In California, sentence enhancements become necessary when defendants commit felony offenses while carrying or using a firearm. When this happens, the penalties imposed for the underlying offense are often severe. Once the court enhances your sentence, you will have to serve both the new term along with the sentence you were given for the underlying offense.
However, courts take into account several factors when determining a sentence enhancement, such as the type of firearm used as well as your criminal history. If you are facing a sentence enhancement due to firearm possession, you ought to speak with a seasoned criminal defense attorney. We at Chula Vista Criminal Attorney have competent attorneys who can use their experience to help defend you against charges leveled against you.
An Overview of California Gun Sentencing Enhancement Laws
When you or your accomplice commits a felony in California using a firearm, the court can increase your sentence or impose additional prison time. In such a case, your total time in prison will increase by the length of the original sentence plus any subsequent sentences imposed.
The consequences you receive for a crime are increased under California sentencing enhancement laws. These crimes involving firearms that are subject to enhanced sentences are outlined under California PC 12021.55 through 12022.55. If there are aggravating factors in the matter, you will be subject to further and subsequent punishments whenever the presiding judge convicts under these laws.
However, the prosecution must first legally bring charges for firearm sentencing enhancement in addition to the underlying firearm offense charges, through all standard procedures under the law.
When facing firearm enhancement charges from the prosecution, you have the option of pleading guilty, accepting a plea bargain, or taking your matter to trial. Furthermore, the prosecution can obtain a conviction following a trial before the judge or before a jury. When you decide to go to trial, the burden of proof rests with the prosecuting attorney, who must prove each element of the sentencing enhancement beyond the shadow of a doubt.
If the prosecution believes that you or your accomplice perpetrated or attempted to perpetrate a felony offense while in possession of a firearm, they will file California PC 12022 charges against you.
Your defense lawyer must go over the specifics of the offense with the prosecution before you face the sentencing enhancement charges. That is why, having a seasoned defense lawyer with strong negotiating abilities would be beneficial because they could help you avoid serving more time in prison.
California Criminal Offenses That Can Result in a Firearm Sentencing Enhancement Charge
If you have been accused of a felony, you will most likely be subject to the sentencing enhancement. According to California PC 12022 through 12022.5, if you or a crime accessory committed any of the following offenses while in possession of a firearm, you could be subject to firearm sentencing enhancements:
A Violation of California PC 12022
When you or an accessory utilizes a firearm or other dangerous weapon when in the commission of a carjacking or attempts to do so, you'll violate California PC 12022. The law defines dangerous weapons under California PC 12022 as any kind of weapon besides a firearm, such as a machete.
Let's say that you are found guilty of violating PC 12022. Based on the nature of the offense and violation, you will then be subjected to receiving penalties for the core offense as well as a further prison sentence as your weapon sentencing enhancement.
For example, if the primary felony charge is carjacking, you'll also face 1 to 3 years in state prison, which is along with the sentence for attempting or committing the actual carjacking.
If you're being detained for a drug-related offense in California, such as having cocaine or other illegal substances in your possession with the intent to sell them, your sentence could also be enhanced if you had a firearm during the arrest. If any firearm was present when this sort of violation was committed, you would also be subject to an extra, consecutive sentence of 3 to 5 years in prison.
Your sentencing enhancement, nevertheless, can vary from 1 to 3 years when you knew that your accessory possessed a weapon even though you didn't physically carry one when the crime was being committed.
Even though you didn't physically carry the firearm, do not underestimate these potential punishments; a three-year sentence in prison is a long time. Make sure you speak with a criminal defense lawyer and give them the specifics of your charges to receive proper representation both before and throughout your trial.
A Violation of California PC 12022.2
According to this clause of the penal code, it is illegal to have any ammunition that, given its special design, can pierce metal or armor. You could be liable to firearm sentencing enhancements under this section when you commit any of the acts listed below:
- Using a weapon and having access to ammunition that can pierce armor, metal, or chest vests while committing a felony.
- Wear a chest or body vest when committing a felony offense.
For this provision, a "body or chest vest" is any piece of bulletproof material that the defendant wears to protect themselves from injuries or gunshots. Whether you used an armored vest or simply bullets that can go through metal or armor will determine the firearm sentence enhancement charges you will receive for this violation.
Along with the standard punishment for the felony conviction, a person found in possession of armor or metal piercing ammunition will face a further 3, 4, or 10 years in prison. If there are no mitigating or aggravating factors related to the crime, the court will issue a four-year sentence.
If the court finds that you used a body or chest vest to protect you while perpetrating a violent offense, the judge could sentence you to 1, 4, or 5 years in prison. This punishment will be added to the original charge and is served concurrently.
Unless there's an additional aggravating and mitigating element accompanying the offense that could make way for an alteration of the current sentence, the court must increase your sentence by 2 years.
The judge has the authority to determine the extent of the punishment that will be imposed for a California PC 12022.2 violation. If the judge decides to add a firearms sentence enhancement to your base/underlying felony, they must explain to you as well as your attorney why they think it is necessary.
A Violation of California PC 12022.3
Persons convicted of specific firearm-related sex crimes in California, such as rape, must serve an additional term in prison under PC 12022.3. For this clause, it is irrelevant whether you actually fired the gun or only had it in your hands to intimidate the subject into giving you their consent.
Even though you didn't commit the original baseline sexual charge, provided you had authority over the victim, you could still face the firearm sentencing enhancement charges.
The court is going to hand down a further prison sentence of 1 to 5 years if a firearm was present when the initial act was committed. The additional sentence for actually utilizing the weapon will be lengthier, perhaps from 3 to 10 years.
A Violation of PC 12022.4
It is illegal to provide or assist another individual in getting a firearm to commit a felony under this subsection of the firearms sentencing enhancement law. In contrast to previous sentences involving firearms, if you gave away the weapon before the event that started the initial offense, even though you weren't physically present when the offense was committed, you could still receive an extra prison sentence.
You could receive an additional three years in prison when the court convicts you of this crime. The standard term for this offense is two years in prison. However, based on the defenses brought forth throughout the trial by your lawyer and the prosecution, the sentence can be reduced or increased.
A Violation of PC 12022.5
This provision makes it unlawful for a person to directly use a firearm or another assault weapon in the course of committing or attempting to commit an illegal act like assault or robbery. For this part, using a firearm means:
- You were making threatening gestures with your gun.
- You pulled the trigger.
- You struck the victim with the firearm.
It should be noted that felony offenses such as murder, which are not always committed with a firearm, are also subject to prosecution under PC 12022.5.
If it happens, you will be punished for murder and given a harsher term because you used a gun to carry out the crime. You will additionally be sentenced to a prison sentence of 3 to 10 years, based on the specifics of the crime, along with the penalties for the original crime.
A Violation of PEC 12022.53
PC 12022.53 outlines the requirements for firearm sentencing enhancements for unlawfully using a firearm during the commission of serious felonies like:
The punishment for violating PC 12022, which forbids the use of a firearm when committing serious felonies, has the harshest sentencing enhancement term. You could receive the following prison sentences:
- 10 years for utilizing a firearm.
- 20 years if you discharged the firearm.
- 25 years if you seriously injured or killed someone else.
The aforementioned firearm sentence enhancement will be added to and followed by the felony charge itself, so the entire penalty could be harsh and drastically alter your life. That's why it's a good idea to consult a criminal defense lawyer for help getting the sentencing enhancement penalties dropped or reduced.
Factors the Judge Takes into Account When Imposing a Firearm Sentencing Enhancement Charge
To get additional firearm sentencing enhancements along with the penalty for your underlying offense, the prosecution must conclude that you are guilty of the criminal act element associated with your violation. For any breaches of the aforementioned California PC sections 12022 through 12022.55, the court will take into account the following criteria before bringing the firearm sentencing enhancements:
Nature of the Offense
The extent of the penalties you face and any additional enhancements to the sentence that will apply in your specific circumstances will be based on:
If You Had the Weapon and/or Used It or An Accessory Did
According to California law, you don't need to have any proof that you used or had possession of a firearm while committing a felony offense to receive firearm sentence enhancements. It doesn't matter who fired the weapon during the execution of the offense; if you violate California's sentencing enhancement statutes, your sentence could be increased.
If You Were Actively Using the Firearm
If a firearm was used during the execution of the underlying offense in California, the offender's sentence will be enhanced in a specific way. Many people who are unfamiliar with the regulations surrounding firearm sentencing enhancements assume that the word "using a firearm" refers exclusively to firing the weapon.
However, the mere act of firing a handgun is sufficient to warrant a mandatory firearm sentence enhancement. Utilizing a weapon can also mean:
- Using a weapon or a gun to strike or hurt someone else.
- Showing off or flashing your firearm in a threatening way.
- Holding the firearm.
The prosecution will typically focus on if a firearm was present while executing the primary offense to prosecute you of this offense.
The Nature of the Underlying or Baseline Felony
The firearm sentence enhancement you get for the specific violation will depend on the type and gravity of the underlying felony. Armed robbery is one example of a violent crime that might result in a heavy firearm sentence enhancement penalty because it disregards the well-being and safety of other people.
Additional Sentencing Enhancements Related to The Underlying Felony Charge
More than a single firearm sentence enhancement could apply to your initial felony conviction. If so, the court will impose the enhancement that carries the harshest penalty or the maximum term of incarceration.
The Imprisonment Term that is Appropriate for Your Offense
The court will decide how much extra time in prison you will serve for your offense. The court can impose a harsher prison sentence along with the underlying sentence when there are further aggravating factors involving cruelty.
If you've ever been arrested or convicted of a felony, the same rules will still apply. The judge could consider a shorter prison sentence or dropping the charges provided your attorney makes defenses to cast doubt on the prosecutor's case.
Legal Defenses Your Defense Attorney Can Bring to Fight the Firearm Sentencing Enhancement
The penalties you get for the primary crime can be increased under California's sentencing enhancement laws. Spending more time in prison could have repercussions on your personal, career, and social life.
For instance, a prolonged period of incarceration will hurt your family relations. The transition back into life with loved ones and the community after an extended stay in prison can be difficult. Also, finding employment following a jail sentence could be difficult for former offenders.
For all of these reasons and more, it is advisable to fight the charges as well as the sentence enhancements. You could do this with the assistance of a skilled criminal lawyer. If you successfully defend yourself, the presiding judge could dismiss the case entirely or lessen the penalties. Fortunately, there are several strategies your defense counsel can use to get a favorable outcome. They include:
You are not Responsible For the Underlying Felony
Challenging the underlying felony charge could be the most effective strategy for countering the firearm sentence enhancement charges. The court views felony charges to be among the most serious types of crimes, and the sentence that you are given should reflect this severity.
Therefore, if you wish to increase your prospects of having the firearm sentence enhancement charges against you dismissed or reduced, you need to first attempt to defend the basic felony offense allegations that you are facing. Let's say your lawyer gets you cleared of the main criminal charge. The firearm sentence enhancement allegations could also be dropped.
You Didn't Use the Weapon While Committing the Underlying Felony Crime
In most cases, the fact that you didn't utilize the gun yourself can be used as a legal defense against the more severe penalties that are imposed when a firearm is involved.
For instance, the prosecuting attorney must demonstrate that you directly utilized the gun during the execution of the primary felony violation following California PC 12022.5 through 12022.53.
No firearm sentence enhancement can be imposed if the court finds that this aspect of the offense is not present in the case. However, if you violate Section 12022, you could be subject to sentencing enhancement penalties.
Law Enforcement Misconduct
When the prosecuting attorney learns that the detention was the result of misconduct by the police, the charges will be dropped. If your defense attorney can show that the reason for your detention or conviction was improper conduct by law enforcement officers, the judge could also throw out the case. The charges related to the firearm sentencing enhancement will also be dropped by the judge once the initial offense is dismissed. Police misconduct can take many forms, but some examples include:
- Hiding a gun on your person, property, or vehicle.
- A law enforcement officer providing false testimony regarding the crime's elements or the particulars of the matter.
The Weapon Seizure Was the Result of an Illegal/Unauthorized Search
The United States Constitution forbids law enforcement officials from entering a person's home or car without permission. You can only expect the police to search your property if
- You permit them to search voluntarily.
- The search is justified by probable reasons or a justifiable suspicion.
- They possess a legitimate search warrant.
If you wish to safeguard your interests and rights, be sure to call a lawyer immediately after you have been arrested. Otherwise, you risk being wrongfully convicted due to misconduct by the police and violations of your constitutional rights. If your defense attorney can convince the prosecution that the law enforcement officers abused their authority, this case is unlikely to proceed to trial.
Other Charges Associated with California's Enhanced Firearm Sentencing
If there are not sufficient details and evidence to convict you with firearm sentence enhancement penalties, the prosecution could charge you with one or more additional crimes. Other crimes that have enhanced sentences include:
Brandishing Your Gun or Other Weapon
Displaying or brandishing a handgun or another lethal weapon to instill fear is illegal in California under PC 417. PC 417 violations are misdemeanor offenses that carry a thirty-day jail sentence. A month in jail can be a long time, particularly if you have a busy life.
Your lawyer can use defenses like self-defense to fight these charges. If you believe that you are in immediate danger of suffering bodily damage or death, you are allowed to brandish any legally owned firearm.
Assault Using a Firearm
According to California PC 240, using a firearm to point at, strike, or shoot someone else while committing an assault is punishable as assault using a firearm. In California, assault using a weapon or firearm is considered a felony that is punished harshly in court, particularly when it results in physical harm or loss of life of someone else. In California, assault using a firearm can result in a prison sentence ranging from 2 to 4 years as well as fines of up to ten thousand dollars.
Find a Criminal Defense Attorney Near Me
At the Chula Vista Criminal Attorney, we are aware that your rights and future could be on the line if your charges qualify for enhanced sentences. If you have been accused of a gun-related offense in Chula Vista, California, don't hesitate to get in touch with us for legal support. We can provide you with the legal representation you need to get the firearm sentence enhancement charges dropped or reduced. Call us today at 619-877-6894.