC 12022.5
The sentence enhancement under this statute applies to defendants who personally use guns, machine guns, or assault weapons to commit a felony offense. Personally using a gun means that you displayed the weapon menacingly, fired, or struck someone with it. This statute only applies to offenses that do not necessarily require a gun. For instance, the crime of murder can be accomplished with or without a firearm. In this case, you could receive penalties for committing murder and for doing so by using a gun to accomplish the offense.
Under this law, you will likely receive up to ten years in prison on top of the penalty for the felony offense.
California PC 12022.53
The enhancement applies to defendants that personally use firearms to commit serious felonies. The statute is also known as the ‘10-20 life’ or ‘Use a firearm and you are done’ law. Some severe felonies covered under this law include murder, mayhem, rape, robbery, and kidnapping.
You will likely receive a maximum of ten additional years for using the gun, twenty years for shooting the gun, and twenty-five years for seriously injuring or killing another person using the gun. Remember that you must serve the additional sentence consecutively with the penalty for the felony offense.
Possible Legal Defense Strategies to Firearms Sentencing Enhancements
Fortunately for you, California law provides several defense strategies that your attorney can use to defend you against a possible sentence enhancement. That will significantly reduce the length of time you will remain incarcerated. Some of the strategies you can try based on your situation include:
Fighting the Underlying Offense
Remember that you only receive a sentence enhancement if you are guilty of the underlying offense. One sure way to avoid an enhanced sentence is to fight the underlying crime. If you are not guilty of the underlying offense, you will not be guilty under the California sentencing enhancements law.
You Did Not Personally Use a Gun
If you face a sentence enhancement that requires you to have personally used a gun to commit a felony, you can use this defense to fight off the additional sentence.
The Police Misconducted Themselves
Police misconduct is a common and effective defense strategy in most criminal trials. If you can convince the court of police misconduct during your arrest or investigations, evidence gathered by the police will be inadmissible in court. The court could end up dismissing your underlying charges.
For instance, police have, in the past, been accused of illegal search and seizure. The law requires law enforcement officers to have a valid search warrant to conduct searches and seize properties from suspected offenders. If officers searched your person or property without a valid warrant, you could have any evidence gathered thrown out of court.
Find a Competent Criminal Attorney Near Me
Using a gun to commit a felony could cause you a more extended prison time and heftier penalties. That is why you need competent legal help if you face firearms sentencing enhancements charges in Long Beach. At Long Beach Criminal Attorney, we have handled similar cases in the past. Thus, we know the defense strategies that could produce a favorable outcome for your situation. Call us at 562-308-7807, and let us study the details of your case for proper guidance and legal advice.