If a firearm or gun is involved in committing a felony, you will face the baseline offense and sentence enhancement charges. Lawmakers enacted PEN 12022 after realizing that offenses committed with firearms were severe and there was a need to punish the perpetrators severely. A sentence enhancement means you will face additional and sequential prison time on top of the sentence for the original offense, significantly increasing your incarceration.
Nevertheless, before the court estimates your sentence enhancement, they must consider several factors, including the kind of firearm you possessed and your criminal record. Thankfully, at Darwish Law, we can mount several defense strategies to avoid the consequences of firearms sentencing enhancements in Santa Ana, CA, and ensure that you only face the penalties for the baseline felony.
Guns Sentencing Enhancement at a Glance
Per California gun statutes, a judge can enhance or sentence you to extra prison time when you or an accessory use a gun in a felony offense. Under these circumstances, the additional and successive sentence is added to the baseline or original sentence, making your incarceration longer. Sentence enhancement increases the penalties you face for a specific offense. These gun offenses subject to extra sentences are codified in PEN 12021.55 to 12022.55. Whenever the court finds you guilty under these statutes, you will face extra and consecutive penalties if aggravating elements are present in your case.
Nevertheless, before you can face sentence enhancement, the prosecutor must formally file charges for gun sentence enhancement just like they file the baseline gun offense charge, following all the standard processes provided in law.
When the prosecutor brings gun enhancement charges against you, you can plead guilty, take a plea deal, or continue the case to trial. Again, the prosecutor can secure a guilty verdict after a bench or jury trial. If you choose to proceed to trial, the prosecutor has the burden of proof and must demonstrate all the enhancement elements beyond a reasonable certainty.
The prosecutor imposes PEN 12022 violation charges when they believe you committed or attempted to commit a felony while you or an accessory were equipped with a gun.
Before you can face sentence enhancement, your defense attorney must discuss the elements of the charge with the prosecutor. Therefore, having an experienced defense attorney with excellent negotiation skills will be advantageous because they will save you from additional incarceration.
Sentence Enhancement Aggravating Factors
California has some of the harshest felony penalties. When convicted of a felony offense, you will face several years in state prison. And even if the court imposes felony probation, you must serve part of the prison sentence before you begin probation. Felony offenses attract severe consequences, but your situation worsens when you commit the felony while utilizing or equipped with a gun. These circumstances necessitate sentence augmentation or enhancement, adding several years to your baseline felony sentence.
Nevertheless, the prosecutor considers several elements before filing the additional sentencing enhancement charge. These factors are as follows:
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The Conditions of Your Case
The sentence enhancements you face depend on how the gun was used to commit the baseline felony. Not all enhancements require that you have possessed or utilized a firearm on your person while committing an offense. You would face additional incarceration if your accomplice had a gun or dangerous weapon.
Unless California statutes state otherwise, any party actively or directly participating in a felony will face sentence augmentation charges. Aiding or abetting a felony also attracts sentence augmentation charges.
In particular, for the court to find you guilty of an enhancement charge, you or your accessory must have used the gun. You must understand that using the gun does not necessarily mean firing it, although shooting is the main reason for most sentence enhancements. Displaying or branding the weapon also amounts to utilizing a firearm if it is done threateningly or you hit someone with it. Carrying or bringing the gun to the crime scene amounts to usage, which could be the basis for your charges.
Moreover, you must understand that having a weapon ready for use does not necessarily mean it should be strapped. Again, the gun can be outside your immediate area. If it is near the scene or in a nearby room, that proves the gun was ready to be utilized. The court focuses more on whether the gun was near the scene of the felony.
Also, you will face an additional charge of sentence enhancement depending on the type of baseline offense. If you have been convicted of a severe baseline offense like rape or murder or any other serious sex, drug, or violent crime, you will face a further and sequential sentence.
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Several Enhancements Charged
You can face multiple sentence enhancements depending on the baseline offense. In cases with several enhancement charges, the prosecutor does not file all of them. They pick the enhancement charge to increase your baseline felony sentence the longest. It is good news for you because you will only face one charge. Nevertheless, it is also terrible or destructive news when the court imposes the longest additional sentence.
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Sentencing Choices for Additional Incarceration
Most gun sentencing enhancements require the court to hand down low, moderate, or high prison incarcerations. Nevertheless, particular statutes restrict the court’s discretion in issuing judgments to medium or moderate prison sentences. The court can only hand down a high sentence enhancement when aggravating circumstances like violence exist.
Conversely, the judge can impose a low or moderate sentence augmentation if your attorney at Darwish Law convinces the court that mitigating factors exist in your case. Your defense attorney can maintain that you were not sober when you committed the baseline crime or had previously been abused, which triggered you to engage in the felony offense. If these circumstances exist in your case, your criminal defense attorney can petition the court to drop the prosecutor's proposed gun sentencing augmentation charges.
The elements in exacerbation or mitigation can link to the offense or you. Those concerning the baseline crime are:
- If your offense was harsh or vicious.
- Whether an active or silent principal or participant.
- The preparation and complexity of the felony.
Mitigating factors include:
- Previous criminal history.
- A record of violent behavior.
- You voluntarily confessed to the criminal behavior in the early stages of the case investigation or prosecution.
Gun Offenses Penalty Augmentation Under PEN 12022 Sections
PC 12022 lists various offenses that can face enhancement when you, the defendant, utilize or carry a firearm at the scene. Each section has unique elements that the prosecutor must demonstrate, including direct involvement in criminal activity. The primary gun offenses that attract augmentation are:
Having a Gun While Committing a Felony
You will face sentence augmentation charges under PEN 12022 if you engage in a felony offense while equipped with a gun or deadly armament. A dangerous weapon or deadly armament in PEN 12022 refers to weapons other than guns. Therefore, because PC 12022 only addresses firearms, your sentence can only be enhanced if you possess a gun.
If convicted of sentencing augmentation under this statute, you will face the penalty for the baseline felony conviction plus extra and concurrent imprisonment. The additional prison sentence is twelve months for having a gun when committing a felony.
When the baseline felony is PEN 215 (carjacking or trying to carjack), you will face additional and uninterrupted prison sentences of 12, 24, or 36 months. If the weapon in your possession is a machine gun or assault weapon, you face further and consecutive thirty-six months in prison. You should understand that a PEN 215 violation is a violent crime involving removing a car owner from their automobile using force. Again, you use the firearm to stop the vehicle and order the owner out forcibly. Sometimes carjackers even fire at the victims, causing death, to prevent them from escaping.
Felony drug crimes also face enhanced sentences under PEN 12022. If you are involved in the controlled substance business, you will likely have a gun to enhance the transportation, distribution, and sale of narcotics. Also, if you are guilty of a drug crime, chances are you are a criminal gang member and are likely to carry the gun around in furtherance of the criminal gang activities. The drug offenses include Health and Safety Code (HS 11351), which addresses drug possession with intent to sell, and HS 11352, which focuses on drug transportation, distribution, or sale. If you were furnished with a weapon when engaging in any of these offenses, you would face an extra, uninterrupted thirty-six, forty-eight, or sixty months in state prison.
And when you were not individually carrying the gun but were aware your principal or accomplice had one, you face an additional and consecutive twelve, twenty-four, or thirty-six months of prison incarceration.
Having a Gun or Bullets Designed to Penetrate Metal
According to PEN 12022.2, you face sentencing augmentation if you engage in a felony by having a gun and on your immediate person ammunition or bullets designed to penetrate armor or put on a body vest or any ammunition-resistant material in a felony commission for trauma protection.
If charged and found guilty of having metal-piercing bullets when engaging in a felony, the judge will augment your sentence with an additional and uninterrupted thirty-six (36), forty-eight (48), or one hundred and twenty (120) months of prison incarceration.
If factors in exacerbation or mitigation are absent in the case, PC 12022.2 is punishable by an extra forty-eight months. Otherwise, the judge decides the sentence to impose and must logically explain their decision. The prosecutor will present their evidence to compel the judge to impose a more prolonged sentence enhancement. Thankfully, your attorney at Darwish Law will be available to present evidence to counter the prosecutor’s assertions for a charge reduction or dismissal.
Wearing a body vest at the time of the violent felony is also subject to sentence enhancement. You will face an additional and uninterrupted twelve, twenty-four, or sixty months of prison incarceration. Unless aggravating and mitigating circumstances are present in your case, the judge must impose an additional twenty-four months. Once both sides have given their reasons for a reduced or long sentence enhancement, the judge will give a verdict and explain the reason for the particular enhancement.
Utilizing a Firearm to Commit a Sex Offense
PEN 122022.3 criminalizes the possession or use of a gun in a sex crime. The sex offenses subject to sentence augmentation under this section include rape, sodomy using force, and lascivious acts with a minor.
Engaging in a sexual offense under PEN 12022.3 does not stop when the sexual act ends. The commission of the offense is deemed to continue if you maintain control over the victim. Therefore, even if you only displayed or brandished your gun after the sexual conduct, you will still be deemed to have used the firearm to engage in a sex crime.
If the court finds you guilty of a PEN 12022.3 violation, you will face further and sequential sentences of twelve, twenty-four, or sixty months in prison for being equipped with a firearm and 3, 4, or 10 years for utilizing the firearm.
Providing or Trying to Furnish or Provide Another with a Gun While Committing a Felony
PEN 12022.4 prohibits you from furnishing or trying to furnish a gun to a principal or partner to engage in a felony. You do not have to be physically present to be convicted under this section when the offense is committed. The prosecutor needs to show that you furnished another person with a firearm before they committed a felony offense in a continuous transaction.
Per this statute, you face a 12, 24, or 36 months additional prison sentence. The default enhancement sentence under this section is two years, although it could be increased or lowered depending on the circumstances of the exacerbation or mitigation present in the case.
Personally Using a Firearm to Commit a Felony
Under PEN 12022.5, you will face sentence enhancement when you individually use or try to use a gun to engage in a felony. Individually using a gun means knowingly hitting another party with a gun, deliberately firing a firearm, or brandishing a gun threateningly or menacingly.
Sentence enhancement in this section exempts felony offenses whose central crime element is individual firearm use. If sentence enhancement is allowed, it could create double jeopardy because you would face more than one enhancement, violating your constitutional rights.
Nevertheless, PEN 12022.5 applies to felony offenses like murder, which can be accomplished with or without a firearm. If murder was to be subject to a firearm sentence enhancement, you could face penalties for the crime and gun utilization. Sentence enhancement under this section applies to felonies, including those achieved without utilizing a firearm, including:
- Homicide committed in a drive-by shooting.
- Assault using a gun.
These offenses appear as if they involve the utilization of a firearm, but the truth is that they do not. Accomplice liability statutes in California are felonies, and you could be convicted even when you only encouraged or aided someone to commit the felony but never used a firearm. The penalties of a felony do not require you to utilize a firearm. Therefore, when you engage in a PEN 187 or PEN 245 (a)(1) violation using a gun, you will be guilty under PEN 12022.5. When the court finds you guilty of the violation, you will face additional and sequential 3, 4, or 10 years of prison incarceration on top of the baseline felony sentence.
And when you use an assault rifle to accomplish the crime, you will face a sentence enhancement of 60, 72, or 120 months of prison incarceration on top of and following the penalty for the underlying felony.
Individual Utilization of a Gun in a Serious Felony
Pen 12022.53 allows for sentence augmentation when you individually utilize a gun to commit a serious felony offense like murder, rape, mayhem, robbery, or kidnapping. If the prosecutor can prove any serious felonies were committed using a gun, you will face an additional and sequential one hundred and twenty months of prison incarceration. If you shoot the gun, the enhancement will be twenty years of prison incarceration. If someone was injured or lost their life in the shooting, you will face additional and uninterrupted 25 years to life incarceration on top of the sentence for the original felony.
Defenses for Gun Sentence Enhancement Charges
Your defense attorney can present several defenses to prevent gun sentence augmentation. Therefore, consider enlisting one to help you avoid staying longer in prison. An experienced attorney will argue that:
- The arresting officers engaged in misconduct.
- You never personally used the gun.
- You are innocent of the underlying felony crime.
- The gun was found in an illegal search.
The defenses to be applied in your case depend on the surrounding circumstances. Therefore, discuss your case’s circumstances with a knowledgeable defense attorney.
Find an Experienced Defense Attorney Near Me
Gun sentence enhancements can lead to prolonged stays in prison. With legal counsel, you will find it easier to contest the charges against you and to compel the judge to drop the sentence enhancement charges. An attorney who understands gun offenses can help you avoid the additional sentence. At Darwish Law, we are devoted to defending you against PEN 12022 violation charges in Santa Ana, CA. Call us today at 714-887-4810 to schedule an appointment.