Sentencing Enhancement for Use of a Gun

“USE A GUN AND YOU’RE DONE”
SENTENCING ENHANCEMENTS FOR USING A FIREARM DURING THE COMMISSION OF A FELONY.

If you are convicted of a felony in which you personally used a firearm, you may be subject to a penalty enhancement that could tack on additional years to your prison sentence for the underlying crime during which you used the firearm. Known as the 10-20-life firearm enhancement, the use of a gun can add substantial time to a prison sentence. This sentence is served consecutive to the sentence for the underlying crime.

Simply displaying a firearm during the commission of the crime – whether that firearm is loaded or not or even operational or not – can add 10 years to your sentence. (Penal Code Section 12022.53, subd. (b).) Intentionally discharging a firearm during the commission of the crime tacks on a sentence enhancement of 20 years. (Penal Code Section 12022.53, subd. (c).) And, finally, if the intentional discharge of the gun caused great bodily injury or death to a person (other than an accomplice), the enhancement is 25 years to life. Only the most severe penalty will apply. Thus, someone who displays a gun, intentionally fires it, and injures a victim would be subject to the 25 years to life enhancement, not 10 years plus 20 years plus 25 years to life.

If there are multiple victims of the crime, the enhancement may be applied for each victim. The California Supreme Court held that a defendant convicted on two counts of assault where a single shot hit the intended victim but also injured another person, may be sentenced to two 20 year sentence enhancements. (In re Tameka C. (2000) 22 Cal. 4th 190, 195-198.)

This sentencing enhancement applies only to the person who used the gun in commission of the crime, not to an accomplice, if that accomplice did not have a gun. There is, however, an exception: if the crime was a gang crime, the sentencing enhancement applies to all participants in the crime.

The felonies to which this sentencing enhancement apply are murder, mayhem, kidnapping, robbery, carjacking, some assault crimes, rape and other sex crimes, and any felony punishable by imprisonment for life. Except for assault crimes, the sentencing enhancement also applies to the attempt to commit any of these crimes. While an experienced Orange County criminal defense attorney may be able to negotiate a term of probation in lieu of incarceration upon conviction on some of these crimes, if a firearm is used, the judge is prohibited, pursuant to this statute, from granting a term of probation or suspending the enhanced sentence. In other words, using a gun during commission of any one of these felonies means there no “get out of jail free” card available in the deck.

However, the court does have the discretion to strike or dismiss the enhancement “in the interest of justice.” The “interest of justice” is a rather nebulous term and often depends upon the perspective of the judge. Some examples of where there may be an interest of justice are where there is weak evidence, where the court finds the sentence extreme for the actual circumstances of the crime, or where dismissal of the enhancement is part of a plea bargain.

Not Guilty of the Underlying Felony: If your Orange County gun sentencing enhancement defense attorney is successful at having the underlying felony charge dismissed or reduced to a felony that is not subject to this sentencing enhancement, you will not be subject to this enhancement. Let’s say you are charged with kidnapping and your Orange County criminal defense attorney negotiates a plea bargain allowing you to plead guilty to a lesser charge, such as false imprisonment, you will no longer be subject to the sentence enhancement because false imprisonment is not one of the felonies to which this sentence enhancement applies.

Personal Use: One potential defense is that you did not “personally” use the firearm. In order to prove this sentencing enhancement, the prosecution must show that you intentionally displayed the weapon in a menacing manner or you intentionally struck a person with the firearm or you intentionally fired it.

Menacing Manner: Adjacent to the personal use requirement, another defense is that you did not display the firearm in a “menacing” manner. However, displaying a firearm in a menacing manner does not necessarily require that you waive or point the gun; it is enough to indicate the presence of the gun and intimidate the victim by referring to the presence of the gun. For example, holding a gun by your side and verbally telling the victim that you have the gun and you might use it if the victim does not cooperate has been interpreted by the courts as menacing. On the other hand, if you are carrying a weapon that the victim does not see and you make no threats to use the weapon, even if it is on your person, your gun sentence enhancement defense lawyer will argue that you did not display the weapon in a menacing manner.

Intentional use: In order to prove the enhancement, your personal use of the firearm must have been intentional. If, by way of example, you were holding a gun by your side during the commission of the crime and a good Samaritan witnessing the crime, tackles you causing the gun to fire, you did not intentionally cause the gun to fire and therefore you have a defense to the enhancement.

During the Commission of the Crime: The enhancement applies to use of the firearm during the commission (or attempted commission) of the crime. The courts have described this as having a “facilitative nexus” to the crime. ( People v. Bland (1995) 10 Cal.4th 991, 1002.) So, say you committed a crime without the personal use of the firearm but upon leaving the scene, you turn to the victim, pull a gun out of your pocket (previously unseen by the victim), and wave it in the air as you walk away. Even though this might be seen as a threat (using the gun in a menacing manner), the crime was already completed and thus the gun was not used to threaten or control the victim during the commission of the crime.

Court Discretion: Your gun enhancement sentencing defense attorney will argue that the interest of justice demands dropping the enhancement. This is not always a successful strategy, but if the circumstances of the crime and/or factors applying to the defendant indicate this application of the court’s discretion, the enhancement might not be applied.

ORANGE COUNTY FIREARM SENTENCING ENHANCEMENT DEFENSE ATTORNEY
WILLIAM WEINBERG CAN HELP!

If you are facing felony charges where the prosecution is also alleging that you used a gun during the commission of the crime, Orange County criminal defense attorney William Weinberg is the advocate you want by your side. He has many years of experience defending criminal and gun charges in the Orange County courts and has a proven record of achieving the best outcome for his clients.

Attorney Weinberg is available for a complimentary consultation where he will review the charges against you and offer his advice regarding your best defenses. You may contact Mr. Weinberg at his Irvine office at 949-474-8008 or by emailing him at bill@williamweinberg.com.