California's Firearms Sentencing Enhancements:
Possession or Use of a Gun During Commission of a Felony
Penal Code 12021.55 – 12022.55 PC

Under California gun laws, a prison sentence for a
felony can be "enhanced" if a gun was possessed or used by you or an accomplice during commission of the crime.  In such a case, the sentence for the underlying felony can be made longer…in some cases, much longer.

Sentencing enhancements for possession or use of a firearm during the commission of a felony include:

  1. Penal Code 12022 PC -- being armed with a firearm during the commission of a felony;
  2. Penal Code 12022.2 PC -- possessing ammunition designed to penetrate metal or armor;
  3. Penal Code 12202.3 PC -- using or possessing a firearm during the commission of certain sex offenses;
  4. Penal Code 12022.4 PC – furnishing… or attempting to furnish… another with a firearm to aid that person in the commission of a felony;
  5. Penal Code 12022.5 PC -- personally using firearms, assault weapons, machine guns, or .50 BMG rifles during the commission of a felony;
  6. Penal Code 12022.53 PC -- personally using a firearm during the commission of a serious felony; and
  7. Penal Code 12022.55 PC -- discharging a firearm from a car during the commission of a felony.
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Penalties for California firearm sentencing enhancements
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Each of the above enhancements subjects you to a number of years in California state prison …in addition and consecutive to…the punishment that you receive for the underlying felony offense.   The additional time you face ranges from one year to life, depending on:

  • the type of firearm or weapon involved,
  • whether you or another person involved with the crime used the gun,
  • whether you used the gun or simply had it with it you,
  • the underlying felony offense, and
  • your criminal history.
Legal defenses to California
firearms sentencing enhancements

Fortunately, there are a number of legal defenses that a knowledgeable criminal attorney can present on your behalf.  Depending on the particular enhancement, these include (but are not limited to):

  • You didn't commit the underlying felony;
  • You didn't personally use a gun during the commission of a crime;
  • The cops engaged in misconduct; or
  • The firearm was found during an illegal search.

We're a firm whose lawyers include former cops and prosecutors.  We understand California gun laws.  And we know the most effective defenses to help you avoid spending time in custody you don't have to.

Below, our California criminal defense attorneys1 discuss the following:

1. How California firearms sentencing enhancements work

1.1 The circumstances of the offense

1.1.1. Whether you personally used the weapon

1.1.2. Whether you used the weapon or were simply armed with it

1.1.3. The underlying felony offense

1.2. Where more than one enhancement applies

1.3. Sentencing ranges for firearm enhancements

2. Penal Code 12022 PC -- Being armed with a firearm during the commission of a felony

2.1. Penalties under Penal Code 12022 PC

2.1.1. The basic enhancement

2.1.2. Carjacking or attempted carjacking

2.1.3. Being armed with an assault weapon during the commission of a felony

2.1.4. California drug offenses

3. Penal Code 12022.2 PC -- possessing ammunition designed to penetrate metal or armor

3.1. Penalties under Penal Code 12022.2

3.1.1. Metal- or armor-piercing ammunition

3.1.2. Body vest

4. Penal Code 12202.3 PC -- using or possessing a firearm during the commission of certain sex offenses

4.1. Penalties for use of a firearm during commission of a sex offense

5. Penal Code 12022.4 PC – furnishing... or attempting to furnish another... with a firearm during the commission of a felony

5.1. Penalties for furnishing a firearm to someone else for use in a felony

6. Penal Code 12022.5 -- Personally using firearms, assault weapons, or machine guns during the commission of a felony

6.1. Penalties for personally using a firearm during commission of a felony

7. Penal Code 12022.53 PC -- personally using a firearm during the commission of a serious felony

7.1. Penalties for personal use of a firearm during a serious felony

8. Some additional notes about California firearm sentencing enhancements

8.1. Inoperable or unloaded firearm

8.2. Double jeopardy / multiple enhancements

8.3. Loss of the weapon as a nuisance

9. Legal defenses to California firearms sentencing enhancements

9.1. You didn't commit the underlying felony

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

9.3. The police engaged in misconduct

9.4. The firearm was found during an illegal search

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

California Firearm Laws; Penal Code 12022.53 PC, California's "10-20-Life 'Use a Gun and You're Done'" Law; Penal Code 417 PC Brandishing a Weapon; Penal Code 245(a)(2) Assault with a Firearm; Penal Code 29800 PC, Felon with a Firearm; Penal Code 25400 PC, California's concealed firearm law; Consequences of a California Felony Conviction; Legal Defenses; California's Gun Free School Zone Act; Self-Defense Laws; Illegal Search and Seizure; Expungement Law; and Restoring Your Firearms Rights. 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; California sex crimes; Penal Code 26100 PC, California's "drive-by shooting" law; Penal Code 246 PC, California's law against shooting an occupied dwelling or vehicle; Penal Code 30600, California's assault weapons ban; Penal Code 16590, California's ban on possessing generally prohibited weapons.

1. How California firearms sentencing enhancements work

1.1. The circumstances of the offense

California sentencing enhancements for personal use of a firearm apply to felony gun charges.  They provide for time in California state prison …in addition and consecutive to… your punishment for the underlying felony.2

Sentencing enhancements must be charged by the prosecutor.  And to receive the penalty you must admit to the charges or be found guilty of each element.3

Which enhancement applies depends on the particular circumstances of your offense, including:

1.1.1. Whether you personally used the weapon

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Many of California's firearm enhancements don't require that you yourself actually possess or use the gun.  Unless a statute expressly provides otherwise, any "principal" in a crime can receive an enhanced sentence.4

A "principal" is someone who either:

  1. directly and actively commits the crime, or
  2. aids and abets the commission of the offense.5

1.1.2. Whether you used the weapon or were simply armed with it

Some sentencing enhancements require that you... or another principal…actually "use" the gun.

"Use" of a firearm is not, however, limited to firing a shot.  It also includes:

  • displaying the gun in a menacing way, or
  • striking someone with the gun.6

Other enhancements apply if you were merely "armed" with a firearm or ammunition.  You are "armed" if you knowingly carry a gun (or, if applicable, ammunition) or you have it available for use.

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And "available for use" does not mean that the gun is loaded and ready to shoot.  It does not even mean it is within immediate access.  It simply means that the gun (or ammunition) is present at the scene.7

1.1.3. The underlying felony offense

Your firearms sentencing penalty will be increased still more if the underlying felony is:

  • A serious drug offense;
  • A serious sex offense; or
  • A violent offense.

"Violent offenses" include over two dozen specified violent crimes, including kidnapping, rape and murder.8

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1.2. Where more than one enhancement applies

Sometimes more than one enhancement will be applicable to your offense.  If this is the case, you will be subject to the enhancement which carries the longest potential term of imprisonment.9

1.3. Sentencing ranges for firearm enhancements

Most firearms sentencing enhancements authorize the judge to sentence you to one of three specified prison terms.  In many cases, the choice to sentence you to the "low," "middle," or "high" term is up to the judge's discretion.

Certain sentencing enhancements explicitly state, however, that the court must impose the middle sentence... unless there are circumstances in "aggravation" or "mitigation."

"Aggravation"…or "circumstances in aggravation"…consists of factors that allow a judge to impose a longer sentence.10

"Mitigation"…or "circumstances in mitigation"…means there are factors that may justify the court in imposing a shorter sentence.11 In some cases, they may justify the court in striking the enhancement altogether.12

Factors in aggravation or mitigation relate either to the crime or to the defendant.

Factors relating to the crime include (but are not limited to):

  • Whether the crime was cruel or vicious;
  • Whether you were an active or passive participant; and
  • The planning or sophistication of the crime.13

Factors relating to the defendant include (but are not limited to):

  • Whether you have a prior criminal record;
  • Whether you have a history of violent conduct; and
  • Whether you voluntarily acknowledged wrongdoing at an early stage of the criminal process.

Let's take a look at each of the California firearm sentencing enhancements to see how these factors apply.

2. Penal Code 12022 PC -- Being armed with a firearm during the commission of a felony
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Penal Code 12022 applies if, during the commission of a felony:

  • you were armed with a firearm, or
  • you used a dangerous or deadly weapon.14

Dangerous or deadly weapons for purposes of this section are weapons other than firearms.  Thus as Penal Code 12022 pertains to firearms, it is possession of a gun that is punished.

Use of a firearm during the commission of a felony is punished by one of the longer sentencing enhancements discussed below.

2.1. Penalties under Penal Code 12022 PC

If you are subject to a Penal Code 12022 firearm sentencing enhancement, you face:

  • your sentence for the underlying felony conviction, plus
  • an additional and consecutive term of imprisonment as set forth below.

2.1.1. The basic enhancement

If none of the below conditions apply, you face an additional and consecutive term of one year in the California State Prison for being armed with a firearm during the commission of a felony.15

2.1.2. Carjacking or attempted carjacking

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If the underlying felony is Penal Code 215 PC, carjacking… or attempted carjacking…you face, instead, an additional and consecutive one, two, or three years in state prison16.

2.1.3. Being armed with an assault weapon during the commission of a felony

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If the firearm you were armed with was:

  • an assault weapon,17
  • a machine gun,18 or
  • a .50 BMG rifle,19

you face, instead, an additional and consecutive three years in state prison20.

2.1.4. California drug offenses

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Certain felony California drug offenses carry an increased enhancement under Penal Code 12022.  These include (but are not limited to) violations of:

  • Health and Safety Code 11351 HS, California's "drug possession for sale" law, and
  • Health and Safety Code 11352 HS, California's "transporting or selling drugs" law.

If you were personally armed with the gun during the commission of one these drug offenses, you face an additional and consecutive three, four, or five years in state prison21.

If you did not personally carry a firearm…but you knew that another principal was armed with a gun…the enhancement will be an additional and consecutive one, two, or three years.22

3. Penal Code 12022.2 PC -- possessing ammunition designed to penetrate metal or armor
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California Penal Code 12022.2 creates a sentencing enhancement for anyone who:

  1. commits a felony while armed with a firearm and has…in his or her immediate possession…ammunition for the firearm designed primarily to penetrate metal or armor;23 or
  2. wears a body vest during the commission of a violent felony.24

"Body vest" means any bullet-resistant material intended to provide ballistic and trauma protection for the wearer.25

3.1. Penalties under Penal Code 12022.2

3.1.1. Metal- or armor-piercing ammunition

If you possess metal- or armor-piercing ammunition during commission of a felony, you will receive a sentence of three, four, or ten year in state prison …in addition and consecutive to the punishment for the underlying crime.26

Absent circumstances in aggravation or mitigation, the judge must sentence you to four years.27 Otherwise, the judge will use his or her discretion in deciding what penalty to impose.

The judge must state the reasons for his or her choice on the record at the time of the sentence.28

3.1.2. Body vest

If you wear a body vest during the commission or attempted commission of a violent offense, you will be punished by an additional and consecutive one, two, or five years in state prison 29.

The court must sentence you to the two-year enhancement unless there are circumstances in aggravation or mitigation. And again, the court must state the reasons for its enhancement choice on the record at the time of the sentence.30

4. Penal Code 12202.3 PC -- using or possessing a firearm during the commission of certain sex offenses
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Penal Code 12202.3 PC punishes the use or possession of a firearm during the commission of certain sex offenses.  Such offenses include (but are not limited to):

Note that the "commission" of a sexual offense specified in Penal Code section 12022.3 does not end with the completion of the sex act.  It continues as long as the assailant maintains control over the victim.

Thus you can be found guilty of the enhancement even if you do not show your gun to your alleged victim until after the act is completed.32

4.1. Penalties for use of a firearm during commission of a sex offense

If you use or possess a gun during a sex crime, then in addition and consecutive to your sentence for the underlying crime you face:

  1. For being armed with a gun: a one-, two-, or five-year enhancement; or
  2. For using a gun: a  three-, four-, or 10-year enhancement.33
5. Penal Code 12022.4 PC – furnishing... or attempting to furnish... another person with a firearm during the commission of a felony
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Penal Code 12022.4 PC makes it a crime to furnish…or attempt to furnish…a firearm to someone else for use in a felony.34

For purposes of this section, "during the commission or attempted commission of a felony" has a broader meaning than under other firearm enhancements.  In this case, you do not need to be present when the crime is committed. If you give someone a gun before a felony is committed, the enhancement will apply as long as it part of one continuous transaction.35

5.1. Penalties for furnishing a firearm to someone else for use in a felony

Punishment under this enhancement is an additional term of one, two, or three years in the state prison.

You must be sentenced to the middle term…two years…unless the court finds circumstances in aggravation or mitigation. The judge must state the reasons for his or her choice on the record at the time of the sentence.

6. Penal Code 12022.5 -- Personally using firearms, assault weapons, or machine guns during the commission of a felony
Img-commission-firearm

Penal Code 12022.5 applies if you personally used a firearm during the commission or attempted commission of a felony.

"Personally used a firearm" means that you intentionally:

  • displayed the gun in a menacing manner,
  • fired the gun, or
  • hit another person with the gun.36

Penal Code 12022.5 does not apply to felony offenses that of necessity require the use of a gun as an element of the crime.  (See discussion below under double jeopardy / multiple enhancements).

But it does apply to felonies that can be committed either with or without a gun.  For instance, Penal Code 187 PC, murder, may be committed with a firearm, with some other weapon, or even with no weapon at all.  As such, you can be punished both for committing a murder…and for using a firearm during commission of the crime.

Penal Code 12022.5 applies to all felonies that don't necessarily require use of a firearm.  For the avoidance of doubt, however, the statute specifically names two of them:

Although it might seem that drive by shooting and assault with a firearm of necessity require the use of a gun…they don't.  Under California's Aiding and Abetting Laws…sometimes called "accomplice liability"…you can be found guilty of a felony even if you only:

  • encourage,
  • aid, or
  • facilitate

its commission.

Therefore you can be found guilty of assault with a firearm…or murder during a drive-by shooting…without using a firearm yourself.38 As a result, the sentence for commission of these felonies does not necessarily include punishment for personal firearm use.

So if you personally use a firearm during a murder by drive-by shooting, or an assault with a firearm, your sentence can still be enhanced under Penal Code 12022.5.

6.1. Penalties for personally using a firearm during the commission of a felony

Under Penal Code 12022.5, you face a three, four, or ten-year state prison sentence in addition and consecutive to the penalty you receive for the underlying felony.39

However, if the firearm is an assault weapon or a machine gun, the enhancement is increased to five, six, or ten-years.40

7. Penal Code 12022.53 PC -- personally using a firearm during the commission of a serious felony
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Penal Code 12022.53 is better known as California's "10-20-life 'use a gun and you're done'" law.

PC 12022.53 provides an enhancement for the personal use of a firearm during the commission of serious felonies including (but not limited to):

  • Penal Code 187 PC, murder,
  • Penal Code 203 PC, mayhem,
  • Penal Code 207 PC, kidnapping,
  • Penal Code 261 PC, rape, and
  • Penal Code 211 PC, robbery;41

7.1. Penalties for personal use of a firearm during a serious felony

Penal Code 12022.53 PC adds to a felony sentence the longest of the following which applies:

  • 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 and consecutive to…the sentence for the underlying felony conviction.

Because the penalties under Penal Code 12022.53 are so severe, we have written a separate article on the subject.  For more information on this California firearms sentencing enhancement, please visit our page on Penal Code 12022.53, California's "10-20-life 'use a gun and you're done'" law.

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8. Some additional notes about California firearm sentencing enhancements

8.1. Inoperable or unloaded firearm

Whether or not a gun is operable is irrelevant for purposes of many California gun laws.  This includes firearms sentencing enhancements.

Thus you may receive an enhanced sentence for possessing or using a firearm, even if the gun doesn't work.  The issue is whether the gun is "designed to shoot and gives the reasonable appearance of a shooting capability."42

Similarly, prosecutors can charge you with a firearm enhancement even if your gun is unloaded.43

8.2. Double jeopardy / multiple enhancements

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8.2.1. The "double jeopardy" clause

The "double jeopardy" clause of the Fifth Amendment to the United States Constitution prohibits multiple punishments for the same offense.44

Thus a sentencing enhancement may not be imposed if the sentence for the underlying felony already punishes the exact same behavior.45 The test is whether one statute requires proof of an element which the other does not.46

As discussed above in the section on Penal Code 12022.5, courts look to whether possession or use of a firearm is necessarily an element of the underlying crime.47 If so, punishment of that offense already punishes possession of the gun.  In such a case, imposition of a Penal Code 12022 enhancement for being armed with a gun during commission of the crime could constitute double jeopardy.

Example: Penal Code 417 PC, brandishing a firearm, makes it a crime to draw, exhibit or use a firearm in a rude, angry, or threatening manner. It is not possible to brandish a firearm without being armed with a firearm. Therefore, the sentence for violating Penal Code 417(a)(2) already punishes possession and use of a gun.
But… Penal Code 211, robbery in California, is a crime that does not necessarily require the use of a gun.  Robbery can be committed with a weapon other than a gun…or, indeed, with no weapon at all.  Possession of a gun during a robbery is, therefore, an additional element that is not already punished by the penalty for the crime.  So if you are convicted of robbery…and you or another principal possessed or used a gun during the commission of the crime…a firearm sentencing enhancement will apply.

In practice, double jeopardy challenges to sentencing enhancements usually fail.  This is because under California's sentencing enhancements, it is clear that the Legislature intended more severe punishment when a gun is used in the commission of a crime.  As the Ninth U.S. Circuit Court of Appeals explained in Smith v. Hedgpeth:

"The double jeopardy clause in California law does not limit the legislature's power to impose sentences for a given crime. It is uncontested that the California legislature could have created a single offense which provided one sentence for simple robbery, a greater sentence for robbery with a deadly weapon, and a still greater sentence if the deadly weapon were a firearm. California chose to accomplish this result by two statutes instead of one. To strike down the scheme adopted by California in this case would 'operate not as a substantive or penological restriction, but as a literary critique of the legislature.'"48

Nuances such as these are why it's so important to have a lawyer who understands these distinctions.

Riverside criminal defense attorney Michael Scafiddi explains:49

"Issues like these make it important for individuals facing firearms 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."

8.2.2. Only once enhancement per crime

You can only be punished under one California firearm enhancement for any single crime.  If more than enhancement applies, the one with the longest possible sentence will be imposed.50

Example: Bill is convicted of committing a Penal Code 261 rape violation at gunpoint.  Under Penal Code 12022.3, Bill is subject to a sentencing enhancement of one, two, or five years for use of a firearm during a serious sex offense.
But… if Bill's gun is loaded with metal-piercing ammunition, Penal Code 12022.2 also applies.  And since it provides for a sentence of three, four, or ten years, this is the one the judge will use to enhance Bill's sentence for rape.

Despite the foregoing, firearm enhancements may be imposed for each felony count in which a firearm is carried or used.51 Therefore, if more than one felony count is charged, you could receive multiple enhancements, even if they seemingly result from the same act or set of acts.  So if, for instance, there are multiple counts because there are multiple victims, you could face multiple penalties.52

Example: Jane fires one shot in the direction of three police officers.  She misses the cops, but the bullet hits and shatters a glass door that injures a nearby child.  Jane can be charged with four separate felony counts of Penal Code 245(a)(2), assault with a firearm -- one for each of the three officers and one for the child.  For each count on which Jane is found guilty, a firearm enhancement will apply.53

8.2.3. Application of firearm enhancements in addition to other California sentencing enhancements

Under California law there are at least two types of sentencing enhancements:

  1. those which go to the nature of the offender; and
  2. those which go to the nature of the offense.54

These types of enhancements punish two different aspects of a crime.  Thus you can be sentenced under both types for the same felony.

Example: Penal Code 186.22, is California's gang sentencing enhancement.55 It provides an enhanced sentence to anyone who commits a felony for the benefit of a gang.  This is an example of an enhanced sentence based on the nature of the offender.
Firearm sentencing enhancements, on the other hand, punish the nature of theoffense.
Note, too, that the gang enhancement applies even if a firearm is not used during the underlying felony.  The gang sentencing enhancement requires proof of a different element than a firearm enhancement and vice versa.
For these reasons, imposing both the gang enhancement…and a firearm enhancement…does not violate the double jeopardy clause.
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Other sentencing enhancements that may be applied in addition to firearms enhancements include:

  • Penal Code 12022.6, intentionally taking, damaging or destroying property during commission of a felony, and
  • Penal Code 12022.7, personally inflicting great bodily injury in the commission of a felony.56

8.3. Loss of the weapon as a nuisance

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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 will take your weapon away from you.57

9. Legal defenses to California firearms sentencing enhancements

There are a number of legal defenses to firearm sentencing enhancements.  Depending on the enhancement, such defenses might include (without limitation):

9.1. You didn't commit the underlying felony

The first step to fighting an enhancement allegation is 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 pages on California Gun Laws and California Legal Defenses.

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

Certain sentencing enhancements cannot be applied unless you personally used a firearm.   The most notable of these are:

  • Penal Code 12022.5, personally using firearms, assault weapons, or machine guns during the commission of a felony, and
  • Penal Code 12022.53, personally using a firearm during the commission of a serious felony.

If prosecutors are unable to prove that you are the one who used the gun, the judge will not impose a penalty under these sections.

Example: Two brothers rob a bar one night after closing.  One of them points a gun at the bartender, while the other empties the cash register.  The one who empties the cash register is unarmed.
The bartender calls the police, and the brothers are apprehended.  The bartender is able to identify the men, but cannot say with certainty which pointed the gun at him. A gun with both the brothers' prints on it is found in the bushes outside the bar.
The brothers are convicted of robbery under Penal Code 211.  Both were principals in the crime.
However, since prosecutors are unable to prove which of them held the gun, neither can be sentenced to an enhancement for personally using a firearm.  Even though someone personally used a gun during the robbery, the prosecution must prove which one it is.  Only that person can receive an enhancement that depends on person use.
Instead, both brothers receive an enhancement under Penal Code 12022, for being armed with a firearm during commission of a felony.

9.3. The police engaged in misconduct

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If you are a victim of police misconduct, the prosecutor or judge may dismiss the underlying felony.  If the underlying felony charges are dismissed, there is no sentence to enhance.

Alternatively, misconduct could relate to a specific element required for an enhancement.

Example: Let's say that in the robbery example above, one of the brothers confesses that he was the one holding the gun.  He receives a 10-year enhancement under Penal Code 12022.53 for personally using a firearm during commission of a serious felony.  If he proves, however, that his confession was coerced, the confession may be excluded from evidence. In that case, he will instead receive only the one-year enhancement for being armed with a firearm during commission of a felony.

Other examples of police misconduct include (but are not limited to):

  • a cop plants a concealed firearm on your person or in your car;
  • an officer lies in the  police report; or
  • an officer testifies falsely about the facts of your case.

9.4. The firearm was found during an illegal search

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The Fourth Amendment to the US Constitution prohibits unreasonable searches and seizures.58

The police may not legally search you, your car or your property unless they have:

  • a valid California search warrant, specifying both the items sought and the property to be searched,
  • probable cause for a search, that is, a reasonable belief that the you pose a threat to the cops' safety or are engaged in criminal activity,59 or
  • your voluntary consent to the search.60

Absent one of the foregoing, the search may violate your Fourth Amendment rights.  If the search is illegal and a gun is discovered, it is inadmissible in court.61

Example: Let's take our robbery example once again.  After the brothers are identified, the police go to the apartment they share.  Other than the front door, there are no entrances to the apartment.  They ask if they may search the premises.  One of the brothers agrees and the gun is spotted sticking out from beneath the living room sofa.  The search is legal and the firearm may be admitted into evidence.
But… let's say the brother tells the cops "no."  The police search the house anyway.  Unless they reasonable believe there is a threat to their safety, or that the brothers are engaging in criminal activity, the search is illegal.  Note that the robbery itself is not criminal activity that the brothers are engaging in.  That is a completed crime and does not justify an exception to the requirement of a warrant or consent.
Note further that exclusion of the gun won't necessarily prevent the brothers from being convicted of robbery.  Robbery does not require use or possession of a firearm.  But a firearm enhancement does.  Without proof that a gun was carried or used in the underlying felony, the brothers can't be sentenced to a firearm enhancement.
Call us for help…
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If you or loved one is charged with Penal Code 12021.55 – 12022.55 PC 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.

You may also find helpful information in our related articles on California Gun Laws, Penal Code 12021 PC Felon with a Firearm, Penal Code 25850 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.62


Legal References:

1 Our Los Angeles criminal defense attorneys have local law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.

2 California Penal Code 1170.1(a)--  Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1

See also California Penal Code 654(a) -- An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.

3 California Penal Code  1170.1(e)--  All enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.

4 See California Penal Code 12022 PC (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 pursuant to subdivision (h) of Section 1170 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.

5 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.]")

6 People v. Reaves (1974) 42 Cal.App.3d 852.  ("...[T]he intentional firing of the gun is use of the firearm. The display of the gun in a menacing manner as a means of accomplishing a robbery or the employment of the gun to strike or "pistol whip" the victim is certainly "use" of the gun in the commonly accepted definition of that term. Because either such "use," i.e., the menacing display of or striking the victim with the gun carries the ever-dangerous potential of a discharge of the firearm, both such "uses" are properly included within the spirit and purpose of Penal Code section 12022.5. ... '[U]se' is different than being 'armed.'").

7 People v. Reaves (1974) 42 Cal.App.3d 852.  "[T]he intentional firing of the gun is use of the firearm. The display of the gun in a menacing manner as a means of accomplishing a robbery or the employment of the gun to strike or "pistol whip" the victim is certainly "use" of the gun in the commonly accepted definition of that term. Because either such "use," i.e., the menacing display of or striking the victim with the gun carries the ever-dangerous potential of a discharge of the firearm, both such "uses" are properly included within the spirit and purpose of Penal Code section 12022.5."

8 California Penal Code 29905 PC.

9 California Penal Code 1170.1(f) -- When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for the infliction of great bodily injury.

See also California Penal Code 654(a) -- An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.

10 California Rules of Court, Rule 4.405(4).

11 California Rules of Court, Rule 4.405(5).

12 See same.

See also, California Penal Code 12022(f) -- Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in subdivision (c) or (d) in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition.

13 California Rules of Court, Rules 4.421(a) and 4.423 (a).

14 California Penal Code 12022 PC.

A "dangerous or deadly weapon" is: any object, weapon, or instrument that is capable of being used to inflict great bodily injury or death.  For more information, please see our related articles on:

  • Penal Code 21310, California's laws against carrying concealed dirks or daggers;
  • Penal Code 21510, California's law against possessing a switchblade; and
  • Penal Code 16590 PC, California's law against possessing a generally prohibited weapon.

15 California Penal Code 12022(a).

16 California Penal Code 12022(b)(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.

17 See California Penal Code sections 30510 and 30515 PC.

18 California Penal Code 16880 PC.

19 California Penal Code 30530 PC.

20 California Penal Code 12022(a)(2).

21 California Penal Code 12022(c).

22 California Penal Code 12022(d).

23 California Penal Code 16660.

24 California Penal Code 12022.2.

25 See same, subsection (c).

26 See same, subsection (a).

27 See same.

28 See same.

29 See same, subsection (b).

30 See same.

31 California Penal Code 12022.3.

32 California 25 Cal.4th 98, 104 Cal.Rptr.2d 753 (holding that defendant used a weapon within meaning of Penal Code 12022.3 where he put a knife to the victim's face after he had raped her).

33 See same.

34 California Penal Code 12022.4(a).

35 People v. Heston (1991) 1 Cal.App.4th 471, 2 Cal.Rptr.2d 26 ("... 'during the commission or attempted commission of a felony' necessarily encompasses a period of time greater than the span of the act element of a felony for purposes of the statute. Such a conclusion is consistent with the legislative intent to deter a firearm from being furnished and to increase the punishment for one who furnishes the firearm. ... Further, we determine that the relevant time spent encompassed by "during the commission or attempted commission of a felony" refers to the furnishing and the actual committing of the felony being two acts that are part of one continuous transaction or course of conduct. Such interpretation gives effect to the stated intent of the Legislature in passing section 12022.4 and gives meaning to the terminology it has used.").

36 CALJIC 17.19 -- 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.

37 California Penal Code 12022.5(d).

38 See People v. Ahmed (2011) 53 Cal.4th 156, 264 P.3d 822 (" The Legislature has provided that this enhancement applies to assault with a firearm even though firearm use is an element of that offense. (§ 12022.5, subd. (d).) The enhancement does not entirely duplicate the offense, however. A defendant may be vicariously guilty of assault with a firearm even if that defendant did not personally use the firearm. (See People v. McCoy (2001) 25 Cal.4th 1111, 1116–1118, 108 Cal.Rptr.2d 188, 24 P.3d 1210.) But the firearm-use enhancement applies only to a defendant who "personally uses" the firearm. (§ 12022.5, subd. (a); see People v. Walker(1976) 18 Cal.3d 232, 133 Cal.Rptr. 520, 555 P.2d 306.) Thus, the enhancement does not attach to everyone guilty of assault with a firearm but only to those who personally use the firearm.").

39 California Penal Code 12022.5 PC.

40 See same, subsection (b).

41 California Penal Code 12022.53 PC.

42 People v. Nelums (1982) 31 Cal.3d 355 ("Section 12022.5 applies even if the evidence conclusively proves that the firearm was inoperable... so long as there is evidence 'of a gun designed to shoot and which gives the appearance of shooting capability.'")

43 CALJIC 17.16.1 (jury instruction for Penal Code 12022, subdivision "c" dealing with drug offenses.  ([The "firearm" need not be loaded or operable.]")

44 See Fifth Amendment: an Overview, Cornell University Law School, Legal Information Institute.

See also California Penal Code 12022 (e)  and 12022.5 (f) , which state that for purposes of imposing an enhancement under Section 1170.1, the enhancements under these sections shall count as one, single enhancement.

45 Blockburger v. United States (1932) 284 U.S. 299 ("[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.").

46 See same.

47 California Penal Code 12022(a)(1).

48 Smith v. Hedgpeth (2013) 706 F.3d 1099.

49 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.

50 California Penal Code 1170.1(f).

51 People v. King (1993) 5 Cal.4th 59, 79.  ("Subject to Penal Code sections 654 and 1170.1, and any other applicable limitations, a firearm-use enhancement under section 12022.5 may be imposed for each separate offense for which the enhancement is found true.")

52 People v. Oates (2004) 32 Cal.4th 1048, 1063.  ("[T]he limitations of section 654 do not apply to crimes of violence against multiple victims. The Culbreth decision [In re Culbreth  (1976) 17 Cal.3d 330] 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.").

53 Facts taken from In re Tameka C. (2000) 22 Cal.4th 190.

54 People v. Coronado (1995) 12 Cal.4th 145, 906 P.2d 1232.

55 See, e.g., People v. Vega (2013)214 Cal.App.4th 1387 (trial court properly imposed both the 4–year firearm use and 10–year gang enhancements, because gang enhancement applied even though no firearm use had been found).

56 See, e.g., People v. Ahmed (2011) 53 Cal.4th 156, 264 P.3d 822 (holding that as applied to multiple enhancements for a single crime, multiple punishment was barred based on the same aspect of a criminal act; but separate enhancements based on personal use of a firearm and personal infliction of great bodily injury were permissible because: "Sometimes separate enhancements focus on different aspects of the criminal act. Here, for example, the personal use of a firearm and the infliction of great bodily injury arose from the same criminal act—shooting the victim. The personal use of a firearm was an aspect of that act that, the Legislature has determined, warrants additional punishment; similarly, the infliction of great bodily injury is a different aspect of that act that, the Legislature has determined, also warrants additional punishment.").

57 See, e.g., California Penal Code 12022(b)(3). Other firearms sentencing enhancements have a similar provision.

58 The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

59 See, e.g., Terry v. Ohio (1968) 392 U.S. 1, 3 ("Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed.").

60 Schneckloth v. Bustamonte (1973) 412 U.S. 218, 93 S.Ct. 2041.  ("It is... well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.  Davis v. United States, 328 U.S. 582, 593—594, 66 S.Ct. 1256, 1261—1262, 90 L.Ed. 1453; Zap v. United States, 328 U.S. 624, 630, 66 S.Ct. 1277, 1280, 90 L.Ed. 1477.").

61 Mapp v. Ohio (1961) 367 U.S. 643 (holding that evidence obtained by searches and seizures in violation of the Federal Constitution is inadmissible in a criminal trial in a state court.).

62 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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