Committing a crime often involves several different elements that may include the possession of a firearm to aid in your operations. Most defendants arrested for breaking the law often have to face several sentencing modifications, depending on each case’s circumstances. Among the conditions brought under consideration is the possession of a gun at the time of committing the illegality. Additionally, the prosecutor will attempt to prove that the weapon had a purpose to aid in your unlawful operations, based on the evidence he/she collects during an investigation. Subsequently, if you are guilty of the crimes charged against you, the prosecutor will link your usage of the gun in the criminal activity, to persuade the presiding judge to issue a sentencing enhancement. A firearm sentencing enhancement will depend on the type of gun used, the crime you committed in possession of the firearm, as well as whether you caused severe bodily harm to any victim of your actions.

A firearm sentencing enhancement attracts very severe penalties that may extend your jail sentence. Typically, the presiding judge offers you an opportunity to defend yourself before issuing the final verdict. You can present several arguments to deter the information given by the prosecutor to avoid the possibility of facing a sentence enhancement with the help of a well-experienced criminal defense attorney. At the Orange County Criminal Defense Attorney Law Firm, you will receive exceptional legal defense services to prevent a firearm sentencing enhancement. Our dedicated team ensures that your needs come first by providing a personalized approach to handling your case.

Defining a Firearm Sentencing Enhancement

For a defendant to face any sentencing enhancement penalties, the prosecutor must first prove that the accused was guilty of committing a felony by demonstrating that all the elements of the crime were present. Each case differs based on the charges that the defendant is facing. Moreover, if your felony crime involved the use of a gun or any other lethal firearm, you will face additional jail sentence penalties that add to the punishment issued on the baseline crime committed. Thus, a sentencing enhancement involves receiving additional prison time for the extra element of possessing or using a firearm to accomplish a crime.

For example, if you used a gun to intimidate a driver during a carjacking incident, you will receive an additional sentence for a gun to move the victims out of the car. Also, you will receive several other years to your prison sentence to use a firearm in committing the crime of carjacking. It is important to note that the sentencing enhancement is issued exclusively for unlawful actions amounting to a felony, primarily because of the severity of such a move.

Since the prosecutor must first prove that you are guilty of the baseline crime, the sentencing enhancement regulations and penalties differ depending on the illegality you were involved in. The provisions for specific felonies coupled with a gun are found in several sub-sections of the California Penal Code, with the main stipulation being section 12022.

The following are the listed felonies that will attract a firearm enhancement sentence if you possessed or used a gun during the unlawful activities:

  1. Gun Possession During the Commission of a Felony

Anyone found guilty of committing a felony will risk facing additional penalties if he/she possessed a firearm during the commission of the crime. However, the prosecutor must follow the legal provisions that require him/her to satisfy the elements of the crime you face charges for before the judge can proceed to decide whether you qualify for a sentencing enhancement.

The first element that the prosecutor must prove is that you committed an unlawful action that amounted to a felony. In this case, the prosecutor carries the burden of proof to demonstrate the criminal intent and illegal activities you engaged in, depending on the crime. For example, if you face robbery charges, the prosecutor must show that you broke into someone’s dwelling and used the gun to commit the theft. Additionally, the prosecutor must prove the direct link of your gun possession to the offense in question. Therefore, he/she may infer the use of the gun based on the activities you engaged in. Overall, the prosecutor needs to show that you had an application for the weapon, regardless of whether you ended up using it.

If the prosecutor succeeds in proving beyond a reasonable doubt you committed the felony, you will be eligible for the firearm sentencing enhancement based on the particular characteristics of the crime. The first step in sentencing involves the judge issuing a base sentence for the offense committed. Thus, you will receive your penalties and fines, if any, that you must serve accordingly. The judge then moves on to issuing the enhancement for your possession of a gun.

You also need to note that the gun does not need to have been functioning when you possessed it, as long as the prosecutor can prove that it could shoot bullets and cause potential harm. Moreover, the prosecutor does not need to illustrate further whether the gun had bullets, as long the underlying intention or purpose for the gun would continue, especially if you possessed it to intimidate others when committing the crime.

On average, most defendants receive an additional one-year enhancement for gun possession when committing a felony. However, the type of weapon you possessed during that period may affect your increase significantly. For example, owning a lethal shotgun instead of the common pistol, you could receive an additional year enhancement, mainly because the shotgun is likely to cause more harm if engaged. Subsequently, possessing a more lethal weapon will attract three years to your sentencing enhancement, issued at the judge’s discretion.

Moreover, the activity you engaged in may attract more severe enhancements, especially because some crimes pose more threats and disparities to the general community. Therefore, crimes that involve selling or distribution of schedule I drugs, while possessing a gun may attract up to a five-year sentence enhancement. Such an addition will be detrimental to you, primarily because of the high penalty range for drug crimes. In total, you may end up receiving a jail sentence of over forty years.

Lastly, the judge will also consider whether you tasked another person with carrying the weapon for your use, to try and shift the liability on the third party in case of arrest. Such a scenario arises when you engage in a gang operation, whereby one person holds the gun for another, in case of any impending opposition from the authorities. If such were the case, you would face an enhancement of up to three years because of the valid assumption that the gun was available for your use, if need be. 

  1. You Used a Gun to Commit a Felony

Like the previous provision, you will face a sentence enhancement for using a gun to commit the felony. In this case, the difference is that under section 12022.5 of the Penal Code, you must have used the firearm and not merely possessed it during the unlawful activity. Consequently, the prosecutor must show that you manipulated the gun to help you undertake the illegal actions you engaged in. Moreover, you should note that the prosecutor has the mandate to present evidence, even if you did not manage to use the gun, as long as there was a guilty attempt to use the gun when engaging in the crime.

One of the actions that amount to gun use is the display of the gun to a victim, to try and scare him/her into complying with your demands. Since such an action amounts to threats and coercion, the prosecutor will be successful in showing that the gun was useful to your operations.

Also, firing the gun will attract a sentencing enhancement, even if you fired as an attempt to aim at someone, or merely as a warning shot to enable access to undertaking your unlawful actions. Using the gun to hit someone counts as putting the gun to use, since you will have inflicted pain and apprehension on the victim of your actions. Thus, the question of engaging the weapon and firing it is immaterial in this case, as long as hitting another person using the firearm helped you accomplish an illegal action.

For any possible circumstance that results in gun use, you will face a ten-year sentencing enhancement, on top of the penalties issued for the baseline crime. However, the increase varies depending on what you used the gun for, and whether it resulted in the injury of a victim. You will receive up to twenty years of enhancement for firing a weapon, primarily because your actions may have put a lot of people in danger. Moreover, you will be eligible for an additional twenty-five years on top of your baseline sentence if your gun use resulted in the grievous bodily harm of a victim.

Significant bodily harm consists of any injuries that can be life-threatening, including damage to vital organs like the brain, lungs or heart, excessive blood loss. Significant physical injury may also result in the permanent disfigurement of a victim. Owing to the non-reversible danger exposed to the victim, the judge may decide to impose the complete enhancement of twenty-five years. However, your criminal defense attorney can raise several defenses to reduce your sentencing enhancement significantly.

  1. Possession of a Gun During the Commission of a Sex Crime

Most sex crimes fall under the category of felony charges because of the severity of actions committed. Consequently, if you possessed a gun or used it to effectuate your actions, you will receive an enhanced sentence for the crime because of gun possession/use, following section 12202.3 of the Penal Code. Some of the sex crimes that attract felony charges include:

  • Performing forced oral copulation
  • Engaging a minor in lewd conduct
  • Raping someone
  • Performing sodomy

In most cases, the defendant used the gun to coerce his/her victim into sexual activities, which is a violation of the victim’s human rights. Before receiving the sentence enhancement, the prosecutor must prove that you performed the sexual offenses voluntarily by showing that you had a deliberate intention. It is also essential for the prosecution to prove that you possessed the gun and intended to use it if the need arose. For example, you may have displayed the weapon to your victim to coerce him/her into giving in to your demands. Alternatively, the prosecutor may prove that you fired the gun several times to hold the victim down as he/she tried to escape. When such evidence is introduced in court, the prosecutor will advocate for the need to add sentencing. Despite the prosecutor’s claims, your defense lawyer will help you counter such claims by introducing defenses for your actions.

Moreover, the prosecutor will include several evidential sources like the victim’s testimony as well as any witness statements to prove your engagement in the unlawful behavior beyond a reasonable doubt. Without establishing your guilt satisfactorily, you may not receive the sentencing enhancement, as it would be based on insufficient evidence that leaves room for doubt.

  1. You Possessed Bullets that Penetrate Metal or Wore a Bulletproof Vest

Committing a felony in possession of bullets that can pierce metal or armor will also lead to a firearm sentencing enhancement if you are guilty of the crime under section 12022.2 of the Penal Code. Alternatively, you will qualify for the same enhancement penalties under this section for wearing a bulletproof vest during the commission of the felony.

Subsequently, during your trial hearings, the prosecutor will introduce evidence to prove the exact nature of the vest or bullets you are accused of possessing. It is paramount for the prosecutor to present the evidence in court because it is the basis of your conviction and enhancement. Thus, if no such evidence of the type of bullets or vests you used during the crime is present, your defense attorney can object to the prosecutor’s claims based on insufficient evidence.

If found guilty of possessing bullets that can penetrate metal or armor, you will receive a baseline sentence for the felony offense, and enhancement of up to ten years.  However, the average increase issued falls within the four-year bracket,  unless the prosecutor succeeds in persuading the judge to adjust the punishment to the maximum penalty.

If you are guilty of the charged felony that also involved you wearing a bulletproof vest, you will face an extra five years on top of your baseline conviction for the specific crime charged against you. Similarly, there is a default enhancement of two years available for a defendant who wore a bulletproof vest. Nevertheless, most times, the prosecutor is out to ensure that you receive the maximum five-year sentence enhancement. Therefore, your defense attorney must work hard to counter the prosecutor’s claims on your indulgence in crime.

  1. Aiding or Abetting the Commission of Felony by Providing a Firearm

Sometimes, you may face penalties and sentence enhancements for merely being a party to the crime. Aiding or abetting the principal offender by providing a gun or even attempting to give a firearm will qualify you to face firearm sentencing enhancements. Under section 12202.4, if you lend a gun to someone you knew was going to commit, a felony will amount to an offense. It does not matter that you did not follow the principal offender to the crime scene, or engaged in the unlawful actions. You will still be found in the offense even if you handed the gun to the principal offender at a separate location and time from the period in which he/she engaged in the crime.

Consequently, the main factor for the prosecutor to prove is that you gave the gun to a principal offender and that you knew of his/her unlawful intention to commit a felony. If these two elements of the crime are evident, you will face punishment for aiding and abetting the principal offender, as well as a firearm enhancement for providing a gun when you knew it would be used to effectuate a felony.

Available Defenses to Avoid Firearm Sentencing Enhancement

Your criminal defense attorney can incorporate several defense strategies to persuade the judge to reduce the sentencing enhancement guidelines or do away with it altogether. One of the strategies would involve proving that you were not included in the charged felony at all, and are therefore innocent of any use of firearms to aid in committing the offense. Some of the defenses to support your claims are:

You Possessed the Gun in Self Defense

Owing to some misconstrued facts, you may face arrest and prosecution for possessing a gun that was useful for your defense. For example, if you are prone to walking along streets where several drug corporations run their activities, you may decide to purchase a gun and keep it in case of any arising dangers. Consequently, you may get involved in self-defense and fire a gun at some of the drug distributors and face arrest alongside these suspects. Since it is common to associate suspects with the overall crime of drug distribution and selling in this case, you may face similar charges as the other defendants.

Your criminal attorney can raise the argument of self-defense, along with persuasive evidence to prove that you were not involved in the felony to secure your exemption from sentencing enhancement. However, your lawyer must present the defense under strict regulations that require proof that you reasonably believed to be in danger. You must also prove that the defense tactic you applied was proportional to the threat you thought to have been facing.

You Did Not Commit the Charged Crime

Your defense lawyer may also choose to counter the entire sentencing basis, by raising a defense to prove that you did not engage in any felony, and cannot, therefore, undergo a sentence enhancement. You will evade a baseline conviction and an enhanced sentence to prove that you are innocent of the charged crime in totality. The defense involved issuing persuasive evidence to disclaim the prosecutor’s evidence, showing your engagement in all the baseline felony elements.

While this strategy may seem a bit far-fetched, it works perfectly in a situation where you are sure of your innocence and non-engagement in committing a crime. For example, if your lawyer gathers enough evidence to prove that you are facing false mistaken identity allegations, the defense may be beneficial in absolving you of all convictions.

You Had a Legal Permit to Possess the Gun

You can also choose to use the defense of possessing a valid permit that allows you to own a gun. While the tricky part would be to justify your criminal activities, your argument may prevent the additional enhancement penalties by providing valid documents and licenses to prove that you own the firearm legally.

With such certified information, the judge may consider reducing the enhancement, or rescind it and issue the baseline penalties only. If you faced an unfair arrest whereby the officers did not recognize your non-engagement in the felony, your lawyer might also provide additional information to show that you were not a party to the offense, despite possessing a firearm.

For this defense, you will have to work closely with your lawyer and provide all the necessary information to ensure that your claims are acceptable in court.

You Faced a Constitutional Violation

Under the Fifth Amendment, it is unlawful for a prosecutor to subject you to multiple punishments for the same crime, as it would expose you to double jeopardy. Therefore, you can use the defense to plead for the enforcement of your constitutional rights, especially where the felony involves gun possession as one of the elements of the crime. For example, if you face charges for robbery with violence, using a deadly weapon is crucial to the crime that the judge considers in issuing a verdict. It would be unfair to issue an additional sentencing enhancement because it would punish you for the same offense twice.

While these defenses are appropriate to pleading for the reduction of your firearm sentencing, you should consider the circumstances present in your case, and choose the relevant argument to counter the prosecutor’s claims.

Find a Criminal Defense Attorney Near Me

A firearm sentencing enhancement brings about adverse effects, primarily because you face additional years to potentially severe felony punishment. Consequently, most defendants face overly long prison time, even when the possession of a gun was not critical to the crime committed. Contacting our Orange County Criminal Defense Attorney Law Firm team will provide access to the best defense lawyers in Orange County to help you avoid facing a firearm sentencing enhancement. Give us a call at 714-740-7848 to get started with us.