Firearms Sentencing Enhancements

The Nature of a Sentencing Enhancement

Usually, a sentencing enhancement works to increase the penalties that you face. The kind of offenses listed in unique categories to qualify for firearm sentencing enhancements are specific to the California Penal Code provisions. Moreover, the judge also considers several other factors that could automatically lead to sentence enhancement.

It is up to the prosecutor to charge you for the original crime you faced arrest for by providing sufficient evidence to show that you are guilty of all criminal elements relevant to that offense. Alternatively, you may plead guilty of a gun offense at the arraignment stage, meaning that there will be no need for the matter to move to trial.

In such cases, the judge moves to sentence quicker than during the normal trial process, as there is no matter to contest or defend. While you may be inclined to plead guilty, we recommend avoiding taking the plea, especially if you can hire a criminal defense attorney. The admission of guilt without trial may ruin your criminal record, despite promise deals from the prosecutor to reduce your case's outcomes.

If the judge finds you guilty in either of these circumstances, you will have to serve time in state prison or jail, depending on the firearm offense he/she committed. Your sentences will run concurrently, meaning that you will help time for the original crime.

Firearm Crimes that Attract Sentencing Enhancements

Section 12022 of the California Penal Code provides specific offenses that will amount to an enhancement where the defendant used or possessed the firearm when committing the crime. Each offense carries different elements for the prosecutor to prove, including whether you directly involved yourself in the unlawful activities. After making a valid case against you, it will then be up to the judge to provide an enhancement, as stated in the statutory provisions. The primary firearm offenses that attract enhancements are:

1. Making Personal Use of the Firearm to Commit a Crime

Section 12022.5 of the Penal Code provides the offense of personal use of a firearm for unlawful purposes. In this category, you will be eligible for a sentencing enhancement if you were the gun’s principal user, meaning that you handled it and used it to harm or scare a victim to promote your criminal intentions.

The prosecutor would consider you a firearm’s principal user if you used it directly to assault or harm the victim. For example, suppose you were involved in a shoplifting incident whereby you handled a pistol to scare the cashiers and other shoppers into letting you steal all available cash. In that case, you will be a primary handler of the gun and will be eligible for a sentence enhancement.

Moreover, you can become a principal offender by aiding or abetting the commission of a crime. In this case, a principal is held responsible for activities like passing the firearm to the active user who fires and uses it to intimidate others. Moreover, aiding and abetting also includes providing the person found guilty of a gun offense with the firearm. However, the prosecutor must prove that you were aware of the possible consequences of lending the firearm to the other guilty party, even if it was not apparent when you provided it.

Aiding and abetting a guilty party also involves trying to help him/her hide or destroy all evidence sources, including the firearm after the crime. You may do this by shooting witnesses or hurting any victim trying to escape and seek help to prevent him/her from raising the alarm. In any of these instances, the prosecutor will treat you as a principal offender for personally handling or using the gun.

Sentencing enhancement for personally using a gun may attract five, six, or ten years in state prison, on top of the current punishment you face.

2. Using a Firearm to Commit Sexual Offenses

Additionally, you may be guilty of using a firearm to coerce or target a victim for sexual abuse. In such circumstances, you may use the firearm to scare the crime victim into keeping quiet as you violate him/her, especially if you pose threats to kill the person in case of any attempts to raise the alarm. In other cases, you may cause actual harm to prevent the victim from escaping by shooting the person on the limbs to slow him/her down. Some of the sexual offenses that the judge considers are rape, sodomy, and spousal rape, whereby you hold the victim at gunpoint or in fear of harm as you commit sexual abuse.

It is essential to distinguish between using the firearm and possessing it when sexually abusing a victim. It will play a significant role in determining which sentence enhancement you will receive. When you possess a firearm, you are aware that you are carrying it during the sexual offense commission, even if the victim does not.

Moreover, you do not have to possess the firearm per se, because even ammunition will amount to possession charges. Secondly, you will be said to possess the gun if you know that it is available for your use if need be, especially if it is well within your reach. In such a case, the prosecutor’s primary factor in establishing that you are aware of having the weapon with you, as opposed to innocent or unintentional possession.

On the other hand, you will have used the gun if you fire at the crime victim. Firing a shot qualifies as firearm use, even if it misses the victim, and he/she is not injured. Sometimes, you may also become agitated and strike the victim with the firearm, causing possible injuries. Here, you will have used the firearm like any other weapon to inflict casualties on the victim.

Nevertheless, you may be found guilty of using the firearm to promote your unlawful behavior. Lastly, showing the crime victim your gun to indicate the intention of using it to cause injury or death if he/she resists your advances also amounts to use. Even if you do not use the firearm, it will have served its purpose by scaring the victim into complying with your orders for fear of injury or death.

The sentencing enhancement available for having a firearm when committing a sexual offense is one to five additional years in prison. If you are guilty of using the gun to undertake unlawful activities, you will be eligible to enhance the sentence to three to ten years in state prison.

3. Firearm Use When Carjacking

The crime of carjacking is categorized as a more violent and dangerous incident, mainly because it includes forceful removal of the victims from their vehicles to steal it. Therefore, most offenders have to use firearms to coerce the crime victims out of their cars and use any altercation or resistance from the victims. Section 215 of the Penal Code makes it an offense to engage in carjacking, and provides for further punishment when the defendant uses firearms to commit the crime.

In most instances, the defendant will be involved in gun use rather than gun possession as he/she aims to stop a vehicle and forcefully remove the passengers to escape with the car. In some cases, a carjacker may even shoot and kill the crime victims to prevent them from escaping and reporting the incident.

Suppose the prosecutor successfully shows that you are guilty of all elements related to carjacking. In that case, you will be eligible to receive a sentence enhancement for one to three years in state prison.

4. Using Firearms to Commit Drug Offenses

Involvement in organized drug crimes often involves the use of firearms to promote the sale and distribution of the narcotics, mainly where you distribute illegal schedule I and II drugs. Additionally, most defendants found guilty of drug crimes often operate in gangs, meaning that there is the constant use of firearms to evade the police to harm someone who appears as a threat to the gang operations.

The primary type of drug crimes involves drug trafficking, whereby you are responsible for transporting and distributing drugs to designated areas for collection by other involved parties. Moreover, drug trafficking also consists of recruiting new members to grow the distribution chain, leading to possible conflicts in organized gangs.

For example, if a new member finds the working conditions extraordinarily harsh or dangerous, he/she may decide to quit. However, you may likely result in killing such a member using a firearm to prevent the possibility of police obtaining information from reformed drug traffickers. Subsequently, most drug crimes will involve firearm use to promote unlawful activities.

The sentence enhancement ranges from one to three years in state prison on top of the extra punishment for your specific drug offenses.

Aggravating Factors Considered Before a Sentencing Enhancement

Once the judge determines that your offense will attract a sentence enhancement, he/she will issue the appropriate punishment based on several considerations that could aggravate your situation and result in severe penalties. The aggravating factors are related to different circumstances of the offense, while others relate to your characteristics. Overall, they all count in making a final decision on the sentencing enhancement you are set to receive. Some of these factors are:

Whether you Have a Previous Criminal Record

A first-time offender will commonly face different repercussions compared to a repeat offender, who may receive additional penalties for recurrent engagement in criminal activities. Consequently, if the prosecutor includes your past criminal convictions for different crimes, it may aggravate your circumstances and lead to higher sentencing enhancements.

However, the judge will consider a past conviction’s seriousness compared with the current one and exercise guided discretion to decide on the sentence enhancement level. For example, if you have a prior DUI conviction in your criminal record, you could receive a significantly lower enhancement that someone with a previous sentence for attempted murder.

A Record of Previous Violent Behavior

Apart from checking your criminal record, the judge will also consider whether you are prone to violent behavior using firearms by reviewing your history for any reports. One of the sources of information that may provide details on your violent history is police reports for different incidents you faced accusations for. Since most of these reports are only available from the Department of Justice, it is inevitable that your records if past violent activities are related to previous convictions.

Additionally, information from a therapist or reform program you enrolled in will provide a reliable source of information on whether your past violent behavior is psychological or purely for unlawful purposes.

The Nature of the Crime for Which You were Arrested

Engaging in vile unlawful activities will undoubtedly lead to serious sentence enhancements that could range to maximum increment. Some of the most vicious offenses that will amount to more extended enhancement include rape, sodomy, and drug trafficking. The nature of such crimes is so cruel that it leaves the victims highly traumatized for a significant period of their lives, with most of them facing traumatic problems for their entire lifetime.

Subsequently, the judge will consider the physical and psychological harm you caused by using a firearm to commit an offense and the possible effects on affected victims.

Whether You Were a Principal or Passive Firearm User

In the case of an organized crime that involved firearm use, you may be eligible for lower enhancements, especially if you were a passive party to the offense who neither actively held the firearm, nor aided or abetted another person in the criminal activity using a gun.

Conversely, acting as a primary firearm handler will lead to severe outcomes, primarily if the crime victim sustained severe injuries or died after you used the firearm on him/her.

Defenses For Firearm Sentencing Enhancement Offenses

Your criminal defense attorney plays a significant role in presenting sound legal defenses on your behalf to help you avert the unfair consequences for actions you did not engage in. Therefore, it is crucial to work closely with your lawyer to provide essential details that may strengthen the legal arguments for the court’s presentation. Possible defenses to avert firearm sentencing enhancements include:

• There was police misconduct.
• The firearm was found in an illegal search and seizure.
• You did not personally handle the gun to engage in unlawful activities
• You are innocent of the crime.

All the mentioned defenses vary in applicability, depending on the circumstances of your case. For example, you cannot claim to be innocent of the charged crime if the prosecutor has already successfully shown that you engaged in all the crime elements. Moreover, defenses like experiencing police misconduct require your criminal attorney to provide sufficient sources of evidence to support the claim. Before presenting such, applying diligence cases is essential, mainly because it imposes severe accusations on law enforcement officers, such as making false police reports and planting evidence. As a result, teaming up with your lawyer to discuss the best defense strategy is vital for proper defense development.

Contact a Criminal Defense Lawyer Near Me

Sentencing enhancements for using firearms during crime commission result in additional punishments for the underlying crime. Without the help of an experienced criminal defense attorney, you may have a hard time defending yourself and persuading the judge to drop the firearm sentencing enhancements. Therefore, you will have a better chance of receiving a favorable case outcome with the support and representation of a criminal attorney who is conversant with firearm offenses.

At the Leah Legal, we work hard to provide the best criminal defense services to our clients in Van Nuys, California. Our team is happy to take on your case and provide personalized counsel for your case. Call us today at 818-484-1100 and discuss your case with us.