Violent crimes attract severe punishment under the law. The judge can enhance your sentence under specific circumstances, including if you had a gun when committing a felony. A sentencing enhancement means receiving a longer prison sentence than you would for a felony. It subjects you to a longer prison time, whereby you serve the two sentences consecutively (with the penalty for the felony).

Understanding sentencing enhancement and how it affects your case without legal help is challenging. We recommend our services at California Criminal Lawyer Group if you face gun-related charges in Bakersfield. In addition to streamlining your legal process, we can use the best legal defense strategies to ensure you obtain a favorable result for your case.

How Does the Firearm Sentencing Enhancement Law Work?

The judge considers several factors in determining whether they should impose a firearm sentencing enhancement on your case. These factors are:

Your Case's Circumstances

You will receive an enhanced sentence if you had a firearm when committing a felony. Therefore, you will receive an additional prison sentence to serve consecutively with the punishment for the felony.

The prosecutor must charge the underlying felony by proving all its elements and the sentencing enhancement. The additional penalty you receive depends on the following:

  • If you had a deadly weapon when committing the offense.
  • If you used the gun or had a dangerous weapon during the commission of the felony.
  • The type and gravity of the felony—for example, your additional sentence will be stiffer if the felony is a severe sex crime, drug crime, or violent offense (like kidnapping, rape, or murder).

If the Case Deserves Two or More Enhanced Sentences

Some cases call for multiple additional sentences. In that case, the court will sentence you to an enhancement with the longest possible prison sentence. Judges have three options: low-term, middle-term, or high-term. They have absolute discretion to determine a sentence based on the details of your case and your criminal history.

However, some enhancements require the judge to impose a middle-term sentence, except in the presence of aggravating or mitigating factors. Aggravating factors will result in a longer prison sentence. Mitigating circumstances will result in a shorter prison sentence or a zero enhancement. Here are examples of aggravating or mitigating circumstances the court considers in your case:

  • How vicious or cruel the offense was.
  • Whether you passively or actively participated in the violation.
  • If the offense was planned or sophisticated.
  • If your criminal history is serious.
  • If you demonstrate a prior record of violence,
  • If you willingly admitted to doing wrong during the crime investigation.

Committing a Felony When Armed

You will be subject to sentencing enhancement if you committed a felony with a gun or used a gun (or any other dangerous weapon) to complete the offense. Even if you did not use a gun, the judge would consider the type of weapon you used to commit the crime. In this case, the court will sentence you under PC 12022. Your penalties will include the following:

  • Penalties for the felony.
  • An additional prison sentence to serve consecutively with the penalties for the felony.

If you did not use a firearm to commit a felony, you will face a basic enhancement of twelve months for having a dangerous weapon when committing a felony.

If the felony offense is carjacking, or you attempted to carjack another person, you will receive an additional penalty of up to three years.

If you had an assault rifle, machine gun, or BMG rifle when committing a felony, you could receive three more years on top of the underlying prison sentence.

Committing some drug offenses when armed with or using a gun will attract a more severe enhancement. Here are examples of these drug offenses:

  • Possessing controlled drugs for sale, a violation of HS 11351.
  • Selling or transporting controlled substances, a violation of HS 11352.

If you had a weapon when committing any of those drug offenses, your enhancement would include five more years to the underlying prison sentence. If someone else used a firearm and you knew that they had a deadly weapon, your enhancement will include up to three years in prison.

Sentencing Enhancement for Possessing Ammunition under PC 12022.2

You will receive an additional and consecutive sentence under this law if you committed a felony with a firearm and had ammunition in your immediate possession that could penetrate metal or armor. According to this law, the enhancement will also apply if you wear a protective body vest when committing a violence-related felony.

A protective vest is a material worn to protect against trauma or ballistics. It is bullet-resistant.

If a jury finds you guilty of having metal- or armor-penetrating ammunition when committing a felony, your enhancement will include an additional three-to-ten-year prison sentence. Remember that you will serve the additional sentence consecutively with the punishment for the felony. Without aggravating or mitigating circumstances, the judge can add four years to the felony sentence. But judges decide the additional punishment at their discretion.

If you had a protective body vest while committing or attempting to commit a felony, you could receive an additional one to five years on your felony sentence. The judge could give you two more years without aggravating or mitigating factors. But judges have the final say in determining the additional penalty you receive based on your case details and criminal history.

Possessing or Using a Gun To Commit Particular Sex Crimes

Judges impose additional sentences under PC 12202.3 for defendants who commit some sex crimes when armed or using a gun. Examples of sex offenses under this statute include:

  • Rape, as detailed under PC 261.
  • Forcible sodomy, as described under PC 286.
  • Lewd acts with a minor, as described under PC 288.

Note that committing a sex crime does not end when you complete the sexual act. It goes on, provided the victim remains under your control or threat. Thus, you could be subject to sentence enhancement even if you do not threaten the victim with a gun until after you have committed the sexual offense.

The court will add one to five years to the penalty for the sex crime if you commit the sex crime with a gun. But if you had a gun when committing the offense, the enhancement will include an additional prison sentence of three to ten years.

Sentencing Enhancement For Providing a Firearm For a Felony under PC 12022.4

It is an offense to furnish another person with a gun they can use when committing a felony. If you give them a gun, knowing very well that the person will use it to commit a felony, you will be subject to a sentence enhancement. Note that you do not need to be there when the person commits a felony to face charges under this law. What matters is that you provide them with a firearm before they commit a felony offense. It means that your action is connected to the actual commission of a crime.

The court will add a maximum of three years to the underlying sentence if you furnish a person with a gun to use in a crime. Typically, judges give a middle-term punishment of two years without aggravating or mitigating factors.

Sentencing Enhancement for Personally Using an Assault Rifle, Firearm, or Machine Gun in Committing a Felony under PC 12022.5

The court will impose an additional sentence if you use a dangerous weapon when committing or attempting to commit a felony. The ‘personal use of a firearm’ as used in this statute means you deliberately:

  • Displayed the gun menacingly.
  • Discharged or fired the weapon.
  • Used the weapon to attack another person.

The prosecutor must demonstrate the use of a firearm as an aspect of your crime. But this enhancement mainly applies to offenses you can commit using or without a firearm. For example, you can murder even without a gun or any other dangerous weapon. If that is the case, the prosecutor will charge you for murder and also for committing the crime using a gun.

This enhancement affects all felony crimes that do not require a dangerous weapon to be accomplished. For example, assault by a firearm, as under PC 245(a)(1), must be performed with a gun, so it is a complete offense on its own and does not require a sentence enhancement. But if you aided or abetted the commission of that crime, you will be subject to a sentence enhancement under a different statute.

Note: You are guilty of a felony under the law for aiding or abetting a felony. It means you could face felony charges if you aid, encourage, or facilitate another person to commit a felony. Thus, you could be guilty of assaulting a person using a gun or drive-by shooting even if you did not use a gun to commit the offense. 

But sentencing enhancement, according to this statute, requires you to have personally used a deadly weapon to accomplish a felony. If that is the case, you will receive an additional three- to ten-year sentence to serve consecutively with your punishment for the underlying felony. But if you committed the offense with an assault rifle or machine gun, the minimum enhancement sentence could increase to five years.

Sentencing Enhancement for Committing a Grave Felony Using a Gun Under 12022.53

You will receive a stiffer enhancement to your sentence if you had a gun when committing a grave felony like kidnapping, murder, mayhem, rape, or robbery. The prosecutor considers the severity of your actions to decide the sentencing enhancement to charge you with. The court will also review the details of your case to impose an additional sentence. For example:

  • An additional ten-year sentence for gun use.
  • An additional 20-year sentence for discharging a gun.
  • A further 25-to-life imprisonment for causing a serious injury or the death of another using a gun.

Remember that the enhancement adds to your punishment for the felony. You will serve the two sentences consecutively.

Additional Information on Firearm Sentencing Enhancement Law

When imposing additional penalties for committing a felony using a gun, judges do not consider whether the firearm in your possession was operable. You can receive an additional sentence even for using or possessing a gun that does not work. What matters is that your weapon is built to shoot and reasonably looks capable of shooting. Similarly, the prosecutor will file sentencing enhancement charges even if the firearm is unloaded.

The law has a double jeopardy provision in the 5th Amendment that prohibits more than one penalty for one crime. The judge will not give an additional sentence for firearm use if the punishment for the felony already penalizes the use or possession of a firearm. If one of the elements of the felony is gun use, you will only be sentenced for the felony. For example, if the jury finds you guilty of brandishing a firearm, the penalty for that offense already covers the use of a firearm to commit a felony. The judge will not give an additional sentence for that.

But sentencing enhancements will apply to cases that do not require firearm use. For example, you can murder using a gun or without it. Using a gun to commit murder subjects you to sentencing enhancement.

Additionally, you can only receive one enhancement per offense. If your offense requires two or more additional penalties, the court will impose the enhancement with the longest sentence.

The law has two main types of sentencing enhancements:

  • Those triggered by the characteristics of the defendant.
  • Those triggered by the facts of the crime.

Since the two types of enhancements punish different elements of a crime, the judge can sentence you to both for one felony. For example, if you use a firearm in the commission of a felony and you are a member of an outlawed street gang, you will possibly receive two types of sentence enhancements. First, the court will impose a gang sentencing enhancement for your association with a criminal street gang. Second, the court will impose a firearm sentencing enhancement for committing a felony using a gun.

Note that the gang enhancement will still apply even if you did not commit the felony with a gun. The prosecutor has a different set of elements to prove a gang enhancement and a firearm enhancement charge. Thus, the judge will not violate the double jeopardy provision by imposing both enhancements in one case.

Additionally, your conviction could result in a government declaration that your gun or dangerous weapon is a nuisance. When that happens, the police have the right to take the gun from you.

Defending Yourself Against a Firearm Sentencing Enhancement Charge

Facing charges for a felony offense is severe, as it could result in lengthy prison time and a hefty court fine. Your sentence increases significantly if you commit or attempt to commit a felony with a dangerous weapon. Charges for firearm sentencing enhancements should worry you because of the likely lengthy prison sentences.

You should find a skilled criminal attorney to help you with your case and defense. That way, you could avoid the enhancement charge or a severe penalty after conviction. Fortunately, a competent criminal lawyer can use one or more legal defense strategies to obtain a fair outcome for your case. Some of the best strategies that could apply in your case include:

Fighting the Felony Charge

Remember that firearm sentencing enhancement applies in cases where you commit a felony using a gun or any other dangerous weapon. A skilled criminal lawyer can start by establishing ways to challenge the underlying charges. Without a felony conviction, the prosecutor cannot file charges for sentencing enhancement.

The prosecutor must demonstrate all the elements of the felony offense for the court to deliver a guilty verdict. If that does not happen or your attorney fights one or more elements, the judge can dismiss the underlying felony and sentencing enhancement charges altogether.

Your attorney can also use other strategies to challenge the underlying charges. For example, they can argue that you were defending yourself or another person in the case of a violent felony charge. If you are falsely accused, your attorney can provide evidence and eyewitness testimony to demonstrate your innocence in court. If you fight the underlying felony, the court will dismiss all charges against you.

You Did Not Use a Firearm

Sometimes, the judge will not give you an additional sentence after a felony conviction unless you use a weapon to commit the offense. For example, PC 12022.5 requires you to use an assault rifle, machine gun, or firearm to commit a felony, or PC 12022.53 requires you to commit a grave felony using a gun to face an enhancement charge. If your charges fall under any of these two categories, your attorney can argue that you personally used a firearm. That could compel the judge to dismiss your enhancement charge.

Remember that the prosecutor must demonstrate that you personally used a dangerous weapon to commit the felony. If the facts of the case are unclear about the person who used the firearm, your attorney can take advantage of that to weaken the prosecutor’s case. The court will dismiss your enhancement charge if there is no solid evidence that you personally used a gun.

The Police Misconducted Themselves

Police misconduct during and after arrests is widespread. Law enforcement officers have a set of guidelines they must follow when conducting arrests and crime investigations. For example, an officer must carefully handle a suspected offender, even if they have compelling evidence against the offender. Police harassment is not allowed, even when a suspect is resisting arrest.

Your attorney can cite police misconduct if you feel the police did not handle you or your case as they should. For example, if an officer tricked or coerced you into admitting to using a gun in the commission of a felony, In that case, the court will dismiss your enhancement charge.

A skilled attorney can use this defense strategy to compel the judge to dismiss one or both charges. For example, if the police misconduct happened during an arrest or crime investigation.  The arresting officer could have lied in their report about the underlying felony or forced you to confess to it. In that case, the court will dismiss all charges against you.

The Search or Seizure Of the Firearm Was Illegal

Obtaining evidence through an unlawful search or seizure is against the law. Sadly, the police do this all the time. The law requires officers to obtain a valid warrant and adhere to its provisions when investigating a crime.

 If the officers searched your person or property without a warrant and seized a weapon you are alleged to have used to commit a felony, your attorney can fight it in court. In this case, the court will dismiss all evidence gathered against you through the illegal search or seizure. It leaves the prosecutor with insufficient evidence to support your charges. For example, if the discovered weapon was solid evidence that you committed a felony, the judge can dismiss the underlying felony charge.

Remember that the prosecutor requires irrefutable evidence to obtain a guilty verdict in a felony case. Otherwise, the court will dismiss all charges against you.

Find an Experienced Criminal Lawyer Near Me

Are you or your loved one facing firearm sentencing enhancement charges in Bakersfield?

Committing a felony is, itself, a serious matter. Using a gun in the commission of a felony can result in additional penalties under the firearm sentencing enhancement laws. A skilled attorney can help you understand how the enhancement law impacts your case and your options if you face gun-related felony charges.

We handle all kinds of gun-related cases at California Criminal Lawyer Group. Thus, we have the information you need to understand what to expect after your arrest. We can streamline your legal process and use the best legal defense strategies to compel the court to dismiss or reduce your charges. You could obtain the best possible outcome with our assistance. Call us at 661-750-8230 to learn more about sentencing enhancement laws and our services.