California Penal Code § 12022 PC is a sentencing enhancement that adds from one to five years of additional prison time for felony offenses in which you
- are armed with a firearm, or
- use a deadly weapon.
These are the specific sentencing enhancements and the corresponding term of incarceration:
Aggravating Factor | Enhancement |
armed with firearm in the commission of a felony (or attempted felony) | 1 year |
armed with assault weapon, machine gun, or .50 BMG rifle in commission of a felony | 3 years |
used deadly/dangerous weapon in commission of a felony | 1 year |
used a deadly/dangerous weapon in commission of felony carjacking | 1, 2, or 3 years |
armed with firearm in commission of certain felony drug crimes | 3, 4, or 5 years |
Defenses
Luckily, there are several legal defenses that you can raise to challenge enhanced penalties under this statute. These include showing that you:
- did not commit a felony,
- were arrested following a coerced confession, and/or
- were arrested without probable cause.
Our California criminal defense attorneys will highlight the following in this article:
- 1. What is the sentencing enhancement under PC 12022?
- 2. What if I was armed in the commission of a felony?
- 3. What if I actually use a deadly weapon?
- 4. How can a defense attorney help?
- 5. Related offenses
1. What is the sentencing enhancement under PC 12022?
Penal Code 12022 PC is the California statute that imposes an enhanced prison time for felony crimes, if during the commission of the crime, either:
- you were armed with a firearm, or
- you used a dangerous or deadly weapon.1
A “dangerous or deadly weapon” for purposes of this section is a weapon other than a firearm.
Note that Penal Code 12022 punishes the possession of a firearm. The use of a firearm during the commission of a felony is punished by a different California statute.
The enhancements under this statute subject you to several years in California state prison. This time period is in addition and consecutive to the punishment that you receive for the underlying felony offense.
2. What if I was armed in the commission of a felony?
The basic enhancement, per this statute, is an additional one year in prison for being armed with a firearm during the commission of a felony.
This additional time may change if you either:
- committed a felony while possessing an assault weapon, or
- committed a certain drug offense.
Possession of an assault weapon
If you commit a felony, while armed with a firearm, and the firearm was:
- an assault weapon,
- a machine gun, or
- a .50 BMG rifle,
you face not an additional one year in prison, but an additional and consecutive three years in prison.2
Drug offense
Certain felony California drug offenses carry an increased enhancement under Penal Code 12022. These offenses include (but are not limited to) violations of:
- Health and Safety Code 11351, California’s “drug possession for sale” law, and
- Health and Safety Code 11352, California’s “transporting or selling drugs” law.
If you were personally armed with a gun during the commission of one these offenses, you may face an additional and consecutive prison term of:
- three,
- four, or
- five years.3
If you did not personally carry a firearm, but you knew that another principal was armed with a gun, then the enhancement will be an additional and consecutive term of:
- one,
- two, or
- three years.4
3. What if I actually use a deadly weapon?
Penal Code 12022b says that if you use a deadly or dangerous weapon during the commission of a felony, then you will face an additional and consecutive one year in prison.5
If you used a deadly or dangerous weapon in a felony carjacking, per PC 215, then the enhancement will be an additional and consecutive prison term of:
- one,
- two, or
- three years.6
4. How can a defense attorney help?
Three common defenses that our defense attorneys use to fight PC 12022 charges are:
- no felony,
- coerced confession, and/or
- no probable cause.
No felony
PC 12022 only applies if you committed a felony. It is always a defense, therefore, to show that there was no underlying felony offense. For example, maybe you committed a California misdemeanor or an infraction.
Coerced confession
California law states that police may not use overbearing measures to coerce a confession.
If you can show that the police coerced you into a confession, then:
- the judge may exclude the confession from evidence, or
- the case could get dropped altogether if you got pressured into confessing to a crime you did not commit.
No probable cause
The Fourth Amendment to the U.S. Constitution says that police must have probable cause before they can detain or arrest you for a crime.
If you were arrested for violating PC 12022, 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.
5. Related Offenses
There are three crimes related to possessing a gun during the commission of a felony. These are:
- possessing ammunition designed to penetrate metal or armor – PC 12022.2,
- personally using firearms during the commission of a felony – PC 12022.5, and
- furnishing with a firearm during the commission of a felony – PC 12022.4.
Possessing ammunition designed to penetrate metal or armor – PC 12022.2
California Penal Code 12022.2 creates a sentencing enhancement of between one to ten years if you:
- commit a felony while armed with a firearm and in immediate possession of ammunition designed primarily to penetrate metal or armor, or
- wear a body vest during the commission of a violent felony.7
Personally using firearms during the commission of a felony – PC 12022.5
California Penal Code 12022.5 creates a sentencing enhancement of between three to ten years if you personally use a firearm during the commission or attempted commission of a felony.8
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.9
Punishment under this enhancement is an additional term of one, two, or three years in prison.10
Legal References:
- California Penal Code 12022 PC. The language of the code section reads as follows:
(a) (1) Except as provided in subdivisions (c) and (d), a 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 a 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. (2) Except as provided in subdivision (c), and notwithstanding subdivision (d), if the firearm is an assault weapon, as defined in Section 30510 or 30515, or a machinegun, as defined in Section 16880, or a .50 BMG rifle, as defined in Section 30530, the additional and consecutive term described in this subdivision shall be three years imprisonment pursuant to subdivision (h) of Section 1170 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, machinegun, or a .50 BMG rifle, whether or not the person is personally armed with an assault weapon, machinegun, or a .50 BMG rifle. (b) (1) A 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. (2) If the person described in paragraph (1) has been convicted of carjacking or attempted carjacking, the additional term shall be in the state prison for one, two, or three years. (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 Sections 18000 and 18005. (c) (1) Notwithstanding the enhancement set forth in subdivision (a), a person who is personally armed with a firearm in the commission of a violation or attempted violation of Section 11351, 11351.5, 11352, 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. (2) Notwithstanding paragraph (9) of subdivision (h) of Section 1170 of the Penal Code, a defendant convicted of an underlying violation specified in this subdivision who admits an enhancement pursuant to this subdivision or for whom an enhancement pursuant to this subdivision is found true, is punishable by imprisonment in the state prison and not pursuant to subdivision (h) of Section 1170 of the Penal Code. (d) Notwithstanding the enhancement set forth in subdivision (a), a 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), shall be punished by an additional and consecutive term of imprisonment pursuant to subdivision (h) of Section 1170 for one, two, or three years. (e) For purposes of imposing an enhancement under Section 1170.1, the enhancements under this section shall count as a single enhancement. (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.(Amended by Stats. 2013, Ch. 76, Sec. 166. (AB 383) Effective January 1, 2014.)
- California Penal Code 12022a2 PC.
- California Penal Code 12022c PC. Proposition 36.
- California Penal Code 12022d PC.
- California Penal Code 12022b1 PC.
- California Penal Code 12022b2 PC.
- California Penal Code 12022.2 PC.
- California Penal Code 12022.5 PC.
- California Penal Code 12022.4 PC.
- See same.