Penal Code § 12022.3 PC – Use of a Firearm in the Commission of a Sex Crime

Penal Code 12022.3 PC is the California statute that creates a firearm sentencing enhancement for anyone who uses or possesses a gun during the commission of a certain sex offense.

A “certain sex offense” includes (but is not limited to):

1. rape, per PC 261,
2. spousal rape, per PC 262, and
3. sodomy, per PC 286.

The enhancements under this statute subject a defendant to a number of years in California state prison. This time period is in addition and consecutive to the punishment that the defendant receives for the underlying sex offense.

According to this code section:

• a person who commits a specified sex offense, and uses a firearm or deadly weapon in the commission of that offense, will be punished by an additional and consecutive prison term of three, four or ten years.
• a defendant who commits a specified sex offense, and is armed with a gun or deadly weapon in the commission of that offense, will be punished by an additional and consecutive prison term of one, two, or five years.

Examples of when enhanced sentences will be applied under this section include:

• Mark rapes his ex-girlfriend while holding her at gunpoint.
• Jamel commits spousal rape while in possession of a hunting knife.
• Maria performs lewd acts on a minor child, a crime per PC 288, while armed with a handgun.

Defenses

Luckily, there are several legal defenses that a person can raise to challenge enhanced penalties under this statute. These include showing that the defendant:

• did not commit a sex offense,
• was arrested without probable cause, and/or
• was falsely accused.

Our California criminal defense attorneys will highlight the following in this article:

• 1. What is the law under 12022.3 PC?
• 2. What are the sentencing enhancements?
• 3. Are there legal defenses to challenge?
  • 3.1. No sex offense
  • 3.2. No probable cause
  • 3.3. Falsely accused
• 4. Related offenses

1. What is the law under Penal Code 12022.3 PC?

Penal Code 12022.3 PC punishes the use or possession of a firearm during the commission of certain sex offenses. Such offenses include (but are not limited to):

• rape, per PC 261
• spousal rape, per PC 262,
• sodomy, per PC 286,
• lewd acts on a minor child, per PC 288,
• forcible sexual penetration, per PC 289, and
• oral copulation with a minor, per PC 287.¹

Note that the “commission” of a sexual offense specified in this code section does not end with the completion of the sex act. It continues as long as the assailant maintains control over the victim.

This means a defendant can be found guilty of the enhancement even if he did not show his gun to the alleged victim until after he completed the sex act.²

2. What are the sentencing enhancements?

If a defendant uses or possesses a gun during a sex crime, then in addition and consecutive to his sentence for the underlying sex offense he faces:

• three, four, or ten years for using a gun or a deadly weapon³, or
• one, two, or five years for being armed with a firearm or a deadly weapon.⁴

3. Are there legal defenses?

If a person is accused of violating this statute, then he can challenge the accusation by raising a legal defense. A good defense can often get a charge reduced or even dismissed.

Three common defenses to accusations under Penal Code 12022.3 are:

1. no sex offense,
2. no probable cause, and/or
3. falsely accused.

3.1. No sex offense

Please recall that Penal Code 12022.3 only applies if the defendant committed a specific sex act that is listed within the statute. This means that it is always a defense for an accused to show that, while he may have used or possessed a gun during a crime, the crime was not a sex offense listed in the code section.

3.2. No probable cause

The Fourth Amendment to the U.S. Constitution says that police must have probable cause before they can detain or arrest a suspect of a crime.

If a person was stopped or arrested for violating PC 12022.3, and there was no probable cause, then any evidence obtained following the improper stop/arrest could get excluded from the case. This exclusion could result in the dismissal or reduction in charges.

3.3. Falsely accused

Unfortunately, it is not at all uncommon for people to get prosecuted based on false allegations. People get falsely accused out of

• jealousy,
• revenge, and
• anger.

Thus, it is a valid defense for a defendant to say that a party falsely accused him of violating Penal Code 12022.3.

4. Related Offenses

There are three crimes related to the use or possession of a firearm in the commission of a sex crime. These are:

1. furnishing with a firearm during the commission of a felony – PC 12022.4,
2. personally using firearms during the commission of a felony – PC 12022.5, and
3. personally using a firearm during the commission of a serious felony – PC 12022.53

Furnishing with a firearm during the commission of a felony – PC 12022.4

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.⁵

Punishment under this enhancement is an additional term of one, two, or three years in prison.⁶

Personally using firearms during the commission of a felony – PC 12022.5

California Penal Code 12022.5 PC creates a sentencing enhancement of between three to ten years for defendants that personally use a firearm during the commission or attempted commission of a felony.⁷

Personally using a firearm during the commission of a serious felony – PC 12022.53

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 a sentencing enhancement for when a defendant personally uses a firearm during the commission of certain serious felonies. Some of these felonies include (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.⁸

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.⁹

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

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