Felony offenses involving firearms are more severe and carry harsher punishments in California. Penal Code 12022 PC is a sentencing enhancement that applies to felony crimes committed while armed with a gun and adds significant prison time for any imposed felony sentence.

Penal Code 12022 PC imposes additional years in prison when armed with a firearm committing a felony.

To impose this enhancement, the prosecutor has to establish that somebody was armed with a firearm when they attempted to commit the underlying crime.  This means carrying a firearm or having one available for use that is connected to the crime while knowing you are carrying a gun.

You are considered a principal in a crime if you directly commit or attempt the crime or if you aid someone else who commits or attempts the crime. California law includes numerous sentencing enhancements when weapons are involved in a crime.

However, if you are simply carrying a firearm when the alleged crime occurs, you could also be facing enhanced sentencing. As mentioned above, under Penal Code 12022 PC, if you are armed with a firearm while committing a felony, you could face an enhanced sentence of one year in prison and the punishment for the crime itself. PC 12022 says:

• “(a)(1) Anyone who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment of one year unless the arming is an element of that offense.  This term applies to a person who is a principal in committing the felony whether or not the person is personally armed with a firearm.”

For more serious offenses like using a deadly weapon or being armed while committing certain drug crimes, you could face an additional 3-5 years in prison. Our California criminal defense attorneys will look at this law below.

Overview of Penal Code 12022 PC

Penal Code 12022 PC calls for enhanced sentencing for a felony conviction if one of the following is true:

• The defendant was armed with any firearm at the time; or
• The defendant used any other kind of deadly or dangerous weapon to commit the crime (other than a firearm).

It is important to note that for this particular enhancement to apply, the gun does not need to be fired or even brandished. Other enhancements exist for directly using or firing a gun in the commission of a crime.

So long as the defendant was merely armed with the firearm while committing the alleged felony, they can be given an enhanced sentence under Penal Code 12022 PC.

How Do the Enhanced Penalties Apply?

Under PC 12022, the additional prison time applied to your sentence depends on factors such as the circumstances behind your crime, the type of weapon used, and the type of felony committed.

These enhancements are in addition to and are consecutive to the felony sentence handed down; they cannot be served simultaneously. The breakdown is as follows:

• For simply carrying a firearm (but not using or brandishing it) during the commission of most felony offenses: the sentence enhancement is one additional year in prison;
• For using a dangerous or deadly weapon (other than a firearm) in the commission of the crime: the sentence enhancement is also one additional year in prison;
• For being armed with an assault weapon, machine gun, or .50 BMG rifle during the commission of the crime: the sentence enhancement is three additional years in prison;
• For being armed with a firearm during the commission of certain qualifying drug offenses (such as transporting drugs or possessing drugs for sale): the sentence enhancement is an additional 3, 4, or 5 years in prison.

Interestingly, while most of these sentencing enhancements only apply if you were personally armed during the felony, other participants in drug crimes may also face sentencing enhancements even if they weren't armed.

For example, if you and a partner were transporting drugs, and he was armed, and you were not, you could still be given extra prison time of up to 3 years if you knew your partner was armed.

What are Some Examples?

EXAMPLE 1: Bill breaks into someone's home and steals some jewelry, committing first-degree residential burglary (PC 460). He was armed with an assault rifle but never took out his weapon. Bill's crime qualifies for the three-year sentencing enhancement because of the type of weapon he was armed with.

EXAMPLE 2: Jill robs someone at knifepoint on the bus, committing felony robbery (PC 211). Jill's crime qualifies for the one-year sentencing enhancement because she used a dangerous weapon other than a gun in committing the crime.

What are the Related Statutes?

• Penal Code 12022.2 PC – possess armor-piercing ammunition,
• Penal Code 12022.3 PC – use a gun during certain sex crimes,
• Penal Code 12022.4 PC - providing another person with a firearm,
• Penal Code 12022.5 PC – personally using a firearm,
• Penal Code 12021 PC – possession of a firearm by a felon,
• Penal Code 12025 PC – carrying a concealed firearm,
• Penal Code 12020 PC – manufacture or sale of certain weapons,
• Penal Code 417 PC – brandishing a weapon or firearm,
• Penal Code 246 PC – shooting an inhabited dwelling/vehicle,
• Penal Code 245(a)(2) PC – assault with a firearm,
• Penal Code 12022.53 PC – 10-20-life law,
• Penal Code 186.22 PC – criminal street gang enhancement,
• Penal Code 215 PC – carjacking.

What Are the Common Defenses to PC 12022 Enhancements?

Defense attorneys may utilize a few common defenses to keep this sentence enhancement from being applied. These are discussed below.

Perhaps we can argue there is no underlying felony. The enhancement only applies to the commission of a felony. If your attorney can show no felony was committed—or if they successfully get the felony charged reduced to a misdemeanor offense—the armed with a firearm enhancement will not apply.

Contact our office to discuss the legal options.

Perhaps we can argue that there was no gun or weapon knowledge. Remember, the enhanced sentencing may apply if you participated in a drug crime where another party was armed, even if you were not.

However, the enhancement only applies if you know the person was armed. If you had no idea that there was a gun present during the commission of the crime, then you do not qualify for the enhanced sentence.

Perhaps we can argue there was no probable cause. Law enforcement must have probable cause to search for weapons. The evidence is inadmissible in court if they located a firearm on your person without probable cause or due to an illegal search and seizure. It may not be used to invoke the enhanced penalty. If you need more information, then contact our law firm.

Eisner Gorin LLP is located in Los Angeles, California. We provide legal representation across the state. You can reach us for an initial case evaluation by phone or use the contact form.

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