Gun Enhancement Laws: Can They Be Stricken?

Posted By Bill Nimmo & Raymond Gomez, Attorneys at Law || 4-Oct-2015

This is an article on the everpopular topic of firearm enhancements in California. These laws provide very stiff penalties and in some cases, once placed in the case they cannot be stricken.

1) What subjects defendants to a gun enhancement?

Use of a firearm during the commission of a crime makes a defendant mandatorily subject to a gun enhancement. In fact, just being a principal actor in the crime and knowing that your co-defendant (another principal in the crime) has a gun will subject you to a gun enhancement even when you did not personally carry a firearm at all (sect. 12022(d)). Other factors that carry huge implications can be whether the defendant has any prior felony convictions, whether the gun was used in furtherance of a drug crime, a rape, a carjacking or if the crime committed was associated with gang activity.

2) What terms of years are added to the sentence for a firearms enhancement?

There is a gradation of offenses that help pinpoint the severity of the enhancement in terms of years. Just being in possession of a firearm while committing a criminal act will subject one to a gun enhancement of 1 year at the very least, (or as mentioned above knowing that your co-defendant is carrying one). However, gun enhancements usually are set in schedule form. In other words, there is usually a low and high number for which the court can use its discretion when imposing. Some range from 1-3 years and some from 3 to 5 years. Other’s such as the gang firearm enhancement known as .53 can carry a 10, 20 or 25 to life enhancement. (12022.53)

Let’s not forget that these enhancements are in addition to the primary sentences for the underlying criminal offense. So if you have been convicted of manslaughter and receive 25 to life, and it is found that you used a firearm in bringing about that homicide and it was done as a gang activity, then you are subject to the gang firearm enhancement and your sentence is two consecutive terms of 25 to life. One 25 year to life term for the homicide or underlying felony and one for the simple fact that a gun was used to bring about the homicide and it was part of a gang activity. This set of facts calculates to 50 years of determinant imprisonment with the duration of your natural life hanging in the balance thereafter.

The penal code is not an easy read on the subject, but here are a few sentences one can expect:

  • For simply possessing a firearm expect a 1 year enhancement unless arming is an element of the offense (12022(a)(1)).
  • If a firearm is used during a carjacking then a sentence of 1, 2 or 3 years will be imposed.
  • If personally armed during a drug crime then the time goes up to 3, 4 or 5 years whether or not it is a felony drug crime (12022(d)).
  • For sex offenses there are two sentence schedules:
    • If you use the firearm during a sex crime then you are looking at 3, 4 or 10 years of an enhancement.
    • If you don’t use the firearm, but are armed with it, then you are liable to receive a 1, 2 or 5 year enhancement.
  • If it is an assault weapon one is looking at 3 years (even if you were not the principal that was armed with the assault weapon) (12022(a)(2)).
  • If that Assault weapon is used to commit a felony, then the defendant will be facing a 3, 4, or 10 year enhancement unless it is one defined specifically under other penal codes which carry a 5, 6, or 10 year enhancement. (12022.5).

3) Can gun enhancements be stricken?

The simple answer is "No." It is very difficult for a gun enhancement to be stricken. That being said, it is not impossible. However, if you are facing a gun enhancement I would not bet that the court will, even if it wanted to, be able to strike the enhancement. Essentially, the court can strike a gun enhancement where the interests in justice may be served for non-prior felony gun enhancement sentences (12022(f)). However, section 1385 of the penal code which gives the courts the authority to strike an enhancement in furtherance of justice also specifically prohibits the court from striking a prior conviction of a serious felony for purposes of avoiding the enhancement of a sentence under penal code 667 (1385(b)).

It is of note that in People v. Jones (2007) it was decided that even though penal code section 12022(f) specifically names two subsections under that specific code which the court can strike the gun enhancement, it was decided that the court could also strike for use of deadly or dangerous weapons. This is very persuasive in ultimately allowing the court to strike a gun enhancement where the enhancement arises out of section 12022 so long as the interest of justice is being served.

The trial court may also exercise the discretion (the defendant can only motion and ask it to exercise their discretion in striking an enhancement, not motion to have an enhancement struck) under section 1385, to strike a finding that a prior conviction comes within the meaning of one of the enumerated prior felonies in section 667(d), but only if a defendant can be deemed outside the spirit of the statute. In making this finding the court must look to statutory factors such as:

  • Background
  • Character of the defendant
  • Prospects of the defendant
  • Nature and circumstances of present and previous felony convictions

Ultimately, it is unlikely that very many set of facts would lend to a gun enhancement involving a prior felony conviction being stricken. Whereas, a defendant has a better chance of the court finding that in furtherance of justice where no prior felony convictions exist, such a finding still must be articulated in the minute order justifying such a decision.

Your criminal defense lawyer will be looking at the case carefully to gauge how problematic the gun use is.