Typically, gun crimes are highly punishable in California. Prosecutors charge most gun offenses as felonies, meaning that anyone found guilty is likely to receive a lengthy prison sentence and a hefty court fine, among other harsh penalties. Your gun-related sentence is subject to enhancement under specific circumstances. For example, using a gun to commit a grave felony like rape could compel the judge to give a heftier sentence than what the law provides for that particular gun offense.

An enhanced sentence means you will serve longer behind bars, pay a heftier court fine, and face harsh penalties, including a more damaging criminal record. But you can fight the enhancement with the help of a competent criminal attorney. We study your case’s details at California Criminal Lawyer Group to devise a fighting strategy for your charges. We could compel the judge to dismiss the enhancement or reduce your charges at Fresno.

Firearm Sentencing Enhancement

The use, possession, and purchase of firearms are highly regulated in California. Anyone found guilty of committing a felony using a gun is subject to a sentence enhancement. The enhancement applies to people and accomplices who use or possess guns while committing a crime. If these are the details of the case, the judge will likely make the sentence for the felony longer.

Here are some circumstances that could result in a sentence enhancement under this law:

  • Committing a felony while armed with a gun in violation of PC 12022.
  • Committing a felony while in possession of ammunition that can penetrate armor or metal in violation of Penal Code 12022.2.
  • Committing a specific sex offense while armed or in possession of a gun in violation of PC 12022.3.
  • Furnishing or an attempt to equip another person with a weapon to assist them in committing a felony in violation of PC 12022.4.
  • Using an assault rifle, firearm, machine gun, or 50 BMG rifle when committing a felony in violation of PC 12022.5.
  • Using a gun to commit a grave felony in violation of PC 12022.53.
  • Discharging a weapon from a vehicle when committing a felony in violation of PC 12022.55.

These severe circumstances could result in several years in prison or jail and an additional court fine. The extra period of incarceration must be served consecutively with the time you receive for the felony offense. The increased penalty could be as low as one year and as high as life in prison, depending on the details of the case. The judge also considers the following factors when deciding the additional sentence to include in your underlying felony sentence:

  • The kind of firearm you used in your crime.
  • If you or someone else used the firearm in the crime.
  • If you used a gun or were only in possession of it during the offense.
  • How severe the felony is.
  • Your criminal record.

Here are some of these factors in detail:

The Details of The Case

How the judge treats your case mainly depends on its circumstances. They will consider your case's critical details to decide the enhancement you deserve for your underlying felony. For example, the judge will decide, depending on whether you or someone else used the gun. The personal use of a weapon to commit a felony is a grave issue that could result in a longer prison sentence.

If you commit a felony with another person or persons, the prosecution must find out who used the gun. They do not apply this to all statutes whereby everyone is liable, even when only one principal uses a firearm. In this case, 'principal' refers to the person who actively and directly engages in crime or participates in its commission.

Additionally, the judge will consider if you used a firearm or were only armed during the crime. Some enhancements only apply when you or an accomplice use a firearm to commit a felony. Others apply even if you are simply armed. Using a gun, in this case, means displaying it menacingly, firing, or striking a person with it. Being armed means knowingly carrying a gun and ammunition and keeping them close just in case you need them. However, being armed does not necessarily mean the weapon is loaded or ready to use. It does not mean it was with you or accessible within a few seconds. It means that you had the gun at the crime scene.

When considering the facts of the case, the judge will also consider the details of the underlying crime. Firearms sentencing laws apply differently, depending on the crime you commit using or while armed with a gun.

For example, your enhanced sentence is likely to be graver if your underlying crime is a grave sex crime, a grave drug crime, or a violence-related felony. Violent felonies are offenses like murder, kidnapping, and rape.

Situations Where Two or More Enhancements Apply

You could be subject to two or more firearm sentencing enhancements, depending on the facts of the case. If that is your case, the judge will sentence you to the enhancement with the longest possible penalty.

Sentencing Range for a Firearm Sentencing Enhancement

Judges have three sentencing ranges when determining the appropriate penalty for anyone facing a firearm sentencing enhancement charge. These ranges are low, middle, and high terms. Judges have absolute discretion to determine your range based on your case circumstances and criminal history. But some enhancements specify the range the judge should use in your sentencing.

For example, a particular enhancement could call for a middle-term unless your case has mitigation or aggravation factors.

An aggravating factor or circumstance will call for a heftier penalty, while a mitigating factor will result in a more lenient penalty. Some mitigating factors could compel the judge to strike the sentencing enhancement altogether.

Here are examples of aggravating factors that could heighten your sentence even more:

  • If your actions are vicious or cruel.
  • If you are a passive or active principal in the crime.
  • How sophisticated or well-planned the crime is.
  • If you have a severe criminal history.
  • If previously you have been accused of violence.
  • If you willingly confessed to the crime during the initial stages of the crime investigation.

Firearm Sentencing Enhancement Under PC 12022

The enhancement under this statute applies in cases where you had a gun or any other dangerous or deadly weapon during the commission of a felony offense. You will likely receive an extended sentencing enhancement if you use a gun, as opposed to if you were merely armed. If a jury finds you guilty under this statute, the judge will sentence you to the following:

  • The sentence the law provides for the felony.
  • An additional prison sentence to serve consecutively with the sentence for the felony offense.

A basic enhancement applies in the absence of aggravating factors or the presence of mitigating factors. A basic enhancement entails a one-year prison sentence on top of the penalty you receive for the original crime.

If the underlying offense involves carjacking, you will face an additional one, two, or three years on your underlying prison sentence for carjacking or attempted carjacking.

If you had a machine gun, an assault rifle, or a .50 BMG rifle when committing a felony, the judge would give you an additional three-year prison term to serve consecutively with the sentence for the felony.

Judges impose additional sentences for specific drug offenses if you commit these offenses while armed with a dangerous weapon. Here are some of the sentencing guidelines judges follow under this circumstance:

  • An additional prison sentence of three to five years for arming yourself while in possession of drugs for sale or transporting controlled substances.
  • An additional one, two, or three years if an accomplice, and not you, was armed, and you knew about the gun’s presence.

Sentencing Enhancement for Possessing Ammunition

Penal Code 12022.2 provides guidelines for enhancing sentences for people who commit felonies while possessing ammunition. In this case, the ammunition must have been made to penetrate armor or metal. This statute also provides an enhancement for people who wear body vests while committing a violent felony. A body vest is bullet-resistant clothing that protects its wearer from trauma and ballistics.

The judge will give you an additional prison sentence of three to five years for having ammunition when committing a felony. Remember that you must serve the penalty you receive consecutively with the sentence for the felony.

Without aggravating or mitigating factors, you will receive an additional four years. But judges have absolute discretion to impose an additional penalty according to your case’s circumstances and criminal history. The judge will state the reason for the additional sentence they will choose.

On the other hand, you will receive an additional one- to five-year prison sentence for wearing a body vest while committing or attempting a violent felony. Typically, the judge will give an additional two-year sentence unless in the presence of mitigating or aggravating circumstances.

Sentencing Enhancement for Committing Particular Sex Crimes While Armed

PC 12022.3 provides sentencing enhancement guidelines for people who use guns to commit particular sex crimes. Some of the sex offenses covered under this law include the following:

  • Rape as under PC 261.
  • Forcible sodomy as under PC 286.
  • Lewd or lascivious acts with a minor under PC 288.

Note: The enhancement applies as long as you control the victim, not once you complete the sexual act.

For example, suppose you maintain control over your victim for several hours after a rape. In that case, the judge will consider that to decide how to enhance your sentence for the sex crime.

If you used a firearm to compel your victim to consent or were armed with a gun when committing a sex offense, the judge will enhance your sentence as follows:

  • You will receive an additional one to five years for arming yourself with a gun.
  • You will receive an additional three- to ten-year prison term for using a firearm.

Penalty Enhancement For Furnishing Another With a Weapon to Commit a Felony

Your involvement in crime is also punishable in California. If you furnished a gun offender with a gun or tried to furnish them so they could commit a felony, the judge would enhance your sentence for aiding and/or abetting a crime. The enhancement is under PC 12022.4.

Note: It will not matter whether you were present when the crime occurred for the judge to enhance your sentence. What matters is that you provided the gun the offender used to commit a felony. Your involvement in that crime continues as long as the offender keeps and uses the gun.

The judge would enhance your sentence by one, two, or three years if you furnished another person with a weapon to commit a felony. They could give you a middle-term sentence of two years without mitigation or aggravation factors.

Penalty Enhancement for Personally Using a Gun

The judge also considers whether you or someone else used a firearm. You will likely receive a sentencing enhancement for personally using a weapon. As used under this statute, personally using a gun means that you menacingly display a dangerous weapon, fire a gun, or strike a person with it.

Sentencing enhancement for personally using a weapon is under PC 12022.5. However, the judge cannot apply this statute to crimes that can only be accomplished with a gun but to those that you can commit with or without one. For example, you can murder with and without a weapon, but you cannot commit a drive-by shooting without a gun unless you are aiding or abetting the crime. People who encourage, assist, or facilitate the commission of felonies can face charges under the statute, even for crimes that require a gun.

If the court finds you guilty of personally using a gun to commit a felony, the judge could enhance your sentence by three to ten years. But if the firearms used to commit the crime are machine guns or assault guns, the additional sentence will be a five- to ten-year prison sentence.

If you personally used a gun to commit a grave felony, the judge will enhance your sentence under PC 12022.53. The enhancement will range from ten years to life in prison. According to this statute, a grave felony could be murder, mayhem, rape, kidnapping, or robbery. The judge will enhance your sentence as follows:

  • An additional prison sentence of ten years for using a firearm.
  • Additional twenty years for firing it.
  • Additional twenty-five to life in prison for seriously injuring or killing a person with it.

Remember that the enhancement is given in addition to the penalties for the felony. You must serve the two sentences consecutively.

What If The Gun is Unloaded or Inoperable?

California gun laws apply even when you are using an inoperable/unloaded firearm. Thus, sentencing enhancement will still apply in your case. The judge will still enhance your sentence even though the gun in your possession is not working. What matters is that the gun appears real and capable of shooting. Similarly, the prosecutor will still bring up sentencing enhancement charges even if you used an unloaded firearm.

Double Jeopardy and Multiple Enhancements

Double jeopardy is a clause in the 5th Amendment to the Constitution. It protects suspected offenders from facing multiple charges for the same crime. Under this provision, the judge will not give an additional sentence if the underlying crime already penalizes the element of gun possession or usage. The judge will consider whether the law against the underlying offense requires an element in the enhancement law.

For example, suppose you face charges for drive-by shootings. In that case, the judge will not give an additional charge for using a weapon because the gun usage element is already covered in the underlying offense. If they did, imposing a sentence enhancement for using a firearm to commit the crime would constitute double jeopardy.

Additionally, the law advocates for one enhancement per offense. The judge can only impose a single enhancement for your crime, even in cases where several enhancement laws apply. Typically, judges choose an enhancement with a possibly longer sentence.

For example, when facing charges of committing rape while armed with a firearm,. You are subject to enhancement under PC 12022.3 since rape is a grave sex crime. In this case, the judge can enhance your rape sentence by one to five years.

However, if the gun is loaded, you are also subject to having ammunition, which requires an enhancement of three to ten years under Penal Code 12022.2. The judge can enhance your sentence under Penal Code 12022.2 rather than 12022.3 since the former provides a longer sentence.

Despite these laws, the judge can impose a firearm enhancement for every felony you commit using or in possession of a firearm. Thus, if you face multiple felony charges and use a firearm to commit these felonies, the judge can impose numerous enhancements, even when the offenses result from one action. For example, when facing multiple felony charges because of numerous victims, you will receive numerous penalties and enhancements.

Example: A protester fires a gun at the police. He misses the police but hits and seriously injures a person standing by the road. In this case, the protester is guilty of multiple felony charges, one for every officer they aimed at and one for the victim. The judge will likely impose an enhancement for each count.

How Firearm Sentencing Enhancement Impacts Other Sentencing Enhancements

California law has two kinds of sentencing enhancements:

  • Enhancements determined by the offender’s nature and
  • Those defined by the crime’s nature.

These enhancements penalize separate aspects of an offense. Thus, the judge can sentence you to two enhancements for one felony offense.

For example, using a gun to commit an offense for a criminal gang’s benefit could subject you to two sentencing enhancements: firearms sentencing enhancements for using a firearm in the crime and gang sentencing enhancements for committing a crime for a criminal gang’s benefit. The latter punishes the offender’s nature, and the former punishes the offense’s nature.

Remember that the criminal gang sentencing enhancement will apply even in the absence of a firearm in the crime. If the judge sentences you to two sentencing enhancements for the same felony, they will not go against double jeopardy laws. Here are examples of other sentencing enhancement statutes that could apply together with firearm sentencing enhancement:

  • Willfully damaging, destroying, or taking property while committing a felony under PC 12022.6.
  • Personally causing another person to sustain a significant bodily injury while committing a felony under PC 12022.7.

Fighting a Firearm Sentencing Enhancement Charge

Fortunately, you can fight the enhancement with the help of a skilled criminal defense attorney. Here are some of the strategies your attorney can use for the best possible outcome in your case:

  • They can fight the underlying offense, without which the judge will not give an additional penalty for using a weapon.
  • They can demonstrate that someone else, and not you, used a firearm to commit the felony. This will work for sentencing enhancements that require you to have personally used a gun. In that case, the judge will only impose a penalty for your involvement in the felony.
  • If the police violated your rights during arrest or crime investigation, an intelligent defense attorney can use that to weaken the prosecutor’s case. They can compel the judge to dismiss any evidence the police gathered after the violation.

Find a Skilled Criminal Defense Attorney Near Me

If you face a sentencing enhancement charge for using a dangerous weapon to commit a felony in Fresno, you could be experiencing the most devastating moment of your life. But your situation can improve by seeking the help and support of a skilled criminal defense lawyer. Your lawyer will help you navigate the complex legal process, protect your rights, explain your options, and develop a fighting strategy for your charges.

We have worked closely with our clients from the beginning of their legal process at California Criminal Lawyer Group. By studying your case details, we can explain your options and develop the best defense strategies to compel the judge to dismiss or reduce your charges. Call us at 559-712-8377 to learn more about what we can do for you.