There are a variety of sentencing enhancements that apply to California gun laws. When applied, they "enhance" the prison sentence by making it longer. Sometimes much longer.
But just like we’re here to help you fight your California firearm offenses, we’re also here to help you fight these additional sentencing enhancements. And because we’re former cops and prosecutors, we know the most effective defenses to present on your behalf to help ensure you don’t spend any extra time in custody.
“Personal use of a firearm” sentencing enhancements
The following are the sentencing enhancements that…depending on the exact circumstances of your offense…may apply to your felony California gun charges.
Each of the above enhancements subjects you to a period of incarceration in addition and consecutive to the punishment that you receive for the underlying felony offense. The amount of time you face depends on
The two most prominent California weapon sentencing enhancements are Penal Code 12022 PC: being armed with a firearm during the commission of a felony, and Penal Code 12022.5 PC: using a firearm during the commission of a felony. These are the two on which this article will focus.
Penal Code 12022 PC -- Being armed with a firearm or personally using a dangerous or deadly weapon during the commission of a felony
In order to convict you of Penal Code 12022 PC, prosecutors must prove that you either
If the judge/jury finds you guilty of this firearm sentencing enhancement, you face one year in the California State Prison in addition and consecutive to your punishment for the underlying felony conviction. However, if the underlying felony is Penal Code 215 PC carjacking or attempted carjacking, you face an additional one, two, or three year prison sentence.8
If the firearm that you are armed with is
you face an additional and consecutive three year sentencing enhancement.9
It is important to understand that California firearm sentencing enhancements don’t require that you yourself actually possess the gun. These additional prison terms apply to any person who is a principal involved with the crime.10
A “principal” involved in a crime is one who either (1) directly and actively commits the crime, or (2) aids and abets the commission of the offense.11
California drug offenses
If you are armed with a firearm during the commission of certain felony California drug offenses (including, but not limited to):
you face an additional and consecutive prison term of three, four, or five years under Penal Code 12022 PC.12
But under this specific firearm enhancement, if you are a principal to the crime…but are not personally armed with the firearm…you only receive an additional one, two, or three year prison sentence if you know that another principal is armed during the alleged drug offense.13
None of the above sentencing enhancements under Penal Code 12022 PC applies to felonies that necessarily involve (1) possession of a firearm, or (2) using a deadly weapon (since these crimes themselves already punish being armed with, or using, a weapon).14
Penal Code 12022.5 -- Personally using firearms, assault weapons, or machine guns during the commission of a felony
If prosecutors can prove that you personally used a firearm during the commission of a felony or during an attempted felony, you face a three, four, or ten-year state prison sentence in addition and consecutive to the penalty you receive for the underlying felony.15
“Personally used a firearm” means that you
With the exceptions of
this enhancement doesn’t apply to felony offenses that necessarily involve using a firearm.17
If the firearm that you allegedly used was an assault weapon or a machine gun, you face a five, six, or ten-year state prison sentence in addition and consecutive to the penalty imposed for the underlying felony.18
Some additional notes about California firearm sentencing enhancements
Operability
Whether or not the gun is operable is irrelevant to these California firearm sentencing enhancements. For purposes of these sentencing enhancements…and, for that matter, for many of California’s gun laws including (but not limited to)
a person can be convicted of possessing a firearm even if the gun is inoperable as long as it is “designed to shoot and gives the reasonable appearance of a shooting capability”.22 And with respect to being armed with a firearm during the commission of one of the California drug offenses listed above, prosecutors can still charge you with the enhancement even if the gun is unloaded.23
Multiple enhancements
Both Penal Code 12022 and PC 12022.5 contain a subdivision that states that the enhancements under each section shall count as one, single enhancement. This comports with the prohibition against multiple punishments for the same offense.24
Example: If you are convicted of being armed with a machinegun, you would only receive a three year enhancement under Penal Code 12022(a)(2). You would not also receive an additional one year sentence under 12022(a)(1) for being armed with a generic firearm.
However, firearm “use” enhancements may be imposed for each felony offense where a firearm is used.25
Example: Defendant shoots one bullet at three officers. Defendant misses the officers but hits and shatters a glass door that injures a nearby child. The court held that because there were four separate felony assaults with a firearm(three against the officers and one against the child), multiple firearm enhancements were appropriate.26
And along these same lines, there are times when it is okay for the court to impose multiple firearm enhancements when there is more than one victim.27
As Riverside criminal defense attorney Michael Scafiddi explains,28 “It’s because of issues like these that make it so important for individuals facing firearms and/or weapons’ charges to consult with a criminal defense attorney who has a thorough understanding of California’s gun laws. Without a keen grasp of this technical area of the law, an attorney is sure to do his client a disservice.”
Loss of the weapon as a nuisance
In addition to all of the above penalties, a conviction for any of these firearm/weapon sentencing enhancements may result in the government declaring your firearm or weapon a nuisance. When this is the case, the government seizes your weapon.29
Defending against California firearms’ sentencing enhancements
There are a number of ways for your California criminal defense attorney to fight the imposition of a firearms / weapons’ enhancement. The following are some common examples.
Fight the underlying felony
The first step to fighting an enhancement allegation it to fight the underlying felony itself. If you are not convicted of that charge, you can’t be convicted of an enhancement. To learn more about the types of legal defenses that are available to fight your felony offense, please visit our page on California Legal Defenses.
Challenge the firearm enhancement
Just like a typical crime, the prosecutor must prove that you are guilty (beyond a reasonable doubt) of a firearm enhancement before the judge can impose an enhanced sentence.
Perhaps the underlying charge is only a misdemeanor, not a felony…perhaps the object or instrument you possessed doesn’t qualify as a “dangerous or deadly” weapon…perhaps you were legally carrying your firearm under California’s open carry laws30 and only loaded it because you were forced to defend yourself in accordance with California’s self defense laws…31
As you can see, there are countless ways to challenge a firearm sentencing enhancement…which ones to pursue will depend on the exact circumstances of your alleged offense.
The firearm sentencing enhancement should be stricken in the “interests of justice”
Your California criminal defense lawyer may be able to persuade the judge that imposing a firearm sentencing enhancement goes against the “interests of justice”. This defense isn’t applicable to all enhancements or, obviously, to every situation.
However, there are times when mitigating circumstances absolve you of some of your criminal culpability, rendering the imposition of such an enhancement unjust.
Call us for help…
For more information about California’s firearm/ weapon enhancements, 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, 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, Possession of Dirks and Daggers, and California Legal Defenses.
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.32
2 California Penal Code 12022.3 -- Using or possessing firearms or deadly weapons during the commission of specific sex offenses. This section adds a three, four, or ten year firearm sentencing enhancement for using a firearm or deadly weapon during the commission of certain sex offenses (including, but not limited to): California Penal Code 261 PC rape, Penal Code 286 PC unlawful acts of sodomy, and Penal Code 288 lewd acts with a child. It adds a one, two, or five year firearms sentencing enhancement for being armed with a firearm or deadly weapon.
3 California Penal Code 12022.4 PC -- Furnishing or attempting to furnish another with a firearm to aid that person in the commission of a felony. This section adds a one, two, or three year firearm sentencing enhancement for furnishing or attempting to furnish another with a firearm to aid that person in the commission of a felony.
4 California Penal Code 12022.53 PC -- Sentencing enhancements for using a firearm during the commission of specific offenses. This section adds a ten, twenty, or twenty five year firearm sentencing enhancement for committing certain underlying felonies (including, but not limited to): California Penal Code 203 PC mayhem, Penal Code 207 PC kidnapping, and Penal Code 211 PC robbery.
5 California Penal Code 12022.55 PC -- Sentencing enhancement for discharging a firearm from a car during the commission of a felony. This section adds a five, six, or ten year firearm sentencing enhancement for discharging a firearm from a car during the commission of a felony.
6 California Jury Instructions, Criminal. CALJIC 17.15 -- Defendant armed during commission of a felony – Comment section. (“In People v. Wandick, 227 Cal.App.3d 918, 927–929, 278 Cal.Rptr. 274, 279–281 (5th Dist.1991), the court held that being armed included having the firearm available for use. The court in the Wandick case relied upon People v. Reaves, 42 Cal.App.3d 852, 856–857, 117 Cal.Rptr. 163, 165–166 (2d Dist.1974). In the latter case, at page 856, the court noted that the Legislature's intent was to “deter persons from creating a potential for death or injury resulting from the very presence of a firearm at the scene of a crime.” Based upon Reaves, “available for use” appears to mean that the firearm must at least be present at the scene of the crime.”)
7 California Penal Code 12022 PC -- Being armed with a firearm or personally using a dangerous or deadly weapon during the commission of a felony. (“(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... (b)(1) Any person who personally uses a deadly or dangerous weapon 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 use of a deadly or dangerous weapon is an element of that offense.”)
8 See same. See also Penal Code 12022(b)(2) PC. (“(2) If the person described in paragraph (1) has been convicted of [Penal Code 215] carjacking or attempted carjacking, the additional term shall be one, two, or three years.”)
9 California Penal Code 12022 PC -- Being armed with a firearm or personally using a dangerous or deadly weapon during the commission of a felony. (“(2) Except as provided in subdivision (c), and notwithstanding subdivision (d), if the firearm is an assault weapon, as defined in Section 12276 or Section 12276.1, or a machinegun, as defined in Section 12200, or a .50 BMG rifle, as defined in Section 12278, the additional and consecutive term described in this subdivision shall be three years whether or not the arming is an element of the offense of which the person was convicted. The additional term provided in this paragraph 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 an assault weapon or machinegun, or a .50 BMG rifle, whether or not the person is personally armed with an assault weapon or machinegun, or a .50 BMG rifle.”)
10 See California Penal Code 12022 PC -- Being armed with a firearm or personally using a dangerous or deadly weapon during the commission of a felony, endnotes 7 and 9, above.
11 CALJIC 17.15 -- Defendant armed during commission of a felony. (“[A principal in the commission of a felony [or attempted felony] is one who either directly and actively commits or attempts to commit the crime or one who aids and abets the commission or attempted commission of the crime.]”)
12 California Penal Code 12022 PC -- Being armed with a firearm or personally using a dangerous or deadly weapon during the commission of a felony. (“(c) Notwithstanding the enhancement set forth in subdivision (a), any person who is personally armed with a firearm in the commission of a violation or attempted violation of [the following California drug offenses] [Health and Safety Code] Section 11351, California’s “drug possession for sale” law, 11351.5, [Health and Safety Code] 11352, California’s “transporting or selling drugs” law, 11366.5, 11366.6, 11378, 11378.5, 11379, 11379.5, or 11379.6 of the Health and Safety Code, shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years.”)
13 California Penal Code 12022 PC -- Being armed with a firearm or personally using a dangerous or deadly weapon during the commission of a felony. (“(d) Notwithstanding the enhancement set forth in subdivision (a), any person who is not personally armed with a firearm who, knowing that another principal is personally armed with a firearm, is a principal in the commission of an offense or attempted offense specified in subdivision (c) [endnote 12, above], shall be punished by an additional and consecutive term of imprisonment in the state prison for one, two, or three years.”)
14 See endnote 7, above and endnote 15, below.
15 California Penal Code 12022.5 PC -- Personal use of firearms, assault weapons, or machine guns during the commission of a felony. (“(a) Except as provided in subdivision (b), any person who personally uses 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 3, 4, or 10 years, unless use of a firearm is an element of that offense.”)
16 CALJIC 17.19 -- Personal use of a firearm. (“The term “personally used a firearm,” as used in this instruction, means that the defendant must have intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it.”)
17 See same. See also Penal Code 12022.5(d). (“(d) Notwithstanding the limitation in subdivision (a) relating to being an element of the offense, the additional term provided by this section shall be imposed for any violation of [Penal Code Section 245 [California’s assault with a deadly weapon law] if a firearm is used, or for [Penal Code 187] murder if the killing is perpetrated by means of shooting a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict great bodily injury or death.”)
18 California Penal Code 12022.5 PC -- Personal use of firearms, assault weapons, or machine guns during the commission of a felony. (“(b) Notwithstanding subdivision (a), any person who personally uses an assault weapon, as specified in Section 12276 or Section 12276.1, or a machinegun, as defined in Section 12200, 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 5, 6, or 10 years.”)
19 People v. Nelums (1982) 31 Cal.3d 355, 358. (“Section 12021, subdivision (a) [California’s felon with a firearm law], proscribes the possession of a concealable firearm by an ex-felon; [California Penal Code] section 12022, subdivision (a), enhances the penalty for a person who is armed with a firearm during the commission, or attempted commission, of a felony; and section 12022.5 enhances the penalty for one who uses a firearm during a felony or attempted felony. Prior cases have examined the operable “firearm” issue within the meaning of each of these statutes and although there is some decisional conflict, we discern a general consensus that none of these statutes requires proof that the firearm is operable.”)
20 CALJIC 12.54 (jury instruction for Penal Code 12031 PC, Carrying a loaded firearm in a public place). (“A firearm is deemed to be loaded when there is an unexpended cartridge or shell, consisting of a case which holds a charge of powder and a bullet or shot which is in or attached in any manner to the firearm, including, but not limited to, the firing chamber, magazine, or clip attached to the firearm [, whether operable or not operable].”)
21 People v. Marroquin (1989) 210 Cal.App.3d 77, 82. (“In concert, we conclude that a firearm, the generic term used to describe an object which may silence, maim, strike or destroy that which moves, breathes or exists, need not be operable to convict under Penal Code section 12025, subdivision (b) [California’s “carrying a concealed weapon on your person or in a vehicle” law]. To engraft such a requirement would be inconsistent with the societal effort to curtail criminal conduct.”)
22 People v. Nelums at 359, endnote 19, above. (“Ruling that section 12022.5 does not require that the firearm be operable, the Jackson II court observed, “The victim is placed in fear and cannot be expected to inquire into the condition of the gun. The danger remains that the reaction by the victim or some third person to the appearance of the gun will cause harm to befall someone .... Section 12022.5 applies even if the evidence conclusively proves that the firearm was inoperable [citations], so long as there is evidence ‘of a gun designed to shoot and which gives the appearance of shooting capability.’ [Citation.]” (92 Cal.App.3d at 903, 155 Cal.Rptr. 305, fn. omitted; see also People v. Carter, supra, 117 Cal.App.3d 546, 551, 172 Cal.Rptr. 838 [unlawful to bring inoperable firearm into state prison].) By a parity of reasoning, the proscriptions of section 12022, subdivision (a), should apply to a person who is armed with a firearm which cannot be fired…[and at 360] “We hold that [Penal Code] section 12022, subdivision (a) [California’s law against being armed with a firearm or personally using a dangerous or deadly weapon], is violated by persons who, in the commission or attempted commission of a felony, are armed with an inoperable firearm if the weapon was designed to shoot and gave the reasonable appearance of a shooting capability. (See Jackson II, 92 Cal.App.3d, at p. 902, 155 Cal.Rptr. 305.)”)
23 CALJIC 17.16.1 (jury instruction for Penal Code 12022, subdivision “c” dealing with drug offenses. (“The word “firearm” includes a pistol, revolver, shotgun, [or] rifle [or any other device, designed to be used as a weapon from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion.] [The “firearm” need not be loaded or operable.]”)
24 California Penal Code 12022 PC -- Being armed with a firearm or personally using a dangerous or deadly weapon during the commission of a felony. (“(e) For purposes of imposing an enhancement under Section 1170.1, the enhancements under this section shall count as one, single enhancement.”)
See also California Penal Code 12022.5 PC -- Personal use of firearms, assault weapons, or machine guns during the commission of a felony. (“(f) For purposes of imposing an enhancement under Section 1170.1, the enhancements under this section shall count as one, single enhancement.”)
25 People v. King (1993) 5 Cal.4th 59, 79. (“For these reasons, we hereby overrule Culbreth, supra, 17 Cal.3d 330, 130 Cal.Rptr. 719, 551 P.2d 23. Subject to Penal Code sections 654 and 1170.1, and any other applicable limitations, a firearm-use enhancement under section [Penal Code] 12022.5 [California’s law against personally using firearms, assault weapons, or machine guns during the commission of a felony] may be imposed for each separate offense for which the enhancement is found true.”)
26 Facts taken from In re Tameka C. (2000) 22 Cal.4th 190.
27 People v. Oates (2004) 32 Cal.4th 1048, 1063. (““To the extent [the] defendant contends that [section 654's] prohibition against multiple punishment mandates the Culbreth rule, we note ... that ... section 654 does not apply to ‘crimes of violence against multiple victims.’ [Citations.] Here, there were multiple victims.... [¶] ... [Penal Code] [S]ection 12022.5 [California’s law against personally using firearms, assault weapons, or machine guns during the commission of a felony] simply enhances the term to be imposed for an offense; when multiple terms are imposed for multiple offenses, ... section 654 exists to limit the number of terms which may be executed. However, as noted, ... the limitations of section 654 do not apply to crimes of violence against multiple victims. The Culbreth decision does not justify a conclusion that the Legislature intended that a term enhancement be treated more restrictively for multiple punishment purposes than the term for the underlying offense.” ( King, supra, 5 Cal.4th at p. 78, 19 Cal.Rptr.2d 233, 851 P.2d 27.) Thus, we held that where a defendant commits crimes of violence against multiple victims, section 654 permits imposition of “a firearm-use enhancement under section 12022.5 ... for each separate offense for which the enhancement is found true.” ( King, supra, 5 Cal.4th at p. 79, 19 Cal.Rptr.2d 233, 851 P.2d 27.)”)
28 Riverside criminal defense attorney Michael Scafiddi uses his former experience as an Ontario Police Officer to represent clients accused of violating California’s gun laws in San Bernardino, Riverside, Banning, Fontana, Joshua Tree, Barstow and Victorville.
29 California Penal Code 12022 PC -- Being armed with a firearm or personally using a dangerous or deadly weapon during the commission of a felony. (“(3) When a person is found to have personally used a deadly or dangerous weapon in the commission of a felony or attempted felony as provided in this subdivision and the weapon is owned by that person, the court shall order that the weapon be deemed a nuisance and disposed of in the manner provided in Section 12028.”)
See also California Penal Code 12022.5 PC -- Personal use of firearms, assault weapons, or machine guns during the commission of a felony. (“(e) When a person is found to have personally used a firearm, an assault weapon, a machinegun, or a .50 BMG rifle, in the commission of a felony or attempted felony as provided in this section and the firearm, assault weapon, machinegun, or a .50 BMG rifle, is owned by that person, the court shall order that the firearm be deemed a nuisance and disposed of in the manner provided in Section 12028.”)
30 California’s “open carry” laws generally allow you to carry an unloaded firearm in plain sight, so long as you are not in a prohibited area. “Prohibited areas” include government buildings, post offices, and school zones.
31 California’s self-defense laws permit you to reasonably defend yourself with enough force that is required to reasonably counter the attack against you or another person.
32 Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada’s firearm laws. Their Nevada law offices are located in Reno and Las Vegas.
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