California's "10-20-Life Use a Gun and You're Done" Law
Penal Code 12022.53 PC

Penal Code 12022.53 PC is California's "10-20-life 'use a gun and you're done'" law.

It provides an "enhancement" to a California state prisonprison sentence for certain serious felonies when the perpetrator uses a gun in the commission of the crime.  It "enhances" such sentences by making them significantly longer.

Penal Code 12022.53 PC adds to a felony:

  • 10 years in prison for "using" a gun,
  • 20 years for firing a gun, or
  • 25 years to life for killing or seriously injuring another person with a gun.

The enhancement is in addition to…and consecutive to…the sentence for the underlying felony conviction.

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Penal Code 12022.53 applies to 19 specific California serious felonies, as well as to other felonies "punishable by death or imprisonment in the state prison for life."1

Crimes subject to the "10-20-life" enhancement include:

  • murder,
  • kidnapping,
  • robbery,
  • carjacking, and
  • rape.
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Like other California gun laws, Penal Code 12022.53 PC is fraught with legal jargon and technicalities.  This can make it difficult to understand when this sentencing enhancement is and is not applicable.

That's where we come in.  We are a law firm comprised of former prosecutors and cops.  We know the most effective ways to defend against California gun charges.  And we can help you build a comprehensive defense to help ensure that you don't fall victim to this unduly harsh penalty.

To help you better understand this law, our California criminal defense attorneys2 discuss the following below:

1. Felonies to which California's "10-20-life 'use a gun and you're done'" law applies
2. Penalties under Penal Code 12022.53 PC

2.1. California's "10-20-life" law -- 10 years for "using" a firearm

2.2. California's "10-20-life" law -- 20 years for "discharging" a firearm

2.3. California's "10-20-life" law -- 25-years-to-life for causing great bodily injury or death

3. "10-20-life" applies to gang members who don't personally use the gun
4. Legal defenses to California's "10-20-life 'use a gun and you're done'" law

4.1. You didn't commit an underlying felony that was subject to the "10-20-life" enhancement.

4.2. You didn't personally use a gun during the commission of a crime

4.3. Self-defense / defense of others

5. "10-20-life" does not violate the 5th Amendment's double jeopardy clause

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. Felonies to which California's "10-20-life 'use a gun and you're done'" law applies

Penal Code 12022.53 PC was enacted in 1997.  Its aim was to impose mandatory minimum prison terms for the use of firearms in the commission of violent felonies.  Today, it remains one of the harshest sentencing schemes in the nation.

The "use a gun and you're done" sentencing enhancement doesn't apply to every situation involving criminal gun use.  Its use is limited to 19 specific felony offenses and to other felony offenses that are "punishable by death or imprisonment in the state prison for life".3 These crimes are categorically labeled as California serious felonies.

Liability under this law also extends to "attempts" to commit any of these serious felonies.4

Such felonies include (but are not limited to):

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And while this sentencing scheme does not apply to:

  • California Penal Code 245(a)(2) assault with a firearm…

it does apply to:

  • assault with a firearm on a peace officer or firefighter in violation of Penal Code 245(d).6
2. Penalties under Penal Code 12022.53 PC
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Penal Code 12022.53 PC adds to your underlying felony sentence:

    • 10 years in prison for "using" a gun,
    • 20 years for firing a gun, and
    • 25 years to life for killing or seriously injuring another person with a gun.

If more than one of the above applies, the court will impose only the subdivision that carries the most severe penalty.7

A brief example of how California's "10-20-life" law works

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Let's say you are convicted of second-degree robbery under California Penal Code 211 PC.

That crime carries a maximum sentence of five years in California state prison. 8

However, if you personally used a gun during the robbery, that sentence increases to 15 years.  If you fired your gun, it increases to 25 years.  And if during that robbery, you fired your gun and someone was injured or killed as a result, you now face 30 years to life in prison.

Here is a chart showing your sentence depending on whether…and how…you used a gun during the robbery.

Use of a gun Base sentence Enhancement Total Sentence
No gun 5 years none 5 years
You "used" a gun 5 years 10 years 15 years
You discharged a gun 5 years 20 years 25 years
You injured/killed someone 5 years 25 years-life 30 years-life

As you can see, using a gun during the commission of a felony drastically increases your sentence.

In addition, probation may not be granted to anyone found guilty under Penal Code 12022.53.9 If you are convicted of using a gun during the commission of a serious felony, you will go to prison.

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Let's take a look at what it means to personally use, discharge, or injure someone with a gun during the commission of a felony.

2.1. California's "10-20-life" law -- 10 years for "using" a firearm

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Penal Code 12022.53 PC imposes a ten-year sentencing enhancement to anyone who…during the commission one of the enumerated serious felonies…personally "uses" a firearm.

The firearm doesn't need to be loaded or operable for you to be convicted of this sentencing enhancement.10

Nor does using a gun mean that you fired it.  You personally "use" a firearm, when you intentionally:

  • display the gun in a menacing manner,
  • fire the gun, or
  • use the gun to strike or hit another person ("pistol whip").11

This definition is essentially the same as "brandishing a firearm" under California Penal Code 417 PC.  Basically, "using" a gun just means you are brandishing your weapon during the commission of one of the enumerated felonies.

The ten-year enhancement may be imposed even if you never actually point the gun at your alleged victim.12 As long as the gun helps to facilitate the felony… even if only as a "threat"… you have "used" it.13

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Example: While you are attempting to kidnap someone, you begin waving your gun around.  You threaten to shoot the victim if she doesn't comply with your demand to get in your car.  Under these circumstances, you are displaying your gun in a menacing manner and are therefore personally "using" your firearm.
But… let's say that instead of waving the gun around, you keep it concealed and never mention you have it.   In that case you are not "using" your gun and, therefore, shouldn't be sentenced to the additional penalty.

That said, prosecutors would still likely charge you with an enhancement under Penal Code 12022 PC, being armed with a firearm during the commission of a felony.  Fortunately, this carries a much less severe penalty.  They would also likely charge you with violating Penal Code 25400 PC, California's "carrying a concealed weapon" law.14

2.2. California's "10-20-life" law -- 20 years for "discharging" a firearm

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If, during the commission of a crime, you discharge a gun, you face an additional and consecutive 20-year sentencing enhancement.

As Los Angeles county criminal defense attorney Neil Shouse15 explains:

"You discharge a gun when you aim it at someone and pull the trigger…even when the gun misfires and doesn't actually discharge a bullet."16

Example: During your attempted kidnapping of the alleged victim, as set forth above, a neighbor sees you and begins yelling for help.  You fire in the direction of the neighbor, hoping to silence her.  Prosecutors will ask the judge to apply the 20-year enhancement for discharging a firearm during commission of a felony.
But… let's say that while you are trying to get the alleged victim into the car, you unintentionally bang the gun you are holding on the car door and the gun accidentally goes off.  Since you didn't intentionally discharge it, you should not receive the 20-year enhancement.  You will, however, still be charged with the 10-year enhancement for personally using the gun.

2.3. California's "10-20-life" law -- 25-years-to-life for causing great bodily injury or death

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Penal Code 12022.53(d) PC carries the possibility of an additional and consecutive 25-years-to-life sentence.

This subsection applies to all of the felonies listed above, and to:

  • Penal Code 246 PC California's "shooting at an inhabited dwelling or occupied car" law, and
  • Penal Code 12034 PC discharging a firearm from a motor vehicle (drive-by shooting).

The 25-year to life enhancement applies if, during the commission of a felony:

  1. you personally and intentionally discharge a firearm, AND
  2. the discharge of the firearm proximately causes great bodily injury or death to any person other than an accomplice.17

"Great bodily injury" means a significant or substantial physical injury.18 A physical injury need not be permanent in order to be considered significant or substantial.19

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A "proximate cause of injury or death" is:

  1. an act or omission,
  2. that sets in motion,
  3. a chain of events,
  4. that produces as a direct, natural and probable consequence of the act or omission,
  5. the great bodily injury or death, and
  6. without which the great bodily injury or death would not have occurred.20

The injury or death need not be caused by the gunshot wound.  The enhancement applies even when something else causes the alleged victim's injury or death.  The only requirement is that the injury or death was approximately caused by the gunshot.21

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Example: Let's say you are a gang member.  While a passenger in a car, you shoot at two rival gang members in another car.  In order to avoid being hit, the rival members drive through a stop sign.  They hit a third car and kill a three-year-old passenger.
A court is liable to apply the "25 years to life" sentencing enhancement.  This is because your firing your gun set in motion a chain of events that naturally and proximately led to the child's death.  If you hadn't shot at the rival gang members, they would not have fled the scene and hit the victim's car.22
Example: A police officer pulls you over and you fire your gun at him.  While trying to evade the gunfire, the officer breaks his ankle.  If a jury decides that the officer's broken ankle is a great bodily injury, the court can sentence you to 25 years to life under California's "10-20-life" law.  If not for your gunfire, the officer would not have broken his ankle.23
3. "10-20-life" applies to gang members who don't personally use the gun
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Normally California's "10-20-life" law only applies to someone who personally uses or discharges a gun.

However, there is a gang exception to this law.  It makes the enhancement applicable to all principals convicted of a serious felony if:

  1. the underlying felony is committed for the benefit of a criminal street gang, and
  2. any principal involved in the crime personally uses or discharges a gun.24

As defined in the "California Street Terrorism Enforcement and Prevention Act," a "criminal street gang" is:

  1. an ongoing association of three or more persons with a common name or common identifying sign or symbol,
  2. which has as one of its primary activities the commission of one or more of certain criminal acts, and
  3. which includes members who…either individually or collectively…have engaged in a pattern of criminal gang activity.25

Conduct is "for the benefit of a criminal street gang" if it "willfully promotes, furthers, or assists" members of the gang.  Note that you do not need to be a gang member yourself.  The law only requires that your conduct benefit a gang.

A "principal" involved in a crime is anyone who actively and directly commits the act or aids and abets in its commission.26 If you are a bystander…or your actions only indirectly help the gang commit a crime…the enhancement does not apply.

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Example: Let's say you are a gang member.  You and some of your fellow gang members get into a fight with another gang.  During the fight, a member of the other gang is shot and killed.  Several members of your gang… including you…had guns.  The prosecution is unable to prove, however, whether you or one of your fellow gang members actually did the shooting.
Under California's aiding and abetting laws, you are liable for murder, even if you didn't personally kill the victim.  Murder is a felony to which Penal Code 12022.53 applies.  And because the crime involved the use of a firearm and was committed for the benefit of a gang, you are subject to the 25 years to life enhancement in addition to and consecutive to your sentence for murder.27
Note that if the shooting hadn't been gang-related, you could not have been sentenced to the enhancement unless the jury determined that you personally discharged the firearm.  However, since the murder was done for the benefit of the gang, it was irrelevant who actually fired the gun.  As long as someone did, you… as a principal…face the same enhancement.
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The gang exception to California's "use a gun and you're done" law is different from California's gang enhancement under Penal Code 186.22 PC.  That sentencing scheme applies to all gang activity and doesn't specifically address gun use.

It is possible be sentenced under both Penal Code 12022.53 PC and Penal Code 186.22…but only if you personally use or discharge a gun.

4. Legal defenses to California's "10-20-life 'use a gun and you're done'" law

In order for a judge to enhance your sentence under California's "10-20-life 'use a gun and you're done'" law, the prosecutor must prove all the required elements beyond a reasonable doubt.  If the prosecutor fails to prove even one element, you are not subject to a penalty enhancement under Penal Code 12022.53.

Examples of possible legal defenses to the "10-20-life" enhancement include (but are not limited to):

4.1. You didn't commit an underlying felony that was subject to the "10-20-life" enhancement.

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Penal Code 12022.53 enhances the penalty for commission of certain underlying felonies.  It follows, therefore, that if you aren't convicted of an underlying felony that triggers the statute, you can't be sentenced to an enhancement.

Example: Let's say you were present when a friend used a gun to put out the eye of someone he thought was sleeping with his girlfriend.  The prosecutor claims you aided and abetted the crime because you had a gun in your possession at the time.  You are charged with mayhem under Penal Code 203 PC.29
The jury finds that you were just hanging out with your friend when the other guy came by and started a fight.   You did not personally use your gun, nor did you help your friend in any way until you disposed of his gun after the fight.  The jury finds you guilty of a felony violation of Penal Code 32 PC, being an accessory after the fact.30 But they find you not guilty on the charge of mayhem.
You are not subject to the "10-20-life" enhancement because you were not found guilty of mayhem, but only of being an accessory after the fact, a felony not covered by PC 12022.53.

You are not subject to the "10-20-life" enhancement because you were not found guilty of mayhem, but only of being an accessory after the fact, a felony not covered by PC 12022.53.

4.2. You didn't personally use a gun during the commission of a crime

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In order to sentence you under California's "10-20-life" law, the prosecution must prove that you personally used a gun during the commission of an applicable felony.

Even if you committed one of the felonies subject to Penal Code 12022.53…if you didn't personally use a gun, you are not subject to the enhancement.

Example: You are your friend are found guilty of violating Penal Code 215 PC, California's carjacking law.  You had a gun concealed in the back of your waistband during the commission of the crime.  However, only your friend pulled a gun on the victim.  You just pushed her out of the way so that you could get into the driver's seat.
Although you are guilty of a felony enumerated in Penal Code 12022.53, you didn't personally use a gun during the commission of the crime.  So even though you are guilty of carjacking (and of carrying a concealed weapon), you are not subject to the "10-20-life" enhancement.

4.3. Self-defense / defense of others

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The sentencing enhancements listed under Penal Code 12022.53 PC don't apply to situations involving lawful self-defense.31California's self-defense laws allow you reasonably to defend yourself or another from imminent great bodily harm or unlawful touching.  But you must use only the amount of force required to counter the attack against you or another person.32

This means that if the prosecutor/judge/jury determines that you only used or fired your gun because you reasonably feared imminent harm to, or unlawful touching of, yourself or of someone else, you should not receive a sentence enhancement for using a gun.

However, you may still face penalties for violating other California gun laws including (but not limited to):

Compare with "imperfect self-defense"

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While lawful self-defense exempts a person from California's "10-20-life" law, imperfect self-defense does not.33 "Imperfect" self-defense takes place when you have an honest but unreasonable belief in the need to defend yourself or another person.

Example: While standing at a red light, you realize that the driver and passenger in the car next to you are yelling at you, shouting derogatory comments.  They appear drunk.  Scared, you pull out your gun, order them out of the car, and drive away, violating Penal Code 215 PC, California's "carjacking" law.34
Even though you only engaged in carjacking because you honestly believed you were in danger, the law views this act as unreasonable.  As a result, it does not excuse your conduct for "using" your gun.
5. "10-20-life" does not violate the 5th Amendment's double jeopardy clause

The Fifth Amendment of the United States Constitution contains what is commonly known as the "Double Jeopardy Clause."35 Among its other guarantees, the Double Jeopardy clause protects against multiple punishments for the same offense.36

Arguably, the use of a gun during the commission of a felony is punished by the sentence for that crime.

Nevertheless, courts have consistently held that California's "10-20-life 'use a gun and you're done'" law does not violate the double jeopardy clause of the 5th Amendment.37 This is because the California Legislature intended to punish both the underlying felonies and the use of such guns in connection with serious crimes.38

Call us for help…
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If you or loved one is charged with Penal Code 12022.53 PC 10-20-life and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Las Vegas Nevada criminal defense attorneys represent clients accused of violating Nevada's firearm laws.  For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.39

Legal References:

1 Penal Code 12022.53 PC -- California's 10-20-life "use a gun and you're done" law.  ("(a) This section applies to the following felonies: (1) Section 187 (murder). (2) Section 203 or 205 (mayhem). (3) Section 207, 209, or 209.5 (kidnapping). (4) Section 211 (robbery). (5) Section 215 (carjacking). (6) Section 220 (assault with intent to commit a specified felony). (7) Subdivision (d) of Section 245 (assault with a firearm on a peace officer or firefighter). (8) Section 261 or 262 (rape). (9) Section 264.1 (rape or sexual penetration in concert). (10) Section 286 (sodomy). (11) Section 288 or 288.5 (lewd act on a child). (12) Section 288a (oral copulation). (13) Section 289 (sexual penetration). (14) Section 4500 (assault by a life prisoner). (15) Section 4501 (assault by a prisoner). (16) Section 4503 (holding a hostage by a prisoner). (17) Any felony punishable by death or imprisonment in the state prison for life. (18) Any attempt to commit a crime listed in this subdivision other than an assault. (b) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply. (c) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years. (d) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 26100, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.")

2 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

3Penal Code 12022.53 PC -- California's 10-20-life "use a gun and you're done" law.  ("(a) This section applies to the following felonies: (1) Section 187 (murder). (2) Section 203 or 205 (mayhem). (3) Section 207, 209, or 209.5 (kidnapping). (4) Section 211 (robbery). (5) Section 215 (carjacking). (6) Section 220 (assault with intent to commit a specified felony). (7) Subdivision (d) of Section 245 (assault with a firearm on a peace officer or firefighter). (8) Section 261 or 262 (rape). (9) Section 264.1 (rape or sexual penetration in concert). (10) Section 286 (sodomy). (11) Section 288 or 288.5 (lewd act on a child). (12) Section 288a (oral copulation).

(13) Section 289 (sexual penetration). (14) Section 4500 (assault by a life prisoner). (15) Section 4501 (assault by a prisoner). (16) Section 4503 (holding a hostage by a prisoner). (17) Any felony punishable by death or imprisonment in the state prison for life. (18) Any attempt to commit a crime listed in this subdivision other than an assault. (b) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply. (c) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years. (d) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.")

4 See subsection 18, endnote 1, above.

5 Penal Code 187 PC California's murder law, Penal Codes 203 and 205 PC California's mayhem laws, Penal Codes 207, 209, and 209.5 PC California's kidnapping laws, Penal Code 211 PC California's robbery law, and various California sex crimes are among the California serious felonies enumerated above in endnote 1.

6 California's "10-20-life" law, endnote 1, above, specifically includes Penal Code 245(d) assault with a firearm on a peace officer or firefighter, but does not include other violations of Penal Code 245.

7 Penal Code 12022.53 PC -- California's 10-20-life "use a gun and you're done" law.  ("(f) Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An enhancement involving a firearm specified in Section 12021.5, 12022, 12022.3, 12022.4, 12022.5, or 12022.55 shall not be imposed on a person in addition to an enhancement imposed pursuant to this section. An enhancement for great bodily injury as defined in Section 12022.7, 12022.8, or 12022.9 shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d).")

8 California Penal Code 213 PC -- Robbery, punishments.  ("(a) Robbery is punishable as follows: (2) Robbery of the second degree is punishable by imprisonment in the state prison for two, three, or five years.")

9 Penal Code 12022.53 PC ("(g) Notwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person found to come within the provisions of this section.").

10 See Penal Code 12022.53 PC, subdivision "b" endnote 1, above.

11 People v. Grandy (2006) 144 Cal.App.4th 33, 42.  ("Under this understanding of the term "used," a defendant uses a firearm by intentionally displaying it in a menacing manner, firing it, or striking or hitting a human being with it. (People v. Johnson (1995) 38 Cal.App.4th 1315, 1319-1321, 45 Cal.Rptr.2d 602.)")

12 VSee same.

13 People v. Carrasco (2006) 137 Cal.App.4th 1050, 1059.  ("'firearm use enhancement attaches to an offense, regardless of its nature, if the firearm use aids the defendant in completing one of its essential elements.' ( People v. Masbruch, supra, 13 Cal.4th at p. 1012, 55 Cal.Rptr.2d 760, 920 P.2d 705.) The enhancement is not limited 'to situations where the gun is pointed at the victim…' ( People v. Granado (1996) 49 Cal.App.4th 317, 322, 56 Cal.Rptr.2d 636.) Personal use of a firearm may be found where the defendant intentionally displayed a firearm in a menacing manner in order to facilitate the commission of an underlying crime. (See People v. Lucas (1997) 55 Cal.App.4th 721, 745, 64 Cal.Rptr.2d 282; Masbruch, at pp. 1006-1007, 55 Cal.Rptr.2d 760, 920 P.2d 705.)")

14 California Penal Code 12022 PC -- Being armed with a firearm.  ("(a)(1) Except as provided in subdivisions (c) and (d), any person who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless the arming is an element of that offense. This additional term shall apply to any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm.")

See also Penal Code 25400 PC, California's "carrying a concealed weapon" law.

15 Los Angeles, CA criminal defense lawyer Neil Shouse is a graduate of Harvard Law School and a former LA Deputy District Attorney.  He now uses his experience as a prosecutor to defend people accused of gun crimes throughout the greater Los Angeles areas.

16 People v. Grandy at 45, endnote 11, above.  ("…no principled distinction can be drawn within subdivision (d) between evasion-based injuries caused by a defendant who aims a gun, pulls its trigger, and projects a bullet, and evasion-based injuries caused by a defendant who engages in identical conduct, but whose gun noisily misfires and fails to emit a bullet. Each defendant will prompt precisely the same response in victims, who cannot see whether the gun has actually expelled a bullet. The defendants are thus equally culpable, and should be treated alike. Accordingly, limiting "discharges" under subdivision (d) to instances in which a gun emits a bullet would arbitrarily frustrate the legislative purpose underlying [California Penal Code] section 12022.53 [California's 10-20-Life "use a gun and you're done" law].

See also California Jury Instructions, Criminal.  CALJIC 17.19.5 - California's 10-20-life "use a gun and you're done" law.

17 See California Penal Code 12022.53 PC, subdivision "d", endnote 1, above.

18 See same.

See also California Penal Code 12022.7(f) -- As used in this section, "great bodily injury" means a significant or substantial physical injury.

19 See e.g., People v. Escobar (1992) 3 Cal.4th 740, 837 P.2d 1100 (holding that it is not necessary that victim suffer "permanent," "prolonged," or "protracted" disfigurement, impairment, or loss of bodily function for jury to conclude that victim suffered "great bodily injury" within meaning of a sentence enhancement statute.)

20 People v. Zarazua (2008) 162 Cal.App.4th 1348, 1361.

See also California Jury Instructions,  Criminal.  CALJIC 17.19.5 – California's 10-20-life "use a gun and you're done" law.

21 People v. Bland (2002) 28 Cal.4th 313, 338.  ("However, as we have seen, section 12022.53(d) does not require that the defendant fire a bullet that directly inflicts the harm. The enhancement applies so long as defendant's personal discharge of a firearm was a proximate, i.e., a substantial, factor contributing to the result.")

22 Based on People v. Zarazua (2008) 162 Cal.App.4th 1348.

23 Based on People v. Palmer (2005) 133 Cal.App.4th 1141.

24 Penal Code 12022.53 -- California's 10-20-life "use a gun and you're done" law.  ("(e)(1) The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: (A) The person violated subdivision (b) of Section 186.22. (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).")

See also People v. Hernandez (2005) 134 Cal.App.4th 474, 480.  ("Section 12022.53, subdivisions (d) and (e)(1) when read together require the trial court to impose a consecutive 25-years-to-life sentence enhancement when a defendant is convicted of murder for the benefit of a criminal street gang and "[ a] ny principal in the offense" "personally and intentionally discharges a firearm and causes…death, to any person other than an accomplice." FN35 (Italics added.) Under this sentencing regime an aider and abettor who is found guilty of murder is subject to the 25 years to life enhancement even though he or she did not personally and intentionally discharge a firearm causing death if the murder was committed for the benefit of a criminal street gang and "any principal" in the offense personally and intentionally discharged a firearm causing death.FN36 In all other killings subject to section 12022.53, subdivision (d)-that is, killings not for the benefit of a criminal street gang-a principal, including an aider and abettor, is only subject to the 25-year enhancement if he or she personally and intentionally discharged a firearm causing death.")

25 See California Penal Code 186.22.  The enumerated offenses include violent crimes such as murder, kidnapping and mayhem, as well as certain firearm and white collar offenses.  Under subsection (f), "criminal street gang" means:

"any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity."

See also In re Jose P. (2003) 130 Cal.Rptr.2d 810, 106 Cal.App.4th 458, review denied.  (To prove the existence of a criminal street gang for purposes of enhancing sentence based on committing crime for the benefit of criminal street grant, or for proving offense of active participation in a criminal street gang, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a pattern of criminal gang activity by committing, attempting to commit, or soliciting two or more of the enumerated offenses during the statutorily defined period.).

26 See same.  ("FN36. Under section 31 a "principal" includes not only those persons who directly commit the act but also those who "aid and abet in its commission.")

27 Based on People v. Hernandez, endnote 23.

28 California Penal Code 12022.53 -- California's 10-20-life "use a gun and you're done" law.  ("(2) An enhancement for participation in a criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense.")

29 California Penal Code 203 PC.  Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem.

30 Being an accessory after the fact is a "wobbler" offense in California.  A wobbler is a crime a prosecutor may choose to charge as a misdemeanor or a felony,  depending on your criminal history and the circumstances of the case.

See also California Penal Code 32 PC. Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is  an accessory to such felony.

See also Penal Code 33 PC.  Except in cases where a different punishment is prescribed, an accessory is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment.

31 See same.  ("(l) The enhancements specified in this section shall not apply to the lawful use or discharge of a firearm by a public officer, as provided in Section 196, or by any person in lawful self-defense, lawful defense of another, or lawful defense of property, as provided in Sections 197, 198, and 198.5.")

32 Judicial Council of California Criminal Jury Instruction (CALCRIM) 505 -- Justifiable Homicide: Self-Defense or Defense of Another.  ("The defendant acted in lawful (self-defense/ [or] defense of another) if: [1] The defendant reasonably believed that (he/she/ [or] someone else/ [or] {insert name or description of third party}) was in imminent danger of being killed or suffering great bodily injury [or was in imminent danger of being (raped/maimed/robbed/ {insert other forcible and atrocious crime})]; [2] The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; AND [3] The defendant used no more force than was reasonably necessary to defend against that danger.")

See also CALCRIM 3470 -- Right to Self-Defense or Defense of Another (Non-Homicide).  ("The defendant acted in lawful (self-defense/ [or] defense of another) if: [1] The defendant reasonably believed that (he/she/ [or] someone else/ [or] {insert name of third party}) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully]; [2] The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND [3] The defendant used no more force than was reasonably necessary to defend against that danger.")

33 People v. Watie (2002) 100 Cal.App.4th 866, 884.  ("The language of section 12022.53, subdivision (l) is clear. It states: "The enhancements specified in this section [that is, Penal Code 12022.53 California's 10-20-life use a gun and you're done law] shall not apply to the lawful use or discharge of a firearm by a public officer, as provided in Section 196, or by any person in lawful self-defense, lawful defense of another, or lawful defense of property, as provided in Sections 197, 198, and 198.5." (§ 12022.53, subd. (l).) This subdivision, on its face, exempts lawful (perfect) self-defense from the section's application. It does not exempt imperfect self-defense.")

34 Penal Code 215 PC California's "carjacking" law.  ("(a) 'Carjacking' is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.")

35 AMENDMENT V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

36 See, e.g., North Carolina v. Pearce (1969) 395 U.S. 711, 717; Brown v. Ohio (1977) 432 U.S. 161, 165, 97 S.Ct. 2221.

37 See also Plascencia v. Alameida (1996) 467 F.3d 1190 ("In Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the Supreme Court made clear that the protection against multiple punishments for the same offense did not necessarily preclude cumulative punishments in a single prosecution. The key to determining whether multiple charges and punishments violate double jeopardy is legislative intent.  Id. at 368-69, 103 S.Ct. 673. When the legislature intends to impose multiple punishments, double jeopardy is not invoked. Id. Here, the language of California Penal Code § 12022.53 is clear. Subsection (d) provides for a 25 year enhancement when a "firearm is used" to commit murder. There is, therefore, no question as to what the California legislature intended. As described by the California Court of Appeal, the California legislature has simply determined that "a criminal offender may receive additional punishment for any single crime committed with a firearm.").

38 See same.

39 Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada's firearm laws. Their Nevada law offices are located in Reno and Las Vegas.

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