Penal Code 12022.5 PC - Personal Use of a Firearm During the Commission of a Felony

Penal Code 12022.5 PC is the California statute that creates a firearm sentencing enhancement for anyone who personally uses a firearm during the commission, or attempted commission, of a felony.

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.

According to this code section:

  • anyone who personally uses a firearm when committing a felony, or in the attempt to commit a felony, will be punished by an additional and consecutive prison term of three, four or ten years.
  • a defendant who personally uses an assault weapon or machinegun in the commission of a felony, or attempted felony, will be punished by an additional and consecutive prison term of five, six, or ten years.

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

  • While committing felony burglary, per PC 459, of her neighbor, Kate fires several gunshots into the neighbor's wall as a scare tactic.
  • Jerome shoots a security guard in the leg while stealing an expensive watch from a dealer and committing grand theft, per PC 487.
  • Jesus pulls off the crime of carjacking, per PC 215, by shooting a motorist in the arm and then taking his car.

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,
  • did not personally use a gun, and/or
  • was falsely accused.

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

man holding gun

1. What is the law under Penal Code 12022.5?

Penal Code 12022.5 PC is the California statute that creates a firearm sentencing enhancement for anyone who personally uses a firearm during the commission, or attempted commission, of a felony.1

The "personal use” of a firearm means that an accused:

  • displayed the gun in a menacing manner,
  • fired the gun, or
  • hit another person with the gun.2

Please note that when a defendant displays an object that looks like a gun in committing a felony, the object's appearance and the defendant's conduct and words in using it, may constitute sufficient circumstantial evidence to support a finding that it was a firearm for purposes of PC 12022.5.3

2. What are the sentencing enhancements under PC 12022.5?

If a defendant uses a firearm in the commission of a felony, or attempted felony, then in addition and consecutive to his sentence for the underlying felony offense he faces three, four, or ten years in state prison.4

If a defendant uses an assault weapon or machinegun in the commission of a felony, or attempted felony, then in addition and consecutive to his sentence for the underlying felony offense he faces five, six, or ten years in state prison.5

attorneys working hard

3. Are there legal defenses to challenge PC 12022.5 charges?

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 this code section are:

  1. no felony,
  2. no personal use, and/or
  3. falsely accused.

3.1. No felony

PC 12022.5 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.

3.2. No personal use

Please recall that Penal Code 12022.5 only applies if an accused personally used a firearm while committing a felony. This means it is always a defense for a defendant to show that, while a gun may have been involved in a crime, he did not personally use it. Perhaps, for example, an accomplice was the party that used a firearm.

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 12022.5.

4. Related Offenses

There are three crimes related to the personal use of a firearm during the commission of a felony. These are:

  1. being armed with a firearm during the commission of a felony – PC 12022,
  2. possessing ammunition designed to penetrate mental or armor – PC 12022.2, and
  3. personally using a firearm during the commission of a serious felony – PC 12022.53

4.1. Being armed with a firearm during the commission of a felony – PC 12022

Penal Code 12022 PC is the California statute that says a defendant will face 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.6

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.7

4.2. Possessing ammunition designed to penetrate mental 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.8

4.3. 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 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.10

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

Were you accused of personally using a firearm during the commission of a felony in California? Call us for help…

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Call us for help at (855) LAW-FIRM

If you or someone you know has been accused of a crime under Penal Code 12022.5 PC, we invite you to contact us for a free consultation. We can be reached 24/7 at 855-LawFirm.


Legal References:

  1. California Penal Code 12022.5 PC. This code section states: “(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.

    (b) Notwithstanding subdivision (a), any person who personally uses an assault weapon, as specified in Section 30510 or 30515, or a machinegun, as defined in Section 16880, 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.

    (c) The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.

    (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 Section 245 if a firearm is used, or for 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.

    (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 Sections 18000 and 18005.

    (f) For purposes of imposing an enhancement under Section 1170.1, the enhancements under this section shall count as one single enhancement.”

  2. 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.

  3. People v. Law (2011), 195 Cal. App. 4th 976.

  4. California Penal Code 12022.5a PC.

  5. California Penal Code 12022.5b PC.

  6. California Penal Code 12022 PC.

  7. See same.

  8. California Penal Code 12022.2 PC.

  9. California Penal Code 12022.53 PC.

  10. See same.

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