Although Californians are allowed to own a firearm, there are strict laws on how you should use, transport, and store your firearm after possession. California lawmakers understand that commission of felony offenses using a firearm shows disregard for people's safety and health. Thus, if you or accomplice had a firearm during the commission of a felony, the judge will likely impose harsher and strict firearm sentencing enhancement on top of your underlying felony offense, some even leading to twenty years imprisonment.
Since firearm sentencing enhancement charges pass through the usual criminal procedure before the judge imposes a penalty for the offense, you may want to retain a reliable attorney like Orange County Criminal Lawyer immediately after an arrest for adequate legal representation.
An Overview of California Gun Laws
After the second amendment of the US constitution, most adults nowadays can buy, possess, and own a firearm as long as you are over 21 years of age, and you have a Firearm Safety Certificate (FSC). After acquiring a firearm, you should read and understand each law surrounding firearms ownership, usage, and transportation to avoid unnecessary criminal charges for mishandling a firearm.
For instance, knowingly carrying a firearm in public places without a concealed weapon permit or carrying a gun in an unlocked container might lead to criminal charges. Understanding California gun laws well after buying a firearm can protect you from unwanted criminal charges. Further, California gun laws prohibit some people from possessing or owning a firearm, for example:
- Narcotics addict
- People with mental illness
- Convicted felons
If the law prohibits you from buying or possessing a firearm, that means it is unlawful for you to possess even ammunition. Most California firearm charges arise alongside other criminal charges like robbery or theft, which makes the offense more severe because it can lead to unwanted bodily injuries or even death.
Because of the seriousness of these types of crime, California courts will impose more additional penalties on your baseline offense, making your overall prison term longer as per Penal Code section 12022 PC. These additional penalties are known as firearm sentencing enhancement, which will depend on:
- Your criminal history
- The type of underlying felony offense
- Whether you or accomplice used the gun during the commission of the felony or attempted felony
- Whether you discharged the firearm or had it with you
Suggestively displaying a firearm during the commission of a felony can also lead to firearm sentencing enhancement. If you want to retain your gun ownership rights and halt possible penalties resulting from this kind of offense, you should talk with a criminal defense attorney as soon as you receive a police arrest. Contacting an attorney as soon as you receive a police arrest for a felony offense makes it easy for the attorney to collect necessary facts and evidence of the case when it’s still fresh in the eyewitnesses' memory.
Criminal Circumstances That Can Lead to Firearm Sentencing Enhancement in California
Typically, firearm sentencing enhancement usually applies when you are facing felony charges. You might face firearm sentencing enhancement if you or your accomplice had a gun or used it during the commission of the following felonies under California Penal Code section 12022-12022.55PC:
Violation of Penal Code section 12022 PC
You violate Penal Code section 12022PC if you or your accomplice uses a firearm/weapon during a carjacking or attempted carjacking. For the sake of Penal Code section 12022 PC, the court considers a dangerous weapon to be any other weapon apart from a firearm, for example, a machete. Suppose the court lures you guilty for violation of Penal Code section 12022 PC. In that case, you will be subject to a sentence for the underlying offense and an additional prison term as firearm sentencing enhancement depending on your type of violation and nature of the crime.
For instance, if the underlying felony offense is a carjacking, you will be subject to an additional and consecutive state prison term of one to three years on top of the prison term for carjacking or attempted carjacking.
Firearm sentencing enhancement will also apply if you are under arrest for a California drug-related crime, for example, possession of illegal drugs for sale like cocaine. If you had a firearm during the commission of this type of drug offense, you would be facing an additional and consecutive prison term of three to five years on top of that baseline drug offense.
However, if you did not personally carry a firearm during the commission of the offense, but you were aware that your accomplice had it, the sentencing enhancement prison term will range from one to three years. Do not underrate these potential penalties even if you did not carry the gun personally, because three years is not a short time in the state prison. Ensure you talk to a criminal defense attorney and explain to him/her details and circumstances of your charge for adequate legal representation before and during the trial.
Violation of Penal Code section 12022.2 PC
Under this penal code section, it is a crime to possess any ammunition which can penetrate armor or metal because of its unique design. In this section, you will be subject to firearm sentencing enhancement if you do the following:
- Commit a felony offense while armed with a firearm and in possession of a specific type of ammunition which can penetrate chest vests, metal, or armor
- Wear a body/chest vest during the commission of a felony
For the sake of this section, any bullet-resistant material which the defendant uses to shield himself/herself from bullets or trauma is a "body vest." The firearm sentencing enhancement penalties you will face for this type of violation will depend on whether you had a body vest or just ammunitions which can penetrate armor/metal.
Possession of metal piercing type of ammunition when committing a felony will lead to an additional three, four, or ten-year prison term consecutive to the penalty for the baseline offense. If no mitigating or aggravating circumstances surround the offense, the judge will impose a sentence of four years.
On the other hand, if you wore a body vest to shield you when committing a violent felony offense, the judge will impose a penalty of one, four, or five years in the state prison, which will be an additional and consecutive penalty to your baseline offense. Typically, the judge must add a two-year sentence enhancement to your baseline offense unless there are other mitigating and aggravating factors surrounding the offense for modification of this sentence.
It is at the discretion of the judge to decide the severity of the penalty to impose for the violation of California Penal Code 12022.2 PC. The judge must inform you or your attorney the reasons for whichever penalty he/she decide to impose as firearm sentencing enhancement on top of your baseline/underlying felony punishment.
Violation of Penal Code section 12022.3 PC
California penal code section 12022.3 requires a person who commits particular sex offenses like rape with a firearm to receive firearm sentencing enhancement. It doesn't matter whether you discharged the firearm or just had it in possession to threaten the subject to consent for you to face a sentencing enhancement under this section. You can also face firearm sentencing enhancement under this section, even if you did not complete the actual baseline sexual offense as long as you had control over the subject.
The additional prison term the judge will impose for having a firearm during the commission of your baseline offense will range between one to five years. Sentencing enhancement for actually using the firearm will be longer, ranging between three to ten years.
Violation of Penal Code section 12022.4 PC
Under this section of firearm sentencing enhancement, it is a crime to furnish/aid another person with a firearm for the commission of a felony offense. Unlike other firearm sentencing sections, you can face an additional prison term under this section, even if you were not physically present during the commission of the offense as long as you gave out the firearm before the baseline offense incident.
If the court lures you guilty of this offense, you might face extra prison time of three years. However, the default penalty for this violation is two years prison term. Still, this sentence could decrease or increase depending on your attorney and the prosecutor’s arguments during the trial.
Violation of Penal Code section 12022.5 PC
Using firearms or other assault weapons personally during the commission or attempted commission of a felony offense like robbery or assault is a crime under this section. For the sake of this section, personally using firearms would mean:
- You were displaying your firearm in a suggestive or menacing manner
- You discharged the firearm
- You hit the subject with a firearm
Note that Penal Code section 12022.5 PC can also apply to felonies offenses like murder, which does not necessarily involve using a firearm to commit the crime. In that case, you will face punishment for committing murder and an enhanced sentence for using a gun during the commission of the offense. On top of the penalty for the underlying offense, you will be subject to an additional prison term ranging from three to ten years in the state prison, depending on the offense’s circumstances.
Violation of Penal Code Section 12022.53 PC
Penal Code section 12022.53 defines the criteria for firearm sentencing enhancement for the personal use of a firearm while committing severe felony offenses such as:
Violation of Penal Code section 12022, using a firearm while committing severe felonies, will lead to the longest sentencing enhancement punishment. You will be subject to a prison sentence of:
- Ten years for using a gun
- Twenty years for actually discharging the firearm
- Twenty-five years for seriously injuring or killing another person
The above firearm sentencing enhancement punishment will be additional and consecutive to your baseline felony offense meaning the overall penalty can be very severe and life-changing. Therefore, you might want to seek legal services of a criminal defense attorney like Orange County Criminal Lawyer if you're within Orange County and its environs for legal representation to dismiss the sentencing enhancement punishment entirely or reduce the penalty.
Factors the Judge Considers When Imposing Firearm Sentencing Enhancement Penalty
The prosecutor must find you guilty of your violation’s crime element to receive a firearm sentencing enhancement on top of your baseline offense penalty. The jury will consider the following factors before imposing a firearm sentencing enhancement for any violation of the California Penal Code section 12022-12022.55PC discussed above:
I. Circumstances of Your Offense
The sentencing enhancement which applies in your case situation and the severity of the penalty you will receive will depend on:
Whether You Possessed/Used the Firearm or Your Accomplice Did
Most firearm sentencing enhancement under California law does not require any evidence of you using or possessing the firearm during the commission of a felony to be guilty. Even if it was your accomplice, who used the gun during the commission of the crime, you could be guilty of the violation of California firearm sentencing enhancement laws.
Whether You Actively Used the Firearm
Particular California sentencing enhancement will apply regardless of the principal who used the firearm during the baseline felony commission. The term "use a firearm" under firearm sentencing enhancement laws is not limited to discharging the firearm only as many people assume. However, discharging a firearm will undoubtedly make you qualify for a firearm sentencing enhancement without further evidence. Using a firearm could also mean:
- Striking or hitting another person with a firearm/gun
- Displaying or brandishing your weapon in a suggestive and threatening manner
- Holding a gun
Most prosecutors will focus on establishing whether a gun was present or not during the commission of the underlying felony to prove your liability.
Nature of the Baseline/Underlying Felony
The nature and severity of the baseline offense will determine the firearm sentencing enhancement you will receive for your particular violation. Violent crimes like robbery with a firearm can lead to harsh firearm sentencing enhancement punishment because it shows disregard for human safety and health.
II. Other Sentencing Enhancements That Are Applicable to Your Underlying Felony Offense
Sometimes more than one firearm sentencing enhancement can apply to your baseline felony offense. If that the case, the judge will apply the sentencing enhancement with the most severe punishment or longest imprisonment period.
III. The Range of Imprisonment That Suit Your Violation
The range of the additional prison sentence you will receive for your violation is at the judge's discretion. If there are aggravating factors surrounding the baseline offense in terms of cruelty, the judge will impose a longer additional prison sentence. The same will apply if you have a prior felony conviction or arrest history. If your attorney raises mitigating arguments to counter the crime elements the prosecutor presents, the judge can consider a lesser prison term or dismiss the charges.
Legal Defenses That Your Attorney Can Raise to Counter the Firearm Sentencing Enhancement Charges
At Orange County Criminal Lawyer, we believe If you are knowledgeable and aware of factors that can make your charge severe, the better the decisions you will make to counter any firearm sentencing enhancement charges/allegations. Our skilled and friendly attorneys can raise the following legal defenses to counter any firearm sentencing enhancement charge you might be facing on top of your baseline offense:
You Are Not Liable for the Underlying Felony Offense
We believe the most reliable way to counter firearm sentencing enhancement charges is to counter the baseline felony offense. The courtroom considers felony offenses to be very severe, which implies the penalty you should face should be harsh as well.
Therefore, you must try first to fight the baseline felony offense charges you face if you want to increase your chances of dismissing or reducing firearm sentencing enhancement charges you're facing. Suppose your attorney exonerate you from the underlying felony offense. In that case, your firearm sentencing enhancement charges will disappear as well.
You Didn't Personally Use the Firearm During Commission of the Baseline Felony Offense
Indeed, particular firearm sentencing enhancements cannot apply if you didn't personally use the firearm and this legal defense is applicable in most circumstances. For example, California Penal Code section 12022.5 and 12022.53 require the prosecutor to prove that you "yourself" personally used the gun during the commission of the underlying felony offense.
If this crime element is not evident in your case situation, the judge will not impose any firearm sentencing enhancement penalty. Although, you can face a sentencing enhancement penalty if you're guilty under California Penal Code section 12022.
If the prosecutor finds out your arrest was due to police misconduct, he/she will dismiss the case. The judge can also dismiss the case if your attorney proves that your arrest/charge was because of police misconduct. If the judge dismisses the baseline offense, the firearm sentence enhancement charges will go away as well. An example of police misconduct includes (but not limited to):
- Planting firearm in your vehicle or premises
- A police officer testifying misleadingly about the crime elements and specific facts of your case
The Firearm Seizure Was a Result of Unlawful/Illegal Search
The US Constitution prohibits law enforcement officers from conducting an illegal search on other people's premises or vehicles. The police can only search your premises if:
- You voluntarily allow them to perform the search
- There is a probable cause or a reasonable belief to do the search
- They have a valid California search warrant
Make sure you contact an attorney as soon you receive a police arrest if you want to protect your interest and rights because you may face a wrongful conviction because of police misconduct and violation of your Miranda rights. In that kind of circumstance, this case should not even reach trial if your attorney can demonstrate to the prosecutor the police power abuse during the arrest.
Other Charges Relating California Firearm Sentencing Enhancement
There are a few other offenses that the prosecutor could try to charge you if there aren't enough pieces of evidence and facts to make you liable for firearm sentencing enhancement penalties. Other charges relating to firearm sentencing enhancement include:
Brandishing a Firearm/Weapon
Under California Penal Code section 417 PC, it is a crime to display or brandish your firearm or another deadly weapon suggestively with intent to cause fear. Violation of Penal Code 417 PC is a misdemeanor offense leading to thirty days in the county jail. Thirty days in the county jail is not a short time, especially if you are a busy person. An attorney can defend you from this offense by raising arguments such as self-defense. It is lawful to brandish your licensed firearm if you are in fear of an imminent danger of bodily harm or death.
Assault with Firearm
As per California Penal Code section 240PC, you could be guilty of assault with a firearm if you point, hit, shoot another person during the commission of an assault. Assault with a firearm/weapon is a felony offense in California that the criminal courtroom treats very severely, especially if the offense leads to another person’s physical injury or death. Assault with a firearm is punishable by a prison term ranging from two to four years in state prison and a fine of up to $10,000.
If you’re under arrest of any violent felony offense relating to the use of a firearm, you must talk to a criminal defense attorney. As explained in this article, these offenses usually lead to harsh penalties you may not want for yourself or your loved ones because the nature of these offenses portrays disregard for human safety and health.
Find a Criminal Defense Attorney Near Me
At Orange County Criminal Lawyer, we understand that your future and freedom are at stake if your felony offense charge qualifies for an additional prison sentence for the use of a firearm during the commission of the offense. Feel free to contact us at 714-262-4833 if you are charged with a gun crime in Orange County, California. Call us for the legal assistance you need to dismiss or reduce the firearm sentencing enhancement charges you're facing.
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