Firearm Enhancement Attorney
UPDATE – there is a new change in this law effective January 1, 2018. The court is now allowed to strike this enhancement in the interests of justice, pursuant to the newly enacted Penal Code section 12022.5(c).
Penal Code sections 12022.5 and 12022.53, commonly known as the Gun Enhancement or Firearm Enhancement, can increase a sentence if a firearm was used during the commission of the offense. Penal Code section 12022.5 adds an additional and consecutive 3, 4 or 10 years where a firearm is personally used during the commission or attempted commission of any felony. Penal Code section 12022.53 adds an additional and consecutive 10 years where a firearm is personally used during the commission of certain felonies, including:
- Murder, Penal Code section 187
- Mayhem, Penal Code section 203 or 205
- Kidnapping, Penal Code section 207, 209 or 209.5
- Robbery, Penal Code section 211
- Carjacking, Penal Code section 215
- Assault with Intent to Commit a Specified Felony, Penal Code section 220
- Assault with a Firearm on a Peace Officer, Penal Code section 245(d)
- Rape, Penal Code section 261 or 262
- Rape or Sexual Penetration in Concert, Penal Code section 264.1
- Sodomy, Penal Code section 286
- Lewd Act on a Child, Penal Code section 288 or 288.5
- Oral Copulation, Penal Code section 288a
- Sexual Penetration, Penal Code section 289
- Any felony punishable by death or life imprisonment
If a defendant “personally used” a firearm during the felony, then an additional consecutive term of 10 years state prison is added, pursuant to Penal Code section 12022.53(b). If the firearm was discharged during one of these felonies, then an additional consecutive 20 years state prison is added, pursuant to Penal Code section 12022.53(c). If the defendant personally and intentionally discharges a firearm during one of these felonies and causes great bodily injury or death, then an additional consecutive 25 years to life in state prison is added, pursuant to Penal Code section 12022.53(d). This last section applies not only to the felonies listed above, but also to Penal Code section 246 and Penal Code section 26100(c) or (d), which are all crimes that relate to “drive-by shooting”.
Normally, this enhancement only applies to a person that “personally used” the firearm. However, the enhancement can be applied to any gang member involved in the felony if the defendant is convicted of Penal Code section 186.22(b) AND some other principal violated Penal Code section 12022.53(b), (c) or (d). However, a defendant cannot be given both the personal use of a firearm enhancement and the gang enhancement, unless the defendant was the one who personally used or personally discharged the firearm during the commission of the felony.
This enhancement used to be especially dangerous because in the past, a court could not strike the enhancement or stay the punishment. Furthermore, the court cannot grant probation if the enhancement is found to be true. The only way the enhancement could have been removed in the past is if the District Attorney’s office drops the enhancement pursuant to plea negotiations or the enhancement is found not to be true after jury trial. However, the California Legislature, realizing that so much power should not rest in the hands of the DA, amended both laws. Now, the court has the power to strike or dismiss Penal Code sections 12022.5 or 12022.53 in the interests of justice. This is a huge change in the law that greatly benefits defendants accused of this enhancement.
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