PC § 12022 – Armed with a Firearm During the Commission of a Felony

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 the defendant is armed with a firearm, or uses a deadly weapon.

The firearm sentencing enhancements under this section 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 accused receives for the underlying felony offense.

According to PC 12022:

• a person who is armed with a firearm in the commission of a felony, or in an attempted felony, will be punished by an additional and consecutive prison term of one year.
• a defendant who, in the commission of a felony, is armed with an assault weapon, a machine gun, or a .50 BMG rifle will be punished by an additional and consecutive prison term of three years.
• an accused who personally uses a deadly or dangerous weapon in the commission of a felony will be punished by an additional and consecutive prison term of one year.
• a defendant that uses a deadly or dangerous weapon in the commission of a felony carjacking will be punished by an additional and consecutive prison term of one, two, or three years.
• a person who, in the commission of certain felony drug offenses, is armed with a firearm, will be punished by an additional and consecutive prison term of three, four, or five years.

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

• Marcos commits felony trespass, per PC 602, while holding a gun in his hand
• Juanita completes felony burglary, per PC 459, and injures a person during the crime with a club.
• Jack sells cocaine, a felony under HSC 11352, with a rifle in his bag.

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 felony,
• was arrested following a coerced confession, and/or
• was 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 the defendant was armed in the commission of a felony?
  • 2.1 Possession of an assault weapon
  • 2.2 Drug offenses
• 3. What if the defendant actually uses a deadly weapon?
• 4. How can a defense attorney help?
  • 4.1 No felony
  • 4.2 Coerced confession
  • 4.3 No probable cause
• 5. Related offenses
  • 5.1 Possessing ammunition designed to penetrate mental or armor – PC 12022.2
  • 5.2 Personally using firearms during the commission of a felony – PC 12022.5
  • 5.3 Furnishing with a firearm during the commission of a felony – PC 12022.4

1. What is the sentencing enhancement under PC 12022?

Penal Code 12022 PC is the California statute that imposes on a defendant enhanced prison time for felony crimes, if during the commission of the crime, either:

1. the defendant was armed with a firearm, or
2. the defendant 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 a defendant to a number of years in California state prison. This time period is in addition and consecutive to the punishment that the accused receives for the underlying felony offense.

2. What if the defendant was armed in the commission of a felony?

The basic enhancement, per this statute, is an additional one year in prison for a defendant being armed with a firearm during the commission of a felony.

This additional time may change if the defendant either:

• committed a felony while possessing an assault weapon, or
• committed a certain drug offense.

2.1. Possession of an assault weapon

If a defendant commits a felony, while armed with a firearm, and the firearm was:

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

the accused faces not an additional one year in prison, but an additional and consecutive three years in prison.²

2.2. 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 a defendant was personally armed with a gun during the commission of one these offenses, he may face an additional and consecutive prison term of:

• three,
• four, or
• five years.³

If a defendant did not personally carry a firearm, but he knew that another principal was armed with a gun, then the enhancement will be an additional and consecutive prison term of:

• one,
• two, or
• three years.⁴

3. What if the defendant actually uses a deadly weapon?

Penal Code 12022b says that if a defendant uses a deadly or dangerous weapon during the commission of a felony, then he will face an additional and consecutive one year in prison.⁵

If a defendant 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?

If a person is accused of violating PC 12022, 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 this code section are:

1. no felony,
2. coerced confession, and/or
3. no probable cause.

4.1. No felony

PC 12022 only applies if a defendant committed a felony. It is always a defense, therefore, for an accused to show that there was no underlying felony offense. For example, maybe the defendant committed a California misdemeanor or an infraction.

4.2. Coerced confession

California law states that police may not use overbearing measures to coerce a confession.

If a party can show that the police coerced him into a confession, then:

• the judge may exclude the confession from evidence, or
• the case could get dropped altogether if the party got pressured into confessing to a crime he didn’t commit.

4.3. 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 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:

1. possessing ammunition designed to penetrate metal or armor – PC 12022.2,
2. personally using firearms during the commission of a felony – PC 12022.5, and
3. furnishing with a firearm during the commission of a felony – PC 12022.4.

5.1. 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 for anyone who:

• commits a felony while armed with a firearm and in immediate possession of ammunition designed primarily to penetrate metal or armor, or
• wears a body vest during the commission of a violent felony.⁷

5.2. 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 for defendants that personally use a firearm during the commission or attempted commission of a felony.⁸

5.3. 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

Call us for help…

If you or someone you know has been accused of a crime under Penal Code 12022 PC, we invite you to contact us for a free consultation. We can be reached 24/7.

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