The judge could enhance your sentence if you commit a felony using or in possession of a firearm. When this happens, your sentence could be harsher than the standard sentence for the crime you committed. You could serve an additional term in state prison. The additional sentence runs concurrently with the sentence for the original crime.

Consider this: the judge convicts you of carjacking using a firearm. You could face an additional sentence of three years consecutive to the initial sentence. Usually, judges consider your criminal record and how you used a gun when determining your sentence enhancement. In the face of a sentence enhancement in Anaheim, the California Criminal Lawyer Group can help you create a defense to fight your charges.

Understanding The Firearms Sentencing Enhancement

You could face severe punishment if you are found guilty of committing a felony. Felony charges usually attract a penalty of several years of confinement in a state prison. You could serve probation if the judge is lenient, but you must complete part of your sentence before serving probation. In either case, a felony charge could negatively influence your life. Your situation, however, could get worse if you commit a felony using or in possession of a firearm. This could warrant an automatic sentence enhancement that will add years to your initial sentence.

Judges consider several factors when determining the type of sentence enhancement to impose. Some of the elements that judges consider include:

Sentencing Ranges That Apply To Firearm Enhancement Statutes

Many firearms sentence enhancements require judges to impose one of the three predetermined jail terms on offenders. The judge could impose a low, moderate, or high sentence enhancement. Most enhancements are precise in the judge's order unless aggravating or mitigating factors exist. The judge could impose a lower sentence enhancement if mitigating factors are present and a high sentence enhancement if aggravating factors are present.

The presence of mitigating factors could also make the judge abandon the sentence enhancement altogether. The typical mitigating and aggravating factors revolve around:

  • Whether you voluntarily confessed to your offense immediately after you committed it.
  • Your criminal record.

The factors related to the offense also matter, including:

  • Your actions’ level of sophistication.
  • If you intended to commit the offense.
  • Whether you deliberately or inadvertently participated in committing the offense.
  • The kind of offense you committed.

Situations That Require Several Sentence Enhancements

In some circumstances, the judge could impose several sentence enhancements for one underlying crime. This means that the judge will impose a sentence enhancement that takes longer.

The Circumstances Surrounding Your Case

Typically, felony crimes differ, and people do not commit felonies similarly. The judge will therefore consider the factors of your crime before convicting you. The severity of a crime is determined by the circumstances surrounding the alleged offense.

You will face a sentence enhancement if you use a firearm to commit a felony. Usually, prosecutors request enhanced sentences. However, the prosecutor must prove each element of the underlying crime beyond a reasonable doubt for you to face an enhanced sentence. The prosecutor must also provide evidence showing that you or your accomplice had access to or used a gun during the commission of the offense. Your sentence enhancement will depend on the facts of your case.

Under California law, most sentence enhancements associated with a gun do not require that you possess or use a handgun. What counts is if you are a principal defendant with access to or use of the gun. Principal defendant means you directly and actively facilitated the commission or committed the crime.

The underlying crime could also influence your sentence enhancement negatively. The legislation on enhancing sentences for gun-related offenses applies if you have a gun or use it while committing a crime. However, it does not apply to all felony crimes stated under the law. You will only face an additional sentence to the existing sentence if you commit any of the following felonies while in possession of or using a gun:

  • Violent offenses.
  • Serious sex offenses.
  • Serious drug offenses.

Violent offenses could include specific violent crimes like murder, kidnapping, and rape.

Firearms Sentence Enhancement Statutes

Under California law, different crimes have differing firearm sentencing enhancements. Firearm sentencing modification statutes under California law include the following:

Committing a Felony Using or While In Possession of a Firearm (Penal Code 12022)

You will face a sentence enhancement if you used a gun or a dangerous weapon while committing a felony or had a firearm during the commission of the offense. Typically, the court will impose an enhancement if you have any other weapon (even if it is not a firearm), provided it is hazardous or deadly.

If you own a gun or other lethal weapon, you will face a more enhanced sentence under this statute. Using a gun or other deadly weapon will result in a sentence enhancement outlined under a different statute.

If the judge imposes the sentence enhancement outlined under this statute, you will face the penalty for the original felony and an additional sentence that you should serve concurrently. Under Penal Code 12022, the typical enhancement involves facing a one-year addition to your original sentence.

However, the enhancement could be longer, depending on the underlying crime. For example, you could face a three-year sentence enhancement in addition to the sentence you face after a guilty verdict under Penal Code 215. You could also face a consecutive jail term if the court convicts you of carjacking or attempted carjacking while carrying a gun. You would face an additional three years on your prison sentence if the gun you had were a machine gun, a.50 BMG rifle, or an assault rifle.

You will also face a sentence enhancement under PC 12022 if you are convicted of certain drug crimes, like:

  • Possession of narcotics for sale under HS 11351, and
  • Transport for sale of drugs under HS 11352.

If you commit the above crimes while possessing a gun, you will face an additional three to five years in state prison. The court will, however, increase your underlying sentence by one to three years if you know that your accomplice was using a gun when committing the above offenses. You will serve the enhanced sentence consecutively to the initial sentence for the underlying crime.

Committing a Violent Crime While Possessing a Gun and Ammunition (Penal Code 12022.2)

You could face a sentence enhancement under PC 12022.2 if you commit a violent crime while possessing a firearm and ammunition capable of penetrating metal or armor. Under California law, you could also face a sentence enhancement if you wore a body vest when committing that offense. A body vest can protect against trauma and ballistics since it can withstand bullets.

You will face a sentence enhancement of three to ten years on top of your initial sentence for having metal or armor-piercing ammunition while committing a violent offense. Under this law, you will only face a jail term that does not exceed four years if the court does not identify any aggravating or mitigating factors in your case. However, the judge can use discretion while determining the appropriate penalties.

If you wore a body vest when you committed a violent crime, you could face one to five extra years on top of your initial sentence. The judge can extend your sentence by one or two years if no aggravating or mitigating factors exist. The judge will explain why you must serve the additional sentence during your sentencing.

Using or Having a Firearm When Committing Specific Sex Crimes - Penal Code 12022.3

Your underlying sentence could be subjected to enhancement if you use or possess a gun during the commission of the following crimes:

  • Indecent or lascivious conduct with a minor.
  • Rape.
  • Forcible sodomy.

Under PC 12022.3, completing a sexual act does not mean the end of the crime. The crime continues as long as you continue detaining the victim. You could still face a sentence enhancement even if the victim did not see the weapon until the sexual crime was complete. If you had or used a gun while committing the crimes below, you could face the following sentence enhancement in addition to your initial sentence:

  • Two to five years sentence enhancement for committing a sex crime while armed with a gun.
  • Three to four years sentence enhancement for using a gun while committing a sex crime.

Furnishing Another Person With a Gun to Commit a Felony - Penal Code 12022.4

You could face a sentence enhancement under Penal Code 12022.4 if you provide or attempt to provide another person with a firearm to use in committing a felony. You could still face a sentence enhancement even if you were not at the crime scene.

For example, you could have given someone else a gun before the offense. You could also be guilty if you intended to help the perpetrator use the weapon to commit a felony. Your engagement must be associated with the commission of the felony.

You could face a sentence enhancement of one to three years served concurrently with your initial sentence for committing this crime. Penal Code 12022.4 allows a middle-term sentence unless the court finds aggravating or mitigating factors in your charges. The judge will explain why he/she chose a particular penalty enhancement during your sentencing.

Using a Firearm, Machine Gun, or Assault Weapon to Commit a Felony - Penal Code 12022.5

You will face a sentence enhancement under PC 12022.5 if you use a gun, machine gun, or assault weapon in committing or attempting to commit a felony. Using a gun means intentionally striking another person with a gun, displaying a scary gun, or firing a gun. However, offenses that include using a gun as a component of the offense are not covered under PC 12022.5. This statute applies to crimes that are punishable even without a weapon. For example, you could murder someone with or without a gun. If you use a gun when committing murder, you could face a sentence enhancement for murder and using a gun in committing the offense.

Assault with a deadly weapon and drive-by shooting are examples of felonies that could lead to a sentence enhancement under PC 12022.5. You could face a sentence enhancement of three to ten years of prison time in addition to your initial sentence if you use a gun to commit an offense. If you physically use a machine gun or an assault weapon to commit a felony, you could face a sentence enhancement of five to ten years.

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

Penal Code 12022.53 sentence enhancement applies if you use a gun to commit a major felony. Another name for this statute is the ''10-20-life or ''use a gun, and you are done'' law. This law applies to violent crimes like robbery, kidnapping, mayhem, murder, and rape. You could face a severe sentence enhancement permissible in this situation. For example, you could face the following enhancements:

  • If you carry a weapon, you could face an additional ten-year jail term.
  • You could face 20 additional years of jail if you use a weapon.
  • If you use a gun to hurt or murder another person, you could face additional 25 years to life imprisonment.

You will serve the sentence enhancement concurrently with the sentence you received for the underlying felony.

Crimes Involving Unloaded or Inoperable Guns

You could challenge your sentence enhancement charges if the gun you had while committing a felony was unloaded or inoperable. Unfortunately, most gun laws, including those regarding firearm sentence enhancements, do not apply in this situation. You could, therefore, still be guilty under the rules associated with firearm sentence enhancements even though your gun was not functional. What matters is that you possessed a weapon meant for shooting or appeared capable of doing so. You could still face a sentence enhancement even if your pistol were unloaded. 

Multiple Sentence Enhancements Or Double Jeopardy

It is unlawful under the Fifth Amendment of the United States Constitution for the judge to impose multiple sentence enhancements for one crime, dubbed double jeopardy. The judge will not impose numerous sentence enhancements for one underlying crime. For example, under PC 12022.5, the judge will determine if your using or having a gun is required to commit the primary crime and if your possession or use of the gun will be punished because, under the punishment for the underlying violation, you will not face a sentence enhancement for using or having a gun while committing the crime.

Typically, you are only required to face one firearm sentence enhancement for one crime. The judge will choose the most extended jail term if more sentence enhancements are applicable.

Loss of a Gun or Weapon as a Nuisance

The government could declare your gun or weapon a nuisance if you are charged with any firearm sentencing enhancements. The government will take your gun away from you if this happens.

Defenses Against Firearms Sentencing Enhancements

Sentencing enhancement statutes usually increase the period of imprisonment you would have served for the underlying crime. The enhancement could negatively influence your professional and social lives, among other elements, because the court will likely put you behind bars for a long time.

For example, a lengthy jail term could affect your relationship with your family. It can be hard to integrate back into your family or community after being away from home for a long time. It could also be hard to secure employment after serving a lengthy jail term.

If you face firearm sentence enhancement, you should hire a skilled and experienced criminal attorney to help you fight your charges. If your attorney is effective, the judge could reduce or dismiss your charges. Some of the strategic defenses your attorney could use include:

Challenging The Underlying Felony

The first action your attorney will take is to challenge the underlying felony allegations. You will not serve a sentence enhancement if you are innocent. The circumstances surrounding your charges will determine your attorney's strategy to counter the underlying charge. For example, if the prosecutor accuses you of murder, your attorney could allege that your acts were unintentional or that you are the victim of a false accusation.

The law requires the prosecutor to prove all the elements of the underlying crime beyond a reasonable doubt. Your attorney will pose questions to the prosecutor regarding your accusations. If the prosecutor fails to prove the allegations against you, the judge could drop or reduce your charges.

You are a Victim Of Illegal Search and Seizure

The police should have a warrant to search you or your property and make an arrest. If the police search your person, vehicle, or home without a warrant, the judge could dismiss any evidence gathered against you in court. The police must have probable cause to believe that you used a weapon when committing a crime before they search your person, home, car, or any other property. The court can only sign a search warrant in cases where the police have reasonable suspicion to search you.

It is illegal for law enforcement to search your property without your permission or a warrant. If the police fail to prove that you had or used a gun to commit a felony, you will not face a sentence enhancement for using or possessing a gun.

You Were Illegally Arrested

If the police arrest you illegally, the court could dismiss your charges and any evidence gathered against you. The prosecutor will also lack sufficient evidence to support the allegations against you because it collaborates with the police.

You can use this defense strategy if the police misbehave while arresting you. For example, the police could have arrested you without a warrant or without reading you your Miranda rights. If this happens, the court will dismiss the primary accusations against you, and you will not face firearm sentence enhancement.

Police misbehavior could also violate specific requirements for sentence enhancements. The judge will not enhance your sentence in this situation. You will only be required to serve your initial crime’s jail term. Other police acts that could amount to misbehavior include:

  • The police presenting false testimony regarding your case in court.
  • The police planted a gun on your person or in your vehicle.
  • The police gave misleading information in their report.

Another Person Used The Gun

You could face a sentence enhancement if you use a firearm to commit a felony. However, if someone else used the gun, you will face a lesser sentence or not be subject to firearm sentence enhancement.

Some sentencing enhancement statutes do not apply if you did not use the gun, including Penal Code 12022.3 and 12022.53. You will not face a sentence enhancement on your initial sentence if the prosecutor fails to prove beyond a reasonable doubt that you used a gun to commit or attempt to commit a felony.

Senate Bill 620

The Legislature passed Senate Bill 620 in 2017. The Bill became effective on January 1, 2018, allowing judges to drop a firearm sentence enhancement under Penal Code 12022, Penal Code 12022.5, or Penal Code 12022.53. However, since this law is relatively new, it is unclear which criteria the judges will use to ascertain the interests of justice. It is also unclear if offenders whose cases have not been finalized could appeal using this act.

Find a Anaheim Criminal Defense Attorney Near Me

Working with a skilled criminal attorney in the face of a sentence enhancement is ideal. Your attorney will guide you through the specific sentence enhancement statutes that apply to your case. Your attorney will also investigate your case and discuss the best strategy to fight your charges. At the California Criminal Lawyer Group, we have experienced attorneys who can help you fight your charges in Anaheim. Our attorneys will identify lapses in your case and use them to challenge the prosecutor’s accusations. Contact us at 714-766-0965 to talk to one of our attorneys.