As per California PC 12022, if a firearm is involved in committing a felony offense, you will not only be charged with the baseline felony but also with a sentence enhancement for using the firearm. The reason for the enactment of the statute by lawmakers is because of the realization that felony offenses carried out using firearms, even when the gun is not operable, are more severe and should carry harsher consequences. The extra prison time is made much longer and can add a significant incarceration period on any felony sentence the court imposes.

Thankfully, at the San Jose Criminal Attorney Law Firm, we understand that California has the country’s strictest gun laws. For this reason, we are available to help you put up various legal defenses to avoid the penalties of firearms sentencing enhancement. That way, you get to serve a sentence for the felony you committed without facing additional and consecutive jail enhancement for utilizing a firearm at the time of the crime.

Legal Definition of Firearms Sentence Enhancement

According to California gun laws, a criminal court can enhance or sentence you to additional prison time if you or an accomplice possessed a firearm when committing a felony crime. In such situations, the extra sentence is added to the underlying felony sentence. Sometimes the additional sentence might make your incarceration even much longer.

Sentence enhancements for felonies committed while you or your accomplice is carrying a firearm are codified under PC 12021.55 and 12022.55. In the event you are convicted under any of these Penal Code Sections, sentencing enhancements will result in further and consecutive state incarceration on top of the sentence you already have for the underlying felony you committed while a firearm was at the scene. However, before being subjected to a sentence enhancement, the prosecuting attorney must file formal charges for firearm sentence enhancement. Besides, the prosecutor must follow the standard procedure for a criminal case before applying the additional sentence.

When facing charges of sentence enhancement, the case can follow three main directions. One, you can lawfully acknowledge the firearm sentence enhancement charge. You can also agree to a plea deal or proceed to trial. Furthermore, you could be found guilty at a court hearing where a judge or jury decides your case. If you opt to go for a trial, the prosecutor must prove all the elements or aspects of sentence enhancement. The prosecuting attorney must demonstrate beyond reasonable certainty each of these elements.

The prosecutor can impose PC 12022 charges if he or she can prove that you, as the defendant, committed or attempted to commit a  crime while one of the principals in the crime was furnished with a gun.

It’s worth noting that before these charges are brought to court, your criminal defense attorney and the prosecutor must discuss whether particular issues of the case can be won in court or not. In some cases, the charges may be dropped entirely based on the negotiation skills of your attorney. For this reason, we encourage you to hire an attorney from San Jose Criminal Attorney Law Firm. Below, we have discussed how firearm sentence enhancement works to help you make better decisions and help us contest the charges before and during the trial:

  1. Conditions of the Crime

The kind of sentence enhancement you end up with for personal usage of a gun during the commission of a felony rests on the case’s circumstances. Many firearm sentence enhancements in California don’t require you or the defendant in the case to have personally possessed or used a firearm while engaging in a crime. It means that you could end up with extra prison incarceration if your accomplice brought a gun or dangerous armament at the crime scene.

Unless the law expressly says otherwise, a principal or any person involved in committing an offense is subject to enhancement. In this case, a principal is any person who is directly or actively involved in the underlying felony offense or a person who aids or assists in committing a felony.

Sentence enhancement, in particular circumstances, also requires you or your accomplices to use a gun. In this case, using a firearm doesn’t necessarily mean shooting, but it qualifies you for the majority of sentence enhancement charges. Using a gun could also mean displaying or brandishing a firearm in a threatening fashion or hitting another person with it. Using a gun could also mean holding or having the gun around the scene if circumstances force you to use it.

Keep in mind that having a gun ready for use doesn’t mean it should be strapped and ready for use. Besides, it doesn’t have to be within your vicinity. Having the gun near the scene or in a nearby room is enough to prove that you possessed a firearm ready for use. The court pays more attention to whether the gun was within the surroundings where the crime happened.

Similarly, you could be subject to sentence enhancement depending on the nature of the baseline felony offense. Some of the criminal felonies that could result in enhancements include:

  • Serious violent crimes
  • Serious sex offenses
  • Serious drug crimes

If you have been convicted of rape or murder, an extra sentence will be forcefully applied.

  1. Multiple Enhancements Charged

You may be subject to more than one sentence enhancement based on the underlying offense in some incidents. If this is your case, the court will not apply all the enhancements. Instead, they will apply the sentence enhancement that increases your prison incarceration the longest. This is good news and, at the same time, bad news. It’s good news because only one enhancement can be applied, but it’s terrible news when the court applies the longest enhancement. If the court decides to punish you for other sorts of offenses, they can apply multiple enhancements so that you can end up with a gun and gang sentence enhancement.

  1. The Range of Extended Incarceration

Judges and courts have been given more discretion on the range of sentence enhancement to apply upon conviction for firearm sentence enhancement. They rely on three strict jail terms, which are low, middle, and high. However, particular statutes state that a judge can only add or apply the medium or middle prison term. Judges are allowed to apply the high prison term if aggravating circumstances like violence are present.

On the other hand, they can only apply a short prison term or minimum sentence enhancement if your criminal defense attorney convinces the court that there are mitigating factors present in your case. Your attorney could argue that you were not in the right state of mind at the time of engaging in the underlying criminal conduct, or you were subject to abuse, which triggered you to commit the felony. If such mitigating factors are present in your case, your criminal attorney could petition the court to drop the firearm sentence enhancement charges entirely.

Aggravating and mitigating factors linking to the offense include, but not is an exhaustive list to:

  • If the criminal conduct was harsh or vicious
  • If you were an active or inactive principal
  • The planning and complexity of the offense

Aggravating and mitigating circumstances concerning the defendant include but not a complete list to:

  • If you had a previous criminal history
  • If you have a past of violent behavior
  • Whether you willingly confessed to the criminal conduct during the initial stages of the investigation or prosecution of the case.

Sections of PC 12022 Used to Enhance Sentencing and their Penalties

Several factors can increase the sentencing enhancement in prison or jail sentences. However, the factors depend on the statute you are accused of violating.

PC 12022 – Possession of a Firearm While Committing a Felony

PC 12022 would apply in your case if you committed a felony while furnished with a gun or made use of a deadly weapon or dangerous armament. Upon conviction for this crime, your sentence for the baseline crime conviction will be enhanced by an additional sentence.

Note that under this section, guns are not included under dangerous armament or deadly weapons, and because PC 12022 focuses on firearms, control of a gun is punishable.

The typical punishment for PC 12022 conviction is twelve months prison incarceration. If the initial conviction is for carjacking or attempted carjacking, you will be subject to a further and uninterrupted maximum of thirty-six months in prison. In cases where you were armed with a deadly firearm like a machine gun, you will be subject to an extra thirty-six months in prison.

Particular drug offenses are also subject to PC 12022 firearm sentence enhancements. These drug crimes include selling or distribution of drugs or possessing drugs for sale. Upon conviction under PC 12022 for these drug crimes, you will face an extra 36, 48, or 60 months in prison. If you were not the person in physical possession of the firearm at the time of the crime, but you had knowledge that one of the principals or your accomplices was carrying a firearm, you will face an extra and successive 12, 24, or 36 months in prison.

PC 12022.2 – Having Bullets With the Ability to Penetrate or Pierce through Metal

You will be subject to sentence enhancement under PC 12022.2 if the following elements are present in your case:

  • If you commit a criminal felony while having a gun and ammunition within your vicinity, capable of penetrating a metal.
  • If you wore a bullet-proof vest at the time of a violent felony

In case the prosecutor establishes these two elements, the court will find you guilty of firearm sentence enhancement.

Upon sentencing, you will face extra prison time on top of the underlying felony conviction. If the ammunition found in your possession can penetrate primarily through armor, the court will sentence you to 36, 48, or 120 months in prison. The sentence will be applied on top and following the one for the baseline criminal felony conviction.

It’s worth noting that absent aggravating and mitigating factors, the default sentence under this PC Section, is forty-eight months. Otherwise, it is at the discretion of the court to decide on the sentence’s length to impose.

During the case’s hearing, the prosecuting party will present its evidence asserting that the judge should impose a longer sentence. However, your attorney from the San Jose Criminal Attorney Law Firm will be available to present evidence showing that the sentence should be lowered or charges dropped.

In case you wore a body-vest while committing or attempting to engage in a violent crime, you will face an extra and successive twelve, twenty-four, or sixty-four years in prison.

The judge must also use the additional default sentence of twenty-four months unless mitigating or aggravating factors are present in the case. Your criminal attorney and the prosecutor will be given a chance to present their mitigating and aggravating factors, respectively, then the court will decide on the sentence. During sentencing, the judge or court should give the reasons for arriving at a particular sentence enhancement.

PC 12022.3 - Utilizing a Gun while Committing a Sex Crime

PC 12022.3 makes a crime for individuals to have or utilize a firearm when committing a sex offense. The sex offenses that are applicable as per this statute include but not restricted to:

  • Rape according to PC 261
  • Forced sodomy under PC 286
  • Lewd acts with a minor as per PC 288

Note that committing the above sex offenses doesn’t stop applying once you are done engaging in the act of sex. Instead, it continues despite the assaulter continuing to exercise power over the casualty in question. This means you could end up facing additional prison sentence regardless of only utilizing or showing the firearm to the alleged sex offense victim only after the sexual act ended.

In the event of conviction under PC 12022.3, the judge will impose an additional and sequential sentence for the baseline sex offense. If you were armed or had a gun at the time of the sex offense, you will face 12, 24, or 60 months extra months in prison. In case you utilized the firearm during the commission of a sex crime, the punishment upon sentencing will range from thirty-six to one hundred and twenty months.

PC 12022.4 – Supplying or Attempting to Provide Another Individual With a Gun While Engaging in Criminal Felony Conduct

PC 12022.4 essentially prohibits providing or attempting to provide a gun to another individual to be used during the commission of a felony.

Keep in mind that this statute is very different from other firearm sentence enhancement statutes because “while committing or attempting to commit a felony offense” has a comprehensive definition. You would be liable under this statute if you weren’t actually in the vicinity where the crime was committed. The court will find you liable if you gave the gun to the assailant before the commission or attempted commission of a felony. The extra sentence will be imposed if you furnish or try to furnish someone else with a gun in an unceasing transaction.

According to this law, you could face a possible twelve, twenty-four, or thirty-six extra months in prison upon sentencing.

The default or extra medium-term sentence is twenty-four months. However, this prison time could increase or decrease based on mitigating and aggravating circumstances in your case.

PC 12022.5 – Individually Utilizing a Gun When Committing a Felony

If you individually utilize a gun while committing or attempting to commit a felony offense, you will be liable under PC 12022.5. Personally utilizing or using a firearm in this case means:

  • Deliberately displaying a firearm in a threatening or menacing fashion
  • Knowingly firing a gun
  • Deliberately hitting someone with a gun

However, it’s worth noting that this statute doesn’t apply to criminal conducts where one of the key elements is personal use of a firearm. If the statute could apply, it would create double jeopardy or multiple enhancements, which is a violation of your constitutional rights. Besides, if the commission of a felony involves the use of a gun or not, PC 12022.5 will apply and you will be liable under this law.

Take a felony crime like murder, for instance. It can be committed using a firearm, other weapons, or without the usage of armament at all. For this reason, you could be punished for murder and face a further sentence for the use of a gun to commit murder.

PC 12022.5 will apply to criminal felonies that do not necessitate the utilization of a gun. The two felonies that don’t necessarily require utilizing a gun include:

  • Murder through drive-by shooting as per PC 187
  • Assault with a gun under PC 245 (a)(1)

Although these might appear as if they involve the usage of a gun, they don’t. The reason being encouraging, assisting, or abetting the commission of a felony is a crime. So, you could end up facing an enhanced sentence if you didn’t use a firearm. And because of this, the consequences for committing a felony doesn’t require you actually to use the gun. Therefore, if you engage in using a gun during the commission of PC 187 and PC 245 (a)(1) offenses, the court will still find you guilty under PC 12022.5.

Upon sentencing under this statute, you will face 36, 48, or 120 months prison incarceration on top and successive of the baseline felony conviction. However, when the gun in question is an assault armament or a machine gun, you will be subject to a longer extra sentence of 60, 72, or 120 months in prison.

PC 12022.53 – Usage of a Gun at the Time of a Serious Felony

PC 12022.53 allows for additional and consecutive sentences for personally utilizing a gun when committing a serious felony. Serious felonies under this law include:

  • Murder
  • Mayhem
  • Kidnapping
  • Rape
  • Robbery

If the prosecutor can prove under this statute that you used a gun to commit any of the crimes above, you will get an extra 120 months in prison. If you fired a shot at the time of the crime, you could face an additional and successive 20 years in jail. Where someone is severely injured or killed when committing a felony, the court will impose an extra and consecutive 25 years to life imprisonment to the baseline felony.

Possible Legal Defense for Firearms Sentencing Enhancement

If you look at the above penalties per the statutes, you will realize that firearms sentencing enhancement carries severe consequences. Luckily, with an experienced criminal defense attorney, you can combat these charges. Reach out to the San Jose Criminal Attorney Law Firm and discuss your case. We will devise several legal defenses that will work in your particular case. Some of these defenses include:

  1. You Never Engaged in Committing the Baseline Felony Offense

A proficient criminal defense attorney will begin by contesting the baseline charge. If you are not guilty of committing the underlying felony offense, then it means sentence enhancement shouldn’t apply in your case.

  1. You didn’t Personally Utilize the Firearm

You can’t end up with a conviction if you didn’t personally utilize the gun under particular sentence enhancements. These include PC 12022.5 and PC 12022.53. If the prosecutor can’t demonstrate you are the actual person who utilized the firearm, you are innocent.

  1. Police Misconduct

If the police took part in any form of misconduct during the arrest or investigation of the baseline felony, the court would throw out the case. Without an underlying charge or conviction, there will be no sentence enhancement. Some of the things that amount to police misconduct include:

  • Police planting a concealed firearm in your vehicle or person
  • Police officers lying in their report
  • False testimony about the facts of a case

You or your attorney could also assert that the evidence used to convict you for the underlying crime was acquired through illegal search and seizure.

Find the Right San Jose Criminal Defense Attorney Near Me

Firearm enhancement statutes are quite complex and can result in severe and extra prison or jail sentences. Luckily, several legal defenses can be used to combat the charges. Additionally, the new law that came into effect on 1st January 2018 gives the judges the discretion to throw out gun sentence enhancement charges if it’s not for the interest of justice. Therefore, when faced with firearm enhancement charges, you need a devoted and experienced attorney to contest the charges. Contact one of our attorneys at the San Jose Criminal Attorney Law Firm at 408-622-0204 to arrange a meeting.