Your sentence can be enhanced if you commit a felony while in possession of or using a firearm. If this happens, the sentence you would have faced for the underlying crime can be prolonged significantly. You can serve an additional term in prison if the judge so chooses. The additional jail term will run concurrently with the one you received for the original crime. If, for example, you are convicted of carjacking using a firearm, you could face an additional jail term of three years. The judge will consider several factors when imposing the sentence enhancement, like your criminal record and whether you inflicted injuries on another person. If you are currently facing a firearm sentence enhancement, the Monterey Criminal Attorney can help fight your charges.

California's Firearms Sentencing Enhancement Statutes

Courts are stringent with perpetrators of felony crimes. You could spend considerable years in prison if you are guilty of a felony. To secure a probation sentence, you must complete part of your jail term before probation. However, a felony conviction still has far-reaching consequences, even if you secure probation. It can be worse if you commit a felony offense using or in possession of a firearm. This could lead to an automatic sentence enhancement, whereby the judge adds more years to your initial sentence.

The judge will consider the following elements when determining the type and extent of sentence enhancement to impose:

The Facts Of Your Case

The judge considers the factors of your case before passing judgment on sentence enhancement. The severity of an offense is determined by the circumstances surrounding its commission. Most felony gun-related convictions attract a sentence enhancement for personally using a firearm to commit the offense.

The prosecutors often request sentence enhancements. However, the prosecutor must prove each element of the underlying crime beyond a reasonable doubt for you to face charges. The prosecutor must also prove that you, your accomplice, or both used a firearm when committing the crime.

Perhaps you or your accomplice committed a felony using a firearm. Most gun-related sentence enhancements in California do not require that you possess or use a handgun. What matters is if the principal perpetrator used a gun. In this case, a principal perpetrator actively and directly commits the offense or facilitates its commission.

The crime at hand will also influence your sentence enhancement. The legislation enhancing sentences for offenses involving firearms applies if you used or possessed a gun at the time of committing the offense. However, it does not cover all the felonies listed under California law. You will face additional punishments for your existing sentence if you commit any of the following felonies using a firearm:

  • Violent offenses
  • Serious drug offenses
  • Serious sex offenses

Violent offenses can include certain violent crimes like murder, kidnapping, and rape.

Sentencing Ranges That Apply To Firearm Enhancement Statutes

Judges impose one of the three predetermined prison terms for firearms penalty enhancements. In this case, you can face a low, moderate, or high sentence enhancement.

Most enhancements are precise but can be adjusted if mitigating or aggravating factors exist. You will face lesser penalties if mitigating factors are present and severe sentencing if aggravating factors are present. Sometimes, the presence of mitigating factors can support the judge's decision to reject the sentence enhancement altogether.

Aggravating or mitigating factors must be relevant to you or the offense you commit. Some of the factors that pertain to the offense include:

  • Your action's level of sophistication
  • Whether you intended to commit an offense
  • Whether you committed the crime intentionally or inadvertently
  • The nature of the offense you committed

The factors that could relate to you include:

  • Whether you voluntarily pleaded guilty to your wrongdoings immediately after you committed the offense
  • If you have a history of being violent
  • Your criminal record

The Nature Of The Offense You Committed

Engaging in criminal activities can lead to serious sentence enhancements. Drug trafficking, sodomy, and rape are among the most serious offenses that will amount to more extended enhancements. The nature of these offenses is so cruel that it leaves most victims with significant trauma. Some victims face traumatic problems for the rest of their lives. The judge will consider the psychological and physical injuries you imposed on the victim using a firearm.

A Record Of Previous Violent Behavior

The judge will review your history to determine whether you have engaged in violent behavior using firearms in the past. Police reports are one of the sources of information that will provide details on your violent history. Information from a reform program or therapist could also be a reliable source to prove past violent behavior is due to a mental condition.

Your Previous Criminal Record

A repeat offender will face different consequences than a first-time offender. A repeat offender will face additional penalties for subsequent participation in criminal activities. When your previous criminal charges for different crimes are added to the current charges, it aggravates your circumstances. This results in higher sentencing enhancements.

The judge will also consider the severity of the past charges when deciding on the sentence enhancement. For example, if your previous conviction was attempted murder, you will face a higher sentence enhancement than someone with a prior DUI conviction.

Firearms Sentence Enhancements Under California Law

Various crimes have distinct firearm sentencing enhancements. Firearm sentencing modifications under California law include:

Committing a Felony Using or In Possession of a Firearm – Penal Code 12022

You will face an enhanced sentence if you use a gun or dangerous weapon to commit a felony. In this case, any other weapon besides a gun can lead to sentence enhancement if it is hazardous or deadly. You could face a more extended prison term under PC 12022 if you possess a gun or other dangerous weapon. If you use a firearm or other deadly weapon, you could face an enhanced sentence under a different law.

You will face the penalties for the underlying felony and an additional jail term if you face a firearm enhancement under PC 12022. Usually, you will serve the sentences concurrently. For example, you could face an additional jail term of one to three years on top of the sentence you receive after a guilty verdict under PC 215 if you attempted or committed a carjacking while carrying a firearm. This will be an additional, consecutive jail term. You would face an additional three years to your prison term if the gun you had was a machine gun, a.50 BMG rifle, or an assault rifle.

Additionally, you could face enhanced penalties under PC 12022 if you committed certain drug offenses, like:

  • Possession of narcotics for sale – HSC 11351
  • Transport for sale of drugs – HSC 11352

If you commit any of the above offenses while possessing a gun, you could serve an additional three to five years in prison. The court will increase your underlying sentence by one to three years if you know that your accomplice was using a gun when committing any of the above crimes. You will serve the additional jail term concurrently with the sentence for the underlying offense.

Penal Code 12022.2

You could face a sentence enhancement under PC 12022.2 if you commit a violent crime while possessing a gun and ammunition capable of penetrating metal or armor. You must have worn a body vest while committing the alleged offense. A body vest is typically protective clothing that can withstand bullets. It shields you against ballistics and trauma.

If you had metal or armor-piercing ammunition while committing a violent crime, you could face an additional three to ten years on top of your initial sentence. If the judge does not identify any aggravating or mitigating factors in your case, you will only face four years imprisonment under PC 12022.2. However, determining the most appropriate punishment is at the judge's discretion. The judge will explain why you will serve the additional sentence during sentencing.

If you wore a body vest while committing a violent crime, you could face one to five additional years to your initial sentence. The judge could extend your sentence by one or two years if no aggravating or mitigating factors exist. Similarly, the judge will explain why you received the additional sentence during your sentencing.

Using or Possessing A Firearm While Committing Specific Sex Offenses – Penal Code 12022.3

You will face a sentence enhancement if you use or possess a gun while committing one of the offenses listed under PC 12022.3. The following are the offenses covered under this law:

  • Lascivious or indecent conduct with a minor
  • Rape
  • Forcible sodomy

Under this law, the sexual act is not the end of the violation. The crime will continue as long as you continue to have control over the victim. You are still guilty under this enhancement, even if the victim did not see the firearm until you completed the sexual act.

If you used or had a gun while committing the above sexual crimes, you could face the following penalties in addition to your initial sentence:

  • Additional three to four years for using a gun while committing a sex offense
  • Additional two to five years for committing a sex offense while armed with a firearm

Furnishing Someone Else With a Gun To Commit a Felony – Penal Code 12022.4

You could face a penalty enhancement under PC 12022.4 if you provide or attempt to provide another person with a gun to use in committing a felony. You could still face a sentence enhancement even if you were not present during the commission of the offense. In this case, what counts is that you intended for the person to use the gun to commit a felony. Your participation must be associated with the commission of the felony.

In this situation, you could face an additional one to three years consecutive to your initial sentence as a penalty. Penal Code 12022.4 allows a middle-term penalty unless the court finds aggravating or mitigating factors in your case. The court will explain why it chose this particular punishment during your sentencing.

Using A Firearm, Assault Weapon, Or Machine Gun To Commit a Felony – Penal Code 12022.5

You will face a firearm sentence enhancement under PC 12022.5 if you directly use a gun or assault weapon to commit or attempt to commit a felony. Using a gun is defined as intentionally striking another person with a gun, making a scary gun display, or firing a gun.

However, PC 12022.5 does not cover offenses that include using a firearm as a component of the crime. This law covers offenses that can be punished even without a weapon. For example, you can kill another person with or without a firearm. If you use a gun while committing murder, you could face murder charges and an enhancement for using a firearm in committing the crime. Some of the felonies that could attract charges under this law include assault with a deadly weapon and drive-by shooting.

You could face an additional three to ten years in prison in addition to your initial sentence if you use a firearm to commit a crime. If you physically use a machine gun or an assault weapon, you could face an additional five to ten years in jail.

Using A Firearm To Commit A Serious Felony – Penal Code 12022.53

You could face a sentence enhancement under PC 12022.53 if you use a firearm to commit a major felony crime. Penal Code 12022.53 is also known as "10-20-life or "use a gun, and you are done." This statute covers violent crimes like robbery, kidnapping, mayhem, murder, and rape.

You could face the most severe sentence under this law. The enhanced sentence could be as follows:

  • Ten years additional prison term for carrying a weapon
  • Additional 20 years prison term for using a weapon
  • Additional 25 years to life imprisonment if you use a gun to murder or gravely injure another person

Convictions Involving Inoperable Or Unloaded Firearm

You could challenge your charges in court by pointing out that the gun you possessed when committing a felony was inoperable or unloaded. Unfortunately, most gun laws do not regard this claim, including those that cover firearm sentence enhancements. You could still face charges under the laws relating to firearm sentence enhancements even if your gun was not functional. What the court will consider is that the weapon you were holding was meant for shooting and is capable of doing so. You could still be guilty even if your pistol was unloaded.

Multiple Enhancements Or Double Jeopardy

Multiple penalties for one offense are unlawful under the Fifth Amendment of the U.S. Constitution. The court cannot impose a sentencing enhancement if you were already penalized for the same crime by the penalty for the underlying charge.

Under PC 12022.5, for example, the judge will consider whether using or possessing a firearm is required to commit the primary crime. If so, the penalty for the underlying offense will cover your possession or use of the gun. Using or having a firearm while committing an offense will not attract additional penalties if this is the case.

One Enhancement On One Offense

You are only required to face one firearm enhancement sentence on one crime. The judge will choose one that attracts a lengthy sentence if several enhancements are applicable.

Loss Of The Gun As a Nuisance

Besides the above punishment, a conviction for any gun sentencing enhancements could make the government declare your gun a nuisance. If this happens, the government will take the gun from you.

Steps To Take To Avoid Firearms Sentencing Enhancement

Sentencing enhancement statutes prolong the punishment you could have faced for an underlying crime. It negatively influences your professional and social lives, among other elements. Often, it could lead to a longer jail term. For example, a prolonged jail term could significantly affect your relationship with your family. It would be hard to integrate back into your family and community after being away from home for an extended period. In addition, it can be challenging to secure a job after serving a prison term.

You should fight your case and the enhancement to avoid negative repercussions. You can accomplish this with the help of a skilled and competent criminal attorney. If your defense is effective, the judge could drop or reduce your punishment. The defense strategies that your attorney can use include:

Contesting The Underlying Felony

The first action your attorney should take is to challenge the underlying felony accusation. If you are not guilty of a felony offense, you will not receive a longer term for using a gun. The facts of your charge will determine the strategies your attorney will use to fight the initial charge. For example, if the prosecutor accuses you of murder, your attorney can allege that you were falsely accused. Your attorney could also assert that your acts were not intentional. The prosecutor must prove all the elements of your crime beyond a reasonable doubt. Your attorney will analyze the evidence against you and challenge the prosecutor's case. Your case could be dismissed if your attorney succeeds in convincing the judge.

You Are a Victim Of Unlawful Search And Seizure

The law enforcement agency requires a search warrant to search you or your property and make a seizure. The judge could leave out any evidence brought against you if the police fail to produce a search warrant. For the police to search you, your home, your car, or any other asset for a gun, they must also suspect you first and have probable cause to believe that you used a weapon while committing a crime. The court can only sign a search warrant in cases where the police have a reasonable suspicion to search your property.

It is illegal for law enforcement to search your property without a warrant. The judge can drop your charges if there is no proof that the law enforcement officers had a valid search warrant.

Your Arrest Was Unlawful

If the police arrested you illegally, the judge could exclude any evidence gathered against you. This could leave the prosecutor without insufficient evidence to support the allegations against you. You could use this defense strategy if the police misbehaved while arresting you. For example, law enforcement could have failed to read your Miranda rights after your arrest. They could also have arrested you without a warrant. Perhaps the law enforcement officers coerced you to confess. The judge could drop your accusation if this is the case.

Police misconduct could also apply to a particular requirement for sentence enhancement. The court cannot enhance your punishment in this situation. You will only serve the initial jail term. The following could also constitute police misconduct:

  • Giving false testimony about your crime in court
  • The law enforcement planting a weapon on your person or in your car
  • The law enforcement writing a misleading report

Another Person Used The Gun

You could face an enhanced sentence if you directly use a firearm in committing a felony. If another person used a gun, you could face a lesser sentence or not be subject to firearm enhancement. If you did not personally use a weapon, some sentencing enhancement laws will not apply. Examples of these laws are PC 12022.3 and PC 12022.53. Your sentence will not be enhanced if the prosecutor fails to prove beyond a reasonable doubt that you used a gun to commit a felony.

Additional Firearm Enhancement Law

A criminal defendant could face an additional sentence of ten, twenty years, or life imprisonment for employing a gun when committing a felony crime. Gun enhancement laws do not apply to all crimes. Only specified criminal charges could result in a greater penalty for using a firearm. AB 1509 is one of the most critical new gun enhancement laws. This law adds a new "firearm use enhancement," which can be applied to any felony crime in which a firearm is employed. The enhancement can increase an offender's prison term by up to ten years.

Find an Experienced Criminal Attorney Near Me

A felony conviction attracts severe penalties with far-reaching consequences. The penalties could only be worse if you use a firearm to commit a felony. If you face firearm penalty enhancement, our experienced attorneys at Monterey Criminal Attorney can help. We will help you create a strong defense to fight the underlying crime and the sentence enhancement. Contact us at 831-574-1791 to speak to one of our attorneys.