New PC 12022.53 California Law
New California penal code section 12022.53 PC allows district attorneys to levy significant felony criminal charges against a criminal defendant when the defendant is alleged to have used a firearm in the commission of certain underlying felony criminal offenses.
10, 20, or 25 Year Prison Sentence
Per California’s new PC 12022.53 law, the defendant may face an additional ten (10), twenty (20), or twenty-five (25) years in a California state sentence if he found to have used a firearm in the commission of certain serious and violent felonies. The additional prison sentence length depends on how the firearm is alleged to have been used by the defendant.
Brandishing a Firearm: Per PC 12022.53(b), if the defendant brandishes, or reveals, a firearm, during the commission of certain serious or violent felonies, the defendant may face up to a ten (10) year prison sentence enhancement (PC 12022.53(b)).
Note: Per PC 12022.53, it does not matter if the firearm brandished by the defendant is operational or loaded for PC 12022.53(b) prison enhancement to apply, so long as the firearm reasonably appears to be in working order from the perspective of the victim.
Discharge of a Firearm: Per PC 12022.53(c), if the defendant discharges, or shoots, a firearm during the commission of certain serious or violent felonies, the defendant may face up to a twenty (20) year prison sentence enhancement (PC 12022.53(c).
Note: Per PC 12022.53(c), it does not matter if the firearm discharged was aimed at the victim, so long as the firearm is discharged during the commission of the enumerated serious or violent felony (See applicable felony list below).
Death or Injury with Firearm: Per PC 12022.53(d), if the defendant causes death or great bodily injury when he discharges a firearm during the commission of certain serious and violent felonies, the defendant may face up to a twenty-five (25) year prison sentence enhancement.
Note: Per PC 12022.53(d), it does not matter if the defendant intended to kill or harm the victim when he killed or harmed the victim by use of a firearm for PC 12022.53(d) to apply, so long as the victim’s death or bodily harm is directly caused by the defendant’s discharge of a firearm.
List of PC 12022.53(a) Crimes: The following crimes is a partial list of the most common serious and violent crimes that apply to penal code 12022.53 prison enhancements.
Murder (Penal Code 187)
Mayhem (Penal Code 203 & 205)
Kidnapping (Penal Code 207 & 209)
Robbery (Penal Code 211)
Carjacking (Penal Code 215)
Rape (Penal Code 261)
Illegal Sodomy (Penal Code 286)
Oral Copulation (Penal Code 287)
Lewd Act on a Child (Penal Code 288(A))
Lewd Act on a Child (Penal Code 288.5)
Sexual Penetration (Penal Code 289)
Assault by Life Prisoner (Penal Code 4500)
Felony (Death Penalty) (PC 12022.53(a)(17))
Note: Some Gang Crimes are eligible for the prison enhancements listed in PC 12022.53 if the defendant used a firearm during the commission of a felony offense, the crime was committed on behalf of an alleged criminal street gang, and the defendant personally used a firearm during the commission of the alleged offense. This is true even if the underlying criminal offense is not a serious or violent felony offense otherwise listed in PC 12022.53.
Examples:
David robs Goliath at gunpoint. When David is apprehended, he is charged with both the crime of robbery (PC 211), and the use of a firearm during the commission of a robbery (PC 12022.53(b)).
David robs Goliath at gunpoint. During the robbery, David shoots the gun in the air. When David is apprehended, he is charged by the district attorney with both the robbery crime (PC 211), and the discharge of a firearm during the commission of a robbery (PC 12022.53(c)).
David robs Goliath at gunpoint. During the robbery, David shoots Goliath when Goliath struggles with David during the robbery. When David is later apprehended, he is charged by the district attorney with the crime of robbery (PC 211), and the prison penalty enhancement of use of a firearm during a robbery that results in injury (PC 12022.53(d)).
Note: A penal code 12022.53 prison enhancement may not be charged with other criminal enhancements in most circumstances. For example, the defendant may not be charged with the use of a firearm during certain serious or violent felonies, which results in great bodily injury, and the penalty enhancement of causing great bodily injury (GBI) to the victim (PC 12022.7).
Probation Prohibition: If the defendant is found guilty of a penalty enhancement listed in PC 12022.53, the defendant is not eligible for a probation sentence. This is true even if the underlying felony offense is a crime for which a probation sentence is not otherwise barred.
For example, if the defendant is found guilty of the crime of lewd and lascivious act on a child under 14 (PC 288(A), and the penalty enhancement of using a firearm during the commission of the offense, then the defendant is not eligible for probation. This is true even though the crime of lewd and lascivious act on a child under 14 is otherwise eligible for a probation sentence under certain conditions.
Note: A prison sentence for any PC 12022.53 conviction may not be suspended or split (See PC 1170(h) Sentencing).
Reduced Sentence Credits: A defendant who is found to have violated PC 12022.53 must serve at least eighty-five percent (85%) of his or her prison sentence before the defendant is eligible for parole.
PC 12022.53 Defenses
Common defenses to PC 12022.53 enhancements include insufficient evidence to prove the underlying offense, self-defense, defense of others, firearm not used in the commission of the offense, illegal search and seizure, coerced confession, statute of limitation as to the underlying offense, firearm not personally used by defendant, lawful defense of property (PC 12022.53(l), lack of sufficient injury for PC 12022.53(d) allegations, and more.
Note: The court may, in the interest of justice pursuant to Section 1385, and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by [PC 12022.53]… (PC 12022.53(h) Abbrev.).
If you or a loved one is charged with any serious or violent criminal offense, or any firearm offense, including a violation of penal code 12022.53, contact our Inland Empire criminal defense attorneys for a free consultation. Our criminal defense attorneys have successfully handled hundreds of misdemeanor and felony criminal cases in the Inland Empire. Our experienced and talented team of criminal defense attorneys is available seven days a week to answer your questions. Call today!
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