California’s "10-20-Life ‘Use a Gun and You’re Done’" Law

Penal Code 12022.53 PC

Penal Code 12022.53 PC is known as California’s "10-20-life ‘use a gun and you’re done’" law. Enacted in 1997, its aim was to impose mandatory minimum prison terms for using firearms in the commission of certain dangerous and/or violent felonies. Today, it remains one of the harshest in the nation.

This California firearms law subjects you to:

• 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

…and this is in addition and consecutive to the sentence you receive for the underlying felony conviction.

But just like other California gun laws, Penal Code 12022.53 PC is fraught with legal jargon and technicalities that 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 who know the most effective ways to challenge any California crime. And because we have mastered California gun laws, we can help you build the most comprehensive defense to help ensure that you don’t fall victim to this unduly harsh penalty.

California’s "10-20-life ‘use a gun and you’re done’" law

Penal Code 12022.53 PC is what’s known as a sentencing enhancement. Sentencing enhancements do just that…they "enhance" a prison sentence by making it longer. And while there are a variety of California sentencing enhancements for personally using a gun, California’s "10-20-life" law is the strictest.

The "use a gun and you’re done" sentencing enhancement doesn’t apply to every situation involving criminal gun use. It actually only applies to 19 specific felony offenses and to other felony offenses that are "punishable by death or imprisonment in the state prison for life".¹

These crimes are categorically labeled as California serious felonies.

Liability under this law also extends to "attempts" to commit any of these serious felonies.²

Some of these felonies include (but are not limited to):

• 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



• designated California sex crimes.³

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).⁴



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

Let’s say, for example, that you are convicted of second-degree robbery under Penal Code 211 PC. As long as you didn’t use or discharge a gun, you face a maximum five-year state prison sentence.⁵

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.

If more than one subdivision under this sentencing scheme applies, the court will only impose the subdivision that carries the most severe penalty.⁶

California’s "10-20-life" law -- 10 years for "using" a firearm

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 to be convicted of this sentencing enhancement.⁷

If you personally "use" a firearm it means that you intentionally display the gun in a menacing manner, fire it, or use it to strike or hit another person.⁸ The definition is essentially the same as in Penal Code 417 PC California’s "brandishing a weapon" law…you’re basically just brandishing your weapon during the commission of one of the enumerated felonies.

As long as the gun helps to facilitate the felony…even if only as a "threat" to the alleged victim…the ten-year enhancement may be imposed.⁹ There is no requirement that you actually point the gun at the alleged victim.¹⁰

 

Example: While you are attempting to kidnap someone, you begin waiving your gun around, threatening 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…

If instead of waiving the gun around, you keep it concealed, and never mention that you have it, you are not "using" your gun and shouldn’t be sentenced to the additional penalty under this enhancement.

That said, prosecutors would still likely charge you with a different sentencing enhancement for being armed with a firearm during the commission of a felony, a much less severe penalty. They would also likely charge you with violating Penal Code 12025 PC California’s "carrying a concealed weapon" law.¹¹

California’s "10-20-life" law -- 20 years for "discharging" a firearm

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

And as Van Nuys criminal defense attorney Darrell York¹² explains, "You discharge a gun when you aim it at a person and pull the trigger…even when the gun misfires and doesn’t actually discharge a bullet."¹³

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

Penal Code 12022.53(d) PC imposes an additional and consecutive 25-years-to-life sentencing enhancement on anyone who "personally and intentionally discharges a firearm and proximately causes great bodily injury or death to any person other than an accomplice".¹⁴

This subsection not only applies to the enumerated felonies above, but also 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).

Nothing in this section states that the injury or death must be caused by the gunshot wound. This means that this sentencing enhancement could apply even if it’s not a gunshot wound that causes the alleged victim’s injury or death…as long as the injury or death was proximately caused by the gunshot.¹⁵

"A proximate cause of injury or death is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the great bodily injury or death and without which the great bodily injury or death would not have occurred."¹⁶

Examples: In People v. Zarazua, the defendant…a passenger in a car…personally and intentionally shot at two rival gang members while they were driving in another car. In order to avoid being hit, the rival members drove through a stop sign, hit a third car and killed a three-year-old passenger.

The court upheld the defendant’s "25 years to life" sentencing enhancement based on the fact that the defendant’s act of personally discharging his gun set in motion a chain of events that naturally and proximately led to the child’s death. If the defendant hadn’t shot at the rival gang members, they would not have fled the scene and would not have hit the victim’s car.¹⁷

Similarly, in People v. Palmer, the defendant fired his gun at a police officer who had just pulled him over. While trying to evade the gunfire, the officer broke his ankle. The court upheld the defendant’s 25 years to life sentencing enhancement under California’s "10-20-life" law, stating that the officer’s injury was proximately caused by the defendant’s gunfire.¹⁸

The criminal street gang exception to "personally" using a firearm

Although the above sentencing enhancements under California’s "10-20-life" law typically only apply to an individual who "personally" uses or discharges a gun, that isn’t always the case.

If the underlying felony is committed "for the benefit of a criminal street gang"…and any principal personally uses or discharges a gun…the court will apply the appropriate enhancement to all principals who are convicted of the felony.¹⁹

"For the benefit of a criminal street gang" means that that the conduct "willfully promotes, furthers, or assists" members of the gang. A "principal" includes the individual who actively and directly commits the act and those who aid and abet in its commission.²⁰

Example: In People v. Hernandez, the defendant, a gang member, may or may not have shot another person during a gang fight…it was unknown whether he or one of his fellow gang members actually did the shooting. The prosecution maintained that it didn’t matter which man shot the victim, since both were equally liable for murder as principals to the crime. Defendant was convicted of murder and sentenced to an additional and consecutive 25 years to life under California’s "10-20-life" law.²¹

If the shooting hadn’t been gang-related, the defendant could not have been sentenced to the enhancement unless the jury determined that he had personally discharged the firearm. But because the murder was done for the benefit of the gang, it was irrelevant who actually fired the gun…as long as someone did, all principals face the same enhancement.

It’s important to understand that 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 for an individual to be sentenced under Penal Code 12022.53 PC and the criminal street gang enhancement under Penal Code 186.22 but only if that individual personally uses or discharges a gun.²²

Self-defense / defense of others negates culpability under California’s "10-20-life ‘use a gun and you’re done’" law

The sentencing enhancements listed under Penal Code 12022.53 PC don’t apply to situations involving lawful self-defense.²³ California’s self-defense laws allow you to defend yourself reasonably with the amount of force that is required to counter the attack against you or another person.²⁴

This means that if your California criminal defense attorney²⁵ can convince the prosecutor/judge/jury that you only used or fired your gun because you reasonably feared that you or another person was about to suffer great bodily harm or death, you should not receive a sentence enhancement under this code.

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

• Penal Code 12031 PC California’s "carrying a loaded firearm" law,



• Penal Code 12021 PC California’s "felon with a firearm" law if you are a person who is prohibited from possessing a firearm,



• Penal Code 12020 PC California’s "possessing dangerous firearms" law, or



• Penal Code 12280 PC California’s ban against possessing assault weapons.

Imperfect self-defense

And while lawful self-defense exempts a person from California’s "10-20-life" law, imperfect self-defense does not.²⁶ "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.²⁷

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.

Call us for help…

For more information about California’s "10-20-life ‘use a gun and you’re done’" law, or to discuss your case confidentially with one of our attorneys, please don’t hesitate to contact us at Shouse Law Group. Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

You may also find helpful information in our related articles on California Gun Laws; California Sentencing Enhancements for Personally Using a Gun; California’s Criminal Street Gang Sentencing Enhancement; Serious Felonies; Penal Code 417 PC Brandishing a Weapon; Penal Code 12021 PC Felon with a Firearm; Penal Code 12031 PC Carrying a Loaded Firearm in a Public Place; Penal Code 12025 PC Carrying a Concealed Weapon; Penal Code 12280 PC California Assault Weapons; Penal Code 12020 PC Possessing Dangerous Firearms; Penal Code 246 PC Shooting at an Inhabited Dwelling or Occupied Car; Penal Code 245(a)(2) Assault with a Firearm; and California’s Self-Defense Laws.

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 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.")

² See subsection 18, endnote 1, above.

³Penal 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.

⁴ 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.

⁵ 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.")

⁶ 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).")

⁷ See Penal Code 12022.53 PC, subdivision "b" endnote 1, above.

⁸ 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.)")

⁹ People v. Carrasco (2006) 137 Cal.App.4th 1050, 1059. (""A 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.)")

¹⁰ See same.

¹¹ 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 12025 PC California’s "carrying a concealed weapon" law.

¹² Van Nuys CA criminal defense lawyer Darrell York is a former 25-year veteran police officer who now uses his law enforcement experience to defense people accused of gun crimes throughout the San Fernando Valley, including Newhall, Northridge, Reseda, Chatsworth and Westlake Village.

¹³ People v. Grandy at 45, endnote 8, 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].")

¹⁴ See California Penal Code 12022.53 PC, subdivision "d", endnote 1, above.

¹⁵ 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.")

¹⁶ 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.

¹⁷ People v. Zarazua (2008) 162 Cal.App.4th 1348

¹⁸ People v. Palmer (2005) 133 Cal.App.4th 1141

¹⁹ 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.")

²⁰ 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."")

²¹ See same.

²² 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.")

²³ 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.")

²⁴ Judicial Council Of California Criminal Jury Instruction 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 Judicial Council Of California Criminal Jury Instruction 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.")

²⁵ 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.

²⁶ 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.")

²⁷ 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.")

²⁸ Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Daria A. Snadowsky for any questions relating to Nevada’s firearm laws. Their Nevada law offices are located in Reno and Las Vegas.

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